diff --git "a/dataset.csv" "b/dataset.csv" new file mode 100644--- /dev/null +++ "b/dataset.csv" @@ -0,0 +1,16441 @@ +Text,Audio_File +"A. Devaraj vs. rajammal on 1 february, 2011 author: g.m. Akbar ali bench: g.m. Akbar ali in the HC of judicature at madras dated:",audio_1_1.mp3 +1-2-2011 coram the honourable mr. J. g.m. Akbar ali crl.O.P. no.27211 of 2010 and m.p.nos.1 and 2 of 2010 a. Devaraj ..petitioner vs. rajammal,audio_1_2.mp3 +..respondent Crl. O.P. filed under S. 482 Cr.P.C. for the reliefs as stated therein. For petitioner : Mr. n. Sudharsan for,audio_1_3.mp3 +respondent : Mr. p. Ananda kumar order the petition is filed seeking a direction to set aside the order dated 10.11.2009 made in Crl. r.c.no.37/2008,audio_1_4.mp3 +"by the learned additional district and sessions judge, gopichettypalayam and confirming the order passed by the learned judicial magistrate, sathyamangalam in cmp no.3579 of 2007",audio_1_5.mp3 +"in c.c.no.595 of 2004 dated 2.5.2008. 2. Petitioner is the accused in c.c no.595 of 2004 pending on the file of judicial magistrate, sathyamangalam, erode.",audio_1_6.mp3 +The said proceedings was initiated on a Pvt. complaint lodged by the respondent for an offence under sec.138 r/w 142 of NI Act ,audio_1_7.mp3 +"(hereinaftera. Devaraj vs. rajammal on 1 february, 2011",audio_1_8.mp3 +"3. Pending proceedings, the petitioner has filed cmp no.3579 of 2007 under sec.45 of the indian evidence act seeking for an order to send the",audio_1_9.mp3 +"cheque to the expert to determine the ""age of the ink"" found in the cheque. It was opposed by the complainant. The learned judicial magistrate",audio_1_10.mp3 +"relied on a decision reported in 2008 (1) ctc 496 (s.gopal vs. p. Balachandran), wherein it is held that there is no scientific facility to",audio_1_11.mp3 +"determine the age of the ink. Consequently, the learned magistrate dismissed the Appl. . 4. The petitioner has filed a revision petition in Crl. r.c.no.37 of",audio_1_12.mp3 +"2008 before the learned additional district and sessions judge, gopichettipalayam. The learned additional district and sessions judge (fast track court ii), after considering the points,",audio_1_13.mp3 +"concurred with the learned judicial magistrate and dismissed the revision. Aggrieved by which, the accused is before this court under sec.482 Cr.P.C. ",audio_1_14.mp3 +"5. Mr. n. Sudharsan, learned counsel for the petitioner drew our attention to an order passed by this court on 2.11.2010 in crp (pd) No. ",audio_1_15.mp3 +"1475 of 2010, wherein, his lordship r.S. ramanathan j. Observed as follows: ""6. It is seen from the judgment referred supra, the learned judge after",audio_1_16.mp3 +"getting opinion from the assistant director, document division, forensic science Dept. , Govt. of tamil nadu came to the conclusion that no such facility is available",audio_1_17.mp3 +"in the forensic science Dept. , Govt. of tamil nadu and also on the basis of the opinion expressed by the assistant director held that the",audio_1_18.mp3 +"age of the ink cannot be found out. Now the revision petitioner has produced a brochure downloaded from the central forensic science laboratories, hyderabad website",audio_1_19.mp3 +"wherein it has been stated that they are undertaking the work of determining the age of the ink. Further, it is seen from the letter",audio_1_20.mp3 +"written from the office of Govt. examiner of questioned documents directorate of forensic science, hyderabad, the age of the ink can be ascertained by comparing",audio_1_21.mp3 +it with the admitted signature of the same period and at the same time it has been stated that there is no foolproof method by,audio_1_22.mp3 +"which the exact age of the writing/signature can be determined or authenticated. However, with a view to give fair trial to the revision petitioner and",audio_1_23.mp3 +"having regard to the particulars available from the website of central forensic science laboratory, hyderabad, the prayer for the revision petitioner can be considered and",audio_1_24.mp3 +"the document can be sent to central directorate of forensic science in the office of Govt. examiner of questioned documents. Further, the revision petitioner should",audio_1_25.mp3 +also send the admitted signature of the first defendant alleged to have been written during the relevant period during which the disputed document was also,audio_1_26.mp3 +"signed. 6. He also relied on a decision reported in 2007 (1) crimes 106 (SC ), (kalyani baskar vs. m.S. sampornam), wherein the apex",audio_1_27.mp3 +"court has held as follows: ""where accused in a cheque bouncing Cas. prayed to magistrate to send cheque in question for examination by handwriting expert",audio_1_28.mp3 +"to ascertain genuineness of signatures, as a fair trial request should have been allowed in exercise of power u/sa. Devaraj vs. rajammal on 1 february,",audio_1_29.mp3 +2011,audio_1_30.mp3 +"7. On the contrary, Mr. anandakumar, the learned counsel for the respondent submitted that the alleged transaction took place in the year 2004 and the",audio_1_31.mp3 +"accused has chosen to file an Appl. only in the year 2007 and therefore, at the belated stage, the Appl. cannot be entertained and it",audio_1_32.mp3 +is only a delaying tactics by the accused petitioner. 8. The learned counsel relied on a decision reported in 2010 1 ctc 424 (r. Jagadeesan,audio_1_33.mp3 +"vs. n. Ayyasamy and Anr. ) , wherein this court has held that finding the age of the writing in a document is only futile, since",audio_1_34.mp3 +the head of the Dept. of forensic science at chennai had stated that there is no scientific method available anywhere in this state to scientifically,audio_1_35.mp3 +assess the age of any writing. 9. Heard and perused the materials available on record. 10. The petitioner has invoked sec.45 of indian evidence act,audio_1_36.mp3 +contending that the cheque was not issued to the complainant but had been issued to the brother of the complainant during 1998 and 1999 and,audio_1_37.mp3 +"to prove that the writings in the cheque do not belong to the year 2004 as dated in the cheque, the age of the ink",audio_1_38.mp3 +has to be determined. 11. The learned judicial magistrate as well as the revision Auth. had relied on the decision reported in 2008 (1) ctc,audio_1_39.mp3 +496 (s.gopal vs. p. Balachandran) (cited supra) and has also relied on a decision reported in 2010 1 ctc 424 (r. Jagadeesan vs. n. Ayyasamy,audio_1_40.mp3 +"and Anr. ) (cited supra), wherein it is held that there is no facility available to determine the age of the ink. However, Anr. learned single",audio_1_41.mp3 +judge of this court has now held that the central forensic science laboratory at hyderabad has the facility to ascertain the age of the ink.,audio_1_42.mp3 +"12. In my considered opinion, the latest judgment of the learned single judge of this court in crp (pd) no.1475 of 2010 is not a",audio_1_43.mp3 +"contradictory judgment to the earlier judgment of the learned single judge in the Cas. of r. Jagadeesan vs. n. Ayyasamy and Anr. , reported in 2010",audio_1_44.mp3 +"(1) ctc 424. Hon'ble r.S. ramanathan j. Has differentiated the earlier judgment of Hon'ble S. nagamuthu j, and has ordered sending the document to be",audio_1_45.mp3 +"examined by the cfsl, hyderabad as they claim the facility is available. 13. Since the learned magistrate has dismissed the Appl. based on the earlier",audio_1_46.mp3 +"judgment, i am of the considered view that when there is facility available, a fair trial requires that a chance must be given to the",audio_1_47.mp3 +"accused/petitioner as he has taken a definite stand that the cheque was issued to a different person in the year 1998-1999, which has been used",audio_1_48.mp3 +"by the complainant in the year 2004. However, as observed in the order dated 2.11.2010 in crp (pd) no.1475 of 2010, an admitted signature of",audio_1_49.mp3 +"the petitioner of the same year should also be sent for comparison. 14. Therefore, the Crl. O.P. is allowed and the order passed by",audio_1_50.mp3 +"the learned additional district and sessions judge, gopichettypalayam in Crl. r.c.no.37/2008 dated 10.11.2009 and learned judicial magistrate, sathyamangalam in cmp no.3579 of 2007 in c.c.no.595",audio_1_51.mp3 +"of 2004a. Devaraj vs. rajammal on 1 february, 2011",audio_1_52.mp3 +15. The revision petitioner is directed to submit his admitted signature as stated above within a period of two weeks from the date of receipt,audio_1_53.mp3 +of a copy of this order before the LC . The LC is directed to send both the documents to the central forensic science,audio_1_54.mp3 +"laboratory, directorate of forensic science as stated above. The LC is directed to fix the remuneration to the Adv. commissioner and also for the",audio_1_55.mp3 +"expenses for comparison. If the revision petitioner fails to produce the admitted signature for comparison as stated above within the stipulated period, the revision petitioner",audio_1_56.mp3 +"is not entitled to ask for sending the documents for comparison. Consequently, the connected mps are closed. Sr to 1. Additional district and sessions judge,",audio_1_57.mp3 +"gopichettypalayam 2. The judicial magistrate, sathyamangalama. Devaraj vs. rajammal on 1 february, 2011",audio_1_58.mp3 +"Bharathi rock products vs. gangambika enterprises on 10 march, 2023 kabc030972102021 presented on : 30-12-2021 registered on : 30-12-2021 decided on : 10-03-2023 duration :",audio_2_1.mp3 +"1 years, 2 months, 11 days in the court of xxvii addl. Chief MM , bengaluru present: sri. H. Satish b.a.l. Ll.b., ll.m., xxvii a.c.m.m",audio_2_2.mp3 +bengaluru. Dated: this the 10 th day of march 2023. C.c. No.37392/2021 complainant bharathi rock products (india) pvt.ltd. (formerly mines and rock products (india Pvt. ,audio_2_3.mp3 +"ltd), no.24, old 56 b/34, 1st main, lower palace orchards, viyalikaval, bengaluru-560003. Rep.by AR , srivallabha .k.s., s/o. Late shamanna aged about 50 years. (by",audio_2_4.mp3 +"sri. Jayaraj gowda. M.n. Adv. ) v/s. Accused 1. Gangambika enterprises situated at, gokul (village), basavakalyan, bidar 585327 representative by its authorized person, sri. Ravi reddy",audio_2_5.mp3 +"s/o. Venkatareddy patil, major, 2. Sri. Ravi reddy, s/o. Venkatareddy patil, represented by its authorized person gangambika enterprises, situatedat No. gokul (village) basavakalyan,bharathi rock products",audio_2_6.mp3 +"vs. gangambika enterprises on 10 march, 2023",audio_2_7.mp3 +"(by sri.samuel s dandin adv.,) u/s.138 of negotiable instruments offence act. 2 c.c. No. 37392/2021 plea of the accused claims to be tried final order",audio_2_8.mp3 +convicted judgment date 10/03/2023 **** judgment the complainant Co. has filed complaint u/sec.200 of Cr.P.C. against the accused for the offence punishable,audio_2_9.mp3 +u/sec.138 of negotiable instrument act. 2. The facts germane for disposal of the instant complaint can be summarized as per following:- it is the Cas. ,audio_2_10.mp3 +"of the complainant Co. that, the complainant Co. was formerly known as mines and rock products (india pvt ltd.,) and it is engaged in the",audio_2_11.mp3 +business of supply of mines and rock products and the accused no.1 is engaged in the similar type of business and the accused No. 2,audio_2_12.mp3 +"being the owner of the accused no.1 concern used to purchase material sand, p-sand, jelly and coarse products with the complainant Co. as and when",audio_2_13.mp3 +"required and as per the books of account, the accused has purchased coarse products on various dates from 01/09/2018 and stated that as per the",audio_2_14.mp3 +"books of accounts maintained by the complainant Co. as on 01/09/2018, the accused was due to the complainant Co. to the tune of rs.48,205/- and",audio_2_15.mp3 +"the accused failed to repay the said amount despite repeated request. 3. It is stated that, after persistent request and demand, towards discharge of outstanding",audio_2_16.mp3 +"liability due and payable, the accused issued cheque bearing no.000005 dated 20/11/2018 for a sum of rs.48,205/- drawn on hdfc bank, no.55 a, sadahalli village,",audio_2_17.mp3 +"devanahalli taluk, bengaluru in favour of the complainant Co. and assured that the same would be honoured on its presentation and the complainant Co. presented",audio_2_18.mp3 +"the said cheque on 20/11/2018 for encashment through its banker i.e., axis bank, sadhashiva nagar branch, bengaluru and the same got dishonoured and returned with",audio_2_19.mp3 +"an endorsement dated:23/11/2018 stating "" funds insufficient "" . Thereafter, the complainant Co. got issued demand notice dated: 15/12/2018 to the accused through rpad calling",audio_2_20.mp3 +"upon him to make the payment covered under the aforesaid cheque, within 15 days from the date of receipt of notice and the said notice",audio_2_21.mp3 +"was returnedbharathi rock products vs. gangambika enterprises on 10 march, 2023",audio_2_22.mp3 +"Hence, this complaint. 4. It is to be noted that, there was a delay in filing the complaint and this court vide order dated: 04/12/2021",audio_2_23.mp3 +"condoned the delay in filing the complaint. Thereafter, the sworn statement of the AR of the complainant Co. by name srivallabha. K.s was recorded.",audio_2_24.mp3 +"As the complainant had complied the mandatory requirements of S. 138 of negotiable instrument act, the court issued summons to the accused. After service of",audio_2_25.mp3 +"summons, accused entered appearance and was enlarged on bail. 5. The plea of the accused was recorded and the substance of the accusation was read",audio_2_26.mp3 +"over to the accused in the language known to him and the same was explained, to which, accused pleaded not guilty and submitted he has",audio_2_27.mp3 +"defence to make. 6. In order to prove the Cas. , the AR of the complainant Co. by name srivallabha. K.s got himself examined as",audio_2_28.mp3 +pw.1 and got marked ex.p1 to ex.p13 documents. 7. The statement of accused under S. 313 Cr.P.C. was recorded and the accused,audio_2_29.mp3 +denied the incriminating evidence appearing against him. The accused has not let in his side oral evidence and no documents are marked on his behalf.,audio_2_30.mp3 +8. Heard arguments on both sides. I have perused the materials on record. 9. The following points arise for my determination: (i) whether the complainant,audio_2_31.mp3 +"Co. proves that towards discharge of liability due and payable, the accused issued cheque bearing no.000005, for Rs. 48,205/- drawn on hdfc bank, no.55, sadahalli",audio_2_32.mp3 +"village, devanahalli taluk, bengaluru in favour of complainant Co. ? (ii) whether the complainant Co. proves that accused has committed an offence punishable u/sec.138 of",audio_2_33.mp3 +negotiable instrument act? (iii) what order? 10. My answer to the above points is as per following:- point no.1& 2 : in the affirmative point,audio_2_34.mp3 +"no.3 : as per the final order, for the following:-bharathi rock products vs. gangambika enterprises on 10 march, 2023",audio_2_35.mp3 +"11. Point nos.1 & 2 : in order to prove the Cas. , the AR of the complainant Co. by name sri. Srivallabha. K.s got",audio_2_36.mp3 +himself examined as pw.1 and the Aff. filed by him in lieu of sworn statement was treated as examination in chief as per the dictum,audio_2_37.mp3 +"laid down in the ruling of the Hon'ble apex court of india, reported in (2014) 5 scc 590 (indian bank Assn. & ors v/s. Union",audio_2_38.mp3 +of india & ors). Pw1 got marked ex.p1 to p13 documents. 12. The complainant Co. has exhibited the following ex.p1 to p13 documents. Ex.p1 is,audio_2_39.mp3 +"the certified copy of board resolution, ex.p2 is the statement of account, ex.p3 is the cheque dated: 20/11/2018, ex.p3(a) is the signature of accused, ex.p4",audio_2_40.mp3 +"is the bank endorsement dt:23/11/2018, ex.p5 is the office copy of legal notice dated : 15/12/2018, ex.p6 & 7 are the postal receipts, ex.p8 &",audio_2_41.mp3 +"9 are postal covers, ex.p10 & 11 are the invoices and ex.p12 & 13 are the bills. 13. The learned counsel for the complainant vehemently",audio_2_42.mp3 +argued that the accused has admitted that ex.p3 cheque belongs to him and the signature appearing thereon also belongs to him and argued the accused,audio_2_43.mp3 +has taken a contention that the subject cheque was issued by him in the year 2012 and to establish the same the accused has not,audio_2_44.mp3 +stepped into witnesses box and he has not produced any documents to show that he is not liable to pay the amount covered under the,audio_2_45.mp3 +ex.p3 cheque and argued the complainant Co. has produced all relevant document to establish the transaction in question and argued the accused has taken defence,audio_2_46.mp3 +that pw1 is not having proper Auth. to depose on behalf of the complainant Co. and he has also taken defence that ex.p5 legal notice,audio_2_47.mp3 +was not served upon him and argued the complainant Co. has produced Auth. letter / resolution to establish that pw1 is authorized person to depose,audio_2_48.mp3 +on behalf of the complainant Co. and argued no positive evidence is placed on record by the accused to establish that he was not running,audio_2_49.mp3 +business shown in the ex.p5 legal notice or that he was not at all residing in the address shown in the ex.p5 notice and argued,audio_2_50.mp3 +the summons issued by the court was served upon the accused to the address mentioned in the ex.p5 legal notice and argued by examining pw1,audio_2_51.mp3 +"and by producing all relevant documents, the complainant Co. has ably established its Cas. and the accused has failed to rebut the presumption as contemplated",audio_2_52.mp3 +u/sec. 139 of the NI Act and sought to convict the accused. In support of his arguments the learned counsel for the complainant has,audio_2_53.mp3 +relied on the following rulings: 1. (2010) 11 scc 441 decided between rangappa v/s mohan 2. (2015) 8 scc 378 decided between t. Vasantha kumar,audio_2_54.mp3 +v/s vijayakumari 3. (2018) 8 scc 165 kishon rao v/s shankar gowda 4. Ilr 2019 kar 493 decided between sri. Yogesh poojari v/s k. Shankar,audio_2_55.mp3 +"bhatbharathi rock products vs. gangambika enterprises on 10 march, 2023",audio_2_56.mp3 +"Hon'ble HC of karnataka 6. Crl. Appeal no.271/2020 decided between aps forex services pvt ltd., v/s shakthi international fashion linkers and Ors. by the",audio_2_57.mp3 +"Hon'ble apex court. 14. Per-contra, the learned counsel for the accused stoutly argued that the complainant Co. has not produced cogent materials to establish that",audio_2_58.mp3 +pw1 is authorized to appear and depose on behalf of the complainant Co. and argued the complainant Co. has produced tax invoices and the account,audio_2_59.mp3 +statements and argued the amount mentioned in the said documents and the amount mentioned in the ex.p3 cheque does not tally with each other and,audio_2_60.mp3 +argued the cheque in question issued by the accused towards security has been misused by the complainant Co. and argued pw1 himself has admitted that,audio_2_61.mp3 +the ink used for signature and the ink used for writing the contents of cheque differs and argued ex.p5 legal notice was not served upon,audio_2_62.mp3 +"the accused and argued by eliciting material answers from pw1, the accused has disprove the Cas. of the complainant and thereby he has rebutted the",audio_2_63.mp3 +presumption as contemplated u/sec. 139 of the NI Act and sought to acquit the accused. In support of his arguments the learned counsel for,audio_2_64.mp3 +the accused relied on the following rulings: 1. (2014) 2 scc 236 decided between john k abraham v/s. Simon c abraham and Anr. 2. (2010),audio_2_65.mp3 +Crl. lj. 3783 decided between garhwal mandal vikas nigam Ltd. and other v/s. Mata gargh and Co. and Anr. by the Hon'ble uttaranchal HC .,audio_2_66.mp3 +3. (2015) 1 bankmann 200 decided between chabra fabrics pvt Ltd. v/s. Baghavant by the Hon'ble punjab and hariyana HC . 4. Crl. appeal no.1219/2017,audio_2_67.mp3 +decided between justin john v/s. Chako thomas by the Hon'ble kerala HC . 5. Crl. appeal no.1251/2010 decided between sriram transport v/s.syed alim shabir by,audio_2_68.mp3 +the Hon'ble karnataka HC . 6. (2015) 12 scc 203 decided between a.c. Narayanan v/s. State of maharastra 7. (2014) 10 scc 473 decided between,audio_2_69.mp3 +anwar p.v. V/s. Basheer 15. I have gone through the rulings relied on by the complainant and accused and i have taken note of the,audio_2_70.mp3 +"principles laid down in the aforesaid rulings and i have also adopted the same while deciding the instant Cas. . That apart, on considering the arguments",audio_2_71.mp3 +"addressed by the learned counsel for the complainant and accused, before adverting to the oral evidence let in by the complainant and without touching upon",audio_2_72.mp3 +"the defence set up by the accused, the documents produced by thebharathi rock products vs. gangambika enterprises on 10 march, 2023",audio_2_73.mp3 +"Has discharged initial burden of proving issuance of cheque, presentation of ex.p3 cheque, bouncing of cheque and issuance of notice. At this juncture, i find",audio_2_74.mp3 +"it relevant to quote ruling reported in 2010(11) scc 441, decided between rangappa vs. Sri. Mohan wherein the Hon'ble apex court held that: "" presumption",audio_2_75.mp3 +"under S. 139 of negotiable instrument act, 1881 includes the presumption of the existence of legally enforceable debt or liability. That presumption is required to",audio_2_76.mp3 +"be honoured and if it is not so done, the entire basis of making these provision will be lost. Therefore, it has been held that,",audio_2_77.mp3 +it is for the accused to explain his Cas. and defend it once the fact of cheque bouncing is prima-facie established. The brain is on,audio_2_78.mp3 +"him to disprove the allegations once a prima-facie Cas. is made out by the complainant "". 16. In the aforesaid ruling the Hon'ble apex court",audio_2_79.mp3 +"has held that, once the complainant establishes bouncing of cheque, then it is for the accused to disprove the allegations and also it is for",audio_2_80.mp3 +him/her to rebut the presumption as contemplated under S. 139 of negotiable instrument act by placing acceptable evidence . In the ruling decided in Crl. ,audio_2_81.mp3 +appeal No. 1233 - 1235 of 2022 decided on 12/08/2022 by the hon'ble apex court between rasiya v/s abdul nazar the Hon'ble apex court at,audio_2_82.mp3 +"Para. 7 held that as per sec.139 of the NI Act , it shall be presumed, unless the contrary is proved, that the holder of",audio_2_83.mp3 +"a cheque received the cheque of the nature referred to in sec.138 of the NI Act for discharge, in whole or in part, of",audio_2_84.mp3 +"any debt or other liability. Therefore, once the initial burden is discharged by the complainant that the cheque was issued by the accused and the",audio_2_85.mp3 +"signature and the issuance of cheque is not disputed by the accused, in that Cas. , the onus will shift on the accused to prove the",audio_2_86.mp3 +contrary that the cheque was not for any debt or other liability. The presumption u/sec. 139 of the NI Act is a statutory presumption,audio_2_87.mp3 +"and thereafter, once it is presumed that the cheque is issued in whole or in part of any debt or other liability which is in",audio_2_88.mp3 +"favour of the complainant / holder of cheque, in that Cas. , it is for the accused to prove the contrary. In the light of the",audio_2_89.mp3 +"principle laid down above, it is worth to note that, during cross-examination dated: 17/06/2022 of pw1 at Para. 6, the accused has suggested to pw1",audio_2_90.mp3 +"that in the year 2012 the accused had transacted with mines and rocks products (india pvt ltd.,) and at that time the accused had given",audio_2_91.mp3 +ex.p3 signed blank cheque and the complainant Co. has filled-up false contents in the said cheque and presented the same in the year 2018. The,audio_2_92.mp3 +"said suggestion has been denied by pw1. It is to be noted that, the said suggestion indicates that, the accused is admitting his signature at",audio_2_93.mp3 +"ex.p3 cheque and that he also admits that ex.p3 cheque belongs to accused no.1 concern. Therefore, this court will have to draw presumption that the",audio_2_94.mp3 +"accused had issued ex.p3 cheque to the complainant Co. towards discharge of liability. At this juncture, i find it appropriate to quote the ruling reported",audio_2_95.mp3 +"in: (2009) 2 scc 513 decided between kumar exports v/s.bharathi rock products vs. gangambika enterprises on 10 march, 2023",audio_2_96.mp3 +"Accused to disprove the Cas. of the complainant and to rebut the presumption as envisaged u/sec. 139 of the negotiable instrument act,. At Para. 20",audio_2_97.mp3 +"& 21 held that, the accused in a trial u/sec. 138 of the NI Act has two options. He can either show that consideration",audio_2_98.mp3 +"and debt did not exist or that under the particular circumstances of the Cas. , the non- existence of consideration and debt is so probable that",audio_2_99.mp3 +"a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumption, an accused is not expected to prove his",audio_2_100.mp3 +defence beyond reasonable doubt as his expected of the complainant in a Crl. trial. The accused may adduce direct evidence to prove that the note,audio_2_101.mp3 +"in question was not supported by consideration and there was no debt or liability to be discharged by him. However, the court need not insist",audio_2_102.mp3 +"in every Cas. , that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is",audio_2_103.mp3 +"neither possible nor contemplated. At the same time, it is clear that, bare denial of the passing of the consideration and the existence of debt,",audio_2_104.mp3 +apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of prove,audio_2_105.mp3 +"shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration which, the court may either",audio_2_106.mp3 +believe that the consideration and debt did not exist or there non-existence was so probable that a prudent man would under the circumstances of the,audio_2_107.mp3 +"Cas. , act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported",audio_2_108.mp3 +"by the consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances,",audio_2_109.mp3 +"so relied upon or compelling, the burden may like wise, shift again on to the complainant. The accused may also rely upon presumptions of fact,",audio_2_110.mp3 +"for instance, those mentioned in sec.114 of the evidence act, to rebut the presumption u/sec. 118 & 139 of the NI Act . Para. 21:",audio_2_111.mp3 +the accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear,audio_2_112.mp3 +"and exceptional cases from the Cas. set out by the complainant, i.e. the averments in the complaint, the Cas. set out in the statutory",audio_2_113.mp3 +"notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all",audio_2_114.mp3 +"the circumstances of the Cas. and the preponderance of probabilities, the evidential burden shift back to the complainant and, therefore, the presumption u/sec. 118 and",audio_2_115.mp3 +"139 of the NI Act will not again come to the complainant's rescue. 17. In the light of the principle laid down above, it",audio_2_116.mp3 +"is worth to note that, the accused has not stepped in to the witness box to disprove the Cas. of the complainant Co. . The Hon'ble ",audio_2_117.mp3 +apex court in the ruling reported in 2019 scc online SC 491 decided between basalingappa v/s mudibasappa at para 25(3)(4) and (5) has categorically,audio_2_118.mp3 +"held that: to rebut the presentation, it is open for the accused to rely on evidence led by him or the accused can rely on",audio_2_119.mp3 +the material submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the,audio_2_120.mp3 +"material brought on record by the parties, but also by reference to the circumstances which they rely and also held, it is not necessary for",audio_2_121.mp3 +"the accused tobharathi rock products vs. gangambika enterprises on 10 march, 2023",audio_2_122.mp3 +"Burden and not a persuasive burden. In the light of the principle laid down above, it is not necessary for the accused to step into",audio_2_123.mp3 +"the witness box to disprove the Cas. of the complainant. In this backdrop, now i enter in to the domain of defense set up by",audio_2_124.mp3 +"the accused, to ascertain whether accused has been able to rebut the presumption as contemplated u/sec. 139 of the NI Act , by placing acceptable",audio_2_125.mp3 +"evidence, for which i find it appropriate to examine each and every aspect in detail. I. Auth. of pw1: 18. It is to be noted",audio_2_126.mp3 +"that, the accused has taken a defence that pw1 is not an authorized person to depose on behalf of the complainant Co. . During cross- examination,",audio_2_127.mp3 +"dated: 06/05/2022 at Para. 1, pw1 deposed that, he is working as deputy general manager in the complainant Co. from 03/07/2018 and one anupkumar saksena",audio_2_128.mp3 +is the director of the complainant Co. and admitted as per ex.p1 anupkumar saksena has given Auth. letter in favour of deepak rajendran. Pw1 deposed,audio_2_129.mp3 +"that he is having complete information about the instant Cas. , pw1 admitted that at Para. 3 of the complaint, it is mentioned that the complainant",audio_2_130.mp3 +Co. has issued Auth. letter to him and to one nandish on 10/01/2018 to appear on behalf of the complainant Co. and admitted that he,audio_2_131.mp3 +"has not produced resolution dated: 10/01/2018 before the court. At Para. 2, pw1 denied that he is not having proper Auth. to depose on behalf",audio_2_132.mp3 +of the complainant Co. and he voluntarily deposed that he has produced Auth. letter before the court when he tendered evidence in respect of filing,audio_2_133.mp3 +"the complaint belatedly and denied that he has not produced resolution dated: 10/01/2018 even at that time. At Para. 3, pw1 deposed €€€ 10/01/2018 □□‚€",audio_2_134.mp3 +"ƒ□□„ …□†€‡ˆ □‰‚‚ š€‚‡ˆ …□□‰‰ €‰□š‹€œœ□ˆˆˆ □□‚□ ‹… œ€€ € †□ž‚ˆ‹□‚…□‚€ €€□‡€œœ□. ‚‘ˆ’“€€ 19. It is to be noted that, in order to establish that",audio_2_135.mp3 +"pw1 is authorized to appear in the instant Cas. and to depose on behalf of the complainant Co. , pw1 has produced ex.p1 resolution dated: 05/01/2019.",audio_2_136.mp3 +"On careful scrutiny of the same, it depicts that the same is signed by the director of the complainant Co. by name anupkumar saksena. The",audio_2_137.mp3 +said document discloses that the complainant Co. had authorized mr. Deepak rajendran to execute documents and to appear on behalf of the Co. as authorized,audio_2_138.mp3 +representative. In the said document the complainant Co. had also authorized the said deepak rajendran to delegate Auth. conferred on him by the complainant Co. ,audio_2_139.mp3 +"in favour of any other officials of the Co. or other persons as he deems fit. It is to be noted that, on careful scrutiny",audio_2_140.mp3 +"of the complaint, at Para. 3 it is mentioned that resolution dated: 10/01/2018 has been passed by the complainant Co. authorizing pw1 and one m.c.",audio_2_141.mp3 +Nandisha to execute documents and to appear on behalf of the complainant Co. and it is also mentioned that complainant Co. is producing resolution letter,audio_2_142.mp3 +dated: 05/01/2019 and 20/02/2019. 20. As discussed pw1 has voluntarily deposed that he has produced resolution and authorization letter when he adduced evidence in respect,audio_2_143.mp3 +"of the delay in filing complaint. It is required to be notedbharathi rock products vs. gangambika enterprises on 10 march, 2023",audio_2_144.mp3 +"Has produced ex.p1 to p5 documents. On scrutiny of ex.p2 document, it discloses that the director of complainant Co. by name deepak rajendran had issued",audio_2_145.mp3 +"authorization letter on 20/02/2019 in-favour of pw1 to appear and to give evidence on behalf of the complainant Co. . Therefore, by taking note of ex.p2",audio_2_146.mp3 +"document marked at the time of enquiry of pw1 on delay Appl. , makes it clear that pw1 had all the Auth. to institute the complaint",audio_2_147.mp3 +and also to adduce evidence on behalf of the complainant Co. and the stand taken by the accused that pw1 is not an authorized person,audio_2_148.mp3 +"to appear on behalf of the complainant Co. and to adduce evidence does not hold water. (ii) transaction: 21. It is to be noted that,",audio_2_149.mp3 +"it is the Cas. of the complainant Co. , that the accused had purchased materials from the complainant Co. from 01/09/2018 and that it had maintained",audio_2_150.mp3 +"books of account. During cross-examination dated: 17/06/2022 at Para. 4, pw1 deposed that he cannot say as per ex.p2, that when the accused had placed",audio_2_151.mp3 +"purchase order and on which date, which product and its quantity was supplied to the accused firm. Pw1 voluntarily deposed that the same will not",audio_2_152.mp3 +be mentioned at ex.p2 and it will be mentioned only in invoices and admitted except ex.p2 document he has not produced any other documents. Pw1,audio_2_153.mp3 +"denied that as per ex.p2, the accused has not transacted with the complainant Co. between 01/04/2016 and 31/08/2017 and because of which the complainant Co. ",audio_2_154.mp3 +"has not produced purchase order, invoice, lorry receipt and any other documents. 22. It is to be noted that, pw1 got himself further examined in",audio_2_155.mp3 +chief and he has produced ex.p10 to ex.p13 documents to establish the transaction in question. On scrutiny of ex.p10 and ex.p11 tax invoices the value,audio_2_156.mp3 +"of the materials mentioned in the said documents amounts to rs.29,837/- and rs.21,701/- respectively and the said documents are dated: 26/05/2017 and 30/05/2017. The complainant",audio_2_157.mp3 +"Co. has produced ex.p12 and ex.p13 bills to establish that the goods were delivered to the accused. During cross-examination dated: 28/07/2022 at Para. 1, pw1",audio_2_158.mp3 +"deposed according to him, the accused has to pay money in respect of ex.p10 to ex.p13 documents. The complainant Co. has produced ex.p2 account statement",audio_2_159.mp3 +"and on going through the same, it reveals that, the same is for the period 01/04/2016 to 31/08/2017 and 01/09/2018 to 29/11/2018. Ex.p3 cheque is",audio_2_160.mp3 +"dated: 20/11/2018. As per ex.p2, as on 23/11/2018 the accused was due to the complainant Co. to the tune of rs.48,205/-. 23. During cross-examination dated:28/07/2022",audio_2_161.mp3 +"at Para. 1, pw1 deposed €†10 □□‚ 13 ‚‘ˆ’“€€ € €€‚□ €†2 □□□‹ˆ’‚ □□‚□ ‹□. €†10 □□‚ 13 ‚‘ˆ’“’€ ”□€œ €†2 ‚‘ˆ’€ œ“□’€‰‚ˆˆ □□‚□ ‹□‡ˆˆ.",audio_2_162.mp3 +"It is to be noted that, when the value mentioned at ex.p10 & ex.p11 is taken into account, it comes up to rs.51,538/- and when",audio_2_163.mp3 +"the same is compared with ex.p2 account statement, it discloses that the value mentioned in ex.p2 document, ex.p10 & ex.p11 documents differs. Be that as",audio_2_164.mp3 +"it may, pw1 deposed that he has to verify documents to ascertain whether the accused had placed purchase order through e-mail in connection with ex.p10",audio_2_165.mp3 +"to ex.p13 documents. At Para. 2, pw1 also deposed for having received materials mentioned at ex.p10 to ex.p13 documents, the accused and his parties have",audio_2_166.mp3 +"signed in the said documents. It is to be noted that, on scrutiny ofbharathi rock products vs. gangambika enterprises on 10 march, 2023",audio_2_167.mp3 +"Notably, the accused has not denied that the seal appearing in the ex.p10 & ex.p11 documents does not belongs to the accused no.1 concern and",audio_2_168.mp3 +he has also not denied that the signature forthcoming in the said document does not belongs to the person working under him. The accused has,audio_2_169.mp3 +"suggested to pw1, that accused has not placed purchase order and that ex.p10 to ex.p13 documents have been created documents and the same is denied",audio_2_170.mp3 +"by pw1. 24. It is to be noted that, during cross-examination dated: 17/06/2022, at Para. 7, the accused has suggested to pw1, that accused had",audio_2_171.mp3 +"not transacted with the complainant Co. during 01/04/2016 to 31/08/2017 and the same is denied by pw1. It is required to be noted that, at",audio_2_172.mp3 +"Para. 3, the accused questioned pw1, that at ex.p2 why the signature of accused is not obtained, for which, pw1 deposed that the copy of",audio_2_173.mp3 +"the ex.p2 will be sent to the accused and the accused has not signed at ex.p2. That apart, pw1 admitted that at ex.p2 the name",audio_2_174.mp3 +"of the accused no.1 is forthcoming and the address is mentioned as poojanahalli, bengaluru and denied that accused no.1 concern is not having either branch",audio_2_175.mp3 +"office or go-down in the said address. 25. At Para. 2, pw1 deposed that the name of padmashree is forthcoming at ex.p2 document and deposed",audio_2_176.mp3 +the accused has transacted with the complainant Co. under the name padmashree and on 05/10/2016 they have transferred the amount in the name of padmashree.,audio_2_177.mp3 +"It is to be noted that, the name of the accused no.1 firm in the cause title is shown as gangambika enterprises and notably, the",audio_2_178.mp3 +"accused has not denied that he has not transacted with the complainant Co. either in the name of padmashree or gangambika. That apart, at Para. ",audio_2_179.mp3 +"1, pw1 deposed •□€‚†□€€ ƒ□□„ …□†€’ €†2 □ † †…□ ‚€□…… 31/08/2017 € rtgs ”€‘□□□ ‹□‚‡ ”□□€œœ□. □□‚€ □€.10 ˆ… š–‰€€ •□€‚†□€€ €†2 □ †",audio_2_180.mp3 +"†…□ ‚€□…… 30/05/2017 □□‚€ …€€‡ □□’ ƒ□□„ …□†€‡ —€œ ‰‰‰š□ ”□□€œœ€. It is to be noted that, no question has been posed by the accused",audio_2_181.mp3 +to pw1 in respect of the same and it is his Cas. that he has transacted with the complainant Co. in the year 2012 and,audio_2_182.mp3 +that he has closed accused no.1 concern in the year 2014 and the same is suggested by the accused to pw1 during his cross-examination dated:,audio_2_183.mp3 +17/06/2022 at Para. 4 & 6 and during cross-examination dated: 28/07/2022 at Para. 3. Pw1 has denied the same. 26. It is required to be,audio_2_184.mp3 +"noted that, no positive evidence is placed on record by the accused to establish that he had transacted with the complainant Co. in the year",audio_2_185.mp3 +"2012 and that he had closed accused no.1 concern business in the year 2014. So also, except making suggestion to the pw1 that the accused",audio_2_186.mp3 +"was not having either branch office or go-down at the address mentioned at ex.p2, the accused has not placed any credible evidence before the court",audio_2_187.mp3 +"to establish the same or he has not examined any witnesses to prove the same. That apart, it is worth to note that though the",audio_2_188.mp3 +"accused has suggested to pw1 that ex.p10 to ex.p13 documents are created one, the accused has not made any suggestion to pw1 that the goods",audio_2_189.mp3 +mentioned at ex.p10 to ex.p13 were not at all supplied by the complainant Co. or it was not delivered to the accused no.1 concern and,audio_2_190.mp3 +"the accused has not even disputed the seal forthcoming at ex.p10 & ex.p11 documents and the signature appearing thereon. Even though, no signature of accused",audio_2_191.mp3 +"is forthcoming at ex.p2 accountbharathi rock products vs. gangambika enterprises on 10 march, 2023",audio_2_192.mp3 +"Not transacted with the complainant Co. for the period stated by the complainant Co. , the accused ought to have produced account statement maintained by accused",audio_2_193.mp3 +"no.1 concern to support his stand and no such positive steps is taken by the accused. 27. That apart, it is to be noted that,",audio_2_194.mp3 +"during cross- examination of pw1, dated: 17/06/2022, at Para. 1, pw1 deposed that, accused has transacted with the complainant Co. between 2016 to 2017. Pw1",audio_2_195.mp3 +deposed that in the ex.p5 notice and in the complaint it is wrongly mentioned that accused transacted with the complainant Co. from 01/09/2018 onwards. At,audio_2_196.mp3 +"Para. 2, pw1 admitted that on 01/09/2018 the accused has not transacted with the complainant Co. . At Para. 6, the accused has suggested to pw1,",audio_2_197.mp3 +that in the year 2014 when the accused closed his business he has repaid the entire amount due to the complainant Co. . It is worth,audio_2_198.mp3 +"to note that, though the complainant Co. has mentioned in the ex.p5 notice and in the complaint that accused transacted with the complainant Co. from",audio_2_199.mp3 +"01/09/2018 onwards, the same is not fatal to the Cas. of the complainant Co. as the complainant Co. has produced ex.p2 account statement and also",audio_2_200.mp3 +"ex.p10 to ex.p13 documents to establish the transaction in question and notably, though the accused has suggested to pw1, that the accused has repaid the",audio_2_201.mp3 +"entire dues to the complainant Co. at the time of closure of his business in the year 2014, the accused has not placed positive evidence",audio_2_202.mp3 +"to establish the same. As such, it could be concluded that by producing ex.p10 to ex.p13 documents coupled with the suggestion put forth by accused",audio_2_203.mp3 +to pw1 makes it amply clear that the accused had business transaction with the complainant Co. and that he was due to the complainant Co. ,audio_2_204.mp3 +"as per ex.p2, p10 to p13 documents. (iii) service of notice: 28. It is to be noted that, the accused has taken defence that the",audio_2_205.mp3 +complainant Co. has not issued ex.p5 notice in its name and the same is issued by one nandisha in his individual capacity and that ex.p5,audio_2_206.mp3 +"notice was not served upon the accused and also the accused was not residing in the address mentioned at ex.p5 notice, ex.p8 & 9 returned",audio_2_207.mp3 +"rpad covers. In order to establish issuance and service of notice, the complainant Co. has produced ex.p5 notice dated: 15/12/2018 which goes to show that",audio_2_208.mp3 +the complainant Co. has issued the same to the accused intimating him about dishonour of cheque and also calling upon him to repay the amount,audio_2_209.mp3 +"covered under ex.p3 cheque, the complainant Co. has produced ex.p6 & 7 postal receipts and ex.p8 and p9 returned rpad covers for having its sent",audio_2_210.mp3 +"through registered post. 29. It is to be noted that, the postal authorities have written a shara at ex.p8 & 9 returned rpad covers stating",audio_2_211.mp3 +"""˜ †□□ ’†”‚ˆ ™□ˆ□‚ …□– ‰†‹€ …“€š‹ˆ’‚"". During cross-examination dated: 17/06/2022 at Para. 5, pw1 deposed €†5 □ˆ •□€‚†‡ ‰“‹ □‹‰ …ˆ ‰ –, □‚‚□",audio_2_212.mp3 +□□‚€ €”€‚‹ˆ’‚ □□‚□ ‹ ‹□. €†8 ”□€œ 9 □ † †…□ •□€‚†□ • ‰“‹‚ˆ ™ˆˆ □□‚€ ‰†‹€ □□‚‚ □□‚□ ‹□. ‹… ”€□‚€‰□‚€ •□€‚†□ š‚‚ ‰“‹‚,audio_2_213.mp3 +"‰‹ □□‚€ €€□‡€œœ□. •□€‚†□ €†5, €†8 ”□€œ €†9 □ˆ €”€‚€ •’□€‰ ‰“‹‚ˆ •□€‚†□ □□‚’€ ‰‹‹€œœ□ˆˆˆ □□‚□ ‹□‡ˆˆ. It is to be noted that, in the",audio_2_214.mp3 +"compliant the address of the accused no.1 firm and the address of the accused no.2 is shown as situated at gokul(village), basava kalyana, bidar. At",audio_2_215.mp3 +"ex.p5 legal notice the very same address is mentioned and asbharathi rock products vs. gangambika enterprises on 10 march, 2023",audio_2_216.mp3 +"Complainant Co. has produced ex.p2 statement of account, ex.p10 & ex.p11 tax invoices and in the said document the name of the accused no.1 concern",audio_2_217.mp3 +"is shown as ""poojanahalli, bengaluru"" and notably, the complainant Co. has not sent ex.p5 legal notice to the said address. 30. It is to be",audio_2_218.mp3 +"noted that, this court had issued summons to the accused through rpad to the address mentioned at ex.p5 legal notice and also to the address",audio_2_219.mp3 +"mentioned in the cause title of the complaint and the said summons was served upon the accused. Notably, the accused except suggesting to pw1 that",audio_2_220.mp3 +"accused is not residing in the said village, nothing has been suggested to pw1 or he has not denied that summons issued by the court",audio_2_221.mp3 +was not served upon the accused to the address mentioned in the cause title of the complaint and also in the ex.p5 legal notice. That,audio_2_222.mp3 +"apart, a careful scrutiny of the signature of the accused appearing in ex.p3 cheque and in the postal acknowledgement which finds place in the Cas. ",audio_2_223.mp3 +records appears to be one and the same. As the accused has not placed any credible evidence before the court to establish that he was,audio_2_224.mp3 +not at all resident of address mentioned in the ex.p5 legal notice and in the complaint and in the absence of placing cogent materials before,audio_2_225.mp3 +the court that he was not residing in the said address at the time of issuance of ex.p5 notice and when summons issued by this,audio_2_226.mp3 +"court was served upon the accused, it cannot be said that accused was not aware of ex.p5 legal notice or that he had no knowledge",audio_2_227.mp3 +"about the same. That apart, no witnesses have been examined by the accused to establish that he was not residing in the address mentioned at",audio_2_228.mp3 +"ex.p5 legal notice or in the compliant at any point of time. 31. At this juncture, i find relevant to quote the ruling decided between",audio_2_229.mp3 +c.c. Alavi haji v/s palapetty muhammed and Anr. decided on 18/05/2007 in appeal (crl)767/2007 the Hon'ble apex court at para 14 has held that: sec.27,audio_2_230.mp3 +gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view,audio_2_231.mp3 +"of the said presumption, when a stating that the notice has been sent by registered post to the address of the drawer, it is unnecessary",audio_2_232.mp3 +"to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that",audio_2_233.mp3 +"the addressee is deemed have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to",audio_2_234.mp3 +have been effected at the time at which the letter would have been delivered in the ordinary course of business. This court has already held,audio_2_235.mp3 +when a notice is sent by registered post and is returned with a postal endorsement stating refused or not available in the house or house,audio_2_236.mp3 +"lock or shop closed or addressee not in station due service has to be presumed. In the light of the principle laid down above, as",audio_2_237.mp3 +the complainant has sent ex.p5 legal notice through registered post as per ex.p6 & ex.p7 and even though ex.p5 notice was returned with the shara,audio_2_238.mp3 +"""˜ †□□ ’†”‚ˆ ™□ˆ□‚ …□– ‰†‹€ …“€š‹ˆ’‚"", this court will have to raise presumption that the ex.p5 legal notice was served upon the accused. As",audio_2_239.mp3 +such it cannot be said that the accused had no knowledge about ex.p5 legal notice or that it was not served upon him.bharathi rock products,audio_2_240.mp3 +"vs. gangambika enterprises on 10 march, 2023",audio_2_241.mp3 +"32. It is to be noted that, in order to establish that the accused is due to the complainant Co. , the complainant Co. has produced",audio_2_242.mp3 +"ex.p2 statement of account and the same is for the period 01/04/2016 to 31/08/2017. During cross-examination dated: 17/06/2022, at Para. 1, pw1 deposed €†2 □ˆ",audio_2_243.mp3 +ƒ□□„ …□†€‡ š…□›‹ □†□□□ ”□›□€ˆ …ˆ‹ ”□□€‰‰□€ ‹š ”□□€œœ□. €†2 ‚‘ˆ‡€€ € …□†‰›□ €ˆ □□□‹‚‰□€ ”□€œ š‚□ ††□›□œ›□œ’‚‰□€ š‚€ ‹□ ™‚ □□‚€ š‚“ † †œ…,audio_2_244.mp3 +"€ €†2 □€□‚’ ˆ’œœ‹ˆˆ □□‚□ ‹□. ‰ † †”– †□ œ‰€€ it is to be noted that, when the matter was set down for arguments,",audio_2_245.mp3 +"it is at that stage, the complainant and counsel has produced certificate u/sec. 65-b of indian evidence act and the same is signed by one",audio_2_246.mp3 +ramigani nagarjuna reddy working as accountant in the complainant Co. and he has stated in the said document that he is the one who has,audio_2_247.mp3 +"taken printout of ex.p2 document and he has declared that the contents of the said document is genuine. 33. At Para. 4, pw1 admitted that",audio_2_248.mp3 +he has not produced any other document other than ex.p2 document to establish the transaction in question and denied that accused has not transacted with,audio_2_249.mp3 +"the complainant Co. for the period 01/04/2016 to 31/08/2017. It is to be noted that, the accused has not made any suggestion to pw1 or",audio_2_250.mp3 +"he has not disputed the entries made in ex.p2 document, the accused has only suggested to pw1 that he has not transacted with the complainant",audio_2_251.mp3 +"Co. for the said period. If it was so, the accused ought to have taken positive steps and ought to have produced all relevant documents",audio_2_252.mp3 +which are in his custody to disprove the transaction in question and no such attempt is made by the accused. As such it cannot be,audio_2_253.mp3 +said that claim made by the complainant Co. is not proper. (v) cheque issued towards security and contents of cheque 34. It is to be,audio_2_254.mp3 +"noted that, the accused has taken defence that he had transacted with mines and rock products (india pvt ltd.,) in the year 2012 and at",audio_2_255.mp3 +that time the accused had given signed blank cheque as security and the complainant Co. has filled up the contents of the same and filed,audio_2_256.mp3 +"a false Cas. against the accused. During cross-examination dated: 17/06/2022, at Para. 5, pw1 deposed •□€‚†□ 2012 □ˆ †□□‚ …□†€’ ‰‰‰š□‚ □‚†œ’’ €†-3 ž… €€",audio_2_257.mp3 +€ …€□□□€œœ□ □□‚□ ‹… 2012 □ˆ •□€‚†□ †□□‚ …□†€‡□‚’ □‰‚‚ ‰‰‰š□ ”□ˆˆ □□‚€ €€□‡€œœ□. ”€□‚€‰□‚€ €†-3 ž… €€ € •□€‚†□ š‚□ˆ €”€‚€ •’□€‰ ‚€□…‚ ÿ□‚€,audio_2_258.mp3 +‚€‚ †‰□‚ˆ …€□□□€œœ□. €†-3 □ˆ€ ‹□’œ’“€€ € □□€ □□‚□€œœ□ □□‚€ €€’ ’€œœˆˆ. €†-3 ž… €€ € †□□‚ …□†€’ •□€‚† …€□□□€œœ€€‚ š ‰ •□€‚† ‹□‹œ ‡‰□€,audio_2_259.mp3 +"…€□□□€œœ□€‚ €€’ ’€œœˆˆ. At Para. 6, pw1 deposed, 2012 □ˆ •□€‚†□€€ ””€‹ š□□ □… ††□…›‹□ ‚ , •’ □‚†œ’’ (™□□□ ††‰‚› ˆ”›□ ) □□‚’ ‰‰‰š□",audio_2_260.mp3 +”□‚€ …€›□□□š €†-3 •□€‚† ‹š ”□‚ ‘ˆ ž… €ˆ ‹€“€ “ ‹□’œ’“€€ € € 2018 □ˆ □‰□…’ š—□‹□€œœ‚‰ □□‚□ ‹□‡ˆˆ.bharathi rock products vs. gangambika enterprises,audio_2_261.mp3 +"on 10 march, 2023",audio_2_262.mp3 +□□‚□ ‹□ . ‹… ”€□‚€‰□‚€ š‚€€ € •□€‚†’ …‚“□‚…€ □□‚€ €€□‡€œœ□. 35. A careful scrutiny of aforesaid testimony it discloses that pw1 is not aware,audio_2_263.mp3 +who wrote the contents of ex.p3 cheque and that he is not aware whether ex.p3 cheque was issued by the accused or by his firm,audio_2_264.mp3 +and he has also admitted that the ink used by the accused to make a signature and the ink used for writing the contents of,audio_2_265.mp3 +the cheque is different. Pw1 has also deposed that the accused will have to answer the same. On perusal of ex.p3 cheque the signature of,audio_2_266.mp3 +"the accused and the contents of ex.p3 cheque is blue ink. Though, pw1 deposed that the signature and the contents of ex.p3 cheque is in",audio_2_267.mp3 +different ink and that he do not know who has written the contents of ex.p3 cheque or that whether the same was issued by the,audio_2_268.mp3 +"accused or his firm, by such stray admission the accused cannot take advantage of the same. Even otherwise, if the Cas. of the accused is",audio_2_269.mp3 +accepted that he has issued ex.p3 cheque in the year 2012 as a security for the transaction in question and that he had only transacted,audio_2_270.mp3 +"with mines and raw products (india pvt ltd,) the accused ought to have produced credible evidence to establish the same and if the accused is",audio_2_271.mp3 +"not at all due to the complainant Co. , the accused ought to have taken positive steps seeking return of ex.p3 cheque from the complainant. 36.",audio_2_272.mp3 +"Be that as it may, it is required to be noted that, as per sec.20 of the NI Act when one person signs and",audio_2_273.mp3 +delivers to Anr. a stamped in accordance with the law relating to the negotiable instruments either wholly blank or having written there on an in-complete,audio_2_274.mp3 +the negotiable instruments he thereby gives prima-facie Auth. to the holder there of to make or complete. In the ruling relied on by the accused,audio_2_275.mp3 +"reported in 2006 scc online kar 123 decided between shreyas agro services pvt ltd., v/s. Chandrakumar s.b at Para. 6 the Hon'ble HC of",audio_2_276.mp3 +karnataka held that sec.20 of the NI Act declares that inchoate instruments are also valid and legally enforceable. In the Cas. of a signed,audio_2_277.mp3 +"blank cheque, the drawer gives Auth. to the drawee to fill up the agreed liability. If the drawee were to dis honestly fill up any",audio_2_278.mp3 +"excess liability and the extent of liability if it becomes bonafied matter of Civ. dispute in such Cas. , the drawer has no obligation to facilitate",audio_2_279.mp3 +the encashment of cheque. 37. In the ruling relied on by the complainant reported in air 2000 kar 169 h maregowda v/s thippamma the Hon'ble ,audio_2_280.mp3 +HC of karnataka at Para. 14 held that a reading of sec.20 of the NI Act will reveal that the words used are,audio_2_281.mp3 +"""either wholly blank or having written thereon an incomplete negotiable instruments"". Thus, even if a blank promissory note is given, it cannot be taken as",audio_2_282.mp3 +"a defence to avoid a decree based on such instrument, once it is found that the document produced before the court satisfies the requirements of",audio_2_283.mp3 +"a promissory note within the meaning of the NI Act . The instrument may be wholly blank or incomplete in particular in either Cas. , the",audio_2_284.mp3 +holder has the Auth. to make or complete the instrument as a negotiable one. The Auth. implied by a signature to a blank instrument if,audio_2_285.mp3 +so wide that the party so signing is bound to be a holder in due course. Even though the holder was authorized to fill a,audio_2_286.mp3 +"certain amount and he in fact inserts a greater amount, it is necessary that the sum ought not to exceed the amount covered by the",audio_2_287.mp3 +"same.bharathi rock products vs. gangambika enterprises on 10 march, 2023",audio_2_288.mp3 +"Present it to the bank for encashment. That apart, in the ruling reported in: 2019 scc online SC 138 decided between birsingh v/s mukesh",audio_2_289.mp3 +"kumar. At Para. 37 & 38 the Hon'ble apex court held that, a meaningful reading of the provisions of the NI Act including, in",audio_2_290.mp3 +"particular, sec.28, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to a payee remains liable",audio_2_291.mp3 +unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability.,audio_2_292.mp3 +"It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by",audio_2_293.mp3 +"the drawer, if the cheque is other wise valid, the penal provisions of sec.138 would be attracted. At Para. 38, the Hon'ble apex court held",audio_2_294.mp3 +"if a signed blank cheque is voluntarily presented to a payee, towards some payments, the payee may fil- up the amount and other particulars. This",audio_2_295.mp3 +in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of,audio_2_296.mp3 +"a debt or liability by adducing evidence"". In the light of the principle laid down above, the stand taken by the accused that he had",audio_2_297.mp3 +"issued ex.p3 signed blank cheque to the complainant Co. in the year 2012 cannot be accepted by this court. As such, by taking note of",audio_2_298.mp3 +"the entire materials placed on record by the complainant and accused, it could be concluded that the accused has failed to rebut the presumption as",audio_2_299.mp3 +"contemplated u/sec. 139 of the NI Act by placing acceptable evidence. Accordingly, i answer point no.1 & 2 in the affirmative. 38. Point no.3",audio_2_300.mp3 +":- in view of my findings to the points no.1 and 2, i proceed to pass the following:- or d e r in exercise of",audio_2_301.mp3 +"power conferred u/sec. 255(2) of cr.pc, the accused is convicted for the offence punishable u/s.138 of n.i. Act and sentenced to pay fine of rs.75,000/-.",audio_2_302.mp3 +"In default of payment of the said fine amount, the accused shall undergo simple imprisonment for a period of three months. Out of the said",audio_2_303.mp3 +"fine amount, an amount of rs.70,000/- shall be paid to the complainant as compensation as contemplated u/sec. 357(1) of Cr.P.C. and the",audio_2_304.mp3 +"remaining amount of rs.5,000/- shall be remitted to the state. Office to furnish free copy of the judgment to the accused. (dictated to the stenographer,",audio_2_305.mp3 +"directly on computer, corrected and then pronounced in open court by me on this the 10 th day of march, 2023) (h. Satish) xxvii a.c.m.m.,",audio_2_306.mp3 +"bengaluru. Annexure witnesses examined on behalf of the complainant:bharathi rock products vs. gangambika enterprises on 10 march, 2023",audio_2_307.mp3 +Copy of board resolution ex.p2 : statement of account ex.p3 : cheque dated: 20/11/2018 ex.p3(a) : signature of accused ex.p4 : bank endorsement dt:23/11/2018 ex.p5,audio_2_308.mp3 +: office copy of legal notice dated 15/12/2018 ex.p6 & 7 : postal receipts ex.p8 & 9 : two returned postal covers ex.p10 & 11,audio_2_309.mp3 +: invoices. Ex.p12 & 13 : bills witnesses examined on behalf of the accused: -nil- documents marked on behalf of the accused: -nil- xxvii a.c.m.m,audio_2_310.mp3 +"bengaluru. 10/03/2023 comp: sri. Tgmn adv., accd: sri. Ssb adv., for judgment. (order typed vide separate sheet) or de r in exercise of power conferred",audio_2_311.mp3 +"u/sec. 255(2) of cr.pc, the accused is convicted for the offence punishable u/s.138 of n.i. Act and sentenced to pay fine of rs.75,000/-. In default",audio_2_312.mp3 +"of payment of the said fine amount, the accused shall undergo simple imprisonment for a period of three months. Out of the said fine amount,",audio_2_313.mp3 +"an amount of rs.70,000/- shall be paid to the complainant as compensation as contemplated u/sec. 357(1) of Cr.P.C. and the remaining amount",audio_2_314.mp3 +"of rs.5,000/- shall be remitted to the state. Office to furnish free copy of the judgment to the accused. (h. Satish) xxvii a.c.m.m., b engaluru.bharathi",audio_2_315.mp3 +"rock products vs. gangambika enterprises on 10 march, 2023",audio_2_316.mp3 +"Sri.narayana shetty.v vs. smt.n rukmini on 21 december, 2016 in the court of the xvi additional chief MM , bengaluru city dated: this the 21st",audio_3_1.mp3 +"day of december 2016 present: smt. Saraswathi.k.n, b.a.l., ll.m., xvi addl.c.m.m., bengaluru city. Judgement u/s 355 of Cr.P.C. , Cas. No. :",audio_3_2.mp3 +"c.c. No.25059/2015 complainant : sri.narayana shetty.v, s/o venkata shetty g.y, aged about 48 years, r/at no.12/1, 6th main, 9th a cross, agrahara dasarahalli, magadi road",audio_3_3.mp3 +"bengaluru-79. (rep.by sri.gangaiah., adv.,) - vs - accused : smt.n rukmini, aged about 40 years, working as a supernumarry, silk exchange, 1st floor, okalipuram, reshme",audio_3_4.mp3 +"bhavana, no.14, vatal nagaraj road, bengaluru-21. (rep. By sri.b.c.srirama reddy., adv.,) 2 c.c. No.25059/2015 j Cas. instituted : 10.1.2014 offence complained : u/s 138 of",audio_3_5.mp3 +n.i. Act of plea of accused : pleaded not guilty final order : accused is acquitted date of order : 21.12.2016 judgment the complainant has,audio_3_6.mp3 +"filed this complaint against the accused for the offence punishable u/sec.138 of the NI Act .sri.narayana shetty.v vs. smt.n rukmini on 21 december, 2016",audio_3_7.mp3 +"Several years and that on 05.05.2013 the accused has obtained a hand loan of rs.80,000/- from him to meet her urgent family legal necessities with",audio_3_8.mp3 +"an assurance to repay the same within 2 months. After the completion of the stipulated period of 2 months, when he demanded the accused for",audio_3_9.mp3 +"the repayment of the said hand loan, at that time towards the clearance of the said hand loan, the accused issued a cheque bearing No. ",audio_3_10.mp3 +"819345 dated 03.07.2013 for rs.80,000/- drawn on the canara bank, okalipuram branch, bengaluru in his favour. While issuing the said cheque, the accused promised and",audio_3_11.mp3 +assured that the said cheque will be honored on its presentation on due date. 3. The complainant has further submitted that believing the promise and,audio_3_12.mp3 +"the assurance of the accused when he presented the said cheque on 03.07.2013 for encashment through is banker, to his utter shock and surprise, the",audio_3_13.mp3 +"same came to be dishonored with a bank endorsement ""kindly contact drawer/drawee bank and please present again"" dated 05.07.2013. Immediately he tried to contact the",audio_3_14.mp3 +"accused, but she evaded to meet him and even after he informed her about the dishonor of the cheque, she dragged on the matter on",audio_3_15.mp3 +"one pretext or the other. Hence left with no other alternatives, he got issued a legal notice to the accused through rpad on 26.07.2013 and",audio_3_16.mp3 +as per the complaint settled reply dated 07.01.2014 the said notice was duly served on the accused on 29.07.2013. But so far the accused has,audio_3_17.mp3 +"neither replied to the notice nor repaid the amount covered under the cheque. 4. The complainant submits that, the dishonour of the cheque by the",audio_3_18.mp3 +"accused has been malafide, intentional and deliberate. Feeling aggrieved by the conduct of the accused, he has filed the present complaint praying that the accused",audio_3_19.mp3 +"be summoned, tried and punished in accordance with sec.138 of the NI Act . 5. The complainant has led the pre-summoning evidence on 19.10.2015. Prima-facie",audio_3_20.mp3 +Cas. has been made out against the accused and she has been summoned vide order of the same date. 6. The accused has appeared before,audio_3_21.mp3 +"the court on 11.01.2016, she has been enlarged on bail. The substance of the accusation has been read over to her, to which she has",audio_3_22.mp3 +"pleaded not guilty and claimed the trial. 7. In her post-summoning evidence, the complainant has examined himself as pw1 and has filed his Aff. , wherein",audio_3_23.mp3 +"he has reiterated the averments made in the complaint. P.w.1 has also relied upon the following documentary evidence:- ex.p1 is the cheque, in which, the",audio_3_24.mp3 +"signature is identified by p.w.1 as that of the accused as per ex.p1(a), the bank memo as per ex.p2, the office copy of the legal",audio_3_25.mp3 +"notice as per ex.p3, the postal receipt as per ex.p4, the office copy of the complaint lodged before the postal authorities as per ex.p-5 and",audio_3_26.mp3 +"the complaint settled reply as per ex.p-6. Ex.d-1 to d-6 has been marked through pw-1.sri.narayana shetty.v vs. smt.n rukmini on 21 december, 2016",audio_3_27.mp3 +Accused has denied the incriminating evidence found against her but has chosen not to lead her rebuttal evidence. 9. The learned counsels representing both the,audio_3_28.mp3 +"sides advanced final arguments at length. 10. The learned counsel for the complainant has prayed for the conviction of the accused on the ground that,",audio_3_29.mp3 +the signature on the cheque at ex.p1 as well as in the pronote and the consideration receipt at ex.p3 is admitted by the accused. The,audio_3_30.mp3 +"accused has not brought on record any cogent and reliable evidence so as to prove that, the cheque in question as well as the pronote",audio_3_31.mp3 +"at ex.p3 were issued by him to the complainant, only as security, at the time of the alleged loan transaction in the year 2011 and",audio_3_32.mp3 +"the accused has also failed to prove that, he has repaid the alleged loan of rs.30,000/- and that he has not taken any action against",audio_3_33.mp3 +"the complainant alleging the misuse of his documents. It is lastly argued that, the presumption under sec.118 r/w .sec.139 of the n.i. Act is",audio_3_34.mp3 +in favour of the complainant and thus the accused be convicted for the offence punishable under sec.138 of the n.i. Act. 11. On the other,audio_3_35.mp3 +"hand, the learned counsel for the accused has prayed for the acquittal of the accused on the ground that, the complainant has failed to prove",audio_3_36.mp3 +"the alleged lending of money to the accused on 10.9.2012 and that, he has also failed to prove that, the cheques in question as well",audio_3_37.mp3 +as the pronote at ex.p3 were issued by the accused towards the discharge of the legally enforceable debt and therefore the accused has successfully rebutted,audio_3_38.mp3 +the presumption available in favour of the complainant and thus prayed for the acquittal of the accused. 12. I have considered the submissions and perused,audio_3_39.mp3 +the record carefully. 13. Sec.138 of the NI Act has been enacted to lend credibility to the financial transactions. The main ingredients of the,audio_3_40.mp3 +"offence under S. 138 NI Act are:- (i) drawing up of a cheque by the accused towards the payment of the amount of money,",audio_3_41.mp3 +"for the discharge, in whole or in part, of any debt or any other liability; (ii) return of the cheque by the bank as unpaid;",audio_3_42.mp3 +(iii) the drawer of the cheque fails to make the payment of the said amount of money within 15 days of the receipt of the,audio_3_43.mp3 +"notice under the proviso (b) to S. 138. The explanation appended to the S. provides that, the ""debt or other liability"" for the purpose of",audio_3_44.mp3 +"this S. means a legally enforceable debt or other liability.sri.narayana shetty.v vs. smt.n rukmini on 21 december, 2016",audio_3_45.mp3 +"The holder of cheque in the following terms:- ""it shall be presumed, unless the contrary is proved, that:- the holder of a cheque received the",audio_3_46.mp3 +"cheque, of the nature referred to in S. 138, for the discharge, in whole or in part, of any debt or other liability"". 15. Also,",audio_3_47.mp3 +"S. 118 of the NI Act states, ""until the contrary is proved, the following presumptions shall be made:- (a) that every negotiable instrument was",audio_3_48.mp3 +"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",audio_3_49.mp3 +"for consideration;"" 16. Thus, the act clearly lays down the presumptions in favour of the complainant with regard to the issuance of the cheque by",audio_3_50.mp3 +"the accused, towards the discharge of his liability in favour of the complainant. 17. Under the scheme of the act, the onus is upon the",audio_3_51.mp3 +"accused to rebut the presumptions in favour of the complainant by raising a probable defence. 18. Such being the legal position, it would be pertinent",audio_3_52.mp3 +to refer to the defences raised by the accused to rebut the presumptions in favour of the complainant in this Cas. . 19. The first defence,audio_3_53.mp3 +"raised by the accused in this Cas. is that, though her acquaintance with the W/O the complainant is admitted, according to her, she never",audio_3_54.mp3 +had any financial transaction with the complainant as alleged by him in the present Cas. . Likewise it is the defence of the accused after the,audio_3_55.mp3 +death of the W/O the complainant on 24.12.2009 there has been no contact between the complainant and her serf and moreover there was no,audio_3_56.mp3 +necessity for her to avail any loan from the complainant in the year 2013 and according her the cheque in question had been issued by,audio_3_57.mp3 +her to the W/O the complainant as a security for the loan that she had availed from her and that she has cleared the,audio_3_58.mp3 +said loan with the W/O the complainant and the said cheque has now been misused by the complainant by filling up its contents in,audio_3_59.mp3 +the year 2013 after the death of his wife. Therefore from the defence of the accused it is evident that she has admitted her financial,audio_3_60.mp3 +transaction with the W/O the complainant and has categorically denied her alleged financial transaction with the complainant. In such circumstance the burden is cast,audio_3_61.mp3 +upon the complainant to prove the existence of such financial transaction by him with the accused. In this regard except his oral testimony there is,audio_3_62.mp3 +no other material placed on record by the complainant. 20. Further it is pertinent to note that according to the complainant he has allegedly advanced,audio_3_63.mp3 +"a loan of rs.80,000/- to the accused on 05.05.2013 and that after the expiry of the stipulated period of 2 months, upon his demand the",audio_3_64.mp3 +accused has issued the cheque in question to him. While during his cross examination the complainant has stated that the accused has issued the cheque,audio_3_65.mp3 +"at ex.p-1sri.narayana shetty.v vs. smt.n rukmini on 21 december, 2016",audio_3_66.mp3 +"Presence, but he does not know as to who has filled up the contents of the said cheque. Thus there is a clear contradiction in",audio_3_67.mp3 +the evidence of the complainant with regard to the time of the alleged issuance of the cheque by the accused in his favour. Though this,audio_3_68.mp3 +"is not a serious contradiction, it gives rise to a suspicious circumstance in the Cas. of the complainant, which creates a doubt in the mind",audio_3_69.mp3 +"of this court about the Cas. of the complainant. 21. The complainant has misused according to the accused, the cheque in question after the death",audio_3_70.mp3 +of his wife by filling up its contents and presenting the same before the bank. According to her she had financial transactions with the wife,audio_3_71.mp3 +"of the complainant, but she has cleared the entire transaction in respect of ex.p-1 before 2009 and the W/O the complainant has also issued",audio_3_72.mp3 +"an endorsement in this regard both to her as well as to one bhagya, against whom the complainant had filed a similar cheque bounce Cas. .",audio_3_73.mp3 +22. To fortify this defence version the accused has confronted the documents at ex.d-1 to d-8 to pw-1 which are as follows:- ex. D-1 is,audio_3_74.mp3 +"the certified copy of the judgement in cc no.6790/15 which was a cheque bounce Cas. filed by the present complainant against one smt. Bhagya b.t,",audio_3_75.mp3 +"who is admittedly the friend of his wife, ex.d-2 to d-4 are the endorsements said to have been issued by the complainant as well his",audio_3_76.mp3 +"wife to the accused, to smt. Bhagya b t and to one kumar, by virtue of which, the complainant and his wife are said to",audio_3_77.mp3 +have received the entire amount due from the aforesaid persons and having undertaken to return the cheques mentioned therein. In the said documents there is,audio_3_78.mp3 +"mention of even the cheque at ex.1. Ex.d-5 is a receipt in which pw-1 has admitted his signature as per ex.d5(a), by virtue of which",audio_3_79.mp3 +"he has admitted having received rs.5,000/- towards the funeral expenses of his wife from her Dept. and ex.d-6 is the attested copy in respect of",audio_3_80.mp3 +"the funeral expenses incurred by the complainant towards his wife on 24.12.2009, ex.d-7 is the attested copy of the nomination for the karnataka Govt. employees",audio_3_81.mp3 +family benefit funds in which the name of the complainant is shown as the nominee on 12.09.1998 in which he has identified the signature as,audio_3_82.mp3 +that of his wife as per ex.d-7(a). Ex.d-8 is the certified copy of the chief examination Aff. and the cross-examination of the complainant in cc,audio_3_83.mp3 +"no.6790/15. 23. By placing reliance upon these documentary evidence, it is the defence of the accused that after the death of his wife the complainant",audio_3_84.mp3 +has received all her statutory benefits from the Govt. and even though before the death of his wife she has cleared her loan amount as,audio_3_85.mp3 +"per the documents at ex.d-2 to d-4, by misusing the cheque in question which was issued as a signed blank cheque by her to his",audio_3_86.mp3 +"wife only for the purpose of security, the present false Cas. has been filed against her. No doubt if the complainant has denied the documentary",audio_3_87.mp3 +"evidence at ex.d-2 to d-4, the burden is upon the accused to prove the same. However, it is pertinent to note that the complainant has",audio_3_88.mp3 +"not denied the entire contents of the said documents, since he has admitted his signatures as per ex.d-3(a) and d-5(a). In such situation the onus",audio_3_89.mp3 +"is once again shifted to the complainant to explain before thesri.narayana shetty.v vs. smt.n rukmini on 21 december, 2016",audio_3_90.mp3 +The attempt on the part of the complainant in this regard is nil. Therefore the complainant cannot be permitted to claim that the said documents,audio_3_91.mp3 +"are created and concocted documents. 24. Likewise in ex.d-8 the complainant has claimed that he has advanced a loan of rs.50,000/- to one smt. Bhagya",audio_3_92.mp3 +"b.t on 10.05.2013 and that towards the repayment of the same she had issued a post dated cheque bearing no.950026 dated 15.07.2013 for rs.50,000/- and",audio_3_93.mp3 +that he had presented the same for encashment on 15.07.2013 and that the same came to be bounced on 17.07.2013 and thereafter he got issued,audio_3_94.mp3 +a legal notice to the said bhagya on 26.07.2013. Interestingly the said cheque No. also finds place in ex.d-2 to d-4 relied upon by the,audio_3_95.mp3 +"accused. Moreover when the complainant claims that, he has advanced the said loan of rs.50,000/- to the said bhagya on 10.05.2013 and rs.80,000/- to the",audio_3_96.mp3 +"accused of the present Cas. on 05.05.2013 and when his financial capacity is seriously challenged and questioned by the accused in both the cases, it",audio_3_97.mp3 +"is his bounden duty to prove the same. But interestingly it is elicited by the learned defence counsel from pw-1 that, except the source of",audio_3_98.mp3 +"income from his wife, he has no other source of income. Therefore the facts as narrated by the complainant in the present Cas. when compared",audio_3_99.mp3 +"with that in ex.d-8, it clearly goes to show that he is in the habit of filing similar cheque bounce cases against various persons by",audio_3_100.mp3 +misusing the cheques given by them to his wife during his lifetime. Similarly in the cross examination of pw-1 in cc no.6790/15 which is at,audio_3_101.mp3 +"ex.d- 8, the document which is marked ex.d-2 in the present Cas. has been marked as ex.d-1, in which he has admitted the signature at",audio_3_102.mp3 +"ex.d-1(a) as that of the accused of the said Cas. , but he has denied that the said document had been executed by his wife during",audio_3_103.mp3 +her lifetime in favour of the said accused as well as the accused of the present Cas. . But it is elicited from him in the,audio_3_104.mp3 +said Cas. that he has not produced any other document to show that the writings and the signature in ex.d-1 do not belong to his,audio_3_105.mp3 +wife. However in the said Cas. during his cross examination pw-1 has admitted the signature of the present accused as per ex.d-2(b) in a document,audio_3_106.mp3 +which is marked in the present Cas. has per ex.d-3. Likewise he has also admitted that the cheques referred to in ex.d-2 in the said,audio_3_107.mp3 +"Cas. (i.e., ex.d-3 of the present Cas. ) he has not returned the cheques of the present accused as well as the said bhagya. 25. It",audio_3_108.mp3 +is pertinent to note that even in the said Cas. the accused bhagya has taken a similar defence as taken by the accused of the,audio_3_109.mp3 +present Cas. . Now by analyzing carefully the averments of the complainant in the said Cas. and in the present Cas. it clearly goes to show,audio_3_110.mp3 +that even the present Cas. has been filed by the complainant by misusing the cheque in question which was in his possession and thereby the,audio_3_111.mp3 +"accused has been harassed by him in order to make wrongful gain. 26. Thus by appreciating the entire oral and documentary evidence on record, i",audio_3_112.mp3 +"am convinced that, the complainant has failed to prove beyond reasonable doubt that, the cheque in question has been issued by the accused in his",audio_3_113.mp3 +"favour towards the discharge of the legally enforceable debt and on the other hand, the accused has probabalize her defence. Moreover the complainant has also",audio_3_114.mp3 +"failed to prove before this court that he had an independent source of income so as to have allegedly lent the amount of rs.80,000/- to",audio_3_115.mp3 +"the accused, towards the discharge of which, he claims that the cheque in question came to be issued by the accused in his favour.sri.narayana shetty.v",audio_3_116.mp3 +"vs. smt.n rukmini on 21 december, 2016",audio_3_117.mp3 +"1. In smt.h.r.nagarathna vs., smt.jayashree prasad, reported in 2009 (4) kar.l.J. 26, wherein it has been held that:- ""from the complaint averments it is clear",audio_3_118.mp3 +"that the complainant failed to prove lending the existence of legally enforceable debt not proved beyond reasonable doubt"". 2. In s.thimmappa vs., l.s.prakash, reported in",audio_3_119.mp3 +"2010(5) kccr 3397, wherein it has been held that:- "" it is the drawee of the cheque to prove the existence of debt or liability"".",audio_3_120.mp3 +"3. In krishna janardhan bhat vs., dattatreya g.hegde, reported in 2008 air scw 738, wherein it has been held that:- ""existence of the legally recoverable",audio_3_121.mp3 +"debt is not a matter of presumption u/s.139"". 4. In rajendra pangam vs., paresh b.naik and Ors. , reported in laws (bom) 2015 (4) 39., in",audio_3_122.mp3 +the said Cas. there was no evidence forthcoming so as to prove the alleged lending of the amount by the complainant therein and there was,audio_3_123.mp3 +"also no evidence to show that the complainant was having sufficient amount so as to support the loan of rs.75,000/- somewhere in june 2008. In",audio_3_124.mp3 +"such circumstance the Hon'ble HC of bombay has allowed the appeal and restored the judgment of acquittal. 5. In rangappa vs., mohan, reported in",audio_3_125.mp3 +"(2011) 1 scc 184, wherein it has been held that:- ""even in the present Cas. the standard of proof for raising the presumption u/s.139 of",audio_3_126.mp3 +"the n.i. Act by the accused is that of ""preponderance of probabilities"" and therefore if the accused is able to raise an probable defence, which",audio_3_127.mp3 +"creates doubts about the existence of a legally enforceable debt or liability, the presumption can fail"". 6. In s.k.mittal vs., saree mahal reg, reported in",audio_3_128.mp3 +"2012 (2) dcr 384, wherein it has been held that:- ""the standard of proof to discharge the burden shifted on the accused to rebut the",audio_3_129.mp3 +"presumption raised by the court u/s.139 of the n.i. Act is not the same as upon prosecution to prove the Cas. "". 7. In ramdas vs.,",audio_3_130.mp3 +"krishnanand, reported in 2014(3) crimes 291, where in it has been held that:-sri.narayana shetty.v vs. smt.n rukmini on 21 december, 2016",audio_3_131.mp3 +"financial capacity is denied and disputed, it become a relevant factor"". 8. In shiva murthy vs., amruthraj, reported in ilr 2008 kar 4629, wherein it",audio_3_132.mp3 +"has been held that:- ""before considering the conduct of the accused to find out as to whether or not he has been able to rebut",audio_3_133.mp3 +"the statutory presumption available u/s.139, the court ought to consider the existence of the legally enforceable debt. It is only after satisfying that the complainant",audio_3_134.mp3 +"has proved the existence of the legally enforceable debt or liability, the courts could have proceeded to draw presumption u/s.139 of the n.i.act and thereafter",audio_3_135.mp3 +"find out as to whether or not the accused has rebutted has rebutted the said presumption"". 28. In support of his arguments the learned counsel",audio_3_136.mp3 +"for the complainant has relied upon the following decisions:- 1. In rangappa vs., sri.mohan, reported in 2010(1) dcr 706, 2. In t.vasanthakumar vs., vijayakumari, reported",audio_3_137.mp3 +"in 2015 air scw 3040, 3. In b.v.sampathkumar vs., k.g.v.lakshmi, reported in ilr 2006 kar 1730, 4. In s.a.suryanarayan vs., m.s.devendrappa, reported in 2013(5) kccr",audio_3_138.mp3 +"3716. 29. Thus for the reasons discussed above, i proceed to pass the following: - order by exercising the power-conferred u/s 265 of code of",audio_3_139.mp3 +"Crl. procedure , the accused is hereby acquitted of the offence punishable u/s 138 of the NI Act . The bail bond and surety bond",audio_3_140.mp3 +"of the accused stands cancelled. (dictated to the typist, typed by her directly on the computer, and print out taken bysri.narayana shetty.v vs. smt.n rukmini",audio_3_141.mp3 +"on 21 december, 2016",audio_3_142.mp3 +"Day of december, 2016). (saraswathi.k.n), xvi addl.cmm., bengaluru city. Annexure 1. List of witnesses examined on behalf of the complainant: pw.1 : narayana shetty.v 2.",audio_3_143.mp3 +List of documents exhibited on behalf of the complainant: ex.p-1 : original cheque; ex.p-1(a) : signature of the accused; ex.p-2 : bank memo; ex.p-3 :,audio_3_144.mp3 +copy of the legal notice; ex.p-4 : postal receipt; ex.p-5 : office copy of the complaint lodged before the postal authorities; ex.p-6 : complaint settled,audio_3_145.mp3 +reply; 3. List of witnesses examined on behalf of the accused: : -nil- 4. List of documents exhibited on behalf of the accused: (marked through,audio_3_146.mp3 +pw1) ex.d-1 : certified copy of the judgement in cc no.6790/15 ex.d-2 to 4 : endorsements; ex.d-2(a) to : signatures; 4(a) ex.d-5 & 6 :,audio_3_147.mp3 +attested copies of the receipts; ex.d-5(a) & : signature; 6(a) ex.d-7 : attested copy of the nomination for the karnataka Govt. employees family benefit funds;,audio_3_148.mp3 +ex.d-7(a) : signature; ex.d-8 : certified copy of the chief examination Aff. and the cross-examination of the complainant in cc no.6790/15.sri.narayana shetty.v vs. smt.n rukmini,audio_3_149.mp3 +"on 21 december, 2016",audio_3_150.mp3 +"21.12.2016 judgment pronounced in the open court vide separate order. Order by exercising the power- conferred u/s 265 of Cr.P.C. , the",audio_3_151.mp3 +accused is hereby acquitted of the offence punishable u/s 138 of the NI Act . The bail bond and surety bond of the accused stands,audio_3_152.mp3 +"cancelled. (saraswathi.k.n), xvi addl.,chief MM , bengaluru city.sri.narayana shetty.v vs. smt.n rukmini on 21 december, 2016",audio_3_153.mp3 +"U/s 200 of cr.p.c for the offence vs. was read over and explained which was on 3 february, 2020 in the court of the xxviii",audio_4_1.mp3 +"addl. Chief metropoliton magistrate nrupathunga road, bengaluru city present:- sri. Abdul rahim hussain shaikh b.sc, b.ed, llb(spl) xxviii a.c.m.m bengaluru city. Dated this the 3rd",audio_4_2.mp3 +"day of february, 2020 cc.no.2135/2018 judgment 1. Sl.No. of the Cas. : c.c.no.2135/2018 2. The date of commence of evidence: 26.07.2018 3. The date of",audio_4_3.mp3 +"institution : 17.05.2016 4. Name of the complainant :m/s kapil chits(k) pvt ltd having its register office at no.499, east end road,jayanagar, 9th block, bangalore-560",audio_4_4.mp3 +068. Branch: jayanagar rep by legal officer sri. T. Prasad s/o t. Govindappa. 5. Name of the accused : mr. Shakthivelu. S s/o subramani. M,audio_4_5.mp3 +"r/at no.165, urs colony 36th cross, east end main road, 9th block, jayanagar, bengaluru-69. 6. The offence complained : u/s.138 of n.i. Act 7. Plea",audio_4_6.mp3 +of the accused on his examination : pleaded not guilty 8. Final order : accused is convicted 9. Date of such order : 03.02.2020 judgment,audio_4_7.mp3 +1. This Cas. has been registered against the accused on the basis of the complaint filed by the complainant u/s 200 of cr.p.c for the,audio_4_8.mp3 +offence punishable u/s 138 r/w 142 of n.i. Act. 2. The gist of the complainant's Cas. is that : complainant is a Co. Inc. ,audio_4_9.mp3 +"under the Co. 's act 1956 and they areu/s 200 of cr.p.c for the offence vs. was read over and explained which was on 3 february,",audio_4_10.mp3 +2020,audio_4_11.mp3 +"Funds act. Accused was the subscriber for a chit bearing no.bjs01j with ticket no.09 for a chit value of rs.5,00,000/- payable at rs.20,000/- per month",audio_4_12.mp3 +for a period of 25 months at jayanagar branch. The accused became the successful bidder in auction held on 27.08.2012 for a bid value of,audio_4_13.mp3 +"rs.1,50,000/- and the accused has received the prize amount of rs.3,50,000/- on 28.12.2012 after furnished the requisite surety. It is the Cas. of the complainant",audio_4_14.mp3 +that after obtaining the chit prized money the accused has failed to pay the monthly chit installments amount and subsequently the chit also completed its,audio_4_15.mp3 +"full term of 25 months and when the representative of the complainant approached the accused he issued the cheque bearing no.623671 dated:24.02.2016 for rs.3,85,000/- drawn",audio_4_16.mp3 +"on state bank of india, bangalore in favour of the complainant to clear the balance amount, which on presentation for encashment with his banker union",audio_4_17.mp3 +"bank of india, 4th block, jayanagar, bengaluru, the same was dishonoured for the reasons 'payment stopped by the drawer' as per the bank memo dated",audio_4_18.mp3 +01.03.2016. The complainant issued a legal notice on 24.03.2016 to the accused by rpad calling upon the accused to pay the cheque amount within 15,audio_4_19.mp3 +days from the date of receipt of the said notice. The said notice was served to the accused on 26.03.2016 but even after lapse of,audio_4_20.mp3 +"15 days from the date of receipt of the notice the accused has not paid the cheque amount nor replied to the said notice. Accordingly,",audio_4_21.mp3 +the complainant filed the complaint against the accused for having committed an offence punishable u/s 138 of n.i. Act on 17.05.2016. 3. In pursuance of,audio_4_22.mp3 +"the summons, the accused has appeared through counsel and got enlarged on bail by executing necessary documents. The copy of the complaint was furnished to",audio_4_23.mp3 +"the accused, as required under law. As there was sufficient material, plea was recorded against the accused on 09.07.2018 and explained to the accused in",audio_4_24.mp3 +"his vernacular, for which the accused pleaded not guilty and claims to be tried. 4. In order to prove the Cas. , the legal officer of",audio_4_25.mp3 +"the complainant Co. sri. T. Prasad, examined as pw1 and got marked ex.p1 to 14. Then the statement u/s 313 cr.p.c was recorded on 24.01.2019,",audio_4_26.mp3 +wherein the incriminating evidence appeared against the accused was read over and explained which was denied by the accused. Accused examined himself as dw1 and,audio_4_27.mp3 +got marked ex.d1 & 2 on his behalf. 5. The learned counsel for complainant argued that complainant is a Co. Inc. under the Co. 's act,audio_4_28.mp3 +1956 and they are in the business of promoting and conducting chits as per the provisions of the chit funds act. Accused was the subscriber,audio_4_29.mp3 +"for a chit bearing no.bjs01j with ticket no.09 for a chit value of rs.5,00,000/- payable at rs.20,000/- per month for a period of 25 months",audio_4_30.mp3 +"at jayanagar branch. The accused became the successful bidder in auction held on 27.08.2012 for a bid value of rs.1,50,000/- and the accused has received",audio_4_31.mp3 +"the prize amount of rs.3,50,000/- on 28.12.2012 after furnished the requisite surety. It is the Cas. of the complainant that after obtaining the chit prized",audio_4_32.mp3 +money the accused has failed to pay the monthly chit installments amount and subsequently the chit also completed its full term of 25 months and,audio_4_33.mp3 +"whenu/s 200 of cr.p.c for the offence vs. was read over and explained which was on 3 february, 2020",audio_4_34.mp3 +"No.623671 dated:24.02.2016 for rs.3,85,000/- drawn on state bank of india, bangalore in favour of the complainant to clear the balance amount, which on presentation for",audio_4_35.mp3 +"encashment with his banker union bank of india, 4th block, jayanagar, bengaluru, the same was dishonoured for the reasons 'payment stopped by the drawer' as",audio_4_36.mp3 +per the bank memo dated 01.03.2016. The complainant issued a legal notice on 24.03.2016 to the accused by rpad calling upon the accused to pay,audio_4_37.mp3 +the cheque amount within 15 days from the date of receipt of the said notice. The said notice was served to the accused on 26.03.2016,audio_4_38.mp3 +but even after lapse of 15 days from the date of receipt of the notice the accused has not paid the cheque amount nor replied,audio_4_39.mp3 +"to the said notice. Accordingly, the complainant filed the complaint against the accused for having committed an offence punishable u/s 138 of n.i. Act on",audio_4_40.mp3 +17.05.2016. Further it is contended that the presumption was in favour of the complainant which was not rebutted by the accused. It is contended by,audio_4_41.mp3 +the complainant that the ingredients of sec.138 and 142 are duly complied with and the accused is entitled for conviction. In support of his contention,audio_4_42.mp3 +"he placed reliance on the following citations: 1. (1996)2 scc 739 electronics trade & techhnology development corpn ltd, secunderabad v/s indian technologists & engineers (electronics",audio_4_43.mp3 +"(p) ltd and Anr. . 2. Air 2018 SC 3601 t.p murugan (dead) lrs v/s bojan posa nandhi rep thr poa holder, t.p murugan .v",audio_4_44.mp3 +"6. The learned counsel for accused contending that he was the subscriber for the chit for an amount of rs.5,00,000/- with the complainant Co. in",audio_4_45.mp3 +"the year 2012 and after successful bid obtained an amount of rs.3,50,000/-. It is main contention of the accused that he had cleared the chit",audio_4_46.mp3 +amount in the year 2014 but inspite of that the complainant Co. by misusing the 7 cheques that has been obtained at the time of,audio_4_47.mp3 +subscription for security filed a false compliant against him. It is also contended that when the complainant representative threatened him that they would file a,audio_4_48.mp3 +"cheque bounce Cas. against him for the said reason he had issued intimation to the bank for stop payment. Hence, the learned counsel for accused",audio_4_49.mp3 +prayed to acquit the accused. In support of his contention he placed reliance on the following citations: 1. 2005 cri.l.j 269 sri murugan financiers v/s,audio_4_50.mp3 +p.v. Perumal. 2.2010 cri.l.j 3386 S. timmappa v/s l.s prakash. 3.ilar 2008 kar 3635 k. Narayana nayak v/s sri. M shivarama shetty. 4.2015(5) kccr 990,audio_4_51.mp3 +l. Raju v/s gurappa reddy. 5.Crl. appeal no.952/2009 sri. H. Manjunath v/s sri. A.m basavaraju. 6.2004 cri.l.j 4107 nagisetty nagaiah v/s state of a.p and,audio_4_52.mp3 +Anr. . 7. Heard arguments and perused the material placed on record.u/s 200 of cr.p.c for the offence vs. was read over and explained which was,audio_4_53.mp3 +"on 3 february, 2020",audio_4_54.mp3 +"1.whether the complainant proves that the accused towards discharge of legal recoverable debt issued cheque bearing no.623671 dated 24.02.2016 for an amount of rs.3,85,000/- drawn",audio_4_55.mp3 +"on state bank of india, bangalore in favour of complainant, on presentation for encashment it was returned as 'payment stopped by drawer' and in spite",audio_4_56.mp3 +"of receipt of legal notice, the accused failed to pay the cheque amount within the statutory period and thereby the accused has committed an offence",audio_4_57.mp3 +punishable u/s 138 of n.i. Act? 2. What order? 9. My findings on the above points are as under : point no.1: in the affirmative,audio_4_58.mp3 +"point no.2: as per final order, for the following: reasons 10. Point no.1:- in order to prove the Cas. , the legal officer of the complainant",audio_4_59.mp3 +Co. sri. T. Prasad filed Aff. by way of examination-in-chief and has reiterated the allegations made in the complaint on oath. In the evidence pw1,audio_4_60.mp3 +produced the documents which were marked ex.p1 to p14. On perusal of document ex.p1 it is found that it is the minutes of the meeting,audio_4_61.mp3 +"of the board of directors held on 15.12.2009 wherein it was resolved to authorize pw1 mr. T. Prasad to file suits, execution and complaints to",audio_4_62.mp3 +contest the cases on behalf of their Co. . Further pw1 was also produced ex.p2 the authorization by the managing director to contest the Cas. on,audio_4_63.mp3 +behalf of the Co. pertaining to the chit funds scheme of the Co. . It is very pertinent to note that in the cross examination of,audio_4_64.mp3 +pw1 it is contended by the accused counsel that pw1 had no Auth. to contest the Cas. since foreman shashikala who had duly authorise pw1,audio_4_65.mp3 +had no Auth. from the complainant Co. to issue such authorization in view of the same the evidence of pw1 cannot be taken into consideration,audio_4_66.mp3 +in proving a guilt against the accused. On perusal of ex.p1 it is found that it is the minutes of the 49th meeting the board,audio_4_67.mp3 +of directors held on 15.12.2009 resolving to authorize pw1 to contest the Cas. and ex.p2 discloses that authorization is issued by the managing director in,audio_4_68.mp3 +terms of the board resolution dated 15.12.2009 to contest the cases on behalf of the complainant Co. including the chit funds scheme. It is pertinent,audio_4_69.mp3 +to note that though disputed by the accused counsel in the cross examination of pw1 but failed to extract sufficient material to disprove the Auth. ,audio_4_70.mp3 +of the complainant/pw1 and also failed to produce cogent evidence and relevant document in the evidence of the dw1/accused to substantiate the defence that pw1,audio_4_71.mp3 +had no Auth. to contest the Cas. . In view of the above reason and discussions the documents resolution ex.p1 and authorization ex.p2 stands proved and,audio_4_72.mp3 +can be appreciated to prove that the complainant/pw1 are duly authorizedu/s 200 of cr.p.c for the offence vs. was read over and explained which was,audio_4_73.mp3 +"on 3 february, 2020",audio_4_74.mp3 +11. It is the evidence of pw1 that accused was the subscriber for a chit bearing no.bjs01j with ticket no.09 for a chit value of,audio_4_75.mp3 +"rs.5,00,000/- payable at rs.20,000/- per month for a period of 25 months at jayanagar branch and after successful bidding in auction held on 27.08.2012 for",audio_4_76.mp3 +"a bid value of rs.1,50,000/- received the prize amount of rs.3,50,000/- on 28.12.2012 after furnished the requisite surety. It is further Cas. of the complainant",audio_4_77.mp3 +that after obtaining the chit prized money the accused has failed to pay the monthly chit installments and on request to repay the outstanding due,audio_4_78.mp3 +"amount of rs.3,85,000/- accused had issued the cheque bearing no.623671 dated:24.02.2016 for rs.3,85,000/- drawn on state bank of india, bangalore which on presentation for encashment",audio_4_79.mp3 +"through union bank of india, 4th block, jayanagar, bengaluru was returned dishonoured with memo for the reasons 'payment stopped by drawer' dated 01.03.2016. In order",audio_4_80.mp3 +"to prove the same pw1 has produced ex.p3 c/c of statement of account, ex.p4/chit agreement and ex.p5/memo of calculation. Before appreciating the documentary evidence it",audio_4_81.mp3 +would be crystal clear if the admissions of the accused in his evidence regarding the chit transaction be considered. In the chief examination of dw1/accused,audio_4_82.mp3 +"admitted that he was the subscriber for the chit for an amount of rs.5,00,000/- and after successful bidding had received an amount of rs.3,50,000/- in",audio_4_83.mp3 +"the year 2012. The relevant portion regarding admission of dw1/accused in his chief examination is as follows:- ""€□€‚ƒ 2012g‚„… †g□‡ˆ ‰‚a‰š‹ai‚ƒ„… g‚œ.5,00,000 □šœv‚žz‚ a□n ‰‚z‚‰‚‡€□vzš□.",audio_4_84.mp3 +"‰‚z‚j a□nai‚ƒ€‚ƒ‘ €□€‚ƒ ’q“ □‚i□r g‚œ.3,50,000 ”‚t□‚€‚ƒ‘ •‚qšz‚ƒpšœarzš□. €□€‚ƒ †g□‡ˆ ‰‚a‰š‹–ƒaz‚ •‚qšz‚ƒpšœarz‚□ ”‚t□‚€‚ƒ‘ ‰‚a•‚—t˜□□v □‚ƒg‚ƒ •□□‚w □‚i□rzš□□€š. ‰‚z‚j a□n 2014 g‚„… □‚ƒƒp□žai‚ƒ□□vg‚ƒv‚žzš. "" from this",audio_4_85.mp3 +"admission of dw1 accused and also from the documentary evidence ex.p4 chit agreement, ex.p3 account statement, ex.p5 memo of calculation, ex.p11 on demand promissory note,",audio_4_86.mp3 +"ex.p12 guarantee agreement, ex.p13 prize amount payment voucher it is crystal clear that accused was the subscriber for the chit ticket no.9 for a value",audio_4_87.mp3 +"of rs.5,00,000/- and after successful bidding in auction held on 27.08.2012 for a bid value of rs.1,50,000/- received the prize amount of rs.3,50,000/- on 28.12.2012.",audio_4_88.mp3 +12. Further in the evidence pw1 deposed that accused became the defaulter in repaying the chit amount and on demand issued a cheque bearing no.623671,audio_4_89.mp3 +"for an amount of rs.3,85,000/- drawn on state bank of india, bangalore dt:24.02.2016 in discharge of his legal debt and liability. In order to prove",audio_4_90.mp3 +the said fact the complainant has produced ex.p6 with signature ex.p6(a) of the accused on the said cheque. It is very pertinent to note that,audio_4_91.mp3 +in the evidence dw1 deposed that he had paid the entire chit amount to the complainant and there is no due on the date of,audio_4_92.mp3 +issuing of the cheque. In order to prove the said fact accused produced chit pass book marked as ex.d1 and voucher for the payment of,audio_4_93.mp3 +"rs.19,000/- to the complainant Co. on dt:07.12.2013. In the cross examination of dw1 the complainant taken the contention that the entries in the pass book",audio_4_94.mp3 +in the ex.d1 is filled as per the convenience by the accused and the said payment entries do not with any documentary receipts regarding payment.,audio_4_95.mp3 +"The contents of ex.d2 is admitted by the complainant which discloses an amount of rs.19,000/- has been paid to the complainant Co. by accused whichu/s",audio_4_96.mp3 +"200 of cr.p.c for the offence vs. was read over and explained which was on 3 february, 2020",audio_4_97.mp3 +Has not produced any receipts which corroborates the payment made to the complainant as entered in ex.d1. In the absence of the receipts the contention,audio_4_98.mp3 +of the accused that he has repaid the entire amount to the complainant Co. cannot be considered and accepted. It is a Cas. of the,audio_4_99.mp3 +accused that inspite of payment of entire amount the complainant has not returned the cheques with they are obtained at the time of subscription of,audio_4_100.mp3 +the chit and by misusing the same by making entries as per their convenience in the said cheque has filed false complaint against them. It,audio_4_101.mp3 +is vehemently agued by the complainant counsel that in the cross examination dw1 has clearly admitted that he has not obtained the noc certificate after,audio_4_102.mp3 +clearing the chit amount nor he has taken any attempt to obtain the same. In this Cas. also it is crystal clear that the accused,audio_4_103.mp3 +has not produced any single document to show that he has made attempt to obtain the noc after clearing the chit amount when there was,audio_4_104.mp3 +no impediment for the accused to apply the same if at all he has cleared the entire chit amount. But in this Cas. not a,audio_4_105.mp3 +single document has been produced by the accused to show that he has taken necessary steps to obtain noc from the complainant Co. and also,audio_4_106.mp3 +requested the complainant to return the 7 cheques which according to him has been handed as security at the time of obtaining the chit amount.,audio_4_107.mp3 +In the absence of the same it creates a suspicious regarding the defence taken by the accused that he has cleared the entire chit amount,audio_4_108.mp3 +and there was no legal enforceable debt on the date of presentation of the cheque. In the cross examination of pw1 it is contended by,audio_4_109.mp3 +"the accused that there was a difference of amount mentioned in the document on demand promissory note ex.p11, notice ex.p8 and bank memo ex.p7 for",audio_4_110.mp3 +which the complainant/pw1 deposed that there is a difference in ex.p11 on demand promissory note and ex.p5 memo of calculation since the principal amount and,audio_4_111.mp3 +interest is shown in ex.p5 and in exp11 is only the principal amount. It is pertinent to note that in the absence of cogent evidence,audio_4_112.mp3 +and relevant document that the accused has paid the entire chit amount cannot be taken into consideration. Further the contention of the accused that there,audio_4_113.mp3 +is difference the amount shown in the on demand promissory note and the memo of calculation also cannot be taken into consideration in the absence,audio_4_114.mp3 +of cogent and relevant document by the accused/dw1. On appreciating the cross examination of pw1 it is found that accused counsel had taken Anr. contention,audio_4_115.mp3 +that the signature ex.p6(a) differs with the signature of the accused in the chit agreement ex.p4. This contention of the accused in the cross examination,audio_4_116.mp3 +cannot be appreciated in the absence of cogent evidence and relevant document to show that the signature ex.p6(a) does not belong to the accused. It,audio_4_117.mp3 +is also equally important to note that in the evidence of dw1 the accused has clearly admitted that he was the subscriber of the chit,audio_4_118.mp3 +and has never disputed his signature on the chit agreement ex.p4. In the absence of relevant document the contention of the accused that the signature,audio_4_119.mp3 +in ex.p4 chit agreement does not resemble with the signature in the disputed cheque ex.p6(a). On analyzing and appreciating the evidence put forth by the,audio_4_120.mp3 +accused it is found that no substantial evidence has been placed by the accused to disprove his signature ex.p6(a) on the disputed cheque. Further in,audio_4_121.mp3 +the cross examination of pw1 by the accused counsel it is also contended that the ink that has been used in filling the disputed cheque,audio_4_122.mp3 +ex.p6 and the signature ex.p6(a) of the accused are different and the said contents with the signature of the accused is filled by the complainant,audio_4_123.mp3 +as per their convenience. The said facts have been denied by the complainant/pw1 by contending that accused has issued the disputed cheque ex.p6 with signature,audio_4_124.mp3 +ex.p6(a) in discharge of legal debt and liability. It is found that accused also contended that the cheque which has been issued for security has,audio_4_125.mp3 +been misused by the complainant by filling it as per the convenience and filing a false complaint against him. On thisu/s 200 of cr.p.c for,audio_4_126.mp3 +"the offence vs. was read over and explained which was on 3 february, 2020",audio_4_127.mp3 +When cheque has been issued in discharge of legal debt and liability there is no impediment on the part of the complainant to fill the,audio_4_128.mp3 +content of the said cheque and present it for collection. In the instant Cas. in the absence of cogent and documentary evidence the contention of,audio_4_129.mp3 +"the accused that the signature ex.p6(a) on the said cheque does not belong to accused cannot be taken into consideration and accepted. Per contra, the",audio_4_130.mp3 +complainant has proved that in discharge of legal debt and liability accused had issued the disputed cheque ex.p6 with signature on the disputed cheque ex.p6(a).,audio_4_131.mp3 +"13. At this junction i would like to discuss the ruling reported in: 2019 sar 2446 (Crl. ) 309 SC , ( bir singh v/s mukesh",audio_4_132.mp3 +"kumar). (e) NI Act (26 of 1881), s, 138, 139 - dishonour of cheque - presumption as to legally enforceable debt - rebuttal -",audio_4_133.mp3 +"onus to rebut presumption that cheque issued in discharge of debt or liability is on accused. (para 36) (g)NI Act , (26 of 1881), ss.138,",audio_4_134.mp3 +"139 - presumption as to legally enforceable debt - rebuttal - signed blank cheque- if voluntarily presented to payee, towards payment, payee may fill up",audio_4_135.mp3 +amount and other particulars and it in itself would not invalidate cheque - onus would still be on accused to prove that cheque was not,audio_4_136.mp3 +"issued for discharge of debt or liability by adducing evidence. (para-38). (h) NI Act (26 of 1881), ss, 138- dishonour of cheque - complainant",audio_4_137.mp3 +"can fill up amount or particulars in blank cheque. (para 38). (j)negotiable instrument act 26 of 1881), Ss. 138, 139 - dishonour of cheque -",audio_4_138.mp3 +absence of finding that cheque was not signed by accused or not voluntarily made over to payee- no evidence regarding circumstances in which blank signed,audio_4_139.mp3 +"cheque given to complainant - cheque presumed to be filled in by complainant being payee in presence of accused, at his request or with his",audio_4_140.mp3 +"acquiescence- no change in amount, its date or name of payee- subsequent filing in of an unfilled signed cheque is not alteration- accused liable to",audio_4_141.mp3 +be convicted. In the cross examination of pw1 the accused counsel has taken the contention that the content and the signature on the disputed cheque,audio_4_142.mp3 +ex.p6(a) is written by using different ink and has been filled as per their convenience. The relevant portion of cross examination of pw1 is as,audio_4_143.mp3 +"follows:- ""€□ai‚i□‡™ai‚ƒpšš ”□dj›g‚ƒ□‚ z□rœšu‚□‚ƒ □‚ƒv‚ƒž •‚žÿ‘v‚ zšp“€‚„…g‚ƒ□‚ ‰‚ u‚□‚ƒ ¡š□gš ¡š□gšai‚i□vg‚ƒv‚ž□š jaz‚gš ‰‚jai‚ƒ™…. •‚žÿ‘v‚ zšp“€‚„…g‚ƒ□‚ ¢g‚”‚ □‚ƒv‚ƒž ‰‚ □‚i□q‚™ƒ ¢□‚›z‚ £□ u‚□‚„… □‚‡v□‡‰‚¤zš jaz‚gš ‰‚jai‚ƒ™….",audio_4_144.mp3 +¥†-6j ‰‚ dgšœ□†ai‚ƒz‚□™… jaz‚gš ‰‚jai‚ƒ™…. ‰‚z‚j ¥†-6j ‰‚ ai‚ƒ€‚ƒ‘ j•s“j‰“jœ“ v‚y¦g‚ ¢§uš p‚□‚ƒ ‰‚™ƒ ai‚i□□‚¨zš□ c¡‚s‡av‚g‚ e™…. ¥†-6g‚„…g‚ƒ□‚ jœ□… ¢g‚”‚u‚□‚ƒ □‚ƒv‚ƒž ¥†- 6j ‰‚ ai‚ƒ€‚ƒ‘,audio_4_145.mp3 +"€□□š□ □‚i□rpšœaq‚ƒ €□‡ai‚i□™ai‚ƒpšš ”□dj‰‚œ□vzšu/s 200 of cr.p.c for the offence vs. was read over and explained which was on 3 february, 2020",audio_4_146.mp3 +"This ruling is applicable to the present facts and circumstances of the Cas. since in para-36, 37, 38 & 40 the Hon'ble SC has",audio_4_147.mp3 +clearly laid down the dictum of law that the onus to rebut the presumption u/s 139 that the cheque has been issued in discharge of,audio_4_148.mp3 +a debt or liability is on the accused and the fact that the cheque may be post dated does not absolve the drawer of the,audio_4_149.mp3 +cheque of a penal consequences of sec.138 of the n.i act. 14. On perusal of the said ruling the Hon'ble SC had made it,audio_4_150.mp3 +"very clear that if a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill of the amount and",audio_4_151.mp3 +other particulars and it would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in,audio_4_152.mp3 +"discharge of debt or liability by adducing evidence. It is further held that even blank cheque leaf, voluntarily signed and handed over by the accused,",audio_4_153.mp3 +"which is towards some payment, would attract presumption u/s 139 of the negotiable instrument act, in the absence of any cogent evidence to show that",audio_4_154.mp3 +"the cheque was not issued in discharge of a debt. It is also held that the provisions of sec.20, 87 and 139 makes it amply",audio_4_155.mp3 +clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption,audio_4_156.mp3 +that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have,audio_4_157.mp3 +"been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. In view of the dictum of",audio_4_158.mp3 +law laid down by the Hon'ble SC the contention of the accused that the cheque ex.p6 has been filled as per their convenience and,audio_4_159.mp3 +filed a false complaint cannot be considered and accepted. In the instant Cas. accused had utterly failed to rebut the presumption that there exist no,audio_4_160.mp3 +"legal enforceable debt and they were not in due of payment of rs.3,85,000/- mentioned in the cheque ex.p6. 15. In the instant Cas. the complainant",audio_4_161.mp3 +deposed that in discharge of legal debt and liability accused has issued ex.p6/cheque which on presentation to the bank was returned as dishonored with the,audio_4_162.mp3 +reason stop payment by the accused as per the bank memo ex.p7. In the chief examination of dw1 he deposed that the representatives of the,audio_4_163.mp3 +complainant approached his house and threatened him that they would file a cheque bounce Cas. against him for the said reason he had issued stop,audio_4_164.mp3 +payment intimation to the bank. From this admission of dw1 it is crystal clear that the accused himself after issuing of the cheque has intimated,audio_4_165.mp3 +the bank for stop payment. To substantiate his defence accused has not produced a single document to show that he had taken legal action against,audio_4_166.mp3 +the complainant representative for threatening him nor he has produced any cogent evidence the representative of the complainant Co. approached his house and intimated him,audio_4_167.mp3 +that they would to be file a cheque bounce Cas. against him. In view of the same the contention of the accused regarding the said,audio_4_168.mp3 +fact cannot be considered and accepted. 16. At this juncture i would also like to discuss the dictum of law laid down in (2003) 3,audio_4_169.mp3 +"SC cases 232 (goaplast (p) ltd, v/s chico ursula d' souza and anr) in this judgment the Hon'ble SC has laid down the",audio_4_170.mp3 +dictum of law that the drawer issuing to a person of post dated cheque and then instructing the bank not to make payment consequently cheque,audio_4_171.mp3 +bounce in such circumstances not withstanding the payment stopped prior to the due date of the cheque date held sec.138 become applicable. Further it is,audio_4_172.mp3 +held that if stoppage of payment before the due date of theu/s 200 of cr.p.c for the offence vs. was read over and explained which,audio_4_173.mp3 +"was on 3 february, 2020",audio_4_174.mp3 +Confidence which cheque is otherwise intended to inspire regarding payment being available on due date this ruling is aptly applicable to the present fact and,audio_4_175.mp3 +circumstances of the Cas. since it is clearly admitted by the accused in his evidence that he has instructed the bank for stop payment of,audio_4_176.mp3 +the cheque but he has not produced any evidence to show that on the date of issuing of the cheque he has sufficient balance in,audio_4_177.mp3 +his account and if at all he had not issued the instruction of stop payment definitely the disputed cheque would have been honoured. 17. The,audio_4_178.mp3 +"complainant counsel has relied on a ruling reported in : (1996) 2 SC cases 739 electronics trade & technology development corpn ltd, secunderabad v/s",audio_4_179.mp3 +indian technologists & engineers (electronics) (p) ltd and Anr. on perusal of the said ruling it is found that the Hon'ble SC has clearly,audio_4_180.mp3 +laid down the dictum of law that the drawer of the cheque having insufficient fund in his credit cannot escaped liability u/s 138 by issuing,audio_4_181.mp3 +stop payment instruction to his bank. It is clearly held that before presenting of the cheque for encashment if he had requested the complainant not,audio_4_182.mp3 +to present before the bank by issuing notice then the provisions of sec.138 would not have been attracted even though the cheque is return by,audio_4_183.mp3 +the bank. In the instant Cas. accused not issued any notice or intimated the complainant before the cheque was presented for the bank nor he,audio_4_184.mp3 +has produced documentary evidence to show that on the date of dishonour of cheque there was sufficient balance in his account to honour the cheque,audio_4_185.mp3 +and the said cheque has been dishonoured only due to his instruction of stop payment. The Hon'ble SC in the said ruling has clearly,audio_4_186.mp3 +held that once the cheque has been drawn and issued to the payee and the payee has presented the cheque and there after if any,audio_4_187.mp3 +instructions are issued to the bank for non payment and the cheque is returned to the payee with such an endorsement it amount to dishonour,audio_4_188.mp3 +cheque and it comes a meaning of sec.138 of n.i act. It is also held in para-6 that sec.138 intend to prevent dishonest on the,audio_4_189.mp3 +part of the drawer of negotiable instrument to draw a cheque without sufficient funds in his account maintained by him in a bank and induce,audio_4_190.mp3 +the payee or holder in due course to act upon it. Sec.138 draw presumption that one commits the offence if issues the cheque dishonestly. Under,audio_4_191.mp3 +this circumstances since the accused has not paid the payment within 15 days from the date of the receipt of the notice issued by the,audio_4_192.mp3 +payee or the holder in due course the dishonest intention is inferable from those facts. From the above reasons and discussion it is found that,audio_4_193.mp3 +the dictum of law laid down by the Hon'ble SC has aptly applicable to the present facts and circumstances of the Cas. . 18. In,audio_4_194.mp3 +the instant Cas. the complainant counsel vehemently argued that if at all the accused has made the payment definitely he would have approach the complainant,audio_4_195.mp3 +for return of the 7 cheque which he has deposited for security and not making any attempt by issuing a notice to the complainant to,audio_4_196.mp3 +return the cheques for more than five years is quite unnatural. According to the accused he had issued the 7 cheques for security at the,audio_4_197.mp3 +time of obtaining the chit amount which is inu/s 200 of cr.p.c for the offence vs. was read over and explained which was on 3,audio_4_198.mp3 +"february, 2020",audio_4_199.mp3 +And the payment voucher is also dated on the same date. If the contention of the accused is considered then according to him he had,audio_4_200.mp3 +issued 7 cheques for security in the year 2012 till the date of filing of the complaint on 17.05.2016 for a period of 4 years,audio_4_201.mp3 +he has never issued any notice to the complainant to return the said cheques. On this point the complainant relied on citation of Hon'ble supreme,audio_4_202.mp3 +"court reported in : air 2018 SC 3601 t.p murugan (dead) lrs v/s bojan posa nandhi rep.thr poa holder, t.p murugan vs. bojan negotiable",audio_4_203.mp3 +"instruments act (26 of 1881), s.138, s.139 dishonour of cheque- presumption as to enforceable debt- cheques allegedly issued by accused towards repayment of debt-defence of",audio_4_204.mp3 +accused that 10 cheques issued towards repayment of loan bank in 1995- behavior of accused in allegedly issued 10 blank cheques back in 1995 and,audio_4_205.mp3 +"never asking their return for 7 years, unnatural-accused admitting his signature on cheques and pronote presumption under s.139 would operate against him - complainant proving",audio_4_206.mp3 +"existence of legally enforceable debt and issuance of cheques towards discharge of debt-conviction, proper. This ruling is aptly applicable to the present Cas. since the",audio_4_207.mp3 +accused does not dispute his signature on pronote on ex.11 nor on the payment voucher ex.p13 dated:28.12.2012. If the defence of the accused is considered,audio_4_208.mp3 +then according to the accused he had issued 7 blank cheque at the time of obtaining the chit amount on 28.12.2012 and never asked the,audio_4_209.mp3 +return of the cheque for 4 years which appears to be quite unnatural. 19. Accused counsel has produced the ruling reported in : 2005 crl.l.j,audio_4_210.mp3 +"269 madras HC sri. Murugan financiers v/s p.v. Perumal NI Act (26 of 1881), s.138- dishonour of cheque- appeal against acquittal - complaint-",audio_4_211.mp3 +complainant being a finance Co. no books of account produced in support of claim- order acquitting accused on finding that complainant has not proved debt,audio_4_212.mp3 +or legally enforceable liability satisfactorily and cheque was in fact issued as guarantee- not interfered with Crl. p.c. On perusal of the said ruling it,audio_4_213.mp3 +is said that the Hon'ble HC had laid down the dictum of law that if no account books are produced in support of their,audio_4_214.mp3 +claim if the complainant has not proved the debt or legally enforceable liability satisfactorily then accused is entitle for acquittal. In the instant Cas. this,audio_4_215.mp3 +ruling does not support the Cas. of the accused since there is clear admission accused/dw1 that he was the member of the chit and has,audio_4_216.mp3 +obtained a prize amount as a subscriber. Further in this Cas. the complainant has produced the relevant document chit agreement ex.p4 and account statement ex.p3,audio_4_217.mp3 +disclosing that accused has not repaid the chit amount. 20. Accused has also relied on Anr. ruling reported in:u/s 200 of cr.p.c for the offence,audio_4_218.mp3 +"vs. was read over and explained which was on 3 february, 2020",audio_4_219.mp3 +Perusal of this ruling it is found that the Hon'ble HC has laid down the dictum of law that if no consideration is passed,audio_4_220.mp3 +in favour of the accused presumption under Cl. (a) of sec.118(a) stands rebutted. This ruling is also not applicable to the facts and circumstances of,audio_4_221.mp3 +the Cas. and does not support the Cas. of the accused. On perusal of the evidence on record it satisfactorily establish that the complainant has,audio_4_222.mp3 +pay the prize amount to the accused. The said fact is clearly admitted by the accused/dw1 in chief examination where he had deposed that he,audio_4_223.mp3 +"was a chit member in the complainant firm and after successful bidding has obtained a chit amount of rs.3,50,000/- but failed to prove that he",audio_4_224.mp3 +has repaid the same. 21. Further the accused has also relied ruling reported in : ilr 2008 kar 3635 k. Narayana nayak v/s sri. M.,audio_4_225.mp3 +Shivarama shetty on perusal of the said rulings it is found that in both the ruling the Hon'ble HC has held that if the,audio_4_226.mp3 +cheque issued by the accused is only as a security and not for discharge of any existing debt is entitle for acquittal. 2015 (5)kccr 990,audio_4_227.mp3 +karnataka HC l. Raju v/s gurappa reddy in this ruling the Hon'ble HC has held that if the complainant fails to establish the,audio_4_228.mp3 +legal enforceable debt and the disputed cheque issued for the discharge of legal enforceable debt then accused is entitle for acquittal. 22. Both the dictum,audio_4_229.mp3 +of law laid down in both rulings is not applicable to the present facts and circumstances of the Cas. since the complainant overwhelmingly has proved,audio_4_230.mp3 +behind all reasonable doubt from the above reasons and discussions that their exist legal enforceable debt and in discharge of the same accused has issued,audio_4_231.mp3 +"the disputed cheque ex.p6 in favour of the complainant. Per contra, accused has utterly failed to prove that he has issued 7 cheques for security",audio_4_232.mp3 +which has been misused by the complainant in filing a false complaint. 23. At this juncture i would also like to discuss the citation reported,audio_4_233.mp3 +"in air 2018 Hon'ble SC 3601 (t.p murugan (dead) thr.lrs.v bojan and posa nandhi rep.thr, poa holder, t.p murugan vs. bojan) in this ruling",audio_4_234.mp3 +"at para-8 the Hon'ble SC has laid down the dictum of law that u/s 139 of the n.i act, once a cheque has been",audio_4_235.mp3 +"signed and issued in favour of the holder, there is statutory presumption that it is issued in discharge of a legally enforceable debt or liability",audio_4_236.mp3 +"by referring to k.n.beena v/s muniyappan and Anr. , (2001) 8 scc 458, para-6 and rangappa v/s shrimohan (2010) 11 scc 411, para 26 . It",audio_4_237.mp3 +"is further held that the presumption is a rebuttable one, if the issuer of the cheque is able to discharge the burden that it was",audio_4_238.mp3 +issued for some other purpose like security for a loan. The dictum of law laid down by Hon'ble SC in this Cas. is aptly,audio_4_239.mp3 +applicable to the fact and circumstances of the present Cas. since accused has utterly failed to rebut the presumption u/s 139 of n.i act existing,audio_4_240.mp3 +"in favour of the complainant that the cheque ex.p6 issued by him is not for discharge of any legal debt or liability. Per contra, the",audio_4_241.mp3 +"complainant has proved the Cas. byu/s 200 of cr.p.c for the offence vs. was read over and explained which was on 3 february, 2020",audio_4_242.mp3 +Debt regarding the repayment of the chit amount. In the above said ruling the Hon'ble SC has also clearly laid down the dictum of,audio_4_243.mp3 +law that the behavior of the accused is also prominent while appreciating the entire evidence. In the instant Cas. by appreciating the entire evidence it,audio_4_244.mp3 +is found that he has been subjected to harassment by the Co. representatives for which he had intimated the bank officials for stop payment of,audio_4_245.mp3 +the cheque. But failed to prove the said fact by producing cogent evidence and relevant document that he has been subjected to harassment by the,audio_4_246.mp3 +Co. representatives. The behavior of the accused clearly goes to show that intentionally after issuing of the cheque for the discharge of legal debt have,audio_4_247.mp3 +intimated the bank for the stop payment of the said cheque. Further has not produced any relevant document regarding the payment of the entire chit,audio_4_248.mp3 +amount inspite of taking the defence that there was no due from him to the complainant Co. at the time of presentation of the disputed,audio_4_249.mp3 +cheque for collection to the bank. From all these reason it is crystal clear that accused is not entitle for any relief u/s 138 of,audio_4_250.mp3 +n.i act. 24. It is the evidence of pw1 that after receiving the memo from the bank regarding dishonour of cheque issued notice on 24.03.2016,audio_4_251.mp3 +through rpad and the said notice has been served on the accused. In order to prove the said fact the complainant has produced the notice,audio_4_252.mp3 +ex.p8 and the postal receipt ex.p8(a) for having send the notice through rpad also produced reciept ex.p8(b) to show that notice is also served through,audio_4_253.mp3 +courier service. Further the complainant has also produced the postal acknowledgment ex.p9 to show that the said notice sent to the proper address of the,audio_4_254.mp3 +accused has been duly served and acknowledged by the accused. It is pertinent to note that accused /dw1 in his evidence never deposed that he,audio_4_255.mp3 +has not received the legal notice ex.p8 as per the acknowledgment ex.p9 and never disputed his signature on the postal acknowledgement ex.p9. From this documentary,audio_4_256.mp3 +evidence it is clearly established that the complainant has issued the notice to the proper address of the accused and the same has been acknowledged,audio_4_257.mp3 +by the accused as per the pastel acknowledgment ex.p9. 25. At this juncture on this point regarding service of notice i would like to reproduce,audio_4_258.mp3 +the principle laid down by the Hon'ble apex court of india in a decision reported in 2007 (3) crimes 120 (SC ) (c.c. Alavi,audio_4_259.mp3 +"haji v/s palapetty muhammed & anr), 2007 air scw 3578 (c.c.avavi haji v/s palapetty muhammed & anor). On perusal the said ruling it is found",audio_4_260.mp3 +that the Hon'ble SC held at para- 8 that : sec.138 of the act does not require that the notice should be given only,audio_4_261.mp3 +"by 'post', yet in a Cas. where the sender as a dispatched the notice by post with correct address written on it, the principle Inc. ",audio_4_262.mp3 +in S. 27 of the general Cl. act 1897 (for short gc act) could profitably be imported in such a Cas. . It was held that,audio_4_263.mp3 +in this situation service of notice is deemed to have been affected on the sendee unless he proves that it was not really served and,audio_4_264.mp3 +that he was not responsible for such non service. Further at para -10 it is held that : the requirement of Cl. (b) of the,audio_4_265.mp3 +provisions of sec.138 of the act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed,audio_4_266.mp3 +in Cl. (c) of the said proviso to sec.138 for payment by the drawer of the cheque. Nevertheless it would beu/s 200 of cr.p.c for,audio_4_267.mp3 +"the offence vs. was read over and explained which was on 3 february, 2020",audio_4_268.mp3 +The notice are brought to his address. This ruling is aptly applicable to the present Cas. on the hand since the notice ex.p8 is duly,audio_4_269.mp3 +served through acknowledgment ex.p9 to the proper address of the accused. It is pertinent to note that if notice sent through rpad by correctly addressing,audio_4_270.mp3 +"drawer of the cheque, mandatory requirement of issue of notice in terms of (b) of proviso to u/s 138 of n.i. Act stands complied with.",audio_4_271.mp3 +The evidence on record clearly establishes that the complainant sent the notice to the accused to the correct address through rpad and the same is,audio_4_272.mp3 +duly served to the accused on his proper address. In view of the same in the instant Cas. sending legal notice to the correct address,audio_4_273.mp3 +of the accused is found to be in compliance with u/s 138(b) of n.i. Act by the complainant. 26. Non-initiating the legal action for alleged,audio_4_274.mp3 +"misutilization, non-intimating to his banker and non- issuance of reply are the strongest circumstances to draw inference against the accused. As noted supra it is",audio_4_275.mp3 +settled that the presumption has to be rebutted by cogent proof and not by a bare explanation which is merely plausible. On appreciation of material,audio_4_276.mp3 +"on record in the considered opinion of this court, the evidence placed on record by the accused is not sufficient to rebut presumption. Hence, it",audio_4_277.mp3 +cannot be said that the accused has rebutted the presumption. 27. The word 'unless contrary is proved' is discussed by the Hon'ble apex court in,audio_4_278.mp3 +"a decision reported in 2011 Crl. l.j 4647 (SC ). It is observed that ""the accused is under the obligation to prove his Cas. ",audio_4_279.mp3 +"in trial by leading cogent evidence that there was no debt or liability to the satisfaction of the court"". 'unless contrary is proved' means the",audio_4_280.mp3 +presumption has to be rebutted by proof and not by a bare explanation which is mere plausible. The said fact is said to be proved,audio_4_281.mp3 +when its existence is directly established or when upon the material before it the court finds its existence to be so probable that the reasonable,audio_4_282.mp3 +"man could act on the supposition that it exist. Therefore, unless explanation is supported by proof, the presumption created by the provisions cannot be said",audio_4_283.mp3 +to be rebutted. On appreciation of material on record and in the light of the judgments discussed above it is clearly established that the accused,audio_4_284.mp3 +"has failed to discharge his obligation to rebut the presumption of enforceable debt -liability under S. 139 of the n.i act. Accordingly, i have no",audio_4_285.mp3 +"hesitation to arrive at the conclusion that accused has utterly failed to rebut the presumption. 28. On appreciation of entire evidence, this court is of",audio_4_286.mp3 +the opinion that the accused has miserably failed to prove the fact that he has not issued cheque for discharge of legally enforceable debt. On,audio_4_287.mp3 +"the contrary, the complainant has proved that the accused has issued cheque/ex.p6 for a sum of rs.3,85,000/- towards discharge of legally enforceable debt and on",audio_4_288.mp3 +presentation of the said cheque it was dishonored for the reasons 'payment stopped by drawer'. Further it is proved by the complainant that after service,audio_4_289.mp3 +"of legal notice, the accused has not replied the notice and repaid the cheque amount. Hence, in the considered view of this court, the complainant",audio_4_290.mp3 +"has complied the provisions of sec.142 and S. 138 of n.i. Act. Hence, i answer the above point no.1 in the affirmative.u/s 200 of cr.p.c",audio_4_291.mp3 +"for the offence vs. was read over and explained which was on 3 february, 2020",audio_4_292.mp3 +"Work. Considering the age and avocation of the accused, if the accused is sent to jail it will cause hardship to the accused and the",audio_4_293.mp3 +"family members. Having regard to the said facts and circumstance, prevailing rate of interest in the nationalized bank and litigation expenses i proceed to pass",audio_4_294.mp3 +the following: order the accused is found guilty for the offence punishable u/s 138 of n.i. Act. Acting u/s 255(2) of Cr.P.C. ,audio_4_295.mp3 +"the accused is convicted and sentenced to pay fine of rs.4,35,000/-, in default shall undergo simple imprisonment for four months. Out of fine amount of",audio_4_296.mp3 +"rs.4,35,000/- a sum of rs.4,30,000/- is ordered to be paid to the complainant towards compensation u/s 357(3) of Cr.P.C. and the balance",audio_4_297.mp3 +"amount of rs.5,000/- shall be remitted to the state. The bail bond executed by the accused shall stand cancelled. Supply free copy of the judgment",audio_4_298.mp3 +"to the accused. (dictated to stenographer directly on the computer, taken print out corrected, signed by me and then pronounced in the open court this",audio_4_299.mp3 +"the 3rd day of february, 2020) (abdul rahim hussain shaikh) xxviii addl. Chief MM , bengaluru. Annexure witnesses examined for the complainant:- pw1 : sri.",audio_4_300.mp3 +T. Prasad witnesses examined for the accused:- dw1 : sri. Shakthivelu.s documents exhibited by the complainant:- ex.p1 : board resolution ex.p2 : authorization letter ex.p3,audio_4_301.mp3 +: c/c of statement of account ex.p4 : chit agreement ex.p5 : memo of calculation ex.p6 : cheque ex.p6(a) : signature of the accused ex.p7,audio_4_302.mp3 +: bank memo ex.p8 : office copy of the legal notice ex.p8(a) : postal receipt ex.p8(b) : courier receipt ex.p9 : postal acknowledgement ex.p10 :,audio_4_303.mp3 +compliant ex.p11 : on demand promissory note ex.p12 : surety agreement ex.p13 : payment voucher ex.p14 : default noticeu/s 200 of cr.p.c for the offence,audio_4_304.mp3 +"vs. was read over and explained which was on 3 february, 2020",audio_4_305.mp3 +"Ex.d1 : chit pass book ex.d2 : challan issued by kapil chit xxviii addl. Chief MM , bengaluru. Judgment pronounced in the open court vide",audio_4_306.mp3 +separate order. Order the accused is found guilty for the offence punishable u/s 138 of n.i. Act. Acting u/s 255(2) of Cr.P.C. ,audio_4_307.mp3 +"the accused is convicted and sentenced to pay fine of rs.4,35,000/-, in default shall undergo simple imprisonment for four months. Out of fine amount of",audio_4_308.mp3 +"rs.4,35,000/- a sum of rs.4,30,000/- is ordered to be paid to the complainant towards compensation u/s 357(3) of Cr.P.C. and the balance",audio_4_309.mp3 +"amount of rs.5,000/- shall be remitted to the state. The bail bond executed by the accused shall stand cancelled. Supply free copy of the judgment",audio_4_310.mp3 +"to the accused. Xxviii a.c.m.m, bangaluru.u/s 200 of cr.p.c for the offence vs. was read over and explained which was on 3 february, 2020",audio_4_311.mp3 +"Ajay jain vs. purshottam nath jain & sons (huf) on 4 february, 2013 author: pratibha rani bench: pratibha rani $~22 * in the HC ",audio_5_1.mp3 +"of delhi at new delhi % date of decision : 4th february, 2013 + crl.rev.p. 478/2011 & crl.m.a. No.12757/2011 (stay) ajay jain ..... Petitioner through",audio_5_2.mp3 +": Mr. k.k.aggarwal, adv. vs. purshottam nath jain & sons (huf). ..... Respondent through : none. Coram: hon'ble Ms. . J. pratibha rani % pratibha rani,",audio_5_3.mp3 +j. (oral) 1. The petitioner has filed this revision petition impugning the order dated 27.09.2011 passed by learned trial court whereby his Appl. under S. ,audio_5_4.mp3 +311 crpc to resummon the defence witness was dismissed. The circumstance giving rise to this petition needs to be referred in some detail for the,audio_5_5.mp3 +reason that not only the legality and validity of the impugned order needs to be examined in this revision petition but also the manner in,audio_5_6.mp3 +which the trial has been conducted by learned trial court. This is a Cas. requiring exercise of inherent power vested in this court under S. ,audio_5_7.mp3 +482 crpc for not only giving effect to the order under Cr.P.C. but also to secure the ends of J. . The procedure,audio_5_8.mp3 +"followed in this Cas. by learned trial court is such that it has rendered the accused, who is petitioner before this court, virtually defenceless. 2.",audio_5_9.mp3 +A complaint under S. 138 ni act was filed by the respondent/complainant against the present petitioner. After the cross examination of the complainant was completed,audio_5_10.mp3 +"on 15.04.2011, the learned trial court posted the Cas. for defence evidence without examining the accused recording that in view of the latest Cas. law,",audio_5_11.mp3 +"statement of accused was not required. 3. Thereafter, on Appl. of the accused, witness from hdfc bank was ordered to be summoned for 24.08.2011. Though",audio_5_12.mp3 +"the witness was present, learned counsel for the accused was not available due to illness. The learned trial court, while declining the prayer of the",audio_5_13.mp3 +"accused for adjournment,ajay jain vs. purshottam nath jain & sons (huf) on 4 february, 2013",audio_5_14.mp3 +"Next date of hearing, an Appl. to resummon the witness from hdfc bank was filed by the accused but the same was also dismissed by",audio_5_15.mp3 +"the learned trial court. Feeling aggrieved, the petitioner filed this revision petition. 4. On 10.10.2012 during hearing of this petition, learned counsel for the petitioner",audio_5_16.mp3 +"informed that after recording complainant€s evidence and closing defence evidence, the matter has been adjourned for final arguments without even recording the statement of the",audio_5_17.mp3 +"accused, who is petitioner before this court. Thus, this court was constrained to summon the tcr to find out how without examining the accused, the",audio_5_18.mp3 +"Cas. has been straight away fixed for defence evidence and then after closing defence evidence, for final arguments. 5. This Crl. rev.p. No.478/2011 has provided",audio_5_19.mp3 +a window to this court to peep into the functioning of learned trial court who was dealing with large pendency of cases under S. 138,audio_5_20.mp3 +ni act. The procedure being followed by learned trial court in conducting trial of these cases is neither in consonance with the summary procedure prescribed,audio_5_21.mp3 +under S. 143 of negotiable instrument act nor in accordance with chapter xxi of crpc laying down procedure for summary trial or under chapter xx,audio_5_22.mp3 +"for summons trial cases. The guidelines/procedure laid down by this court in rajesh agarwal vs. . State & anr. 171 (2010) dlt 51, were infact",audio_5_23.mp3 +intended to guide subordinate judiciary as □light house€ so that the huge pendency of cases under negotiable instrument act can be tackled in such manner,audio_5_24.mp3 +"that the very object of provisions of S. 138 ni act i.e. Expeditious disposal in cheque bouncing Cas. could be achieved, have also not been",audio_5_25.mp3 +"followed in letter and spirit. 6. The tcr has been perused. The manner in which the trial was conducted by learned trial court, warrants interference",audio_5_26.mp3 +"by this court in exercise of the inherent jurisdiction vested under S. 482 crpc. Thus, though the relief claimed in the petition is only Ltd. ",audio_5_27.mp3 +"to the extent that petitioner may be allowed to examine witnesses in his defence, certain other illegalities committed by learned trial court in following the",audio_5_28.mp3 +"procedure for conducting the trial in a Cas. under S. 138 ni act, need to be rectified. 7. Perusal of the tcr reveals that on",audio_5_29.mp3 +"27.02.2006, the court ordered for summoning of the accused and the summoning order reads as under : '27.2.06 pr :complainant in person. Complainant examined cw1",audio_5_30.mp3 +by way of Aff. . Ce closed. Arguments at point of summoning heard. Material perused. Sufficient material proved on record to summon the accused u/s 138,audio_5_31.mp3 +"ni act.ajay jain vs. purshottam nath jain & sons (huf) on 4 february, 2013",audio_5_32.mp3 +"Sd/- mm/delhi 27/2/06' 8. At the stage of notice under S. 251 crpc, which was served on the accused on 28.05.2009, the proceedings of that",audio_5_33.mp3 +date are to the following effect : '28/5/09 present : both the parties along with respective counsel. Sho ps model town in person. Sho undertakes,audio_5_34.mp3 +"for the execution of the warrants sincerely in future and request for dropping the notice. Considering the submissions, the sho is dropped and he is",audio_5_35.mp3 +directed to execute the process issued by the court sincerely. On the basis of material available on filed notice of accusation explained to accused to,audio_5_36.mp3 +which accused pleaded not guilty and claimed trial. Put up on 1/10/09 for pe. Sd/- acmm-01 : delhi' 9. The notice under S. 251 crpc,audio_5_37.mp3 +"served on the accused is extracted hereunder : ' notice i, sunil chaudhary, acmm-01(central), delhi do hereby serve you sh.ajay jain, prop. Of m/s datasutch",audio_5_38.mp3 +"embroideries following notice: that you accused issued cheque no 064082 for rs.600,00/- dated 28.10.05 drawn on bank of punjab ltd., gujranwala town, part-1, opp. Model",audio_5_39.mp3 +"town, ring road, delhi in favour of the complainant in discharge of legally enforceable liability towards the complainant from the account maintained by you in",audio_5_40.mp3 +the name your firm bearing no. 72-ca11181719 which was dishonoured by your bank on presentation due to payment stopped by drawer and your failed to,audio_5_41.mp3 +make the payment within the stipulated period despite service of demand notice dated 11.1.06 sent to you through registered ad and upc thus thereby you,audio_5_42.mp3 +committed an offence punishable u/s 138 r/w 141 of negotiable instrument act and within my cognizance. And i hereby direct that you be tried,audio_5_43.mp3 +by the said court on the said notice. Acmm-1: delhi this notice is read over and explained to the accused and following question is asked,audio_5_44.mp3 +": q. Do you plead guilty or claim trial?ajay jain vs. purshottam nath jain & sons (huf) on 4 february, 2013",audio_5_45.mp3 +sd/- sd/- ro&ac acmm-1: delhi' 10. Cross examination of complainant was conducted on 15.04.2011 and the proceedings recorded on that date are as under :,audio_5_46.mp3 +'15.04.2011 pr : complainant in person. Accused in person with counsel. One witness is present who is cross examined as cw1 and discharged. No other,audio_5_47.mp3 +"witness is to be examined by the complainant and as per the latest Cas. law, statement of the accused is not required as the Aff. ",audio_5_48.mp3 +tendered in pre summoning evidence was duly explained at the time of accusation of notice. As such put up on 20.05.2011 for de. Sd/- acmm-01,audio_5_49.mp3 +": delhi' 11. Thereafter the accused moved an Appl. under S. 311 crpc. After obtaining reply from the complainant and hearing the parties, the Appl. ",audio_5_50.mp3 +to summon the bank manager from hdfc bank alongwith the statement of bank account of the accused and the details of the cheque was allowed,audio_5_51.mp3 +for the reason that the matter was pending for defence evidence and Cas. was adjourned to 24.08.2011 for defence evidence. Learned trial court should have,audio_5_52.mp3 +"noted that there was hardly any requirement of filing an Appl. under S. 311 crpc, obtaining reply and its disposal. Accused was only required to",audio_5_53.mp3 +file an Appl. for summoning the defence witnesses and no reply was required. He was only supposed to deposit the expenses. 12. The proceedings of,audio_5_54.mp3 +the date 24.08.2011 are extracted as under : '24.08.2011 at 10.30 pr : complainant with counsel. Accused in person with proxy counsel. Matter is passed,audio_5_55.mp3 +"over awaiting the witness who has not been turned up despite service. Sd/-ajay jain vs. purshottam nath jain & sons (huf) on 4 february, 2013",audio_5_56.mp3 +File taken up again on the appearance of witness viz. ashish kumar from hdfc bank but the adjournment is prayed by the accused submitting that,audio_5_57.mp3 +the main counsel is not available due to illness. Neither the Aff. nor the medical certificate is attached with the Appl. . The witness is a,audio_5_58.mp3 +formal witnesses who has brought the summoned record and despite the directions of the court counsel appearing with the accused is not examining the summoned,audio_5_59.mp3 +"defence witness, so the witness is discharged. Put up on 27.09.2011 for final arguments. Sd/- acmm-01 : delhi' 13. On 27.09.2011, the Appl. was filed",audio_5_60.mp3 +"by the counsel for the accused praying for recalling the manager, hdfc bank, gujarawala town branch in defence which was dismissed by impugned order for",audio_5_61.mp3 +the following reasons :- (i) the presence of the accused was secured to face trial by coercive steps; (ii) the accused was not present when,audio_5_62.mp3 +complainant was examined and thereafter opportunity was given to him to cross examine the complainant; (iii) after the dispension of examination of accused in view,audio_5_63.mp3 +"of the latest Cas. law, as the evidence was already explained to him at the time of explanation of accusation under S. 251 crpc, accused",audio_5_64.mp3 +was provided an opportunity to lead defence evidence; (iv) summons were issued to the bank witness for the date fixed but accused failed to examine,audio_5_65.mp3 +the witness; (v) request for adjournment by the accused was declined as the Appl. was neither supported by any Aff. nor with the medical certificate,audio_5_66.mp3 +to show that counsel was not available due to ailment; and (vi) even the Appl. under S. 311 crpc is not supported with any Aff. ,audio_5_67.mp3 +"or medical certificate and the submissions made in the Appl. did not appear to be trustworthy, thus meriting dismissal. 14. At the request of learned",audio_5_68.mp3 +"counsel for the accused, the Cas. was adjourned to 17.10.2011 for final arguments. The petitioner has impugned the order dated 27.09.2011 before this court. 15.",audio_5_69.mp3 +"First i would like to examine the correctness, legality and justifiability of the impugned order and then proceed to examine the manner in which the",audio_5_70.mp3 +"trial has been conducted so that miscarriage ofajay jain vs. purshottam nath jain & sons (huf) on 4 february, 2013",audio_5_71.mp3 +16. The learned trial court has not given the citation or name of the □latest Cas. law€ relying upon which the statement of accused was,audio_5_72.mp3 +dispensed with and the matter was straight away posted for defence evidence. 17. Although citation has not been given by learned trial court but it,audio_5_73.mp3 +"appears that learned trial court was referring to rajesh agarwal's Cas. but without caring to go through the entire report, preferred to concentrate on para",audio_5_74.mp3 +17 wherein steps required to be taken by learned trial court in conducting the trial in Cas. under S. 138 ni act were prescribed. Had,audio_5_75.mp3 +"the learned trial court taken the pain to go through the entire report, he would have taken note of the discussion made in this regard",audio_5_76.mp3 +"in paras 6,7 and 8 of the decision. In rajesh agarwal's Cas. (sura), while disposing of three petitions i.e. Crl. m.c. No.1996/2010, 1700/2009 and 1397/2010,",audio_5_77.mp3 +feeling concerned that the HC is being flooded with the petitions under S. 482 crpc for quashing the complaints under S. 138 ni act,audio_5_78.mp3 +"and the grounds on which generally the quashing was sought, the learned single judge highlighted the objective of the proceedings under S. 138 ni act.",audio_5_79.mp3 +He also considered that this situation has arrived for the reason that the lower courts are not following the mandate of the statute of conducting,audio_5_80.mp3 +"trial of the cases under S. 138 of ni act in a summary manner and despite amendment in ni act, continue trying these cases as",audio_5_81.mp3 +"summons trial cases and a long drawn procedure is followed. In paras 4 and 5 of the report, it was observed by learned single judge,",audio_5_82.mp3 +"as under :- '4. S. 143 of n.i. Act, as amended by legislature in 2002, specifically provides that all offences under this chapter of n.i.",audio_5_83.mp3 +Act are to be tried by judicial magistrate of first class or mm in accordance with summary trial provisions of Ss. 262 - 265 code,audio_5_84.mp3 +"of Crl. procedure (both inclusive). It is provided that in Cas. of conviction of the accused under S. 138 n.i. Act under summary trial, it",audio_5_85.mp3 +shall be lawful for the magistrate to pass a sentence of imprisonment up to one year and a fine exceeding Rs. 5000/-. S. 143 further,audio_5_86.mp3 +"provides that if at the commencement or during the course of summary trial, mm finds that nature of Cas. was such that a sentence of",audio_5_87.mp3 +"imprisonment exceeding one year may have to be passed or for some other reason mm comes to conclusion that Cas. should not be tried summarily,",audio_5_88.mp3 +"the magistrate has to pass an order after hearing the parties, giving reasons as to why he would like to try the Cas. not in",audio_5_89.mp3 +a summarily manner but as a summon trial and he could recall witnesses who may have been examined and proceed with the Cas. to hear,audio_5_90.mp3 +it as a summon trial Cas. . 5. In order to ensure that the cases under S. 138 n.i. Act are tried before the court of,audio_5_91.mp3 +"mm/jm in an expeditious manner, legislature provided for summary trial. S. 145 of n.i. Act provides that evidence of complainant may be given by him",audio_5_92.mp3 +"by way of Aff. and such Aff. shall be read in evidence in any inquiry, trial or other proceedings in the court. This also makes",audio_5_93.mp3 +clear that a complainant is not required to examine himself twice i.e. One after filing the complaint and one after summoning of the accused. The,audio_5_94.mp3 +Aff. and the documents filed by the complainant along with complaint for taking cognizance of the offence are good enough to be readajay jain vs. ,audio_5_95.mp3 +"purshottam nath jain & sons (huf) on 4 february, 2013",audio_5_96.mp3 +Summoning stage and the post summoning stage. The complainant is not required to be recalled and re-examined after summoning of accused unless the mm passes,audio_5_97.mp3 +a specific order as to why the complainant is to be recalled. Such an order is to be passed on an Appl. made by the,audio_5_98.mp3 +accused or under S. 145(2) of n.i. Act suo moto by the court.' 18. S. 143 of ni act provides that the cases under S. ,audio_5_99.mp3 +138 ni act shall be tried summarily by a judicial magistrate of first class or by a MM and the provisions of Ss. 262,audio_5_100.mp3 +"to 265, (both inclusive) of the Cr.P.C. shall, as far as may be, apply to such trials. 19. Cr.P.C. ",audio_5_101.mp3 +in chapter xxi prescribes procedure to be followed in summary trials. S. 262 crpc provides that the procedure specified for trial of summons Cas. shall,audio_5_102.mp3 +"be followed, except as mentioned in S. 262 sub-S. (2). The sentence which can be awarded by following the summary trial procedure in a Cas. ",audio_5_103.mp3 +"under S. 138 ni act is governed by S. 143(1) of ni act. 20. S. 263 crpc provides that in every Cas. tried summarily, the",audio_5_104.mp3 +"magistrate shall enter in such form as the state Govt. may direct, the following particulars viz. : (a) the serial No. of the Cas. ; (b)",audio_5_105.mp3 +the date of the commission of the offence; (c) the date of the report or complaint; (d) the name of the complainant (if any); (e),audio_5_106.mp3 +"the name, parentage and residence of the accused; (f) the offence complained of and the offence (if any) proved, and in cases coming under Cl. ",audio_5_107.mp3 +"(ii), Cl. (iii) or Cl. (iv) of sub-S. (1) of S. 260, the value of the property in respect of which the offence has been",audio_5_108.mp3 +committed; (g) the plea of the accused and his examination (if any); (h) the finding; (i) the date on which proceedings terminated. 21. It may,audio_5_109.mp3 +"be noted that even S. 263(g) referred to above, requires the plea of the accused to be recorded and his examination (if any).ajay jain vs. ",audio_5_110.mp3 +"purshottam nath jain & sons (huf) on 4 february, 2013",audio_5_111.mp3 +"Procedure to be followed when the Cas. is being tried summarily. If the accused does not plead guilty, the magistrate has to record the substance",audio_5_112.mp3 +"of the evidence. In the instant Cas. , it is noticed that the complainant filed his Aff. and manner in which the cross examination has been",audio_5_113.mp3 +"recorded, indicates that the procedure followed is not of summary trial. In other words, the Cas. though triable summarily, was tried as regular summons Cas. .",audio_5_114.mp3 +23. The procedure for trial of summons Cas. by magistrates is Inc. in chapter xx of the Cr.P.C. . S. 251 crpc provides,audio_5_115.mp3 +"that when in a summons Cas. , the accused appears or is brought before the magistrate, the particulars of the offence of which he is accused",audio_5_116.mp3 +"shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be",audio_5_117.mp3 +necessary to frame a formal charge. 24. S. 252 crpc deals with conviction on plea of guilty. 25. S. 253 crpc deals with conviction on,audio_5_118.mp3 +"plea of guilty in absence of accused in petty cases. 26. As in this Cas. , after serving of notice under S. 251 crpc, the accused",audio_5_119.mp3 +"pleaded not guilty and claimed trial, now we are concerned with the procedure i.e. required to be followed when the accused is not convicted",audio_5_120.mp3 +"under S. 252 or 253 of Cr.P.C. . The procedure is prescribed under S. 254 of Cr.P.C. , which reads as",audio_5_121.mp3 +"under : '254. Procedure when not convicted. - (1) if the magistrate does not convict the accused under S. 252 or S. 253, the magistrate",audio_5_122.mp3 +"shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the",audio_5_123.mp3 +"accused and take all such evidence as he produces in his defence. (2) the magistrate may, if he thinks fit, on the Appl. of the",audio_5_124.mp3 +"prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing. (3) a magistrate",audio_5_125.mp3 +"may, before summoning any witness on such Appl. , require that the reasonable expenses of the witness incurred in attending for the purposes of the trial",audio_5_126.mp3 +"be deposited in court.' 27. The learned magistrate was bound to record the witnesses, if any, produced by the complainant, hear the accused and examine",audio_5_127.mp3 +"the witnesses whom the accused wanted to produce in his defence. The words used in S. 254 crpc that ""magistrate shall proceed to hear the",audio_5_128.mp3 +"prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such",audio_5_129.mp3 +"evidence as he produces in his defence"" makes it clear that a duty is cast on the magistrate to hear the accused after the prosecution",audio_5_130.mp3 +evidence was closed. The purpose behind is to enable the accused to explain the circumstances appearing in the prosecution evidence against him. The requirement to,audio_5_131.mp3 +hear the accused is for the purpose to ask the accused what he has to say in hisajay jain vs. purshottam nath jain & sons,audio_5_132.mp3 +"(huf) on 4 february, 2013",audio_5_133.mp3 +"Duty of the magistrate to hear the accused on every circumstance appearing in evidence against him. Not only that, the accused is required to be",audio_5_134.mp3 +"examined under this S. and if he offers to lead evidence, the same has to be recorded. 28. From the above, it is clear that",audio_5_135.mp3 +"not only S. 263(g) crpc (if the Cas. is tried summarily) but also under S. 254 crpc (if it is a summons trial), a duty",audio_5_136.mp3 +"is cast upon the magistrate to examine the accused. 29. In rajesh agarwal's Cas. (supra), this court has not dispensed with the examination of the",audio_5_137.mp3 +accused. The learned trial court has preferred to just concentrate on para 17 of the report wherein steps required to be taken are mentioned. First,audio_5_138.mp3 +"of all, in para 17 of the report, it has nowhere been specified that after the stage of S. 145(2) of ni act is over,",audio_5_139.mp3 +"the statement of accused is dispensed with. Secondly, in para 8 of the report, it was recorded that □normally the first date is wasted by",audio_5_140.mp3 +"the courts of mm just by taking bail bond of the accused and passing a bail order, while S. 251 & 263(g) of code of",audio_5_141.mp3 +"Crl. procedure provide that when the accused appears before mm in a summary trial proceedings, the particulars of the offence, to which he is accused,",audio_5_142.mp3 +shall be stated to him & he should be asked whether he pleads guilty or he has any defence to make. This is the mandate,audio_5_143.mp3 +"of S. 143 of n.i. Act, which provides summary trial of offence in terms of Cr.P.C. under S. 263(g) of code of",audio_5_144.mp3 +"Crl. procedure , the court has to record the plea of the accused and his examination.' 30. Chapter xx of Cr.P.C. prescribes",audio_5_145.mp3 +"procedure for summons trial cases. Under S. 251 crpc, when the accused appears before the magistrate, particulars of the offence for which he is an",audio_5_146.mp3 +"accused, are required to be explained to him. It is the duty of the court to question the accused whether he pleads guilty or has",audio_5_147.mp3 +any defence to make. S. 254 crpc contemplates the necessity of the magistrate to hear the accused and record the defence evidence. 31. Reverting to,audio_5_148.mp3 +"the facts of the present Cas. , proceedings of the trial court reveal that at the stage of serving notice under S. 251 crpc, he was",audio_5_149.mp3 +only questioned to the extent as to whether he plead guilty or claim trial and not on the aspect as to what defence he has,audio_5_150.mp3 +"to make. The answer given by the accused to the notice is to the effect that ""i plead guilty and claim trial"". 32. In the",audio_5_151.mp3 +"proceedings dated 15.04.2011, the learned trial court, while dispensing with statement of accused, observed that Aff. tendered in evidence by the complainant was duly explained",audio_5_152.mp3 +"to accused after serving notice under S. 251 crpc. However, the proceeding dated 28.05.2009 only speaks of □accusation explained€ and not evidence by way of",audio_5_153.mp3 +"Aff. . Even while questioning the accused, he was not asked what defence he has to make. Thus, right from the stage of serving of notice",audio_5_154.mp3 +"till final arguments, he was not questioned about his defence. It was a Cas. of □stop payment€ and it was necessary to record his plea",audio_5_155.mp3 +"in defence. 33. Worst part of the procedure followed by learned trial court is that at that stage of serving notice under S. 251 crpc,",audio_5_156.mp3 +"except questioning him and recording his answer in the manner, extracted above, till the stage of listing the Cas. for final arguments, accused has not",audio_5_157.mp3 +been given any opportunity to explain what defence he has to make or the circumstances appearing against him.ajay jain vs. purshottam nath jain & sons,audio_5_158.mp3 +"(huf) on 4 february, 2013",audio_5_159.mp3 +"Witness was summoned, but accused alongwith proxy counsel was also present but due to inability of the proxy counsel to examine the defence witness as",audio_5_160.mp3 +"he was a new entrant to the profession, the learned trial court preferred to discharge the defence witness and close defence evidence. If learned trial",audio_5_161.mp3 +"court was of the view that witness was formal pertaining to record and he was present alongwith the record, even the court could have taken",audio_5_162.mp3 +the pain by questioning the accused as to on what aspect the witness was to be examined and then could have recorded the statement. As,audio_5_163.mp3 +"if this is not the end of the misery of the petitioner, his prayer to recall the defence witnesses for examination and the plea by",audio_5_164.mp3 +"his counsel explaining his ailment to be the reason for his absence on the date when the defence witnesses, though present, defence evidence was closed,",audio_5_165.mp3 +"were not considered to prevent miscarriage of J. which has already been done to the accused. Of course, it was not within the power of",audio_5_166.mp3 +"the accused to ask his counsel to support the Appl. under S. 311 crpc by his medical certificate and if the court really desired so,",audio_5_167.mp3 +he could have directed learned defence counsel to file his own medical certificate if the genuineness of the ground due to which learned defence counsel,audio_5_168.mp3 +"could not appear, was not found convincing by learned trial court. Thus, the trial was conducted in a manner that accused was virtually rendered defence",audio_5_169.mp3 +less despite his efforts to produce defence witnesses. 34. Only one opportunity was given to the accused to lead defence evidence. The petitioner/accused took steps,audio_5_170.mp3 +for examining defence witness from hdfc bank. Witness was present but non-availability of the defence counsel on the ground of illness should have been considered,audio_5_171.mp3 +"by the court. On the very first date fixed for defence evidence, instead of passing harsh order by closing the defence evidence despite the defence",audio_5_172.mp3 +"witness being present in the court, for just decision of the Cas. , at least the prayer of the petitioner/accused to recall the defence witness should",audio_5_173.mp3 +have been considered by the learned magistrate. 35. This Cas. could be only a tip of an iceberg as learned trial court must be following,audio_5_174.mp3 +this procedure in all the cases under S. 138 ni act being tried by him by not recording the plea as to what defence he,audio_5_175.mp3 +"has to make and statement of accused thereby causing grave prejudice to the accused persons, thus resulting in serious miscarriage of J. which causes serious",audio_5_176.mp3 +concern in the mind of this court. I am rather pained to note that learned trial court neither cared to follow the procedure laid down,audio_5_177.mp3 +under negotiable instrument act and Cr.P.C. for conducting trial in such type of cases nor the guidelines laid down by this court,audio_5_178.mp3 +"in rajesh agarwal's Cas. which was, infact, meant for speedy disposal of cases under S. 138 ni act by the courts struggling with huge pendency",audio_5_179.mp3 +"of such cases. 36. In krishnan & anr. vs. . Krishnaveni & anr. Air 1997 SC 987, the apex court held that in exercise",audio_5_180.mp3 +"of its paramount power of continuance superintendence, the HC is justified in interfering with the order leading to miscarriage of J. and in setting",audio_5_181.mp3 +aside the order of the courts below. In Cas. of serious miscarriage of J. or abuse of the process of courts or where mandatory provisions,audio_5_182.mp3 +of law were not complied with and where HC feels that the inherent jurisdiction was to be exercised to correct the mistake committed by,audio_5_183.mp3 +the trial court that the extra ordinary inherent power under S. 482 crpc can be exercised.ajay jain vs. purshottam nath jain & sons (huf) on,audio_5_184.mp3 +"4 february, 2013",audio_5_185.mp3 +Be well founded. Learned trial court has overlooked the provisions of crpc prescribing procedure to be followed in conducting an inquiry into an offence punishable,audio_5_186.mp3 +under S. 138 ni act by following the procedure prescribed for summary trial/summon trial. Not only procedure prescribed for conducting the trial had been bid,audio_5_187.mp3 +"good by learned trial court, even the guidelines by this court in rajesh agarwal's Cas. prescribing the manner in which the trial is to be",audio_5_188.mp3 +"conducted in cases under S. 138 ni act, have been ignored. Accused cannot be made to suffer for lack of understanding of procedure required to",audio_5_189.mp3 +"be followed by the court of magistrate in such cases. In view of above situation, i am of the considered opinion that the order suffers",audio_5_190.mp3 +"from grave illegality and the same is liable to be set aside. 38. In view of above discussion, this is a fit Cas. for exercise",audio_5_191.mp3 +"of inherent power by this court under S. 482 crpc to meet the ends of J. . Accordingly, the order dated 15.04.2011 passed by learned trial",audio_5_192.mp3 +court to the effect that statement of accused is not required to be recorded and the subsequent proceedings in the trial are quashed. Learned trial,audio_5_193.mp3 +"court will proceed with the trial in accordance with the procedure prescribed by examining the accused and if the accused desires, to give him an",audio_5_194.mp3 +"opportunity to lead defence evidence. 39. With above observations, the petition stands disposed of. Copy of this order be sent to learned trial court for",audio_5_195.mp3 +"compliance. 40. Trial court record be also sent back. Parties are directed to appear before the trial court on 15.02.2013 pratibha rani, j february 04,",audio_5_196.mp3 +"2013 'st'ajay jain vs. purshottam nath jain & sons (huf) on 4 february, 2013",audio_5_197.mp3 +"Sri. Murali mohan vs. smt. B.s.uma on 17 december, 2021 1 cc.no.20964/2016 j the court of the xvi additional chief MM , bengaluru city dated:−",audio_6_1.mp3 +"this the 17th day of december, 2021 present: sri.s.b.handral, b.sc., l.l.b(spl)., xvi addl.c.m.m., bengaluru city. Judgment u/s 355 of Cr.P.C. , Cas. ",audio_6_2.mp3 +"No. : c.c.no.20964/2016 complainant : sri. Murali mohan, s/o. C.balu, aged about 33 years, r/at no.169, 43rd cross, 8th block, jayanagar, bangalore −560 070. Rep.",audio_6_3.mp3 +"By l.dayananda.,adv.,) − vs − accused : smt. B.s.uma, w/o. Late.sri.b.s.ramanath, aged about 53 years, r/at no.515, 10th main, bhcs layout, bangalore − 560 061.",audio_6_4.mp3 +"(rep. By sri. Narasimharaju, adv.,) Cas. instituted : 25.08.2016 offence complained : u/s 138 of n.i act of plea of accused : pleaded not guilty",audio_6_5.mp3 +"2 cc.no.20964/2016 j final order : accused is convicted date of order : 17.12.2021 judgmentsri. Murali mohan vs. smt. B.s.uma on 17 december, 2021",audio_6_6.mp3 +"Of the NI Act . 2. Briefly stated the Cas. of the complainant is that, accused is known to him from the past 4 to",audio_6_7.mp3 +5 years and the accused have been introduced to him by h.krishna murthy who is the uncle of the accused and the accused often frequently,audio_6_8.mp3 +visiting to him for financial help and was sincerely repaying the loan amount taken from him and accused approached him on 9.1.2016 and requesting him,audio_6_9.mp3 +for a hand loan of rs.30 lakhs to meet her financial commitments and accused also promised him to repay the said loan amount within period,audio_6_10.mp3 +of two months and on 13.01.2016 the accused approached him and requested to pay an amount of rs.30 lakhs and after verifying the need of,audio_6_11.mp3 +the accused he has paid a sum of rs.30 lakhs to the accused on cc.no.20964/2016 j 13.01.2016 by way of cash and accused have admitted,audio_6_12.mp3 +and acknowledged the cash of rs.30 lakhs from him and after receipt of the said amount the accused promised him to return the amount within,audio_6_13.mp3 +"two months. The complainant further contends that, after two months he visited and demanded the payment of the loan amount on ie., 20.3.2016 and on",audio_6_14.mp3 +"that day the accused have issued a cheque bearing no.327551 dt: 20.3.2016 for a sum of rs.30 lakhs drawn on canara bank, padmanabhanagar branch, bangalore",audio_6_15.mp3 +"to him as a discharge and also assured him that, the said cheque will be honoured on its presentation and as per the assurance of",audio_6_16.mp3 +"the accused he presented the said cheque for several times, but the said cheque bounced back with instructions ""funds insufficient"" to honour the cheque, thereafter",audio_6_17.mp3 +"he visited the accused several times and intimated her regarding insufficient balance in her bank account, for that the accused requesting him for further extension",audio_6_18.mp3 +"of time for repayment and accused also assured him that, she will deposit sufficient amount in her bank balance to honour the cheque, believing the",audio_6_19.mp3 +"version of the cc.no.20964/2016 j accused, he waited for 3 months hoping that she will going to repay the amount, and as per the instructions",audio_6_20.mp3 +"of the accused he presented the cheque for encashment through his banker ie state bank of india, J. p.nagar branch, bangalore on 16.6.2016, but again",audio_6_21.mp3 +"it returned dishonoured as ""funds insufficient' and thereafter left with no other alternative, he got issued legal notice dt: 12.07.2016 through rpad calling upon her",audio_6_22.mp3 +"to pay the cheque amount and the said notice sent through rpad has been duly served on the accused on 13.7.2016, after service of legal",audio_6_23.mp3 +"notice the accused caused reply notice dt: 2.08.2016 denying the averments made in the demand notice, in order to cheat him the accused have joined",audio_6_24.mp3 +her hands with her uncle h.krishna murthy and his son to file false complaint against him and he will give fitting reply to his allegations,audio_6_25.mp3 +and there is no truth in that complaint and he appeared before the police and gave his version to the police. 3. The complainant further,audio_6_26.mp3 +"contends that, in order to cheat him by giving the reply notice stating cc.no.20964/2016 j that, the said h.krishna murthy had land transaction with one",audio_6_27.mp3 +"mruthyunjaya and the said mruthyunjaya has paid rs.20 lakhs to him on behalf of h.krishna murthy, but he is denied the said allegations as false",audio_6_28.mp3 +"and baseless, he has not received any amount either from mruthyanjaya or from h.krishnamurthy and has not received any amount of rs.4 lakhs from h.krishnamurthy",audio_6_29.mp3 +"in march 2016. 4. The complainant further contends that, the said krishna murthy has sold some of his property in sy.no.52/2, and 53/2 to one",audio_6_30.mp3 +"ramesh on 19.3.2015, but he is not the purchaser of the above said property and he is only a witness to the said transactions and",audio_6_31.mp3 +"he denied the contents of reply noticesri. Murali mohan vs. smt. B.s.uma on 17 december, 2021",audio_6_32.mp3 +"Accused's uncle for a valuable consideration, the said amount was paid by him to the accused's uncle ie., h.krishna murthy on 12.5.2015 and he further",audio_6_33.mp3 +"contends that, the purchase of land from h.krishna murthy is nothing to do with the loan amount of cc.no.20964/2016 j rs.30 lakhs taken by the",audio_6_34.mp3 +accused on 13.1.2016 and the accused along with her uncle krishnamurthy hatched a conspiracy with the help of police in order to cheat him and,audio_6_35.mp3 +has created a false grounds inorder to defeat his claim. Hence the complainant has filed this present complainant against the accused for the offence punishable,audio_6_36.mp3 +"u/s.138 of NI Act . 5. Before issuing process against the accused, the complainant has filed his Aff. €in€lieu of his sworn statement, in which, he",audio_6_37.mp3 +"has reiterated the averments of the complaint. In support of his oral evidence, p.w.1 has relied upon the documentary evidence as per ex.c.1 to c.8",audio_6_38.mp3 +"i.e,original cheque dt:20.03.2016 as per ex.c,1, the signature on the said cheque identified by p.w.1 is that of the accused as per ex.c.1(a) the bank",audio_6_39.mp3 +"memo as per ex.c.2, bank challan as per ex.c.3, the office copy of the legal notice as per ex.c.4, two receipts as per ex.c.5 and",audio_6_40.mp3 +"c.6, complaint settled reply as per ex.c.7, reply notice as per ex.c.8. Cc.no.20964/2016 j 6. Prima€facie Cas. has been made out against the accused and",audio_6_41.mp3 +summons was issued against the accused in turn she has appeared before the court and got enlarged on bail and the substance of the accusation,audio_6_42.mp3 +"has been read over to her, to which she pleaded not guilty and claims to be tried. 7. The complainant himself examined as pw.1 and",audio_6_43.mp3 +filed his Aff. in lieu of examination in chief and has produced as many as 8 documents and marked as ex.c.1 to c.8 and complainant,audio_6_44.mp3 +"has also examined his father by name sri.c.balu s/o.changa reddy as pw.2 and has produced documents ie., certified copy of the deed of transfer of",audio_6_45.mp3 +"membership dt: 24.02.2014 as per ex.p.9, statement of accounts for the period from 01.01.2014 to 31.05.2014 as per ex.p.10 and the complainant also got marked",audio_6_46.mp3 +the certified copy of the final report in crime no.124/16 as per ex.p.11 and closed his side. 8. Thereafter the statement of the accused as,audio_6_47.mp3 +required under sec.313 of the Cr.P.C. has been recorded. She has denied the incriminating evidence cc.no.20964/2016 j appearing against her and has,audio_6_48.mp3 +"chosen to lead her rebuttal evidence, subsequently the accused herself examined as dw1 and has not produced any documents by the accused and one h.krishna",audio_6_49.mp3 +"murthy is examined as dw.2 has produced certified copy of the FIR , complaint, charge sheet and other related documents as per ex.d.1,",audio_6_50.mp3 +"certified copy of the renewal rental agreement as per ex.d.2, certified copies of the sale deeds dt: 12.05.2015 and 19.03.2015 as per ex.d.3 and d.4,",audio_6_51.mp3 +"attested copy of the statement of accounts of icici bank dt: 31.1.2015, 31.07.2015, 31.10.2015, 31.01.2016, 1.05.2016 and 31.07.2016 as per ex.d.5 to d.10 respectively and",audio_6_52.mp3 +closed her side. 9. Heard the arguments by learned counsel for the complainant and accused and perused the materials on record and perused the decisions,audio_6_53.mp3 +"relied upon by the learnedsri. Murali mohan vs. smt. B.s.uma on 17 december, 2021",audio_6_54.mp3 +1) air 2019 SC 2446 - bir singh vs. Mukesh kumar 2) air 2019 SC 1876€rohitbhai jivanlal patel vs. State of gujarat and,audio_6_55.mp3 +"anr., cc.no.20964/2016 j the decisions relied upon by the learned counsel for the accused ie. 1) 2015 air (Crl. ) 36 SC € k.subramani vs. ",audio_6_56.mp3 +".. K.damodar naidu 2) 2016(2) akr 419€ prabhakr murthy vs. G.shankaraiah 10. On the basis of complaint, evidence of complainant and documents and having heard",audio_6_57.mp3 +"the arguments of both learned counsels for the complainant and the accused, the following points that are arise for consideration are:€ 1. Whether the complainant",audio_6_58.mp3 +"proves that the accused has issued cheque bearing no.327551 dt: 20.03.2016 for an amount of rs.30 lakhs drawn on canara bank, padmanabhanagar, bangalore to discharge",audio_6_59.mp3 +legally recoverable debt to the complainant and when the complainant has presented the above said cheques for encashment through his banker but the said cheques,audio_6_60.mp3 +"have been dishonoured for the reasons ""funds insufficient"" on 16.6.2016 and the complainant issued legal notice to the accused on 12.07.2016 and inspite of it",audio_6_61.mp3 +the accused has not paid the cheques amount within prescribed period cc.no.20964/2016 j there by the accused has committed an offence u/s.138 of the negotiable,audio_6_62.mp3 +instruments act? 2. What order? 11. The above points are answered as under: point no.1: in the affirmative point no.2:as per final order for the,audio_6_63.mp3 +"following: reasons 12. Point no.1: before appreciation of the facts and oral and documentary evidence of the present Cas. , it is relevant to mention that",audio_6_64.mp3 +"under Crl. jurisprudence prosecution is required to establish guilt of the accused beyond all reasonable doubts however, a proceedings u/s.138 of n.i.act is quasi Crl. ",audio_6_65.mp3 +"in nature. In these proceedings proof beyond all reasonable doubt is subject to presumptions as envisaged u/s.118, 139 and 136 of n.i.act. An essential ingredient",audio_6_66.mp3 +"of S. 138 of n.i.act is that, whether a person issues cheque to be encashed and the cheque so issued is towards payment of debt",audio_6_67.mp3 +"or liability and if it is returned as unpaid for want of funds, then the person issuing cc.no.20964/2016 j such cheque shall be deemed to",audio_6_68.mp3 +have been committed an offence. The offence u/s.138 of n.i. Act pre€supposes three conditions for prosecution of an offence which are as under: 1. Cheque,audio_6_69.mp3 +"shall be presented for payment within specified time i.e., from the date of issue or before expiry of its validity.sri. Murali mohan vs. smt. B.s.uma",audio_6_70.mp3 +"on 17 december, 2021",audio_6_71.mp3 +One month from the date of receipt of information of the bounced cheque and 3. The drawer inspite of demand notice fails to make payment,audio_6_72.mp3 +within 15 days from the date of receipt of such notice. If the above said three conditions are satisfied by holder in due course gets,audio_6_73.mp3 +"cause action to launch prosecution against the drawer of the bounced cheque and as per sec.142(b) of the n.i. Act, the complaint has to be",audio_6_74.mp3 +filed within one month from the date on which cause of action arise to file complaint. Cc.no.20964/2016 j 13. It is also one of the,audio_6_75.mp3 +"essential ingredients of S. 138 of n.i.act that, a cheque in question must have been issued towards legally recoverable debt or liability. S. 118 and",audio_6_76.mp3 +"139 of n.i.act envisages certain presumptions i.e., u/s.118 a presumption shall be raised regarding 'consideration' 'date' 'transfer' 'endorsement' and holder in course of negotiable instrument.",audio_6_77.mp3 +"Even sec.139 of the act are rebuttable presumptions shall be raised that, the cheque in question was issued regarding discharge of a legally recoverable or",audio_6_78.mp3 +"enforceable debt and these presumptions are mandatory presumptions that are required to be raised in cases of negotiable instrument, but the said presumptions are not",audio_6_79.mp3 +"conclusive and rebuttable one, this proportion of law has been laid down by the Hon'ble apex court of india and Hon'ble HC of karnataka",audio_6_80.mp3 +in catena of decisions. 14. In the present Cas. the complainant got examined as pw.1 by filing his Aff. evidence wherein he has reiterated the,audio_6_81.mp3 +"entire averments of the complaint and in his evidence testified that, accused cc.no.20964/2016 j is known to him from the past 4 to 5 years",audio_6_82.mp3 +and the accused have been introduced to him by h.krishna murthy who is the uncle of the accused and the accused often frequently visiting to,audio_6_83.mp3 +him for financial help and was sincerely repaying the loan amount taken from him and accused approached him on 9.1.2016 and requesting him for a,audio_6_84.mp3 +hand loan of rs.30 lakhs to meet her financial commitments and accused also promised him to repay the said loan amount within period of two,audio_6_85.mp3 +months and and on 13.01.2016 the accused approached him and requested to pay an amount of rs.30 lakhs and after verifying the need of the,audio_6_86.mp3 +accused he has paid a sum of rs.30 lakhs to the accused on 13.01.2016 by way of cash and accused have admitted and acknowledged the,audio_6_87.mp3 +cash of rs.30 lakhs from him and after receipt of the said amount the accused promised him to return the amount within two months. The,audio_6_88.mp3 +"complainant/pw.1 further testified that, after two months he visited and demanded the payment of the loan amount on 20.3.2016 on that day the accused have",audio_6_89.mp3 +"issued a cheque bearing no.327551 dt: 20.3.2016 for a sum of rs.30 lakhs cc.no.20964/2016 j drawn on canara bank, padmanabhanagar branch, bangalore and issued to",audio_6_90.mp3 +"him as a discharge and also the accused has assured him that, the said cheque will be honoured on its presentation and as per the",audio_6_91.mp3 +"assurance of the accused he presented the said cheque for several times, but the said cheque bounced back with instructions ""funds insufficient"" to honour the",audio_6_92.mp3 +"cheque. The pw.1/complainant further testified that, thereafter he visited the accused several times and intimated her regarding insufficient balance in her bank account, for that",audio_6_93.mp3 +"the accused requesting him for further extension of time for repayment and accused also assured him that, shesri. Murali mohan vs. smt. B.s.uma on 17",audio_6_94.mp3 +"december, 2021",audio_6_95.mp3 +"Accused, he waited for 3 months hoping that she will going to repay the amount, and as per the instructions of the accused he presented",audio_6_96.mp3 +"the cheque for encashment through his banker ie state bank of india, J. p.nagar branch, bangalore on 16.6.2016, but again it returned dishonoured as ""funds",audio_6_97.mp3 +"insufficient' and thereafter left with no other alternative, he got issued legal cc.no.20964/2016 j notice dt: 12.07.2016 through rpad calling upon her to pay the",audio_6_98.mp3 +"cheque amount and the said notice sent through rpad has been duly served on the accused on 13.7.2016, after service of legal notice the accused",audio_6_99.mp3 +"caused reply notice dt: 2.08.2016 denying the averments made in the demand notice, in order to cheat him the accused have joined her hands with",audio_6_100.mp3 +her uncle h.krishna murthy and his son to file false complaint against him and he will give fitting reply to his allegations and there is,audio_6_101.mp3 +"no truth in that complaint and he appeared before the police and gave his version to the police. 15. The pw.1/complainant further testified that, in",audio_6_102.mp3 +"order to cheat him by giving the reply notice stating that, the said h.krishna murthy had land transaction with one mruthyunjaya and the said mruthyunjaya",audio_6_103.mp3 +"has paid rs.20 lakhs to him on behalf of h.krishna murthy, but he has denied the said allegations as false and baseless, he has not",audio_6_104.mp3 +received any amount either from mruthyanjaya or from h.krishnamurthy and has not received any amount of rs.4 lakhs from h.krishnamurthy in cc.no.20964/2016 j march 2016.,audio_6_105.mp3 +"16. The pw.1/complainant further testified that, the said krishna murthy has sold some of his property in sy.no.52/2, and 53/2 to one ramesh on 19.3.2015,",audio_6_106.mp3 +but he is not the purchaser of the above said property and he is only a witness to the said transactions and he denied the,audio_6_107.mp3 +"contents of reply notice and he submits that, he has purchased 26 □ guntas of land in sy.no.106/1, and 106/2, from the accused's uncle for",audio_6_108.mp3 +"a valuable consideration, the said amount was paid by him to the accused's uncle ie., h.krishna murthy on 12.5.2015 and he further contends that, the",audio_6_109.mp3 +purchase of land from h.krishna murthy is nothing to do with the loan amount of rs.30 lakhs taken by the accused on 13.1.2016 and the,audio_6_110.mp3 +accused along with her uncle krishnamurthy hatched a conspiracy with the help of police in order to cheat him and has created a false grounds,audio_6_111.mp3 +"inorder to defeat his claim. 17. In support of his oral evidence, p.w.1 has relied upon the documentary evidence as per ex.c.1 cc.no.20964/2016 j to",audio_6_112.mp3 +"c.11 i.e,original cheque dt:20.03.2016 as per ex.c,1, the signature on the said cheque identified by p.w.1 is that of the accused as per ex.c.1(a) the",audio_6_113.mp3 +"bank memo as per ex.c.2, bank challan as per ex.c.3, the office copy of the legal notice as per ex.c.4, two receipts as per ex.c.5",audio_6_114.mp3 +"and c.6 , complaint settled reply as per ex.c.7, reply notice as per ex.c.8, certified copy of the deed of transfer of membership dt: 24.02.2014",audio_6_115.mp3 +"as per ex.p.9, statement of accounts for the period from 01.01.2014 to 31.05.2014 as per ex.p.10, certified copy of the final report in crime no.124/16",audio_6_116.mp3 +"as per ex.p.11. 18. In the present Cas. , there is dispute between the complainant and accused with regard to their acquittance. It is not in",audio_6_117.mp3 +"dispute by the accused that, the cheque in question ie ex.c.1 belongs to her account and signature found at ex.c.1(a) is that of her signature.",audio_6_118.mp3 +"The accused has also not disputed that, the cheque in question was presented to the encashment within its validity period and the saidsri. Murali mohan",audio_6_119.mp3 +"vs. smt. B.s.uma on 17 december, 2021",audio_6_120.mp3 +"Cc.no.20964/2016 j memo dt: 16.6.2016 issued by the concerned bank i.e ex.c.2, hence as a matter on record it is proved by the complainant that,",audio_6_121.mp3 +the cheque in question was dishonoured for the reason of funds insufficient. The complainant in order to prove the service of legal notice has produced,audio_6_122.mp3 +"copy of the legal notice dt: 12.07.2016, postal receipts, settled reply issued by the postal Dept. , reply notice dt: 2.08.2016 given by the accused, postal",audio_6_123.mp3 +"acknowledgement which are at ex.c.4 to c.8 respectively. Hence, the legal notice caused by the complainant is within 30 days from the date of receipt",audio_6_124.mp3 +"of the endorsement from the concerned bank and same was sent through rpad and it was duly served on the accused. Hence, the complainant has",audio_6_125.mp3 +complied all the mandatory requirements as required u/s.138(a) to (c) of n.i.act and initial presumptions can be drawn in favour of the complainant as required,audio_6_126.mp3 +u/s.118 (a) and 139 of n.i.act. 19. The accused in her defence has denied the financial capacity of the complainant and also the transaction in,audio_6_127.mp3 +question and issuance of the cheque cc.no.20964/2016 j in favour of the complainant. The complainant in order to prove his financial capacity has produced certified,audio_6_128.mp3 +"copy of the sale deed dt: 24.02.2014 executed by his father in favour of one sri.c.a.jacob for sale consideration of rs.36,15,000/€. It is the specific",audio_6_129.mp3 +"Cas. of the complainant that, the accused approached him on 09.01.2016 and requested him for hand loan of rs.30 lakhs for her financial commitment and",audio_6_130.mp3 +after verifying the need of the accused he has paid the same on 13.1.2016 by way of cash and accused agreed to return the said,audio_6_131.mp3 +amount within two months. The accused during the course of cross examination has questioned the financial capacity of the complainant and the complainant in his,audio_6_132.mp3 +"cross examination has stated that, the accused approached him seeking loan of rs.30 lakhs on 09.01.2016 and in the year 2014 they had sold one",audio_6_133.mp3 +flat situated in jayanagar 4th t block which was in the name of his father for about rs.36 to 38 lakhs and received the said,audio_6_134.mp3 +consideration amount through cheque and the said amount was deposited in the account of his father in karnataka bank and his cc.no.20964/2016 j father had,audio_6_135.mp3 +withdrawn the amount from his account in the year 2014 and gave him the amount in january 2016 for the purpose of lending it to,audio_6_136.mp3 +"the accused. 20. In order to prove the fact that, the father of the complainant had given rs.30 lakhs to him , the complainant examined",audio_6_137.mp3 +"his father by name sri.c.balu as pw.2 and the pw.2 in his evidence stated that, complainant is his son and on 24.02.2014 he have sold",audio_6_138.mp3 +"his property bearing flat No. a003 in spartacus apartment situated at jayanagar 4th t block in favour of Mr. c.a.jacob for rs.36,15,000/€ and has received",audio_6_139.mp3 +the said consideration amount by way of cheque by depositing the same in his bank account ie karnataka bank ltd. Jayanagar on 28.12.2014 and after,audio_6_140.mp3 +encashment of the said cheque he have withdrawn the amount on 03.03.2014 to purchase other property but the said transaction was not materialized so he,audio_6_141.mp3 +retained the said amount in his house and thereafter on 13.01.2016 the accused came to his house along with her uncle krishna cc.no.20964/2016 j murthy,audio_6_142.mp3 +and brother kumaraswamy and requesting the complainant to pay amount of rs.30 lakhs to meet her requirements and his son complainant has requested to pay,audio_6_143.mp3 +a sum of rs.30 lakhs to him as the accused has agreed to return the amount within 2 months considering the request madesri. Murali mohan,audio_6_144.mp3 +"vs. smt. B.s.uma on 17 december, 2021",audio_6_145.mp3 +"His evidence has produced the certified copy of the registered sale deed dt: 24.02.2014 and bank statement issued by karnataka bank ltd., jayanagar which are",audio_6_146.mp3 +"at ex.p.9 and p.10 respectively. The perusal of ex.p.9 it appears that, the father of the complainant ie pw.2 has sold his flat for sum",audio_6_147.mp3 +"of rs.36,15,000/€ in fvour of one mr. C.a.jacob and the sale consideration amount was paid by way of cheque in favour of the father of",audio_6_148.mp3 +"the complainant ie pw.2 and the perusal of ex.p.10 it appears that, the sale consideration amount of rs.36,15,000/€ received by the pw.2 was deposited to",audio_6_149.mp3 +"his account as shown in the ex.p.10 ie bank statement pertains to the karnataka bank ltd. Jayanagar branch, of pw.2. Hence, on careful perusal of",audio_6_150.mp3 +"the oral and documentary evidence of the cc.no.20964/2016 j complainant and his father and ex.p.9 and p.10 makes it clear that, the father of the",audio_6_151.mp3 +"complainant has sold his flat for sum of rs.36,15,000/€ during the year 2014 and the said amount was deposited in the account of pw.2. And",audio_6_152.mp3 +"the pw.2 has categorically stated that, he had withdrawn the amount from his bank for the purpose of purchasing other property but same was not",audio_6_153.mp3 +"materialized and has retained the said amount in his house and subsequently paid to his son ie., complainant and in turn he has paid the",audio_6_154.mp3 +said amount to the accused. 21. The accused has cross examined the complainant ie pw.1 and his father ie pw.2 in length but nothing has,audio_6_155.mp3 +"been elicited from them to discard their version that, the father of the complainant ie pw.2 has sold his flat in the year 2014 as",audio_6_156.mp3 +"per ex.p.9 and received sale consideration amount of rs.36,15,000/€ by way of cheque. It is true that, the learned counsel for the accused during the",audio_6_157.mp3 +"course of argument vehemently argued that, the father of the complainant has sold his property in the year 2014 and the alleged loan amount lend",audio_6_158.mp3 +"to cc.no.20964/2016 j the accused as per the complainant is on 13.1.2016, therefore according to the father of the complainant he has withdrawn the amount",audio_6_159.mp3 +from the bank in the year 2014 and the said amount was retained in his house since 2014 to 2016 and the said amount was,audio_6_160.mp3 +"paid in the year 2016 to the accused , but same cannot be acceptable one as no layman can retain the huge cash amount of",audio_6_161.mp3 +"rs.36,15,000/€ in the house for a period of two years that too for paying the same to the accused but the line of argument can",audio_6_162.mp3 +"be acceptable only when in the absence of evidence of the father of the complainant , but the father of the complainant has specifically stated",audio_6_163.mp3 +"that, the said amount was withdrawn by him for the purpose of purchasing of other property but the same was not materialized so he retained",audio_6_164.mp3 +"the said amount in his house, in such circumstances unless and until the evidence of pw.2 is tainted with suspicious version , the evidence of",audio_6_165.mp3 +"pw.2 cannot be discarded. The perusal of cross examination of the pw.2 though he has admitted that, he has not given information to his Adv. ",audio_6_166.mp3 +to prepare his Aff. filed on his behalf and does not cc.no.20964/2016 j know the contents of the Aff. but he has specifically denied the,audio_6_167.mp3 +"suggestion made to him that, for the first time that too before the court he had seen the accused but the pw.2 specifically stated that,",audio_6_168.mp3 +"he had seen the accused when she was came to his house in the month of january 2016. The pw.2 has also stated that, he",audio_6_169.mp3 +had sold his flat in the month of february 2014 for sum of rs.36 lakhs and has received sale consideration amount by way of cheque,audio_6_170.mp3 +and had withdrawn the entire amount from his bank account in the month of march 2014 for purchase of other property as he has not,audio_6_171.mp3 +"found suitable property, hence retained the entire amount in his house for a period of two years. The pw.2 has also stated that, in the",audio_6_172.mp3 +"month of january 2016 the accused approached and requested the loan amount. It is true that, the pw.2 admitted that, he has not verified the",audio_6_173.mp3 +financial capacity of the accused either directly with the accused or to his son and at the time of lending the amount to the accused,audio_6_174.mp3 +"no documents weresri. Murali mohan vs. smt. B.s.uma on 17 december, 2021",audio_6_175.mp3 +"Paid to the accused, atleast they would cc.no.20964/2016 j have obtained the necessary documents from the accused and falsely deposing that, he has retained rs.36",audio_6_176.mp3 +"lakhs in his house for a period of two year. Hence, on entire perusal of cross examination of pw.2 nothing has been elicited from him",audio_6_177.mp3 +"to discard his evidence to the extent that, he has sold his flat as per ex.p.9 in favour of one Mr. c.a. Jacob for rs.36,15,000/€",audio_6_178.mp3 +and in turn has received the said amount by way of cheque and subsequently he has withdrawn the entire amount from his bank account and,audio_6_179.mp3 +"in turn has paid an amount of rs.30 lakhs to his son. 22. In addition to the above, the accused during the course of cross",audio_6_180.mp3 +"examination of the complainant has suggested that, complainant doing money lending business by charging more than 10% interest per month and also suggested that, the",audio_6_181.mp3 +complainant has lent loan amount to the uncle of accused by name krishna murthy and charged interest of 10% and the accused has also examined,audio_6_182.mp3 +"her uncle by name h.krishna murthy as dw.2 who in his evidence has stated that, he has received an cc.no.20964/2016 j amount of rs.25 lakhs",audio_6_183.mp3 +"from the complainant during the year 2012€13, hence it goes to show that, according to the accused the complainant doing money lending business and during",audio_6_184.mp3 +"the year 2012€ 13 her uncle has received rs.25 lakhs from the complainant but the accused has not produced any documents to show that, complainant",audio_6_185.mp3 +is doing money lending business by lending the loan amount on interest at 10% but the fact of receiving of loan amount by her uncle,audio_6_186.mp3 +"remained as it is , in such circumstances when the accused herself admitted that, her uncle has received rs.25 lakhs from the complainant during the",audio_6_187.mp3 +"year 2012€13, now the accused cannot be permitted to question the financial capacity of the complainant on the contrary the accused herself admitted the financial",audio_6_188.mp3 +"capacity of the complainant by admitting that, her uncle has received rs.25 lakhs from the complainant during the year 2012€13 itself , in such circumstances",audio_6_189.mp3 +what ever the cross examination made on behalf of the accused with regard to financial capacity of the complainant is of no relevancy and cannot,audio_6_190.mp3 +be acceptable one. Cc.no.20964/2016 j 23. The accused has cross examined the complainant and his father ie pw.1 and pw.2 in length but nothing has,audio_6_191.mp3 +"been elicited in their cross examinations to disbelieve or discredit their evidence. It is true that, the complainant has admitted in his cross examination that",audio_6_192.mp3 +"at the time of lending of the loan amount has not collected the documents from the accused but the complainant categorically stated that, the accused",audio_6_193.mp3 +has given him cheque after two months from the date of lending of loan to her ie when he went to demand for repayment of,audio_6_194.mp3 +"the loan amount. The complainant has denied the suggestions that, though he have not lent the any loan amount to the accused and except having",audio_6_195.mp3 +seen the accused only in the court and he never seen the accused and that the financial transaction only between krishna murthy and the complainant.,audio_6_196.mp3 +"The complainant has also denied the suggestion that, he used to lend loans to the krishna murthy at an interest of 10% and in respect",audio_6_197.mp3 +of his financial transaction with krishna murthy he had collected the cheque in dispute and house documents of the accused from the said krishna cc.no.20964/2016,audio_6_198.mp3 +j murthy and he demanded payment of excess interest from krishna murthy and in this regard he got transferred two of his properties in his,audio_6_199.mp3 +"name and got executed a sale deed dt: 12.05.2016 from krishna murthy towards payment of interest. The pw.1 has also denied the suggestion that, on",audio_6_200.mp3 +"04.04.2016 he visited the house of krishna murthy andsri. Murali mohan vs. smt. B.s.uma on 17 december, 2021",audio_6_201.mp3 +"Attempted to commit suicide in his house. The pw.1 has also denied the suggestion that, apart from the cheque in question has also collected a",audio_6_202.mp3 +signed blank stamp paper of rs.100/€ from the accused through her uncle at the time of lending the loan to her and on the basis,audio_6_203.mp3 +of signed blank stamp paper he have got filed false suit against the accused through her friend one hemanth.d by creating rental agreement in the,audio_6_204.mp3 +said stamp paper by becoming as a one of the witness to the said rental agreement. Therefore on entire perusal of cross examination of pw.1,audio_6_205.mp3 +nothing has been elicited to discard or discredit the evidence of the pw.1 or accept the defence of the accused. Cc.no.20964/2016 j 24. It is,audio_6_206.mp3 +"true that, the complainant during her cross examination has admitted that, neither his father nor himself have declared in their IT returns about having",audio_6_207.mp3 +"allegedly advanced the loan amount to the accused but the complainant stated that, he is not an IT assessee, therefore mere admitting the fact",audio_6_208.mp3 +"that, neither himself nor his father have declared in their IT returns about lending of loan amount in question may in validates the transaction",audio_6_209.mp3 +"in question or not is to be taken into consideration. In this regard, it is necessary here to refer the decision of our Hon'ble high",audio_6_210.mp3 +court of karnataka reported in 2019(1) kar. L.r.185 in the Cas. of sri.yogesh poojary vs. Sri.k.shankara bhat in the said Cas. the Hon'ble HC ,audio_6_211.mp3 +"of karnataka held that "" NI Act , 1881 - Ss. 138 and 139 -endorsement 'payment stopped by drawer' - the trial court in the",audio_6_212.mp3 +"instant Cas. , merely considered a suggestion made from the accused side in the cross€ examination of pw€1 that the complainant was an IT assessee",audio_6_213.mp3 +"and that he has not cc.no.20964/2016 j declared the alleged loan transaction in his returns and disbelieved the Cas. of the complainant that too, ignoring",audio_6_214.mp3 +"that legal presumption under S. 139 of the n.i. Act, was operating in favour of the complainant€ for these reasons, it has to be held",audio_6_215.mp3 +"that the complainant has beyond reasonable doubt proved the guilt of the accused punishable under S. 138 of the n.i. Act. As such, the impugned",audio_6_216.mp3 +judgment of acquittal passed by the trial court deserves to be set aside and respondent/accused is liable to be convicted for the offence punishable under,audio_6_217.mp3 +S. 138 of the n.i. Act. Hence in view of the principles of law laid down by the Hon'ble HC of karnataka in the,audio_6_218.mp3 +"above referred decision, in the present Cas. the complainant has admitted that, neither himself nor his father have declared in their i.t. Returns in respect",audio_6_219.mp3 +"of lending of loan amount to the accused, however, as it is already held in the above that, the complainant has discharged his primary burden",audio_6_220.mp3 +"by cc.no.20964/2016 j complying the mandatory provisions of sec.138 of n.i. Act, therefore it is for the accused to rebut the presumption existing infavour of",audio_6_221.mp3 +"the complainant u/s.139 of NI Act . Apart from that, the admissions of the complainant with regard to non declaration of the loan transaction in",audio_6_222.mp3 +"question in his or his father's i.t. Returns, could not by itself draw an adverse inference and to hold that, there was no existence of",audio_6_223.mp3 +legally enforceable debt or the presumption as envisaged u/s.139 of n.i.act is successfully rebutted by the accused. In Anr. decision of Hon'ble madhya pradesh high,audio_6_224.mp3 +"court decided in c.r.r no.5263/2018 dated: 7.3.2019 in the Cas. of smt. Ragini gupta vs. Piyush dutt sharma gwalior., wherein the Hon'ble HC held",audio_6_225.mp3 +"that, ""mere non filing of IT return would not automatically dislodge the source of income of the complainant and non payment of IT ",audio_6_226.mp3 +"is a matter between the revenue and assessee and if the assessee has not disclosed his income in the IT return, then the income",audio_6_227.mp3 +"tax Dept. is well cc.no.20964/2016 j within its right to reopen the assessment of income ofsri. Murali mohan vs. smt. B.s.uma on 17 december, 2021",audio_6_228.mp3 +"Tax return by itself would not mean that, the complainant had no source of income and thus no adverse inference can be drawn in this",audio_6_229.mp3 +"regard only because of absence of IT return"". Hence in view of the principles of law laid down by Hon'ble HC of madya",audio_6_230.mp3 +"pradesh in the above said decision in the present Cas. also though the complainant has admitted that, neither himself nor his father have declared in",audio_6_231.mp3 +"their i.t. Returns in respect of lending of loan amount to the accused, that itself would not automatically dislodge the source of income of the",audio_6_232.mp3 +"complainant. Therefore the admissions of the complainant which are elicited in his cross€ examination are not helpful for the accused to prove her defence that,",audio_6_233.mp3 +"in view of non declaration of lending of loan amount IT documents, by the complainant that itself sufficient to hold that, the complainant has",audio_6_234.mp3 +failed to prove the transaction in cc.no.20964/2016 j question cannot be acceptable one. 25. It is suggested by the accused during the course of cross,audio_6_235.mp3 +"examination of the complainant that, he have filled up the amount in words and figures in the cheque in dispute and forged the signature of",audio_6_236.mp3 +the accused in it and presented the same before the court but the said suggestions were denied by the complainant. It is also admitted by,audio_6_237.mp3 +"the complainant that, has no objection in referring the cheque in dispute to the handwriting expert in respect of the amount written in words and",audio_6_238.mp3 +figures in it but though the complainant has admitted has no objection for referring the cheque in dispute to the hand writing expert but the,audio_6_239.mp3 +"accused has not made any efforts for referring the cheque in question to the handwriting expert, therefore the conduct of the accused in denial of",audio_6_240.mp3 +"contents of the cheque and signature on the cheque and though the complainant admitted that, has no objection for referring the cheque in dispute for",audio_6_241.mp3 +"hand writing expert, despite of it the accused has not made any efforts to that effect appears that, the accused has formally denied the cc.no.20964/2016",audio_6_242.mp3 +"j contents of the cheque in question and her signature on the cheque. It is also relevant here to mention that, the accused in her",audio_6_243.mp3 +"reply notice ie., ex.c.8 has categorically admitted that, her uncle by name sri.h.krishna murthy wanted to borrow rs.25 lakhs for his business purpose and requested",audio_6_244.mp3 +her to hand over her property papers as security to the loan accordingly she has handed over the original title deeds to her uncle along,audio_6_245.mp3 +"with the property papers the complainant has also collected a blank signed cheque and a blank stamp paper . Hence, it goes to show that,",audio_6_246.mp3 +"the accused in her reply has categorically admitted that, the complainant had collected her blank signed cheque from her uncle therefore in view of the",audio_6_247.mp3 +"said admission it can be held that, the accused has admitted that, the cheque in question belongs to her account and signature found at ex.p.1(a)",audio_6_248.mp3 +"is that of her signature, in such circumstances it cannot be held that, the cheque in question has been forged by the complainant and it",audio_6_249.mp3 +"can be held that, once signature on the negotiable instrument act is admitted, in that circumstances sec. 20 of n.i. Act comes into play i.e.",audio_6_250.mp3 +"As per S. 20 cc.no.20964/2016 j of n.i.act if the blank or incomplete negotiable instrument is given to the holder in due course, it is",audio_6_251.mp3 +"to be presumed that, she had given Auth. to the holder in due course to fill up the remaining portion. In this regard, it is",audio_6_252.mp3 +relevant here to refer the decision of Hon'ble HC of karnataka reported in ilr 2006 kar 2054 in the Cas. of h.s.srinivasa vs. Girijamma,audio_6_253.mp3 +"and Anr. wherein the Hon'ble HC held that "" a reading of sec.20 of the act which is extracted above reveals that, the words",audio_6_254.mp3 +used are ' either wholly blank or having written therein an incomplete negotiable instrument' . The instrument may be wholly blank or incomplete in a,audio_6_255.mp3 +"particular in either Cas. , the holder has Auth. to make or complete the instrument as a negotiable one. The Auth. implied by a signature to",audio_6_256.mp3 +"a blank instrument is so vide that, the party so signing is bound to be a holder insri. Murali mohan vs. smt. B.s.uma on 17",audio_6_257.mp3 +"december, 2021",audio_6_258.mp3 +"Afterwards filled by the actual cc.no.20964/2016 j holder, the object being to enable the owner to pass it off to Anr. without incurring the responsibility",audio_6_259.mp3 +"as an endorser. Thus, it is seen that, person in possession of an incomplete instrument in maternal particulars has the Auth. prima facie to fill",audio_6_260.mp3 +it and thus the executants becomes liable to pay the amount due'. In Anr. decision of Hon'ble HC of madras reported in 2005 (1),audio_6_261.mp3 +"dcr 85 in the Cas. of p.a.thamatharan vs. Dalmia cements (b) ltd., wherein it is held that "" negotiable instrument act 1991 - S. 138",audio_6_262.mp3 +"- dishonour of cheque - plea -body of cheque was not written by accused - held it is not mandatory and no law prescribes that,",audio_6_263.mp3 +"the body of cheque should also be written by the signatory to the cheque, a cheque could be filled up anybody and if it is",audio_6_264.mp3 +signed by the account holder of the cheque'. In Anr. decision reported in 1996 cri. L.J. 3099( guj) : 1997 ii crimes : 1997 (i),audio_6_265.mp3 +"ccr 603 wherein the Hon'ble HC held that ""no law provides cc.no.20964/2016 j that, in any Cas. of any negotiable instrument entire body has",audio_6_266.mp3 +"to be written by maker or drawer only"". It is further held that, "" when a cheque is admittedly issued blank are incomplete and there",audio_6_267.mp3 +"is no dispute regarding the signature, it can be presumed that, there is an implied consent for filling up the cheque as when required by",audio_6_268.mp3 +"holder and get it encashed. Complaint of dishonour of such cheque cannot be held to be beyond the scope of penal provisions of sec.138"". In",audio_6_269.mp3 +"Anr. decision of Hon'ble apex court to india reported in (2002) 7 scc in the Cas. of p.k. Manmadhan karthra vs.sanjeeva raj., wherein it is",audio_6_270.mp3 +"held that "" as long as signature on the cheque is admitted, whether the ink with which the other particulars are filled up is different",audio_6_271.mp3 +"or that the hand writing is not that of drawer does not matter. Until rebutted, the presumption that, cheque was issued for consideration exists"". In",audio_6_272.mp3 +Anr. decision of Hon'ble HC of karnataka at cc.no.20964/2016 j bengaluru in a Cas. of crl. Appeal No. 1664/2003 c/w. Crl. appeal no.1663/2003 dated:,audio_6_273.mp3 +"18.6.2008 in the Cas. of r.mallikarjuna vs. H.r.sadashivaiah wherein the Hon'ble HC at para no.19 held that "" but, the question is, whether that",audio_6_274.mp3 +"renders instrument unenforceable. In this regard, it must be observed that, this court similar circumstances in the Cas. of s.r. Muralidar vs. Ashok g.y. Reported",audio_6_275.mp3 +"in 3001 (4) kar. Lj k. 122 referring to the provisions of Ss. 20, 138, 139, and 140 of the act and after interpreting alteration",audio_6_276.mp3 +"and filling up of the cheque observed thus "" the trial court has made much about the difference in ink. Admittedly, accused cheque is issued",audio_6_277.mp3 +"bearing signature of the accused. It is the contention of the defence that, blank cheques issued for the business transactions have been illegally converted as",audio_6_278.mp3 +a subject matter to this Cas. fastening false liability........ It is not objectionable or illegal in law to receive a cc.no.20964/2016 j inchoate negotiable instrument,audio_6_279.mp3 +duly signed by the maker despite the material particulars are kept blank if done with an understanding and giving full Auth. to the payee to,audio_6_280.mp3 +fill up the material contents as agreed upon. Such a course of action in law cannot vitiate the transaction nor can invalidate the negotiable instrument,audio_6_281.mp3 +issued and such transaction fully begins the maker of the negotiable instrument to the extent it purports to declare........ The factsri. Murali mohan vs. smt.,audio_6_282.mp3 +"B.s.uma on 17 december, 2021",audio_6_283.mp3 +"Would not render such contract invalid nor make the instrument illegal or inadmissible. Voluntarily, if a person were to deliver an inchoate instrument authorizing the",audio_6_284.mp3 +"receiver to fill up the material contents as agreed upon, the cheque does not get tainted as in admissible nor it amounts to tampering with",audio_6_285.mp3 +"the material particulars...... In the present Cas. there is no categorical defence version, it is only by cc.no.20964/2016 j conjunctures and surmises, a Cas. is",audio_6_286.mp3 +made out from the difference in ink between the signature of the cheque and the other handwritten contents. Therefore in view of the principles of,audio_6_287.mp3 +"law of Hon'ble apex court of india and also Hon'ble HC of karnataka and madras referred above, in the present Cas. the accused has",audio_6_288.mp3 +"admitted the signature on negotiable instrument i.e. Cheque and she also admitted issuance of the cheque, it is prima€facie proof of authorizing the holder in",audio_6_289.mp3 +"due course i.e. The complainant to fill up the remaining contents of the negotiable instrument, therefore it cannot lie in the mouth of the accused",audio_6_290.mp3 +"that, the complainant had misused or fabricated the cheque in question given by her and the defence of the accused cannot be acceptable one as",audio_6_291.mp3 +"the instrument i.e., cheque in question cannot be rendered unenforceable merely because the contents have been filled by different ink, as it would not render",audio_6_292.mp3 +"such instrument illegal or inadmissible, the complainant certainly can base action on it. Therefore the defence of the accused that, the cc.no.20964/2016 j signature on",audio_6_293.mp3 +the subject cheque is not of her signature and has not filled up the contents of the cheque in question cannot be acceptable one. 26.,audio_6_294.mp3 +"In addition to the above, it is also relevant here to mention that, though the accused has denied the lending of loan amount by the",audio_6_295.mp3 +"complainant and financial capacity of the complainant and has taken specific defence that, the complainant has not produced the documents to show that, he has",audio_6_296.mp3 +lend the loan amount in question to her and the cheque in question has not been issued towards discharge of the debt in question. As,audio_6_297.mp3 +"it is already held in the above that, the complainant has complied the mandatory requirements as required u/s.138(a) to (c) n.i.act by producing oral and",audio_6_298.mp3 +"documentary evidence and the accused has also admitted that, the cheque in question belongs to her account and the signature found on cheque in question",audio_6_299.mp3 +"is that of the signature of the accused. It is also proved by the complainant that, the cheque in question has been presented to the",audio_6_300.mp3 +bank within its validity period and same has been dishonored for want of sufficient cc.no.20964/2016 j funds and thereafter the complainant got issued legal notice,audio_6_301.mp3 +"to the accused and in turn the said notice was served on the accused, despite of that, the accused has paid the cheque amount to",audio_6_302.mp3 +"the complainant, in such circumstance even in the absence of documentary evidence with regard to source of funds, a presumption can be drawn in favour",audio_6_303.mp3 +"of the complainant with regard to existence of debt or legally recoverable debt. In this regard, it is relevant here to refer the decisions reported",audio_6_304.mp3 +"in 2001 air karnataka hcr 2154 between 'm/s.devi tyres v/s.navab jan' and in 2011 acd 1521 (kar) between 'smt. Usha suresh v/s. Shashidharn', in 2010",audio_6_305.mp3 +"SC 1898 between 'rangappa vs. Mohan' and 2011 acd 1412 (kar) between 'n.hasainar vs. M.hasainar, s/o. Ibrahim'. The Hon'ble HC of karnataka in",audio_6_306.mp3 +"the above decision i.e., 2001 air karnataka hcr 2154 at para no.6 was pleased to hold that issuance of cheque itself was an adequate proof",audio_6_307.mp3 +"of existence of debt or liability. In Anr. cc.no.20964/2016 j decision of Hon'ble apex court ofsri. Murali mohan vs. smt. B.s.uma on 17 december, 2021",audio_6_308.mp3 +"Rangappa vs. Sri. Mohan ., wherein the Hon'ble apex court held that "" a. NI Act , 1881 - s.139 - presumption under - scope",audio_6_309.mp3 +"of - held, presumption mandated by S. 139 includes a presumption that there exists a legally enforceable debt or liability - however such presumption is",audio_6_310.mp3 +"rebuttable in nature - Crl. trial - proof - presumptions - generally. Further held that ""signature on the cheque is statutory presumption under s.139 comes",audio_6_311.mp3 +"into play and the same was not rebutted even with regard to the materials submitted by complainant appellant not able to prove ""lost cheque"" theory",audio_6_312.mp3 +- apart from not raising a probable defence appellant was also not able to contest the existence of a legally enforceable debt or liability -,audio_6_313.mp3 +"hence, his conviction by HC , held, proper. In Anr. decision of Hon'ble apex cc.no.20964/2016 j court of india, reported in Crl. appeal no. 508",audio_6_314.mp3 +"of 2018 dt 15€03€2018 between rohitbhai jivanlal patel vs. State of gujarat and anr held that ""NI Act facts like source of funds are",audio_6_315.mp3 +"not relevant if the accused has not been able to rebut the presumption. It is further held that "" when such a presumption is drawn,",audio_6_316.mp3 +the facts relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds,audio_6_317.mp3 +"were not of relevant consideration while examining if the accused has been able to rebut the presumption or not"". In Anr. decision of Hon'ble apex",audio_6_318.mp3 +court of india decided in Crl. appeal no.1545 of 2019 dt.17/10/2019 by the Hon'ble apex court of india in the Cas. of uttam ram vs.,audio_6_319.mp3 +"Devinder singh hudan and anr. Wherein the Hon'ble apex court held that, ""dishonor of cheque - statutory presumption under - burden to prove - the",audio_6_320.mp3 +burden is on the accused to rebut the presumption that the cc.no.20964/2016 j cheque was issued not for any debt or other liability - it,audio_6_321.mp3 +"is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the",audio_6_322.mp3 +"drawer - even a blank cheque leaf, voluntarily signed and handed over by the accused which is towards some payment, would attract presumption u/s. 139",audio_6_323.mp3 +"of ni act - the accused is held guilty of dishonour of cheque for an offence u/s.138 of ni act. It is also held that,",audio_6_324.mp3 +""" the accused has failed to lead any evidence to rebut the statutory presumption, a finding returned by both the trial court and HC .",audio_6_325.mp3 +Both courts not only erred in law but also committed perversity when the due amount is said to be disputed only on the account of,audio_6_326.mp3 +"discrepancy in the cartons, packing materials or the rate to determine the total liability as if the appellant was proving his debt before the Civ. ",audio_6_327.mp3 +"court. Therefore it is presumed that, the cheque in question were drawn for consideration cc.no.20964/2016 j and the holder of the cheques received the same",audio_6_328.mp3 +"in existing debt"". It is also held that, "" the trial court and the HC proceeded as if, the appellant is to prove a",audio_6_329.mp3 +"debt before Civ. court wherein, the plaintiff is required to prove his claim on the basis of evidence to be laid in support of his",audio_6_330.mp3 +claim for the recovery of the amount due. A dishonour of cheque carries statutory presumption of consideration. The holder of cheque in due course is,audio_6_331.mp3 +"required to prove that, the cheque was issued by the accused and that when the same presented , it was not honoured since there is",audio_6_332.mp3 +"a statutory presumption of consideration, the burden is on the accused to rebut the presumption that, the cheque was issued not for any debt or",audio_6_333.mp3 +"other liability"". It is also relevant here to refer the decision of Hon'ble HC of karnataka reported in ilr 2019 kar 493 in the",audio_6_334.mp3 +"Cas. of sri.yogesh poojary vs. Sri.k.shankara bhat, wherein the Hon'ble HC held that, the cc.no.20964/2016 j presumption mandated by sec.139 of n.i act includes",audio_6_335.mp3 +"the presumption that, there existed a legally enforceable debt or liability, however such presumption is rebuttable in nature"". In Anr. decision of Hon'ble apex court",audio_6_336.mp3 +"of indiasri. Murali mohan vs. smt. B.s.uma on 17 december, 2021",audio_6_337.mp3 +"10.02.2021, wherein the Hon'ble apex court held that, ""once the accused had admitted his signatures on the cheque and deed, the trial court ought to",audio_6_338.mp3 +"have presumed that, the cheque was issued as consideration for legally enforceable debt."" in Anr. decision of Hon'ble apex court of indian in crl. Appeal",audio_6_339.mp3 +"no.132/2020 in the Cas. of d. K. Chandel vs. M/s wockhardt (l) wherein it is held that, ""production of account books / cash book may",audio_6_340.mp3 +"be relevant in the Civ. court, may not be so in the Crl. Cas. filed under sec.138 of n.i. Act while restoring the trial court",audio_6_341.mp3 +"judgments, the HC observed that ""the reason given by the lower appellate cc.no.20964/2016 j court that, he did not bring the cash book or",audio_6_342.mp3 +"order book etc., could well be understood, if Civ. suit is tried."" but may not be so in the Crl. Cas. filed under sec.138 of",audio_6_343.mp3 +n.i. Act. This is because of presumption raised in favour of holder of cheque. Therefore on careful reading of the principles of law laid down,audio_6_344.mp3 +"by the Hon'ble apex court of india and HC of karnataka in the above referred decisions makes it very clear that, once the holder",audio_6_345.mp3 +"in due course i.e. The complainant proved that, the cheque in question belongs to the drawer and signature appearing on the cheque is that of",audio_6_346.mp3 +"the drawer i.e., accused and complied the mandatory requirements as required u/s.138 of n.i.act, presumptions u/s.118a and 139 of n.i.act indeed does extend to the",audio_6_347.mp3 +existence of legally recoverable debt and when such presumption is drawn the facts relating to the want of documentary evidence in the form of receipts,audio_6_348.mp3 +or accounts or want of evidence regarding source of funds were not of relevant unless the accused rebutted the presumption available to the complainant as,audio_6_349.mp3 +held by cc.no.20964/2016 j the Hon'ble apex court and HC of karnataka in the above decisions. In the present Cas. also the complainant has,audio_6_350.mp3 +"complied mandatory requirements and has proved that, the accused has issued the cheque in question in his favour and the accused has admitted the cheque",audio_6_351.mp3 +"belongs to her account and signature appearing on the cheque is that of her signature, in such circumstances, presumptions have to be drawn towards existence",audio_6_352.mp3 +"of legally enforceable debt as per sec.139 of n.i.act. Therefore, for the above said reasons the arguments canvassed by the learned counsel for the accused",audio_6_353.mp3 +"that, the complainant has not produced the documents to show that, he has lent an amount of rs.30,00,000/€ to the accused and the complainant has",audio_6_354.mp3 +"not produced the documents to prove that, complainant was having financial capacity to lend the money and has lent the loan amount to the accused",audio_6_355.mp3 +"cannot be acceptable one. The defence taken by the accused appears that, the complainant has to prove his claim by producing his evidence as if",audio_6_356.mp3 +"it is required for proving of his debt before the Civ. court, but same cannot be permissible in a proceedings initiated cc.no.20964/2016 j u/s.138 of",audio_6_357.mp3 +"n.i. Act, as held by the Hon'ble apex court of india in the above referred decision, therefore in view of the principles of law laid",audio_6_358.mp3 +"down in the above referred decisions it is presumed that, cheque in question was drawn for consideration as the accused has admitted the cheque in",audio_6_359.mp3 +question belongs to her and signature found on the cheque in question is that of her signature. Therefore for the above said reasons and findings,audio_6_360.mp3 +"given by this court, the arguments canvassed by the learned counsel forsri. Murali mohan vs. smt. B.s.uma on 17 december, 2021",audio_6_361.mp3 +Respect to the principles of law laid down by the Hon'ble apex court of india relied upon by the learned counsel for the accused are,audio_6_362.mp3 +"not applicable to the defence of the accuse in this Cas. , as the accused has not elicited anything from the material produced by the complainant",audio_6_363.mp3 +to discard or discredit the evidence of the complainant and the facts ad circumstances of this Cas. and facts and circumstances of the decided cases,audio_6_364.mp3 +relied upon by the learned counsel of the accused are not one and the same. Cc.no.20964/2016 j 27. The accused in order to rebut the,audio_6_365.mp3 +"presumptions available to the complainant herself examined as dw.1, and in her evidence stated that, she had not taken any amount from the complainant and",audio_6_366.mp3 +"there is no legal enforcement debt to claim huge amount against her, by misusing the cheque complainant has filed false complaint and the cheque in",audio_6_367.mp3 +"question was misused by her uncle and the complainant, based on the same the present complaint is filed in order to make wrongful gain. The",audio_6_368.mp3 +"accused further deposed that, she have not seen the face of the complainant and in the court first time she saw the face of the",audio_6_369.mp3 +complainant and she is a widow and not at all required such huge amount for her and in fact she have not taken any loan,audio_6_370.mp3 +from the complainant on 13.01.2016 and never approached on 09.01.2016 for hand loan and based on forged cheque the complaint was presented. The accused further,audio_6_371.mp3 +"deposed that, the cheque in question has taken by his uncle sri.h.krishna murthy along with original documents of her house and by using her cheque",audio_6_372.mp3 +the complainant and her uncle are playing a game before the court even huge cc.no.20964/2016 j amount as not required for her and she is,audio_6_373.mp3 +"an uneducated and widow her uncle and complainant misused her cheque and presented before the court. It is further deposed by the accused that, after",audio_6_374.mp3 +"issuance of notice to her she replied suitably by denying the entire transaction and contents of the notice and has specifically stated that, the cheque",audio_6_375.mp3 +"and original documents of her being misused by her uncle and the complainant. The accused further deposed that, the complainant in his cross examination admitted",audio_6_376.mp3 +"that, he do not know her source of income to pay huge hand loan and the admission s of the complainant and his father ie",audio_6_377.mp3 +pw.2 clinches the issue by saying that the complainant and her uncle h.krishna murthy in collusion with each other have filed false complaint against her.,audio_6_378.mp3 +"The accused further deposed that, there is no legal enforceable debt and infact may be there had a transaction between her uncle h.krishna murthy and",audio_6_379.mp3 +"complainant because of the torture made by the complainant, her uncle has attempted for suicide on 06.04.2016 but he was survived and in that regard,",audio_6_380.mp3 +"in the death note the cc.no.20964/2016 j name of complainant was mentioned and requested to police to take action against the complainant, subsequently first information",audio_6_381.mp3 +report came to be registered against the complainant in crime no.129/2016 before the kumaraswamy layout police station and charge sheet was also filed against the,audio_6_382.mp3 +"complainant u/s. 3 & 4 of karnataka prohibition of charging exorbitant interest act 2004, therefore the complainant has tortured for higher interest to her uncle",audio_6_383.mp3 +and there is no transaction happened between her and the complainant as claimed by him and the complaint is frivolous in nature and prayed for,audio_6_384.mp3 +her acquittal. In support of oral evidence the accused has not produced any documents. 28. On entire perusal of the oral evidence of the accused,audio_6_385.mp3 +"it appears that, according to the accused she have not seen the face of the complainant and in the court for the first time she",audio_6_386.mp3 +"saw the face ofsri. Murali mohan vs. smt. B.s.uma on 17 december, 2021",audio_6_387.mp3 +"Cheque in question to the complainant. It is also seen that, according to the cc.no.20964/2016 j complainant the cheque in question has taken by her",audio_6_388.mp3 +uncle h.krishna murthy along with original documents of her house and by using her cheque the complainant and her uncle have misused the cheque in,audio_6_389.mp3 +question and played fraud against her and a false claim was made under this complaint by colluding with each other. But in order to prove,audio_6_390.mp3 +"the defence of the accused except her oral evidence nothing has been placed before the court to show that, the complainant and her uncle sri.h.krishna",audio_6_391.mp3 +"murthy by colluding with each other have misused her cheque by filing this complaint. It is also relevant here to mention that, the accused herself",audio_6_392.mp3 +examined her uncle ie sri.h.krishna murthy as dw.2 on her behalf and he has filed his Aff. in lieu of examination in chief but in,audio_6_393.mp3 +"his evidence he nowhere stated that, the cheque in question was misused by him and if really her uncle by colluding with the complainant has",audio_6_394.mp3 +"misused the cheque in question , definitely she would have questioned the same to her uncle ie sri.h.krishna murthy who has examined as dw.2 on",audio_6_395.mp3 +"her behalf. It is also relevant here to mention that, the accused at one breath cc.no.20964/2016 j contends that, her uncle and the complainant by",audio_6_396.mp3 +colluding with each other have misused her cheque by filing this false complaint against her but Anr. breath she herself examined her uncle as dw.2,audio_6_397.mp3 +but he has not supported the version of the accused and the entire evidence of dw.2 does not discloses that he and the complainant colluded,audio_6_398.mp3 +"to each other and have misused the cheque in question, if really the complainant and uncle of the accused are colluded to each other and",audio_6_399.mp3 +"misused the cheque of the accused then the question of examining the uncle of the accused by her does not arise at all, therefore the",audio_6_400.mp3 +"defence of the accused that, the complainant and her uncle sri.h.krishna murthy have misused her cheque and in collusion with each other have filed false",audio_6_401.mp3 +"Cas. against her cannot be acceptable one. 29. It is also relevant here to mention that, the accused in her reply notice though she has",audio_6_402.mp3 +"admitted her signature on the cheque and stamp paper and also stated that, about 3 to 4 years back her uncle wanted to borrow rs.25",audio_6_403.mp3 +lakhs for his business cc.no.20964/2016 j purpose since the title deeds of his house was already mortgaged with the syndicate bank as security and he,audio_6_404.mp3 +requested her to hand over her property papers as security to the loan accordingly she handed over original title deeds to her uncle along with,audio_6_405.mp3 +blank signed cheque and signed blank stamp paper and who in turn handed over to the complainant but in her evidence she nowhere stated the,audio_6_406.mp3 +"said facts and by suppressing the said facts she has deposed against her own contents of the legal notice stating that, her uncle and complainant",audio_6_407.mp3 +"colluded each other and got filed this false complaint by misusing her cheque, there fore the inconsistent defence of the accused itself goes to show",audio_6_408.mp3 +"that, the accused in order to avoid liability in question has falsely deposing before the court. It is also important here to mention that, the",audio_6_409.mp3 +"accused in her evidence stated that, based on forged cheque the complainant has filed this complaint though there is no legal enforceable debt to claim",audio_6_410.mp3 +"against her but the accused except her oral evidence nothing has been placed before this court to prove her defence, therefore only on the basis",audio_6_411.mp3 +"of self serving statement cc.no.20964/2016 j of the accused it cannot be held that, the complainant has forged the cheque in question and has filed",audio_6_412.mp3 +"false complaint against her. If really the uncle of the accused ie., sri.h.krishna murthy had collected original title deeds of house property of the accused",audio_6_413.mp3 +and blank signed cheque and a singed blank stamp paper and in turn the said documents were handed over to the complainant by her uncle,audio_6_414.mp3 +"and she never met the complainant personally and the complainant in collusion with her uncle has misused her cheque in question, insri. Murali mohan vs. ",audio_6_415.mp3 +"smt. B.s.uma on 17 december, 2021",audio_6_416.mp3 +Uncle either by issuing notices to them or by filing complaint against them but no such efforts have been made by the accused except her,audio_6_417.mp3 +"self€serving statement in the present Cas. , therefore the conduct of the accused in non taking action against either the complainant or uncle of the",audio_6_418.mp3 +"accused in alleged misuse of her cheque may leads to draw an adverse inference against to the accused that, in order to avoid admitting the",audio_6_419.mp3 +liability in question and to pay the cheque amount the accused has taken such false cc.no.20964/2016 j defence without there being any documentary proof not,audio_6_420.mp3 +"for other reasons. 30. It is also relevant here to mention that, the accused in her reply at para no.5 has stated that, the complainant",audio_6_421.mp3 +has presented the cheque on 29.03.2016 without her knowledge and has presented the cheque despite receiving rs.20 lakhs from her uncle ie h.krishna murthy during,audio_6_422.mp3 +"january 2016 and the said amount of rs.20 lakhs was returned to the complainant by sri. Mruthyunjaya who owed that, amount to h.krishna murthy and",audio_6_423.mp3 +the said h.krishna murthy had given that amount to mruthyunjaya for purchase of his land and since the sale transaction did not materialized he returned,audio_6_424.mp3 +that amount to complainant on behalf of h.krishna murthy and Anr. sum of rs.4 lakhs was paid to complainant during 2nd week of march 2016,audio_6_425.mp3 +and prior to payment of rs.24 lakhs her uncle and sons have sold 37 guntas of land in sy.no52/2 and 53/2 in favour of one,audio_6_426.mp3 +"ramesh on 19.03.2015 for rs.14,07,000/€ which was preceded by a sale agreement and the entire sale proceeds was taken cc.no.20964/2016 j by the complainant by",audio_6_427.mp3 +"opening an account in the name of h.krishna murthy and the atm card pass book etc., were kept in his custody and draw the amount",audio_6_428.mp3 +and transferred amount to his account and Anr. piece of land measuring 26□ guntas in sy.no.106/1 and 106/2 was sold in favour of the complainant,audio_6_429.mp3 +"on 12.05.2015 and though the accused is not liable to pay any amount to the complainant and her uncle h.krishna murthy has paid that, the",audio_6_430.mp3 +entire amount with interest and the complainant has refused to return the cheque despite repeated requst made by her uncle and his son and the,audio_6_431.mp3 +said cheque has been misused by the complainant which was given for security purpose only. On careful reading of the contents of para no.5 to,audio_6_432.mp3 +"8 of the legal notice makes it clear that, the accused in her reply notice has taken specific defence that, her uncle by name h.krishna",audio_6_433.mp3 +murthy had borrowed a loan amount of rs.25 lakhs from the complainant and at that time the cheque in question has been given as security,audio_6_434.mp3 +"to the said loan amount and her uncle has repaid entire loan amount to the complainant despite of it, the complainant did not return the",audio_6_435.mp3 +said cheque to cc.no.20964/2016 j her uncle and has misused the cheque in question by filing this complaint. But the accused in her defence evidence,audio_6_436.mp3 +"has suppressed the above stated facts which are stated at para no.5 to 8 of her legal notice, if really the cheque in question was",audio_6_437.mp3 +handed over to her uncle and in turn her uncle had borrowed loan amount of rs.25 lakhs from the complainant and at that time the,audio_6_438.mp3 +cheque in question was handed over to the complainant as security and her uncle had repaid entire amount to the complainant but the complainant did,audio_6_439.mp3 +"not return the cheque in question to her uncle, definitely she would have stated the said facts in her evidence but the accused has suppressed",audio_6_440.mp3 +"the said facts in her defence evidence for her unrevealed reasons and to avoid the liability in question , therefore the defence of the accused",audio_6_441.mp3 +"ie., at one breath the accused contends that the cheque in question was misused by the complainant and her uncle by colluding with each other",audio_6_442.mp3 +"and Anr. breath in her legal notice contends that, the cheque in question was handed over to the complainant by her uncle towards security of",audio_6_443.mp3 +"the loan amount borrowed from the cc.no.20964/2016 j complainant by her uncle in such circumstancessri. Murali mohan vs. smt. B.s.uma on 17 december, 2021",audio_6_444.mp3 +"Evidence of the accused it appears that, though the accused has made allegations against the complainant that, her uncle and the complainant by colluding with",audio_6_445.mp3 +"each other have misused her cheque ie., cheque in dispute by playing fraud against her and a false claim is made by the complainant under",audio_6_446.mp3 +this complaint cannot be acceptable one and same has not been proved by the accused by producing cogent and convincible evidence. 31. The accused in,audio_6_447.mp3 +"support of her evidence has examined her uncle ie., h krishna murthy as dw.2 and who in his evidence has stated that, accused has not",audio_6_448.mp3 +"taken any loan from the complainant by misusing the cheque belongs to the accused the present complaint is filed, in fact there is no transaction",audio_6_449.mp3 +between the complainant and accused and he had transaction with the complainant in respect of landed properties and during the year cc.no.20964/2016 j 2013€14 he,audio_6_450.mp3 +had taken some of rs.25 lakhs from the complainant in order to purchase the property at mandya and he advanced some of rs.27 lakhs to,audio_6_451.mp3 +"purchase the said property, but the said transaction was not materialized and he have returned an amount of rs.25 lakhs to the complainant in the",audio_6_452.mp3 +"year 2013 itself, but the complainant has demanded higher interest to the said amount again he has also executed a sale deed on 12.05.2015 in",audio_6_453.mp3 +"respect of land bearing no.106/4 of santhemogenahalli village, ramanagar district for sum of rs.4,65,000/€ in favour of the complainant infact the complainant has not paid",audio_6_454.mp3 +the said amount and fulfilled the amount to the interest advanced to a sum of rs.25 lakhs and further the complainant brought one sri.ramesh to,audio_6_455.mp3 +"purchase his Anr. property in sy.no.52/2 measuring 37 guntas for sum of rs.14,07,000/€ and even the d.d. Which was given to him also being encashed",audio_6_456.mp3 +"by the complainant in opening the account in his name in icici bank, hence he has paid a sum of rs.45 lakhs to the complainant",audio_6_457.mp3 +and at the time of receiving rs.25 lakhs from the complainant in january 2012€13 the cc.no.20964/2016 j complainant demanded the security to the said amount,audio_6_458.mp3 +since he had no other documents to offer surety and he requested the accused to give the cheque and title documents of her property with,audio_6_459.mp3 +"a request that, he need to offer security in the bank but he never disclosed this said fact to the accused . The dw.2 further",audio_6_460.mp3 +"deposed that, he had paid entire amount along with higher interest to the complainant but he keep on harassing for further interest by one or",audio_6_461.mp3 +"other reason, having no other alternatives he decided to commit suicide because of torture made by the complainant and he attempted to suicide on 05.04.2016",audio_6_462.mp3 +"by writing a death note against the complainant but he survived and the jurisdictional police also charge sheeted against the complainant, therefore there was no",audio_6_463.mp3 +transaction held between the complainant and accused and though he has repaid entire amount to the complainant but the accused had not return the cheque,audio_6_464.mp3 +and original documents taken by him as security. In support of oral evidence of dw.2 he has produced certified copies of the sale deeds dt:,audio_6_465.mp3 +"12.05.2015 and 19.03.2015 as per ex.d.3 and d.4, cc.no.20964/2016 j true copies of the statement of accounts pertaining to the icici bank, dt: 31.01.2015, 31.07.2015,",audio_6_466.mp3 +"31.10.2015, 31.1.2016, 01.05.2016, 31.07.2016 as per ex.d.5 to d.10 respectively. 32. On careful perusal of the evidence of dw.2, according to him, he had borrowed",audio_6_467.mp3 +a loan of rs.25 lakhs from the complainant during the year 2012€13 for purchase of property but the said transaction was not materialized and he,audio_6_468.mp3 +had return the said amount of rs.25 lakhs to the complainant in the year 2013 itself and at the time ofsri. Murali mohan vs. smt.,audio_6_469.mp3 +"B.s.uma on 17 december, 2021",audio_6_470.mp3 +"Give documents for security, accordingly at his instance he had given cheque belongs to the accused and title documents of her property to the security",audio_6_471.mp3 +of the said loan and after repayment of the entire amount with higher interest to the complainant but he did not return the cheque and,audio_6_472.mp3 +"title documents of the accused. In order to prove the evidence of dw.2 as stated above, except the oral evidence nothing has been produced by",audio_6_473.mp3 +"the dw.2 to show that, he has repaid entire cc.no.20964/2016 j amount of rs.25 lakhs to the complainant along with higher rate of interest and",audio_6_474.mp3 +"has not produced any document to show that, at the time of receiving of rs.25 lakhs from the complainant he had handed over the cheque",audio_6_475.mp3 +belongs to the accused and title documents of her property to the complainant as security to the said loan amount. It is relevant here to,audio_6_476.mp3 +"mention that, the accused in her evidence never disclosed that, without her knowledge her uncle ie., dw.2 had handed over her cheque and title documents",audio_6_477.mp3 +"of her property to the complainant, on the contrary she had made allegations against the dw.2 himself that, the complainant and dw.2 by colluding with",audio_6_478.mp3 +"each other have misused her cheque , hence it goes to show that, the evidence of dw.2 is inconsistent to the evidence of the accused",audio_6_479.mp3 +and the evidence of accused and dw.2 are not sufficient to hold that the cheque in question was handed over to the complainant by the,audio_6_480.mp3 +"dw.2 at the time of borrowing loan amount of rs.25 lakhs by the dw.2. 33. The dw.2 in his evidence has stated that, cc.no.20964/2016 j",audio_6_481.mp3 +after repayment of the loan amount of rs.25 lakhs to the complainant again he started to demand higher interest to the said amount and he,audio_6_482.mp3 +"has executed a sale deed on 12.05.2015 in respect of property bearing no.106/4 for sum of rs.4,65,000/€ in favour of the complainant and complainant has",audio_6_483.mp3 +not paid the said amount but adjusted the said amount towards the interest and further the complainant brought one sri.ramesh to purchase Anr. property it,audio_6_484.mp3 +"belongs to him ie., sy.no.52/2 for sum of rs.14,07,000/€ and though the dd was given to him also being encashed by the complainant by opening",audio_6_485.mp3 +"the account in his name in icici bank and in total he has paid sum of rs.45 lakhs to the complainant. In this regard, the",audio_6_486.mp3 +"dw.2 has produced certified copy of the sale deeds dt: 12.05.2015, and 19.03.2015 but the perusal of the sale deeds it appears that, the dw.2",audio_6_487.mp3 +"himself has received the entire sale consideration amount from the complainant and one mr. Ramesh as per the recitals of ex.d.3 and d.4, therefore the",audio_6_488.mp3 +"oral evidence of the dw.2 ie., he has not received the sale consideration amount shown in ex.d.3 and d.4 cc.no.20964/2016 j and same has been",audio_6_489.mp3 +received by the complainant and to fulfilled the said amount towards the interest amount advanced on the loan amount of rs.25 lakhs cannot be acceptable,audio_6_490.mp3 +"one. On perusal of true copies of the bank statements pertaining to icici bank account ie., ex.d.5 to d.10 wherein it is nowhere seen that,",audio_6_491.mp3 +"the complainant has withdrawn the amounts from the account of the dw.2 as contended by him , therefore the entire oral evidence of dw.2 is",audio_6_492.mp3 +"contrary to his own documents produced by him, in such circumstances itsri. Murali mohan vs. smt. B.s.uma on 17 december, 2021",audio_6_493.mp3 +"The loan amount of rs.25 lakhs borrowed by him from the complainant. 34. The dw.2 in his cross examination has clearly admitted that, he has",audio_6_494.mp3 +"not filed any complaint against the complainant before the police by alleging that, though he has paid entire amount along with higher interest to the",audio_6_495.mp3 +"complainant he keep on harassing for further interest amount, hence the admissions of dw.2 itself are sufficient to hold that, if really the dw.2 had",audio_6_496.mp3 +"repaid the loan amount along cc.no.20964/2016 j with interest to the complainant inspite of that, the complainant harassing for further interest amount to him, definitely",audio_6_497.mp3 +"he would have lodge the complaint against the complainant at that time only, but no such complaint was filed by the dw.2 as admitted by",audio_6_498.mp3 +"him, in such circumstances the evidence of dw.2 cannot be acceptable one. 35. The accused during the course of cross examination of the complainant got",audio_6_499.mp3 +"marked the FIR , copy of the complaint and charge sheet copy filed in crime no.214/2016 by the kumaraswamy layout police against the",audio_6_500.mp3 +complainant on the basis of the complaint filed by the S/O dw.2 of the offence punishable u/s.3 and 4 of karnataka prohibition of charging,audio_6_501.mp3 +"exorbitant interest act 2004 and offence punishable u/s.506 and 504 of ipc which is at ex.d.1. According to the accused and dw.2 that, inspite of",audio_6_502.mp3 +"repayment of the loan amount along with higher interest to the complainant he keep on harassing for further interest to the dw.2, having no other",audio_6_503.mp3 +alternative the dw.2 decided to commit suicide due to torture of the complainant on 05.04.2016 by cc.no.20964/2016 j writing a death note against the complainant,audio_6_504.mp3 +but the dw.2 survived and the jurisdictional police have filed charge sheet against the complainant. On careful perusal of ex.d.1 it appears that the on,audio_6_505.mp3 +the basis of complaint filed by the S/O dw.2 by name nagesh sharma h.k. On 07.04.2016 the kumaraswamy layout police have registered the Cas. ,audio_6_506.mp3 +against the complainant. But though the charge sheet was came to be filed against the complainant but the court has not yet decided whether the,audio_6_507.mp3 +"complainant has harassed the dw.2 for further interest amount though he has repaid the entire loan amount along with interest, hence on the basis of",audio_6_508.mp3 +"ex.d.1 it cannot be held that, the cheque in question was given by the dw.2 in favour of the complainant as security towards the loan",audio_6_509.mp3 +"amount borrowed by him and the complainant even after repayment of the loan amount along with interest by dw.2, has harassed him. In addition to",audio_6_510.mp3 +"that, it is relevant here to mention that, the dw.2 has given statement before the police on 23.06.2016 wherein he has stated that, he used",audio_6_511.mp3 +borrowed loan amounts from the complainant on many occasions as hand cc.no.20964/2016 j loans for lower interest and used to repay the said amounts to,audio_6_512.mp3 +the complainant and about 3€4 years back he had received an amount of rs.25 lakhs as hand loan from the complainant and out of the,audio_6_513.mp3 +said amount he had given some amounts to his son and some amounts to his relatives and he has not repaid the said loan amount,audio_6_514.mp3 +to the complainant and thereafter the complainant approached him and gave threat to him to repay the loan amount and thereafter at the time of,audio_6_515.mp3 +"taking medicine he had taken some other medicine due tosri. Murali mohan vs. smt. B.s.uma on 17 december, 2021",audio_6_516.mp3 +"The hospital, hence the statement of the dw.2 before the police makes it clear that, as on 23.06.2016 ie., the date of statement given by",audio_6_517.mp3 +"the dw.2 he himself admitted that, he has not repaid the loan amount borrowed from the complainant and the complainant used to lend the loan",audio_6_518.mp3 +"amount to him at lower rate of interest and the dw.2 has also admitted in his cross examination that, he has not filed any complainant",audio_6_519.mp3 +"against the complainant by alleging that, the complainant has insisted him to pay higher rate of cc.no.20964/2016 j interest and harassing him to pay the",audio_6_520.mp3 +"interest amount, in such circumstances the entire evidence of dw.2 ie., inspite of repayment made by him along with interest amount the complainant keep on",audio_6_521.mp3 +harassing for further interest amount by on or other reasons having no other alternative he decided to commit suicide because of torture made by the,audio_6_522.mp3 +complainant appears to be doubtful and the said evidence itself is negativated by the dw.2 himself. Therefore on entire perusal of oral and documentary evidence,audio_6_523.mp3 +"of the dw.2 it cannot be held that, while receiving loan amount of rs.25 lakhs from the complainant and as per the demand of the",audio_6_524.mp3 +complainant towards security of the said loan amount the dw.2 had handed over the cheque belongs to the accused and title documents of her property,audio_6_525.mp3 +to the complainant towards security of the loan amount and even after repayment of the said loan amount along with interest the complaint did not,audio_6_526.mp3 +return the cheque and other documents cannot be acceptable one as same has been not proved by the dw.2 by producing satisfactory evidence. Cc.no.20964/2016 j,audio_6_527.mp3 +"36. The accused in her evidence has stated that, the complainant and her uncle ie., dw.2 by colluding with each other have misused her cheque",audio_6_528.mp3 +"ie., cheque in dispute and a false claim is made under this complaint and the accused in her reply notice has categorically admitted that, she",audio_6_529.mp3 +had given her blank signed cheque and title documents of her property to her uncle ie dw.2 and who in turn has handed over the,audio_6_530.mp3 +blank signed cheque and title deeds of her property to the complainant towards security of the loan borrowed by him from the complainant and even,audio_6_531.mp3 +after repayment of the said loan amount the complainant did not return her cheque and title deeds to her uncle. The dw.2 in his evidence,audio_6_532.mp3 +"also stated that, he had borrowed a loan of rs.25 lakhs from the complainant during the year 2012€13 for purchase of property but due to",audio_6_533.mp3 +not materialization of the sale transaction he had repaid the said amount of rs.25 lakhs along with interest to the complainant in the year 2013,audio_6_534.mp3 +itself and at the time of receiving rs.25 lakhs from the complainant he has handed over blank signed cheque and stamp paper of the accused,audio_6_535.mp3 +to the complainant towards cc.no.20964/2016 j security of the said loan amount but after repayment of the loan amount and interest and though he has,audio_6_536.mp3 +requested for return of the documents and cheque but the complainant did not return the blank signed cheque and stamp paper of the accused. As,audio_6_537.mp3 +"it is already held in the above that, the accused and dw.2 have miserably failed to prove that, the dw.2 has repaid the loan amount",audio_6_538.mp3 +"borrowed from the complainant and has also failed to prove that, the cheque in question was handed over as blank signed cheque to the complainant",audio_6_539.mp3 +"towards security of the loan transaction between the complainant and dw.2 and it is also admitted by the dw.2 that, he has not filed any",audio_6_540.mp3 +"complaint or issued noticesri. Murali mohan vs. smt. B.s.uma on 17 december, 2021",audio_6_541.mp3 +And stamp paper of the accused alleged given as security to the complainant. If really the cheque in question was handed over by dw.2 to,audio_6_542.mp3 +the complainant towards security to the loan amount of rs.25 lakhs borrowed by him and he has repaid the said loan amount in the year,audio_6_543.mp3 +"2013 itself and the complainant did not return the signed blank cheque cc.no.20964/2016 j of the accused, definitely either the accused or her uncle ie.,",audio_6_544.mp3 +dw.2 would have initiated legal action against the complainant either by issuing notice to him or by filing complaint before the competent Auth. of courts,audio_6_545.mp3 +"of law for non return of cheque in question but no such efforts have been made by the accused or her uncle ie., dw.2 and",audio_6_546.mp3 +their conduct in not taking or initiating any legal action for return of signed blank cheque and stamp paper of the accused against the complainant,audio_6_547.mp3 +may leads to draw an adverse inference against them that the accused or her uncle have not taken any action against the complainant only for,audio_6_548.mp3 +"the reason that, to avoid liability in question or towards payment of the cheque amount they have not initiated any action but not for any",audio_6_549.mp3 +"other reason, therefore the defence taken by the accused and her uncle ie., dw.2 cannot be acceptable one. In this regard, it is relevant here",audio_6_550.mp3 +to refer the decision of Hon'ble apex court of india reported in air 2018 SC 3601 in a Cas. of t.p.murugan(dead) thr. Lrs.v. Bhojan,audio_6_551.mp3 +"vs. Posa nandi, rep. Thr. Lrs. Pa holder, t.p. Cc.no.20964/2016 j murugan v. Bhojan, wherein the Hon'ble apex court held that ""NI Act (26",audio_6_552.mp3 +"of 1881) ss.118, 138, 139 - dishonour of cheque - presumption as to enforceable debt€ cheques allegedly issued by accused towards repayment of debt€ defence",audio_6_553.mp3 +of accused that 10 cheques issued towards repayment of loan back in 1995 - behavior of accused in allegedly issuing 10 blank cheques back in,audio_6_554.mp3 +"1995 and never asking their return for 7 years, unnatural - accused admitting his signature on cheques and pronote, presumption under s.139 would operate against",audio_6_555.mp3 +"him - complainant proving existence of legally enforceable debt and issuance of cheques towards discharge of such debt€ conviction, proper."" hence by applying the above",audio_6_556.mp3 +principles of law to the present facts of the Cas. in the present Cas. the accused or her uncle ie dw.2 have not produced any,audio_6_557.mp3 +"documents to prove defence of the accused, under such circumstances, it can be held that, the accused or her uncle ie dw.2 have not cc.no.20964/2016",audio_6_558.mp3 +"j made any effort to get return of the cheque in question alleged to have been given to the complainant, in such circumstances, the said",audio_6_559.mp3 +"unnatural conduct of the accused and her uncle in non taking of action may leads to draw an adverse inference against the accused that, the",audio_6_560.mp3 +"cheque in question issued by the accused only towards discharge of the liability and presumption u/s.139 of n.i. Act would operate against her, as she",audio_6_561.mp3 +"has admitted the signature and cheque in question belongs to her. 37. It is also important to note here that, the accused has not denied",audio_6_562.mp3 +or disputed that the cheque in question as well as the signature therein do belong to her and she has failed to explain as to,audio_6_563.mp3 +"how her cheque has come to the possession of the complainant, this would also give rise to an adverse inference against her. This preposition of",audio_6_564.mp3 +"law finds support from the decisions of Hon'ble HC of karnataka reported in 2010(1) kccr 176 in the Cas. of ""siddappa vs. Manjappa"". In",audio_6_565.mp3 +"Anr. decision of Hon'ble apex court of india decided in cc.no.20964/2016 j Crl. a.no.664 of 2012 dated: 19.9.2019 in the Cas. of ""m.abbas haji vs.",audio_6_566.mp3 +"T.m.chennakeshava""sri. Murali mohan vs. smt. B.s.uma on 17 december, 2021",audio_6_567.mp3 +"Complainant"". Hence in the present Cas. also the accused has failed to explain how the cheque in question was entered into the hands of complainant.",audio_6_568.mp3 +Therefore for the above said reasons the defense taken by the accused cannot be acceptable one and accused has miserably failed to rebut the presumption,audio_6_569.mp3 +available in favour of the complainant by adducing cogent and convincible evidence. 38. Therefore considering all these aspects of the Cas. and totality of the,audio_6_570.mp3 +circumstances and on careful and meticulous appreciation of evidence adduced on behalf of the complainant and accused the complainant has successfully established beyond all reasonable,audio_6_571.mp3 +"doubt that, he has lent an amount of rs.30,00,000/€ to the accused as hand loan and the accused in turn has issued cheque in question",audio_6_572.mp3 +ie ex.c.1 towards discharge of the said loan amount and interest and thereafter the complainant has cc.no.20964/2016 j presented the cheque ie ex.c.1 through his,audio_6_573.mp3 +"banker and same was returned dishonoured with an endorsement of ""funds insufficient"" and thereafter he got issued legal notice to the accused and inspite of",audio_6_574.mp3 +"service of the said notice, the accused did not repaid loan amount borrowed by her, hence the complainant filed the present complaint against the accused.",audio_6_575.mp3 +"On the other hand, the accused has failed to rebut the presumption available infavour of the complainant with regard to the existence of legally recoverable",audio_6_576.mp3 +"debt under ex.c.1 cheque. Therefore accused has committed an offence punishable u/s.138 of n.i. Act, accordingly for the above said reasons this point is answered",audio_6_577.mp3 +in the affirmative. 39. Point no.2: negotiable instrument act was enacted to bring credibility to the cheque and the very purpose of enactment is to,audio_6_578.mp3 +"promote the use of negotiable instrument, while to discourage the issuance of cheque without having sufficient funds in their accounts. Such being the Cas. the",audio_6_579.mp3 +"intention of the legislature is that, complainant be suitable compensated while accused be punished for her act. Cc.no.20964/2016 j hence while awarding the compensation the",audio_6_580.mp3 +"said fact is to be kept in mind and suitable compensation is awarded to the complainant certainly it will not cause injustice to the accused,",audio_6_581.mp3 +"accordingly the complainant is entitled for the compensation as ordered by the court and for the said reasons, it is just and proper to pass",audio_6_582.mp3 +the following :€ order acting u/sec.255(2) of Cr.P.C. the accused is convicted for the offence punishable u/sec.138 of n.i.act. The accused is,audio_6_583.mp3 +"sentenced to pay a fine of rs.30,15,000/= (Rs. thirty lakhs and fifteen thousand only) within one month from the date of order, in default accused",audio_6_584.mp3 +shall under go simple imprisonment for a period of (3) three months for the offence punishable u/sec.138 of n.i.act. Further acting u/sec.357(1) of code of,audio_6_585.mp3 +"Crl. procedure out of the fine amount on recovery, a sum of rs.30,10,000/= (Rs. thirty lakhs and ten cc.no.20964/2016 j thousand only) shall be paid",audio_6_586.mp3 +"as compensation to the complainant. Further acting u/sec.357(1)(a) of Cr.P.C. out of fine amount on recovery a sum of rs.5,000/= (Rs. five",audio_6_587.mp3 +"thousand only) shall be defrayed as prosecution expenses to the state.sri. Murali mohan vs. smt. B.s.uma on 17 december, 2021",audio_6_588.mp3 +Office is directed to furnish free certified copy of this judgment to the accused incompliance of sec.363(1) of Cr.P.C. (directly dictated to,audio_6_589.mp3 +"the stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open court on this the 17th day of december",audio_6_590.mp3 +"2021). (sri.s.b. Handral), xvi acmm, bengaluru city. Annexure 1. List of witness/s examined on behalf of the complainant:€ p.w.1 : sri.murali mohan cc.no.20964/2016 j pw.2",audio_6_591.mp3 +: sri.c.balu 2. List of documents exhibited on behalf of the complainant:€ ex.c.1 : original cheque ex.c1(a) : signature of the accused ex.c.2 : bank,audio_6_592.mp3 +memo ex.c.3 : bank challan ex.c.4 : office copy of the legal notice ex.c.5 & c.6 : postal receipts; ex.c.7 : complaint settled reply ex.c.8,audio_6_593.mp3 +: reply notice ex.p.9 : deed of transfer of membership (marked through pw.2) ex.p.10 : statement of accounts for the period from 01.01.2014 to 31.05.2014,audio_6_594.mp3 +(marked through pw.2) ex.p.11 : certified copy of the final report in crime no.124/16 (marked through pw.2) 3. List of witness/s examined on behalf of,audio_6_595.mp3 +the accused:€ dw.1 : smt. Uma.b.s dw.2 : sri.h.krishna murthy 4. List of documents exhibited on behalf of the accused:€ ex.d.1: certified copy of the,audio_6_596.mp3 +"FIR , cc.no.20964/2016 j complaint, charge sheet and other related documents ex.d.2 certified copy of the renewal rental agreement (marked through pw.2) ex.d.3",audio_6_597.mp3 +& d.4 certified copies of the sale deeds dt: 12.05.2015 and 19.03.2015 (marked through dw.2) ex.d.5 to d.10 attested copy of the statement of accounts,audio_6_598.mp3 +"of icici bank dt: 31.1.2015, 31.07.2015, 31.10.2015, 31.01.2016, 1.05.2016 and 31.07.2016 (marked through pw.2) (sri.s.b.handral), xvi acmm, bengaluru city. Cc.no.20964/2016 j 17.12.2021 Cas. called, complainant",audio_6_599.mp3 +"and counsel for complainant absent andsri. Murali mohan vs. smt. B.s.uma on 17 december, 2021",audio_6_600.mp3 +Acting u/sec.255(2) of Cr.P.C. the accused is convicted for the offence punishable u/sec.138 of n.i.act. The accused is sentenced to pay a,audio_6_601.mp3 +"fine of rs.30,15,000/= (Rs. thirty lakhs and fifteen thousand only) within one month from the date of order, in default accused shall under go simple",audio_6_602.mp3 +imprisonment for a period of (3) three months for the offence punishable u/sec.138 of n.i.act. Further acting u/sec.357(1) of Cr.P.C. out of,audio_6_603.mp3 +"the fine amount on recovery, a sum of rs.30,10,000/= (Rs. thirty lakhs and ten thousand only) shall be paid as compensation to the complainant. Further",audio_6_604.mp3 +"acting u/sec.357(1)(a) of Cr.P.C. out of fine amount on recovery a sum of rs.5,000/= (Rs. five thousand only) shall be defrayed as",audio_6_605.mp3 +prosecution expenses to the state. 84 cc.no.20964/2016 j the bail bond of the accused stands cancelled. Office is directed to furnish free certified copy of,audio_6_606.mp3 +"this judgment to the accused incompliance of sec.363(1) of Cr.P.C. xvi acmm, b'luru.sri. Murali mohan vs. smt. B.s.uma on 17 december, 2021",audio_6_607.mp3 +"National insurance Co. ltd vs. seema malhotra and ors on 20 february, 2001 equivalent citations: air 2001 SC 1197, 2001 air scw 902, 2001",audio_7_1.mp3 +"(3) srj 420, (2001) 3 allmr 521 (SC ), 2001 corla(bl supp) 210 SC , 2001 (1) curcc 192, 2001 (1) lri 543,",audio_7_2.mp3 +"2001 scc(cri) 443, 2001 (45) arbi lr 654, 2001 (3) all mr 521, 2001 (2) scale 140, 2001 (3) scc 151, 2001 (2) uj (supreme",audio_7_3.mp3 +"court ) 1113, (2001) 3 jt 58 (SC ), (2000) 6 kant lj 284, (2002) 172 curtaxrep 387, (2001) 2 guj lr 1299, (2001)",audio_7_4.mp3 +"1 ker lt 822, (2002) 4 mad lw 181, (2001) 1 pun lr 826, (2001) 1 raj lw 164, (2001) 1 scj 380, (2001) 2",audio_7_5.mp3 +"tac 1, (2001) 45 arbilr 654, (2001) 2 andhld 68, (2001) 2 supreme 92, (2001) 2 reccivr 456, (2001) 4 icc 370, (2001) 2 scale",audio_7_6.mp3 +"140, (2001) wlc(SC )cvl 223, (2001) 2 all wc 1007, (2001) 2 civlj 74, (2001) 1 acc 317, (2001) 1 acj 638, (2001) 1",audio_7_7.mp3 +"andhwr 157, (2001) 43 all lr 137, (2001) 105 comcas 6 bench: k.t. Thomas, r.p. Sethi Cas. no.: appeal (Civ. ) 1350 of 2001 petitioner: national",audio_7_8.mp3 +insurance Co. ltd. Vs. Respondent: seema malhotra and ors. Date of judgment: 20/02/2001 bench: k.t. Thomas & r.p. Sethi. Judgment: l...i...t.......t.......t.......t.......t.......t.......t..jj u d g m,audio_7_9.mp3 +"e n t thomas, j. Leave granted.national insurance Co. ltd vs. seema malhotra and ors on 20 february, 2001",audio_7_10.mp3 +"Amount, but the cheque was dishonoured by the drawee bank due to insufficiency of funds in the account of the drawer. Is the insurer liable",audio_7_11.mp3 +in such a situation to honour the contract of insurance? there is no dispute that the insurer is liable as against third parties because it,audio_7_12.mp3 +is covered by the statutory provisions contained in chapter x of the motor vehicles act 1988. But the insurer vehemently disputed the liability when the,audio_7_13.mp3 +"claim is made by the insured himself or his legal heirs, without any third party being involved. To avoid confusion we may point out that",audio_7_14.mp3 +"the insurance Co. has no dispute that the claims, if any, made by the kith and kin of the insured for the injuries sustained by",audio_7_15.mp3 +them in the accident including the claims made by the legal representatives of the deceased in such accident would also be treated as third party,audio_7_16.mp3 +"claims). A division bench of the HC of jammu and kashmir held, on the facts of the Cas. , that the insurance Co. is still",audio_7_17.mp3 +"liable because it chose to cancel the policy w.e.f. the date of bouncing of the cheque, whereas the liability was incurred prior to",audio_7_18.mp3 +it. The question can be dealt with after summarizing the facts in this Cas. which led to the impugned judgment of the HC . The,audio_7_19.mp3 +"insured was one yash paul malhotra. He and the appellant insurance Co. entered into an insurance contract on 21st december, 1993, by insuring a maruti",audio_7_20.mp3 +"car for a sum of Rs. one lakh and fifty thousand. On the same day, the insured gave a cheque for rs.4492/- towards the first",audio_7_21.mp3 +"instalment of the premium and the insurance Co. issued a cover note as contemplated in S. 149 of the motor vehicles act. But unfortunately, the",audio_7_22.mp3 +last day in the year 1993 became the last day of the insured as well as his maruti car because the insured died and the,audio_7_23.mp3 +car was completely damaged in an accident which occurred on 31.12.1993. On 10.1.1994 the bank on which the cheque was drawn by the insured sent,audio_7_24.mp3 +an intimation to the insurance Co. that the cheque was dishonoured as there was no funds in the account of the insured. On 20.1.1994 the,audio_7_25.mp3 +"insurance Co. informed the business concern of the insured as under: notwithstanding anything contained to the contrary, it is hereby agreed and declared that your",audio_7_26.mp3 +cheque has been dishonoured by the bank. So we are cancelling the above said policy with immediate effect. The Co. is not at risk. The,audio_7_27.mp3 +"respondents who are the widow and children of the insured, who died in the accident, filed a claim for the loss of the vehicle. When",audio_7_28.mp3 +"the claim was repudiated, the respondents moved the state consumer protection commission. As per a judgment pronounced by the commission the said claim was rejected.",audio_7_29.mp3 +"The judicial member of the state commission, who delivered the judgment, has stated thus: in so far the facts of the present Cas. are concerned,",audio_7_30.mp3 +it is a settled law that the insurer even if it had issued a cover note is entitled to cancel the policy if it fails,audio_7_31.mp3 +"to cash the cheque for premium. The concept of contract in essence envisages a proposal, acceptance and passing of consideration. In the absence of any",audio_7_32.mp3 +consideration there can be no contract and i.e. all what is recognised by S. 64-vb of thenational insurance Co. ltd vs. seema malhotra and,audio_7_33.mp3 +"ors on 20 february, 2001",audio_7_34.mp3 +In time and soon after the cheque bounced. In this view of the matter there is no need for us to go to any other,audio_7_35.mp3 +"point that may arise in this Cas. . When the respondents (legal heirs of the insured) moved the HC of jammu and kashmir, the division",audio_7_36.mp3 +bench which heard the matter reversed the order passed by the state consumer commission and held the insurance Co. liable to honour the claim. The,audio_7_37.mp3 +division bench directed the state commission to assess the compensation in accordance with law and pay the same after deducting the amount of premium (as,audio_7_38.mp3 +the cheque was dishonoured). The following reasoning was mainly adopted by the learned judge of the division bench for holding that the insurance Co. is,audio_7_39.mp3 +"liable on the fact situation: while ordering the cancellation of policy in question, respondent insurance Co. instead of cancelling the same due to dishonour of",audio_7_40.mp3 +"cheque of the premium from the date it was issued i.e. 21.12.1993, chose to cancel it with immediate effect. This clearly indicates that till the",audio_7_41.mp3 +"issuance of this communication respondent insurance Co. itself treated the policy subsisting. Besides this, it had not chosen to treat the same cancelled from the",audio_7_42.mp3 +"date of issue. In the face of this position, this Cas. need not detain us any further and for this reason the argument addressed on",audio_7_43.mp3 +behalf of the insurance Co. based on S. 64- vb of the insurance act also does not hold good. There was nothing which prevented the,audio_7_44.mp3 +"insurance Co. to have informed the appellants that the policy stood cancelled from the date of its issuance, and as such it is not liable",audio_7_45.mp3 +for the payment of any compensation. The direction that insurance Co. can now deduct the premium amount from the compensation to be fixed is no,audio_7_46.mp3 +solace to the insurer. The essence of the insurance business is the coverage of the risk by undertaking to indemnify the insured against loss or,audio_7_47.mp3 +damage. They agree to pay the damages arising out of any accident by taking a chance that no accident might happen. Motivation of the insurance,audio_7_48.mp3 +business is that the premium would turn to be the profit of the business in Cas. no damage occurs. Such business of the insurance Co. ,audio_7_49.mp3 +"can be carried on only with the premium paid by the insured persons on the insurance policy. The only profit, if at all the insurance",audio_7_50.mp3 +"Co. makes, of the insurance business is the premium paid when no accident or damage occurs. But to ask the insurance Co. to bear the",audio_7_51.mp3 +"entire loss of damages of somebody else without the Co. receiving a pie towards premium is contrary to the principles of equity, though the insurance",audio_7_52.mp3 +"companies are made liable to third parties on account of statutory compulsions due to the initial agreement, entered between the insured and the Co. concerned.",audio_7_53.mp3 +A three-judge bench in oriental insurance co. Ltd. vs. . Inderjit kaur (1998 (1) scc 371) left this point unconsidered. In that Cas. also the,audio_7_54.mp3 +premium was paid by cheque which was later dishonoured and the insured was intimated about it by the insurance Co. two months after the vehicle,audio_7_55.mp3 +"got involved in the accident. When a claim wasnational insurance Co. ltd vs. seema malhotra and ors on 20 february, 2001",audio_7_56.mp3 +"Resisted the claim on the strength of S. 64-vb of the insurance act of 1938. Repelling the contention of the insurance Co. , the three-judge bench",audio_7_57.mp3 +"held thus: we have, therefore, this position. Despite the bar created by S. 64- vb of the insurance act, the appellant, an authorised insurer, issued",audio_7_58.mp3 +a policy of insurance to cover the bus without receiving the premium therefor. By reason of the provisions of Ss. 147(5) and 149(1) of the,audio_7_59.mp3 +"motor vehicles act, the appellant became liable to indemnify third parties in respect of the liability which that policy covered and to satisfy awards of",audio_7_60.mp3 +compensation in respect thereof notwithstanding its entitlement (upon which we do not express any opinion) to avoid or cancel the policy for the reason that,audio_7_61.mp3 +"the cheque issued in payment of the premium thereon had not been honoured. Thus, the three-judge bench refrained from expressing any opinion on the question",audio_7_62.mp3 +of insurers entitlement to avoid or cancel the policy as against the insured when the cheque issued for payment of the premium was dishonoured. Subsequently,audio_7_63.mp3 +the same question was mooted before a two-judge bench of this court in new india assurance co. Ltd. vs. . Rula and ors. {2000 (3),audio_7_64.mp3 +scc 195} but the question of insurers right to repudiate the claim as against the insurer in a similar situation did not arise therein and,audio_7_65.mp3 +hence the bench parried the question. Thus the question has now to be considered as the same is the crux of the issue involved in,audio_7_66.mp3 +"this Cas. . As pointed out earlier the insurance is a contract whereby one undertakes to indemnify Anr. against loss, damage or liability arising from an",audio_7_67.mp3 +unknown or contingent event and is applicable only to some contingency or act to occur in future. We have to consider how far the legislature,audio_7_68.mp3 +"has controlled the insurance business. S. 2(9) of the insurance act defines insurer, inter alia, as any body corporate carrying on the business of insurance",audio_7_69.mp3 +which is a body corporate Inc. under any law for the time being in force in india. S. 2(d) of the act says that every,audio_7_70.mp3 +insurer shall be subject to all the provisions of this act in relation to any class of insurance business so long as his liabilities in,audio_7_71.mp3 +india in respect of business of that class remain unsatisfied or not otherwise provided for. It is in the aforesaid context that we have to,audio_7_72.mp3 +consider the impact of S. 64-vb of the insurance act. As sub-Ss. (1) and (2) of the said S. alone are material for the purpose,audio_7_73.mp3 +we extract them herein: (1) no insurer shall assume any risk in india in respect of any insurance business on which premium is not ordinarily,audio_7_74.mp3 +payable outside india unless and until the premium payable is received by him or is guaranteed to be paid by such person in such manner,audio_7_75.mp3 +"and within such time as may be prescribed or unless and until deposit of such amount as may be prescribed, is made in advance in",audio_7_76.mp3 +"the prescribed manner.national insurance Co. ltd vs. seema malhotra and ors on 20 february, 2001",audio_7_77.mp3 +"Ascertained in advance, the risk may be assumed not earlier than the date on which the premium has been paid in cash or by cheque",audio_7_78.mp3 +"to the insurer. Sub-S. (1) is not applicable to cases in which premium is ordinarily payable outside india. In other words, the insurer has no",audio_7_79.mp3 +liability to the insured unless and until the premium payable is received by the insurer. As the premium can be paid in cash or by,audio_7_80.mp3 +"cheque, what is the position when the cheque issued to the insurer is dishonoured by the drawee bank? Ss. 51, 52 and 54 of the",audio_7_81.mp3 +indian contract act can profitably be referred to for the purpose of deciding the point. They are subsumed under the sub- title performance of reciprocal,audio_7_82.mp3 +promises in the said act. S. 51 deals with a contract concerning reciprocal promises to be simultaneously performed and in such a contract the promisee,audio_7_83.mp3 +is absolved from performing his promise unless the promisor is ready or willing to perform his part of the promise. S. 52 says that where,audio_7_84.mp3 +the order in which reciprocal promises are to be performed has not been expressly provided in the contract such promise shall be performed in that,audio_7_85.mp3 +order which the nature of the transaction warrants it. Illustration (b) given to S. 52 highlights the utility of the provision. That illustration is as,audio_7_86.mp3 +"follows: a and b contract that a shall make over his stock-in-trade to b at a fixed price, and b promise to give security for",audio_7_87.mp3 +"the payment of the money. As promise need not be performed until the security is given, for the nature of transaction requires that a should",audio_7_88.mp3 +have security before he delivers up his stock. S. 54 of the contract act is to be read in that background. It is extracted below:,audio_7_89.mp3 +"when a contract consists of reciprocal promises, such that one of them cannot be performed, or that its performance cannot be claimed till the other",audio_7_90.mp3 +"has been performed, and the promisor of the promise last mentioned fails to perform it, such promisor cannot claim the performance of the reciprocal promise,",audio_7_91.mp3 +and must make compensation to the other party to the contract for any loss which such other party may sustain by the non-performance of the,audio_7_92.mp3 +"contract. In a contract of insurance when an insurer gives a cheque towards payment of premium or part of the premium, such a contract consists",audio_7_93.mp3 +"of reciprocal promise. The drawer of the cheque promises the insurer that the cheque, on presentation, would yield the amount in cash. It cannot be",audio_7_94.mp3 +forgotten that a cheque is a bill of exchange drawn on a specified banker. A bill of exchange is an instrument in writing containing an,audio_7_95.mp3 +unconditional order directing a certain person to pay a certain sum of money to a certain person. It involves a promise that such money would,audio_7_96.mp3 +"be paid. Thus, when the insured fails to pay the premium promised, or when the cheque issued by him towards the premium is returned dishonoured",audio_7_97.mp3 +by the bank concerned the insurer need not perform his part of the promise. The corollary is that the insured cannot claim performance from the,audio_7_98.mp3 +"insurer in such a situation.national insurance Co. ltd vs. seema malhotra and ors on 20 february, 2001",audio_7_99.mp3 +Void. S. 65 of the contract act says that when a contract becomes void any person who has received any advantage under such contract is,audio_7_100.mp3 +"bound to restore it to the person from whom he received it. So, even if the insurer has disbursed the amount covered by the policy",audio_7_101.mp3 +"to the insured before the cheque was returned dishonoured, insurer is entitled to get the money back. However, if the insured makes up the premium",audio_7_102.mp3 +even after the cheque was dishonoured but before the date of accident it would be a different Cas. as payment of consideration can be treated,audio_7_103.mp3 +as paid in the order in which the nature of transaction required it. As such an event did not happen in this Cas. the insurance,audio_7_104.mp3 +Co. is legally justified in refusing to pay the amount claimed by the respondents. In the light of the above legal position we uphold the,audio_7_105.mp3 +"contention of the appellant insurance Co. . We, therefore, allow this appeal and set aside the impugned judgment of the division bench of the HC .",audio_7_106.mp3 +"The order passed by the state consumer commission will stand restored. J ( k.t. Thomas ) j new delhi; ( r.p. Sethi ) february 20,",audio_7_107.mp3 +"2001.national insurance Co. ltd vs. seema malhotra and ors on 20 february, 2001",audio_7_108.mp3 +"Sri.devaraj vs. sampanna nilaya on 7 december, 2021 1 Crl. a.no.17/2021 kabc010004582021 presented on : 06-01-2021 registered on : 07-01-2021 decided on : 07-12-2021 duration",audio_8_1.mp3 +": 01-11-00 in the court of the lix addl.city Civ. & sessions judge (cch-60) at bengaluru) dated this 07 th day of december, 2021 -:",audio_8_2.mp3 +"p r e s e n t :- sri. Rajeshwara, b.a., l.l.m., lxiv addl.city Civ. & sessions judge, cch-65, c/c lix addl.city Civ. & sessions",audio_8_3.mp3 +"judge, cch-60 bengaluru city. Crl. appeal no .17/2021 appellant/ sri.devaraj, h.S. s/o siddegowda, aged about 54 years, r/at no.3, 103/30, accused sampanna nilaya, vishnumurthy temple",audio_8_4.mp3 +"road, durgamba badavane, kulayi, mangalore 575 011, south canara district. & also at; sri.devaraju, h.s., driver, ksrtc, 3rd depot, kunthikana, mangalore division, south canara district",audio_8_5.mp3 +"m/s divya drishti creations. (rept. By sri.mohith kumar.k, Adv. ) respondent/ smt.asha, d/o i.b.ponnappa, aged about 45 years, r/at no.164/k, 14th cross, 19th main complainant :",audio_8_6.mp3 +"road, rajajinagara 1st stage, bangalore-40 (rept. By smt.r.s.premalatha, Adv. ) j u dg m e n t appellant has filed this appeal u/s.374(3) of code of",audio_8_7.mp3 +"Crl. procedure , being aggrieved by the judgment of conviction and order of sentence passed in c.c.no.19240/2017 dated 09.03.2020 on the file of xix addl.",audio_8_8.mp3 +A.c.m.m. Bangalore. 2. Parties to this appeal shall be referred as per their ranking before the trial court for the purpose of convenience and for,audio_8_9.mp3 +"better appreciation of their contentions. 3. In the memorandum of appeal, appellant has submitted that, trial court has not properly appreciated the evidence available on",audio_8_10.mp3 +"record. According to the complainant the loan was advanced in the year 2014, but no date was mentioned in the complaint and the complainant forcibly",audio_8_11.mp3 +"took the disputed cheque after lapse of three years four months on 23.05.2017 from the W/O the accusedsri.devaraj vs. sampanna nilaya on 7 december,",audio_8_12.mp3 +2021,audio_8_13.mp3 +"Complainant has falsely contended that she has pledged the gold ornaments in the year 2014, but she pledged her gold in a Pvt. Co. in",audio_8_14.mp3 +the month of june 2015 and august 2015 as per ex.p9 to p33. The complainant has no financial capacity to advance the loan to the,audio_8_15.mp3 +accused. The trial court has grossly erred in convicting the accused only on the ground that the accused has admitted the cheques-in-question are belonged to,audio_8_16.mp3 +him and his signatures are available on the cheques. The trial court has not appreciated the material evidence available on record and also admissions made,audio_8_17.mp3 +by the complainant in her evidence. The cheque is not issued for any legally recoverable debt. Impugned judgment of conviction and order of sentence is,audio_8_18.mp3 +"perverse. For the aforesaid reasons, appellant has prayed to interfere into the impugned judgment and order and set aside the same. 4. Along with memorandum",audio_8_19.mp3 +"of appeal, appellant has produced certified copy of the order and judgment dated 09.03.2020. 5. Respondent appeared through counsel. Heard arguments. Adv. for respondent submitted",audio_8_20.mp3 +"written argument. Perused the same. T.c.r were called for reference in this appeal. Now, following are points arising for determination : 1. Whether in the",audio_8_21.mp3 +"light of evidence and material brought before the court, trial court is justified in convicting accused/ appellant for the offence punishable under S. 138 of",audio_8_22.mp3 +negotiable instrument act (n.i.act) and sentencing accused for the said offence ? 2. Whether interference of this court is necessitated ? 3. What order ?,audio_8_23.mp3 +6. It is answered for the aforesaid points as under :- point no.1: in the affirmative. Point no.2: in the negative point no.3: as per,audio_8_24.mp3 +"final order below, for the following:- r e a s on s 7. Point nos. 1 and 2 :- these points are taken together to",audio_8_25.mp3 +"avoid repeated discussions. 8. Accused is known to the complainant through her sister smt.anitha. For financial needs, accused demand rs.4,00,000/- (Rs. four lakhs) hand loan",audio_8_26.mp3 +"from the complainant. Complainant paid hand loan of rs.4,00,000/- (four lakhs) to the accused. Since the complainant's sister smt.anitha fell ill, complainant requested the accused",audio_8_27.mp3 +"to return the loan amount to bear the medical expenses of her sister. For repayment of the said amount, accused issued cheque no.049256 dated 04.05.2017",audio_8_28.mp3 +"for rs.4,00,000/- drawn on vijaya bank, mangaluru bijay branch, mangaluru. Complainant presented the said cheque which came to be dishonoured with endorsement ""funds insufficient"".sri.devaraj vs. ",audio_8_29.mp3 +"sampanna nilaya on 7 december, 2021",audio_8_30.mp3 +"01.06.2017 on the accused. Despite service of notice, accused failed to pay the cheque amount to the complainant. To take action against the accused for",audio_8_31.mp3 +"offence punishable under S. 138 of ni act, complainant filed complaint under S. 200 of Cr.P.C. 9. Perused entire order sheets, complaint",audio_8_32.mp3 +"filed under S. 200 of Cr.P.C. , for the offence punishable under S. 138 of n.i act, sworn statement Aff. of the",audio_8_33.mp3 +"complainant, plea of accusation, examination-in-chief evidence of p.w.1 by way of Aff. , ingredients of documents at ex.p.1 to ex.p33, statement of accused under S. 313",audio_8_34.mp3 +"of Cr.P.C. , evidence of dw.1 and dw-2 and ingredients of documents at ex.d.1 and ex.d.6(a). There is no procedural defect of",audio_8_35.mp3 +any nature while conducting trial relating to Pvt. complaint registered for the offence punishable under section138 of n.i act. 10. So far as appreciation of,audio_8_36.mp3 +"evidence is concerned, complainant smt.asha is examined as p.w.1. P.w.1 has reiterated ingredients of her complaint in her examination in chief. Ex.p.1 cheque, ex.p.2 bank",audio_8_37.mp3 +"endorsement made it clear that cheque issued by the accused came to be dishonoured by his banker for funds insufficient. Ex.p.3 legal notice, ex.p.4 postal",audio_8_38.mp3 +"receipt, ex.p.5 postal acknowledgment made it clear that notice issued by the complainant demanding payment under bounced cheque amount by the accused is served on",audio_8_39.mp3 +"the accused. Ex.p.8 is the loan agreement, ex. P9 and p10 are the statement of account of manappuram finance ltd and ex.p11 to 33 are",audio_8_40.mp3 +"the receipts. With the help of the evidence of pw.1 and contents of ex.p.1 to ex.p.33, complainant successfully discharged initial burden of proof casts under",audio_8_41.mp3 +"S. 138 of n.i act. Thereafter, burden shifts on the accused as per presumptions under S. 118 and 139 of n.i act in the form",audio_8_42.mp3 +of reverse onus on the accused to rebut presumptions. 11. Accused appeared before the court and enlarged on bail. There is no specific plea of,audio_8_43.mp3 +"defence filed by the accused. To rebut presumptions, accused cross-examined p.w.1 and accused examined himself as dw1, examined one witness as dw2 and got marked",audio_8_44.mp3 +documents at ex.d1 and d.6(a). 12. Before considering the point whether accused succeeded to rebut presumptions and to establish his defence to the extent of,audio_8_45.mp3 +"probabilities, it is just and necessary to accumulate undisputed facts in this Cas. . 13. It is not in dispute that bounced cheque belongs to the",audio_8_46.mp3 +"bank account of the accused. It is also not in dispute that, signature appearing on the bounced cheque is the signatures of the accused. It",audio_8_47.mp3 +"is also not in dispute that, cheque presented by the complainant came to be dishonoured by the banker of the accused for the reason stated",audio_8_48.mp3 +in the dishonour memo. 14. Defence set up by the accused in the Cas. is that in the year 2014 he availed financial assistance of,audio_8_49.mp3 +"rs 2,00,000/- from complainant and after lapse of one year, both accused and complainant entered into an agreement as per ex p8. He paid rs.1,00,000/-",audio_8_50.mp3 +"through cheque 76690417 dated 10.02.2017 and remaining amount of rs 1,00,000/- paid by way of cash through his colleague driver Mr. eswarappa. On 23.04.2017, the",audio_8_51.mp3 +complainant along with her friends went to the house of accused threatened the inmates of the house as the accused was in thirupathi and get,audio_8_52.mp3 +"two blank cheque keptsri.devaraj vs. sampanna nilaya on 7 december, 2021",audio_8_53.mp3 +"Police and after arrival of the accused from thirupathi, he too lodged the complaint which was numbered as ncr.no.385/ptn/skl-2017. He further submitted that the act",audio_8_54.mp3 +of the accused does not attracts the ingredients of S. 138 of n.i.act as there is no existing debt or liability and the debt is,audio_8_55.mp3 +barred by time and the complainant has not proved her financial capacity. 15. To assess whether accused succeeded to establish the aforesaid defence to the,audio_8_56.mp3 +"extent of probabilities, it is just and necessary to accumulate admissions elicited in the cross examination of p.w.1. No such admission is elicited in the",audio_8_57.mp3 +"cross examination of pw.1 to show that, bounced cheque was forcibly taken by the complainant and her friends from the house of accused while he",audio_8_58.mp3 +"was in thirupathi. No such admission is elicited in the cross examination of p.w.1 to show that he did not borrow rs.4,00,000/- hand loan from",audio_8_59.mp3 +the complainant. No such admission is elicited in the cross examination of p.w.1 to show that complainant collected bounced cheque from the house of the,audio_8_60.mp3 +accused. 16. Accused examined himself as d.w.1. In his evidence accused reiterated his aforesaid defence. Dw-1 has admitted that the bounced cheque belongs to him,audio_8_61.mp3 +"and he identified his signature on the cheque. Dw-2 harinakshi, W/O accused deposed in support of the defence set up by the accused. However,",audio_8_62.mp3 +"dw-2 failed to produce any document to substantiate her version. Further, dw-2 has admitted in her cross examination that fact that signed blank cheques to",audio_8_63.mp3 +pay school fee of the S/O brother-in-law is not mentioned in her complaint. Dw 1 has admitted in his cross examination that school where,audio_8_64.mp3 +S/O his brother is studying will not accept cheque. Aforesaid admissions coupled with admission in respect of alleged repayment of rs.2 lakhs by accused,audio_8_65.mp3 +to complainant made it clear that defence set up by the accused is not real and true defence. 17. Perused impugned judgment passed by the,audio_8_66.mp3 +"trial court. After taking into consideration evidence adduced by complainant/pw.1, accused/dw1 and dw-2 on oath against oath, considering proved contents of documents produced by the",audio_8_67.mp3 +"complainant at ex.p.1 to ex.p.33 and ex.d.1 to d6, trial court rightly has held that complainant proved Cas. against the accused for offence punishable u/s.138",audio_8_68.mp3 +of n.i.act by drawing presumptions u/s.118 and 139 of n.i.act in favour of the complainant. 18. Relying upon the law laid down in the judgments,audio_8_69.mp3 +"reported in judgment of SC of india reported in air 2010 SC 1898 rangappa v/s mohan, air 2019 SC 876 rohit bhai",audio_8_70.mp3 +"jevanlal patel v/s state of gujarat, Crl. appeal no.799/2010 m/'s s.v.enterprices v/s smt.tulasiram, trial court has held that accused is liable to pay bounced cheque",audio_8_71.mp3 +"amount to the complainant. 19. The accused has relied on the decisions ashwini sathis bhat v/s jeevan diwakar (laws(bom)1999, 230, 2) (2015) 1 SC ",audio_8_72.mp3 +"cases 99, 3) t.p.murugan v/s bojan, (2018) 8 scc 469, 4) vishnudasishnudas v/s vijaya mahantesh reported in ilr 2007 karnataka 1708, 5) m.s.narayana menon @",audio_8_73.mp3 +"mani v/s state of kerala and Anr. (2006)6, scc 39, 6) shreyas agro services pvt ltd v/s chandrakumar s.b (2007(6) kar.l.j 237) and 7) crefcref",audio_8_74.mp3 +"finance ltd, kolkata v/s sree shanthi homes pvt ltd., bangalore and Anr. ilr 2014 kar 2168. Carefully perused law laid down in the aforesaid judgments.sri.devaraj",audio_8_75.mp3 +"vs. sampanna nilaya on 7 december, 2021",audio_8_76.mp3 +"Producing ex.d.1 to d6(a) and examining his wife as dw-2, he is unable to establish his defence to the extent of probabilities. It is difficult",audio_8_77.mp3 +to accept the possibility of complainant being a lady forcibly entered into the house of the accused and threatened the inmates of the house and,audio_8_78.mp3 +got two signed blank cheques from the house. 21. It is settled position of law that S. 20 of n.i.act permits holder of the inchoate,audio_8_79.mp3 +negotiable instrument to fill up for realization whole or part of the legally recoverable debt due from the drawer of the cheque. Further it is,audio_8_80.mp3 +also settled that signed blank cheque is having similar liability that of the cheque issued in filled form. 22. Compared reasons assigned by the trial,audio_8_81.mp3 +court in the impugned judgment of conviction as discussed above with the allegations made in the memorandum of appeal. No grounds are made out in,audio_8_82.mp3 +"the memorandum of appeal to interfere into the impugned judgment of conviction. 23. So far as quantum of sentence is concerned, trial court imposed sentence",audio_8_83.mp3 +"directing the accused to pay fine of rs.7,00,000/-(seven lakhs only) for dishonour of cheque issued for rs.6,90,000 ( six lakhs ninety thousand Rs. ). In default",audio_8_84.mp3 +"of payment of fine amount, accused shall undergo simple imprisonment for a period of three months. Out of fine amount of rs.5,90,000/-(five lakhs ninety thousand",audio_8_85.mp3 +"Rs. ), is ordered to be paid to complainant by way of compensation and rs.10,000/-(ten thousand Rs. ) fine to be paid to state exchequer. Fine amount",audio_8_86.mp3 +imposed is within the purview of S. 138 of n.i.act. Appellant failed to show that sentence imposed is exhorbitant. Accused/appellant failed to show that quantum,audio_8_87.mp3 +"of fine imposed is excessive. There is no merit in the appeal. Order under appeal is sustainable in law. Hence, interference of this court is",audio_8_88.mp3 +"not necessary. Accordingly, point no.1 is answered in the affirmative and point no.2 is answered in the negative. 24. Point no.3 :- in view of",audio_8_89.mp3 +"findings on the above points no.1 and 2, this Crl. appeal is devoid of merits and the same is liable to be dismissed by confirming",audio_8_90.mp3 +"impugned judgment of conviction and order of sentence. Hence, following order is made: o r de r invoking provisions under S. 386 of code of",audio_8_91.mp3 +"Crl. procedure , this Crl. appeal filed u/s.374(3) of Cr.P.C. is dismissed. Consequently, impugned judgment of conviction and order of sentence dated",audio_8_92.mp3 +"09.03.2020 passed in c.c.no.19240/2017 on the file of xix additional chief MM , bengaluru is hereby confirmed. Appellant/accused is hereby directed to appear before the",audio_8_93.mp3 +trial court to deposit the fine amount or to serve the sentence. Office is hereby directed to send back t.c.r. Along with certified copy of,audio_8_94.mp3 +"this judgment to the trial court.sri.devaraj vs. sampanna nilaya on 7 december, 2021",audio_8_95.mp3 +"Printout taken is corrected, signed and then pronounced by me in the open court on this 07 th day of december, 2021.) sd/-7.12.2021 (rajeshwara) i/c",audio_8_96.mp3 +"lix addl.city Civ. & sessions judge, cch-60, lxiv addl.city Civ. & sessions judge, cch-65, bengaluru city.sri.devaraj vs. sampanna nilaya on 7 december, 2021",audio_8_97.mp3 +"M/s lord fincap ltd. vs. . Amruddin on 3 august, 2016 in the court of shri gagandeep jindal: mm (n.i.act): south-east district, saket courts complex:",audio_9_1.mp3 +"new delhi m/s lord fincap ltd. Vs. Amruddin cc No. 57/2015 new cc no.: 618811/2016 u/s 138 NI Act , 1881 1. Name of the",audio_9_2.mp3 +"complainant : m/s lord fincap ltd., 302-303 south extn. Plaza-i leela ram mkt. Masjit moth south extn. Part-ii, new delhi-110049 2. Name of the accused",audio_9_3.mp3 +", : amruddin s/o sultan, r/o h. Parentage & residential No. 1995, block-i, gali No. address 24, sangam vihar, new delhi- 110062 3. Offence complained",audio_9_4.mp3 +"of or : u/s 138 of negotiable proved instruments act, 1881 4. Plea of the accused : pleaded not guilty and claimed trial 5. Final",audio_9_5.mp3 +judgment/order : acquitted 6. Date of judgment/order : 03.08.2016 date of institution : 18.12.2014 date of reserving judgment/order : 23.07.2016 date of pronouncement of judgment/order,audio_9_6.mp3 +": 03.08.2016 judgment 1. By way of the present judgment, i shall dispose off the present complaint filed by m/s lord fincap ltd. (hereinafter referred",audio_9_7.mp3 +"to as 'complainant') against amruddin s/o sultan (hereinafter referred to as 'accused) u/s 138 of NI Act , 1881 r/w S. 142 negotiable instruments",audio_9_8.mp3 +"act, 1881 (hereinafter referred to as 'n.i. Act' in short). 2. Accused has furnished bail bond u/s 437a Cr.P.C. m/s lord fincap",audio_9_9.mp3 +ltd. Vs. Amruddin . Page 1 of 12 3. It is submitted by the complainant that accused approached the complainant to get the pulser 150,audio_9_10.mp3 +cc motorcycle finance. The total cost of the said vehicle was Rs. 74976/- out of which Rs. 39000/- was financed by the complainant vide hire,audio_9_11.mp3 +purchase loan agreement no. N 16140. The said amount was repayable in 24 monthly installment of Rs. 2243/- each. Complainant had issued a settlement letter,audio_9_12.mp3 +"dated 30.08.2014 which was duly delivered upon accused. Accused visited the office of complainant and issued the cheque no. 229560 dated 16.10.2014 of Rs. 36,000/-",audio_9_13.mp3 +"drawn on bank of india, c.r. Park, new delhi in favour of complainant against his legal liability. These cheques got dishonored for the reasons 'funds",audio_9_14.mp3 +"insufficient' while returning memo dated 18.10.2014, whenm/s lord fincap ltd. vs. . Amruddin on 3 august, 2016",audio_9_15.mp3 +Through registered post but accused failed to make the payment against the dishonoured cheque within 15 days from the date of service of legal demand,audio_9_16.mp3 +"notice. Hence, the present Cas. was filed. 4. Notice u/s 251 Cr.P.C. was framed against the accused to which he pleaded not",audio_9_17.mp3 +"guilty and claimed trial. 5. Complainant examined sh. Anil kumar, ar of complainant Co. as cw1 who filed his evidence by way of Aff. ex.",audio_9_18.mp3 +Cw-1/1. Cw-1 has relied upon the following documents:- (a) copy of power of attorney ex. Cw1/a. (b) copy of loan agreement is marked as mark-b.,audio_9_19.mp3 +M/s lord fincap ltd. Vs. Amruddin . Page 2 of 12 (c) copy of letter dated 30.08.2014 alongwith postal receipt is ex. Cw-1/c (colly). (d),audio_9_20.mp3 +original cheque in question is ex. Cw-1/d. (e) copy of returning memo is ex. Cw-1/e. (f) copy of legal demand notice is ex. Cw-1/f. (g),audio_9_21.mp3 +postal receipts and tracking report are ex. Cw1/g and ex. Cw1/h. 6. Accused in his statement u/s 313 Cr.P.C. stated that he,audio_9_22.mp3 +"issued 24 blank signed cheque at the time of execution of loan agreement. He stated that he repaid Rs. 30,000/- to the complainant. 7. Accused",audio_9_23.mp3 +examined himself as dw-1 and sh. Srajuddin as dw2. 8. Final arguments on behalf of both the parties heard. 9. Ld. Counsel for the complainant,audio_9_24.mp3 +argued that the complainant Co. gave loan to the accused which he failed to repay on time. The cheque in question was issued by the,audio_9_25.mp3 +accused after receiving the letter for settlement. He further argued that the accused raised a frivolous defence that he is not liable to pay the,audio_9_26.mp3 +"cheque amount. Accused failed to raise any probable defence and failed to rebut the presumption u/s 118 and 139 of NI Act . Hence, accused",audio_9_27.mp3 +"persons be convicted for the offence u/s 138 of NI Act . 10. On the other hand, ld. Counsel for the accused argued that the",audio_9_28.mp3 +complaint is not filed by authorised person on behalf of complainant Co. . The cheques in question were issued in blank for payment of emi which,audio_9_29.mp3 +was misused by the m/s lord fincap ltd. Vs. Amruddin . Page 3 of 12 complainant. The complainant has claimed more than the amount actually,audio_9_30.mp3 +"due in the legal demand notice. Therefore, the legal demand notice is not the valid notice. Accused is not liable to pay cheque amount. Hence",audio_9_31.mp3 +"accused be acquitted. 11. From the arguments of both the parties, following questions for consideration arises :m/s lord fincap ltd. vs. . Amruddin on 3",audio_9_32.mp3 +"august, 2016",audio_9_33.mp3 +Co. or not ? (b) whether the accused is liable to pay the cheque amount to the complainant or not ? question (a) 12. S. ,audio_9_34.mp3 +"142 of ni act provides that no court shall take cognizance of an offence u/s 138 ni act except upon complaint, in writing, made by",audio_9_35.mp3 +"the payee or, as the Cas. may be, holder in due course of the cheque. In the present Cas. , the complainant Co. is the payee",audio_9_36.mp3 +"of the cheque in question and it had filed complaint u/s 138 ni act through its representative mr. Anil kumar. To prove his Auth. , the",audio_9_37.mp3 +"complainant has relied upon a power of attorney ex. Cw1/a. In the said power of attorney ex. Cw1/a, mr. Manish pawani, director of complainant Co. ",audio_9_38.mp3 +authorised mr. Anil kumar to file a present complaint on behalf of complainant's Co. . 13. During cross examination mr. Anil kumar deposed that there are,audio_9_39.mp3 +four directors in the complainant Co. . A board resolution was passed in his favour to appoint him authorized m/s lord fincap ltd. Vs. Amruddin .,audio_9_40.mp3 +Page 4 of 12 representative of the complainant Co. . The said board revolution never produced on record. 14. Despite categorical cross examination of the alleged,audio_9_41.mp3 +"ar for the complainant on this aspect, the said ar of the complainant has failed to ratify the Auth. given to him and to place",audio_9_42.mp3 +board resolution on record to prove the Auth. of the person who had executed the power of attorney. The complainant has also failed to bring,audio_9_43.mp3 +"any articles of Assn. of the Co. showing that mr. Manish pawani, alleged director, has been authorized to execute the power of attorney and neither",audio_9_44.mp3 +"mr. Manish pawani has come to witness box to prove the Auth. in his favour. The court cannot ignore the mandate of S. 291, the",audio_9_45.mp3 +"companies act, 1956 which directs that the power of companies shall be either exercised in general meetings or by board of directors. The power of",audio_9_46.mp3 +attorney ex. Cw-1/a is devoid of any mention regarding the board resolution which authorises mr. Manish pawani to execute power of attorney and authorise sh.,audio_9_47.mp3 +"Anil kumar to file the present complaint Cas. . Therefore, the power of attorney ex. Cw-1/a cannot be construed to be valid in the eyes of",audio_9_48.mp3 +"law. As per S. 194 of companies act, 1956, minutes of meeting kept in accordance with the provisions of S. 193 shall be evidence of",audio_9_49.mp3 +the proceedings recorded therein. The cw 1 has neither filed the minutes of the meeting in which the said board resolution passed nor produced the,audio_9_50.mp3 +"original board resolution. In these circumstances, it is clear that the said power of attorney m/s lord fincap ltd. Vs. Amruddin . Page 5 of",audio_9_51.mp3 +"12 has not been proved according to law. (reference : birla dlw ltd. vs. prem engineering works, 77 (1999) dlt 171 and baker oil tools",audio_9_52.mp3 +"(india) pvt. Ltd. vs. baker hughes ltd. & anr, rfa No. 583/2004, decided on 03.06.2011). 15. In view of the above discussion, the complainant has",audio_9_53.mp3 +failed to prove the Auth. of mr. Anil kumar to file the present complaint on behalf of the complainant. Question (b)m/s lord fincap ltd. vs. ,audio_9_54.mp3 +". Amruddin on 3 august, 2016",audio_9_55.mp3 +"To prove this defence, the accused relied upon the documents filed by the complainant itself and also examined himself as witness u/s 315 code of",audio_9_56.mp3 +"Crl. procedure 17. Although, it is true that for prosecution under S. 138 of n.i act, complainant is not obliged to prove the original consideration",audio_9_57.mp3 +as it is expected in a suit for recovery of money but when execution of the cheque and debt or liability is disputed by the,audio_9_58.mp3 +"accused. Complainant could have filed statement of account of the accused which could evince as to how many installments have been paid by the accused,",audio_9_59.mp3 +how other charges had been calculated and how much amount is outstanding against him. Since complainant is a nbfc and must be maintaining its books,audio_9_60.mp3 +"of account, therefore, it was incumbent upon it to have filed its books of account in support of its claim. 18. To give teeth to",audio_9_61.mp3 +"my observation, i would like to refer to a judgment in murugan financiers vs. p.v. Perumal, 2006 cr lj m/s lord fincap ltd. Vs. Amruddin",audio_9_62.mp3 +. Page 6 of 12 269 (mad) wherein the order acquitting the accused was upheld on the finding that since the complainant being a finance,audio_9_63.mp3 +"Co. has not produced books of account in support of claim, complainant has not proved debt or legally enforceable liability satisfactorily. 19. Also in the",audio_9_64.mp3 +"recent Cas. of m/s goodwill hire purchase vs. daljit singh alias jangi, 2011 (1) rcr Civ. 132 (p & h), it was held :""....the complainant",audio_9_65.mp3 +has neither placed nor proved on record the alleged hire purchase agreement nor any statement of account relating to alleged hire purchase transaction and as,audio_9_66.mp3 +"such in absence of any documentary proof, it could not be presumed or established that the accused-respondent ever entered into any hire purchase agreement with",audio_9_67.mp3 +him. Even no statement of account was produced by the complainant to show the liability of the accused and nothing was shown in the income-tax,audio_9_68.mp3 +"record, inspite of the fact that complainant firm is income-tax assessee and no bank record was produced on file from which it could be inferred",audio_9_69.mp3 +"that the amount paid to the accused was withdrawn from any bank. Moreover, the complainant failed to prove on record that there was no legally",audio_9_70.mp3 +"enforceable debt of the accused, there was no liability of the accused to make payment of the alleged amount to the complainant and presumption under",audio_9_71.mp3 +"S. 139 of the act stands rebutted......"" 20. The complainant had admitted in ex. Cw1/c that accused made the payment of 14 emis of Rs. ",audio_9_72.mp3 +2243/- each. The complainant has not filed statement of loan account of the accused to prove the outstanding amount against the accused in respect of,audio_9_73.mp3 +"the loan in question. 21. So, in view of the aforementioned judgments, it is clear that the complainant being a nbfc ought to have produced",audio_9_74.mp3 +"statement of account in support of its claim. So, when m/s lord fincap ltd. Vs. Amruddin . Page 7 of 12 accused has disputed his",audio_9_75.mp3 +liability to pay the cheuqe amount and complainant witness has relied upon the statement of account then it become incumbent upon the complainant to furnish,audio_9_76.mp3 +"its books of account which the complainant have failed to do. Moreover, when the complainant being a nbfc must be maintaining books of account in",audio_9_77.mp3 +"its day-to-day business activities, so there should not be any impediment to produce the books of account and withholding of such material document would oblige",audio_9_78.mp3 +"the court to draw an adverse inference against the complainant. Hence, i am inclined to raise adverse presumption against the complainant u/sm/s lord fincap ltd.",audio_9_79.mp3 +"vs. . Amruddin on 3 august, 2016",audio_9_80.mp3 +"Could be and is not produced would, if produced, be unfavourable to the person withholds it. 22. In the present Cas. the complainant granted a",audio_9_81.mp3 +loan of Rs. 39000/- which was repayable in 24 emis of Rs. 2243/- each. The complainant has relied upon letter dated 30.08.2014 ex. Cw-1/c and,audio_9_82.mp3 +has alleged that the cheque in question was issued by the accused after receiving the said letter to pay the outstanding amount of the loan,audio_9_83.mp3 +"in question. In the said letter ex. Cw-1/c, it is clearly mentioned that accused had defaulted in making of payment of monthly installment after paying",audio_9_84.mp3 +14 emi. The accused has also deposed on oath that he made the payment of Rs. 34000/- approximately to the complainant. The complainant has admitted,audio_9_85.mp3 +the payment of 14 emis in the letter ex. Cw1/c. In these circumstances the m/s lord fincap ltd. Vs. Amruddin . Page 8 of 12,audio_9_86.mp3 +accused was liable to pay only 10 emi of Rs. 2243/- each alongwith the cheque bouncing charges of Rs. 4550/- and over due charges of,audio_9_87.mp3 +"Rs. 7627/- as mentioned in the letter ex. Cw- 1/c (colly). Though, the liability of the accused to pay the cheque bouncing charges of Rs. ",audio_9_88.mp3 +"4550/- and overdue charges of Rs. 7627/- is not proved by the complainant by withholding the statement of account as discussed above. Even if, the",audio_9_89.mp3 +"liability of the accused is calculated as per the letter ex. Cw1/c, accused was liable to pay Rs. 34607/- only (10 emi of Rs. 2243",audio_9_90.mp3 +"+ Rs. 4550 + Rs. 7627) whereas, the total cheque amount is Rs. 36,000/-. Therefore, this court is of considered opinion that accused is not",audio_9_91.mp3 +liable to pay the total cheque amount to the complainant. 23. The Hon'ble HC of delhi in m/s alliance infrastructure project pvt. Ltd. And,audio_9_92.mp3 +"ors. Vs vinay mittal crl. M.c. No.2224/2009 dated 18.01.2010 has held as under:- ""8. The question which comes up for consideration is as to what",audio_9_93.mp3 +"the expression ""amount of money"" means in a Cas. where the admitted liability of the drawer of the cheque gets reduced, on account of part",audio_9_94.mp3 +"payment made by him, after issuing but before presentation of cheque in question. No doubt, the expression ""amount of money"" would mean the amount of",audio_9_95.mp3 +"the cheque alone in Cas. the amount payable by the drawer, on the date of presentation of the cheque, is more than the amount of",audio_9_96.mp3 +"the cheque. But, can it be said the expression ""amount of money"" would always mean the amount of the cheque, even if the actual liability",audio_9_97.mp3 +of the drawer of the cheque has got reduced on account of some payment made by him towards discharge of the debt or liability in,audio_9_98.mp3 +"consideration of which cheque in question was issued. If it is held that the expression ""amount of money"" would necessarily mean the amount of cheque",audio_9_99.mp3 +"in every Cas. , the drawer of m/s lord fincap ltd. Vs. Amruddin . Page 9 of 12 the cheque would be required to make arrangement",audio_9_100.mp3 +for more than the admitted amount payable by him to the payee of the cheque. In Cas. he is not able to make arrangement for,audio_9_101.mp3 +"the whole of the amount of the cheque, he would be guilty of the offence punishable under S. 138 of NI Act . Obviously this",audio_9_102.mp3 +could not have been the intention of the legislature to make a person liable to punishment even if he has made arrangements necessary for payment,audio_9_103.mp3 +of the amount which is actually payable by him. If the drawer of the cheque is made to pay more than the amount actually payable,audio_9_104.mp3 +"by him, the inevitable result would be that he will have to chase the payee of the cheque to recover the excess amount paid by",audio_9_105.mp3 +"him. Therefore, im/s lord fincap ltd. vs. . Amruddin on 3 august, 2016",audio_9_106.mp3 +"Reduced, on account of certain payments made after issue of cheque, the payee would nevertheless be entitled to present the cheque for the whole of",audio_9_107.mp3 +"the amount, to the banker of the drawer, for encashment and in Cas. such a cheque is dishonoured for wants of funds, he will be",audio_9_108.mp3 +guilty of offence punishable under S. 138 of negotiable instrument act. 9.i am conscious of the implication that the drawer of a cheque may make,audio_9_109.mp3 +payment of a part of the amount of the cheque only with a view to circumvent and get out of his liability under S. 138,audio_9_110.mp3 +"of negotiable instrument act. But, this can easily be avoided, by payee of the cheque, either by taking the cheque of the reduced amount from",audio_9_111.mp3 +the drawer or by making an endorsement on the cheque acknowledging the part payment received by him and then presenting the cheque for encashment of,audio_9_112.mp3 +"only the balance amount due and payable to him. In fact, S. 56 of negotiable instrument act specifically provides for an endorsement on negotiable instrument,",audio_9_113.mp3 +"in Cas. of part-payment and the instrument can thereafter be negotiated for the balance amount. It would, therefore, be open to the payee of the",audio_9_114.mp3 +cheque to present the cheque for payment of only that much amount which is due to him after giving credit for the part-payment made after,audio_9_115.mp3 +issuance of cheque. The view being taken by me was also taken by a division bench of kerala HC in joseph sartho vs. .,audio_9_116.mp3 +"Gopinathan nair, 2009 (2) crimes 463 (kerala). M/s lord fincap ltd. Vs. Amruddin . Page 10 of 12 as noted by the Hon'ble SC ",audio_9_117.mp3 +"in rahul builders vs. . Arihant fertilizers & chemicals and Anr. , (2008) 2 scc 321, NI Act envisages Appl. of the penal provisions which",audio_9_118.mp3 +"needs to be construed strictly. Therefore, even if two views in the matter are possible, the court should lean in favour of the view which",audio_9_119.mp3 +"is beneficial to the accused. This is more so, when such a view will also advance the legislative intent, behind enactment of this Crl. liability"".",audio_9_120.mp3 +"24. In the present Cas. also, the accused has raised the defence that he issued the blank signed cheques for payment of emi. The complainant",audio_9_121.mp3 +"is authorised to fill the contents of the cheques issued by the accused as per the provisions of S. 20 of ni act. But, the",audio_9_122.mp3 +complainant has to prove the liability to the tune of cheque amount to held the accused liable u/s 138 ni act. The accused was liable,audio_9_123.mp3 +to pay only 10 emi of Rs. 2243/- each alongwith the cheque bouncing charges of Rs. 4550/- and over due charges of Rs. 7627/- as,audio_9_124.mp3 +"mentioned in the letter ex. Cw-1/c (colly). But the complainant filled the amount of Rs. 36000/- in the cheque in question. As such, the above",audio_9_125.mp3 +mentioned observation of Hon'ble HC of delhi in the Cas. of m/s alliance infrastructure project pvt. Ltd. And ors. Vs vinay mittal (supra) has,audio_9_126.mp3 +to apply squarely in the present situation. Once the actual liability is proved to be less than the amount for which the cheque has been,audio_9_127.mp3 +"presented to the bank, the aforesaid judgment has to be applied. At the time of presentation of cheques in question, the complainant claimed the entire",audio_9_128.mp3 +"cheque amount in stead of the actual liability of the accused. Therefore, accused can not be held liable for the offence u/s 138 ni act",audio_9_129.mp3 +"because his m/s lord fincap ltd. Vs. Amruddin . Page 11 of 12 actual liability is less than the total cheque amount. 25. Whereas, the",audio_9_130.mp3 +"total cheque amount is only Rs. 36000/- and the actual liability of the accused is Rs. 34067/- if calculated as per letter ex. Cw-1/c, which",audio_9_131.mp3 +"is less than the total cheque amount. Therefore, the legal demand notice ex. Cw1/f is not a valid notice and would not fasten any Crl. ",audio_9_132.mp3 +"liability on account of its non-compliance as observed by the Hon'ble SC ofm/s lord fincap ltd. vs. . Amruddin on 3 august, 2016",audio_9_133.mp3 +"Conclusion: in view of the aforesaid findings, the court is of the considered opinion that accused is able to adduce a probable defence that the",audio_9_134.mp3 +present complaint is not filed by properly authorised person on behalf of complainant and he is not liable to pay cheque amount and the legal,audio_9_135.mp3 +demand notice is not valid notice. He successfully rebut the presumption u/s 139 of NI Act . The onus to prove the legal liability of,audio_9_136.mp3 +"the accused shifts back to the complainant, which the complainant has failed to discharge. Hence, accused amruddin is acquitted for the offence u/s 138 n.i.",audio_9_137.mp3 +"Act. Announced in the open court (gagandeep jindal) on 03.08.2016 mm(n.i. Act):sed: saket courts, new delhi m/s lord fincap ltd. Vs. Amruddin . Page 12",audio_9_138.mp3 +"of 12m/s lord fincap ltd. vs. . Amruddin on 3 august, 2016",audio_9_139.mp3 +"M/S. mro-tek realty vs. dexcel electronics designs on 11 january, 2023 1 c.c. No.12240/2022 kabc030319432022 presented on : 21-04-2022 registered on : 21-04-2022 decided on",audio_10_1.mp3 +": 11-01-2023 duration : 0 years, 8 months, 20 days in the court of xxvii addl. Chief MM , bengaluru present: sri. H. Satish b.a.l.",audio_10_2.mp3 +"Ll.b., ll.m., xxvii a.c.m.m bengaluru. Dated: this the 11th day of january 2023. C.c. No.12240/2022 complainant m/s. Mro-tek realty Ltd. Co. Inc. under the companies",audio_10_3.mp3 +"act, 1956 having registered office at no.6, new bel road, chikkamaranahalli, bengaluru -560054. Represented by its authorized signatory mr. Srivathsa (by sri. Sandeep christopher Adv. )",audio_10_4.mp3 +"v/s. 2 c.c. No.12240/2022 accused 1. Dexcel electronics designs Pvt. ltd., having registered office at no.138, 3rd floor, maruthi tower, airport road,m/S. mro-tek realty vs. ",audio_10_5.mp3 +"dexcel electronics designs on 11 january, 2023",audio_10_6.mp3 +"bengaluru -560008. Represented by its managing director mr. Amit kumar sinha 2. Mr. Amit kumar sinha, aged about 44 years, s/o. Mr. Ram lakhan prasad,",audio_10_7.mp3 +"managing director dexcel electronics designs Pvt. having registered office at no.138, 3rd floor, maruthi tower, airport road, kodihalli, bengaluru- 560008. 3. Mr. Kamal chander thakur,",audio_10_8.mp3 +"aged about 46 years, s/o. Bidhi chand thakur, director dexcel electronics designs Pvt. having registered office at no.138, 3rd floor, maruthi tower, airport road, kodihalli,",audio_10_9.mp3 +"bengaluru -560008. (by sri.chander kumar. Offence Adv. .,) u/s.138 of NI Act . 3 c.c. No.12240/2022 plea of the accused claims to be tried final order",audio_10_10.mp3 +convicted judgment date 10/01/2023 **** judgment the complainant firm has filed complaint u/sec.200 of Cr.P.C. against the accused no.1 to 3 for,audio_10_11.mp3 +the offence punishable u/sec.138 of negotiable instrument act. 2. The facts germane for disposal of the instant complaint can be summarized as per following:-m/S. mro-tek,audio_10_12.mp3 +"realty vs. dexcel electronics designs on 11 january, 2023",audio_10_13.mp3 +Manufacturing networking equipment and providing networking solutions to its customers and the accused no.1 is a Pvt. Ltd. Co. engaged in the business of designing,audio_10_14.mp3 +c.c. No.12240/2022 and developing customized hardware and the accused no.2 is the managing director and the accused no.3 is the director of the accused no.1,audio_10_15.mp3 +"Co. and they approached the complainant Co. in the month october 2019 to procure certain goods like controller card, front panel, tx and rx and",audio_10_16.mp3 +"after mutual discussion, the accused persons issued purchase order dated: 10/12/2019 to the complainant Co. for the manufacture and supply of aforesaid goods. 3. It",audio_10_17.mp3 +"is stated that, in terms of the purchase order issued by the accused no.1 Co. , the complainant Co. procured raw materials for the entire quantity",audio_10_18.mp3 +"of front panel, tx and rx and controller cards and manufactured and supplied 6 units of controller cards to the accused no.1 Co. in 2",audio_10_19.mp3 +batches and the accused no.1 c.c. No.12240/2022 Co. accepted the delivery of the said controller cards upon being satisfied that the products manufactured and supplied,audio_10_20.mp3 +"were as per the specification given by the accused no.1 Co. and released payments towards the same. 4. It is stated that, thereafter, the accused",audio_10_21.mp3 +no.1 Co. started raising untenable issues in respect of controller cards supplied to it and instructed the complainant Co. not to proceed with manufacturing the,audio_10_22.mp3 +"remaining units of controller cards and stated that as the complainant Co. had already purchased the raw materials, as per requirements of accused no.1, it",audio_10_23.mp3 +"called upon accused no.1 Co. through e-mails, letters and phone calls to take delivery of raw materials and release payment for c.c. No.12240/2022 the same",audio_10_24.mp3 +and the accused no.1 Co. avoided accepting delivery of the said raw materials and making payment for the same for the period of almost 1,audio_10_25.mp3 +"years. It is stated that, after persistent follow up, the accused persons assured the complainant Co. to take delivery of raw materials on 07/06/2021 against",audio_10_26.mp3 +"post dated cheque for a sum of rs.3,39,99,873/- bearing no.007531 drawn on hdfc bank along with undertaking stating that the accused no.1 Co. would make",audio_10_27.mp3 +"payment within 45 days from the date of delivery of raw materials to the accused no.1 Co. . It is stated that, based on the said",audio_10_28.mp3 +"assurance given by the accused no.1 Co. , the complainant Co. raised invoice dated: 31/3/2021 for the said materials and delivered the same to the accused",audio_10_29.mp3 +"no.1 Co. c.c. No.12240/2022 and the accused no.1 Co. received the materials on 07/06/2021. 5. It is stated that, as per the mutual agreement, the",audio_10_30.mp3 +"complainant Co. presented the aforesaid cheque through its banker ie., bank of baroda, rajajinagar branch and the same got dishonoured and returned with an endorsement",audio_10_31.mp3 +"dated: 26/07/2021 stating ""funds insufficient"" and the same was brought to the notice of the accused no.1 to 3 and the accused no.1 to 3",audio_10_32.mp3 +failed to make the payment covered under the aforesaid cheque and the complainant Co. lodged police complaint against the accused persons with the sadashivnagar police,audio_10_33.mp3 +"station on 12/08/2021 and the police issued non cognizable report on 26/08/2021. Thereafter, the accused no.1 issued letter dated: 27/08/2021m/S. mro-tek realty vs. dexcel electronics",audio_10_34.mp3 +"designs on 11 january, 2023",audio_10_35.mp3 +Liability on or before 11/11/2021 and also undertook to pay penalty @ 18% per annum on the principal amount outstanding and also to furnish tds,audio_10_36.mp3 +"certificates for the interest paid during prior months. 6. It is stated that, in furtherance of the letter dated: 27/08/2021 and the undertaking given and",audio_10_37.mp3 +"also in acknowledgement of the amount dues and payable to complainant Co. by the accused no.1 to 3, the accused no.1 also issued cheque bearing",audio_10_38.mp3 +"no.007994 dated: 11/11/2021 for a sum of rs.3,39,99,873/- drawn on hdfc bank, sarjapur road branch, bengaluru and also made payment towards delay penalty for the",audio_10_39.mp3 +"month of july to november 2021. C.c. No.12240/2022 7. It is stated that, based on the representations and undertaking made by the accused no.1 Co. ",audio_10_40.mp3 +"in its letter dated: 27/08/2021, the complainant Co. presented the said cheque for encashment on 11/11/2021 through its banker ie., bank of baroda, rajajinagar branch,",audio_10_41.mp3 +"bengaluru and the same got dishonoured and returned with an endorsement dated: 12/11/2021 stating ""exceeds arrangements"" and the accused no.1 instead of fully discharging its",audio_10_42.mp3 +"lawful obligations towards the complainant Co. , on being called upon to do so, merely remitted an adhoc amount of rs.30,00,000/- to the complainant Co. on",audio_10_43.mp3 +"11/11/2021. 8. It is stated that, the complainant Co. vide its e-mail dated: 17/11/2021 called upon the accused no.1 Co. to remit the balance c.c.",audio_10_44.mp3 +No.12240/2022 outstanding amount and also to furnish tds certificate and the accused persons issued e-mail dated: 19/11/2021 asking for additional time to make payment commencing,audio_10_45.mp3 +"from 31/12/2021, ending on 15/01/2022 and also shared draft letter undertaking to make payment by 15/01/2022 with conditions and the complainant Co. refused to accept",audio_10_46.mp3 +proposal and afforded time to accused no.1 Co. only till 31/12/2021 to clear outstanding payment and the accused no.1 Co. assured the complainant Co. to,audio_10_47.mp3 +"clear outstanding dues on or before 31/12/2021 and the complainant Co. granted further opportunity to accused no.1 to 3 to discharge the liability. But, accused",audio_10_48.mp3 +"no.1 to 3 failed to make payment and thereafter, the complainant Co. once again re-presented the aforesaid cheque on 01/01/2022 and the same got dishonoured",audio_10_49.mp3 +"and returned with memo dated: 03/01/2022 stating ""payment stopped by the drawer"". C.c. No.12240/2022 9. Thereafter, the complainant Co. got issued demand notice dated: 07/01/2022",audio_10_50.mp3 +"through rpad calling upon them to pay balance amount of rs.3,39,99,873/- along with interest of rs.2,44,051/- and further amount of rs.1,99,299/- towards non issuance of",audio_10_51.mp3 +"tds certificate and rs.590/- towards notice charges and the said notice was duly served upon accused no.1 to 3 on 13/01/2022. After receipt of notice,",audio_10_52.mp3 +"the accused no.1 to 3 issued untenable reply dated: 25/01/2022m/S. mro-tek realty vs. dexcel electronics designs on 11 january, 2023",audio_10_53.mp3 +"The same caused rejoinder notice dated: 03/02/2022 to the accused no.1 Co. denying allegations made in the reply notice, and the same was served upon",audio_10_54.mp3 +"the accused no.1 to 3 on 05/02/2022. It is stated that, the complainant Co. also lodged complaint before the sadashivanagar police station against accused no.1",audio_10_55.mp3 +to 3 on 13/01/2022 and the police c.c. No.12240/2022 have registered Cas. against accused no.1 to 3 and even thereafter the accused no.1 to 3,audio_10_56.mp3 +"failed to make payment of rs.3,14,43,233/-. Hence, this complaint. 10. The sworn statement of the AR of the complainant Co. by name Mr. barun",audio_10_57.mp3 +"pandey was recorded. As the complainant Co. had complied the mandatory requirements of S. 138 of negotiable instrument act, the court issued summons to the",audio_10_58.mp3 +"accused no.1 to 3. After service of summons, accused no.1 to 3 entered appearance and were enlarged on bail. 11. The plea of the accused",audio_10_59.mp3 +no.1 to 3 was recorded and the substance of the accusation was read over to the accused persons in the language known to them and,audio_10_60.mp3 +"the same was explained, to which, the accused persons pleaded not guilty and submitted they have defence to make. C.c. No.12240/2022 12. In order to",audio_10_61.mp3 +"prove the Cas. , the chief financial officer of the complainant Co. by name mr. Srivathsa got himself examined as pw.2 and he adopted the very",audio_10_62.mp3 +"same documents, ie., ex.p.1 to ex.p.17 marked through pw.1. The complainant Co. also got marked ex.p.18 to p.21 documents through dw.1. 13. The statement of",audio_10_63.mp3 +accused no.1 to 3 under S. 313 Cr.P.C. was recorded and the accused no.1 to 3 denied the incriminating evidence appearing against,audio_10_64.mp3 +them. The accused no.2 got himself examined as dw.1 and no documents are marked on his behalf. 14. Heard arguments on both sides. I have,audio_10_65.mp3 +perused the materials on record. C.c. No.12240/2022 15. The following points arise for my determination: (i) whether the complainant Co. proves that towards discharge of,audio_10_66.mp3 +"liability issued cheque bearing no.007994 dated: 11/11/2021 for a sum of rs.3,39,99,873/- drawn on hdfc bank, sarjapur road branch, bengaluru? (ii) whether the complainant Co. ",audio_10_67.mp3 +"proves that accused no.1 to 3 have committed an offence punishable u/sec.138 of negotiable instrument act?m/S. mro-tek realty vs. dexcel electronics designs on 11 january,",audio_10_68.mp3 +2023,audio_10_69.mp3 +16. My answer to the above points is as per following:- point no.1& 2 : in the affirmative point no.3 : as per the final,audio_10_70.mp3 +"order, for the following :- r eas o n s 17. Point nos.1 and 2 : in order to prove the Cas. , the chief financial",audio_10_71.mp3 +officer of the complainant Co. by name Mr. srivathsa got c.c. No.12240/2022 himself examined as pw.2 and he filed Aff. in lieu of examination in,audio_10_72.mp3 +"chief and reiterated complaint averments and the version of pw.1 and he adopted the very same documents ie., ex.p.1 to p.17 marked through pw.1. It",audio_10_73.mp3 +"is to be noted that, during cross examination of dw.1, the complainant Co. also got marked ex.p.18 to p.21 documents. 18. The complainant Co. has",audio_10_74.mp3 +"exhibited the following ex.p-1 to ex.p-21 documents. Ex.p- 1 is the board resolution, ex.p-2 is the purchase order dated: 10.12.2019, ex.p.3 is the letter of",audio_10_75.mp3 +"undertaking dated: 31/3/2021 , ex.p.4 is the copy of the tax invoice, ex.p.5 is the letter of undertaking dated: 27/8/2021, ex.p.6 is the cheque dated",audio_10_76.mp3 +"11/11/2021, ex.p-6(a) is the signature of the accused, ex.p-7 is the email, c.c. No.12240/2022 ex.p.8 is the bank endorsement dt:07/01/2022, ex.p-9 is the office copy",audio_10_77.mp3 +"of legal notice dated 07/01/2022, ex.p-10 to p.12 are the postal receipts, ex.p-13 to p.15 are the three postal acknowledgments. Ex.p-16 is the reply notice",audio_10_78.mp3 +"dated 25/01/2022. Ex.p-17 is the rejoinder notice dated: 03/02/2022, ex.p.18 to p.20 are the emails and ex.p.21 is the certified copy of the statement of",audio_10_79.mp3 +objections filed in Co. petition (ib) no.77/bb/2022. 19. The learned counsel for the complainant vehemently argued that the accused/dw.1 has admitted the transaction in question,audio_10_80.mp3 +and he has also admitted that ex.p-6 cheque belongs to accused no.1 Co. and signature thereon belongs to him and argued accused no.1 to 3,audio_10_81.mp3 +have c.c. No.12240/2022 executed ex.p.3 and p.5 undertaking letters and they have admitted the business transaction and also argued though the accused have taken a,audio_10_82.mp3 +"contention that the ex.p.6 cheque was issued towards security in respect of the transaction in question, at ex.p.16 reply notice, accused no.1 to 3 have",audio_10_83.mp3 +categorically admitted issuance of ex.p.6 cheque and argued the complainant Co. has only demanded the actual amount that was due to the complainant Co. and,audio_10_84.mp3 +"argued the same is not fatal to the Cas. of the complainant Co. and argued by producing all relevant documents, the complainant Co. has ably",audio_10_85.mp3 +established that the accused no.1 to 3 had issued ex.p.6 cheque towards discharge of legally enforceable debt and the accused no.1 to 3 have failed,audio_10_86.mp3 +to rebut the presumption as contemplated under c.c. No.12240/2022 S. 138 of negotiable instrument act and sought to convict the accused. In support of his,audio_10_87.mp3 +"arguments, the complainant counsel relied on the following rulings: 1. Crl. revision petition no.109/2017 decided by the Hon'ble HC of karnataka on 17/11/2020 between",audio_10_88.mp3 +"t.r. Srinivasaiah vs. Chikkamagaluru district co-m/S. mro-tek realty vs. dexcel electronics designs on 11 january, 2023",audio_10_89.mp3 +"2. Air 2021 SC 1308 decided between p. Mohan raj and Ors. ., vs. Shah brothers ispat pvt. Ltd., 3. Ilr 2021 kar 5143 decided",audio_10_90.mp3 +between r. Hanumantharaya vs. A.p. Krishna kumar. 20. Per contra the learned counsel for the accused stoutly argued that the complainant Co. has not placed,audio_10_91.mp3 +substantial materials to establish that the ex.p.6 cheque was issued by the accused no.1 to 3 towards discharge of legal liability and argued the complainant,audio_10_92.mp3 +"Co. has not supplied the materials as per the requirement c.c. No.12240/2022 of the accused and argued that, ex.p.9 notice issued by the complainant Co. ",audio_10_93.mp3 +claiming lesser amount than the amount mentioned in the ex.p.6 cheque is bad in law and argued the accused no.2 by examining himself has ably,audio_10_94.mp3 +established that the subject cheque was obtained by the complainant Co. forcibly and argued accused no.1 to 3 are not liable to pay the amount,audio_10_95.mp3 +"covered under the ex.p.6 cheque and argued by examining dw.1 and by eliciting material answers from pw.2, the accused has disproved the Cas. of the",audio_10_96.mp3 +complainant and rebutted the presumption as contemplated u/s.139 of NI Act and sought to acquit the accused. In support of his arguments the learned,audio_10_97.mp3 +counsel for the accused relied on the ruling reported in (2022) scc online SC 1376 c.c. No.12240/2022 decided between dasharathbhai trikambhai patel vs. Hitesh,audio_10_98.mp3 +mahindrabhai patel. 21. I have gone through the rulings relied on by the complainant and accused and i have taken note of the principles laid,audio_10_99.mp3 +"down in the aforesaid rulings and i have also adopted the same while deciding the instant Cas. . That apart, on considering the arguments addressed by",audio_10_100.mp3 +"the learned counsel for the complainant and accused, before adverting to the oral evidence let in by the complainant and accused and also without touching",audio_10_101.mp3 +"upon the defence set up by the accused, the documents produced by the complainant Co. which are at ex.p6 to p.16 prima-facie discloses that the",audio_10_102.mp3 +"complainant Co. has discharged initial burden of proving issuance and presentation of ex.p6 cheque, bouncing of cheque, c.c. No.12240/2022 issuance of notice and its service.",audio_10_103.mp3 +"At this juncture, i find it relevant to quote ruling reported in 2010(11) scc 441, decided between rangappa vs. Sri. Mohan wherein the Hon'ble apex",audio_10_104.mp3 +"court held that: "" presumption under S. 139 of negotiable instrument act, 1881 includes the presumption of the existence of legally enforceable debt or liability.",audio_10_105.mp3 +"That presumption is required to be honoured and if it is not so done, the entire basis of making these provision will be lost. Therefore,",audio_10_106.mp3 +"it has been held that, it is for the accused to explain his Cas. and defend it once the fact of cheque bouncing is prima-facie",audio_10_107.mp3 +"established. The brain is on him to disprove the allegations once a prima-facie Cas. is made out by the complainant "". 22. In the aforesaid",audio_10_108.mp3 +"ruling the Hon'ble apex court has held that, once the complainant establishes bouncing of cheque, then it is for the c.c. No.12240/2022 accused to disprove",audio_10_109.mp3 +the allegations and also it is for him/her to rebut the presumption as contemplated under S. 139 of negotiable instrument act by placing acceptable evidence,audio_10_110.mp3 +. In the ruling decided by the Hon'ble apex court in Crl. appeal No. 1233 - 1235 of 2022 decided on 12/08/2022 between rasiya v/s,audio_10_111.mp3 +"abdul nazar them/S. mro-tek realty vs. dexcel electronics designs on 11 january, 2023",audio_10_112.mp3 +"Shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in sec.138 of",audio_10_113.mp3 +"the NI Act for discharge, in whole or in part, of any debt or other liability. Therefore, once the initial burden is discharged by",audio_10_114.mp3 +the complainant that the cheque was issued by the accused and the signature and the issuance of cheque is not c.c. No.12240/2022 disputed by the,audio_10_115.mp3 +"accused, in that Cas. , the onus will shift on the accused to prove the contrary that the cheque was not for any debt or other",audio_10_116.mp3 +"liability. The presumption u/sec. 139 of the NI Act is a statutory presumption and thereafter, once it is presumed that the cheque is issued",audio_10_117.mp3 +"in whole or in part of any debt or other liability which is in favour of the complainant / holder of cheque, in that Cas. ,",audio_10_118.mp3 +"it is for the accused to prove the contrary. 23. In the light of the principle laid down above, it is worth to note that,",audio_10_119.mp3 +"the accused no.2/dw.1 in his examination in chief at Para. 4, has deposed ex.p.6 cheque belongs to the accused no.1 Co. and the signature found",audio_10_120.mp3 +"at ex.p.6 cheque belongs to him. It is to be noted that, the accused no.2/dw.1 has also deposed that the complainant Co. had c.c. No.12240/2022",audio_10_121.mp3 +lodged complaint against him before the police in the month of march 2021 and the police called him to the police station and the police,audio_10_122.mp3 +"and the complainant insisted him to execute ex.p.5 document and forcibly took ex.p.6 cheque from him. Be that as it may, at ex.p.16 reply notice",audio_10_123.mp3 +"issued by accused no.1 to 3 at Para. 7, the accused have taken a defence that the subject cheque was issued as a security. Before",audio_10_124.mp3 +"going into the stand taken by the accused, the said admission of dw.1 makes it clear that the accused no.2/dw.1 is admitting his signature at",audio_10_125.mp3 +"ex.p.6 cheque and accused no.1 to 3 have also admitted that ex.p.6 cheque belongs to accused no.1 Co. . Therefore, this court will have to raise",audio_10_126.mp3 +presumption as contemplated u/sec.139 of NI Act that ex.p.6 cheque was issued by the accused n.1 to 3 towards discharge of debt. C.c. No.12240/2022,audio_10_127.mp3 +"24. At this juncture, i find it appropriate to quote the ruling reported in (2009) 2 scc 513 decided between kumar exports v/s. Sharma carpets,",audio_10_128.mp3 +the Hon'ble apex court at Para. 20 & 21 has explained the course to be adopted by the accused to disprove the Cas. of the,audio_10_129.mp3 +"complainant and to rebut the presumption as envisaged u/sec. 139 of the NI Act . At Para. 20, it is held that, the accused in",audio_10_130.mp3 +a trial u/sec. 138 of the NI Act has two options. He can either show that consideration and debt did not exist or that,audio_10_131.mp3 +"under the particulars circumstances of the Cas. , the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no",audio_10_132.mp3 +"consideration and debt existence. To rebut the statutory presumption, an accused is not expected to prove his defence beyond reasonable doubt as his expected of",audio_10_133.mp3 +the complainant in a Crl. trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and,audio_10_134.mp3 +"there was no debt or liability to be discharged by c.c. No.12240/2022 him. However, the court need not insist in every Cas. , that the accused",audio_10_135.mp3 +should disprove the non- existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At,audio_10_136.mp3 +"the same time, it is clear that, bare denial of the passing of the consideration and the existence of debt, apparently would not serve the",audio_10_137.mp3 +purpose of the accused. Something which is probable has to be brought on record for getting the burden of prove shifted to the complainant. To,audio_10_138.mp3 +"disprove the presumptions, the accused should bringm/S. mro-tek realty vs. dexcel electronics designs on 11 january, 2023",audio_10_139.mp3 +"The consideration and debt did not exist or there non- existence was so probable that a prudent man would under the circumstances of the Cas. ,",audio_10_140.mp3 +act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by,audio_10_141.mp3 +"the consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances, so",audio_10_142.mp3 +"relied upon c.c. No.12240/2022 or compelling, the burden may like wise, shift again on to the complainant. The accused may also rely upon presumptions of",audio_10_143.mp3 +"fact, for instance, those mentioned in sec.114 of the evidence act, to rebut the presumption u/sec. 118 & 139 of the NI Act . At",audio_10_144.mp3 +"Para. 21, the Hon'ble apex court held that the accused has also an option to prove the non-existence of consideration and debt or liability either",audio_10_145.mp3 +"by letting in evidence or in some clear and exceptional cases from the Cas. set out by the complainant, i.e. the averments in the",audio_10_146.mp3 +"complaint, the Cas. set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and",audio_10_147.mp3 +"accepted by the court, having regard to all the circumstances of the Cas. and the preponderance of probabilities, the evidential burden shift back to the",audio_10_148.mp3 +"complainant and, therefore, the presumption u/sec. 118 and 139 of the NI Act will not again come to the complainant's rescue. C.c. No.12240/2022 25.",audio_10_149.mp3 +"In this backdrop, now i entered in to the domain of defense set up by the accused no.1 to 3 to ascertain whether they have",audio_10_150.mp3 +"been able to rebut the presumption as contemplated u/sec.139 of the NI Act , for which i find it appropriate to examine each and every",audio_10_151.mp3 +"aspect in detail. (i) transaction: 26. It is to be noted that, it is the Cas. of the complainant Co. that it had supplied raw",audio_10_152.mp3 +"materials on 07/06/2021 to the accused no.1 to 3 and the accused persons took delivery of the said materials and in that regard, invoice dated:",audio_10_153.mp3 +31/03/2021 was raised by the complainant Co. and the accused no.1 to 3 received the said materials and issued letter of undertaking dated: 31/03/2021. In,audio_10_154.mp3 +"order to establish the transaction in question, the complainant Co. has produced ex.p.2 purchase order dated: c.c. No.12240/2022 10/12/2019, ex.p.4 tax invoice dated: 31/03/2021 and",audio_10_155.mp3 +"ex.p.3 undertaking letter dated: 31/03/2021. 27. During examination in chief, dw.1 deposed that complainant is known to him and he is the ceo and managing",audio_10_156.mp3 +director of accused no.1 Co. and accused no.3 is the director of the accused no.1 Co. and deposed during 2019 accused no.1 had business transaction,audio_10_157.mp3 +with the complainant Co. for purchase of 4 types of electronic cards and deposed the complainant Co. were supposed to manufacture the same and supply,audio_10_158.mp3 +to us and deposed the accused no.1 had raised purchase order as per ex.p.2 and deposed the complainant Co. supplied only 3 types of electronic,audio_10_159.mp3 +cards and that the accused no.1 Co. has paid the entire value of the said 3 types of electronic cards. Dw.1 also deposed that out,audio_10_160.mp3 +"of 132 controller cards, the complainant c.c.m/S. mro-tek realty vs. dexcel electronics designs on 11 january, 2023",audio_10_161.mp3 +And the said 6 controller cards were defective in nature and that the same was brought to the notice of the complainant Co. and the,audio_10_162.mp3 +"complainant Co. told that they are not able to manufacture properly. Dw.1 also deposed that as their customer was pressurizing for supply of materials, the",audio_10_163.mp3 +accused no.1 Co. asked complainant Co. to provide raw materials and the complainant Co. supplied the same and that accused no.1 Co. has not paid,audio_10_164.mp3 +"the value towards supply of raw materials. It is worth to note that, the said testimony of dw.1 corroborate the averments made in the complaint.",audio_10_165.mp3 +". 28. That, apart dw.1 in his cross examination, at Para. 1, admitted that accused no.1 Co. had c.c. No.12240/2022 raised purchase order as per",audio_10_166.mp3 +"ex.p.2 and at Para. 5, dw.1 admitted ex.p.4 invoice was issued by the complainant Co. in respect of supply of raw materials and admitted that",audio_10_167.mp3 +"raw materials were supplied by accused no.1 Co. to bharath electronic ltd., and admitted that the amount what he deposed in his examination in chief",audio_10_168.mp3 +"was paid only in respect of item no.2 to 4 mentioned in ex.p.2 document. At Para. 6, pw.1 admitted that accused no.1 Co. has received",audio_10_169.mp3 +materials mentioned under ex.p.4 tax invoice and admitted that no dispute was raised by accused no.1 Co. with respect to the correctness of the goods,audio_10_170.mp3 +or the value mentioned under ex.p.4 invoice. At Para. 7 dw.1 admitted that the materials received by the accused no.1 Co. from complainant Co. was,audio_10_171.mp3 +"supplied to bharath electronics Ltd. . C.c. No.12240/2022 29. It is to be noted that, during cross examination, at Para. 2, pw.2 deposed €□2 ‚ƒ„ …‚†„",audio_10_172.mp3 +€‡‡‚ˆ††‰ 1 ††‚ 4 ‡„†š‹€† € œ††□ ž†□€□†‚ □†‡†□ ž†□€ ƒ††‚ ‡‘†‰ ’šš purchase order “†‚† ˆ†. Œ††□ ž†□€ ‡”†” □†‡†□ ž†□€ ‰‰‰•†žž ˆ†’†□ˆ‚†” ‡”†ž”†‚,audio_10_173.mp3 +"€†”† €□.2 †„ €‡‡‚† □š††‰ ‡””‚ ’šš –’’†‡ —□□ž‡†‘††””†‰. €□.2 †„ €‡‡‚š††‰ 4 ˜™†š‹† electronic products □š††””‚. At Para. 3,pw.2 deposed item no.2 to 4",audio_10_174.mp3 +mentioned at ex.p.2 document has been delivered to the accused no.1 Co. and deposed that accused no.1 Co. has paid the value of the same.,audio_10_175.mp3 +"On careful scrutiny of testimony of pw.1 and dw.1 coupled with ex.p.3 and p.4 document, it makes it amply clear that the complainant Co. had",audio_10_176.mp3 +supplied raw materials pertaining to 126 controller cards mentioned in ex.p.2 and the same was supplied to the accused no.1 c.c. No.12240/2022 Co. under ex.p.4,audio_10_177.mp3 +"invoice and that dw.1 in his examination in chief has categorically admitted that, the said raw materials were supplied to the accused no.1 Co. by",audio_10_178.mp3 +the complainant Co. . It is to be noted that dw.1 in his examination in chief has not deposed about issuance of ex.p.3 undertaking letter. 30.,audio_10_179.mp3 +"That apart, the complainant Co. has produced ex.p.5 undertaking letter dated: 27/08/2021, in which the accused no.1 Co. has admitted supply and delivery of raw",audio_10_180.mp3 +"materials and ex.p.5 is is also mentioned that they are issuing ex.p.6 cheque along with the said letter. It is worth to note that, during",audio_10_181.mp3 +"cross examination of dw.1, ex.p.18 to p.20 e-mails and ex.p.21 document were confronted and dw.1 admittedm/S. mro-tek realty vs. dexcel electronics designs on 11 january,",audio_10_182.mp3 +2023,audio_10_183.mp3 +"The business transaction that has taken c.c. No.12240/2022 place between the complainant Co. and accused no.1 Co. . As such, it could be concluded that there",audio_10_184.mp3 +was a business transaction between the complainant Co. and accused no.1 to 3 and that the complainant Co. had supplied raw materials to the accused,audio_10_185.mp3 +no.1 Co. under ex.p.4 tax invoice and the delay of the same is acknowledged by a1 to a.3 as per ex.p.3 and ex.p.5 undertaking letters.,audio_10_186.mp3 +Ii cheque obtained under threat: have taken defence that the complainant Co. had approached sadashivnagar police station in the month march 2021 and had lodged,audio_10_187.mp3 +complaint against them and in the police station the complaint and police insisted accused no.2/dw.1 him to execute ex.p.5 document and forcibly took ex.p.6 cheque,audio_10_188.mp3 +"from him. The same has been deposed by dw.1 in his c.c. No.12240/2022 examination in chief. During cross examination at Para. 13, dw.1 admitted that",audio_10_189.mp3 +"complainant Co. has lodged police complaint against the accused before sadashivanagar police and the accused have suggested to pw.1 that, the signature of the accused",audio_10_190.mp3 +no.2 at ex.p.6 cheque has been obtained at police station and that the accused no.1 to 3 are not liable to pay the amount covered,audio_10_191.mp3 +"under ex.p.6 cheque and the same is denied by pw.1. It is to be noted that, as per complaint averments the complainant Co. has lodged",audio_10_192.mp3 +"complaint against accused in the month of august 2021 and subsequently in the month of january 2022. It is to be noted that, the accused",audio_10_193.mp3 +"persons have issued reply notice dated: 25/01/2022 as per ex.p.16. As discussed at Para. 7 of ex.p.16, it is stated that, the subject cheque along",audio_10_194.mp3 +"c.c. No.12240/2022 with other cheques were issued by the accused no.1 Co. as a security. 32. That apart, at ex.p.3 and ex.p.5 undertaking letters dated:",audio_10_195.mp3 +"31/3/2021 it is categorically mentioned by the accused no.1 Co. that towards discharge of liability, they are depositing post dated cheque for a sum of",audio_10_196.mp3 +"rs.3,39,99,873/-. Therefore, the stand taken by the accused/dw.1 in his examination in chief and the suggestion made by the accused to pw.1 that, the complainant",audio_10_197.mp3 +Co. and police obtained signature of accused no.2/dw.1 at ex.p.6 cheque and they forcibly took the cheque cannot be accepted by this court. It at,audio_10_198.mp3 +"all, the complainant Co. had obtained ex.p.6 cheque and ex.p.5 document in the police station, in such an event the accused no.1 to 3 could",audio_10_199.mp3 +have taken necessary action against the complainant Co. c.c. No.12240/2022 and no positive steps is taken by the accused no.1 to 3. As such it,audio_10_200.mp3 +cannot be said that the complainant Co. had obtained ex.p.6 cheque from the accused no.1 to 3 forcibly. . Iii. Statement of account:m/S. mro-tek realty,audio_10_201.mp3 +"vs. dexcel electronics designs on 11 january, 2023",audio_10_202.mp3 +"Invoice and the amount mentioned in ex.p.6 cheque does not tally with each other. As discussed, in order to establish that accused no.1 to 3",audio_10_203.mp3 +"are liable to pay the amount covered under ex.p.6 cheque, the complainant Co. has produced ex.p.4 tax invoice and on scrutiny of the same, the",audio_10_204.mp3 +"value of the same is mentioned as rs.3,39,99,873/- inclusive of cgst, sgst and tcs. During cross examination, at Para. 7, pw.2 deposed €□ 2 †„",audio_10_205.mp3 +"132 controller card š‹ —™† ™ ‡”” c.c. No.12240/2022 rs.3,13,92,900/- “†‚† €‡‡‚† □š‚ “†‚† ˆ† . €□ 4 ™ ‡””žž 18% GST ",audio_10_206.mp3 +"ˆ††ž‡†‘††””‚. †„ €‡‡‚† □š††‰ —™† at Para. 8, pw.1 deposed €□ 4 †„ €‡‡‚† □š††‰ ™ ‡””‚„ š† 18% GST ”š‚† …‚†",audio_10_207.mp3 +"rs.2,88,17,339/- —™† □š†””‚. Pw.1 deposed that an amount of rs.2,88,17,339/- includes raw materials amount and 13% service charges. 34. It is to be noted that,",audio_10_208.mp3 +"the accused no.2/dw.1 in his examination in chief has not at all deposed anything about the same. Dw.1 in his cross examination, at Para. 6,",audio_10_209.mp3 +"has categorically admited that, accused no.1 Co. has not raised any correctness ass to ex.p.4 invoice. Though, pw.2 has made an attempt to explain the",audio_10_210.mp3 +"reason for not raising dispute, the same is not supported by any documents. That apart, the accused no.1 to 3 have not taken any stand",audio_10_211.mp3 +either in ex.p.3 and p.5 undertaking letters or c.c. No.12240/2022 in the ex.p.16 reply notice about questioning the correctness of amount mentioned in ex.p.4 invoice.,audio_10_212.mp3 +"That apart, at ex.p.4 the amount of rs.3,39,99,873/- is shown as inclusive of cgst, sgst and tcs. As such stand taken by the accused that",audio_10_213.mp3 +"the value mentioned in the ex.p.4 invoice is not proper does not hold water. That apart, as discussed at ex.p.5 the accused no.1 to 3",audio_10_214.mp3 +have categorically mentioned that they are issuing ex.p.6 cheque towards the dues. Iv. Claim of the complainant Co. : have taken defence that they are not,audio_10_215.mp3 +liable to pay the amount mentioned in the ex.p.6 cheque. At ex.p.16 reply notice the accused persons have stated that they are not liable to,audio_10_216.mp3 +"pay the amount claimed by the complainant Co. . During examination in chief, accused no.2/dw.1 deposed that, accused no.1 to 3 c.c. No.12240/2022 are not liable",audio_10_217.mp3 +"to pay the amount covered under ex.p.6 cheque and dw.1 has deposed apart from ex.p.6 cheque, the complainant Co. forced accused no.1 to 3 to",audio_10_218.mp3 +"pay rs.30,00,000/- and the accused no.1 Co. paid the same through rtgs. During cross examination, at Para. 7, dw.1 deposed that the amount of rs.30,00,000/-",audio_10_219.mp3 +"paid by him to the complainant Co. was not towards any liability. Dw.1 voluntarily deposed that he paid the same under duress. That apart, during",audio_10_220.mp3 +"cross examination, at Para. 13, pw.2 admitted ‚€†žž 11/11/2021 € rtgs ‡†ƒ†”† ††‚† □†‡†□”€†‚ †‡.30 „ž •›‰€† □†‡†□ ž†□€□†‚ □‘‚‚‰ “†‚† ˆ† . It is",audio_10_221.mp3 +"to be noted that, though dw.1 in his examination in chief deposed that apart from ex.p.6 he has paid sum of rs.30,00,000/- the date of",audio_10_222.mp3 +"making the said payment c.c. No.12240/2022 by the accused no.1 Co. tom/S. mro-tek realty vs. dexcel electronics designs on 11 january, 2023",audio_10_223.mp3 +"36. Be that as it may, it is required to be noted that, the complainant Co. has issued ex.p7 e- mail dated: 29/11/2021 intimating about",audio_10_224.mp3 +"the dishonour of cheque. In the said ex.p.7 e-mail it is mentioned that, the cheque was bounced on 12.11.2021 and it is also mentioned that",audio_10_225.mp3 +"accused no.1 Co. has paid sum of rs.30,00,000/- and complainant Co. has requested to clear balance amount of rs.3,09,99,873/-. At ex.p.9 notice, the complainant Co. ",audio_10_226.mp3 +"have intimated the accused no.1 to 3 about dishonour of cheque and at Para. 11 & 12 they have demanded an amount of rs.3,09,99,873/- and",audio_10_227.mp3 +"other charges. At Para. 6 of the ex.p.9 notice it is also mentioned that accused no.1 Co. has paid sum of rs.30,00,000/- to the c.c.",audio_10_228.mp3 +"No.12240/2022 complainant Co. and the same is admitted by accused no.1 to 3 in their reply notice ie., ex.p.16 at Para. 16. 37. It is",audio_10_229.mp3 +"to be noted that, ex.p.6 cheque is dated: 11/11/2021 and on the very same day ex.p.6 cheque was presented to the bank and it got",audio_10_230.mp3 +"dishonoured and on the very same date the accused no.1 Co. has remitted an amount of rs.30,00,000/- to the complainant Co. and thereafter, the complainant",audio_10_231.mp3 +"Co. has presented ex.p.6 cheque once gain on 31/12/2021 and the same got dishonoured on 01/01/2022 and thereafter, the complainant Co. got issued ex.p.9 legal",audio_10_232.mp3 +"notice dated: 07/01/2022 and the accused no.1 to 3 replied to the said notice as per ex.p.16. At ex.p.9 legal notice, as discussed the complainant",audio_10_233.mp3 +"Co. has claimed from accused no.1 to 3 to pay balance amount of rs.3,09,99,873/- and c.c. No.12240/2022 other charges. That apart, as per ex.p.7, when",audio_10_234.mp3 +"the ex.p.6 cheque was got dishonoured for the 1 st time the complainant Co. has acknowledged the payment of rs.30,00,000/- and asked for payment of",audio_10_235.mp3 +"balance due to the tune of rs.3,09,99,873/-, as the complainant Co. has admitted remittance of rs.30,00,000/- by accused no.1 Co. and though the said cheque",audio_10_236.mp3 +"was presented to the bank for encashment for the said amount, the demand made by the complainant Co. as per ex.p.9 was only for rs.3,09,99,873/-",audio_10_237.mp3 +"and other charges. That apart, as admitted by dw.1 in his cross examination, he has categorically deposed that, he do not remember whether there was",audio_10_238.mp3 +sufficient fund in the accused no.1 Co. to honour ex.p.6 cheque as on 03/01/2022. C.c. No.12240/2022 38. The learned counsel for the accused relied on,audio_10_239.mp3 +"the ruling reported in (2022) scc online SC 1376 decided between dashrathbhai trikambhai patel vs. Hitesh mahendrabhai patel and Anr. ., and argued as per",audio_10_240.mp3 +"sec.56 of the NI Act , the complainant Co. has not endorsed on the cheque in respect of the payment already made and argued the",audio_10_241.mp3 +offence u/sec.138 of NI Act will not get attracted. On the other hand the learned counsel for them/S. mro-tek realty vs. dexcel electronics designs,audio_10_242.mp3 +"on 11 january, 2023",audio_10_243.mp3 +Circumstances of the instant Cas. and argued when the cheque dishonoured for the 1st time on 11/11/2021 the accused no.1 Co. on the very same,audio_10_244.mp3 +"day has made payment of rs.30,00,000/- and argued the complainant Co. has issued e-mail as per ex.p.7 admitting the said c.c. No.12240/2022 payment and also",audio_10_245.mp3 +"demanded for the balance amount of rs.3,09,99,873/- and argued only thereafter, as the accused did not make the said payment, the complainant Co. presented ex.p.6",audio_10_246.mp3 +cheque on 01.01.2022 and argued the complainant Co. has issued ex.p.9 notice demanding only for the balance amount payable by the accused no.1 to 3,audio_10_247.mp3 +and the accused no.1 to 3 have not paid the said amount and argued the accused no.1 to 3 have not placed any material before,audio_10_248.mp3 +the court to establish that there was sufficient funds in the account of the accused no.1 Co. . 39. In the light of the rival submission,audio_10_249.mp3 +"made by the learned counsel for the complainant accused, i find it appropriate to quote the ruling reported in (2022) scc online SC 1376",audio_10_250.mp3 +"decided between dashrathbhai trikambhai patel vs. Hitesh c.c. No.12240/2022 mahendrabhai patel and Anr. ., wherein the Hon'ble apex court at Para. 29 & 30 has held",audio_10_251.mp3 +"that: 29. Under S. 56 r/w S. 15 of the act, an endorsement may be made by recording the part payment of the debt",audio_10_252.mp3 +"in the cheque or in a note appended to the cheque. When such an endorsement is made, the instrument could still be used to negotiate",audio_10_253.mp3 +"the balance amount. If the endorsed cheque when presented for encashment of the balance amount is dishonoured, then the drawee can take recourse to the",audio_10_254.mp3 +"provisions of S. 138. Thus, when a part payment of the debt is made after the cheque was drawn but before the cheque is encashed,",audio_10_255.mp3 +such payment must be endorsed on the cheque under S. 56 of the act. The cheque cannot c.c. No.12240/2022 be presented for encashment without recording,audio_10_256.mp3 +"the part payment. If the unendorsed cheque is dishonoured on presentation, the offence under S. 138 would not be attracted since the cheque does not",audio_10_257.mp3 +"represent a legally enforceable debt at the time of encashment. 30. In view of the discussions above, we summarise our findings below: (i) for the",audio_10_258.mp3 +"commission of an offence under S. 138, the cheque i.e. dishonoured must represent a legally enforceable debt on the date of maturity or presentation;",audio_10_259.mp3 +(ii) if the drawer of the cheque pays a part or whole of the sum between the period when the cheque is drawn and when,audio_10_260.mp3 +"it is encashed upon maturity, then the legally enforceable debt on the date of maturity would not be the sum represented on the cheque; c.c.",audio_10_261.mp3 +"No.12240/2022m/S. mro-tek realty vs. dexcel electronics designs on 11 january, 2023",audio_10_262.mp3 +It must be endorsed on the cheque as prescribed in S. 56 of the act. The cheque endorsed with the payment made may be used,audio_10_263.mp3 +"to negotiate the balance, if any. If the cheque i.e. endorsed is dishonoured when it is sought to be encashed upon maturity, then the",audio_10_264.mp3 +"offence under S. 138 will stand attracted; 40. It is worth to note that, the facts and circumstances, in the aforesaid ruling relied on by",audio_10_265.mp3 +"the accused, is altogether different when compared with the facts and circumstances of the instant Cas. . In the aforesaid Cas. , the complainant even after receiving",audio_10_266.mp3 +"part amount he had claimed/demanded amount from the accused for the entire value mentioned in the cheque. Whereas, in the instant Cas. when the cheque",audio_10_267.mp3 +"c.c. No.12240/2022 got dishonoured for the 1st time on 12/11/2021, the complainant Co. has issued ex.p.7 e-mail intimating the accused about dishonour of cheque and",audio_10_268.mp3 +"also about receipt of rs.30,00,000/- through rtgs. Notably, the accused has replied to the said e-mail and he has mentioned about the Sch. of payment",audio_10_269.mp3 +to be paid by him and the complainant Co. when it presented ex.p.6 cheque for the 2 nd time on 01/01/2022 and the complainant Co. ,audio_10_270.mp3 +"has only demanded sum of rs.3,09,99,873/- and other charges as per ex.p.9 and not the amount covered under the ex.p.6 cheque. 41. It is to",audio_10_271.mp3 +"be noted that, in the ruling relied on by the complainant decided between r. Hanumantha raya vs. A.p. Krishna kumar decided on 15/06/2021 in crl.",audio_10_272.mp3 +"Revision petition no.56/2019 c.c. No.12240/2022 the Hon'ble HC of karnataka at Para. 3, held that "" apart from bringing to the notice of the",audio_10_273.mp3 +accused about the dishonour of the cheque for a particular sum of money has also acknowledged the receipt of a part of the cheque amount,audio_10_274.mp3 +"subsequent to its dishonour and it is only thereafter, proceeded to claim the actual amount that was due, which act of the complainant cannot be",audio_10_275.mp3 +called as against the object of the notice as contemplated u/sec.138 of the NI Act and the notice cannot be called as imperfect or,audio_10_276.mp3 +"invalid, merely because it was for a smaller amount than the actual amount mentioned in the dishonoured cheque. 42. It is worth to note that,",audio_10_277.mp3 +in the ruling reported in central bank of india vs. Saxons farms and Ors. reported in manu/ c.c. No.12240/2022 SC /0644/1999 Hon'ble apex court,audio_10_278.mp3 +"held "" though in the notice, the demand for compensation, interest cost etc., is also made, the drawer will be absolved from his liability u/sec.138",audio_10_279.mp3 +"of the NI Act , if he meets the demand of the amount covered by the cheque which he was aware, within 15 days from",audio_10_280.mp3 +"the date of the receipt of notice or before the complaint is field"". In the light of the principle laid down above, though the complainant",audio_10_281.mp3 +"Co. has made demadn that, was actual due from the accused Co. in the ex.p.9 notice, other than the amount mentioned in the ex.p.6 cheque",audio_10_282.mp3 +"the same cannot be construed as bad notice, and in my view the indorsement as contemplated u/sec.56 of the NI Act is not required.",audio_10_283.mp3 +"C.c. No.12240/2022 43. At this juncture, i find it relevant to quote the ruling reported in (1989) 4 scc 671, decided between owners and parties",audio_10_284.mp3 +"interested in m.v. Vali pero vs. Fernandeo lopez and Ors. at Para. 18, the Hon'ble apex court has held "" rules of procedure or not",audio_10_285.mp3 +"by themselves an end butm/S. mro-tek realty vs. dexcel electronics designs on 11 january, 2023",audio_10_286.mp3 +Not hurdles to obstruct the pathway to J. . Construction of a rule of procedure which promotes J. and prevents its miscarriage by enabling the court,audio_10_287.mp3 +"to do J. in myriad situations all of which cannot be envisaged, acting within the limits of the cause of J. . The reason is obvious.",audio_10_288.mp3 +Procedure is meant to sub-serve and not rule the cause of J. . Where the outcome and fairness of the procedure adopted is not doubted and,audio_10_289.mp3 +"the essentials of the prescribed procedure have been followed, there is no reason to discard the result simply because certain details which have not prejudicially",audio_10_290.mp3 +"affected the result have been inadvertently omitted in a particular Cas. . In our view, this appears to be c.c. No.12240/2022 the pragmatic approach which needs",audio_10_291.mp3 +"to be adopted while construing a purely procedural provision. Other wise, rules of procedure will become the mistress instead of remaining the handmaid of J. ,",audio_10_292.mp3 +"contrary to the role attributed to it in our legal system"". The principle laid down in the aforesaid ruling is aptly applicable to the Cas. ",audio_10_293.mp3 +on hand. Even if the argument canvassed by the learned counsel for the accused is taken into account that the indorsement as contemplated u/s.56 of,audio_10_294.mp3 +"the negotiable instrument act is not found on ex.p.6 cheque or attached to it, when the actual amount that was due to the complainant Co. ",audio_10_295.mp3 +"payable by the accused no.1 to 3 was clearly mentioned in the ex.p.7 e-mail and demanded in ex.p.9 notice, the accused cannot take advantage of",audio_10_296.mp3 +"the same. C.c. No.12240/2022 44. That apart, the accused no.1 to 3 at ex.p.2 and p.5 undertaking letters have categorically admitted that they are due",audio_10_297.mp3 +"to the complainant Co. . It is to be noted that, in the ruling reported in (1974) 1 scc 242 at Para. 27, the Hon'ble apex",audio_10_298.mp3 +"court held that "" admissions if true and clear are by for the best proof of the facts admitted. Admissions in pleading are judicial admission,",audio_10_299.mp3 +"admissible under sec.58 of the indian evidence act, made by the parties or their agents at or before the hearing of the Cas. , stand on",audio_10_300.mp3 +a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of,audio_10_301.mp3 +"proof. They by themselves can be made foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the",audio_10_302.mp3 +"trial as evidence are by themselves, not conclusive. They can be shown to be wrong. In the light of the principle laid down above, the",audio_10_303.mp3 +admissions made by the accused no.1 to 3 in the c.c. No.12240/2022 ex.p.3 and p.5 undertaking letters will stand on a higher footing and accused,audio_10_304.mp3 +"no.1 to 3 cannot deviate from the same. . 45. It is worth to note that, the accused no.2/dw.1 in his cross examination at Para. ",audio_10_305.mp3 +"8, has deposed that, he do not remember whether there was sufficient funds in the account of accused no.1 Co. to honour ex.p.6 cheque as",audio_10_306.mp3 +"on 03/01/2022 and notably, the accused no.2/dw.1 has not produced any document to show that, there was funds in his account to the extent of",audio_10_307.mp3 +"rs.3,09,99,873/- as claimed by the complainant Co. . In the ruling reported in air 1968 SC 143 decided between gopal krishna g. Ketkar vs. Mohammed",audio_10_308.mp3 +"haji lathif and Ors. ., the Hon'ble apex court while considering the concept of onus of proof, held that "" a party in possession of bestm/S. ",audio_10_309.mp3 +"mro-tek realty vs. dexcel electronics designs on 11 january, 2023",audio_10_310.mp3 +Court ought to draw adverse inference against him. Notwithstanding that onus of proof does not lie on him. Party can rely on abstract doctrine of,audio_10_311.mp3 +"onus of proof or on the fact that he was not called upon to produce it"" . In the light of the principle laid down",audio_10_312.mp3 +"above, when dw.1 claims that, he can produce documents to show that, what was the balance amount available in his account as on 3/1/2022, the",audio_10_313.mp3 +"accused no.2/dw.1 ought to have produce the same. More so ex.p.6 cheque when it was presented to the bank for encashment, it got dishonoured for",audio_10_314.mp3 +"the reasons ""payment stopped by the drawer"". Therefore, in the absence of the document being placed on record by the accused no.1 to 3 to",audio_10_315.mp3 +"establish that there was sufficient funds in the account of the accused no.1 Co. to c.c. No.12240/2022 honour ex.p.6 cheque , it cannot be said",audio_10_316.mp3 +"that, the claim made by the complainant Co. for the amount less than what is mentioned in the ex.p.6 cheque cannot be construed as bad.",audio_10_317.mp3 +"46. It is to be noted that, the complainant Co. has produced ex.p.21 certified copy of the statement of objection filed by the accused no.1",audio_10_318.mp3 +"to 3 in Co. petition (ib) no.77/bb/2022. At para 14 of the said statement, it is mentioned that, cheques were given by the accused no.1",audio_10_319.mp3 +"Co. to the complainant Co. in good faith and the same goes to show that, accused no.1 Co. is admitting issuance of cheques in favour",audio_10_320.mp3 +of the complainant Co. towards discharged of liability. The learned counsel for the accused filed memo and submitted that the said proceedings is pending consideration.,audio_10_321.mp3 +The learned counsel for the complainant relied on the ruling c.c. No.12240/2022 reported in manu/SC /0132/2021 decided between p. Mohan raj and Ors. vs.,audio_10_322.mp3 +"Shah brothers ispat prt. Ltd., and argued that the insolvency proceedings against the directors of the Co. for the offence u/s.138 of NI Act ",audio_10_323.mp3 +"is maintainable and submitted that the said proceedings are pending adjudication. In the light of the above, taking note of the entire materials placed on",audio_10_324.mp3 +"record by the complainant Co. and accused no.1 to 3, it could be concluded that the accused no.1 to 3 have issued ex.p6 cheque to",audio_10_325.mp3 +the complainant Co. towards discharge of legal liability and that they have failed to rebut the presumption as contemplated u/sec.139 of negotiable instrument act by,audio_10_326.mp3 +"placing acceptable evidence. Accordingly, i answer point no.1 and 2 in the affirmative. C.c. No.12240/2022 47. Point no.3 :- in view of my findings to",audio_10_327.mp3 +"the points no.1 and 2, i proceed to pass the following:- ord er in exercise of power conferred u/sec. 255(2) of cr.pc, the accused no.1",audio_10_328.mp3 +"to 3 are convicted for the offence punishable u/s.138 of negotiable instrument act and sentenced to pay fine of rs.3,15,10,000/-. In default of payment of",audio_10_329.mp3 +"the said shall undergo simple imprisonment for a period of one year.m/S. mro-tek realty vs. dexcel electronics designs on 11 january, 2023",audio_10_330.mp3 +"Complainant as compensation as contemplated u/sec. 357(1) of Cr.P.C. and the remaining amount of rs.10,000/- shall be remitted to the state. C.c.",audio_10_331.mp3 +"No.12240/2022 office to furnish free copy of the judgment to the accused. (dictated to the stenographer, directly on computer, corrected and then signed and pronounced",audio_10_332.mp3 +"in the open court by me on this the 11th day of january, 2023). (h. Satish) xxvii a.c.m.m., bengaluru. Annexure witnesses examined on behalf of",audio_10_333.mp3 +the complainant: pw1 : Mr. barun pandey pw2 : mr. Srivathsa documents marked on behalf of the complainant ex.p.1 : board resolution ex.p.2 : purchase,audio_10_334.mp3 +order dated: 10/12/2019 ex.p3 : letter of undertaking dated: 31/3/2021 ex.p.4 : copy of tax invoice ex.p.5 : letter of undertaking dated: 27/08/2021 ex.p.6 ;,audio_10_335.mp3 +cheque dated: 11/11/2021 ex.p.6(a) : signature of the accused c.c. No.12240/2022 ex.p.7 : true transcript of e-mail ex.p.8 : bank endorsement dt:7/1/2022 ex.p.9 : copy,audio_10_336.mp3 +of legal notice dated 07/01/2022 ex.p10 to 12 : postal receipts ex.p13 to p.15 : three postal acknowledgments ex.p16 : reply notice dated:25/1/2022 ex.p17 :,audio_10_337.mp3 +rejoinder notice dt: 03/02/2022 ex.p 18 to 20 : e-mails ex.p.21 : certified copy of the objection statement filed by accused in Co. petition (ibno.77/bb/2022)m/S. ,audio_10_338.mp3 +"mro-tek realty vs. dexcel electronics designs on 11 january, 2023",audio_10_339.mp3 +"-nil- documents marked on behalf of the accused: -nil- (h. Satish) xxvii a.c.m.m., bengaluru.m/S. mro-tek realty vs. dexcel electronics designs on 11 january, 2023",audio_10_340.mp3 +"Pasupuleti appa rao., vs. jakka bala krishna murthy, Anr. , on 31 january, 2022 the hon'ble sri J. ravi nath tilhari Crl. revision Cas. no.113 of",audio_11_1.mp3 +"2008 judgment: - (through virtual mode) 1. No representation by the learned counsel for the petitioner/revisionist. On 16.12.2021, 23.12.2021 and 17.01.2022 also, there was no",audio_11_2.mp3 +"representation from the petitioner€s side. 2. The proof of service on respondent no.1/the defacto- complainant has not been filed, inspite of orders, dated 23.12.2021 and",audio_11_3.mp3 +"17.01.2022. 3. The matter has been listed under the caption □for dismissal€. 4. With the assistance of sri s.venkata sainath, learned special assistant public prosecutor,",audio_11_4.mp3 +the court proceeds to decide the matter finally. 5. Perused the material on record. 6. The facts of the Cas. are that the respondent no.1,audio_11_5.mp3 +"filed complaint against the petitioner for the offence punsishable under S. 138 of the negotiable instruments (n.i.) act, on the averments inter alia that the",audio_11_6.mp3 +"petitioner/accused borrowed rs.60,000/- from the complainant on 07.05.2000 and executed a promissory note in favour of the complainant. The petitioner issued a cheque bearing no.730291,",audio_11_7.mp3 +"dated 05.01.2005, for rs.40,000/- drawn on the state bank of india, treasury branch, guntur, in favour of the complainant, towards part payment of the debt,",audio_11_8.mp3 +"which, on presentation in the bank was dishonoured due to ""insufficient funds"". The complainant issued a registered statutory notice to the accused on 15.02.2005, which",audio_11_9.mp3 +"was received by the accused, but inspite thereof the payment was not made. 7. The c.c.no.170/2005, registered on the complaint, was taken on the file",audio_11_10.mp3 +"of v additional munsif magistrate, guntur under S. 138 of n.i. Act. On appearance of the accused, the copies of the documents were supplied as",audio_11_11.mp3 +"required under S. 207 cr.p.c and the accused on examination under S. 251 cr.p.c, pleaded not guilty and claimed to be tried. 8. During trial,",audio_11_12.mp3 +"the complainant was examined as pw.1 and he marked exs.p1 to p6. After closure of the evidence, the accused being examined under S. 313 code",audio_11_13.mp3 +"of Crl. procedure denied the incriminating evidence and examined himself as dw.1 and one witness dw.2 was examined.pasupuleti appa rao., vs. jakka bala krishna murthy,",audio_11_14.mp3 +"Anr. , on 31 january, 2022",audio_11_15.mp3 +Petitioner/accused for the offence under S. 138 of n.i. Act and sentenced him to undergo r.i. For a period of three (03) months and imposed,audio_11_16.mp3 +fine of rs.500/- in default to suffer simple imprisonment for one month. 10. The Crl. a.no.129 of 2006 filed by the petitioner was dismissed vide,audio_11_17.mp3 +"judgment, dated 30.01.2008, confirming the judgment, dated 10.03.2006. 11. Challenging the appellate judgment, the revision has been filed. 12. The v additional munsif magistrate, guntur",audio_11_18.mp3 +"in its judgment has categorically recorded findings that the petitioner issued cheque, ex.p2 in discharge of the debt/liability under promissory note, ex.p1, which on presentation",audio_11_19.mp3 +"in the bank was dishonoured due to ""insufficient funds"" for which the bank issued memo, ex.p3 and ex.p4. The complainant thereafter issued a registered statutory",audio_11_20.mp3 +"notice, ex.p5 which was served on the petitioner, but the amount was not paid. The learned trail court held that the complainant proved the guilt",audio_11_21.mp3 +of the accused. These findings have been recorded on consideration of the evidence on record oral and documentary. These findings have been affirmed by the,audio_11_22.mp3 +"learned lower appellate court, which also appreciated the evidence on record. 13. The burden of proof, to prove the guilt of the accused is on",audio_11_23.mp3 +"the complainant, which was discharged satisfactorily. The pre- requisites for the offence punishable under S. 138 of the n.i. Act have been proved. The presumption",audio_11_24.mp3 +has not been rebutted by the accused/petitioner. The concurrent findings are of fact and the court does not find those findings suffering from any illegality,audio_11_25.mp3 +or perversity so as to call for any interference in the exercise of revision jurisdiction. 14. So far as the sentence imposed on the petitioner,audio_11_26.mp3 +"is concerned, he having been convicted, is liable for punishment provided for by S. 138 of n.i. Act, according to which the convict shall be",audio_11_27.mp3 +"punished with imprisonment for a term which may be extended to two (02) years, or with fine which may extend to twice the amount of",audio_11_28.mp3 +"the cheque, or with both. 15. The trial court has imposed the sentence of r.i. For three (03) months and the fine amount of rs.500/-.",audio_11_29.mp3 +"No fault can be found in imposing such sentence which was imposed considering various factors, taking a lenient view. 16. However, as much time has",audio_11_30.mp3 +"passed since the revision was filed and the petitioner must be near about 60 years, as on today, keeping in view the very object of",audio_11_31.mp3 +"S. 138 of the n.i. Act, the court considers it appropriate to afford an opportunity to the petitioner to make payment of fine double the",audio_11_32.mp3 +"cheque amount before the court below to be paid to the complainant as compensation, if the petitioner wants to avoid the sentence of imprisonment as",audio_11_33.mp3 +"imposed by the trial court. 17. In gimpex Pvt. Ltd. vs. . Manoj goel1, the Hon'ble SC held that under the shadow of S. ",audio_11_34.mp3 +"138 of n.i. Act, parties are encouraged to settle the dispute resulting in ultimate closure of the Cas. rather than continuing with a protracted litigation",audio_11_35.mp3 +"before the court. This is beneficial for the complainant as it results in early recovery of money; alteration of the terms of thepasupuleti appa rao.,",audio_11_36.mp3 +"vs. jakka bala krishna murthy, Anr. , on 31 january, 2022",audio_11_37.mp3 +"Leads to avoidance of a conviction and sentence or payment of a fine. It also leads to unburdening of the judicial system, which has a",audio_11_38.mp3 +"huge pendency of complaints filed under S. 138 of n.i. Act. 18. It is apt to reproduce paragraphs 27 to 31 of gimpex (supra), as",audio_11_39.mp3 +"under:- ""27. The nature of the offence under S. 138 of the ni act is quasi-Crl. in that, while it arises out of a Civ. ",audio_11_40.mp3 +"wrong, the law, however, imposes a Crl. penalty in the form of imprisonment or fine. The purpose of the enactment is to provide security to",audio_11_41.mp3 +creditors and instil confidence in the banking system of the country. The nature of the proceedings under S. 138 of the ni act was considered,audio_11_42.mp3 +"by a three judge bench decision of this court in p mohanraj vs. shah brothers ispat Pvt. limited21, where J. rf nariman, after adverting to",audio_11_43.mp3 +"the precedents of this court, observed that: ""53. A perusal of the judgment in ishwarlal bhagwandas [s.a.l. Narayan row vs. ishwarlal bhagwandas, (1966) 1 scr",audio_11_44.mp3 +190 : air 1965 SC 1818] would show that a Civ. proceeding is not necessarily a proceeding which begins with the filing of a,audio_11_45.mp3 +suit and culminates in 2021 scc online SC 925 execution of a decree. It would include a revenue proceeding as well as a writ,audio_11_46.mp3 +"petition filed under Art. 226 of the constitution, if the reliefs therein are to enforce rights of a Civ. nature. Interestingly, Crl. proceedings are stated",audio_11_47.mp3 +"to be proceedings in which the larger interest of the state is concerned. Given these tests, it is clear that a S. 138 proceeding can",audio_11_48.mp3 +"be said to be a ""Civ. sheep"" in a ""Crl. wolf's"" clothing, as it is the interest of the victim i.e. sought to be",audio_11_49.mp3 +"protected, the larger interest of the state being subsumed in the victim alone moving a court in cheque bouncing cases, as has been seen by",audio_11_50.mp3 +"us in the analysis made hereinabove of chapter xvii of the NI Act ."" 28. Given that the primary purpose of S. 138 of the",audio_11_51.mp3 +"ni act is to ensure compensation to the complainant, the ni act also allows for parties to enter into a compromise, both during the pendency",audio_11_52.mp3 +of the complaint and even after the conviction of the accused. The decision of this court in meters and instruments (p) ltd. vs. kanchan mehta22,audio_11_53.mp3 +"summarises the objective of allowing compounding of an offence under S. 138 of the ni act: ""18.2. The object of the provision being primarily compensatory,",audio_11_54.mp3 +"punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred",audio_11_55.mp3 +"at later stage subject to appropriate compensation as may be found acceptable to the parties or the court."" 29. In prakash gupta vs. sebi23 a",audio_11_56.mp3 +"two judge bench of this court of which one of us (J. dy chandrachud) was a part, analysed the decision in meters and instruments (supra)",audio_11_57.mp3 +in the context of a discussion on whether compounding of an offence requires the consent of an aggrieved party (para 78). The decision in meters,audio_11_58.mp3 +"and instruments (supra) is cited aboves in regard to the rationalepasupuleti appa rao., vs. jakka bala krishna murthy, Anr. , on 31 january, 2022",audio_11_59.mp3 +Babalal24 a three judge bench of this court observed that the effect of an offence under S. 138 of the ni act is Ltd. to,audio_11_60.mp3 +"two Pvt. parties involved in a commercial transaction. However, the intent of the legislature in providing a Crl. sanction for dishonour of cheques is to",audio_11_61.mp3 +"ensure the credibility of transactions involving negotiable instruments. The court observed: ""4. It may be noted that when the offence was inserted in the statute",audio_11_62.mp3 +"in 1988, it carried the provision for imprisonment up to one year, which was revised to two years following the amendment to the act in",audio_11_63.mp3 +2002. It is quite evident that the legislative intent was to provide a strong Crl. remedy in order to deter the worryingly high incidence of,audio_11_64.mp3 +"dishonour of cheques. While the possibility of imprisonment up to two years provides a remedy of a punitive nature, the provision for imposing a ""fine",audio_11_65.mp3 +"which may extend to twice the amount of the cheque"" serves a compensatory purpose. What must be remembered is that the dishonour of a cheque",audio_11_66.mp3 +can be best described as a regulatory offence that has been created to serve the public interest in ensuring the reliability of these instruments. The,audio_11_67.mp3 +"impact of this offence is usually confined to the Pvt. parties involved in commercial transactions."" 30. However, this court also noted that the introduction of",audio_11_68.mp3 +a Crl. remedy has given rise to a worrying trend where cases under S. 138 of the ni act are disproportionately burdening the Crl. J. ,audio_11_69.mp3 +"system. This court observed: ""5. Invariably, the provision of a strong Crl. remedy has encouraged the institution of a large No. of cases that are",audio_11_70.mp3 +"relatable to the offence contemplated by S. 138 of the act. So much so, that at present a disproportionately large No. of cases involving the",audio_11_71.mp3 +"dishonour of cheques is choking our Crl. J. system, especially at the level of magistrates' courts. As per the 213th report of the law commission",audio_11_72.mp3 +"of india, more than 38 lakh cheque bouncing cases were pending before various courts in the country as of october 2008. This is putting an",audio_11_73.mp3 +"unprecedented strain on our judicial system."" 31. Thus, under the shadow of S. 138 of the ni act, parties are encouraged to settle the dispute",audio_11_74.mp3 +resulting in ultimate closure of the Cas. rather than continuing with a protracted litigation before the court. This is beneficial for the complainant as it,audio_11_75.mp3 +"results in early recovery of money; alteration of the terms of the contract for higher compensation and avoidance of litigation. Equally, the accused is benefitted",audio_11_76.mp3 +"as it leads to avoidance of a conviction and sentence or payment of a fine. It also leads to unburdening of the judicial system, which",audio_11_77.mp3 +has a huge pendency of complaints filed under S. 138 of the ni act. In damodar S. prabhu (supra) this court had emphasised that the,audio_11_78.mp3 +compensatory aspect of the remedy under S. 138 of the ni act must be preferred and has encouraged litigants to resolve disputes amicably. The court,audio_11_79.mp3 +"observed: ""18. It is quite obvious that with respect to the offence of dishonour of cheques, it is the compensatory aspect of the remedy which",audio_11_80.mp3 +"should be given priority over the punitive aspect. There is also some support for the apprehensions raised by thepasupuleti appa rao., vs. jakka bala krishna",audio_11_81.mp3 +"murthy, Anr. , on 31 january, 2022",audio_11_82.mp3 +"Compromised or settled by way of compounding, albeit during the later stages of litigation thereby contributing to undue delay in J. delivery. The problem herein",audio_11_83.mp3 +"is with the tendency of litigants to belatedly choose compounding as a means to resolve their dispute. Furthermore, the written submissions filed on behalf of",audio_11_84.mp3 +"the learned AG have stressed on the fact that unlike S. 320 crpc, S. 147 of the NI Act provides no explicit guidance",audio_11_85.mp3 +as to what stage compounding can or cannot be done and whether compounding can be done at the instance of the complainant or with the,audio_11_86.mp3 +"leave of the court..............................................."" 19. For all the aforesaid reasons, the petitioner is granted liberty to deposit before the court below an amount of rs.80,000/-",audio_11_87.mp3 +"(Rs. eighty thousand only) being twice the amount of cheque, as sentence of fine, within a period of four (04) months upon such deposit being",audio_11_88.mp3 +"made the said amount shall be paid to the complainant as compensation, by the court below. Upon such deposit by the petitioner, the sentence as",audio_11_89.mp3 +"imposed by the court below shall stand substituted by the sentence of fine to the tune of twice the cheque amount, and the sentence imposed",audio_11_90.mp3 +by the court below shall not be enforced upon the petitioner. But if such amount is not deposited by the petitioner as aforesaid on expiry,audio_11_91.mp3 +"of four (04) months period, the petitioner shall have to serve the sentence as imposed by the court below, which the court below shall ensure",audio_11_92.mp3 +"is enforced as per law. 20. For a period of four (04) months, the sentence imposed by the court below shall remain suspended. 21. The",audio_11_93.mp3 +"revision stands dismissed, with the aforesaid observations and directions. 22. Consequently, the pending applications, if any shall stand closed. Let the order be communicated to",audio_11_94.mp3 +"the court below. __________________________ ravi nath tilhari,j date: 31.01.2022 scs 1 the hon'ble sri J. ravi nath tilhari Crl. revision Cas. no.113 of 2008 date:",audio_11_95.mp3 +"31.01.2022 scspasupuleti appa rao., vs. jakka bala krishna murthy, Anr. , on 31 january, 2022",audio_11_96.mp3 +"Sulochan vs. lakshmidevamma on 4 march, 2022 in the court of the xxiii addl.chief metropoliton magistrate, nrupathunga road, bengaluru city dated this the 4th day",audio_12_1.mp3 +"of march - 2022 present: sri. N.k.salamantapi, b.a., ll.b., xxiii addl.c.m.m., bengaluru city. C.c.no.34576/2018 complainant : sulochan, w/o.ramesh, aged about 46 years, r/at no.65/2, kaveripura,",audio_12_2.mp3 +"kamakshipalya, rama mandirmain road, bengaluru. (rep. By sri.mahesh.d, adv.) v/s accused : lakshmidevamma, w/o.b.l.nagaraju, aged about 50 years, r/at no.1331, 2nd main road, 11th cross,",audio_12_3.mp3 +"kaaveripura, kamakshipalya, bengaluru-79. (rep.by sri.b.n.shivakumaraswamy, adv.) offence complained of : u/S. 138 of NI Act . Plead of the accused : not guilty. Final order",audio_12_4.mp3 +": accused is convicted. Date of order : 04.03.2022. (n.k.salamantapi) xxiii addl.cmm., bengaluru. Judgment 2 c.c.no.34576/2018 judgment the complainant has presented the instant complaint against",audio_12_5.mp3 +the accused on 27.07.2018 under S. 200 of Cr.P.C. for the offence punishable under S. 138 of NI Act for dishonour,audio_12_6.mp3 +"of cheque amount of rs.2 lakhs.sulochan vs. lakshmidevamma on 4 march, 2022",audio_12_7.mp3 +The complainant has submitted that the accused was her friend and she has approached and requested her to lend sum of rs.2 lakhs and promised,audio_12_8.mp3 +"to repay the same within 2 months. Believing the words of accused, the complainant had advanced sum of rs.2 lakhs to the accused on 25.11.2017.",audio_12_9.mp3 +"The complainant has further contended that after expiry of two months, the accused has failed to repay the same, when she demanded the accused for",audio_12_10.mp3 +"repayment of the said amount, towards discharge of her liability, the accused has issued a cheque bearing no.807356 dated 27.03.2018 for sum of rs.2 lakhs",audio_12_11.mp3 +"drawn on state bank of mysore, prashanth nagar branch in favour of complainant. When she presented said cheque for encashment through her banker viz., Corp. ",audio_12_12.mp3 +"bank, magadi road, byadarahalli branch, bengaluru, the same came to be dishonoured with an endorsement dated 19.05.2018 stating judgment 3 c.c.no.34576/2018 ""funds insufficient"". Immediately, she",audio_12_13.mp3 +"approached the accused and intimated about the dishonour of cheque and demanded for repayment of the cheque amount, but the accused has paid the cheque",audio_12_14.mp3 +"amount. Hence, she got issued legal notice to the accused through her counsel on 14.06.2018 by way of R.P. a.d calling upon her to",audio_12_15.mp3 +repay the cheque amount within 15 days from the date of receipt of the legal notice and the same came to be returned with a,audio_12_16.mp3 +"shara ""refused"" on 18.06.2018. Even after grace period of 15 days from the date of return of notice, the accused has neither paid the cheque",audio_12_17.mp3 +"amount nor replied the notice. Thus, the accused committed an offence punishable under S. 138 of NI Act . Hence, filed the present complaint. 3.",audio_12_18.mp3 +"After receipt of the Pvt. complaint, my predecessor in office took the cognizance and got registered the pcr and recorded the sworn statement. Since made",audio_12_19.mp3 +"out prima-facie grounds to proceed against the accused for the alleged offence, got issued process. 4. In response to the summons, the accused appeared through",audio_12_20.mp3 +"her counsel and obtained bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was judgment 4 c.c.no.34576/2018 read over and explained to",audio_12_21.mp3 +"accused, wherein, she denied the same and claimed to have the defence. 5. To prove the Cas. of the complainant, she herself choosen to examine",audio_12_22.mp3 +"as pw.1 and got marked exs.p1 to p6. The pw.1 was subjected for cross-examination by the Adv. for the accused. 6. Thereafter, incriminating evidence made",audio_12_23.mp3 +"against the accused was recorded under S. 313 of cr.p.c, wherein the accused denied the same. In this Cas. , the accused has not choosen to",audio_12_24.mp3 +"enter into witness box. In the cross-examination of pw.1, accused counsel got confronted seven documents and same were marked as exs.d1 to d7. 7. Both",audio_12_25.mp3 +"side counsels have addressed their arguments.sulochan vs. lakshmidevamma on 4 march, 2022",audio_12_26.mp3 +Under: a) (2018) 8 scc 469 in the Cas. of t.p.murugan v/s. Bojan. B) (2010) 11 scc 441 in the Cas. of rangappa v/s. Sri,audio_12_27.mp3 +mohan. C) (2001) 8 scc 458 in the Cas. of k.n.beena v/s. Muniyappan and Anr. . D) air 2001 SC 2895 in the Cas. of,audio_12_28.mp3 +"k.n.beena v/s. Muniyappan and Anr. . Judgment 5 c.c.no.34576/2018 8. On going through the rival contentions, based on the substantial evidence available on record, the following",audio_12_29.mp3 +points would arise for determination: 1) whether the complainant proves beyond all reasonable doubt that the accused got issued ex.p1-cheque bearing no.807356 to the complainant,audio_12_30.mp3 +"towards discharge of legally recoverable debt or liability and the said cheque was dishonoured, thereby the accused has committed an offence punishable under S. 138",audio_12_31.mp3 +"of negotiable instrument act? 2) what order? 9. On appreciation of materials available on record, my findings on the above points are as under: point",audio_12_32.mp3 +"no.1 : in the affirmative point no.2 : as per final order, for the following: reasons 10. Point no.1: the complainant has filed this complaint",audio_12_33.mp3 +for an offence punishable under S. 138 of NI Act against the accused and prayed to punish the accused for an offence punishable under,audio_12_34.mp3 +"S. 138 of NI Act . 11. To attract S. 138 of NI Act , complainant should prove that; (1) the accused has issued a",audio_12_35.mp3 +judgment 6 c.c.no.34576/2018 cheque for discharge of legally recoverable debt. (2) the same was presented through her banker. (3) it was dishonoured on presentation. (4),audio_12_36.mp3 +"the notice in terms of provisions was served on the accused and (5) despite service of notice neither any payment was made nor other obligations,",audio_12_37.mp3 +"if any were complied within 15 days from the date of receipt of notice.sulochan vs. lakshmidevamma on 4 march, 2022",audio_12_38.mp3 +"Wherein, she has reiterated the averments made in the complaint. In support of her contention, she relied upon the documents at exs.p1 to p6. Among",audio_12_39.mp3 +"them, cheque bearing no.807356 issued by the accused for sum of rs.2,00,000/- dated 27.03.2018, drawn on state bank of mysore, prashanth nagar branch, bengaluru is",audio_12_40.mp3 +"marked as ex.p1. The signature of accused is marked as ex.p1(a). Ex.p2 is the bank endorsement issued by state bank of mysore, the contents of",audio_12_41.mp3 +"ex.p2 disclose that the cheque bearing no.807356 drawn for rs.2,00,000/- was dishonoured for the reasons ""funds insufficient"". Ex.p3 is the legal notice dated 14.06.2018, the",audio_12_42.mp3 +"recitals of ex.p3 disclose that the complainant has issued this notice to the accused through her counsel. By issuing this notice, complainant called upon the",audio_12_43.mp3 +"accused to repay the cheque amount of rs.2,00,000/- within 15 days from the date of receipt of notice. Judgment 7 c.c.no.34576/2018 ex.p4 is the postal",audio_12_44.mp3 +receipt. Ex.p5 is the unserved R.P. a.d cover. Ex.p5(a) is the legal notice at ex.p5 and ex.p6 is certified copy of without possession agreement,audio_12_45.mp3 +of sale dated 20.11.2017 executed by complainant and her husband in favour of one smt.h.nagamma. The pw.1 was subjected to the cross- examination by the,audio_12_46.mp3 +"Adv. for the accused. S. 118 (a) of NI Act provides that: ""until the contrary is proved, the following presumptions shall be made: (a)",audio_12_47.mp3 +"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",audio_12_48.mp3 +"transferred, was accepted, indorsed, negotiated or transferred for consideration."" S. 139 of NI Act provides that: ""it shall be presumed, unless the contrary is",audio_12_49.mp3 +"proved, that the holder of a cheque received the cheque of the nature referred to in S. 138 for the discharge, in whole or in",audio_12_50.mp3 +"part, of any debt or other liability."" the above presumptions are rebuttable in nature. Judgment 8 c.c.no.34576/2018 13. In this Cas. the accused has not",audio_12_51.mp3 +"choosen to enter in to witness box. But she cross-examined the pw.1 in detail. In the cross-examination of pw.1, accused's counsel got confronted seven documents",audio_12_52.mp3 +"and same were marked as exs.d1 to d7. Among them, exs.d1 to d7 are the certified copies of Pvt. complaints instituted by the complainant herein",audio_12_53.mp3 +"against siddappa.p, shashikala, rathna, lakshmana, lakshmi, poornima.b.k and shashidhar murthy.b.p. It is the main defence of the accused is that she has given signed blank",audio_12_54.mp3 +"cheque to the complainant for security of chit transaction. She has paid entire chit amount to the complainant, but the complainant inspite of repeated requests",audio_12_55.mp3 +"made by accused, she did not return the alleged cheque which was given for security of chit transaction.sulochan vs. lakshmidevamma on 4 march, 2022",audio_12_56.mp3 +Material before the court. The oral evidence itself is not sufficient to believe her version. Because the counsel for complainant has denied the contention taken,audio_12_57.mp3 +"by the accused. Therefore, it is incumbent on the accused to prove her defence by producing sufficient materials before the court. No doubt, it is",audio_12_58.mp3 +not necessary to the accused to enter into witness box and give evidence on oath before the court. She can prove her defence on the,audio_12_59.mp3 +"material available on record. On judgment 9 c.c.no.34576/2018 carefully perusal of the material available on record, it does not discloses that the accused has given",audio_12_60.mp3 +"the alleged signed blank cheque for security of chit transaction. 15. No doubt, the accused admitted that the complainant filed some cheque bounce cases against",audio_12_61.mp3 +"some other persons. Those transactions are in between complainant and other persons. Mere filing some other cheque bounce cases against some other persons, it is",audio_12_62.mp3 +not mean that the accused has not received any amount from the complainant. No where in the entire cross- examination made by the learned counsel,audio_12_63.mp3 +"for the accused, the complainant did not admit that she has run the chit business and for security of the said chit business, she has",audio_12_64.mp3 +"taken the alleged signed cheque from the accused. Therefore, the contention with regard to the cheque bounce cases filed by the complainant against some other",audio_12_65.mp3 +"persons is not helpful to the accused to disbelieve the Cas. of complainant. 16. On carefully perusal of document at ex.p6, it appears that the",audio_12_66.mp3 +"complainant and her husband have agreed to sell their property to one smt.h.nagamma for sale consideration of rs.12 lakhs, out of that amount they have",audio_12_67.mp3 +received rs.10 lakhs as advance. It shows that the complainant is having financial judgment 10 c.c.no.34576/2018 capacity to lend the amount to the accused. There,audio_12_68.mp3 +is no material to believe the defence of accused that she did not receive the amount of rs.2 lakhs from the complainant. Accused admitted cheque,audio_12_69.mp3 +and signature appears thereon as belongs to her. It is relevant to cite the decision reported in Crl. a.no.123/2021 in the Cas. of m/s. Kalamani,audio_12_70.mp3 +"tex and Anr. v/s. P.balasubramanian. Wherein, Hon'ble apex court was pleased to held that: ""para n.14 - adverting to the Cas. in hand, we find",audio_12_71.mp3 +on a plain reading of its judgment that the trial court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under S. ,audio_12_72.mp3 +"118 and S. 139 of negotiable instrument act. The statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then",audio_12_73.mp3 +"these 'reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. This point",audio_12_74.mp3 +"of law has been crystalized by this in rhitbhai jivanlal patel v/s. State of gujarat"". Further, the Hon'ble apex court observed that: para no.17: ""the",audio_12_75.mp3 +"appellants have banked upon the evidence of dw.1 to dispute the existence of any recoverable debt. However, his deposition merely highlights that the respondent had",audio_12_76.mp3 +an over-extended judgment 11 c.c.no.34576/2018 credit facility with the bank and his failure to update his account led to debt recovery proceedings. Such evidence does,audio_12_77.mp3 +"not disprove the appellants' liability and has a little bearing onsulochan vs. lakshmidevamma on 4 march, 2022",audio_12_78.mp3 +"Regarding genuineness of the deed of undertaking dated 07.11.2000, despite admitting the signatures of appellant no.2 thereupon, does not cast any doubt on the genuineness",audio_12_79.mp3 +"of the said document."" 17. In view of the above decision, once the signature(s) of an accused on the cheque/negotiable instrument are established, then these",audio_12_80.mp3 +"'reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. In the present",audio_12_81.mp3 +"Cas. on hand, the accused herein has admitted the signature on the question cheque at ex.p1(a) as belongs to her. Therefore, the obligation shifts upon",audio_12_82.mp3 +"her to discharge the presumption imposed upon her. In the Cas. on hand, i do not find any material to create doubt regarding the genuineness",audio_12_83.mp3 +of issuance of ex.p1-cheque in favour of complainant for discharge of legally recoverable debt. 18. The learned counsel for accused has submitted memo along with,audio_12_84.mp3 +"4 documents i.e., certified copy of Pvt. complaint in p.c.r.no.16146/2018 filed by one smt.pankaja against the judgment 12 c.c.no.34576/2018 complainant herein and her husband before",audio_12_85.mp3 +"the learned v acmm, bengaluru, xerox copy of Cas. details in c.c.no.28483/2018, xerox copy of acknowledgment dated 22.09.2019 issued by kamakshipalya police station and xerox",audio_12_86.mp3 +"copies of postal acknowledgment cards and requested to consider these documents. I have perused the said documents, it is seen that, the Pvt. complaint was",audio_12_87.mp3 +filed by one smt.pankaja under S. 200 of cr.p.c against the complainant of this Cas. and her husband. This Cas. is not related to the,audio_12_88.mp3 +"present Cas. on hand. On perusal of the acknowledgment, it shows that the lakshmidevamma has filed a complaint against the complainant herein stating that she",audio_12_89.mp3 +"has forced her to take chit for rs.1,20,000/- on 24.08.2019, but the present Cas. is filed before that Cas. . Therefore, this document is also not",audio_12_90.mp3 +helpful to the contention of accused to prove her defence against the complainant. I have also perused the xerox copies of postal acknowledgment cards. But,audio_12_91.mp3 +"the learned counsel for accused did not say, how these documents are helpful to accused to prove defence. Therefore, these documents are not helpful to",audio_12_92.mp3 +"the accused to prove her defence. In support of her Cas. , the complainant through her counsel has relied upon the decisions as under: judgment 13",audio_12_93.mp3 +"c.c.no.34576/2018 (2018) 8 scc 469 in the Cas. of t.p.murugan (dead) through legal representatives v/s bojan, wherein, the Hon'ble apex court held that: "" negotiable",audio_12_94.mp3 +"instruments act, 1881 - Ss. 138 and 139 - complaint as to dishonour of cheque - presumption under s.139 of ni act in favour of",audio_12_95.mp3 +"holder of cheque - invocation of, and how may be rebutted - rebuttal of said presumption must be by adducing credible evidence - mere raising",audio_12_96.mp3 +"a doubt sans cogent evidence, with respect to the circumstances, presumption under S. 139 of ni act cannot be discharged"".sulochan vs. lakshmidevamma on 4 march,",audio_12_97.mp3 +2022,audio_12_98.mp3 +"That: "" NI Act , 1881 - Ss. 138 and 139 - dishonour of cheque - conviction confirmed - appellant- accused, drawer of cheque in",audio_12_99.mp3 +"question, neither raising a probable defence nor able to contest existence of a legally enforceable debt or liability - HC reversing his acquittal -",audio_12_100.mp3 +"sustainability - held, complaint discloses prima- faice existence of a legally enforceable debt or liability - since appellant admitted that signature on the cheque was",audio_12_101.mp3 +"his, statutory presumption under s.139 comes into play and the same was not rebutted even with regard to the materials submitted by complainant - appellant",audio_12_102.mp3 +"not able to prove ""lost cheque"" theory - apart from not raising a probable defence, appellant was also not able to contest the existence of",audio_12_103.mp3 +"a legally enforceable debt or liability - hence, his conviction by HC , held, proper"". Judgment 14 c.c.no.34576/2018 (2001) 8 scc 458 in the Cas. ",audio_12_104.mp3 +"of k.n.beena v/s. Muniyappan and Anr. , wherein, the Hon'ble apex court held that: ""in view of the provisions contained in Ss. 118 and 139, the",audio_12_105.mp3 +"court has to presume that the cheque had been issued for discharging a debt or liability. However, the said presumption could be rebutted by the",audio_12_106.mp3 +accused by proving the contrary. Mere denial or rebuttal by accused in the reply to the legal notice sent by the complainant not enough. The,audio_12_107.mp3 +"accused had to prove by cogent evidence that there was no debt or liability."" 19. Once a cheque has been signed and issued in favour",audio_12_108.mp3 +"of holder of cheque there is a statutory presumption under S. 139 of NI Act , that cheque is issued in discharge of legally enforceable",audio_12_109.mp3 +debt or liability. However the presumption is rebuttable one. The accused can rebut the presumption available under S. 139 of negotiable instrument act by adducing,audio_12_110.mp3 +"credible evidence that the cheque was issued for some other purpose like security for loan. In the present Cas. on hand, the materials relied upon",audio_12_111.mp3 +"by the accused do not disclose that the accused has given the alleged cheque for security of chit transaction. Therefore, the accused cannot say that",audio_12_112.mp3 +"she did not receive amount from the complainant. 20. In the present Cas. on hand, the accused did not produce any cogent and convincing evidence",audio_12_113.mp3 +before this court to believe judgment 15 c.c.no.34576/2018 that she has not issued the alleged cheque in favour of complainant for discharge of legally recoverable,audio_12_114.mp3 +debt. It is the burden on the accused to prove her defence by producing sufficient materials before the court. Mere denial of the same is,audio_12_115.mp3 +"not enough to believe her defence. 21. In the entire cross-examination, the accused did not denied the address mentioned in the cause title of the",audio_12_116.mp3 +complaint and address mentioned in the legal notice as well as R.P. a.d cover as not belong to her. The complainant has deposed that,audio_12_117.mp3 +"she has sent the legal notice to the correct addresssulochan vs. lakshmidevamma on 4 march, 2022",audio_12_118.mp3 +"Legal notice. If the notice was returned as refused, it is considered as deemed service. Therefore, the accused cannot say that the notice issued by",audio_12_119.mp3 +the complainant was not received by her. It is relevant to cite the decision reported in 2006 (4) kccr 2375 in the Cas. of Mr. ,audio_12_120.mp3 +"umraz khan and Ors. v/s. Mr. a.jameel ahmed and Anr. . Wherein, Hon'ble HC of karnataka was pleased to held that: ""once there is proof",audio_12_121.mp3 +"of posting of notice to correct address, it is deemed to have been served, the judgment of acquittal is bad in law"". Judgment 16 c.c.no.34576/2018",audio_12_122.mp3 +"22. On going through the said dictum, it is also made clear that if the notice was sent with correct address of the accused, it",audio_12_123.mp3 +is suffice to draw the inference that the notice was duly served on the accused. If the accused failed to accept the notice and failed,audio_12_124.mp3 +"to claim the notice sent to her under register post, there is deemed service of notice upon her. In the present Cas. on hand, the",audio_12_125.mp3 +"address mentioned in the cause title of complaint, rpad cover at ex.p5 are one and the same. From which, it made clear that the legal",audio_12_126.mp3 +notice as required under S. 138(b) of NI Act was served upon accused and complainant has complied the S. 138(b) of NI Act .,audio_12_127.mp3 +"23. On carefully perusal of oral and documentary evidence adduced by the complainant and accused, it shows that there is no believable evidence in favour",audio_12_128.mp3 +"of accused to believe that she has not issued the alleged cheque in favour of complainant for discharge of legally recoverable debt. If at all,",audio_12_129.mp3 +"the accused has not issued the questioned cheque to the complainant for discharge of legally recoverable debt, definitely, she would have an opportunity to take",audio_12_130.mp3 +"legal action against the complainant for misuse of questioned cheque, but she did not do so. In the present Cas. on hand, there is no",audio_12_131.mp3 +cogent and convenience judgment 17 c.c.no.34576/2018 materials on behalf of accused to believe her version that she has not issued the ex.p1-cheque in favour of,audio_12_132.mp3 +complainant for discharge of legally recoverable debt. Thus the accused has failed to rebut the presumption available under S. 118(a) and 139 of negotiable instruments,audio_12_133.mp3 +"act in favour of complainant. Thereby, the pw.1 proved his contention, but accused without any base took bald and baseless contention. 24. On overall appraisal",audio_12_134.mp3 +"of the materials available on record, it is the consider opinion of this court that the accused has failed to discharge initial burden to rebut",audio_12_135.mp3 +"the statutory presumption as well as the facts and circumstances placed by the complainant in the present Cas. . Thereby, the complainant has proved the guilt",audio_12_136.mp3 +of the accused that the accused is liable to pay the amount covered under the ex.p1-cheque. There is no substance in the probable defence of,audio_12_137.mp3 +"the accused, whereas the complainant has discharged her burden and proved the guilt of the accused.sulochan vs. lakshmidevamma on 4 march, 2022",audio_12_138.mp3 +"Instruments act, it appears this court that it is a fit Cas. to convict the accused. 25. Therefore, from the perusal of oral and documentary",audio_12_139.mp3 +evidence placed on record it reveals that complainant has made judgment 18 c.c.no.34576/2018 out her Cas. and accused has failed to rebut the presumptions arisen,audio_12_140.mp3 +in favour of complainant. Thus complainant has proved that accused has committed an offence punishable under S. 138 of NI Act beyond all reasonable,audio_12_141.mp3 +"doubt. Hence, in view of the above said reasons, i hold point no.1 in the affirmative. 26. Point no.2: in view of my findings on",audio_12_142.mp3 +"point no.1, i proceed to pass the following: order acting under S. 255(2) of Cr.P.C. the accused is convicted for the offence",audio_12_143.mp3 +"punishable under S. 138 of NI Act and sentence to pay total fine of rs.2,20,000/-. Out of the said fine amount, sum of rs.2,15,000/-",audio_12_144.mp3 +"shall be payable to the complainant as compensation as per S. 357 of Cr.P.C. remaining amount of rs.5,000/- shall be payable to",audio_12_145.mp3 +"the state as fine amount. In default of payment of fine amount, the accused shall under go simple imprisonment for 02 (two) months. The bail",audio_12_146.mp3 +bond and cash security/surety bond of the accused stands cancelled. Judgment 19 c.c.no.34576/2018 the office is hereby directed to supply the copy of this judgment,audio_12_147.mp3 +"to the accused in free of cost. (dictated to stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court",audio_12_148.mp3 +"on this the 4 th day of march - 2022) (n.k.salamantapi) xxiii addl. Chief MM , bengaluru. Annexure list of witnesses examined on behalf of",audio_12_149.mp3 +complainant: pw-1 : sulochan list of exhibits marked on behalf of complainant: ex.p1 : original cheque ex.p1(a) : signature of accused ex.p2 : bank endorsement,audio_12_150.mp3 +ex.p3 : office copy of legal notice ex.p4 : postal receipt ex.p5 : unserved R.P. a.d cover ex.p5(a) : legal notice at ex.p5 ex.p6,audio_12_151.mp3 +": cc of without possession advance agreement of salesulochan vs. lakshmidevamma on 4 march, 2022",audio_12_152.mp3 +"- none - list of exhibits marked on behalf of defence: exs.d1 to d7 : cc of Pvt. complaints xxiii addl. Chief MM , bengaluru.",audio_12_153.mp3 +Judgment 20 c.c.no.34576/2018 04.03.2022. Comp - accd - for judgment judgment pronounced in the open court vide separate order. ***** order acting under S. 255(2),audio_12_154.mp3 +of Cr.P.C. the accused is convicted for the offence punishable under S. 138 of NI Act and sentence to pay total,audio_12_155.mp3 +"fine of rs.2,20,000/-. Out of the said fine amount, sum of rs.2,15,000/- shall be payable to the complainant as compensation as per S. 357 of",audio_12_156.mp3 +"Cr.P.C. remaining amount of rs.5,000/- shall be payable to the state as fine amount. In default of payment of fine amount, the",audio_12_157.mp3 +accused shall under go simple imprisonment for 02 (two) months. The bail bond and cash security/surety bond of the accused stands cancelled. The office is,audio_12_158.mp3 +"hereby directed to supply the copy of this judgment to the accused in free of cost. Xxiii addl. Chief MM , bengaluru. Judgment 21 c.c.no.34576/2018",audio_12_159.mp3 +"later, the convictee's counsel filed Appl. under S. 389(3) of cr.p.c seeking for suspend the sentence for the reasons stated in the Appl. . Heard.sulochan vs. ",audio_12_160.mp3 +"lakshmidevamma on 4 march, 2022",audio_12_161.mp3 +"The convictee's counsel has prayed that to suspend the sentence by appeal period. For the reasons stated in the Appl. , for the Ltd. period of",audio_12_162.mp3 +"prefer appeal only, the Appl. filed by the accused counsel under S. 389(3) of Cr.P.C. is hereby partly allowed and sentence is",audio_12_163.mp3 +"suspended till appeal period only. The convictee is hereby directed to execute bond for fine amount of rs.2,20,000/−. Xxiii acmm, bengaluru.sulochan vs. lakshmidevamma on 4",audio_12_164.mp3 +"march, 2022",audio_12_165.mp3 +"Rishi pal kharmania vs. . M/s alkarma page 1 of 23 on 14 july, 2023 in the court of shri harshal negi:mm-05(ni act): south-west district:dwarka",audio_13_1.mp3 +"courts:new delhi ct cases no.13789/2018 cnr no.dlsw02-018579 -2018 rishi pal kharmania s/o sh. Mangat ram r/o house no.f-62, gali no.5, mohan gardne, uttam nagar new",audio_13_2.mp3 +"delhi -110059 ...complainant vs. m/s alkarma 57, rama road, najafgarh road, moti nagar, new delhi -110015 through its partners shri sandeep chaudhary and Ms. . Anjaly",audio_13_3.mp3 +"chaudhary 57, rama road, najafgarh road, moti nagar, new delhi -110015 also at: sandeep chaudhary s/o sh. Subhash chaudhary r/o soverign house, house no.c-2/102, vatika",audio_13_4.mp3 +"city, sector-49, gurugram, haryana-122018 ...accused offence complained of : u/s 138, ni act, 1881 date on which the complaint : 27.04.2018 was instituted plea of",audio_13_5.mp3 +"the accused : pleaded not guilty date of pronouncement of judgment: 14.07.2023 judgment 1. Tersely put, the Cas. of the complainant is that accused sandeep",audio_13_6.mp3 +chaudhary is the partner of Co. viz. m/s alkarma and was/is looking after the day-to-day affairs of the Co. . It is also the Cas. of,audio_13_7.mp3 +the complainant that the complainant was working in the accused Co. . That the payment of salary of the complainant was overdue for a long time.,audio_13_8.mp3 +"That on 30.11.2017 alkarma made settlement with the complainant for a sum of rs 13,40,773. That to discharge the legal liability the accused issued a",audio_13_9.mp3 +"total of five cheques amounting to rs 12,99,301, one of the cheques being the cheque in question i.e., cheque bearing no 037367 dated 08.03.2018 of",audio_13_10.mp3 +"rs 2,32,000/- and drawn on canara bank, connaught place branch, new delhi to the complainant with an assurance of itsrishi pal kharmania vs. . M/s",audio_13_11.mp3 +"alkarma page 1 of 23 on 14 july, 2023",audio_13_12.mp3 +"Remarks ""insufficient fund"" dated 14.03.2018. Thereafter, complainant served a legal notice dated 24.03.2018 upon the accused through his counsel demanding the said amount. Despite service",audio_13_13.mp3 +"of aforesaid notice the money was not repaid by the accused. Thereafter, complainant has filed the present complaint Cas. . Material on record 2. The accused",audio_13_14.mp3 +entered appearance along with his counsel on 29.10.2018. Notice under S. 251 cr pc dated 07.03.2020 was framed accordingly to which the accused pleaded not,audio_13_15.mp3 +guilty and claimed trial. The blank signed cheques used to be kept in his office for daily use and the same were taken from the,audio_13_16.mp3 +said office and misused. The accused admitted his signatures on the cheque in question but denied the receipt of legal notice. 3. The complainant relied,audio_13_17.mp3 +upon the following documents: i) copy of settlement and acknowledgement dated 30.11.2017 is ex.cw1/a; ii) original cheque is ex.cw1/b; iii) original cheque returning memo is,audio_13_18.mp3 +ex.cw1/c iv) office copy of legal notice is ex.cw1/d; v) original postal receipts are ex.cw1/e to ex.cw1/g. Vi) copy of tracking report is ex.cw1/h to,audio_13_19.mp3 +ex.cw1/j 4. The complainant adopted his pre-summoning evidence as post summoning evidence and was cross examined on 26.04.2022. 5. The complainant stated that alkarma is,audio_13_20.mp3 +a firm. That he have been working in the firm since 1998 till 2017. That he have not filed any document to show that he,audio_13_21.mp3 +have been appointed as an employee with the accused firm. He voluntarily stated that he have brought the certificate which was issued to him by,audio_13_22.mp3 +the firm. Same is marked as ex.cw1/k. That he have also brought today his salary slip of may and june 2017 and the same are,audio_13_23.mp3 +marked as ex.cw1/l. He affirmed the suggestion that this document does not bear the signature of sandeep chaudhary. He voluntarily stated that the above said,audio_13_24.mp3 +documents were issued by the firm. That in ex.cw1/k nothing with respect to amount due has been mentioned. That he was working as supervisor in,audio_13_25.mp3 +the accused firm as the same is reflecting in ex.cw1/k. That the accused never entered into any written settlement with him. He voluntarily stated that,audio_13_26.mp3 +"the accused has verbally assured in the presence of other employees and also directed one mr. Vijay thakur, sr. Manager accounts to draft a settlement",audio_13_27.mp3 +with him. He voluntarily stated that he had been supplied a photocopy of the documents which is framed by mr. Vijay thakur at the behest,audio_13_28.mp3 +of the accused which is mark-1 and mark-2. That he have not mentioned the above saidrishi pal kharmania vs. . M/s alkarma page 1 of,audio_13_29.mp3 +"23 on 14 july, 2023",audio_13_30.mp3 +6. That he have not filed any document which shows that vijay thakur was authorised. He denied the suggestion that vijay thakur was never authorised,audio_13_31.mp3 +by the accused. He voluntarily stated that vijay thakur was working in the capacity of sr. Manager accounts and he used to work on the,audio_13_32.mp3 +directions of the accused who was the partner of the accused firm. He denied the suggestion that mr. Vijay thakur was never authorised to enter,audio_13_33.mp3 +into settlement on behalf of the firm with any employee of the firm. He voluntarily stated that vijay thakur not entered into settlement and accused,audio_13_34.mp3 +only directed the vijay thakur to formulate the settlement. He denied the suggestion that he entered with the conspiracy with vijay thakur. He further denied,audio_13_35.mp3 +the suggestion that he illegally took the blank signed cheque in question in connivance with vijay thakur. That since he was the employee of the,audio_13_36.mp3 +firm it is quite natural that he used to work in the premises of the firm for his employment. He affirmed that apart from the,audio_13_37.mp3 +cheque in question the remaining documents which have been filed by him till now does not bear the signature of the accused. He denied the,audio_13_38.mp3 +suggestion that he have filled the particulars of the cheque in question. He voluntarily stated that the particulars of the cheque apart from the signature,audio_13_39.mp3 +filled by mr. Vijay thakur in the presence of the accused. That there was no written document entered between him and accused it is written,audio_13_40.mp3 +that accused has issued the cheque in question to him. He voluntarily stated that the accused assured him the cheques which he has issued will,audio_13_41.mp3 +be duly honoured when the meeting took place for the purpose of settling the accounts of the employees as it came to their information that,audio_13_42.mp3 +accused is closing the firm. That he have not mentioned the above said either in his complaint or in evidence by way of Aff. . That,audio_13_43.mp3 +he is not aware whether any Cas. is pending between mr vijay thakur and accused. 7. That as on date he is not aware that,audio_13_44.mp3 +firm is still in existence or whether the firm has been closed by the accused. He voluntarily stated that since it is his firm he,audio_13_45.mp3 +might be aware of the same. That he do not know when the firm was closed. He denied the suggestion that he have intentionally sent,audio_13_46.mp3 +the legal notice to the address of the firm despite knowing that firm was closed in 2017. He also denied the suggestion that there is,audio_13_47.mp3 +no liability against him when he left the job. He denied the suggestion that there is no legally and enforceable debt of the accused. He,audio_13_48.mp3 +"also denied the suggestion that the multiple cases have been filed by him to put pressure upon accused and to extort money. 8. The complainant,",audio_13_49.mp3 +"thereafter, examined cw 2 i.e., vijay thakur. Cw 2 adopted his evidence by way of Aff. on 26.09.2022 and relied on mark a i.e., appointment",audio_13_50.mp3 +"letter, ex cw2/a i.e., authorization letter to sign identity cards, cw 2/b i.e., Auth. letter, cw2/c i.e., emails and ex cw2/d. 9. In his cross-examination",audio_13_51.mp3 +cw 2 stated that he has been working with the accused Co. since 16.02.1993 till february 2018. That initially he joined as an accountant and,audio_13_52.mp3 +left the services as Sr. manager accounts and administration. That he have not filed any appointment and designation letter on record. That he do not,audio_13_53.mp3 +remember his starting salary when he joined the accused Co. since its long time back. That at the time when he left the services of,audio_13_54.mp3 +"the accused Co. he was earning Rs. 1,30,000/-. That he is residing in his own house. That he brought the same in 1996 from his",audio_13_55.mp3 +earnings. That he cannot remember his salary in the year 1996. He denied the suggestion that he was not honest in his work with the,audio_13_56.mp3 +"accused firm. He denied the suggestion thatrishi pal kharmania vs. . M/s alkarma page 1 of 23 on 14 july, 2023",audio_13_57.mp3 +Manipulate the records of the accused firm. That he have brought the id card issued by the accused firm which is ex. Cw-2/e (osr). He,audio_13_58.mp3 +affirmed that the signature at point a reflecting issuing Auth. are his signature. He voluntarily stated that he have been authorized by the accused to,audio_13_59.mp3 +sign the identity cards on behalf of the accused firm which is ex. Cw2/a. He denied the suggestion that he used to issue and misuse,audio_13_60.mp3 +"his Auth. to sign without prior knowledge and consent of the accused. At this stage, the counsel for the accused confronted mark a & b",audio_13_61.mp3 +of cw1. He affirmed the suggestion that mark a & b does not bear the signature of any partner of alkarma. He voluntarily stated that,audio_13_62.mp3 +he had sought the Auth. letter from the accused with respect to signing on mark a & b which was given to him on 08.01.2018,audio_13_63.mp3 +which is ex. Cw2/b. 10. He further affirmed that the signature at point a in mark a & b of cw1 belongs to him. He,audio_13_64.mp3 +further affirmed that he was not having any written authorization in his favour to sign in mark a & b on behalf of the accused,audio_13_65.mp3 +Co. . He voluntarily stated that he was having oral directions and approval of the accused. He voluntarily stated that since he was working in continuity,audio_13_66.mp3 +with the accused firm he was under direction from the accused to sign mark a & b whereas the accused in writing had issued the,audio_13_67.mp3 +Auth. letter to him on 08.01.2018 with respect to entering into mark a & b of cw1 on behalf of the accused firm. He further,audio_13_68.mp3 +affirmed that the ex. Cw2/b does not mention that the same would be having retrospective effect pertaining to mark a & b. He voluntarily stated,audio_13_69.mp3 +that since the talks of full and final settlement were running in continuity he was authorized under directions to sign mark a and b although,audio_13_70.mp3 +the Auth. in writing was given to him on 08.01.2018. 11. He denied the suggestion that he was not authorized by any partner of the,audio_13_71.mp3 +"accused firm to enter into the settlement on behalf of accused firm on 30.11.2017. At this stage, the counsel for the accused confronted ex. Cw2/c.",audio_13_72.mp3 +He affirmed that the emails which are ex. Cw2/c are not of the year 2017. He voluntarily stated that emails which are ex. Cw2/c are,audio_13_73.mp3 +the communications made by him with the accused only with respect to his full and final settlement. He also voluntarily stated that the accused in,audio_13_74.mp3 +this email ex. Cw2/c has stated that he will settle his payment also as he has done with Ors. too. That there was around 40,audio_13_75.mp3 +staff members approx of the accused firm in the year 2017. That there were about 160 approx workers of the accused firm in the year,audio_13_76.mp3 +2017. He affirmed that the name of the complainant does not find any mention in ex. Cw2/c. He denied the suggestion that he was not,audio_13_77.mp3 +having Auth. to enter into full and final settlement with the complainant on behalf of the accused and his firm. 12. He denied the suggestion,audio_13_78.mp3 +that the ex cw2/b is forged and fabricated. He also denied the suggestion that ex. Cw2/b is forged and fabricated by typing on blank paper.,audio_13_79.mp3 +He also denied the suggestion that he had entered into mark a and mark b of cw1 behind the back of the accused and without,audio_13_80.mp3 +his knowledge on commission basis. He denied the suggestion that he had been indulging in creating forged and fabricated documents. He denied the suggestion that,audio_13_81.mp3 +the accused has no liability whatsoever against the accused. He also denied the suggestion that he was in possession of blank signed cheque book of,audio_13_82.mp3 +the accused. He denied the suggestion that he have misused the cheque in question in connivance with the complainant. He further denied the suggestion that,audio_13_83.mp3 +he have created various kinds of letters documents without the permission of the accused. He also denied the suggestion that he have misused his power,audio_13_84.mp3 +"and position in the accused firm and have acted in utterrishi pal kharmania vs. . M/s alkarma page 1 of 23 on 14 july, 2023",audio_13_85.mp3 +And the accused. He affirmed that settlement which has been placed by him in his Cas. is not signed by any partner of the accused,audio_13_86.mp3 +firm. That he cannot answer who has signed the settlement which has been placed by him in his Cas. . 13. The complainant thereafter closed his,audio_13_87.mp3 +evidence. 14. The statement of the accused under S. 313 crpc was then recorded on 15.10.2022. He stated that the documents which have been furnished,audio_13_88.mp3 +by cw2 were never authorized by him. That they are forged and fabricated. That the e-mail which have been furnished has no relevance to the,audio_13_89.mp3 +present matter. That there exists no due on him with respect to the complainant. That whatever due which he had has already been paid by,audio_13_90.mp3 +him to the complainant. That the cheque in question were in possession of the vijay thakur for business purposes since he used to travel abroad,audio_13_91.mp3 +"and he had issued instructions that the cheque would not be issued without his knowledge. However, the cheques in question have been misused by vijay",audio_13_92.mp3 +"thakur. That he have never given any authorization to anyone. 15. The accused opted to lead his defence evidence, however, on 27.02.2023 he closed his",audio_13_93.mp3 +"de. 16. Evidences and documents on record perused carefully. Arguments heard. Law point 17. Before analyzing the material on record, it is imperative to set",audio_13_94.mp3 +forth the legal benchmark which governs the adjudication of cases under S. 138 ni act. A bare reading of S. 138 ni act reveals that,audio_13_95.mp3 +"in addition to the cheque being issued for the discharge, in whole or in part, of any debt or other liability; following are the ingredients",audio_13_96.mp3 +which constitute an offence:- a. That a person drew a cheque on an account maintained by him with the banker; a. That such a cheque,audio_13_97.mp3 +when presented to the bank is returned by the bank unpaid; b. That such a cheque was presented to the bank within a period of,audio_13_98.mp3 +six months from the date it was drawn or within the period of its validity whichever is earlier; c. That the payee demanded in writing,audio_13_99.mp3 +from the drawer of the cheque the payment of the amount of money due under the cheque to payee; and d. Such a notice of,audio_13_100.mp3 +payment is made within a period of 30 days from the date of the receipt of the information by the payee from the bank regarding,audio_13_101.mp3 +"the return of the cheque as unpaid. (para 26, n. Harihara krishnan vs. j. Thomas, (2018) 13 scc 663, referred to in himanshu vs. b.",audio_13_102.mp3 +"Shivamurthy (2019) 3 scc 797)rishi pal kharmania vs. . M/s alkarma page 1 of 23 on 14 july, 2023",audio_13_103.mp3 +"S. 139. S. 139 provides that: ""presumption in favour of holder - it shall be presumed, unless the contrary is proved, that the holder of",audio_13_104.mp3 +"a cheque received the cheque of the nature referred to in S. 138 for the discharge, in whole or in part, of any debt or",audio_13_105.mp3 +"other liability."" 19. Thus, in cheque bouncing cases, the judicial scrutiny revolves around the satisfaction of ingredients enumerated under S. 138 ni act and if",audio_13_106.mp3 +"so, whether the accused was able to rebut the statutory presumption contemplated by S. 139 ni act. S. 139 is an example of reverse onus",audio_13_107.mp3 +"Cl. which usually imposes an evidentiary burden and not a persuasive burden. In other words, evidence of a character, not to prove a fact affirmatively,",audio_13_108.mp3 +but to lead evidence to show non- existence of a liability. Further the law is well settled that when an accused has to rebut the,audio_13_109.mp3 +"presumption under S. 139, the standard of proof of doing so is that of ""preponderance of probability"" (rangappa vs. sri mohan (2010) 11 scc 441).",audio_13_110.mp3 +"Once execution of cheque is admitted, it is a legal presumption under S. 139 of negotiable instrument act, the cheque was issued for discharging legally",audio_13_111.mp3 +enforceable debt. 20. Attention is also invited to S. 118(a) wherein a presumption of the cheque having been issued in discharge of a legally sustainable,audio_13_112.mp3 +"liability and drawn for good consideration, arises. S. 118 of the n.i act provides:- ""presumptions as to negotiable instruments: until the contrary is proved, the",audio_13_113.mp3 +"following presumptions shall be made: (a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when",audio_13_114.mp3 +"it has been accepted, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;"" 21. Hence, it can be seen that from its",audio_13_115.mp3 +very inception a presumption that the cheque was issued in discharge of a debt or other liability subsists in favour of the complainant and onus,audio_13_116.mp3 +"rests upon the accused to rebut the existing presumption on the touchstone of preponderance of probability. 22. Further, the accused in a trial under S. ",audio_13_117.mp3 +138 has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the Cas. the,audio_13_118.mp3 +"non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed (para 20, kumar exports",audio_13_119.mp3 +vs. sharma carpets (2009) 2 scc 513). The accused can also show that he has already returned the amount taken by him. Analysis & conclusion,audio_13_120.mp3 +"23. Now, the law is also well settled that ""once the cheque relates to the account of the accused and he accepts and admits the",audio_13_121.mp3 +"signatures on the said cheque, then initial presumption as contemplated under S. 139 of the NI Act has to be raised by the court",audio_13_122.mp3 +"in favor of the complainant."" (rangappa vs. mohan, air 2010 SC 1898). Reference can also be made to k.rishi pal kharmania vs. . M/s",audio_13_123.mp3 +"alkarma page 1 of 23 on 14 july, 2023",audio_13_124.mp3 +"The Hon'ble SC as under: ""as the signature in the cheque is admitted to be that of the accused, the presumption envisaged in S. ",audio_13_125.mp3 +118 of the act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. S. ,audio_13_126.mp3 +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,audio_13_127.mp3 +"liability."" 24. In this matter, the accused has admitted his signature. Therefore, the presumption under S. 139 ni act does get raised in favor of",audio_13_128.mp3 +"the complainant and against the accused. Thus, the accused now has to rebut the presumption on the touchstone of preponderance of probabilities. Further, the accused",audio_13_129.mp3 +"has not lead his defence evidence. However, the law is also well settled that the accused in order to rebut the presumption need not to",audio_13_130.mp3 +step into the witness box or lead his defence evidence. The accused can through the material brought on record by the complainant can also rebut,audio_13_131.mp3 +"the presumption existing against him. 25. At the outset, on the close scrutiny and appraisal of the original cheque in question marked as ex cw1/b",audio_13_132.mp3 +"it clearly transpires that the same had been issued as per the above details. Further, the cheque in question got dishonored vide returning memos dated",audio_13_133.mp3 +"14.03.2018 with remarks ""funds insufficient"" marked as ex cw 1/c. Thus, one of the essential ingredients of S. 138 i.e., that a person drew a",audio_13_134.mp3 +cheque on an account maintained by him with the banker; and that such a cheque when presented to the bank is returned by the bank,audio_13_135.mp3 +"unpaid, stands fulfilled. Further, on a co-joint reading of the cheque in question ex cw 1/b, return memo ex cw 1/c, it also stands proved",audio_13_136.mp3 +"that ""cheque was presented to the bank within a period of six months from the date it was drawn"". 26. The legal notice dated 24.03.2018",audio_13_137.mp3 +"ex cw 1/d further proves that the same was issued on 24.03.2018 and dispatched vide postal receipts ex cw1/e to ex cw1/g. Now, the accused",audio_13_138.mp3 +has denied the receipt of legal notice. 27. The Hon'ble SC in k bhaskaran vs. sankaran vaidhyan balan (1999) 7 scc 510 in para,audio_13_139.mp3 +"18 observed thus: ""......'giving notice' in the context is not the same as 'receipt of notice'. Giving is a process of which receipt is the",audio_13_140.mp3 +"accomplishment. It is for the payee to perform the former process i.e. Giving, by sending the notice to the drawer at the correct address....."" 28.",audio_13_141.mp3 +"Further, in para 24 of the above said judgment the Hon'ble SC held that where the sender has dispatched the notice by post with",audio_13_142.mp3 +"correct address written on it, the principle Inc. in S. 27 of general clauses act could profitably be imported in such a Cas. . It was",audio_13_143.mp3 +further held that in this situation service of notice is deemed to have been effected on the sendee.rishi pal kharmania vs. . M/s alkarma page,audio_13_144.mp3 +"1 of 23 on 14 july, 2023",audio_13_145.mp3 +Same has been succinctly put forth by the Hon'ble SC in c c alavi haji vs. palapetty muhammed (2007) 6 scc 555. Para 13,audio_13_146.mp3 +"& 14 of the judgment is worth mentioning as under: ""13. According to S. 114 of the act, r/w illustration (f) thereunder, when it",audio_13_147.mp3 +"appears to the court that the common course of business renders it probable that a thing would happen, the court may draw presumption that the",audio_13_148.mp3 +"thing would have happened, unless there are circumstances in a particular Cas. to show that the common course of business was not followed. Thus, S. ",audio_13_149.mp3 +"114 enables the court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course",audio_13_150.mp3 +"of natural events, human conduct and public and Pvt. business in their relation to the facts of the particular Cas. . Consequently, the court can presume",audio_13_151.mp3 +"that the common course of business has been followed in particular cases. When applied to communications sent by post, S. 114 enables the court to",audio_13_152.mp3 +"presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that",audio_13_153.mp3 +"is raised under S. 27 of the g.c. Act is a far stronger presumption. Further, while S. 114 of evidence act refers to a general",audio_13_154.mp3 +"presumption, S. 27 refers to a specific presumption 14. S. 27 gives rise to a presumption that service of notice has been effected when it",audio_13_155.mp3 +"is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered",audio_13_156.mp3 +"post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice",audio_13_157.mp3 +"unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary",audio_13_158.mp3 +"is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered",audio_13_159.mp3 +"in the ordinary course of business. 30. Thus, in view of the law as above said and the fact that the address given by accused",audio_13_160.mp3 +in his notice under S. 251 crpc being the same address which finds mention in the legal notice and that the legal notice was duly,audio_13_161.mp3 +"dispatched through postal receipt, the mandatory statutory legal notice marked as ex cw 1/d is deemed to have been served on the accused in the",audio_13_162.mp3 +"present Cas. . Thus, the factum of issuance and receipt of mandatory statutory legal notice also stands proved based on the documentary evidence of legal notice,",audio_13_163.mp3 +"postal receipts. It has been also proved that despite issuance of legal notice, the accused had failed to make the payment of the cheque amount.",audio_13_164.mp3 +"31. Before noting the line of defence of the accused that can be deduced through the cross examination of the complainant witnesses, it is apposite",audio_13_165.mp3 +to note the admitted facts in the present matter: (a) the accused is a partnership firm. This has been established in view of the consistent,audio_13_166.mp3 +"position of cw 1 as well as cw 2. Furthermore, nowhere during the course of the trial the accused has disputed that alkarna is not",audio_13_167.mp3 +"a partnership firm. Not arishi pal kharmania vs. . M/s alkarma page 1 of 23 on 14 july, 2023",audio_13_168.mp3 +By the accused. (b) accused sandeep chaudhary is the partner and authorized signatory of accused alkarma firm. The same stands proved on a co-joint reading,audio_13_169.mp3 +and perusal of the cheque in question and notice under S. 251 crpc. The accused sandeep chaudhary has admitted his signatures on the cheque in,audio_13_170.mp3 +"question and perusal of the cheque reflects that the same is belong to ""alkarma"" of which sandeep chaudhary is the authorized signatory. Furthermore, it is",audio_13_171.mp3 +also not the Cas. of the accused that he is not the authorized signatory/partner of accused alkarma. (c) complainant used to work for the accused,audio_13_172.mp3 +alkarma. This has also not been disputed by the accused. Not a single suggestion or question has been put by the accused which could directly,audio_13_173.mp3 +or indirectly goes on to establish that it is the Cas. of the accused that the complainant has no connection whatsoever with the accused alkarma,audio_13_174.mp3 +"firm or that complainant was never an employee of the accused firm. As a matter of fact, ex cw1/k i.e., certificate of appointment and ex.cw1/l",audio_13_175.mp3 +i.e. Salary slip brought on record by the complainant further cements the position that the complainant indeed was the employee of accused alkarma firm. 32.,audio_13_176.mp3 +"In order to rebut the presumption existing in favor of the complainant, the accused through the cross examination and notice under S. 251 crpc attempted",audio_13_177.mp3 +to create following line of defence: a) the cheque in question was never issued to the complainant. B) there never existed any settlement between him,audio_13_178.mp3 +and the complainant as to the outstanding amount claimed by the complainant. C) the blank signed cheques were used to be kept in his office,audio_13_179.mp3 +for daily use and the same were taken from the said office and misused. (notice under S. 251 crpc.) d) the cheque in question were,audio_13_180.mp3 +in possession of cw2 vijay thakur and the same has been misused by vijay thakur and never gave authorization to anyone regarding the issuance of,audio_13_181.mp3 +cheque in question. (statement under S. 313 crpc.) e) whatever documents that have been brought on record by the complainant and his witness are forged,audio_13_182.mp3 +"and fabricated and were never created by him. F) whatever due, if any, is there against him has already been paid by him to the",audio_13_183.mp3 +"complainant. (statement under S. 313 crpc.)rishi pal kharmania vs. . M/s alkarma page 1 of 23 on 14 july, 2023",audio_13_184.mp3 +251 crpc he only stated that blank signed cheques used to be kept in his office for daily use and the same were taken from,audio_13_185.mp3 +"the said office and misused. Here, the accused never even mentioned as to who took the said cheques or when the said cheques were taken.",audio_13_186.mp3 +"However, only when the complainant examined cw 2 i.e., vijay thakur, the accused in his statement under S. 313 crpc modified and changed his position",audio_13_187.mp3 +and stated that the cheque in question were in possession of vijay thakur and the same have been misused by vijay thakur. 34. During the,audio_13_188.mp3 +course of the trial objection was raised with respect to full and final settlement brought on record since the same was not original. The objection,audio_13_189.mp3 +"was also decided in favor of the accused. However, mere absence of settlement agreement by itself does not in any manner create probable defence in",audio_13_190.mp3 +"favor of the accused, viewed specifically in the light of the fact that the complainant was the employee of the accused firm and further cw1",audio_13_191.mp3 +"i.e., the complainant and cw 2 i.e., vijay thakur through their testimony has been able to establish that a settlement was arrived between the accused",audio_13_192.mp3 +"firm and the complainant. 35. Furthermore, the accused never initiated any complaint or legal proceedings with respect to the misuse of the cheque. As a",audio_13_193.mp3 +"matter of fact, there exists a total of 5 cheques bounce cases pending between the accused and the complainant in the same court. A total",audio_13_194.mp3 +of 33 cases are pending against the accused with respect to multiple cheques in the same court. It is highly unnatural and improbable that where,audio_13_195.mp3 +"close to three dozen cheque bounce cases have been filed against the accused and he takes a stand that all the cheques have been misused,",audio_13_196.mp3 +not a single complaint or legal proceedings or even a stop payment instruction has been initiated by the accused. This conduct of the accused further,audio_13_197.mp3 +weakens his line of defence. 36. Anr. point which is noticeable is that during the cross examination of the complainant as well as cw 2,audio_13_198.mp3 +"i.e., vijay thakur, the counsel of the accused took a line of defence that the documents which has been filed on record i.e., settlement, does",audio_13_199.mp3 +not bear the signature of the accused and only of vijay kumar cw 2. He has further through the cross examination of the complainant as,audio_13_200.mp3 +well as his witness attempted to establish that cw 2 was never authorized by the accused to enter into any settlement with the complainant. This,audio_13_201.mp3 +"line of defence also does not hold much water. It stands proved through the testimony of cw 2 i.e., vijay thakur that he was also",audio_13_202.mp3 +the employee of accused firm and was working in the position of Sr. manager. The same also stands proved through the documents which has been,audio_13_203.mp3 +brought on record by cw 2 which are on the letter head of the accused firm. 37. Cw 2 further brought on record authorization letter,audio_13_204.mp3 +dated 08.01.2018 ex cw2/b which does establish that he was duly authorized. Although the accused did attempt to show that since the settlement was dated,audio_13_205.mp3 +"30.11.2017 and whereas the authorization letter ex cw2/b is of 08.01.2018, cw 2 was never authorized to enter into any settlement agreement on behalf of",audio_13_206.mp3 +"the accused. However, a plausible explanation to this effect was given by cw 2 in his cross examination that since he was working in continuity",audio_13_207.mp3 +with the accused firm he was under directions form the accused to sign mark a and mark b whereas the accused in writing had issued,audio_13_208.mp3 +the Auth. letter to him on 08.01.2018. It is proved that cw 2 has been working in the position of Sr. manager with accusedrishi pal,audio_13_209.mp3 +"kharmania vs. . M/s alkarma page 1 of 23 on 14 july, 2023",audio_13_210.mp3 +"Further, cw 2 has been working in the accused firm since 1993. In view the abovesaid long tenure and responsible position, the delay of merely",audio_13_211.mp3 +a month in the issuance of the authorization letter does not create any reasonable doubt that cw 2 was never authorized by accused sandeep chaudhary,audio_13_212.mp3 +"to enter into settlement on behalf of accused firm. 38. Furthermore, a suggestion was put during the cross examination of cw 2 that ex cw2/b",audio_13_213.mp3 +"i.e., the authorization letter is forged and fabricated. However, mere suggestion by itself does not prove that the document is forged and fabricated. Something more",audio_13_214.mp3 +ought to be brought on record to establish the same. It is not the Cas. of the accused that he has initiated any Crl. proceedings,audio_13_215.mp3 +with respect to the forging and fabrication of ex cw2/b. No material whatsoever has been brought on record by accused to even suggest the same.,audio_13_216.mp3 +"Thus, it stands proved that cw 2 was authorized to enter into settlement agreement on behalf of accused firm with the complainant. 39. The accused",audio_13_217.mp3 +had an option to examine himself as a witness which the accused opted not to avail. Where the accused does not examine himself as a,audio_13_218.mp3 +"witness, his statement under S. 281 cr. P.c. Or 313 cr. P.c. Cannot be read as evidence of the accused and it has to be",audio_13_219.mp3 +looked into only as an explanation of the incriminating circumstance and not as evidence. There is no presumption of law that explanation given by the,audio_13_220.mp3 +"accused was truthful (v.S. yadav vs. reena 2010 scc online del 3294). In the present matter, in his statement under S. 313 crpc the accused",audio_13_221.mp3 +stated that the documents brought by cw 2 were never authorized by him and they are forged and fabricated. If the accused wanted to prove,audio_13_222.mp3 +"this, he was supposed to appear in the witness box and testify and get himself subjected to cross examination. Furthermore, nothing came in the cross",audio_13_223.mp3 +examination of cw 2 so as to cast any doubt on the documents brought on record by him. 40. During the cross examination of the,audio_13_224.mp3 +"complainant, a suggestion was put to the complainant that there is nothing due against the accused/firm and that the complainant has already received his entire",audio_13_225.mp3 +"due from the accused when he left the firm. In other words, it is the stand of the accused that he has already paid the",audio_13_226.mp3 +"entire due when the complainant left the firm and no due is left against the accused/firm. The same was, however, denied by the complainant. The",audio_13_227.mp3 +abovesaid position of the accused further stands corroborated through the statement of the accused under S. 313 crpc wherein the accused stated that whatever due,audio_13_228.mp3 +which he had has already been paid by him to the complainant. 41. At this juncture it is pertinent to note that in terms of,audio_13_229.mp3 +"S. 1 sub-S. (4) of payment of wages act, the act is applicable to a factory. Now, the accused firm alkarma is a factory. The",audio_13_230.mp3 +"same is proved on perusal of form no 3a i.e., notice of change of manager brought on record by cw 2. 42. S. 13 a",audio_13_231.mp3 +of payment of wages act is as follows: [13a. Maintenance of registers and records.--(1) every employer shall maintain such registers and records giving such particulars,audio_13_232.mp3 +"of persons employed by him, the work performed by them, the wages paid to them, the deductions made from their wages, the receipts given by",audio_13_233.mp3 +"them and such other particulars and in such form as may berishi pal kharmania vs. . M/s alkarma page 1 of 23 on 14 july,",audio_13_234.mp3 +2023,audio_13_235.mp3 +"(2) every register and record required to be maintained under this S. shall, for the purposes of this act, be preserved for a period of",audio_13_236.mp3 +"three years after the date of the last entry made therein.] 43. Thus, as can be seen S. 13a mandates that an employer shall maintain",audio_13_237.mp3 +"registers and records of person employed by him, work performed, wages paid, deductions made, and receipts given. Alkarma being a factory was therefore required to",audio_13_238.mp3 +maintain the registers as per the labor legislations. The accused brought no registers maintained by him in this regard. If the stand of the accused,audio_13_239.mp3 +"is that he had already paid all the dues to the complainant, he ought to have brought the registers which were maintained by him reflecting",audio_13_240.mp3 +"the same, however, the accused brought nothing on record. Thus, adverse inference needs to be drawn against the accused firm and further the defence raised",audio_13_241.mp3 +"by the accused regarding due payment already been made to the complainant stands rejected. 44. The present matter, as per the memo of parties has",audio_13_242.mp3 +been filed against m/s alkarma through its partner sandeep chaudhary. In the complaint there exists a separate averment that accused sandeep chaudhary is partner of,audio_13_243.mp3 +"m/s alkarma and was/is looking after day-to-day affairs and is the authorized signatory of the Co. . Further, accused sandeep chaudhary signed on the cheque in",audio_13_244.mp3 +question as the authorized signatory of alkarma. Notice under S. 251 crpc was also framed against accused sandeep chaudhary as partner of accused alkarma. It,audio_13_245.mp3 +is also not the Cas. of the accused sandeep chaudhary that he is not the partner or authorized signatory of accused alkarma. In fact the,audio_13_246.mp3 +"entire defence of accused sandeep chaudhary was raised on the premise that accused sandeep chaudhary is the partner of accused alkarma. Hence, in the present",audio_13_247.mp3 +"matter the accused sandeep chaudhary was separately arraigned as an accused along with m/s alkarma. Thus, accused sandeep chaudhary is also vicariously liable in terms",audio_13_248.mp3 +"of S. 141 ni act being the partner of accused firm. 45. Thus, in view of the oral and documentary evidence brought on record by",audio_13_249.mp3 +"the complainant, statement of the accused under S. 313 cr.p.c, the accused has failed to create a dent/doubt in the Cas. of the complainant and",audio_13_250.mp3 +"it is clear that the accused had committed an offence under S. 138 of the NI Act . Further, the complainant has also been able",audio_13_251.mp3 +"to establish his Cas. . 46. On the basis of the above said analysis and conclusions arrived, the accused viz. i) m/s alkarma and ii) sh",audio_13_252.mp3 +sandeep chaudhary s/o shri subhash chaudhary is convicted for the commission of the offence punishable under S. 138 of the act. This judgment contains 23,audio_13_253.mp3 +pages. Every page of this judgment has been signed by me. Harshal negi announced in the open court negi date:rishi pal kharmania vs. . M/s,audio_13_254.mp3 +"alkarma page 1 of 23 on 14 july, 2023",audio_13_255.mp3 +"On this day of 14th july, 2023 16:41:16 +0530 (harshal negi) mm(ni act)-05/south-west district dwarka courts/new delhirishi pal kharmania vs. . M/s alkarma page 1",audio_13_256.mp3 +"of 23 on 14 july, 2023",audio_13_257.mp3 +"Sri.devaraj vs. about 54 years on 7 december, 2021 1 Crl. a.no.18/2021 kabc010004632021 presented on : 06-01-2021 registered on : 07-01-2021 decided on : 07-12-2021",audio_14_1.mp3 +"duration : 01-11-00 in the court of the lix addl.city Civ. & sessions judge (cch-60) at bengaluru) dated this 7 th day of december, 2021",audio_14_2.mp3 +"-: p r e s e n t :- sri. Rajeshwara, b.a., l.l.m., lxiv addl.city Civ. & sessions judge, cch-65, c/c lix addl.city Civ. &",audio_14_3.mp3 +"sessions judge, cch-60 bengaluru city. Crl. appeal no .18/2021 appellant/ sri.devaraj, h.S. s/o siddegowda, aged accused about 54 years, r/at no.3, 103/30, sampanna nilaya, vishnumurthy",audio_14_4.mp3 +"temple road, durgamba badavane, kulayi, mangalore 575 011, south canara district. & also at; sri.devaraju, h.s., driver, ksrtc, 3rd depot, kunthikana, mangalore division, south canara",audio_14_5.mp3 +"district m/s divya drishti creations. (rept. By sri.p.karunakar, Adv. ) respondent/ smt.asha, d/o i.b.ponnappa, aged about 45 complainant : years, r/at no.164/k, 14th cross, 19th main",audio_14_6.mp3 +"road, rajajinagara 1st stage, bangalore-40 (rept. By smt.r.s.premalatha, Adv. ) j u dg m e n t appellant has filed this appeal u/s.374(3) of code of",audio_14_7.mp3 +"Crl. procedure , being aggrieved by the judgment of conviction and order of sentence passed in c.c.no.19241/2017 dated 09.03.2020 on the file of xix addl.",audio_14_8.mp3 +A.c.m.m. Bangalore. 2. Parties to this appeal shall be referred as per their ranking before the trial court for the purpose of convenience and for,audio_14_9.mp3 +"better appreciation of their contentions. 3. In the memorandum of appeal, appellant has submitted that, trial court has not properly appreciated the evidence available on",audio_14_10.mp3 +"record. According to the complainant the loan was advanced in the year 2014, but no date was mentioned in the complaint and the complainant forcibly",audio_14_11.mp3 +took the disputed cheque after lapse of three years four months on 23.05.2017 from the W/O the accusedsri.devaraj vs. about 54 years on 7,audio_14_12.mp3 +"december, 2021",audio_14_13.mp3 +"Complainant has falsely contended that she has pledged the gold ornaments in the year 2014, but she pledged her gold in a Pvt. Co. in",audio_14_14.mp3 +the month of june 2015 and august 2015 as per ex.p9 to p33. The complainant has no financial capacity to advance the loan to the,audio_14_15.mp3 +accused. The trial court has grossly erred in convicting the accused only on the ground that the accused has admitted the cheques-in-question are belonged to,audio_14_16.mp3 +him and his signatures are available on the cheques. The trial court has not appreciated the material evidence available on record and also admissions made,audio_14_17.mp3 +by the complainant in her evidence. The cheque is not issued for any legally recoverable debt. Impugned judgment of conviction and order of sentence is,audio_14_18.mp3 +"perverse. For the aforesaid reasons, appellant has prayed to interfere into the impugned judgment and order and set aside the same. 4. Along with memorandum",audio_14_19.mp3 +"of appeal, appellant has produced certified copy of the order and judgment dated 09.03.2020. 5. Respondent appeared through counsel. Heard arguments. Adv. for respondent submitted",audio_14_20.mp3 +"written argument. Perused the smae. T.c.r were called for reference in this appeal. Now, following are points arising for determination : 1. Whether in the",audio_14_21.mp3 +"light of evidence and material brought before the court, trial court is justified in convicting accused/ appellant for the offence punishable under S. 138 of",audio_14_22.mp3 +negotiable instrument act (n.i.act) and sentencing accused for the said offence ? 2. Whether interference of this court is necessitated ? 3. What order ?,audio_14_23.mp3 +6. It is answered for the aforesaid points as under :- point no.1: in the affirmative. Point no.2: in the negative point no.3: as per,audio_14_24.mp3 +"final order below, for the following:- r e a s on s 7. Point nos. 1 and 2 :- these points are taken together to",audio_14_25.mp3 +"avoid repeated discussions. 8. Accused is known to the complainant through her sister smt.anitha. For financial needs, accused demand rs.3,50,000/- (Rs. three lakhs and fifty",audio_14_26.mp3 +"thousand) hand loan from the complainant. Complainant paid hand loan of rs.3,50,000/- ( three lakhs and fifty thousand) to the accused. Since the complainant's sister",audio_14_27.mp3 +"smt.anitha fell ill, complainant requested the accused to return the loan amount to bear the medical expenses of her sister. For repayment of the said",audio_14_28.mp3 +"amount, accused issued cheque no.049255 dated 04.05.2017 for rs.3,50,000/- drawn on vijaya bank, mangaluru bijay branch, mangaluru. Complainant presented the said cheque which came to",audio_14_29.mp3 +"be dishonouredsri.devaraj vs. about 54 years on 7 december, 2021",audio_14_30.mp3 +"The said notice was served on 01.06.2017 on the accused. Despite service of notice, accused failed to pay the cheque amount to the complainant. To",audio_14_31.mp3 +"take action against the accused for offence punishable under S. 138 of ni act, complainant filed complaint under S. 200 of Cr.P.C. ",audio_14_32.mp3 +"9. Perused entire order sheets, complaint filed under S. 200 of Cr.P.C. , for the offence punishable under S. 138 of n.i",audio_14_33.mp3 +"act, sworn statement Aff. of the complainant, plea of accusation, examination-in-chief evidence of p.w.1 by way of Aff. , ingredients of documents at ex.p.1 to ex.p33,",audio_14_34.mp3 +"statement of accused under S. 313 of Cr.P.C. , evidence of dw1 and dw2 and ingredients of documents at ex.d.1 and ex.d.6(a).",audio_14_35.mp3 +There is no procedural defect of any nature while conducting trial relating to Pvt. complaint registered for the offence punishable under section138 of n.i act.,audio_14_36.mp3 +"10. So far as appreciation of evidence is concerned, complainant smt.asha is examined as p.w.1. P.w.1 has reiterated ingredients of her complaint in her examination",audio_14_37.mp3 +"in chief. Ex.p.1 cheque, ex.p.2 bank endorsement made it clear that cheque issued by the accused came to be dishonoured by his banker for funds",audio_14_38.mp3 +"insufficient. Ex.p.3 legal notice, ex.p.4 postal receipt, ex.p.5 postal acknowledgment made it clear that notice issued by the complainant demanding payment under bounced cheque amount",audio_14_39.mp3 +"by the accused is served on the accused. Ex.p.8 is the loan agreement, ex. P9 and p10 are the statement of account of manappuram finance",audio_14_40.mp3 +"ltd and ex.p11 to 33 are the receipts. With the help of the evidence of pw.1 and contents of ex.p.1 to ex.p.33, complainant successfully discharged",audio_14_41.mp3 +"initial burden of proof casts under S. 138 of n.i act. Thereafter, burden shifts on the accused as per presumptions under S. 118 and 139",audio_14_42.mp3 +of n.i act in the form of reverse onus on the accused to rebut presumptions. 11. Accused appeared before the court and enlarged on bail.,audio_14_43.mp3 +"There is no specific plea of defence filed by the accused. To rebut presumptions, accused cross-examined p.w.1 and accused examined himself as dw1, examined one",audio_14_44.mp3 +witness as dw2 and got marked documents at ex.d1 and d.6(a). 12. Before considering the point whether accused succeeded to rebut presumptions and to establish,audio_14_45.mp3 +"his defence to the extent of probabilities, it is just and necessary to accumulate undisputed facts in this Cas. . 13. It is not in dispute",audio_14_46.mp3 +"that bounced cheque belongs to the bank account of the accused. It is also not in dispute that, signature appearing on the bounced cheque is",audio_14_47.mp3 +"the signatures of the accused. It is also not in dispute that, cheque presented by the complainant came to be dishonoured by the banker of",audio_14_48.mp3 +the accused for the reason stated in the dishonour memo. 14. Defence set up by the accused in the Cas. is that in the year,audio_14_49.mp3 +"2014 he availed financial assistance of rs 2,00,000/- from complainant and after lapse of one year, both accused and complainant entered into an agreement as",audio_14_50.mp3 +"per ex p8. He paid rs.1,00,000/- through cheque 76690417 dated 10.02.2017 and remaining amount of rs 1,00,000/- paid by way of cash through his colleague",audio_14_51.mp3 +"driver Mr. eswarappa. On 23.04.2017, the complainant along with her friends went to the house of accused threatened the inmates of the house as the",audio_14_52.mp3 +"accused was in thirupathi and get two blank cheque keptsri.devaraj vs. about 54 years on 7 december, 2021",audio_14_53.mp3 +"Police and after arrival of the accused from thirupathi, he too lodged the complaint which was numbered as ncr.no.385/ptn/skl-2017. He further submitted that the act",audio_14_54.mp3 +of the accused does not attracts the ingredients of S. 138 of n.i.act as there is no existing debt or liability and the debt is,audio_14_55.mp3 +barred by time and the complainant has not proved her financial capacity. 15. To assess whether accused succeeded to establish the aforesaid defence to the,audio_14_56.mp3 +"extent of probabilities, it is just and necessary to accumulate admissions elicited in the cross examination of p.w.1. No such admission is elicited in the",audio_14_57.mp3 +"cross examination of pw.1 to show that, bounced cheque was forcibly taken by the complainant and her friends from the house of accused while he",audio_14_58.mp3 +"was in thirupathi. No such admission is elicited in the cross examination of p.w.1 to show that he did not borrow rs.3,50,000/- hand loan from",audio_14_59.mp3 +the complainant. No such admission is elicited in the cross examination of p.w.1 to show that complainant collected bounced cheque from the house of the,audio_14_60.mp3 +accused. 16. Accused examined himself as d.w.1. In his evidence accused reiterated his aforesaid defence. Dw-1 has admitted that the bounced cheque belongs to him,audio_14_61.mp3 +"and he identified his signature on the cheque. Dw-2 harinakshi, W/O accused deposed in support of the defence set up by the accused. However,",audio_14_62.mp3 +"dw-2 failed to produce any document to substantiate her version. Further, dw-2 has admitted in her cross examination that fact that signed blank cheques to",audio_14_63.mp3 +pay school fee of the S/O brother-in-law is not mentioned in her complaint. Dw 1 has admitted in his cross examination that school where,audio_14_64.mp3 +S/O his brother is studying will not accept cheque. Aforesaid admissions coupled with admission in respect of alleged repayment of rs.2 lakhs by accused,audio_14_65.mp3 +to complainant made it clear that defence set up by the accused is not real and true defence. 17. Perused impugned judgment passed by the,audio_14_66.mp3 +"trial court. After taking into consideration evidence adduced by complainant/pw.1, accused/dw1 and dw-2 on oath against oath, considering proved contents of documents produced by the",audio_14_67.mp3 +"complainant at ex.p.1 to ex.p.33 and ex.d.1 to d6, trial court rightly has held that complainant proved Cas. against the accused for offence punishable u/s.138",audio_14_68.mp3 +of n.i.act by drawing presumptions u/s.118 and 139 of n.i.act in favour of the complainant. 18. Relying upon the law laid down in the judgments,audio_14_69.mp3 +"reported in judgment of SC of india reported in air 2010 SC 1898 rangappa v/s mohan, air 2019 SC 876 rohit bhai",audio_14_70.mp3 +"jevanlal patel v/s state of gujarat, Crl. appeal no.799/2010 m/'s s.v.enterprices v/s smt.tulasiram, trial court has held that accused is liable to pay bounced cheque",audio_14_71.mp3 +"amount to the complainant. 19. The accused has relied on the decisions ashwini sathis bhat v/s jeevan diwakar (laws(bom)1999, 230, 2) (2015) 1 SC ",audio_14_72.mp3 +"cases 99, 3) t.p.murugan v/s bojan, (2018) 8 scc 469, 4) vishnudasishnudas v/s vijaya mahantesh reported in ilr 2007 karnataka 1708, 5) m.s.narayana menon @",audio_14_73.mp3 +"mani v/s state of kerala and Anr. (2006)6, scc 39, 6) shreyas agro services pvt ltd v/s chandrakumar s.b (2007(6) kar.l.j 237) and 7) crefcref",audio_14_74.mp3 +"finance ltd, kolkata v/s sree shanthi homes pvt ltd., bangalore and Anr. ilr 2014 kar 2168. Carefully perused law laid down in the aforesaid judgments.sri.devaraj",audio_14_75.mp3 +"vs. about 54 years on 7 december, 2021",audio_14_76.mp3 +"Producing ex.d.1 to d6(a) and examining his wife as dw-2, he is unable to establish his defence to the extent of probabilities. It is difficult",audio_14_77.mp3 +to accept the possibility of complainant being a lady forcibly entered into the house of the accused and threatened the inmates of the house and,audio_14_78.mp3 +got two signed blank cheques from the house. 21. It is settled position of law that S. 20 of n.i.act permits holder of the inchoate,audio_14_79.mp3 +negotiable instrument to fill up for realization whole or part of the legally recoverable debt due from the drawer of the cheque. Further it is,audio_14_80.mp3 +also settled that signed blank cheque is having similar liability that of the cheque issued in filled form. 22. Compared reasons assigned by the trial,audio_14_81.mp3 +court in the impugned judgment of conviction as discussed above with the allegations made in the memorandum of appeal. No grounds are made out in,audio_14_82.mp3 +"the memorandum of appeal to interfere into the impugned judgment of conviction. 23. So far as quantum of sentence is concerned, trial court imposed sentence",audio_14_83.mp3 +"directing the accused to pay fine of rs.6,00,000/-(six lakhs only) for dishonour of cheque issued for rs.3,50,000 ( three lakhs fifty thousand Rs. ). In default",audio_14_84.mp3 +"of payment of fine amount, accused shall undergo simple imprisonment for a period of three months. Out of fine amount of rs.5,90,000/-(five lakhs ninety thousand",audio_14_85.mp3 +"Rs. ), is ordered to be paid to complainant by way of compensation and rs.10,000/-(ten thousand Rs. ) fine to be paid to state exchequer. Fine amount",audio_14_86.mp3 +imposed is within the purview of S. 138 of n.i.act. Appellants failed to show that sentence imposed is exhorbitant. Accused/appellant failed to show that quantum,audio_14_87.mp3 +"of fine imposed is excessive. There is no merit in the appeal. Order under appeal is sustainable in law. Hence, interference of this court is",audio_14_88.mp3 +"not necessary. Accordingly, point no.1 is answered in the affirmative and point no.2 is answered in the negative. 24. Point no.3 :- in view of",audio_14_89.mp3 +"findings on the above points no.1 and 2, this Crl. appeal is devoid of merits and the same is liable to be dismissed by confirming",audio_14_90.mp3 +"impugned judgment of conviction and order of sentence. Hence, following order is made: o r de r invoking provisions under S. 386 of code of",audio_14_91.mp3 +"Crl. procedure , this Crl. appeal filed u/s.374(3) of Cr.P.C. is dismissed. Consequently, impugned judgment of conviction and order of sentence dated",audio_14_92.mp3 +"09.03.2020 passed in c.c.no.19241/2017 on the file of xix additional chief MM , bengaluru is hereby confirmed. Appellant/accused is hereby directed to appear before the",audio_14_93.mp3 +trial court to deposit the fine amount or to serve the sentence. Office is hereby directed to send back t.c.r. Along with certified copy of,audio_14_94.mp3 +"this judgment to the trial court.sri.devaraj vs. about 54 years on 7 december, 2021",audio_14_95.mp3 +"Printout taken is corrected, signed and then pronounced by me in the open court on this 07 th day of december, 2021.) sd/-07.12.2021 (rajeshwara) i/c",audio_14_96.mp3 +"lix addl.city Civ. & sessions judge, cch-60, lxiv addl.city Civ. & sessions judge, cch-65, bengaluru city.sri.devaraj vs. about 54 years on 7 december, 2021",audio_14_97.mp3 +"M/S. stellent systems pvt vs. S/O . Narasaiah on 30 january, 2023 kabc030195172022 presented on : 10-03-2022 registered on : 10-03-2022 decided on :",audio_15_1.mp3 +"30-01-2023 duration : 0 years, 10 months, 20 days in the court of xxvii addl. Chief MM , bengaluru present: sri. H. Satish b.a.l, ll.b.,",audio_15_2.mp3 +"ll.m., xxvii a.c.m.m bengaluru. Dated: this the 30 th day of january, 2023. C.c. No.7350/2022 complainant m/s. Stellent systems pvt ltd., partnership firm situated at",audio_15_3.mp3 +"no.9/2, 1st floor, 6th cross, amarjyothinagar, bengaluru 560040. Represented by its partner and authrized signatory smt. L. Sangeetha w/o. Late sri. B.S. shyam (by sri.",audio_15_4.mp3 +"B.r. Vinod kumar, Adv. ,) v/s. Sri. Chandrashekar accused s/o. Narasaiah aged about 49 years, no.895/1, 16th main, 3rd block, near esi, rajajinagar, bengaluru 560076. (by",audio_15_5.mp3 +"sri.bhargav d bhat Adv. .,) 2 c.c. No. 7350/2022 offence u/s.138 of NI Act .m/S. stellent systems pvt vs. S/O . Narasaiah on 30 january,",audio_15_6.mp3 +2023,audio_15_7.mp3 +defence to make final order acquitted judgment date 30/01/2023 **** judgment the complainant has filed complaint u/sec.200 of Cr.P.C. against the accused,audio_15_8.mp3 +for the offence punishable u/sec.138 of the negotiable instrument act. 2. The facts germane for disposal of the instant complaint can be summarized as per,audio_15_9.mp3 +"following:- it is the Cas. of the complainant that, she is the partner and authorized signatory of stellent systems pvt ltd., and the said Co. ",audio_15_10.mp3 +"was originally owned by her late husband by name b.S. shyam who died on 03/05/2021 and stated that, after her husband demise, complainant is transferred",audio_15_11.mp3 +in the name of smt. L. Sangeetha and her son mr. B.S. shreyas and they are running the firm as partners. It is stated that,audio_15_12.mp3 +the late husband of smt. L. Sangeetha and accused were known to each other and the accused used to borrow money from her late husband,audio_15_13.mp3 +"b.S. shyam and the accused used to repay the same. It is also stated that as on may 2021, the accused was due to her",audio_15_14.mp3 +"late husband b.S. shyam to the tune of rs.15,00,000/- and when her late husband b.S. shyam was hospitalized due to covid, the complainant requested the",audio_15_15.mp3 +"accused to return the amount of rs.15,00,000/- and the accused assured the complainant that he would repay the same in installments and towards part payment,",audio_15_16.mp3 +"the accused issued cheque bearing no.000260, dated: 30/04/2021, drawn on hdfc bank, ganganagar branch, bengaluru and the same got dishonoured, on its presentation and returned",audio_15_17.mp3 +"with memo stating ""funds insufficient "". 3. It is stated that, the husband of smt. L. Sangeetha died on 03/05/2021 and thereafter, the accused approached",audio_15_18.mp3 +"the complainant and assured that he would repay the entire amount of rs.15,00,000/- in installments and issued cheque bearing no.000204, dated: 25/05/2021, drawn on hdfc",audio_15_19.mp3 +"bank, ganganagar branch, bengaluru and Anr. cheque bearing No. 097239 dated: 17/09/2021 for a sum of rs.3,50,000/- drawn on punjab national bank, mahalakshmi layout branch,",audio_15_20.mp3 +"bengaluru, in favour of the complainant and the same got dishonoured, on its presentation for the reason ""funds insufficient "". It is stated that, the",audio_15_21.mp3 +"complainant requested the accused to repay the part amount and the accused issued cheque for a sum of rs.1,50,000/- and the same was honoured on",audio_15_22.mp3 +"03/08/2021.m/S. stellent systems pvt vs. S/O . Narasaiah on 30 january, 2023",audio_15_23.mp3 +"Bearing No. 097239 dated: 17/09/2021 for a sum of rs.3,50,000/- drawn on punjab national bank, mahalakshmi layout branch, bengaluru through its banker, i.e., indian bank,",audio_15_24.mp3 +"prashanth nagar branch, bengaluru and the said cheque returned with an endorsement dated: 18/09/2021 stating ""funds insufficient"". Thereafter, the complainant got issued legal notice dated:",audio_15_25.mp3 +18/10/2021 to the accused through rpad calling upon him to repay the cheque amount within 15 days from the date of receipt of notice and,audio_15_26.mp3 +"the said notice was served upon the accused on 22/10/2021. After, receipt of notice, the accused neither replied to the notice nor repaid the amount",audio_15_27.mp3 +"covered under the aforesaid cheque. Hence, this complaint. 5. The sworn statement of the partner / authorized signatory of the complainant firm by name smt.",audio_15_28.mp3 +"L. Sangeetha was recorded. As the complainant had complied the mandatory requirements of S. 138 of negotiable instrument act, this court issued summons to the",audio_15_29.mp3 +"accused. After service of summons, accused entered appearance and was enlarged on bail. 6. The plea of the accused was recorded and the substance of",audio_15_30.mp3 +"accusation was read over to the accused in the language known to him and the same was explained, to which, accused pleaded not guilty and",audio_15_31.mp3 +"submitted he has defense to make. 7. In order to prove the Cas. , the partner / authorized signatory of the complainant firm by name smt.",audio_15_32.mp3 +L. Sangeetha got herself examined as pw.1 and got marked ex.p1 to ex.p14 documents. 8. The statement of accused under S. 313 code of Crl. ,audio_15_33.mp3 +procedure was recorded. The accused denied the incriminating evidence appearing against him. The accused got himself got examined as dw.1 and got marked ex.d1 &,audio_15_34.mp3 +d1(a) documents. 9. Heard arguments on both sides. I have perused the materials on record. 10. The following points arise for my determination: (i) whether,audio_15_35.mp3 +"the complainant proves that towards discharge of liability due and payable, accused issued cheque bearing No. 097239 dated: 17/09/2021 for rs.3,50,000/- drawn on punjab national",audio_15_36.mp3 +"bank, mahalakshmi layout branch, bengaluru? (ii) whether the complainant proves that accused has committed an offence punishable u/sec.138 of negotiable instrument act? (iii) what order?",audio_15_37.mp3 +11. My answer to the above points are as follows:- point no.1 & 2 : in the negativem/S. stellent systems pvt vs. S/O .,audio_15_38.mp3 +"Narasaiah on 30 january, 2023",audio_15_39.mp3 +"for the following:- rea s on s 12. Point nos.1 & 2 : in-order to prove the Cas. , the AR and partner of the",audio_15_40.mp3 +complainant by name smt. L. Sangeetha got herself examined as pw1 and the Aff. filed by her in lieu of sworn statement was treated as,audio_15_41.mp3 +"examination in chief as per the dictum laid down in the ruling of the Hon'ble apex court of india, reported in (2014) 5 scc 590",audio_15_42.mp3 +(indian bank Assn. & ors v/s. UOI & ors). Pw1 got marked ex.p1 to p14 documents. 13. The complainant has exhibited the following,audio_15_43.mp3 +"ex.p1 to p14 documents. Ex.p1 is the cheque dated: 17/09/2021, ex.p1(a) is the signature of the accused, ex.p2 is the bank endorsement dated: 18/09/2021, ex.p3",audio_15_44.mp3 +"is the copy of the legal notice dated: 18/10/2021, ex.p4 is the postal receipt, ex.p5 is the postal acknowledgement, ex.p6 is the authorization letter dated:",audio_15_45.mp3 +"04/03/2022, ex.p7 is the attested true copy of GST certificate, ex.p8 & 9 are the cheques, ex.p8(a) & 9(a) are the signatures",audio_15_46.mp3 +"of the accused, ex.p10 & 11 are the bank memos, ex.p12 & 13 are bank account statement, and ex.p14 is the ledger account. 14. The",audio_15_47.mp3 +"learned counsel for the complainant vehemently argued that, the accused has admitted that ex.p1 cheque and signature thereon belongs to him and argued the accused",audio_15_48.mp3 +has produced ex.d1 and d1(a) document to establish that he is not liable to pay any amount to the complainant and argued the accused himself,audio_15_49.mp3 +"has admitted in his cross-examination, that the said document pertains to business transaction that took place between himself and the husband of pw1 and argued",audio_15_50.mp3 +the accused has also taken defence that ex.p3 notice was not served upon him and argued the accused in his cross-examination has admitted that the,audio_15_51.mp3 +address mentioned at ex.p3 notice belongs to him and argued though he has deposed that he has shifted his office to r.t. Nagar and rented,audio_15_52.mp3 +"the same, no positive evidence is placed on record by the accused to establish the same and argued by examining pw1 and by producing all",audio_15_53.mp3 +relevant documents and also by eliciting material answers from dw1 the complainant has ably establish the Cas. and the accused has failed to rebut the,audio_15_54.mp3 +presumption as contemplated u/sec. 139 of the NI Act and sought to convict the accused. In support of his arguments the learned counsel for,audio_15_55.mp3 +the complainant has relied on following rulings:- 1. (2001) 8 scc 458 k.n. Beena v/s. Muniyappa & Anr. 2. Crl. appeal No. 1233 - 1235,audio_15_56.mp3 +of 2022 decided on 12/08/2022 by the hon'ble apex court between rasiya v/s abdul nazarm/S. stellent systems pvt vs. S/O . Narasaiah on 30,audio_15_57.mp3 +"january, 2023",audio_15_58.mp3 +15. Per-contra the learned counsel for the accused stoutly argued that the complainant has not placed any credible evidence to establish that there was a,audio_15_59.mp3 +loan transaction between the complainant and accused and argued the complainant / pw1 herself is not aware about the transaction in question and argued the,audio_15_60.mp3 +complainant / pw1 has taken dual stand in respect of the transaction in question and argued the accused by examining himself and also by eliciting,audio_15_61.mp3 +"material answers from pw1, has successfully rebutted the presumption as contemplated u/sec. 138 of the NI Act and also argued no documents has been",audio_15_62.mp3 +"filed by the complainant to establish, whether the complainant firm is a partnership firm or a Pvt. Ltd. Co. and argued there is no assertion",audio_15_63.mp3 +"in the complaint, ex.p6 authorization letter and in the Aff. filed by pw1 in lieu of sworn statement as to the knowledge of pw1 in",audio_15_64.mp3 +"respect of transaction in question and argued no resolution is produced by the complainant firm for having lent sum of rs.15,00,000/- to the accused and",audio_15_65.mp3 +"argued by eliciting material answers from pw1 and also by examining himself, the accused has disproved the Cas. of the complainant firm and sought to",audio_15_66.mp3 +acquit the accused. In support of his arguments the learned counsel for the accused relied on the following rulings : 1. 2013 scc online kar,audio_15_67.mp3 +"10450 decided between canara workshops ltd., v/s. Manthesh 2. 2021 scc online kar 12513 decided by the c. Krishnaiah chetty and sons pvt ltd., v/s",audio_15_68.mp3 +"deepali Co. pvt ltd., 3. 2010 (11) scc 441 rangappa v/s mohan 4. 2019 (5) scc 418 basalingappa v/s mudibasappa 16. I have gone through",audio_15_69.mp3 +the rulings relied on by the complainant and accused and i have taken note of the principles laid down in the aforesaid rulings and i,audio_15_70.mp3 +"have also applied the same, while deciding the instant Cas. . On considering the arguments addressed by the learned counsel for the complainant and accused, before",audio_15_71.mp3 +"adverting to the oral evidence let in by the complainant and accused and also without touching upon the defence set up by the accused, the",audio_15_72.mp3 +documents produced by the complainant which are at ex.p1 to 5 prima-facie discloses that the complainant has discharged initial burden of proving issuance of ex.p1,audio_15_73.mp3 +"cheque, presentation of ex.p1 cheque, bouncing of cheque, issuance of notice and its service. At this juncture, i find it relevant to quote the ruling",audio_15_74.mp3 +"reported in 2010(11) scc 441, decided between rangappa vs. Sri. Mohan wherein the Hon'ble apex court held that: "" presumption under S. 139 of negotiable",audio_15_75.mp3 +"instrument act, 1881 includes the presumption of the existence of legally enforceable debt or liability. That presumption is required to be honoured and if it",audio_15_76.mp3 +"is not so done, the entire basis of making these provision will be lost. Therefore, it has been held that, it is for the accused",audio_15_77.mp3 +to explain his Cas. and defend it once the fact of cheque bouncing is prima-facie established. The brain is on him to disprove the allegations,audio_15_78.mp3 +"once a prima-m/S. stellent systems pvt vs. S/O . Narasaiah on 30 january, 2023",audio_15_79.mp3 +"17. In the aforesaid ruling the Hon'ble apex court has held that, once the complainant establishes bouncing of cheque, then it is for the accused",audio_15_80.mp3 +to disprove the allegations and also it is for him/her to rebut the presumption as contemplated under S. 139 of negotiable instrument act by placing,audio_15_81.mp3 +acceptable evidence . In the ruling relied on by the complainant decided in Crl. appeal No. 1233 - 1235 of 2022 decided on 12/08/2022 by,audio_15_82.mp3 +"the Hon'ble apex court between rasiya v/s abdul nazar. At Para. 7 it is held that as per sec.139 of the NI Act , it",audio_15_83.mp3 +"shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in sec.138 of",audio_15_84.mp3 +"the NI Act for discharge, in whole or in part, of any debt or other liability. Therefore, once the initial burden is discharged by",audio_15_85.mp3 +"the complainant that the cheque was issued by the accused and the signature and the issuance of cheque is not disputed by the accused, in",audio_15_86.mp3 +"that Cas. , the onus will shift on the accused to prove the contrary that the cheque was not for any debt or other liability. The",audio_15_87.mp3 +"presumption u/sec. 139 of the NI Act is a statutory presumption and thereafter, once it is presumed that the cheque is issued in whole",audio_15_88.mp3 +"or in part of any debt or other liability which is in favour of the complainant / holder of cheque, in that Cas. , it is",audio_15_89.mp3 +"for the accused to prove the contrary. In the light of the principle laid down above, it is worth to note that, the accused in",audio_15_90.mp3 +"his examination in chief at Para. 2, has deposed that ex.p1 cheque belongs to him and signature appearing thereon also belongs to him. The accused",audio_15_91.mp3 +has deposed that the husband of the complainant was admitted in hospital and he had been to the office of the complainant and issued ex.p1,audio_15_92.mp3 +"signed blank cheque and told to make use of the same towards hospital expenses. Be that as it may, as the accused has admitted that",audio_15_93.mp3 +ex.p1 cheque belongs to him and also signature thereon also belongs to him this court will have to raise presumption as contemplated u/sec. 139 of,audio_15_94.mp3 +the NI Act that the subject cheque was issued by the accused to the complainant towards discharge of liability. 18. It is to be,audio_15_95.mp3 +"noted that, in ruling reported in (2009) 2 scc 513 decided between kumar exports v/s. Sharma carpets, the Hon'ble apex court at Para. 20 &",audio_15_96.mp3 +21 held that: the accused in a trial u/sec. 138 of the NI Act has two options. He can either show that consideration and,audio_15_97.mp3 +"debt did not exist or that under the particular circumstances of the Cas. , the non-existence of consideration and debt is so probable that a prudent",audio_15_98.mp3 +"man ought to suppose that no consideration and debt existed. To rebut the statutory presumption, an accused is not expected to prove his defence beyond",audio_15_99.mp3 +reasonable doubt as his expected of the complainant in a Crl. trial. The accused may adduce direct evidence to prove that the note in question,audio_15_100.mp3 +"was not supported by consideration and there was no debt or liability to be discharged by him. However, the court need not insist in every",audio_15_101.mp3 +"Cas. , that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible",audio_15_102.mp3 +"nor contemplated. At the same time, it is clear that, bare denial of the passing of the consideration and them/S. stellent systems pvt vs. son",audio_15_103.mp3 +"of . Narasaiah on 30 january, 2023",audio_15_104.mp3 +"Which is probable has to be brought on record for getting the burden of prove shifted to the complainant. To disprove the presumptions, the accused",audio_15_105.mp3 +"should bring on record such facts and circumstances, upon consideration which, the court may either believe that the consideration and debt did not exist or",audio_15_106.mp3 +"there non-existence was so probable that a prudent man would under the circumstances of the Cas. , act upon the plea that they did not exist.",audio_15_107.mp3 +Apart from adducing direct evidence to prove that the note in question was not supported by the consideration or that he had not incurred any,audio_15_108.mp3 +"debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances, so relied upon or compelling, the burden may like wise,",audio_15_109.mp3 +"shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in sec.114 of the evidence act,",audio_15_110.mp3 +to rebut the presumption u/sec. 118 & 139 of the NI Act . Para. 21: the accused has also an option to prove the non-existence,audio_15_111.mp3 +of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases from the Cas. set out by the,audio_15_112.mp3 +"complainant, i.e. the averments in the complaint, the Cas. set out in the statutory notice and evidence adduced by the complainant during the trial.",audio_15_113.mp3 +"Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the Cas. and the preponderance of probabilities,",audio_15_114.mp3 +"the evidential burden shift back to the complainant and, therefore, the presumption u/sec. 118 and 139 of the NI Act will not again come",audio_15_115.mp3 +"to the complainant's rescue. In this backdrop, now i enter in to the domain of defense set up by the accused, to ascertain whether accused",audio_15_116.mp3 +"has been able to rebut the presumption as contemplated u/sec. 139 of the NI Act , for which i find it appropriate to examine each",audio_15_117.mp3 +"and every aspect in detail. (i) service of notice: 19. It is to be noted that, the accused /dw1 in his examination in chief, at",audio_15_118.mp3 +"Para. 2 has deposed that he has not received any notice from the complainant. During cross-examination dated: 02/09/2022 at Para. 4, pw1 deposed €□3 €€€‚ƒƒ",audio_15_119.mp3 +"„…€€□†€‡ ˆ…‰‡šš ‹‹œ… ƒ□ †€‡ ‡€††šš ‹‹œƒ €ƒž‰ƒ††…. €□5 …š □□† † ‹‹□ƒ‘‘… ƒ’‰œ. It is to be noted that, in order to establish issuance",audio_15_120.mp3 +and service of notice in respect of intimating the accused about dishonour of cheque and calling upon him to repay the amount covered under ex.p1,audio_15_121.mp3 +"cheque, the complainant has produced ex.p3 legal notice dated: 18/10/2021, ex.p4 postal receipt & ex.p5 postal acknowledgement. On scrutiny of ex.p5 postal acknowledgement, it reveals",audio_15_122.mp3 +"the name of one chaithra. 20. Be that as it may, during cross-examination dated: 22/09/2022 at Para. 1, dw1, admitted that he is the proprietor",audio_15_123.mp3 +"of s.n. Technologies and deposed the office of the said concern was situated at no.895/1, 16 th main, 3rd block, esi, rajajinagar, bengaluru and deposed",audio_15_124.mp3 +"that he had office as well as his residence in the said address. It is to be noted that, at ex.p3 notice, the complainant firm",audio_15_125.mp3 +"has mentioned the very same address. That apart, dw1 voluntarily deposed that he had shifted hism/S. stellent systems pvt vs. S/O . Narasaiah on",audio_15_126.mp3 +"30 january, 2023",audio_15_127.mp3 +Mentioned in the ex.p3 notice and ex.p5 postal acknowledgement was his office address as well as residential address and denied that ex.p3 notice has been,audio_15_128.mp3 +served upon him as per ex.p5 and also denied that he was residing in the very same address at the time when ex.p3 notice was,audio_15_129.mp3 +delivered to him. Dw1 deposed that he had given the said premises on rent in the month of october 2015 and also voluntarily deposed that,audio_15_130.mp3 +"since 2015 till date, he had given the said premises on rent to a female and deposed he do not know the name of the",audio_15_131.mp3 +"said female. 21. It is to be noted that, dw1 has also deposed that he can produce documents to show that he had shifted his",audio_15_132.mp3 +"office address to r.t. Nagar in the year 2015 and notably, no documents are produced by the accused either to show that he shifted his",audio_15_133.mp3 +"office address to r.t. Nagar or he had given the same on rent to one female. It is required to be noted that, the accused",audio_15_134.mp3 +has admitted that the address mentioned at ex.p3 notice and ex.p5 postal acknowledgement belongs to him and the accused has not explained or spoken anything,audio_15_135.mp3 +"about the person who has signed at ex.p5 postal acknowledgement by name ""chaithra"" whether she is his relative or his tenant. Even otherwise, as the",audio_15_136.mp3 +"accused has not disputed the address mentioned at ex.p3 & 5, the same will have to be construed as deemed service and as the complainant",audio_15_137.mp3 +has sent notice to the correct address of the accused through rpad this court will have to raise presumption as contemplated u/sec. 27 of the,audio_15_138.mp3 +"general clauses act that if the notice is sent to the correct address through rpad, the same is a deemed service. Therefore, taking note of",audio_15_139.mp3 +"the admission of dw1, coupled with ex.p3 and ex.p5 it cannot be said that ex.p3 notice was not served upon the accused and the stand",audio_15_140.mp3 +taken by the accused that ex.p3 notice was not served upon him does not hold water and the same cannot be accepted by this court.,audio_15_141.mp3 +"Ii. Transaction: 22. It is to be noted that, it is the Cas. of the complainant/pw1 that, the accused use to borrow money from her",audio_15_142.mp3 +deceased husband by name b.S. shyam and that he use to repay the money and as on may 2021 the accused was due to the,audio_15_143.mp3 +"said b.S. shyam to the tune of rs.15,00,000/-. The accused / dw1 in his examination in chief, has deposed that complainant firm is known to",audio_15_144.mp3 +him and he had got a contract from uco goa Co. for laying water meter and he had given sub contract to the husband of,audio_15_145.mp3 +"the accused to do pre- caste chamber and the said transaction happened between 2015-16. At Para. 2, dw1 deposed that he has not availed loan",audio_15_146.mp3 +"of rs.15,00,000/- from the complainant. During cross-examination dated: 02/09/2022, at Para. 1, pw1 deposed, „…€€□‡ “‰…” □‹□€ □□‹□• –†‰‹œ …€.15,00,000/- ’— □€‚‚…ƒ††€‘. Ƒ□ ˜ƒ‹œƒ‘…œƒ €€€",audio_15_147.mp3 +"‡‹ž ˆ€‘‹† ™œœ □š□□ š‘…ƒ œ , „…€€□†€ƒ €€€ ‡‹ž€‹œ □€… □€… ˜†ƒ† „…€€□† ƒ€€’†…‡œƒ š‘”‰š ›‚ƒ ‚ …€.15,00,000/- ’— □žœ…ƒ††€ ‹‹œƒ €ƒž‰ƒ††…. 23. It",audio_15_148.mp3 +"is to be noted that, nothing has been stated by the complainant either in the ex.p3 notice or in the complaint and also in the",audio_15_149.mp3 +"Aff. filed by pw1 in lieu of examination in chief that the aforesaid payment was paid through the account of the complainant. At Para. 2,",audio_15_150.mp3 +pw1 deposed that she will have to verify records and say whether she has produced any documents to establish that herm/S. stellent systems pvt vs. ,audio_15_151.mp3 +"S/O . Narasaiah on 30 january, 2023",audio_15_152.mp3 +"Periods. On seeing the documents produced by her, pw1 deposed that she has not produced any documents in respect of the same. That apart, at",audio_15_153.mp3 +"Para. 3, pw1 deposed that an amount of rs.15,00,000/- paid to the accused has not been shown in the IT returns. 24. It is",audio_15_154.mp3 +"to be noted that, the complainant / pw1 got herself examined further in chief and she has produced bank accounts pertaining to the complainant maintained",audio_15_155.mp3 +at indian bank & axis bank and the said documents are marked as ex.p12 & 13. The complainant has also produced ex.p14 ledger extract. On,audio_15_156.mp3 +"careful scrutiny of ex.p12 document it reveals that on 18/04/2015, an amount of rs.1,00,000/-, 07/07/2015 an amount of rs.1,00,000/-, 23/07/2015 an amount of rs.10,000/- ,",audio_15_157.mp3 +"19/09/2015 an amount of rs.2,00,030/-, 29/09/2015 an amount of rs.3,00,028/-, 14/10/2015 an amount of rs.2,00,012/-, 21/10/2015 an amount of rs.1,00,005/- has been transferred in the",audio_15_158.mp3 +name of s.n. Technologies. As discussed the accused has admitted that the name of his firm is s.n. Technologies. On perusal of ex.p13 it reveals,audio_15_159.mp3 +"that an amount of rs.1,00,000/-, rs.25,000/-, rs.1,00,000/-, rs.75,000/-, rs.2,00,000/- and rs.2,00,000/- each has been transferred to the account of s.n. Technologies on 28/03/2015, 27/06/2015, 10/07/2015,",audio_15_160.mp3 +"05/08/2015, 25/08/2015 & 03/09/2015 respectively. That apart, on perusal of ex.p14 ledger account extract it reveals that the same is for the period 01/04/2015 to",audio_15_161.mp3 +"28/02/2017 and in the said document as on 11/06/2020 the closing balance is shown as rs.15,60,000/-. 25. During cross-examination dated: 08/12/2022, at Para. 1, pw1",audio_15_162.mp3 +"deposed, €□14 …š €€€ ˜†ƒ† „…€€□†€ €žƒ‘ „œ ‘□‘’…œ □‡‡ ‹š š ˜’†‡œƒ šž□‘‡‘. Œ€‹□□ 04/07/2016 …‹œ 16/03/2018 … €žƒ‘ „…€€□†€ƒ “‰…” □‹□€‰ □□‹□• –†‡",audio_15_163.mp3 +"…€.17,15,000/- ˜††‘€ƒ € ˆ˜ ˜ž…ƒ††€ ‹‹œ… ƒ□ ™…□’ƒœƒ ‹‹œƒ €ƒž‰ƒ††…. ˜ƒ‹œƒ‘…œƒ „ ‘□‘’… €€€ ‡‹ž ˆ€‘‹† ™œœ □š□□ „…€€□ ˜†ƒ† œ ‹‹œƒ €ƒž‰ƒ††…. €€€ ‡‹ž€",audio_15_164.mp3 +"€žƒ‘ €žœ ‘□‘’…□□ ƒ‹□‹”ƒœƒ at Para. 2, pw1 deposed „…€€□† ˜†ƒ† €€€ ‡‹ž€ €žƒ‘ ‰‘ …€† ‘□‘’… ™†ƒ† €€‡ ‡€††šš. €□ 14 …š ›‚ƒ ‚",audio_15_165.mp3 +"14 œ , „ invoice No. ‡œƒ invoice No. ‡œ □‡‡ □š□ ™œƒ ‰‘œƒ ‹‹œƒ €€‡ ‡€††šš. €□14 œ–š šœƒ „…€€□ ˜†ƒ† “‰…” €žƒ‘ „œ‹†’",audio_15_166.mp3 +‘□‘’…œ ƒ‹□‹”‘‡ ™…ƒ‘ œ–š ‹‹œ… ƒ…‰šš. €□14 œ–š €€ƒ „…€€□‡ ƒš □€‚‚œ€€‹œƒ ’€œœ □‡‡ œ–š ššš ‹‹œ… ƒ…‰šš. Ƒ□ ˜ƒ‹œƒ‘…œƒ €€€ ‡‹ž ˆ€‘‹† ™œœ □š□□,audio_15_167.mp3 +"š‘…ƒ „…€€□‡ ƒš□€‚‚œœ…ƒ ‹‹□ ‘ž‰‘ € €€‡ †œƒœœ…ƒ ‹‹œƒ €ƒž‰ƒ††…. €ƒ at Para. 3, pw1 deposed she will have to verify records to ascertain whether",audio_15_168.mp3 +"there are any documents other than ex.p14 to show that the complainant has lent sum of rs.14,00,000/- to the accused. 26. On careful scrutiny of",audio_15_169.mp3 +"the aforesaid testimony of pw1 coupled with ex.p12 to 14 documents, it reveals that the complainant has not at all narrated either in the ex.p3",audio_15_170.mp3 +"notice, complaint and examination in chief about ex.p12 to 14 documents and nothing has been stated by the complainant in the said documents that it",audio_15_171.mp3 +"had lent sum of rs.18,10,000/- to the accused. As discussed, the complainant has only averred in the complaint that accused was due the husband of",audio_15_172.mp3 +"pw1 to the tune of rs.15,00,000/- and the nature of transaction is not at all explained in the said documents. So also, nothing is forthcoming",audio_15_173.mp3 +"in the ex.p3 notice, complaint and Aff. filed by pw1 in lieu ofm/S. stellent systems pvt vs. S/O . Narasaiah on 30 january, 2023",audio_15_174.mp3 +"Deceased husband of pw1 and the accused. 27. Be that as it may, during cross-examination, dated: 28/09/2022, at Para. 1, when the complainant has suggested",audio_15_175.mp3 +"to accused / dw1 that between march 2015 to october 2015 the complainant has transferred sum of rs.18,10,000/- through its bank account to the account",audio_15_176.mp3 +"of dw1, the accused deposed that more than the said amount the complainant might have been deposited and voluntarily deposed that he will have to",audio_15_177.mp3 +"verify records. Dw1 also deposed that he will have to verify records and depose whether the complainant has deposited sum of rs.18,10,000/- to his account.",audio_15_178.mp3 +"At Para. 2, dw1 deposed €€ƒ “‰…” □‹□€‰‹œ ƒš‘‡ □žœ …€.18,10,000/- ’—œ □□□ …€.5,00,000/- ’—‘€ƒ € ’‹†…ƒ‡ƒ…ƒ††€€ , šœ…š …€.1,50,000/- ’—‘€ƒ □ ˜ƒ–‹†… ˜†ƒ† …€.3,50,000/-",audio_15_179.mp3 +"€ □□ƒ ’—‘€ƒ € €‡œƒ ˜€š□ †…ƒ‘œ ˜ž…ƒ††€€‹œ… ƒ□ ÿ □ □□…—œ □□ƒ □ š˜€□‡€‹ž€‹†… €€ƒ “‰…”‡ …€.1,50,000/- ’—‘€ƒ € □□ƒ □ ˜ƒ–‹†… “‰…”…‘… □‹□€‡",audio_15_180.mp3 +"□€‚‚…ƒ††€€‹œƒ €ƒž‰ƒ††…. „ …€.1,50,000/- ’—‘€ƒ € €€ƒ “‰…”‡ mutual understanding „”…œ ˜€š □€‚‚…ƒ††€€. „ ’—‘€ƒ € □ ‹‹œ… ƒ…‰šš. €€ƒ “‰…”‡ ƒšœ †…ƒ‘œ‡‡ □€‚‚‹†’ □□ƒ",audio_15_181.mp3 +"it is to be noted that, the accused / dw1 has not deposed in his examination in chief or that he has not admitted in",audio_15_182.mp3 +"his cross-examination that he had availed loan of rs.18,10,000/- from the complainant. On careful scrutiny of complaint averments at Para. 5, it is stated that,",audio_15_183.mp3 +"the cheque given by the accused for a sum of rs.1,50,000/- was honoured on 03/08/2021 and notably, the accused claims that he had given the",audio_15_184.mp3 +"said amount to the complainant on mutual understanding. 28. It is to be noted that, the accused / dw1 got himself further examined in chief",audio_15_185.mp3 +and produced his account statement for the period 01/04/2016 to 31/03/2017 and he has also produced accounts statement for the period of 01/04/2017 to 31/03/2017,audio_15_186.mp3 +"and the same are marked as ex.d1 & d1(a). On careful scrutiny of said document, it reveals that payment of rs.1,00,000/-, rs.1,50,000/-, rs.1,50,000/-, rs.1,25,000/-, rs.1,15,000/-,",audio_15_187.mp3 +"rs.50,000/-, rs.50,000/-, rs.75,000/- and rs.50,000/- was transferred from the s.n. Technologies to the bank account of complainant between 2016 to 2018. During cross-examination dw1 deposed",audio_15_188.mp3 +€ž1 ˜†ƒ† €□ž(‹)š €˜€œƒ „‡…ƒ‘ ’—□ƒ€ ‘□‘’… šœƒ €€€ ˜†ƒ† “‰…” □‹□€‰ €œ€… □…‘…œ œ‘‹‡† □.‹ƒ•. □˜• …‘… €žƒ‘ „œ‹†’ business ‘□‘’…□□ š‹œ… pre-cast chamber,audio_15_189.mp3 +"sub œ ‹‹œ… ƒ…. Contractor ‡ ƒ‹□‹”ƒœƒ the said suggestion and answer elicited from complainant from dw1, coupled with what has been deposed by dw1",audio_15_190.mp3 +in his examination in chief that he and the husband of pw1 had a business transaction with respect to pre-cast chamber corroborates and the complainant,audio_15_191.mp3 +"admits the said transaction. As discussed, nothing has been stated by the complainant in the complaint, ex.p3 notice and also Aff. filed by pw1 in",audio_15_192.mp3 +"lieu of examination in chief as to the business transaction that was carried on by the complainant and accused. 29. That apart, during cross-examination dated:m/S. ",audio_15_193.mp3 +"stellent systems pvt vs. S/O . Narasaiah on 30 january, 2023",audio_15_194.mp3 +"Given two cheques dated: 30/04/2021 & 25/05/2021 for a sum of rs.5,00,000/- each to the complainant towards repayment of amount of rs.13,10,000/-, the accused /",audio_15_195.mp3 +dw1 pleaded ignorance about the same. On seeing 2 cheques the accused / dw1 admitted that the said cheques belongs to him and the signature,audio_15_196.mp3 +thereon also belongs to him and the said documents are marked as ex.p8 & 9. Dw1 pleaded ignorance that the said cheques are issued by,audio_15_197.mp3 +him to the complainant towards discharge of loan. The said answer given by dw1 goes to show that there was some kind financial transactions between,audio_15_198.mp3 +"the accused and complainant firm. That apart, dw1 admitted that ex.p8 & 9 cheques were dishonoured on its presentation and when it is suggested that",audio_15_199.mp3 +"the same was brought to the notice of him, he borrowed 3 months time to repay the same. The accused denied the said suggestion. It",audio_15_200.mp3 +"is to be noted that, the complainant has not initiated any legal action on ex.p8 & 9 documents and notably, the complainant has narrated about",audio_15_201.mp3 +"the said cheques in the complaint. 30. Be that as it may, the accused in his examination in chief has deposed that in the year",audio_15_202.mp3 +2021 the husband of pw1 was hospitalized and was taking treatment for covid 19 and he came to know about the same and went to,audio_15_203.mp3 +"the hospital and issued ex.p1 signed blank cheque to the worker of the complainant firm. During cross-examination, at Para. 6, it is suggested by the",audio_15_204.mp3 +complainant firm that accused has issued ex.p1 cheque after 3 months from the date of dishonour of ex.p8 & 9 cheques and the same is,audio_15_205.mp3 +"denied by dw1. At Para. 3, dw1 deposed that he came to know that the husband of pw1 was hospitalized through his friend and he",audio_15_206.mp3 +"do not know the name of the said person. That apart, during cross-examination at Para. 4, pw1 deposed €€€ ‡‹ž □˜• ˜…— ’€‹œƒ‘ □‘…œš 1",audio_15_207.mp3 +†‹‡œ □š „ƒƒ†□‰š □□†† □ž‰ƒ††œœ…ƒ „…€€□† €€€ ‡‹ž ƒ€€’†€œ □…— „ƒƒ†□‰ □□†† ‘□□ ¡…ƒƒ‘ □…— €□1 □□□€ƒ € ƒ’ ˜ž šœ…š ˜††‘€ƒ € □…œƒ ‰…‡,audio_15_208.mp3 +"□€ž□€□‹□ ’ƒ…€ƒ € □…‰œ €€‡ □€‚‚œœ…ƒ ‹‹œ… ƒ…‰šš. The said suggestion is quite contrary to the testimony what has been deposed by dw1 and notably,",audio_15_209.mp3 +"dw1 has deposed that he handed over ex.p1 cheque to the worker of complainant. 31. That apart, during cross-examination, at Para. 3, dw1 deposed, “‰…”",audio_15_210.mp3 +"□‹□€‰‘…ƒ 2021 …š „œ‰ †…‡ …‚…€•€š €€€‹œ š‘…‡ …ƒ…. 13,10,000/- □□ □…□€□‡œ ‹‹œƒ †€€…ƒ…ƒ††…‹œ… ƒ□ šœƒ †€‡ ‡€††‡ƒ‘œšš‘‹œƒ €ƒž‰ƒ††…. It is worth to note that,",audio_15_211.mp3 +"as discussed the complainant has not at all stated in the ex.p3 notice, complaint and in the Aff. filed by pw1 in lieu of examination",audio_15_212.mp3 +in chief about the alleged loan transaction or the business transaction that has taken place between the complainant and accused. When the complainant claims that,audio_15_213.mp3 +"it had lent loan of rs.18,10,000/- to the accused and that they have shown in its IT returns about that they have to receive",audio_15_214.mp3 +"sum of rs.13,10,000/- from the accused, the complainant ought to have produced the said IT returns before the court to establish the liability of",audio_15_215.mp3 +"the accused. At this juncture, i find it relevant to quote the ruling reported in air 1968 SC 143 decided between gopal krishna g.",audio_15_216.mp3 +"Ketkar vs. Mohammed haji lathif and Ors. ., the Hon'ble apex court while considering the concept of onus of proof, held that "" a party in",audio_15_217.mp3 +"possession of best evidence which would throw light on the issue in controversy withholding it, court ought to draw adverse inference against him. Notwithstanding thatm/S. ",audio_15_218.mp3 +"stellent systems pvt vs. S/O . Narasaiah on 30 january, 2023",audio_15_219.mp3 +"That he was not called upon to produce it"" . In the light of the principle laid down above, as the complainant / pw1 has",audio_15_220.mp3 +"not produced documents pertaining to the IT returns about the alleged loan transaction that took place between the husband of pw1 and accused, this",audio_15_221.mp3 +"court will have to draw adverse inference against the complainant. That apart, the complainant has not produced any documents to prove the alleged loan transaction",audio_15_222.mp3 +and also about the date of lending loan. In the ruling reported in 2013 (2) Civ. court cases 107 (SC ) decided between vijay,audio_15_223.mp3 +"v/s lakshman and Anr. , the Hon'ble apex court held that: ""cheque issued towards repayment of loan, if no document or other material brought on record",audio_15_224.mp3 +"to prove the loan transaction or the date of demand of loan or the date of giving loan is not stated in the complaint, if",audio_15_225.mp3 +"it is blissfully silent about these aspects, it makes to suspect the entire story of the complainant as false"". 32. That part, in the ruling",audio_15_226.mp3 +"reported in 2014 (1) Civ. court cases 001 SC decided between john k abraham v/s simon c abraham and Anr. , the Hon'ble apex court",audio_15_227.mp3 +"held that: ""complainant not sure about the date of advancing loan and he is also not sure who wrote the contents of the cheque and",audio_15_228.mp3 +"he is not aware when exactly and where exactly the transaction took place, all these aspects are serious lacuna which strike at the root of",audio_15_229.mp3 +"the Cas. of the complainant"". In the ruling decided between yeshwanth kumar v/s shantha kumar decided b y the Hon'ble HC of karnataka on",audio_15_230.mp3 +"07/08/2019 in Crl. appeal No. 939/2010, it is held that: ""if there is no clear terms of date of lending loan to the accused and",audio_15_231.mp3 +"in the absence of the same, the accused issued cheque towards discharge of the legally recoverable debt cannot be accepted"". In the light of the",audio_15_232.mp3 +"principle laid down above, as the complainant has not narrated in the ex.p3 notice, complaint and also in the Aff. of pw1 filed in lieu",audio_15_233.mp3 +of sworn statement / examination in chief about the exact transaction that took place between the deceased husband of pw1 and the accused and also,audio_15_234.mp3 +"as no positive evidence is placed on record by the complainant in respect of the alleged loan transaction, the defence put- forth by the accused",audio_15_235.mp3 +that he had issued subject cheque to the complainant to meet the medical expenses of the husband of pw1 appears to be probable. As such,audio_15_236.mp3 +it could be concluded that the complainant has failed to establish that there was a loan transaction between the complainant and accused. Iii. Auth. :,audio_15_237.mp3 +"33. It is to be noted that, in the cause title of the complaint it is mentioned ""m/s. Stellent systems pvt ltd., partnership firm"" represented",audio_15_238.mp3 +"by its partner and authorized signatorym/S. stellent systems pvt vs. S/O . Narasaiah on 30 january, 2023",audio_15_239.mp3 +Complainant has not produced the partnership deed and it has produced ex.p7 true copy of registration certificate which discloses that complainant is a Pvt. Ltd. ,audio_15_240.mp3 +"Co. and that pw1, her deceased husband shyam and her son mr. Shreyas are the directors of the complainant. Notably, the complainant has not narrated",audio_15_241.mp3 +"in the complaint that the complainant is a Pvt. Ltd. Co. . During cross-examination, at Para. 2, pw1 deposed “‰…” □‹□€ □□‹□• –†‰‹œ „…€€□‡ …€.15 š□",audio_15_242.mp3 +"’— □€žƒ‘ □‡‡ “‰…” □‹□€‰š ¢…‘ ’€…žƒ…□’ƒœƒ. The complainant has not produced the said resolution. That apart, the complainant has produced ex.p6 authorization letter dated:",audio_15_243.mp3 +"04/03/2022. On perusal of ex.p6, it is stated that pw1 smt. Sangeetha is the director of m/s. Stellent system pvt ltd., in the said document",audio_15_244.mp3 +"nothing is forthcoming whether the m/s. Stellent system pvt ltd., is a partnership firm or whether it is a Pvt. Ltd. Co. . 34. It is",audio_15_245.mp3 +"to be noted that, in the ruling relied on by the accused reported in 2013 scc online kar 10450 decided between canara workshop Ltd. v/s",audio_15_246.mp3 +"mahanthesh, the Hon'ble HC of karnataka at Para. 18 it is held that: ""u/sec. 291 of the companies act, except where express provision is",audio_15_247.mp3 +"made, that the powers of a Co. in respect of a particular matter, are to be exercised by the Co. in a general meeting. The",audio_15_248.mp3 +individual directors have such powers only as are vested in them by the memorandum and articles of Assn. . The question of Auth. to institute a,audio_15_249.mp3 +suit or other proceedings on behalf of a Co. is therefore not a technical matter as it often affects the policy and finances of the,audio_15_250.mp3 +"Co. and unless the power to institute a proceeding is specifically conferred on a particular director, he would have no Auth. to institute a suit",audio_15_251.mp3 +or other proceeding on behalf of a Co. and such power can be conferred by the board of directors only by passing a resolution in,audio_15_252.mp3 +"that regard"". 35. It is to be noted that, in the ruling reported in (2011) scc 524 state bank of travancore v/s kingston computers india",audio_15_253.mp3 +"pvt ltd. , the Hon'ble apex court held that ""a suit or any other legal proceeding can be instituted by a director or officer of",audio_15_254.mp3 +"the comp any only on the strength of board resolution by the Co. to the said effect and in the absence of such board resolution,",audio_15_255.mp3 +"if a suit or legal proceeding is instituted, then necessarily there has to be a resolution by the Co. ratifying the defect, failing which the",audio_15_256.mp3 +"suit or legal proceeding cannot be maintained"". 36. In in the light of the principle laid down above, as discussed, in the complaint, the complainant",audio_15_257.mp3 +"has not narrated whether the complainant is a partnership firm or it is a Pvt. Ltd. Co. and as per ex.p7, it discloses that the",audio_15_258.mp3 +complainant is a Pvt. Ltd. Co. and no material has been placed on record by the complainant that it had passed resolution authorizing pw1 to,audio_15_259.mp3 +"depose on behalf of the complainant and in the absence of the same, ex.p6 Auth. letter is of no consequence and the same cannot be",audio_15_260.mp3 +"looked into and cannot be taken in to account as to the Auth. of pw1 to depose on behalf of the complainant. 37. That apart,",audio_15_261.mp3 +"as discussed, during cross- examination, dated: 08/12/2022 at Para. 2, pw1 deposed, €□14 …š €€€ ˜†ƒ† „…€€□†€ €žƒ‘ „œ ‘□‘’…œ □‡‡ ‹š š ˜’†‡œƒ šž□‘‡‘.",audio_15_262.mp3 +"Œ€‹□□m/S. stellent systems pvt vs. S/O . Narasaiah on 30 january, 2023",audio_15_263.mp3 +ˆ˜ ˜ž…ƒ††€ ‹‹œ… ƒ□ ™…□’ƒœƒ ‹‹œƒ €ƒž‰ƒ††…. ˜ƒ‹œƒ‘…œƒ „ ‘□‘’… €€€ ‡‹ž ˆ€‘‹† ™œœ □š□□ „…€€□ ˜†ƒ† €€€ ‡‹ž€ €žƒ‘ €žœ ‘□‘’…□□ œ ƒ‹□‹”ƒœƒ ‹‹œƒ,audio_15_264.mp3 +"€ƒž‰ƒ††…. At Para. 2, pw1 deposed „…€€□† ˜†ƒ† €€€ ‡‹ž€ €žƒ‘ ‰‘ …€† ‘□‘’… ™†ƒ† €€‡ ‡€††šš. €□ 14 …š ›‚ƒ ‚ 14 invoice No. ",audio_15_265.mp3 +"‡œ □‡‡ œ , „ invoice No. ‡œƒ □š□ ™œƒ ‰‘œƒ ‹‹œƒ €€‡ ‡€††šš. €□14 œ–š šœƒ „…€€□ ˜†ƒ† “‰…” €žƒ‘ „œ‹†’ ‘□‘’…œ ƒ‹□‹”‘‡ ™…ƒ‘",audio_15_266.mp3 +œ–š ‹‹œ… ƒ…‰šš. €□14 œ–š €€ƒ „…€€□‡ ƒš □€‚‚œ€€‹œƒ ’€œœ □‡‡ œ–š ššš ‹‹œ… ƒ…‰šš. Ƒ□ ˜ƒ‹œƒ‘…œƒ €€€ ‡‹ž ˆ€‘‹† ™œœ □š□□ š‘…ƒ „…€€□‡ ƒš□€‚‚œœ…ƒ,audio_15_267.mp3 +‹‹□ ‘ž‰‘€ƒ € €€‡ †œƒœœ…ƒ ‹‹œƒ €ƒž‰ƒ††…. The said testimony of pw1 goes to show that she is not aware and having knowledge about the,audio_15_268.mp3 +"transaction in question. At this juncture, i find it relevant to quote the ruling reported in (2022) air (SC ) 1315 decided between m/s.",audio_15_269.mp3 +"Trl krosaki refractories ltd., v/s m/s. Sms asia Pvt. ltd., and Anr. , the Hon'ble apex court at Para. 17, held that: ""the position that would",audio_15_270.mp3 +emerge is that when a Co. is the payee of the cheque based on which a complaint is filed u/sec. 138 of the negotiable instruments,audio_15_271.mp3 +"act, the complainant necessarily should be the Co. which would be represented by an employee who is authorized. Prima-facie, in such a situation the indication",audio_15_272.mp3 +in the complaint and the sworn statement (either orally or by a Aff. ) to the effect that the complainant (Co. ) is represented by an authorized,audio_15_273.mp3 +"person who has knowledge, would be sufficient. The employment of the terms ""specific assertion as to the knowledge of the power of attorney holder"" and",audio_15_274.mp3 +"such assertion about knowledge should be ""said explicitly"" as stated in a.c. Narayanan v/s state of maharastra and Anr. (2014) 11 scc 790 cannot be",audio_15_275.mp3 +"understood to mean that the asertion should be in any particular manner, much less only in the manner understood by the accused in the Cas. .",audio_15_276.mp3 +"All i.e. necessary is to demonstrate before the learned magistrate that the complaint filed is in the name of the ""payee"" and if the",audio_15_277.mp3 +"person who is prosecuting the complaint is different from the payee, the authorization there for and that the contents of the complaint or within his",audio_15_278.mp3 +"knowledge. When the complainant / payee his Co. , an authorized employee can represent the Co. . Such averment and prima-facie averment is sufficient for the learned",audio_15_279.mp3 +"magistrate to take cognizance and issue process. If at all, there is any serious dispute with regard to the person prosecuting the complaint not being",audio_15_280.mp3 +"authorized or if it is to be demonstrated that the person who filed the complaint has no knowledge of the transaction and, as such that",audio_15_281.mp3 +"person could not have instituted and prosecuted the complaint, it would be open for the accused to dispute the position and establish the same during",audio_15_282.mp3 +"the course of the trial"". In the light of the principle laid down above, it is required to be noted that, in the Aff. filed",audio_15_283.mp3 +by pw-1 in lieu of sworn statement / examination in chief and in the ex.p6 authorization letter and also in the complaint there is no,audio_15_284.mp3 +assertion about the knowledge of pw1 about the transaction in question and it is only in the verification to the complainant it is stated that,audio_15_285.mp3 +"whatever is stated is true to best of her knowledge.m/S. stellent systems pvt vs. S/O . Narasaiah on 30 january, 2023",audio_15_286.mp3 +"Reported in (2014) 11 scc 790, the Hon'ble apex court has held that: there is no mention in the complaint or Aff. as to when",audio_15_287.mp3 +"and what manner the Co. had authorized its general manager (accounting) to represent the Co. to file the complaint. It is further held that, there",audio_15_288.mp3 +is no averment in the complaint as to whether the general manager (accounting) had knowledge about the transaction or he was a witness to the,audio_15_289.mp3 +"transaction. It was also held that, neither any resolution of the board of the directors of the complainant Co. nor any authorization of the Co. ",audio_15_290.mp3 +"in favour of the person representing it in the complaint was filed for perusal of the magistrate. At Para. 26, it is held that, complainant",audio_15_291.mp3 +is required to make specific assertion as to the knowledge of power of attorney holder in the said transaction explicitly in the complaint and the,audio_15_292.mp3 +power of attorney holder who has no knowledge regarding the transaction cannot be examined as a witness in the Cas. . In the light of the,audio_15_293.mp3 +"principle laid down above, on careful scrutiny of the complaint, though there is mention that pw1 is authorized to file the complaint, there is no",audio_15_294.mp3 +specific assertion either in the complaint or in the Aff. filed by pw1 in lieu of sworn statement that pw1 had knowledge about the transaction,audio_15_295.mp3 +"in question or that she had witnessed the transaction. 39. As such it could be concluded that, pw1 is not having proper Auth. to depose",audio_15_296.mp3 +on behalf of the complainant as she had no personal knowledge about the transaction in question and also as there is no specific assertion in,audio_15_297.mp3 +"her Aff. filed in lieu of sworn statement / examination in chief about her knowledge in respect of the transaction in question. Therefore, by taking",audio_15_298.mp3 +"note of the entire materials placed on record by the accused, it could be concluded that the accused has raised a probable defence that the",audio_15_299.mp3 +"subject cheque was not issued by him to the complainant firm, towards discharge of legally enforceable debt and thereby he has successfully rebutted the presumption",audio_15_300.mp3 +"as contemplated u/sec. 139 of the NI Act by placing acceptable evidence. Accordingly, i answer point no.1 & 2 in the negative. 40. Point",audio_15_301.mp3 +"no.3 :- for the foregoing reasons, i proceed to pass the following:- o r de r in exercise of power conferred u/sec. 255(1) of code",audio_15_302.mp3 +of Crl. procedure the accused is acquitted for the offence punishable u/s.138 of n.i. Act. Bail bond of accused shall be in force for a,audio_15_303.mp3 +"period of six months. (dictated to the stenographer, directly on computer , corrected and then pronounced in open court by me on this the 30",audio_15_304.mp3 +"th day of january, 2023) (h. Satish) xxvii a.c.m.m., bengaluru. Annexure witnesses examined on behalf of the complainant:m/S. stellent systems pvt vs. S/O .",audio_15_305.mp3 +"Narasaiah on 30 january, 2023",audio_15_306.mp3 +Cheque dated: 17/09/2021 ex.p1(a) : signature of the accused ex.p2 : bank endorsement dated: 18/09/2021 ex.p3 : copy of the legal notice dated: 18/10/2021 ex.p4,audio_15_307.mp3 +: postal receipt ex.p5 : postal acknowledgement ex.p6 : authorization letter dated: 04/03/2022 ex.p7 : attested true copy of GST certificate ex.p8,audio_15_308.mp3 +& 9 : cheques ex.p8(a) & 9(a): signatures of accused ex.p10 & 11: bank memos ex.p12 & 13 : account statements ex.p14 : ledger account.,audio_15_309.mp3 +Witnesses examined on behalf of the accused: dw1 : chandrashekar documents marked on behalf of the accused: ex.d1 & 1(a): account statements xxvii a.c.m.m bengaluru.,audio_15_310.mp3 +"30/12/2022 comp: sri. Adv., accd: sri. Adv., for judgment. (order typed vide separate sheet) or de r in exercise of power conferred u/sec. 255(1) of",audio_15_311.mp3 +"cr.pc, the accused is acquitted for the offence punishable u/s.138 of n.i. Act. Bail bonds of accused shall be in force for a period of",audio_15_312.mp3 +"six months. (h. Satish) xxvii a.c.m.m., b engaluru.m/S. stellent systems pvt vs. S/O . Narasaiah on 30 january, 2023",audio_15_313.mp3 +"Kedar mal samdani vs. state of rajasthan on 16 december, 2021 author: devendra kachhawaha bench: devendra kachhawaha HC of judicature for rajasthan at jodhpur",audio_16_1.mp3 +"s.b. Crl. revision petition No. 1013/2021 kedar mal samdani s/o shri radheshyam @ ramswaroop samdani, aged about 62 years, resident of nadi mohalla, district bhilwara.",audio_16_2.mp3 +"----petitioner vs. 1. State of rajasthan, through pp 2. M/s nakoda suitings, l.n.t. Road, bhilwara through properietor ashok kumar naulkha s/o shri balchand naulkha, resident",audio_16_3.mp3 +"of l.n.t road, bhilwara. ----respondents for Petitioner(s) : mr. N.k. Gurjar for Respondent(s) : mr. Mukhtiyaar khan, p.p. Mr. Ashok khilery-complainant",audio_16_4.mp3 +"hon'ble mr. J. devendra kachhawaha order 16/12/2021 accused-petitioner has preferred this revision petition under S. 397/401 Cr.P.C. to challenge judgment dated 11.02.2020,",audio_16_5.mp3 +"passed by sessions judge, bhilwara (for short, 'learned appellate court'), whereby learned appellate court has confirmed judgment dated 27.04.2019, rendered by special judicial magistrate (n.i.",audio_16_6.mp3 +"Act cases) no.1, bhilwara (for short, 'learned trial court'). The learned trial court, by its verdict dated 27.04.2019, indicted accused-petitioner for offence under S. 138",audio_16_7.mp3 +"of the NI Act , 1881 (for short, 'act') and handed down sentence of six months' simple imprisonment. Besides imprisonment, the learned trial court has",audio_16_8.mp3 +"also ordered that accused-petitioner should pay compensation to the complainant to (2 of 8) [crlr-1013/2021] the tune to rs.21,25,000/- and in default of payment of",audio_16_9.mp3 +"compensation to further undergo 10 days' simple imprisonment-. Being aggrieved by the same, petitioner approached learned appellate court but that effort did not fructify to",audio_16_10.mp3 +his advantage as the learned appellate court dismissed his appeal. This sort of situation has necessitated filing of this revision petition. Learned counsel for the,audio_16_11.mp3 +petitioner submits that now rival parties have sorted out their dispute and compromise has been arrived at between the parties and respondent no.2-complainant has received,audio_16_12.mp3 +"all the amount from the petitioner, therefore, no amount is now due between the parties. With thiskedar mal samdani vs. state of rajasthan on 16",audio_16_13.mp3 +"december, 2021",audio_16_14.mp3 +Sentence handed down by learned trial court and confirmed by learned appellate court be set aside. The copy of the compromise dated 27.10.2021 is already,audio_16_15.mp3 +"placed on record. With these submissions, it is prayed that the matter may be decided in the light of the judgment passed by Hon'ble apex",audio_16_16.mp3 +"court in Cas. of damodar S. prabhu vs. Sayed babulal h. Reported in 2010 (5) scc 663. Learned counsel for the complainant, while acknowledging the",audio_16_17.mp3 +"compromise arrived at between the parties, would urge that looking to the nature of offence and in the wake of settlement of dispute between rival",audio_16_18.mp3 +"parties, the conviction recorded by learned trial court and upheld by the learned appellate court merits annulment. I have heard learned counsel for the accused-petitioner",audio_16_19.mp3 +and learned counsel for the complainant and perused the compromise dated 27.10.2021. (3 of 8) [crlr-1013/2021] chapter xvii of the act deals with penalties in,audio_16_20.mp3 +Cas. of dishonor of cheques for insufficiency of funds in the accounts. A complete procedure in this behalf is provided under S. 138 to 147,audio_16_21.mp3 +of the act. S. 142 deals with cognizance of offence and S. 143 empowers a court to try cases under S. 138 of the act,audio_16_22.mp3 +"summarily. As per S. 147 of the act, every offence punishable under the act is compoundable notwithstanding anything contained in the Cr.P.C. ",audio_16_23.mp3 +"while it is true that the offence is compoundable but a pivotal question, which has emerged for consideration, is whether revisional powers can be exercised",audio_16_24.mp3 +by this court to compound the offence under S. 138 of the act after conviction of the petitioner by appellate court. The legal position in,audio_16_25.mp3 +this behalf was fluid until the judgment rendered in damodar S. prabhu vs. Sayed babalal h. [(2010) 5 scc 663] by the SC . In,audio_16_26.mp3 +"the said verdict, SC has examined the provisions of S. 138 and 147 of the act threadbare and observed that compensatory aspect of the",audio_16_27.mp3 +"remedy should be given priority over the punitive aspect. While discussing object of S. 138 of the act, the court held: ""however, there are some",audio_16_28.mp3 +larger issues which can be appropriately addressed in the context of the present Cas. . It may be recalled that chapter xvii comprising S. 138 to,audio_16_29.mp3 +"142 was inserted into the act by the banking, public financial institutions and negotiable instruments laws (amendment) act, 1988 (66 of 1988). The object of",audio_16_30.mp3 +bringing S. 138 into the statute was to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments. It,audio_16_31.mp3 +was to enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for penalties in Cas. of bouncing of cheques due,audio_16_32.mp3 +"to insufficient arrangements made by the drawer, with adequate safeguards to prevent harassment of honest drawers. If the cheque is dishonoured for insufficiency of funds",audio_16_33.mp3 +"in the drawer's account or if it exceeds the amount arranged to be paid from that (4 of 8) [crlr-1013/2021] account, the drawer is to",audio_16_34.mp3 +"be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the",audio_16_35.mp3 +"cheque, or with both.kedar mal samdani vs. state of rajasthan on 16 december, 2021",audio_16_36.mp3 +"The provision for imprisonment up to one year, which was revised to two years following the amendment to the act in 2002. It is quite",audio_16_37.mp3 +evident that the legislative intent was to provide a strong Crl. remedy in order to deter the worryingly high incidence of dishonour of cheques. While,audio_16_38.mp3 +"the possibility of imprisonment up to two years provides a remedy of a punitive nature, the provision for imposing a `fine which may extent to",audio_16_39.mp3 +twice the amount of the cheque' serves a compensatory purpose. What must be remembered is that the dishonour of a cheque can be best described,audio_16_40.mp3 +as a regulatory offence that has been created to serve the public interest in ensuring the reliability of these instruments. The impact of this offence,audio_16_41.mp3 +"is usually confined to the Pvt. parties involved in commercial transactions."" while switching on to examine S. 147 of the act, SC has observed",audio_16_42.mp3 +"that this being an enabling provision, it can serve as exception to the general rule Inc. in sub- sec.(9) of S. 320 code of Crl. ",audio_16_43.mp3 +"procedure the court, while laying emphasis on non-abstante Cl. under the aforesaid S. , further held that S. 147 inserted by way of amendment to special",audio_16_44.mp3 +"law will override the effect of S. 320(9) Cr.P.C. placing reliance on some earlier judgments, the court, has approved compounding of offences",audio_16_45.mp3 +"at later stage of litigation in cheque bouncing cases, and held: ""the compounding of the offence at later stages of litigation in cheque bouncing cases",audio_16_46.mp3 +"has also been held to be permissible in a recent decision of this court, reported as k.m. Ibrahim vs. k.p. Mohammed & anr., wherein kabir,",audio_16_47.mp3 +"j. Has noted (at scc p. 802, paras 13- 14): (5 of 8) [crlr-1013/2021] ""13. As far as the non-obstante Cl. included in S. 147",audio_16_48.mp3 +"of the 1881 act is concerned, the 1881 act being a special statute, the provisions of S. 147 will have an overriding effect over the",audio_16_49.mp3 +provisions of the code relating to compounding of offences. ... 14. It is true that the Appl. under S. 147 of the NI Act ,audio_16_50.mp3 +"was made by the parties after the proceedings had been concluded before the appellate forum. However, S. 147 of the aforesaid act does not bar",audio_16_51.mp3 +"the parties from compounding an offence under S. 138 even at the appellate stage of the proceedings. Accordingly, we find no reason to reject the",audio_16_52.mp3 +"Appl. under S. 147 of the aforesaid act even in a proceeding under Art. 136 of the constitution."" it is evident that the permissibility of",audio_16_53.mp3 +the compounding of an offence is linked to the perceived seriousness of the offence and the nature of the remedy provided. On this point we,audio_16_54.mp3 +"can refer to the following extracts from an academic commentary [cited from: k.n.c. Pillai, r.v. Kelkar's Crl. procedure, fifth edn. (lucknow: eastern book Co. , 2008)",audio_16_55.mp3 +"at p. 444]: ""17.2 compounding of offences,- a crime is essentially a wrong against the society and the state. Therefore, any compromise between the accused",audio_16_56.mp3 +"person and the individual victim of the crime should not absolve the accused from criminalkedar mal samdani vs. state of rajasthan on 16 december, 2021",audio_16_57.mp3 +"Relatively not quite serious, the code considers it expedient to recognize some of them as compoundable offences and some Ors. as compoundable only with the",audio_16_58.mp3 +"permission of the court. ..."" in a recently published commentary, the following observations have been made with regard to the offence punishable under S. 138",audio_16_59.mp3 +"of the act [cited from: arun mohan, some thoughts towards law reforms on the topic of S. 138, NI Act -tackling an avalanche of",audio_16_60.mp3 +"cases (new delhi: universal law publishing co. Pvt. Ltd., 2009) at p. 5] (6 of 8) [crlr-1013/2021] ""... Unlike that for other forms of crime,",audio_16_61.mp3 +"the punishment here (in so far as the complainant is concerned) is not a means of seeking retribution, but is more a means to ensure",audio_16_62.mp3 +payment of money. The complainant's interest lies primarily in recovering the money rather than seeing the drawer of the cheque in jail. The threat of,audio_16_63.mp3 +"jail is only a mode to ensure recovery. As against the accused who is willing to undergo a jail term, there is little available as",audio_16_64.mp3 +remedy for the holder of the cheque. If we were to examine the No. of complaints filed which were `compromised' or `settled' before the final,audio_16_65.mp3 +"judgment on one side and the cases which proceeded to judgment and conviction on the other, we will find that the bulk was settled and",audio_16_66.mp3 +"only a miniscule No. Conti. ."" finally, the court has framed certain guidelines for a graded scheme of imposing costs on parties, who unduly delay compounding",audio_16_67.mp3 +"of the offences. Framing the guidelines, the court held: ""with regard to the progression of litigation in cheque bouncing cases, the learned AG has",audio_16_68.mp3 +urged this court to frame guidelines for a graded scheme of imposing costs on parties who unduly delay compounding of the offence. It was submitted,audio_16_69.mp3 +"that the requirement of deposit of the costs will act as a deterrent for delayed composition, since at present, free and easy compounding of offences",audio_16_70.mp3 +"at any stage, however belated, gives an incentive to the drawer of the cheque to delay settling the cases for years. An Appl. for compounding",audio_16_71.mp3 +made after several years not only results in the system being burdened but the complainant is also deprived of effective J. . In view of this,audio_16_72.mp3 +"submission, we direct that the following guidelines be followed:- (i) in the circumstances, it is proposed as follows: (a) that directions can be given that",audio_16_73.mp3 +the writ of summons be suitably modified making it clear to the accused that he could make an Appl. for compounding of the offences at,audio_16_74.mp3 +"the first or second hearing of the Cas. and that if such an Appl. is made, compounding may be allowed by the court (7 of",audio_16_75.mp3 +"8) [crlr-1013/2021] without imposing any costs on the accused. (b) if the accused does not make an Appl. for compounding as aforesaid, then if an",audio_16_76.mp3 +"Appl. for compounding is made before the magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will bekedar",audio_16_77.mp3 +"mal samdani vs. state of rajasthan on 16 december, 2021",audio_16_78.mp3 +"Compounding with the legal services Auth. , or such Auth. as the court deems fit. (c) similarly, if the Appl. for compounding is made before the",audio_16_79.mp3 +"sessions court or a HC in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the",audio_16_80.mp3 +"cheque amount by way of costs. (d) finally, if the Appl. for compounding is made before the SC , the Fig. would increase to 20%",audio_16_81.mp3 +"of the cheque amount. "" applying the ratio decidendi of damodar s.prabhu (supra) and the guidelines framed therein, on the strength of compromise arrived at",audio_16_82.mp3 +"between petitioner and the complainant, i feel persuaded to exercise revisional jurisdiction for doing real and substantial J. in the matter for the administration of",audio_16_83.mp3 +"which alone the courts exist. Accordingly, i prefer to give priority to the compensatory aspect of remedy over the punitive aspect in the matter in",audio_16_84.mp3 +"the wake of settlement of dispute and compromise being arrived at between the rival parties. In view of foregoing discussion, the instant revision petition is",audio_16_85.mp3 +"allowed, impugned judgment dated 11.02.2020 passed by learned appellate court as well as judgment dated 27.04.2019 passed by the learned trial court are set at",audio_16_86.mp3 +naught as a consequence of compromise having been arrived at between the (8 of 8) [crlr-1013/2021] rival parties and while acknowledging their compromise offence under,audio_16_87.mp3 +"S. 138 of the act is hereby compounded by resorting to S. 147 of the act. Compounding of offence under S. 138 of the act,",audio_16_88.mp3 +"obviously, entails acquittal of the petitioner. However, taking into account the fact that petitioner has caused undue delay in making endeavour for compounding of offence,",audio_16_89.mp3 +"in terms of guidelines framed by the SC in damodar S. prabhu (supra), accused-petitioner is ordered to be released, if not required in any",audio_16_90.mp3 +"other Cas. , subject to the condition that he deposits 15% of the cheque amount, i.e., rs.2,70,000/- (18,00,000/- x 15%) with the district legal services Auth. ,",audio_16_91.mp3 +"bhilwara within a period of one month from today. In Cas. , the cost is not deposited by the petitioner before the rajasthan state legal services",audio_16_92.mp3 +"Auth. within the stipulated period, the revision petition may be listed before this court for passing appropriate orders. After detailed discussion, the revision petition is",audio_16_93.mp3 +"allowed in the light of judgment of damodar S. prabhu (supra). (devendra kachhawaha),j 24-bharti/- powered by tcpdf (www.tcpdf.org)kedar mal samdani vs. state of rajasthan on",audio_16_94.mp3 +"16 december, 2021",audio_16_95.mp3 +"P.J. jacob vs. ullas mon on 7 march, 2020 in the court of the judge court of small causes and xxvi a.c.m.m, at bengaluru present:",audio_17_1.mp3 +"abdul khadar, b.a., ll.b., judge, court of small causes, bengaluru. Dated this the 7th day of march 2020 c.c. No:14618/2015 complainant: p.J. jacob proprietor, m/s.",audio_17_2.mp3 +"Jayem engineering Co. , having its registered office at: no.70, 1st cross, 2nd 'a' main, domlur, bengaluru-71. (by sri.m.a. Sebastian.-Adv. ) -vs- accused : ullas mon managing",audio_17_3.mp3 +"partner, m/s. Ultra proof engineers, no.156, 6th cross, ayr layout, near subramanyaswamy temple, shettyhalli, jalahalli west, bengaluru-15. (by sri. K.b. Kumar-Adv. ) judgment the complainant filed",audio_17_4.mp3 +"the Pvt. complaint under sec.200 of Cr.P.C. , against the accused for having committed an offence punishable under sec.138 of negotiable instruments",audio_17_5.mp3 +"act. 2. According to the complainant, that the complainant is the proprietor of m/s. Jayem engineering scch-9 Co. . The accused is the managing partner of",audio_17_6.mp3 +m/s. Ultra proof engineers. The accused approached the complainant claiming that he has the necessary expertise and required manpower in providing effective solutions to suit,audio_17_7.mp3 +the complainants requirements at various worksites. Accordingly the accused was appointed as sub contractor and was handed over the contract for providing water proofing solutions,audio_17_8.mp3 +at a worksite where the complainant concern was appointed as the engineer to carry out various works. The complainant issued cheque bearing No. 910148 for,audio_17_9.mp3 +"a sum of rs.8,32,000/- drawn on south indian bank, koramangala branch, bengaluru, towards the advance payment for the works to be undertaken by the accused",audio_17_10.mp3 +and the same has been encashed by the accused on 26.02.2014. Inspite of repeated reminders and requests the accused did not come forward to carry,audio_17_11.mp3 +out the works entrusted to him by the complainant. When the complainant demanded for return of the amount along with interest the accused has handed,audio_17_12.mp3 +"over a cheque for rs.8,96,000/- bearing no.188754, drawn on axis bank, peenya branch, bengaluru on 15.09.2014 towards the return of the amount along with interest",audio_17_13.mp3 +"for delayed repayment. When the complainantp.J. jacob vs. ullas mon on 7 march, 2020",audio_17_14.mp3 +"Dommaluru branch, the cheque was return with an endorsement as ""funds insufficient"" dated 14.10.2014. The complainant got issued legal notice claiming upon the accused to",audio_17_15.mp3 +repay the aforesaid cheque amount. Upon the receipt of the notice accused gave reply dated 02.12.2014 undertaking to repay the amount on 18.12.2014 and also,audio_17_16.mp3 +assured the complainant that he would handover a fresh cheque in his favour. After repeated reminders and requests on 12.03.2015 the accused handed over a,audio_17_17.mp3 +"cheque for a sum of rs.9,77,000/- bearing no.188774, dated 14.03.2015 drawn on axis bank, peenya branch, bengaluru, towards the refund of amount including the interest",audio_17_18.mp3 +"for the delayed payment after taking back the original cheque bearing no.188754. The complainant presented the said cheque for encashment through his banker, union bank",audio_17_19.mp3 +"of india, domlur branch, bengaluru which came to be dishonoured for the reason as ""funds insufficient"" with an endorsement dated 27.04.2015. Immediately the complainant intimated",audio_17_20.mp3 +"regarding the dishonor of cheque to the accused, but he failed to pay the amount covered under the cheque. The complainant got issued a legal",audio_17_21.mp3 +notice to the accused through rpad on 11-05-2015 demanding him to pay the cheque amount within 15 days from the date of receipt of notice.,audio_17_22.mp3 +"The notice was returned unserved with postal scch-9 shara ""intimation delivered"" on 12.05.2015. Despite service of notice, the accused neither sent any reply nor paid",audio_17_23.mp3 +"the amount under the cheque. Accordingly, he has filed the present complaint to take action against the accused in accordance with law. 3. Being satisfied",audio_17_24.mp3 +"with the complaint averments, this court has taken cognizance and after recording sworn statement being satisfied with the prima-facie Cas. , issued summons to the accused",audio_17_25.mp3 +compelling his appearance. Accused appeared through his counsel before this court and got enlarged on bail. Substance of accusation was read over to him. He,audio_17_26.mp3 +"pleaded not guilty for the offence punishable u/s.138 of ni act. Hence, this court called upon the complainant to prove his Cas. . 4. In support",audio_17_27.mp3 +"of the Cas. , the complainant himself examined as p.w.1 and got marked 10 documents as per ex.p1 to p10. After closure of evidence of complainant,",audio_17_28.mp3 +"the accused was examined as contemplated u/s.313 cr.p.c and his statement was recorded. The accused, totally denied the Cas. of the complainant. The accused examined",audio_17_29.mp3 +himself as d.w.1 and got marked two documents at ex.d1 and d2 on his behalf and the Cas. was posted for arguments. 5. I have,audio_17_30.mp3 +heard the arguments canvassed by both counsels and perused the materials available on record. Scch-9 6. The points that would arise for my determinations are:,audio_17_31.mp3 +"1. Whether the complainant proves that the cheque bearing no.188774, dated 14.03.2015 for rs.9,77,000/- drawn on axis bank, peenya branch, bengaluru, has been issued by",audio_17_32.mp3 +the accused towards discharge of his legal liability and failed to make good to the complainant after its dishonor and issue of legal notice within,audio_17_33.mp3 +"the stipulated period and thereby he has committed the offence punishable u/s. 138 of the ni act?p.J. jacob vs. ullas mon on 7 march, 2020",audio_17_34.mp3 +7. My findings to the above points are as under: point no.1 : in the affirmative point no.2 : as per final order below for,audio_17_35.mp3 +"the following: reasons point no.1 : 8. It is pertinent to note that, whenever a Pvt. complainant is filed seeking prosecution of the accused for",audio_17_36.mp3 +"an offence punishable under S. 138 of negotiable instrument act, if the issuance of cheque and the signature on the cheque is accepted and admitted",audio_17_37.mp3 +"by the accused, an initial presumption has to be raised by the court in favour of the complainant, that the cheque in question was issued",audio_17_38.mp3 +"towards legally recoverable debt or liability. Of course, this presumption scch-9 is rebuttable presumption. Such rebuttable evidence has to be placed before the court by",audio_17_39.mp3 +"the accused. It is well known that, the accused can rebut the said legal presumption either by cross-examination of complainant or by leading evidence. The",audio_17_40.mp3 +complainant himself examined as pw.1 filed Aff. by way of chief examination has reiterated the versions of complaint. I would not like to reproduce the,audio_17_41.mp3 +same to avoid repetition of facts since the complainant has explained the details of complaint averments in chief examination. The complainant produced 10 documents at,audio_17_42.mp3 +"ex.p1 to p.10. 9. So far as the document is concerned ex.p.1 is the bearing no.188774, dated 14.03.2015 for rs.9,77,000/- drawn on axis bank, peenya",audio_17_43.mp3 +"branch, bengaluru. Ex.p1(a) is the signature of the accused. Ex.p2 is the bank endorsement issued by the union bank of branch, bengaluru on 27.04.2015, wherein",audio_17_44.mp3 +"the said cheque was dishonoured with a shara as ""funds insufficient"". Ex.p3 is the legal notice dated 11.05.2015, wherein the complainant demanded for repayment of",audio_17_45.mp3 +"money of rs.9,77,000/-from the accused within 15 days from the date of receipt of notice. Ex.p4 is the postal receipt, in which the notice has",audio_17_46.mp3 +been sent through rpad to the address of accused shown in cause title. Ex.p5 is the unserved postal cover. Ex.p5(a) is the contents of ex.p5.,audio_17_47.mp3 +"Ex.p6 is the undertaking letter scch-9 dated 02.12.2014, wherein the accused admits his liability to pay sum of rs.8,96,000/- and assured him to repay the",audio_17_48.mp3 +"entire cheque amount without seeking any further extension on or before 18.12.2014 in favour of complainant. Exs.p7 & 8 are the bank statements, wherein it",audio_17_49.mp3 +"clearly goes to show that the complainant, paid rs.8,22,000/- to the accused by way of cheque bearing No. 910148, the same is reflected in ex.p8",audio_17_50.mp3 +"as the accused withdrawn rs.8,32,000/- through cheque dated 26.02.2014. Ex.p9 is the letter head of accused ultra proof engineering. Ex.p10 is the work contract tax",audio_17_51.mp3 +invoice. On perusal of ex.p1(a) which tallies the signature found in ex.p10 and the address mentioned in ex.p5 is one and the same. According to,audio_17_52.mp3 +"the learned counsel for the complainant, when the issuance of cheque and his signature are admitted, then the presumption as required under S. 139 of",audio_17_53.mp3 +n.i. Act comes to the aid of the complainant and it is the turn of the accused to explain or rebut the said presumption by,audio_17_54.mp3 +"raising a probable defence. 10. In this regard, the court has to see whether the accused has been successful in rebutting the presumption through cross-examination",audio_17_55.mp3 +"of pw-1. In support of his defence, the accused crossp.J. jacob vs. ullas mon on 7 march, 2020",audio_17_56.mp3 +"Consideration does not exist as scch-9 alleged by the complainant under ex.p1. During the course of cross examination of pw-1, he deposed that he started",audio_17_57.mp3 +jayem Co. in the year 1978 and he was stopped the contracts for household as well as commercial requirements under jayem Co. during the year,audio_17_58.mp3 +2012. He was the owner of jayem Co. . He issued cheque belonging to jayem Co. to the accused. Till today he is submitting IT ,audio_17_59.mp3 +"returns of that Co. . He also disclosed the advance payment of rs.8,32,000/- to the accused in the IT returns. He himself gave the instructions",audio_17_60.mp3 +to the auditor. He do not remember when he gave instructions of due amount from the accused to his auditor. He has no objection to,audio_17_61.mp3 +"produce the IT returns for the assessment year 2014- 15 and 2015-16 of jayem Co. . The cheque dated 14.10.2014 for sum of rs.8,96,000/- with",audio_17_62.mp3 +the accused and he has not obtained receipt from the accused for return of bounced cheque. He deposed that the accused taken back the earlier,audio_17_63.mp3 +cheque on 15.09.2014 and issued the alleged ex.p1 cheque. His counsel issued demand notice on bounced cheque dated 15.09.2014. But he had not produced postal,audio_17_64.mp3 +receipt and the notice returned with shara as person not available. He denied that ex.p6 was not issued by the accused and same was created,audio_17_65.mp3 +for the purpose of this Cas. and for the first time he is deposing the said fact before this scch-9 court and not pleaded in,audio_17_66.mp3 +his notice as well as complaint. He admits the signature and contents of ex.p1 were written in different ink. He do not know the writing,audio_17_67.mp3 +of ex.p1 was not of accused. He denied that he himself forged signature in ex.p6 and produced before this court. He has no objection to,audio_17_68.mp3 +send the signature of exs.p1 and p6 to the handwriting expert for obtaining opinion. He deposed during the year 2013 the accused was working under,audio_17_69.mp3 +him as sub-contractor. Ex.p1 cheque was issued by the accused for the project of prestige silver oak. During the year 2012 he had taken project,audio_17_70.mp3 +of aforesaid Co. and it was completed in the year 2015. The witness voluntaries that for non completion of work taken by the accused in,audio_17_71.mp3 +"confidence group for the repayment of advance, the accused was issued ex.p1-cheque. He has agreement held between confidence group with his Co. in the year",audio_17_72.mp3 +"2008 started project and completed in the year 2014. He admits that as per ex.p7 rs.23,32,000/- has been credited to the accused account. He has",audio_17_73.mp3 +no problem to produce the ledger account extract for the month of february 2014 before the court. He denied that after completion of work entrusted,audio_17_74.mp3 +"to the accused, he credited the aforesaid amount to the accused account. He denied that the accused stopped the work under jayem Co. . He denied",audio_17_75.mp3 +"that he has not paid scch-9 rs.8,32,000/- as advance payment to the accused and aforesaid amount was paid for the work completion amount. He has",audio_17_76.mp3 +"not entered into agreement with the accused. He denied that when he entrusted work in the year 2012 at that time, he took 2blank signed",audio_17_77.mp3 +cheques from the accused. He denied that ex.p1 cheque is in his custody since 2012. He pleads ignorance that after ex.p1 cheque series was encashed,audio_17_78.mp3 +in the year 2012. He denied that the accused is not residing in the address shown in ex.p3. 11. In the further cross examination pw-1,audio_17_79.mp3 +deposed that on behalf of Co. he filed only one Cas. . He denied that accused was working in his Co. since 2004. Ex.p7 is part,audio_17_80.mp3 +"and parcel of ex.p8. On 26.03.2013 rs.2,21,900/- amount credited to the accused account. He is having 2-3 bank accounts. As per ex.p.8 26.03.2013 to 15.02.2014",audio_17_81.mp3 +"he paid rs.8,32,000/- through cheque to the accused has been denied. He denied that he paid the amount of rs.8,32,000/- for the work entrusted to",audio_17_82.mp3 +"the accused but the same was not advance amount. He pleads ignorance that the accused is residing in house no.29, shettihalli, jalahalli, bengaluru-15. He denied",audio_17_83.mp3 +that he issued demand notice to the accused to wrong address. He admits that he has not pleaded in the notice asp.J. jacob vs. ullas,audio_17_84.mp3 +"mon on 7 march, 2020",audio_17_85.mp3 +Question to him. He admits that he has not paid the payment in time and asked the accused to work on lower price since march,audio_17_86.mp3 +"2014 the accused was not working under him. He denied that at the time of entrusting sub-contract work to the accused that time, he received",audio_17_87.mp3 +the security cheque and misused the same to file this false Cas. against him. He denied that after completion of work entrusted he has not,audio_17_88.mp3 +"returned back the cheque and it was misused to file this Cas. . On perusal on entire cross examination of pw-1, it clearly goes to show",audio_17_89.mp3 +that he had issued cheque to the complainant for repayment of advance amount along with interest for the delayed repayment by taking back the cheque,audio_17_90.mp3 +"bearing No. 188754 and issued 188774 for a sum of rs.9,77,000/-. The accused states that he handed over the signed blank cheque to the complainant",audio_17_91.mp3 +as security for the work which he did not taken up. It is the defence of accused that the proposed rate stated by the complainant,audio_17_92.mp3 +"was low, therefore, he did not work. Moreover the accused is disputing the address mentioned in ex.p3 is not of him. As per ex.p6 letter",audio_17_93.mp3 +head and invoice at ex.p10 clearly show that the notice sent through rpad to the accused on the address shown in his letter head. It,audio_17_94.mp3 +is held sufficient that the demand notice was duly served on the accused. On scch-9 perusal of exs.d1and d2 voter id and dl shows the,audio_17_95.mp3 +different addresses were issued by the Auth. during the year 2010 and 2013. Exs.p9 and 10 documents were marked during the course cross examination of,audio_17_96.mp3 +"dw-1 by the complainant on confrontation. 12. Admittedly, in the cross examination of complainant, the accused has not elicited from his mouth to show that",audio_17_97.mp3 +"there is no existence of legally recoverable debt payable by the accused to the complainant. It is the defence of the accused that, he commenced",audio_17_98.mp3 +work as a sub-contractor under complainant from 2009 to 2014. He had undertaken various projects. When complainant entrusted work he was in the habit of,audio_17_99.mp3 +taking blank signed cheque as security for each with site work and after completion of water proofing work in the building from the date of,audio_17_100.mp3 +handing over of building to the owners. If any repair work noticed by the owner the accused has to repair his portion of work to,audio_17_101.mp3 +the satisfaction of building owner. The complainant is the custodian of 3blank signed cheques collected by him on different times while allotting work to the,audio_17_102.mp3 +accused in the aforesaid process. The alleged cheque in question was gone to the hands of complainant and not issued for encashment as alleged by,audio_17_103.mp3 +"the complainant. The complainant has paid rs.8,32,000/- on 26.02.2014 towards balance amount scch-9 payable by the complainant in respect of work done by the accused",audio_17_104.mp3 +"and it was not the advance amount. From february 2014 onwards, the accused has not done any work as sub contractor under the complainant. When",audio_17_105.mp3 +"accused received the call to complete repair work, accused being permanent resident of kerala to take his father aged about 80 year was unable to",audio_17_106.mp3 +do the repair work the complainant taken revenge and presented the cheque in question for encashment and filed this false complainant against him. The accused,audio_17_107.mp3 +"admits his signature in ex.p1, the documents itself shows that the accused received advance amount of rs.8,32,000/- through cheque from the complainant and accused not",audio_17_108.mp3 +come forward to carry out the work entrusted towards repayment of said advance amount along with interest for delayed repayment issued ex.p1 to the complainant.,audio_17_109.mp3 +On careful appreciation of the evidence of the complainant and accused there is no disputes with regard to the cheque and signature belongs to the,audio_17_110.mp3 +accused and the signature is marked as ex.p1(a). Hence it can be held that the complainant has proved the provision of S. 118 & 139,audio_17_111.mp3 +"of the n.i. Act. As per S. 118 of n.i. Act, the presumption available regarding consideration, as to the date and also holder or holder-in-due",audio_17_112.mp3 +"course of cheque. When the complainant presented the cheque it impliesp.J. jacob vs. ullas mon on 7 march, 2020",audio_17_113.mp3 +By adducing the defense evidence. So the burden is on the accused to rebut the presumption. 13. The accused has specifically deposed that the complainant,audio_17_114.mp3 +"paid rs.8,32,000/- towards balance amount payable by him to the accused in respect the work done by him and not for the advance amount as",audio_17_115.mp3 +"alleged by the complainant, therefore, he is not liable to pay any amount to the complainant. 14. So, it is an admitted fact of issuance",audio_17_116.mp3 +of cheque by the accused. It is the main contention of the accused is that he is not due to any amount as claimed by,audio_17_117.mp3 +"the complainant under ex.p1. Then, in my opinion question arises that as it is a matter of the year 2015, why the accused has not",audio_17_118.mp3 +"lodged complaint against complainant for misusing of cheque by the complainant, even after receipt of demand notice, the accused has not taken any legal action",audio_17_119.mp3 +against the complainant for misuse of cheque. 15. The learned counsel for the complainant has argued that the accused is a sub contractor to carry,audio_17_120.mp3 +put water proofing works at various work sites of the complainant. For carrying out the said work in one of the work site the complainant,audio_17_121.mp3 +"has paid rs.8,32,000/- by way of cheque which was encashed by the accused scch-9 on 26-02-2014 . The accused did not carry out the said",audio_17_122.mp3 +"work and agreed to return the advance amount including interest as per undertaking, the accused issued ex.p1 cheque in favour of complianant. To show the",audio_17_123.mp3 +"same, accused not produced any documents before the court except exs.d1 and d2 i.e., election id card and dl. The accused could have filed complaint",audio_17_124.mp3 +against him for misusing of cheque in question to file this Cas. against him when he has not issued the cheque in question to him,audio_17_125.mp3 +towards discharge of his liability. The accused admitted the fact that the above cheque belongs to his account. Hence the complainant has proved that the,audio_17_126.mp3 +accused has issued the cheque towards discharge of his liability. The said cheque was presented for encashment within 3 months from the date of issue,audio_17_127.mp3 +"and the said cheque was bounced as funds insufficient and the notice was issued on him but he failed to clear the cheque amount. Hence,",audio_17_128.mp3 +"prayed that the accused is liable for punishment and for payment of cheque amount. Now, the question is whether ex.p1 cheque was issued towards discharge",audio_17_129.mp3 +of liability. 16. The d.w.1 during the course of cross- examination admits his cheque and signature on cheque as ex.p1(a). Dw-1 admits that he is,audio_17_130.mp3 +doing water proofing work since 2006 in proprietor concern in the name and style ultra proof engineers which is a scch-9 registered Co. . He had,audio_17_131.mp3 +vat registration certificate. The said Co. situated in the address shown in his chief examination. The e-mail address of said Co. ultraproofengineersbir@gmail.com. After completion of,audio_17_132.mp3 +project work he has not requested for return of cheque in writing from the complainant. He admits he issued 3 signed blank cheques belonging to,audio_17_133.mp3 +"axis bank, jalahalli branch towards project work to the complainant. He do no remember the cheque No. . He is completed diploma in Civ. engineer. He",audio_17_134.mp3 +do not know the consequences of issuing of blank signed cheque. He denied that he has not issued blank cheque to the complainant. He denied,audio_17_135.mp3 +"that the writings of ex.p1 written by him. He has no documents to show that he did work for rs.23,32,000/- including 3 employees working in",audio_17_136.mp3 +ultra proof engineers Co. . He admits his Co. letter head as per ex.p9 and ex.p6 is also his Co. letter head. He denied that ex.p6,audio_17_137.mp3 +"is his signature. He admits invoice atp.J. jacob vs. ullas mon on 7 march, 2020",audio_17_138.mp3 +Ground and circumstances of the Cas. from the admitted facts from the mouth of accused. As i above discussed the conduct of the parties has,audio_17_139.mp3 +to be considered if really the accused has not issued the cheque for legal recoverable debt why he has not scch-9 lodged Crl. proceedings against,audio_17_140.mp3 +the complainant till today. 17. The statutory presumption under sec.139 of n.i. Act explains initial presumption infavour of the producer of an instrument. It says,audio_17_141.mp3 +"court shall presume that one instrument is handed over infavour of Anr. person only for the purpose of recover of existed debt. Therefore, the statutory",audio_17_142.mp3 +"presumption explained under sec.139 of n.i. Act always provides presumption infavour of the complainant. But, it does not mean that the statutory presumption cannot be",audio_17_143.mp3 +rebutted. The said presumption can be rebutted at the strength of strong oral and documentary evidence. Let us see the attempt of the accused to-rebut,audio_17_144.mp3 +"the evidence of complainant. 18. To defeat the Cas. of the complainant, accused himself examined as dw-1, wherein he deposed that he was residing in",audio_17_145.mp3 +"the cause title address since 7years and before that, he was residing at laggere. To prove the same, he has produced ex.d.1 and d.2. He",audio_17_146.mp3 +knows the complainant since 2009 and he was doing sub contract work under him till 2014.now he is not working under him as sub contractor.,audio_17_147.mp3 +He was 12 projects in various layouts. When complainant entrusted project work he was in the habit of taking blank signed cheque as security for,audio_17_148.mp3 +each site work and he used to keep one year from the date of scch-9 commencement of work. The complainant is having three blank signed,audio_17_149.mp3 +"cheques with him. The complainant since march 2013 to february 2014 he will keep the salary due and during february 2014, he paid rs.23,32,000/-. The",audio_17_150.mp3 +"complainant not paid advance amount of rs.8,32,000/- to the accused and he has not done the work as the price was low. 19. Dw-1 deposes",audio_17_151.mp3 +that the contents of ex.p1 was not written by him and two cheques of 2012-13 was given by him to the complainant. Ex.p.3 was not,audio_17_152.mp3 +signed by him and he has not given letter head on 2- 12-2014. He is not due to the complainant. He deposes that the rework,audio_17_153.mp3 +has come when he called to him and he told to do that work with some and he is ready to pay if it comes,audio_17_154.mp3 +"to below rs.50,000/- and the accused filed this false Cas. against him by misusing the cheque which was with him. 20. This witness cross examined",audio_17_155.mp3 +by counsel for the complainant wherein he deposed that since 2006 he was doing water proofing work and he worked with the complainant during 2008,audio_17_156.mp3 +"onwards. He is having his own Co. , which is a registered proprietorship concern run under the name and style of ultra proof engineers. He is",audio_17_157.mp3 +having vat registration certificate. Said Co. is in the Aff. address. He has demanded the complainant for return of cheques after completion of scch-9 project,audio_17_158.mp3 +work by writing. He has given axis bank cheque of jalahalli branch. He is not remembering the cheque numbers. He do not know the consequences,audio_17_159.mp3 +of issuing of blank cheques. He denied that he has not issued the blank signed cheques to the complainant. He denied that he issued ex.p.1,audio_17_160.mp3 +towards discharge of his liability. He admits his signature but denies the contents of ex.p.1 written by him. The complainant himself used his letter head,audio_17_161.mp3 +"and he himself prepared the bill. He is not having any documents to show that he worked for rs.23,32,000/-. The accused identified his letter head",audio_17_162.mp3 +is marked as ex.p.9. He admits ex.p.6 but denies his signature in ex.p.6. He has no problem to send the signature found in ex.p.6 to,audio_17_163.mp3 +"the fsl. Dw-1 identified ex.p.10 and his signature asp.J. jacob vs. ullas mon on 7 march, 2020",audio_17_164.mp3 +Which came to be bounced on its presentation and he gave ex.p.1 with interest. He denied that the notice issued by the complainant has been,audio_17_165.mp3 +served on him and he is deposing falsely before the court in order to escape from the liability. 21. On perusal of appreciation of the,audio_17_166.mp3 +"oral testimony of the accused, it can be held that entire defense taken by the accused regarding issuance of cheque admitted. Therefore, when there is",audio_17_167.mp3 +"an evidence of complainant regarding issuance of cheque scch-9 and dishonor of cheque on it's presentation, when there is no defence evidence to rebut the",audio_17_168.mp3 +"presumption available u/s.118 & 139 of the act. 22. The counsel for the complainant filed written arguments and argued that, the accused received a sum",audio_17_169.mp3 +"of rs.8,32,000/- from the complainant as an advance amount to start one of his work through cheque and in ex.p8 page no.4, the transaction entry",audio_17_170.mp3 +dated 26.02.2014 shows that cheque no.910148 issued to the accused is cleared in favour of the accused. The accused in his depositions admits that he,audio_17_171.mp3 +did not do the work and suggested to get the work done through some other person since he is out of station. The accused issued,audio_17_172.mp3 +"the cheque bearing No. 188774 for rs.9,77,000/- towards repayment of a legally enforceable debt. The accused volunteered to issue the above cheque bearing no.188774 for",audio_17_173.mp3 +"rs.9,77,000/- including the interest for the delayed repayment of the amount received from the complainant after having dishonoured the previous cheque bearing No. 188754 dated",audio_17_174.mp3 +"26.02.2014 for rs.8,96,000/- in favour of the complainant. The accused admits the signature on ex.p1 belongs to him and the cheque belongs to his account",audio_17_175.mp3 +and claims that he has handed over three blank signed cheques to the complainant before starting the work. The accused has not produced any material,audio_17_176.mp3 +evidence scch-9 before this court to prove that the complainant has collected three cheques from the accused. The accused is unable to provide even the,audio_17_177.mp3 +"cheque details to this court. Had he issued the said blank cheques as he claims, the cheques leaves would have been with continuous numbers? whereas",audio_17_178.mp3 +the first cheque issued to the complainant is bearing No. 188754 and the second cheque is bearing no.188774 which clearly indicates that the said two,audio_17_179.mp3 +cheques were not issued together for security purpose as claimed by the accused but issued on different times/occasions for the repayment of a of a,audio_17_180.mp3 +legally enforceable debt. The accused further contents that the cheque leaves where collected by the complainant from the accused before giving sub-contract work to the,audio_17_181.mp3 +accused which is incorrect as there was no need for collecting blank cheques from the accused while assigning the job. Hence prayed to convict the,audio_17_182.mp3 +accused in accordance with law. 23. The learned counsel for the complainant has relied on the following decisions: 1. Appeal (crl.) 1015 fo 1999 in,audio_17_183.mp3 +"the Cas. of k.bhaskaran vs. v/sankaran vaidhyanbalan and Anr. , wherein it is held that, ""refusal and even failure to claim in circumstances as here will",audio_17_184.mp3 +"tantamount to service of notice. As the signature in the cheque is scch-9 admitted to be that of the accused, the presumption envisaged in S. ",audio_17_185.mp3 +118 of the act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears.p.J. jacob,audio_17_186.mp3 +"vs. ullas mon on 7 march, 2020",audio_17_187.mp3 +The discharge of any debt or liability. The burden was on the accused to rebut the aforesaid presumption. 2.Crl. revision Cas. No. 733 of 2010,audio_17_188.mp3 +"in the Cas. of m/s. Jayalakshmi textiles v/s. S.k. Kolandasamy, wherein it is held that, even if a notice is sent and it is returned",audio_17_189.mp3 +"unclaimed, if it is clearly proved that it was sent to the correct and proper address, then it can be construed that service of notice",audio_17_190.mp3 +"is proper. 3. Cr.r.p. No. 452/2010 in the Cas. of venkatesh prasad v/s subray v. Bhat, wherein it is held that, the petitioner would submit",audio_17_191.mp3 +that three cheques in question were given to the complainant towards security while they were dealing in their business and that the complainant instead of,audio_17_192.mp3 +"returning those cheques misused and filed this Cas. . Whenever a cheque is issued, a presumption has to be drawn under S. 139 of the n.i.",audio_17_193.mp3 +Act that the cheque has been issued towards the discharge of debt or liability and the scch-9 presumption also includes the existence of legally enforceable,audio_17_194.mp3 +"debt or liability. 4. Crl. a No. 767 of 2007 in the Cas. of c.c.alavi jaji vs. palapetty muhammed and anr, wherein it is held",audio_17_195.mp3 +"that, when notice is sent by registered post by correctly addressing drawer of the cheque, mandatory requirement of issue of notice is complied with. Returned",audio_17_196.mp3 +envelop was annexed to the complainant which showed that notice was sent by registered post in the correct address and was returned with an endorsement,audio_17_197.mp3 +addressee was abroad - requirement of the S. complied with. 5. Crl. A. No. 506 of 2006 in the Cas. of rames vs. K. Sundar,audio_17_198.mp3 +"wherein it is held that, u/S. 118 and 139 of act once issuance of cheque and signature were admitted - appellant was entitled to invoke",audio_17_199.mp3 +presumption that cheque had been issued for discharging legally subsisting liability - respondent failed to probabilise defence. 24. The counsel for the accused filed written,audio_17_200.mp3 +"argument and argued that the complainant know to the accused from the year 2009, the accused commenced work as a sub-contractual work under complainant and",audio_17_201.mp3 +"the complainant is the principal contractor and the accused was doing sub-contractor work complainant from year 2009 to 2014, the scch-9 accused was doing sub-contractual",audio_17_202.mp3 +"work more than 12 projects under taken by the complainant as a principal contractor. When complainant entrusted work, he was in the habit of taking",audio_17_203.mp3 +blank signed one cheque for each site work and the said cheque was for the purpose of after completion of accused water proofing work in,audio_17_204.mp3 +"the building from the date handed over said building to the owners, if any leakage repair work noticed by the owner the accused has to",audio_17_205.mp3 +repair the his portion of work to the satisfaction of building owner it means blank signed cheques were collected by the complainant as a security.,audio_17_206.mp3 +If it any repair work reported after delivery of possession of building to the owner within the one year completions in any potion accused sub-contractor,audio_17_207.mp3 +"work, he have to comply. Complainant is custodian of three blank signed cheque bearing no.188754, 188774 and Anr. one cheque collected by him, at different",audio_17_208.mp3 +"time while allotting work to the accused at different place/ building, in the afore said process the cheque in question gone to the hand of",audio_17_209.mp3 +complainant and it was not issued for encashment as alleged by the complainant in his complaint. It is submitted thatp.J. jacob vs. ullas mon on,audio_17_210.mp3 +"7 march, 2020",audio_17_211.mp3 +"February 2014 in all sum of rs.23,32,000/- was paid by the complainant in the scch-9 month of february 2014 in all rs.23,32,000/- was paid by",audio_17_212.mp3 +"the complainant, as such the amount paid by the complainant to the accused on 26.02.2014 a sum of rs.8,32,000/- was towards balance amount payable by",audio_17_213.mp3 +him to the accused in respect the work done by the accused it was not for the advance amount as alleged by the complainant. The,audio_17_214.mp3 +notice sent by the complainant was not served on the accused and from the february 2014 onwards the accused has not done any work as,audio_17_215.mp3 +"a sub-contract under the complainant presently also the accused doing water proofing work under different contractor, one of the occasions the complainant called to the",audio_17_216.mp3 +accused to do the repair work in one of the site area it was earlier assignment water proofing sub- contractor work under the complainant. As,audio_17_217.mp3 +"when accused received the call to complete repair accused being a permanent resident of kerala to take care of his father aged about 80 years,",audio_17_218.mp3 +unable to do the repair cheque work the complainant take revenge and presented the cheque in question and got favorable memo and filed false Cas. ,audio_17_219.mp3 +against s the accused. The writing on the cheque was not written by the accused and he never anticipated presentation of cheque by the complainant,audio_17_220.mp3 +that to without the knowledge of accused. The complainant has not taken proper steps service of scch-9 notice to the accused even though no to,audio_17_221.mp3 +"liability, the complainant had initiated the false Cas. . 25. On overall looking on the oral and documentary evidence on record first of all the complainant",audio_17_222.mp3 +"has failed to produce the cheque bearing No. 188754 for rs.8,96,000/- dated 15.09.2014 and its cheque return memo, secondly the complainant admitted that he got",audio_17_223.mp3 +"issued the notice after bouncing of cheque bearing No. 188754, but he failed to produce such notice postal receipts and postal acknowledgement, thirdly the alleged",audio_17_224.mp3 +"undertaking letter at ex.p6 is created and as per the report alleged signature; of accused was forged, fourthly the complainant has failed to produce his",audio_17_225.mp3 +"ledger extract for the work done by the accused, fifthly the complainant not paid any amount almost 11 months to the accused and in the",audio_17_226.mp3 +"month of february 2014 he paid rs.23,32,000/- sixthly alleged advance amount paid by the complainant is not round Fig. and it is rs.8,32,000/- seventhly there",audio_17_227.mp3 +"is no document from the side of complainant to says that the amount of rs.8,32,000/- paid as advance, eighthly during the cross examination he admitted",audio_17_228.mp3 +"that except he signature on the disputed cheque and all other writings or are not in the hand writing of accused, it means the cheque",audio_17_229.mp3 +was not written one and only person and lastly notice scch-9 issued by the complainant through his Adv. to the accused u/S. 138 of n.i.,audio_17_230.mp3 +"Act not served on the accused and the complainant failed issued notice to accused proper address. By looking to all the above said circumstances, the",audio_17_231.mp3 +defense of the accused is probable and acceptable by the common prudent man. The complainant failed to establish issuance of cheque by the accused towards,audio_17_232.mp3 +"alleged liability. As such the accused has not committed offence. It is burdening on the complainant to washout all these doubts, but complainant failed to",audio_17_233.mp3 +"do so, when such being the Cas. based on the presumption and assumption the court may not convict the accused for the alleged. In the",audio_17_234.mp3 +"aforesaid facts and circumstances the complainant has utterly failed to prove the existence of legally enforceable debt against the accused and therefore, the question of",audio_17_235.mp3 +drawing presumption u/S. 139 of n.i. Act does not arise. Hon'ble apex court one of its judgment held that mere presumption cannot sufficient to the,audio_17_236.mp3 +"court to ""put blind eyes on the realities"". 26. The learned counsel for the accused has relied on the following decisions:p.J. jacob vs. ullas mon",audio_17_237.mp3 +"on 7 march, 2020",audio_17_238.mp3 +"And Anr. wherein it is held that evidence act, 1872- Ss. 114 iii. (g) & 34 - withholding of relevant scch-9 evidence - adverse inference",audio_17_239.mp3 +"-dishonour of cheque, which was issued to a share broker (complainant) that cheque was issued to clear debt in relation to share transactions complainant not",audio_17_240.mp3 +"producing before court his statutory books of accounts in respect of said transactions- in this view, held , adverse inference could not be drawn against",audio_17_241.mp3 +him. 2. 2008 cri.l.j 2955 in the Cas. of rajendraprasad gangabishen porwal vs. . Santoshkumar parasmal saklecha and anr. Wherein it is held that dishonour,audio_17_242.mp3 +of cheque - legally recoverable debt- proof- Cas. of complainant that on request he lent amount of rs.25 lacks to accused for construction of house,audio_17_243.mp3 +and purchasing furniture - loan was given only for 4 days- accused gave him post dated cheque- material on record sowing that complainant himself was,audio_17_244.mp3 +indebted and was under financial difficulties- glaring discrepancy regarding cause of loan demanded by accused as shown in complaint and as deposed by witness complainant-occupation,audio_17_245.mp3 +of complainant was agriculture -no evidence produced to prove financial viability of complainant to raise such huge amount -conviction of accused merely because he admitted,audio_17_246.mp3 +his signature on disputed cheque not proper - it would not relive complainant from requirement to scch-9 prove pre-existing debt or legal liability to pay,audio_17_247.mp3 +"amount shown in cheque. 3. Laws (ker) 2011 6 19 in the Cas. of shanthi c v/s mary sherly,- wherein it is held that accused",audio_17_248.mp3 +is not admitting either the signature in ext_. Therefore if prosecution proves that accused has made or prepared or creating a cheque which contains an,audio_17_249.mp3 +order in writing under his signature directing the banker to pay a certain sum of money only to the payee or the bearer or to,audio_17_250.mp3 +"the order of a certain person, he can be said to have ""drawn"" the cheque. 4. Laws (mph) 2016 4 117 in the Cas. of",audio_17_251.mp3 +"shobha chouhan v/s gopichand khatri, wherein it is held that it is w ell settled in law that if a cheque is issued for security,",audio_17_252.mp3 +then offence under S. 1 38 of the act is not made out. In this connection reference may be made to the decisions rendered in,audio_17_253.mp3 +"jitendra sing flora vs. . Ravikant talwar (2 00 1 (1 ) mpl j 22 9 m.p.), m.S. narayan menon @ mani vs. . State",audio_17_254.mp3 +of kerala and Anr. ( 20 06 (4) mpl j 97 SC ) and vijay v s. Laxmanchand and Ors. (2 01 3 (2,audio_17_255.mp3 +) jl j ( 1) SC ) . 5. Laws (bom) 2016 10 32 in the Cas. of rajendra babal naik v/s c m,audio_17_256.mp3 +"mathew, wherein it is held that, the apex court has further held that a presumption is not in itself evidence but only makes a prima",audio_17_257.mp3 +facie Cas. for a party for whose benefit and in a scch-9 Cas. under S. 138 of the act the accused has two options. Considering,audio_17_258.mp3 +"the facts of the Cas. and in the absence of said maria alva for whose non examination, an adverse inference is required to be drawn",audio_17_259.mp3 +"against the complainant, the accused on the basis of the complainant's own evidence has sufficiently proved that consideration and debt did not exist or in",audio_17_260.mp3 +"any event had proved that it was improbable. In the light of the above, i am of the view, that the findings of the learned",audio_17_261.mp3 +"trial court could not be faulted.p.J. jacob vs. ullas mon on 7 march, 2020",audio_17_262.mp3 +"It has found that the writings on the cheque were in different ink, which fact supported the defence theory. The blank cheque is found to",audio_17_263.mp3 +"have been given as a security for grant of loan. In my view, the view by the learned LC is a possible view. This",audio_17_264.mp3 +is not the fits Cas. for interference in an appeal against the acquittal. 27. On perusal of entire evidence on record it is quite clear,audio_17_265.mp3 +"that, the alleged cheque in question was issued by the accused to return the advance amount with interest as per ex.p6 undertaking letter which said",audio_17_266.mp3 +to have been executed by the accused dated 02- 12-2014. The same has been disputed by the accused as the said documents sent to handwriting,audio_17_267.mp3 +"experts upon scch-9 the Appl. of accused and report was called for wherein the director, cfsl hyderabad sent a requisition and stated that ""the disputed",audio_17_268.mp3 +signature marked q1 is found to differ in model and design from the specimen signatures of accused. As such the disputed signature is not comparable,audio_17_269.mp3 +"with the standard signature. It is therefore not been possible to express any opinion regarding its authorship or otherwise"". Therefore, the handwriting expert is not",audio_17_270.mp3 +in a position to compare the signature in ex.p6 with admitted signature. On careful examination ex.p1(a) and ex.p6 both signature there is a similarity in,audio_17_271.mp3 +the curves and lines. On perusal of ex.p10 the tax invoice wherein the signature found in prepared by and checked by are tallies with ex.p6.,audio_17_272.mp3 +Moreover the complainant filed this Cas. based on ex.p1 cheque issued by the accused and hence this court much relevance not given to ex.p6 undertaking,audio_17_273.mp3 +letter. Since the accused has claimed that he handed over the signed blank cheque to the complainant as security for the work which he did,audio_17_274.mp3 +"not taken up. Hence, the decisions relied by the counsel for the accused not at all applicable to the present facts and circumstances of the",audio_17_275.mp3 +Cas. on hand and the same were pronounced in different context. 28. In this regard i relied a decision reported in air 2019 SC ,audio_17_276.mp3 +1876 in the Cas. of rohitbhai scch-9 jivanlaa patel v/s state fo gujarat and Anr. it is in held that once presumption of existence of,audio_17_277.mp3 +"legally enforceable debt drawn in favour of complainant, onus is shifted on accused-unless onus is discharges by accused that preponderance of probabilities are tilting in",audio_17_278.mp3 +his favour. Doubt on Cas. of complainant cannot be raised for want of evidence regarding source of funds for advancing loan to accused. 2. Air,audio_17_279.mp3 +2018 SC 3601 in the Cas. of t.p. Murugan (dead) thi. Lrs v/s. Bojan it is held that once a cheque has been signed,audio_17_280.mp3 +"and issued in favour of the holder, there is statutory presumption i.e. issued in discharge of a legally enforceable debt or liability. This presumption",audio_17_281.mp3 +"is a rebuttal one, if the issuer of the cheque is able to discharge the burden i.e. was issued for some other purpose like",audio_17_282.mp3 +security etc. 3. Air 2015 SC 2240 in the Cas. of t.vasantha kumar vs. vijayakumari (laws(SC ) 2015 4 79 in the Cas. ,audio_17_283.mp3 +of t.vasantha kumar vs. vijayakumari ) wherein is held that dishonour of cheque-appeal against acquittal-cheque as well a signature on it not disputed by accused,audio_17_284.mp3 +respondent-presumption under s.139 would be attracted-story brought out by accused that cheque was given to complainant long back in 1999 as a security to a,audio_17_285.mp3 +"loan; the loan was repaid but complainant did not return security cheque - is scch-9 unworthy of credit, apart from being unsupported by any evidence-mere",audio_17_286.mp3 +printed date on cheque by itself cannot be conclusive of fact that cheque was issued in 1999-order of high inp.J. jacob vs. ullas mon on,audio_17_287.mp3 +"7 march, 2020",audio_17_288.mp3 +"29. No doubt the accused has clearly admitted his cheque and his signature on ex.p1, but he disputed the contents of ex.p.1 written by him",audio_17_289.mp3 +as he is not due to the complainant as he has not taken any advance payment for the works to be undertaken by him and,audio_17_290.mp3 +the same has been encashed on 26-2-2014. The evidence of dw-1 clearly shows that no legal action has been taken by the accused against complainant,audio_17_291.mp3 +to show that cheque in question was issued by him as security with regard to the commencement of project work with the complainant and even,audio_17_292.mp3 +"after completion of project work, the complainant has not returned back to the accused which has been misused by the complainant to file this false",audio_17_293.mp3 +"Cas. against him. There, itself the accused has failed to raise the probable defence. When ex.p.1 was not issued to the complainant towards discharge of",audio_17_294.mp3 +his debt. The say of accused is presumed to be true and then there was no impediment to the accused to take legal action against,audio_17_295.mp3 +the complainant. Therefore the contradiction in the version of the accused with regard to the issuance of the cheque in dispute by him to the,audio_17_296.mp3 +scch-9 complainant also gives raise to series doubts with regard to his defence. Accused has not made out any probable defence so as to shift,audio_17_297.mp3 +"the burden on the complainant. Accused has failed to establish his defence that, cheque was misused by the complainant which was given by him towards",audio_17_298.mp3 +"commencement of each project works as security to the complainant. It is well settled law that, rule of presumption of innocence of accused cannot be",audio_17_299.mp3 +"applied with same rigor to offence u/s 138, particularly where presumption is drawn that holder received the cheque for discharge, the debt or liability. Thus,",audio_17_300.mp3 +accused has failed to rebut the presumption arise in favour of the complainant under Ss. 118(a) and 139 of n.i. Act. 30. On perusal of,audio_17_301.mp3 +"the entire evidence on record, it reveals that, cheque was presented to the bank for encashment which came to be dishonored as ""funds insufficient """,audio_17_302.mp3 +and notice was issued to the accused was duly served on accused. The accused has admitted cheque belongs to his account and his signature on,audio_17_303.mp3 +"ex.p1, it is sufficient to hold that the complainant has proved the existence of debt under ex.p1 by the accused. Thus it clearly goes to",audio_17_304.mp3 +"show that since the accused had issued the cheque in question to the complainant towards repayment loan amount owed to the complainant. Scch-9 31. Now,",audio_17_305.mp3 +the question that arises that whether the issuance of cheque in question by the accused to discharge the liability of him to the complainant comes,audio_17_306.mp3 +under the purview of sec.138 of n.i. Act or not. It is settled law that in order to draw the presumption under sec.118 read along,audio_17_307.mp3 +"with 139 of n.i. Act, the burden was heavily upon the complainant to have shown that the accused is of rs.9,77,000/- to the complainant which",audio_17_308.mp3 +"was given as advance payment for the works to be undertaken by the accused by assuring to complete the project work of complainant, which was",audio_17_309.mp3 +"not completed by the accused , therefore, he issued ex.p.1 along with interest and the issuance of the cheque in support of the said repayment",audio_17_310.mp3 +was true and that the accused was bound to make the payment as had been agreed while issuing the cheque infavour of the complainant. 32.,audio_17_311.mp3 +"It is well settled law that, mere raising a doubt without cogent evidence with respect to the circumstances will not discharge presumption under S. 139.",audio_17_312.mp3 +Issuer of the cheque can rebut that presumption by adducing credible evidence that the cheque was issued for some other purpose likep.J. jacob vs. ullas,audio_17_313.mp3 +"mon on 7 march, 2020",audio_17_314.mp3 +Discharged the initial burden cast upon him that the cheque was issued for scch-9 discharge of amount due to him by the accused. With the,audio_17_315.mp3 +"examination of pw.1, the statutory presumption under S. 139 of the act arises that the cheque was issued by the accused for the discharge of",audio_17_316.mp3 +any debt or other liability in whole or in part. It is for the accused to adduce evidence to prove that the cheque was not,audio_17_317.mp3 +supported by consideration and that there was no debt or liability to be discharged by him. The defence relied upon by the accused do not,audio_17_318.mp3 +"create doubt about due of rs.9,77,000/-and the existence of a legally enforceable debt for which the cheque was issued. The oral and documentary evidence adduced",audio_17_319.mp3 +"by the complainant are sufficient to prove that, it was a legally enforceable debt and that the cheque was issued to discharge the legally enforceable",audio_17_320.mp3 +"debt. The evidence adduced by the accused is not sufficient to rebut the presumption under S. 139 of the act. Thus, the story brought by",audio_17_321.mp3 +the accused is unworthy of credit. Apart from being unsupported by any evidence. 33. The oral and documentary evidence available on record are clear and,audio_17_322.mp3 +categorically established all the ingredients of S. 138 of n.i. Act and also proved the fact that the accused had issued the cheque in question,audio_17_323.mp3 +in favour of the complainant towards the discharge of due of amount which was taken by the accused as advance payment for the works to,audio_17_324.mp3 +be done scch-9 by the accused which was encashed on 26-2-2014 and the said cheque was dishonoured and then the accused failed to pay the,audio_17_325.mp3 +"amount of cheque within 15 days from the date of service of the demand notice. Hence, the dishonor of the cheque in question is clearly",audio_17_326.mp3 +attracts the penal provision of S. 138 of the n.i. Act and the complainant has proved the guilt leveled against the accused for the offence,audio_17_327.mp3 +p/u/s S. 138 of the n.i. Act. The accused has utterly failed to rebut the presumption under sec.138 of n.i. Act infavour of the complainant.,audio_17_328.mp3 +"Hence, the complainant is entitled for benefit of statutory presumption as contemplated under sec.139 of the act. I did not find any informalities or contradictions",audio_17_329.mp3 +"elicited to render her evidence incredible. Therefore, the testimony of pw-1 inspires confidence to believe and to act upon the evidence of pw.1 and the",audio_17_330.mp3 +"documentary evidence at ex.p1 to p10 are consistence, corroborative and supporting to each other and in accordance with the Cas. of the complainant and which",audio_17_331.mp3 +leads me to conclude that the complainant has proved beyond reasonable doubt against the accused for the alleged offence punishable under sec.138 of n.i. Act.,audio_17_332.mp3 +"Accordingly, i answer point no.1 in the affirmative. Point no.2: 34. In view of my above discussions and findings on point no.1, i proceed to",audio_17_333.mp3 +"pass the following: scch-9 order acting under S. 255[2] of cr.p.c, the accused is hereby convicted for the offence punishable u/s. 138 of the n.i.",audio_17_334.mp3 +"Act. The accused shall pay fine of rs.12,00,000/. In default of payment of fine amount, the accused shall under go simple imprisonment for six months.",audio_17_335.mp3 +"Out of the amount so realized, the accused shall pay a sum of rs.11,90,000/- to the complainant as compensation, as provided u/s.357 code of Crl. ",audio_17_336.mp3 +"procedure the remaining amount of rs.10,000/- shall go to the state. The bail bond and surety bond of the accused is hereby stand cancelled. Office",audio_17_337.mp3 +"is directed to furnish free copy of this judgment to the accused.p.J. jacob vs. ullas mon on 7 march, 2020",audio_17_338.mp3 +"Then pronounced by me in the open court on this the 7th day of march 2020.) (abdul khadar) judge , court of small causes, &",audio_17_339.mp3 +"xxvi acmm, bengaluru. Annexure list of witnesses examined on behalf of complainant: pw -1 p.j. Jacob list of documents marked on behalf of complainant: ex.p1",audio_17_340.mp3 +cheque ex.p1(a) signature of accused ex.p2 bank endorsement ex.p3 legal notice ex.p4 postal receipt scch-9 ex.p5 unserved postal cover ex.p5(a) contents of ex.p5 ex.p6 reply,audio_17_341.mp3 +notice ex.p7 & 8 bank statement ex.p9 accused Co. letter head ex.p10 invoice ex.p10(a) signature of accused list of witnesses examined on behalf of accused:,audio_17_342.mp3 +dw -1 ullas moni list of documents marked on behalf of accused: ex.d.1 c/c of voter id of accused ex.d2 c/c of dl of the,audio_17_343.mp3 +"accused (abdul khadar) judge , court of small causes, & xxvi acmm, bengaluru.p.J. jacob vs. ullas mon on 7 march, 2020",audio_17_344.mp3 +"K. Ramachandra rao and ors. vs. state of a.p. Rep. By public prosecutor ... On 27 december, 2004 equivalent citations: 2005(2)alt607, iii(2005)bc111, 2005(2)ctc417, [2005(3)jcr390(ap)] order",audio_18_1.mp3 +"g. Bikshapathy, j. 1. The accused in c.c.No. 2188 of 1999 on the file of the court of the xi MM , secunderabad, filed Crl. ",audio_18_2.mp3 +"petition No. 2332 of 2002 to quash the proceedings against him under S. 138 of NI Act , 1881 (the act), on the ground that",audio_18_3.mp3 +"the complaint against him, presented by the general power of attorney of the payee of the cheque issued by him, which was dishonoured, is not",audio_18_4.mp3 +"maintainable in view of s.p. Sampathy vs. smt. Manju gupta, 2002(1) alt (crl.) 497 = 2002 Crl. l.j. 2621 (a.p.)(d.b.). When the said petition came",audio_18_5.mp3 +"up for hearing before one of us (c.y. Somayajulu, j.), since powers of attorney act, 1882, and S. 183 of contract act, 1872, recognizing the",audio_18_6.mp3 +"principle qui facit per alium facit per se were not considered while rendering the said decision, the matter was referred to a division bench for",audio_18_7.mp3 +"reconsideration of the ratio in that decision in view of those provisions, and directed the registry to post the Cas. before an appropriate bench after",audio_18_8.mp3 +obtaining orders from the Hon'ble the CJ . The Hon'ble the CJ referred the Cas. to a full bench for its decision. i.e. ,audio_18_9.mp3 +how this Cas. came before us. 2. The question to be answered by this full bench is whether power of attorney of a payee or,audio_18_10.mp3 +"a holder in due course of a dishonoured cheque can institute a complaint under S. 138 of the act, on behalf of the payee or",audio_18_11.mp3 +"the holder in due course of the dishonoured cheque. 3. At our request, sri t. Balireddy, Sr. Adv. readily accepted to act as amicus curiae.",audio_18_12.mp3 +We place on record our appreciation for the valuable assistance rendered by him. 4. Since S. 142 of the act lays down that notwithstanding anything,audio_18_13.mp3 +contained in Cr.P.C. the court cannot take cognizance of an offence punishable under S. 138 of the act except upon a complaint,audio_18_14.mp3 +"in writing made by the payee or the holder in due course of the dishonoured cheque, keeping in view S. 5 Cr.P.C. ",audio_18_15.mp3 +", the division bench in s.p. Sampathy Cas. (1 supra) held that complaint filed by a power of attorney of a payee or a holder",audio_18_16.mp3 +"in due course is not maintainable, without taking into consideration S. 2 of the powers of attorney act, 1882, and S. 183 of the contract",audio_18_17.mp3 +"act. 5. The contention of sri t. Balireddy, learned Sr. counsel, is that in view of S. 2 of the powers of attorney act, 1882,",audio_18_18.mp3 +"r/w the ratio in ravula subbarao vs. commr. Of IT , which approved the observation in jackson & co. vs. napper: in re schmidts'",audio_18_19.mp3 +"trade-mark, (1886)35k. Ramachandra rao and ors. vs. state of a.p. Rep. By public prosecutor ... On 27 december, 2004",audio_18_20.mp3 +"Purpose, except in cases where the act to be performed is personal in character, or is annexed to a public office, or an act involving",audio_18_21.mp3 +"fiduciary obligation, and since the act does not lay down that the payee or the holder in due course should 'personally' file the complaint, complaint",audio_18_22.mp3 +"filed by the payee or the holder in due course of a dishonoured cheque through his power of attorney is maintainable, more so because in",audio_18_23.mp3 +"ram chandra vs. state of bihar, the apex court held that prosecution launched at the instance of the power of attorney of 'a person aggrieved'",audio_18_24.mp3 +"tantamounts to institution of the complaint by the person aggrieved himself. He relied on hamsa vs. ibrahim, 1997 Co. cases 800(kerala), ruby leather exports vs. ",audio_18_25.mp3 +"k. Venu rep. Vandana chemicals etc., 1994 (1) crimes 820 (madras) and anil g. Shah vs. i.j. Chittranjan co., 1998 Crl. l.j. 3870 (gujarat) where",audio_18_26.mp3 +"the kerala, madras and gujarat high courts took the view that a complaint filed by the power of attorney of a payee or holder in",audio_18_27.mp3 +"due course of a dishonoured cheque under S. 138 of the act, is maintainable. He further contended that since in t. C. Mathai vs. district",audio_18_28.mp3 +"and sessions judge, thiruvananthapuram, kerala, it is held that an accused, after obtaining permission from court, can appear through a power of attorney, there can",audio_18_29.mp3 +be no impediment for the payee or the holder in due course of a dishonoured cheque filing the complaint under S. 138 of the act,audio_18_30.mp3 +through his power of attorney. 6. The learned public prosecutor supported the view that the payee or holder in due course of a dishonoured cheque,audio_18_31.mp3 +"can file a complaint through his power of attorney. 7. The contention of sri y.v. Ravi prasad, learned counsel for the petitioner, is that since",audio_18_32.mp3 +"the provisions of a penal statute have to be construed strictly, he, relying on the observations in lachmi narain vs. UOI , reading- ""if",audio_18_33.mp3 +"the provision is couched in prohibitive or negative language, it can rarely be directory; the use of peremptory language in a negative form is per",audio_18_34.mp3 +"se indicative of the intent that the provision is to be mandatory."" contended that since S. 142 of the act begins with a non-obstante Cl. ,",audio_18_35.mp3 +"it is clear that the said provision is mandatory. Placing strong reliance on a.k. Roy vs. state or punjab, , unique butyle tube industries (p)",audio_18_36.mp3 +"ltd. vs. u.p. Financial Corp. , , asstt. Commr. vs. velliappa textiles ltd., , padma sundara rao vs. state of t.n., 2002 (2) scale 580 he",audio_18_37.mp3 +"contended that in view of casus omissus rule, question of adding any words to S. 142 of the act, for interpreting that S. to mean",audio_18_38.mp3 +that their power of attorney also can file a complaint on their behalf cannot be resorted to. It is his contention that since as per,audio_18_39.mp3 +"S. 200 Cr.P.C. examination of the complainant in a Pvt. complaint is mandatory, and since 'complainant' does not mean the 'power of",audio_18_40.mp3 +attorney of the complainant' it is clear that the legislative intent that the complaint should be presented only by the payee or the holder in,audio_18_41.mp3 +"due course of a dishonoured cheque, but not through the power of attorney, is clear and unambiguous. He placed strong reliance on rbf nidhi Ltd. ",audio_18_42.mp3 +"and anr. vs. state of a.p., 2003 (1) alt (crl.) 198 = 2003 (1) an.w.r. 323 = 2003 (1) ald (crl.) 152 (a.p.) where one",audio_18_43.mp3 +"among us (ch.s.r.k. Prasad, j.) held that cognizance of a complaint under S. 138 of the act cannot be taken unless it is signed by",audio_18_44.mp3 +"the payee, and he is examined under S. 200 Cr.P.C. k. Ramachandra rao and ors. vs. state of a.p. Rep. By public",audio_18_45.mp3 +"prosecutor ... On 27 december, 2004",audio_18_46.mp3 +"60 of the evidence act, 1872, oral evidence must be direct and since the power of attorney cannot have personal knowledge of the facts, as",audio_18_47.mp3 +"his evidence would be in the nature of hearsay evidence, question of initiation of proceedings through a power of attorney does not arise. Relying on",audio_18_48.mp3 +"a.k. Gupta vs. lloyds steel industries ltd., 2002 (2) alt (crl.) 321 (a.p.) it is contended that the complaint has to be signed by the",audio_18_49.mp3 +payee or the holder in due course of a dishonoured cheque only but not by his power of attorney. The learned counsel for the complainants,audio_18_50.mp3 +"adopted the contentions of sri bali reddy, learned Sr. counsel. 9. In view of the ratio in unique butyle tube industries (p) ltd. Cas. (11",audio_18_51.mp3 +"supra), velliappa textiles ltd. Cas. (12 supra) and padma sundara rao Cas. (13 supra) relied on by the learned counsel for the petitioner, there can",audio_18_52.mp3 +"be no two opinions about the fact that the penal law should be strictly construed, and question of the court adding or deleting words in",audio_18_53.mp3 +"a penal statute while interpreting the S. does not arise. But those decisions are of no help to decide the question referred to this bench,",audio_18_54.mp3 +because the complaint in fact is filed by the payee (or the holder in due course) of the dishonoured cheque but was signed on his,audio_18_55.mp3 +behalf and was presented into court by his power of attorney. As per the law of agency any act done by an agent for and,audio_18_56.mp3 +on behalf of his principal would be deemed to be an act done by the principal himself and since in ravula subba rao Cas. (2,audio_18_57.mp3 +"supra) it is held that only in three circumstances a person cannot be permitted to be represented by an agent. So, the important point to",audio_18_58.mp3 +be considered in this Cas. is whether S. 142 forbids or prohibits a power of attorney of a payee or the holder in due course,audio_18_59.mp3 +of a dishonoured cheque instituting a complaint on behalf of his principal. If we strictly apply the principle enunciated in the above decisions and apply,audio_18_60.mp3 +"the observation in para-7 at page 608 of ravula subba rao Cas. (2 supra) reading- ""......unless the statute itself enacts otherwise an Appl. which a",audio_18_61.mp3 +"partner has to sign would be in order and valid if it is signed by his authorized agent."" since S. 142 of the act does",audio_18_62.mp3 +"not state that the payee or the holder in due course of a dishonoured cheque should 'personally' file the complaint, the complaint under S. 138",audio_18_63.mp3 +"of the act can be presented through/by power of attorney agent of a payee or holder in due course of a dishonoured cheque, on their",audio_18_64.mp3 +"behalf. 10. For understanding the language employed in S. 142 of the act, S. 2(d), 190 and 200 Cr.P.C. also have to",audio_18_65.mp3 +"be looked into. They read as follows. S. 142 of the act reads: ""notwithstanding anything contained in the Cr.P.C. , 1973,-- (a) no",audio_18_66.mp3 +"court shall take cognizance of any offence punishable under S. 138 except upon a complaint, in writing, made by the payee or, as the Cas. ",audio_18_67.mp3 +"may be, the holder in due course of the cheque;k. Ramachandra rao and ors. vs. state of a.p. Rep. By public prosecutor ... On 27",audio_18_68.mp3 +"december, 2004",audio_18_69.mp3 +Cl. (c) of the proviso to S. 138; (c) no court inferior to that of a MM or a judicial magistrate of the first,audio_18_70.mp3 +"class shall try any offence punishable under S. 138."" S. 2(d) of Cr.P.C. , which defines a complaint reads: ""any allegation made",audio_18_71.mp3 +"orally or in writing to a magistrate, with a view to his taking action under this code, that some person, whether known or unknown, has",audio_18_72.mp3 +"committed an offence, but does not include a police report. Explanation .-a report made by a police officer in a Cas. which discloses, after investigation,",audio_18_73.mp3 +"the commission of a non-cognizable offence shall be deemed to be a complaint."" S. 190 of Cr.P.C. reads: ""(1) subject to the",audio_18_74.mp3 +"provisions of this chapter, any magistrate of the first class, and any magistrate of the second class especially empowered in this behalf under sub-S. (2),",audio_18_75.mp3 +may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts;,audio_18_76.mp3 +"(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) the",audio_18_77.mp3 +chief judicial magistrate may empower any magistrate of the second class to take cognizance under sub-S. (1) of such offences as are within his competence,audio_18_78.mp3 +"to inquire into or try. S. 200, Cr.P.C. reads: examination of complainant.- a magistrate taking cognizance of an offence on complaint shall",audio_18_79.mp3 +"examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be",audio_18_80.mp3 +"signed by the complainant and the witnesses, and also by the magistrate : provided that, when the complaint is made in writing, the magistrate need",audio_18_81.mp3 +"not examine the complainant and the witnesses --k. Ramachandra rao and ors. vs. state of a.p. Rep. By public prosecutor ... On 27 december, 2004",audio_18_82.mp3 +Or a court has made the complaint; or (b) if the magistrate makes over the Cas. for inquiry or trial to Anr. magistrate under S. ,audio_18_83.mp3 +"192 : provided further that if the magistrate makes over the Cas. to Anr. magistrate under S. 192 after examining the complainant and the witnesses,",audio_18_84.mp3 +the latter magistrate need not re-examine them. From S. 2(d) and S. 190 of Cr.P.C. it is clear that a 'complaint' to,audio_18_85.mp3 +the magistrate need not necessarily be in writing. In other words it can be oral also. Here it should be remembered that though victim of,audio_18_86.mp3 +"a crime may be an individual or individuals, any crime is treated as an offence against the society, and so in matters relating to reporting",audio_18_87.mp3 +"of crimes, normally, question of locus standi does not arise. In fact, in respect of certain offences, in view of S. 39 code of Crl. ",audio_18_88.mp3 +"procedure , persons who have knowledge of either commission of, or the intention to commit the offences enumerated therein, have a duty to give information",audio_18_89.mp3 +"either to the police or to the magistrate about the same. Otherwise, they would be committing an offence under S. 202 ipc and significantly S. ",audio_18_90.mp3 +39 Cr.P.C. casts the burden to prove his innocence on the accused. In respect of offences not enumerated in S. 39 code,audio_18_91.mp3 +"of Crl. procedure also, person not aggrieved by those offences can give a report to police or magistrate, of-course subject to the limitations or exceptions",audio_18_92.mp3 +prescribed in the Cr.P.C. especially Ss. 195 to 199 Cr.P.C. since issuance of a cheque by a person without,audio_18_93.mp3 +"adequate funds in his account is made an offence under S. 138 of the act, had S. 142 of the act not be there any",audio_18_94.mp3 +"body could make a complaint about the said offence. Obviously, with a view to see that none else except the payee or the holder in",audio_18_95.mp3 +"due course of the bounced cheque should present a complaint in writing for an offence under S. 138 of the act, S. 142 of the",audio_18_96.mp3 +"act seems to have been Inc. . In short, the intendment of S. 142 of the act is that a person aggrieved only should file a",audio_18_97.mp3 +"written complaint for the offence under S. 138 of the act. 11. 'payee' is defined in S. 7 of the act as: ""the person named",audio_18_98.mp3 +"in the instrument, to whom or to whose order the money is by the instrument directed to be paid, is called the 'payee'."" and 'holder",audio_18_99.mp3 +"in due course' is defined in S. 9 of the act as: ""holder in due course means any person who for consideration became the possessor",audio_18_100.mp3 +"of a promissory note, bill of exchange or cheque if payable to bearer, or the payee or indorsee thereof, if payable to order, before the",audio_18_101.mp3 +"amount mentioned in it became payable, and without having sufficient cause to believe that any defect existed in thek. Ramachandra rao and ors. vs. state",audio_18_102.mp3 +"of a.p. Rep. By public prosecutor ... On 27 december, 2004",audio_18_103.mp3 +From the definitions of 'payee' and 'holder in due course' it is clear that the right to encash the cheque is not 'personal' in character,audio_18_104.mp3 +"visa-vis the drawer of the cheque. This assumes importance because, if the act to be performed is not 'personal in character', the person who has",audio_18_105.mp3 +"to perform the act can do it by delegation i.e. Can get it done by his agent, in view of S. 183 of the contract",audio_18_106.mp3 +"act r/w S. 2 of powers of attorney act, 1882. Here it should be stated that even in cases relating to offences under Ss. ",audio_18_107.mp3 +"497 and 498 ipc, which can be termed as offences 'personal in character' with reference to the husband of the adulteress, S. 198 code of",audio_18_108.mp3 +"Crl. procedure , which mandates that a husband only shall be deemed to be aggrieved by the offences under that S. and permits him only",audio_18_109.mp3 +"to make the complaint, makes an exception and lays down that in the absence of the husband, the person who had the care of the",audio_18_110.mp3 +"woman on his behalf, at the time when the offence was committed can, with the leave of the court, make the complaint. Therefore, it is",audio_18_111.mp3 +"clear that a complaint in a Crl. Cas. need not necessarily be filed by a 'person aggrieved by the offence', unless the statute says so.",audio_18_112.mp3 +"12. Here it is pertinent to keep in view that the act is amended by the negotiable instruments (amendment and miscellaneous provisions) act, 2002, as",audio_18_113.mp3 +per which the court is empowered to try the offences under S. 138 of the act summarily and Ss. 143 to 147 are introduced into,audio_18_114.mp3 +"the act. S. 145 of the act reads: ""(1) notwithstanding anything contained in the Cr.P.C. , 1973, (2 of 1974), the evidence of",audio_18_115.mp3 +"the complainant may be given by him on Aff. and may, subject to all just exceptions be read in evidence in any enquiry, trial or",audio_18_116.mp3 +"other proceeding under the said code. (2) the court may, if it thinks fit, and shall, on the Appl. of the prosecution or the accused,",audio_18_117.mp3 +"summon and examine any person giving evidence on Aff. as to the facts contained the rein."" S. 146 of the act reads: ""the court shall,",audio_18_118.mp3 +"in respect of every proceeding under this chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has",audio_18_119.mp3 +"been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved."" para-4 (iv) of the statement of objects and",audio_18_120.mp3 +"reasons to the negotiable instruments (amendment and miscellaneous provisions) act, 2002, reads: ""prescribe procedure for dispensing with preliminary evidence of the complainant.""k. Ramachandra rao and",audio_18_121.mp3 +"ors. vs. state of a.p. Rep. By public prosecutor ... On 27 december, 2004",audio_18_122.mp3 +"S. 138 of the act is simplified. 13. In bhaskar industries ltd. vs. bhiwani denim & apparels ltd. And ors., 2001 (6) supreme 339 the",audio_18_123.mp3 +"apex court held that a magistrate in a summons Cas. , can dispense with the personal attendance of an accused either throughout or at any particular",audio_18_124.mp3 +"stage of the proceedings, after taking an undertaking from him that he would not dispute his identity and that the counsel on his behalf would",audio_18_125.mp3 +"be present in court and that he would have no objection for taking evidence in his absence. So, it is clear that the court can",audio_18_126.mp3 +"dispense with the personal attendance of an accused, in cases filed under S. 138 of the act, in appropriate cases. In view of the proviso",audio_18_127.mp3 +"to sub-S. (1) of S. 313 Cr.P.C. , court can dispense with the examination of the accused under S. 313 code of",audio_18_128.mp3 +"Crl. procedure in a summons Cas. , when it dispensed with the personal appearance of the accused also. So, it is clear that in appropriate cases",audio_18_129.mp3 +"the court can permit the accused to be represented by an Adv. i.e. His agent. 14. ""complainant"" is not defined either in the code of",audio_18_130.mp3 +"Crl. procedure or in the general clauses act. Therefore, for the purpose of S. 200 Cr.P.C. 'complainant' should be taken to mean",audio_18_131.mp3 +a person who presents the complaint to the court or who makes the complaint to the court. That that should be so would be clear,audio_18_132.mp3 +"from the fact that if a Co. or other juristic person gives the complaint, it cannot be examined. Somebody on its behalf who can speak",audio_18_133.mp3 +about the facts of the Cas. would be examined when he presents the complaint on behalf of a juristic person. The same analogy applies to,audio_18_134.mp3 +"a power of attorney also. If the complainant himself is able to come to court and present the complaint in person, why should be or",audio_18_135.mp3 +"where is the need or necessity for him to file the complaint through his power of attorney? in fact, in nirmaljit singh hoon vs. state",audio_18_136.mp3 +"of west bengal, it is held that the object of examination of the complainant under S. 200 Cr.P.C. is to ascertain if",audio_18_137.mp3 +"there is prima facie Cas. and sufficient grounds for proceeding against the accused. So, the power of attorney who presented the complaint on behalf of",audio_18_138.mp3 +the 'payee' or the 'holder in due course' of a dishonoured cheque can be examined on behalf of the complainant to find out if there,audio_18_139.mp3 +is prima facie Cas. against the accused. In view of S. 139 r/w 146 of the act for finding out prima facie Cas. against,audio_18_140.mp3 +"the accused, the only other requirement would be about the issuance of statutory notice under S. 138(b) of the act to the accused, which also",audio_18_141.mp3 +"would be evidenced by documents. In view of the above, S. 60 of evidence act is of no help in deciding the point for consideration.",audio_18_142.mp3 +"Similarly, a.k. Gupta Cas. (15 supra) has no relevance for deciding this point. 15. A.k. Roy Cas. (10 supra) relied on by sri y.v. Ravi",audio_18_143.mp3 +prasad was in fact considered in extenso in m/s. Ruby leather exports Cas. (6 supra) and it was held that that decision has no relevance,audio_18_144.mp3 +for deciding the question whether the power of attorney of a payee or holder in due course of a dishonoured cheque can file the complaint,audio_18_145.mp3 +under S. 138 of the act and held that a power of attorney of a payee or holder in due course of a dishonoured cheque,audio_18_146.mp3 +can file a complaint under S. 138 of the act. We are in complete agreement with the view taken in m/s. Ruby leather exports Cas. ,audio_18_147.mp3 +"(6 supra), and the decisions of other high courts in hamsa Cas. (5 supra) and anil g. Shah Cas. (7 supra).k. Ramachandra rao and ors.",audio_18_148.mp3 +"vs. state of a.p. Rep. By public prosecutor ... On 27 december, 2004",audio_18_149.mp3 +"Attorney of a person aggrieved, tantamounts to filing of the complaint by the person aggrieved. For that reason, and since the right accrued to the",audio_18_150.mp3 +"payee or the holder in due course of a disohonoured cheque does not fall within the three exceptions to the rule qui facit per alium,",audio_18_151.mp3 +"facit per se recognized by S. 183 of the contract act i.e. Since the act to be performed (i) is not personal in its character,",audio_18_152.mp3 +"or (ii) is not annexed to any public office, and (iii) does not involve any fiduciary obligations, we hold that the power of attorney of",audio_18_153.mp3 +a payee or a holder in due course of a dishonoured cheque can file a complaint for an offence under S. 138 of the act,audio_18_154.mp3 +"after obtaining permission from the court, either before or after filing of the complaint. The reference is answered accordingly. 17. In view thereof, the decision",audio_18_155.mp3 +in s.p. Sampathy Cas. (1 supra) stands overruled. 18. Post the Crl. petitions below the concerned court for disposal according to law.k. Ramachandra rao and,audio_18_156.mp3 +"ors. vs. state of a.p. Rep. By public prosecutor ... On 27 december, 2004",audio_18_157.mp3 +"Harish solanki vs. . Poonam page 1 of 15 on 17 august, 2022 in the court of shri harshal negi, mm−05 (ni act), south−west district,",audio_19_1.mp3 +"dwarka courts new delhi cc no.8913/2018 cnr no.dlsw02−011386−2018 harish solanki s/o sh. Vijay singh solanki r/o wz−49c, palam village new delhi - 110045 ...complainant vs. ",audio_19_2.mp3 +"smt. Poonam w/o sh. Mahavir singh r/o wz−240, palam village, new delhi−110045 ...accused offence complained of : u/s 138, ni act, 1881 date on which",audio_19_3.mp3 +the complaint : 07.03.2018 was instituted plea of the accused : pleaded not guilty date of pronouncement of judgment : 17.08.2022 judgment at the outset,audio_19_4.mp3 +it is imperative to set forth the facts which the complainant has stated in his complaint as well as the Aff. . The Cas. of the,audio_19_5.mp3 +complainant is that he advanced an amount of rs 2 lakhs to the accused. That to discharge the financial liability the accused issued cheque bearing,audio_19_6.mp3 +"no 195463 dated 02.12.2018 of rs 2,00,000/€ drawn on state bank of india, palam extension to the complainant with an assurance of its encashment. The",audio_19_7.mp3 +"complainant presented the cheques in his account which were returned with the remarks ""funds insufficient"" vide bank return memos dated 04.01.2018. Thereafter, complainant served a",audio_19_8.mp3 +"legal notice dated 02.02.2018 upon the accused through his counsel demanding the said amount. Despite service of aforesaid notice, neither any reply was sent nor",audio_19_9.mp3 +"was the money repaid by the accused. Thereafter, complainant has filed the present complaint Cas. material on record the accused entered appearance on 27.08.2018. Notice",audio_19_10.mp3 +under S. 251 crpc dated 17.12.2018 was framed accordingly to which the accused pleaded not guilty and claimed trial. In her notice under S. 251,audio_19_11.mp3 +crpc the accused stated that the signature on the cheque does not belong to her and she has not issued the cheque in question.harish solanki,audio_19_12.mp3 +"vs. . Poonam page 1 of 15 on 17 august, 2022",audio_19_13.mp3 +A. Original cheques in question ex cw 1/1; b. Original returning memo ex cw 1/2; c. Copy of legal notice ex cw 1/3; d. Original,audio_19_14.mp3 +postal receipts ex cw □ & ex cw1/5; the complainant adopted his pre summoning evidence as post summoning evidence on 25.03.2019. In his cross examination,audio_19_15.mp3 +"he stated that he is a boxing coach by profession and earn rs 20,000/€ to rs 30,000/€ per month. That he have no friendly relation",audio_19_16.mp3 +with the accused. He voluntarily stated that accused belongs to his village. He stated that he is married and have two children and are studying,audio_19_17.mp3 +in g d goenka school and are admitted to the said school in obc category and no fees is charged. That the amount advanced to,audio_19_18.mp3 +the accused was arranged from the pension of his father and from sale consideration received by selling the land belonging to his mother. That he,audio_19_19.mp3 +had withdrawn certain amount from the bank account of his mother. That the amount was advanced without any interest. That he have not advanced any,audio_19_20.mp3 +money to the accused prior to the transaction. That he do not remember the date when the accused approached him for loan. That he advanced,audio_19_21.mp3 +the loan amount to the accused for a period of one year. That the loan was advanced to the accused and her husband in januray,audio_19_22.mp3 +2017 at his residence and in the presence of his mother and grandmother. That the accused handed over the cheque in question in november or,audio_19_23.mp3 +december 2018 and also stated that the cheque was issued for the year 2018 but the cheuqe was handed over to him in november or,audio_19_24.mp3 +december 2017 at his residence. That the accused has not returned any amount towards the loan given. That the cheque was already filled. He denied,audio_19_25.mp3 +the suggestion that he did not give any loan to the accused. He denied the suggestion that the accused has not handed over the cheque,audio_19_26.mp3 +"to him. The complainant then closed his evidence on 25.03.2019. Thereafter, the statement of the accused under S. 313 crpc was recorded on 16.05.2019 and",audio_19_27.mp3 +all the incriminating evidences were put to her. In her statement the accused stated that she and her husband never approached the complainant for the,audio_19_28.mp3 +alleged loan. That she never issued the cheque in question to the complainant as she did not owe any liability towards the complainant and that,audio_19_29.mp3 +she did not sign the cheque. That she never got to know that the cheuqe in question got dishonoured when it was presented in bank,audio_19_30.mp3 +for the payment. That she have not received any legal notice. The accused opted to lead his defence evidence and examined herself as dw1 and,audio_19_31.mp3 +"bank witness sbi bank as dw 2.harish solanki vs. . Poonam page 1 of 15 on 17 august, 2022",audio_19_32.mp3 +Any loan from the complainant and she have never met him. That she has not issued the cheque in favor of the complainant and it,audio_19_33.mp3 +does not bear her signature. That she do not have any idea about the cheque being bounced. That she did not receive any legal notice,audio_19_34.mp3 +with respect to the bouncing of cheque in question. Dw 1 was cross examined on 01.04.2021 wherein she stated that she has been residing at,audio_19_35.mp3 +"the address i.e. Wz€240, palam village, new delhi for the last 16 years. She affirmed that apart from the above address she have not been",audio_19_36.mp3 +residing anywhere else since her marriage. That she came to know about the Cas. when she received summons of the court. That she received the,audio_19_37.mp3 +court summon on the above mentioned address. That she have not personally received the legal notice. That she do not know the complainant was residing,audio_19_38.mp3 +in her neighborhood area. She voluntarily stated that she came to know about it when she came to court. She affirmed that the account No. ,audio_19_39.mp3 +in the cheuqe in question belongs to her but she have not issued the said cheque. That she have not filed any complaint to her,audio_19_40.mp3 +bank after coming to know about the Cas. . She voluntarily stated that she closed the bank account. That she do not remember the month and,audio_19_41.mp3 +year when she closed her bank account. That she closed the bank account within 1 to 1 ‚ month after coming to know about the,audio_19_42.mp3 +cheuqe bounce Cas. . She stated that she do not know whether her husband had handed over the cheque in question to the complainant on her,audio_19_43.mp3 +behalf. That she do not have any knowledge whether she have filed any complaint in police and have sent any legal notice to the complainant,audio_19_44.mp3 +after coming to know that her cheque has been misused. That her husband is aware that a cheque bounce Cas. is pending against her. That,audio_19_45.mp3 +her husband has not asked to file a complaint before concerned authorities. She stated that she have not filed any police complaint regarding misplacing of,audio_19_46.mp3 +cheque book or any leaf of the cheque. She denied the suggestion that she have not filed any police complaint regarding misplacing of cheque because,audio_19_47.mp3 +she and her husband had handed over the cheque in question to the complainant. She further denied the suggestion that when the cheque was handed,audio_19_48.mp3 +over to the complainant the particulars of the cheque was already filled. She voluntarily stated that she have not issued any cheque. She also denied,audio_19_49.mp3 +the suggestion that in the year 2017 she and her husband sought a loan of rs 2 lakhs from the complainant. She also denied the,audio_19_50.mp3 +suggestion that since the signature on the cheque belongs to her the cheque was bounced for insufficient funds and not on the ground of signature,audio_19_51.mp3 +differ. She voluntarily stated that the signature in the cheuqe does not belong to her. She affirmed the address which is mentioned in the legal,audio_19_52.mp3 +"notice as her correct address.harish solanki vs. . Poonam page 1 of 15 on 17 august, 2022",audio_19_53.mp3 +Signature of the accused as per their bank records which was ex dw2/1 and also the account statement which is ex dw2/2. He further stated,audio_19_54.mp3 +that as per the records the account was closed on 05.05.2018. He also stated that the first thing which is looked is whether the account,audio_19_55.mp3 +"have sufficient funds. Evidences and documents on record perused carefully. Arguments heard. Law point before analyzing the material on record, it is imperative to set",audio_19_56.mp3 +forth the legal benchmark which governs the adjudication of cases under S. 138 ni act. A bare reading of S. 138 ni act reveals that,audio_19_57.mp3 +"in addition to the cheque being issued for the discharge, in whole or in part, of any debt or other liability; following are the ingredients",audio_19_58.mp3 +which constitute an offence:€ 1. That a person drew a cheque on an account maintained by him with the banker; 2. That such a cheque,audio_19_59.mp3 +when presented to the bank is returned by the bank unpaid; 3. That such a cheque was presented to the bank within a period of,audio_19_60.mp3 +six months from the date it was drawn or within the period of its validity whichever is earlier; 4. That the payee demanded in writing,audio_19_61.mp3 +from the drawer of the cheque the payment of the amount of money due under the cheque to payee; and 5. Such a notice of,audio_19_62.mp3 +payment is made within a period of 30 days from the date of the receipt of the information by the payee from the bank regarding,audio_19_63.mp3 +"the return of the cheque as unpaid. (para 26, n. Harihara krishnan vs. j. Thomas, (2018) 13 scc 663, referred to in himanshu vs. b.",audio_19_64.mp3 +"Shivamurthy (2019) 3 scc 797) S. 138 is to be r/w the presumption, being a rebuttable presumption, as contained in S. 139. S. 139",audio_19_65.mp3 +"provides that: ""presumption in favour of holder € it shall be presumed, unless the contrary is proved, that the holder of a cheque received the",audio_19_66.mp3 +"cheque of the nature referred to in S. 138 for the discharge, in whole or in part, of any debt or other liability."" thus, in",audio_19_67.mp3 +"cheque bouncing cases, the judicial scrutiny revolves around the satisfaction of ingredients enumerated under S. 138 ni act and if so, whether the accused was",audio_19_68.mp3 +able to rebut the statutory presumption contemplated by S. 139 ni act. S. 139 is an example of reverse onus Cl. which usually imposes an,audio_19_69.mp3 +"evidentiary burden and not a persuasive burden. In other words, evidence of a character, not to prove a fact affirmatively, but to lead evidence to",audio_19_70.mp3 +"show non€existence of a liability. Further the law is well settled that when an accused has to rebut the presumption under S. 139, the standard",audio_19_71.mp3 +"of proof of doing so is that of ""preponderance of probability"" (rangappa vs. sri mohan (2010) 11 scc 441). Once execution of cheque is admitted,",audio_19_72.mp3 +"it is a legal presumption underharish solanki vs. . Poonam page 1 of 15 on 17 august, 2022",audio_19_73.mp3 +Debt. Attention is also invited to S. 118(a) wherein a presumption of the cheque having been issued in discharge of a legally sustainable liability and,audio_19_74.mp3 +"drawn for good consideration, arises. S. 118 of the n.i act provides:€ ""presumptions as to negotiable instruments: until the contrary is proved, the following presumptions",audio_19_75.mp3 +"shall be made: (a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has",audio_19_76.mp3 +"been accepted, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;"" hence, it can be seen that from its very inception a",audio_19_77.mp3 +presumption that the cheque was issued in discharge of a debt or other liability subsists in favour of the complainant and onus rests upon the,audio_19_78.mp3 +"accused to rebut the existing presumption on the touchstone of preponderance of probability. Further, the accused in a trial under S. 138 has two options.",audio_19_79.mp3 +He can either show that consideration and debt did not exist or that under the particular circumstances of the Cas. the non€existence of consideration and,audio_19_80.mp3 +"debt is so probable that a prudent man ought to suppose that no consideration and debt existed(para 20, kumar exports vs. sharma carpets (2009) 2",audio_19_81.mp3 +"scc 513). Analysis & conclusion now, the law is also well settled that ""once the cheque relates to the account of the accused and he",audio_19_82.mp3 +"accepts and admits the signatures on the said cheque, then initial presumption as contemplated under S. 139 of the NI Act has to be",audio_19_83.mp3 +"raised by the court in favor of the complainant."" (rangappa vs. mohan, air 2010 SC 1898). Reference can also be made to k. Bhaskaran",audio_19_84.mp3 +"vs. . Sankaran vaidhyan balan 1999 (4) rcr (Crl. ) 309, wherein it has been held by the Hon'ble SC as under: ""as the signature",audio_19_85.mp3 +"in the cheque is admitted to be that of the accused, the presumption envisaged in S. 118 of the act can legally be inferred that",audio_19_86.mp3 +the cheque was made or drawn for consideration on the date which the cheque bears. S. 139 of the act enjoins on the court to,audio_19_87.mp3 +"presume that the holder of the cheque received it for the discharge of any debt or liability."" in this matter, the accused has consistently denied",audio_19_88.mp3 +"her signature. Therefore the presumption under S. 139 ni act does not get raised in favor of the complainant. In order to prove the Cas. ,",audio_19_89.mp3 +the complainant led his evidence by way of Aff. . The complainant examined himself as cw€1 by way of Aff. . Complainant in his evidence deposed that,audio_19_90.mp3 +he advanced an amount of rs 2 lakhs to the accused. That to discharge the financial liability the accused issued cheque bearing no 195463 dated,audio_19_91.mp3 +"02.12.2018 of rs 2,00,000/€ drawn on state bank of india, palam extension to the complainant with an assurance of its encashment. The complainantharish solanki vs. ",audio_19_92.mp3 +". Poonam page 1 of 15 on 17 august, 2022",audio_19_93.mp3 +"Vide bank return memos dated 04.01.2018. Thereafter, complainant served a legal notice dated 02.02.2018 upon the accused through his counsel demanding the said amount. On",audio_19_94.mp3 +the close scrutiny and appraisal of the cheque in question ex cw 1/ 1 which clearly transpires that the same had been issued for a,audio_19_95.mp3 +"sum total of rs 2,00,000/€ on dated 02.01.2018 drawn on sbi, palam extension as payment. The dishonor memo dated 04.01.2018 marked as ex cw 1/2",audio_19_96.mp3 +"further strengthen that the cheque was dishonored for the reason ""insufficient funds"". Legal notice ex.cw€ 1/3 further proves that the same was issued on 02.02.2018",audio_19_97.mp3 +"and dispatched vide postal receipt ex cw □ & ex cw1/5. Now, the accused has throughout the trial disputed the receipt of legal notice. However,",audio_19_98.mp3 +the address of the accused mentioned in the legal notice is the same address which has been given by the accused in her notice under,audio_19_99.mp3 +"S. 251 crpc, , statement under S. 313 crpc and also in his testimony as dw 1. Further, in her cross examination the accused categorically",audio_19_100.mp3 +"stated that she have been residing at wz=240, palam village, new delhi, which is also the address mentioned in the legal notice, for the last",audio_19_101.mp3 +16 years. In her cross examination the accused also affirmed that the address mentioned in the legal notice is her correct address. The Hon'ble supreme,audio_19_102.mp3 +"court in k bhaskaran vs. sankaran vaidhyan balan (1999) 7 scc 510 in para 18 observed thus: ""......'giving notice' in the context is not the",audio_19_103.mp3 +same as 'receipt of notice'. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process,audio_19_104.mp3 +"i.e. Giving, by sending the notice to the drawer at the correct address....."" further, in para 24 of the above said judgment the Hon'ble supreme",audio_19_105.mp3 +"court held that where the sender has dispatched the notice by post with correct address written on it, the principle Inc. in S. 27 of",audio_19_106.mp3 +general clauses act could profitably be imported in such a Cas. . It was further held that in this situation service of notice is deemed to,audio_19_107.mp3 +have been effected on the sendee. Law with respect to the delivery of legal notice by post and the presumption with respect to the same,audio_19_108.mp3 +has been succinctly put forth by the Hon'ble SC in c c alavi haji vs. palapetty muhammed (2007) 6 scc 555. Para 13 &,audio_19_109.mp3 +"14 of the judgment is worth mentioning as under: ""13. According to S. 114 of the act, r/w illustration (f) thereunder, when it appears",audio_19_110.mp3 +"to the court that the common course of business renders it probable that a thing would happen, the court may draw presumption that the thing",audio_19_111.mp3 +"would have happened, unless there are circumstances in a particular Cas. to show that the common course of business was not followed. Thus, S. 114",audio_19_112.mp3 +"enables the court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of",audio_19_113.mp3 +"natural events, human conductharish solanki vs. . Poonam page 1 of 15 on 17 august, 2022",audio_19_114.mp3 +"Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, S. ",audio_19_115.mp3 +"114 enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the",audio_19_116.mp3 +"addressee. But the presumption i.e. raised under S. 27 of the g.c. Act is a far stronger presumption. Further, while S. 114 of evidence",audio_19_117.mp3 +"act refers to a general presumption, S. 27 refers to a specific presumption 14. S. 27 gives rise to a presumption that service of notice",audio_19_118.mp3 +"has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice",audio_19_119.mp3 +"has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of",audio_19_120.mp3 +"the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice.",audio_19_121.mp3 +"Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the",audio_19_122.mp3 +"letter would have been delivered in the ordinary course of business thus, in view of the law as above said and the fact that the",audio_19_123.mp3 +"address mentioned in the legal notice being the same address given by the accused in her notice under S. 251 crpc, statement under S. 313",audio_19_124.mp3 +crpc as well as in her testimony as dw 1 and affirmation in her cross examination that the address mentioned in the legal notice is,audio_19_125.mp3 +"her correct address, the mandatory statutory legal notice has been duly served on the accused in the present Cas. . Thus, the factum of issuance and",audio_19_126.mp3 +receipt of mandatory statutory legal notice also stands proved based on the documentary evidence of legal notice. It has been proved that despite issuance of,audio_19_127.mp3 +"legal notice, the accused had failed to make the payment of the cheque amount. Further, the accused throughout the trial has consistently denied her signature",audio_19_128.mp3 +"on the cheque. Be it in her submissions under S. 251 crpc, her statement under S. 313 crpc or her own evidence as dw 1,",audio_19_129.mp3 +the accused has stated that the signature on the cheque are not hers. The accused has also brought the bank witness for bringing on record,audio_19_130.mp3 +"her specimen signature. However, this position of the accused loses its significance/relevance as the reason for dishonor of cheque is ""funds insufficient"" and not ""signature",audio_19_131.mp3 +"differ"". Furthermore, a bare perusal of the specimen signature and the signature on the cheque reflects a striking similarity in the signature. The bare denial",audio_19_132.mp3 +of signature on the cheque by the accused further does not inspire much confidence as the defence raised by the accused as well as submission,audio_19_133.mp3 +that has come forth in her cross examination does not create any dent in the Cas. of the complainant. The defence raised by the accused,audio_19_134.mp3 +"can be summarized as under: i. That she or her husband has never taken any amount from the complainant, ii. That she have not issued",audio_19_135.mp3 +"the cheque in question and it does not bear her signature, iii. That she do not have any idea about the cheque being bounced.harish solanki",audio_19_136.mp3 +"vs. . Poonam page 1 of 15 on 17 august, 2022",audio_19_137.mp3 +To explain or even suggest as to how the cheque in question came in possession of the complainant. Her entire defence inclusive of her testimony,audio_19_138.mp3 +is silent as the grave on the point as to how the cheque in question came into the possession of the complainant. It is not,audio_19_139.mp3 +the Cas. of the accused that the cheque was lost or misplaced. She was categorical in her cross examination also that she has not filed,audio_19_140.mp3 +"any police complaint regarding the misplacing of cheque book or any leaf of the cheques. Therefore, mere denial of signature, in light of the reason",audio_19_141.mp3 +"of dishonor not being ""signature differ"" and in the absence of any explanation on part of the accused as to how the cheque in question",audio_19_142.mp3 +"came into the possession of the complainant does not create a doubt in the Cas. of the complainant. Thus, in view of the oral and",audio_19_143.mp3 +"documentary evidence brought on record by the complainant, statement of the accused under S. 313 cr.p.c and defence raised by the accused, the accused has",audio_19_144.mp3 +failed to create a dent/doubt in the Cas. of the complainant and it is clear that the accused had committed an offence under S. 138,audio_19_145.mp3 +"of the NI Act . On the basis of the above said analysis and conclusions arrived, the accused viz. poonam w/o shri mahavir singh is",audio_19_146.mp3 +convicted for the commission of the offence punishable under S. 138 of the act. This judgment contains 15 pages. Every page of this judgment has,audio_19_147.mp3 +"been signed by me. Harshal negi announced in the open court negi date: 2022.08.17 on this day of 16th august, 2022 15:46:54 +0530 (harshal negi)",audio_19_148.mp3 +"mm(ni act)−05/south−west district dwarka courts/new delhiharish solanki vs. . Poonam page 1 of 15 on 17 august, 2022",audio_19_149.mp3 +"Sri t r sampathu vs. sri srinivasa on 25 february, 2022 author: rajendra badamikar bench: rajendra badamikar 1 in the HC of karnataka at",audio_20_1.mp3 +"bengaluru dated this the 25th day of february, 2022 before the hon'ble mr. J. rajendra badamikar Crl. appeal no.1649/2017 between: sri. T.r. Sampathu S/O ",audio_20_2.mp3 +"rajappa aged about 45 years r/o tirumalapura village kasaba hobli, holenarasipura taluk hassan district-573 201 ....appellant (by sri. Sumanth l. Bharadwaj, Adv. ) and: sri. Srinivasa",audio_20_3.mp3 +"S/O varadaih aged about 45 years mangalapura village kasaba hobli, holenarasipura taluk hassan-573 201 .... Respondent (by sri. K. Sriramulu m, Adv. for sri.",audio_20_4.mp3 +"B. Lethif, Adv. ) this Crl. appeal is filed under S. 378(4) of cr.p.c. Praying to set aside the judgment dated 01.09.2017 passed by the Civ. ",audio_20_5.mp3 +"judge and judicial magistrate first class, holenarasipura in 2 c.c.no.675/2013-acquitting the respondent/accused for the offence p/u/s 138 of n.i. Act.sri t r sampathu vs. sri",audio_20_6.mp3 +"srinivasa on 25 february, 2022",audio_20_7.mp3 +"Reserved for judgment on 16.02.2022, coming on for 'pronouncement judgment' this day, the court delivered the following: judgment though this appeal is listed for admission,",audio_20_8.mp3 +"with the consent of the learned counsels appearing on both sides, the same is taken up for final disposal. 2. The complainant/appellant has filed this",audio_20_9.mp3 +"appeal under S. 378(4) of Crl. procedure code, 1973 ('Cr.P.C. ' for short) challenging the judgment of acquittal dated 01.09.2017 passed by",audio_20_10.mp3 +"the Civ. judge and jmfc, holenarasipura ('trial court' for short) in c.c. No.675/2013, whereby the learned magistrate has acquitted accused/respondent herein for the offence 138",audio_20_11.mp3 +"of n.i. Act. 3. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial court.",audio_20_12.mp3 +"4. The brief factual matrix leading to the Cas. is that, the complainant and accused are acquainted with each other and the respondent borrowed loan",audio_20_13.mp3 +"of rs.3,00,000/- on 25.11.2013 for his legal necessities. It is the further Cas. of the complainant that, towards repayment of the said loan, the accused",audio_20_14.mp3 +"has issued a cheque dated 28.03.2013 drawn on post office, holenarasipura and when the complainant has presented the said cheque, it was returned with an",audio_20_15.mp3 +"endorsement 'insufficient funds'. Later on, the complainant has got issued a legal notice on 30.03.2013 demanding repayment of the loan amount and to the said",audio_20_16.mp3 +"notice, the accused has given an evasive reply. Hence, he lodged a complaint under S. 200 of Cr.P.C. alleging that, accused has",audio_20_17.mp3 +"committed an offence under S. 138 of the NI Act , 1881 ( 'n.i. Act' for short). 5. Learned magistrate after taking cognizance has recorded",audio_20_18.mp3 +the sworn statement of the complainant and issued process against the accused. The accused has appeared through his counsel and enlarged on bail. The accusation,audio_20_19.mp3 +was read-over and explained to accused and he pleaded not guilty and claimed to be tried. 6. The complainant was got examined himself as pw.1,audio_20_20.mp3 +"and placed reliance on five documents marked at ex.p1 to ex.p5. After conclusion of evidence of the prosecution, the statement of accused under S. 313",audio_20_21.mp3 +of Cr.P.C. was recorded to enable him to explain the incriminating evidence appearing against him. The Cas. of accused is of total,audio_20_22.mp3 +denial. He did not choose to lead any oral or documentary evidence in support of his defence. 7. After having heard the arguments and on,audio_20_23.mp3 +"perusing the records, the learned magistrate has come to a conclusion that, the complainant has failed to establish that accused has committed offence under S. ",audio_20_24.mp3 +138 of n.i. Act by issuing a cheque in respect of legally enforceable debt and thereby acquitted the accused/respondent herein. Being aggrieved by he judgment,audio_20_25.mp3 +"of acquittal, complainant has approached this court by filing this appeal.sri t r sampathu vs. sri srinivasa on 25 february, 2022",audio_20_26.mp3 +Records. 9. Learned counsel for the appellant would contend that the reasons assigned by the trial court for acquitting the accused are based on principles,audio_20_27.mp3 +"of law of equity and J. . He would further contend that the trial court has failed to note that, no rebuttal evidence is adduced by",audio_20_28.mp3 +"the accused and since signature on the cheque is admitted, the presumption ought to have been drawn in favour of the complainant and when presumption",audio_20_29.mp3 +"is not rebutted, the trial court ought to have convicted the accused. He would contend that, accused has not led any evidence to rebut the",audio_20_30.mp3 +presumption and the trial court has ignored these material aspects and hence he would contend that the judgment of acquittal is perverse and calls for,audio_20_31.mp3 +"interference by this court. Hence, he would seek for allowing the appeal by setting aside the impugned judgment of acquittal and sought for convicting the",audio_20_32.mp3 +"accused. 10. Per contra, the learned counsel for the respondent/accused would contend that the financial capacity of the complainant to advance rs.3,00,000/- itself is in",audio_20_33.mp3 +"dispute and the complainant has not produced any material document to show his financial status. Further, he would also contend that the postal intimation regarding",audio_20_34.mp3 +endorsement on cheque was not placed on record and on perusal of ex.p1 and endorsement at ex.p1(b) it is evident that the cheque was bounced,audio_20_35.mp3 +"on 19.02.2007. But, the postal seal was got obtained on 28.03.2013 and a false complaint came to be lodged. He would also contend that the",audio_20_36.mp3 +"endorsement at ex.p1(b) is again supported by the reply notice-ex.p5 and hence, he would contend that, presumption cannot be drawn in favour of the complainant",audio_20_37.mp3 +in view of the fact that his financial status itself is disputed. 11. Having heard the arguments of the learned counsels appearing on both sides,audio_20_38.mp3 +"and on perusing the records, it is the contention of the complainant that, on 25.01.2013 , the accused has availed loan of rs.3,00,000/- and for",audio_20_39.mp3 +"repayment of the said amount, he has issued ex.p1. It is further asserted that, when the said cheque was presented for encashment, it was returned",audio_20_40.mp3 +"on 28.03.2013. This is a specific Cas. made out by the complainant. The cross-examination reveals that, the accused has not denied his signature on the",audio_20_41.mp3 +"cheque. The disputed cheque is marked at ex.p1 and the cheque is also dated 28.03.2013. But, it is important to note here that, though there",audio_20_42.mp3 +"is a seal dated 28.03.2013 of the post office, but regarding bouncing of the cheque on 28.03.2013, no endorsement was issued by the postal Dept. .",audio_20_43.mp3 +"On the contrary, on perusal of endorsement at ex.p(1)(b), it is evident that the said cheque was bounced for 'insufficient funds' on 19.02.2007 itself. When",audio_20_44.mp3 +"the cheque is dated 28.03.2013, why it was bounced on 19.02.2007 itself is not at all forthcoming and it is for the complainant to explain",audio_20_45.mp3 +"these lacunas. The complainant could have produced an intimation of the post office regarding bouncing of the cheque. On the contrary, considering these aspects, the",audio_20_46.mp3 +"defence set-up by the accused in reply notice (ex.p5) appears to be more probable, in view of the fact that about five years back cheques",audio_20_47.mp3 +"were issued and they were being misused. 12. Further, all along, the complainant has contended that, he has advanced loan of rs.3,00,000/- to accused on",audio_20_48.mp3 +"25.01.2013. In cross-examination though he claimed that, he is an agriculturist and he possess three acres of land and from each acre, his annual income",audio_20_49.mp3 +"is rs.50,000/-, but, no piece of material is produced to show that he is possessing three acres of land and he is getting income from",audio_20_50.mp3 +"that land. Further, he admits that, it is the dry land and as such, earning annual income ofsri t r sampathu vs. sri srinivasa on",audio_20_51.mp3 +"25 february, 2022",audio_20_52.mp3 +"Is hard to accept the contention of the complainant that he has advanced rs.3,00,000/- without any document and he has also not placed any material",audio_20_53.mp3 +evidence to show his financial status. Even no document is produced to show that the cheque was bounced on 28.08.2013. The postal endorsement date at,audio_20_54.mp3 +"ex.p1(b) is 19.02.2007. In that event, the cheque ought to have been issued much earlier itself. The complainant has failed to establish existence of any",audio_20_55.mp3 +legally enforceable debt as on the date of issuance of cheque and material documents regarding dishonor of the cheque on a particular date is also,audio_20_56.mp3 +"not established. Under such circumstances, the ingredients of S. 138 of ni are not proved by the complainant. The learned magistrate has considered all these",audio_20_57.mp3 +"aspects and has appreciated the oral and documentary evidence in detail by analyzing them. Hence, it is evident that the judgment of acquittal does not",audio_20_58.mp3 +"call for any interference by this court, as it does not suffer from any illegality or perversity. Under such circumstances, the appeal is devoid of",audio_20_59.mp3 +"any merits and needs to be rejected. Accordingly, i proceed to pass the following:- order the appeal is dismissed. The judgment of acquittal dated 01.09.2017",audio_20_60.mp3 +"passed by the trial court viz., the Civ. jmfc, holenarasipura, in cc No. 675/2013, stands confirmed. Sd/- judge kgr*sri t r sampathu vs. sri srinivasa",audio_20_61.mp3 +"on 25 february, 2022",audio_20_62.mp3 +"Dr. Mueen ansari vs. dr. Latif khan on 24 august, 2023 author: vishal dhagat bench: vishal dhagat 1 in the HC of madhya pradesh",audio_21_1.mp3 +at jabalpur mcrc No. 36244 of 2023 (dr. Mueen ansari vs dr. Latif khan) dated : 24-08-2023 shri s.k. Tiwari - Adv. for the applicant.,audio_21_2.mp3 +Petitioner has filed ia no.19534/2023 for grant of stay over proceedings in complaint Cas. no.2051/2014. Learned counsel appearing for the petitioner submitted that earlier petitioner,audio_21_3.mp3 +"was prosecuted in cheque bounce Cas. in respect to cheque no.861893 issued on 02.12.2013 of dena bank. In said Cas. , petitioner was acquitted vide judgment",audio_21_4.mp3 +"dated 09.09.2016. Thereafter, second complaint Cas. has been filed on basis of said cheque. Petitioner has protection of double jeopardy. In view of same, stay",audio_21_5.mp3 +"may be granted over further proceeding. Issue notice to the respondent on payment of process fee within seven days, returnable in four weeks. Considering aforesaid",audio_21_6.mp3 +"submission, it is ordered that further proceedings in complaint Cas. no.2051/2014 pending before judicial magistrate first class, jabalpur (mp) shall remain stayed till the next",audio_21_7.mp3 +"date of hearing. C.c. As per rules. (vishal dhagat) judge shabana date: 2023.08.26 11:38:42 +05'30'dr. Mueen ansari vs. dr. Latif khan on 24 august, 2023",audio_21_8.mp3 +"M.kempaiah vs. g.t.muralidhar on 4 december, 2020 in the court of the xxiii addl.chief metropoliton magistrate, nrupathunga road, bengaluru city dated this the 4th day",audio_22_1.mp3 +"of december - 2020 present: sri. Shridhara.m, b.a., ll.m., xxiii addl.c.m.m., bengaluru city. C.c.no.21084/2017 judgment under S. 355 of Cr.P.C. complainant :",audio_22_2.mp3 +"m.kempaiah, s/o.mayanna, aged about 49 years, r/at no.22, 5th main road, kandayana badavane, annapurneshwari nagar, nagarabhavi 2nd stage, bengaluru-91. (rep. By sri.d.m.kumar, adv.) v/s accused",audio_22_3.mp3 +": g.t.muralidhar, s/o.thirumalagiriyappa, r/at. No.4, kalabyraveshwara nilaya, behind aroghya badavane, 3b- 1st main road, 11th cross, srigandadakaval, bengaluru-91. (rep.by sri.d.raghu prakash babu, adv.) offence complained",audio_22_4.mp3 +of : u/S. 138 of NI Act . Plead of the accused : not guilty. Final order : accused is acquitted. Date of order :,audio_22_5.mp3 +"04.12.2020. (shridhara.m) xxiii addl.cmm., bengaluru. Judgment 2 c.c.no.21084/2017 judgment the complainant has presented the instant complaint against the accused on 19.07.2017 under S. 200 of",audio_22_6.mp3 +"Cr.P.C. for the offence punishable under S. 138 of NI Act , for dishonour of cheque of rs.3 lakhs.m.kempaiah vs. g.t.muralidhar on",audio_22_7.mp3 +"4 december, 2020",audio_22_8.mp3 +The accused was friend of complainant and he was tenant under the complainant. The accused was doing flower decoration in kalyana mantapa. The accused for,audio_22_9.mp3 +"the purpose of purchasing flower decoration materials and develop his flower decoration business, during the 1st week of june, 2016 approached the complainant and seeking",audio_22_10.mp3 +"for hand loan of rs.6 lakhs. The complainant on trusted the accused agreed to help him. Accordingly, on 21.06.2016 the complainant gave rs.6 lakhs to",audio_22_11.mp3 +"the accused. The accused on the said day itself, got executed loan agreement to the complainant and undertakes to repay the same within six months.",audio_22_12.mp3 +"The complainant has averred that, after lapse of agreed period of 6 months, the complainant went to the accused and requested and demanded for repayment",audio_22_13.mp3 +"of the said loan amount of rs.6 lakhs, the accused told him that, since rs.500/- and judgment 3 c.c.no.21084/2017 rs.1,000/- denomination notes were not circulated",audio_22_14.mp3 +"on account of demonetization and there were ups and down in his business, therefore, took time and assured to repay today or tomorrow. Finally, on",audio_22_15.mp3 +"01.05.2017, the accused gave cheque bearing no.024458 dated:08.05.2017 for sum of rs.3 lakhs and Anr. cheque bearing no.628262 dated:03.06.2017 for sum of rs.3 lakhs, both",audio_22_16.mp3 +"the cheques are drawn on axis bank and karnataka bank ltd., of rajarajeshwarinagar branch, bengaluru and handed over the said 2 cheques and assured the",audio_22_17.mp3 +"complainant to present them on the date made mentioned therein. The complainant has further alleged that, as per the instructions of accused, when the complainant",audio_22_18.mp3 +"has presented the cheque bearing no.628262 dated:03.06.2017 for encashment through his banker viz., the then state bank of mysore, cotton pet branch, bengaluru. After seeing",audio_22_19.mp3 +"the bank endorsement dated:05.06.2017, the said cheque came to be dishonoured for the reasons ""funds insufficient"". Thereafter, he try to brought the said fact to",audio_22_20.mp3 +"the notice of accused and whenever he try to contact the accused, the accused avoided the complainant. Finally, on 12.06.2017 the complainant gave cheque bounce",audio_22_21.mp3 +"notice demanding the accused to pay the amount covered under the cheque. The accused after receipt of legal notice, caused judgment 4 c.c.no.21084/2017 untenable reply,",audio_22_22.mp3 +"but not paid the amount covered under the cheque. Thereby, he committed the offence punishable under S. 138 of NI Act . Hence, filed the",audio_22_23.mp3 +"present complaint. 3. After receipt of the Pvt. complaint, my predecessor in office took the cognizance and got registered the pcr and recorded the sworn",audio_22_24.mp3 +"statement. Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process. 4. In response to the summons, the",audio_22_25.mp3 +"accused appeared through his counsel and obtained bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to",audio_22_26.mp3 +"him, wherein, he denied the same and claimed to have the defence.m.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_22_27.mp3 +Exs.p1 to p5. The pw.1 is also choosen to examine one witness to the said transaction by name Mr. p.kannan as pw.2. The pw.1 and,audio_22_28.mp3 +"pw.2 were subjected for cross-examination by the Adv. for the accused. In the cross-examination of pw.1, accused counsel got confronted three documents and same are",audio_22_29.mp3 +"marked as exs.d1 to d3. Judgment 5 c.c.no.21084/2017 6. Thereafter, incriminating evidence made against the accused was recorded under S. 313 of cr.p.c, wherein the",audio_22_30.mp3 +"accused denied the same and answer given by him was recorded. In support of the defence, the accused himself was examined as dw.1 and got",audio_22_31.mp3 +marked exs.d4 and d5 and also subjected for cross-examination by the Adv. for the complainant. 7. Accused counsel has addressed his side arguments through video,audio_22_32.mp3 +"conference. Complainant counsel has not addressed his side arguments. Inspite of given liberty to file his written arguments, but complainant counsel has not submitted his",audio_22_33.mp3 +"written arguments. 8. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:",audio_22_34.mp3 +"1) whether the complainant proves beyond the reasonable doubt that, he paid sum of rs.6,00,000/- on 21.06.2016 as hand loan to the accused, and in",audio_22_35.mp3 +"turn, for partial discharge of legal recoverable debt, the accused issued the ex.p1 cheque bearing no.628262, dated:03.06.2017 for sum of rs.3 lakhs drawn on karnataka",audio_22_36.mp3 +"bank ltd., rajarajeshwarinagar branch, bengaluru? 2) whether the complainant proves the guilt of the accused for the offence punishable under S. 138 of negotiable instruments",audio_22_37.mp3 +"act? 3) what order? judgment 6 c.c.no.21084/2017 9. On appreciation of materials available on record, my findings on the above points are as under: point",audio_22_38.mp3 +"no.1 : in the negative point no.2 : in the negative point no.3 : as per final order, for the following: reasons : undisputed facts:-m.kempaiah",audio_22_39.mp3 +"vs. g.t.muralidhar on 4 december, 2020",audio_22_40.mp3 +"That, as per the rental agreement produced at ex.d1, the accused was tenant under the complainant is not in dispute. The fact that, as per",audio_22_41.mp3 +"ex.d1 at the time of accused was inducted as a tenant, he made security deposit of rs.1,50,000/- returnable after lapse of 11 months is not",audio_22_42.mp3 +"in dispute. The fact that, the accused got vacated the said rented premises of the complainant is not in dispute. The fact that, the complainant",audio_22_43.mp3 +"was entered into service provider agreement as found in ex.d3 with jas e techno services pvt. Ltd., dated:21.12.2015 is not in dispute. The fact that,",audio_22_44.mp3 +"the said document, the accused was also signatory as per ex.d3(b) is not in dispute. The fact that, as per ex.d3 the judgment 7 c.c.no.21084/2017",audio_22_45.mp3 +complainant needs to supply electrical goods for carrying out the distribution process as per guidelines of Govt. of india is not in dispute. The fact,audio_22_46.mp3 +"that, the terms and conditions made mentioned in ex.d3 is not in dispute. The fact that, questioned cheque at ex.p1 and signature found therein belongs",audio_22_47.mp3 +"to the accused is not in dispute. The fact that, the bouncing of cheque and cheque as per memo at ex.p2 is not in dispute.",audio_22_48.mp3 +"The fact that, exchange of legal notices between complainant and accused as found in exs.p3 and p5 are not in dispute. 11. Point nos.1 and",audio_22_49.mp3 +"2: since both the points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts. The",audio_22_50.mp3 +"pw.1 to prove his Cas. choosen to examined himself and filed Aff. by reiterating the complaint averments in toto, and produced the documents at exs.p1",audio_22_51.mp3 +"to p5, they are: a) ex.p1 is the cheque bearing no.628262 issued by the accused for sum of rs.3 lakhs dated:03.06.2017, drawn on karnataka bank",audio_22_52.mp3 +"ltd., rajarajeshwarinagar branch, bengaluru. B) ex.p1(a) is the alleged signature of accused. C) ex.p2 is the bank memo dated:05.06.2017. D) ex.p3 is the legal notice",audio_22_53.mp3 +dated:12.06.2017. Judgment 8 c.c.no.21084/2017 e) ex.p4 is the postal acknowledgment card. F) ex.p5 is the reply notice dated:23.06.2017 issued by accused through his counsel to,audio_22_54.mp3 +"the complainant counsel. 12. That apart, to prove his Cas. , the complainant got choosen to examined one Mr. sri.p.kannan as witness and who filed Aff. ",audio_22_55.mp3 +"evidence and examined as pw.2 on oath. He in his Aff. evidence has contended that, he knew the complainant and accused. On 21.06.2016 the accused",audio_22_56.mp3 +"borrowedm.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_22_57.mp3 +Agreement in favour of the complainant in his presence. The pw.2 has affixed his signature as a witness to the said loan agreement. He also,audio_22_58.mp3 +"stated that, the accused undertakes to repay the said loan within 6 months. The pw.1 and pw.2 were subjected to the cross-examination by the Adv. ",audio_22_59.mp3 +"for the accused. 13. After detailed cross-examination done by the Adv. for accused to the pw.1 and pw.2, the complainant got closed his side. Thereafter,",audio_22_60.mp3 +whatever the incriminating evidence made against the accused was read over and explained to him as required under S. 313 of Cr.P.C. ,audio_22_61.mp3 +", wherein, the accused denied the same and gave his statement that, he not borrowed judgment 9 c.c.no.21084/2017 loan from the complainant nor issued the",audio_22_62.mp3 +"cheque to him and he is having his own defence evidence. 14. In order to prove the defence of the accused, the accused himself choosen",audio_22_63.mp3 +"to entered into witness box and examined as dw.1 on oath and filed Aff. evidence. 15. No doubt, in this Cas. , the accused was entered",audio_22_64.mp3 +into witness box and filed Aff. evidence. The filing of Aff. by the accused in lieu of his probable defence is not opposed by the,audio_22_65.mp3 +"complainant. Mere because of he not sought permission under Ss. 315 and 316 of Cr.P.C. , it does not a ground to",audio_22_66.mp3 +out-rate reject the probable defence set out by the accused. Mere because S. 145(1) of NI Act does not expressly permit the accused to,audio_22_67.mp3 +"filed Aff. evidence, it does not mean that, the court cannot allow the accused to give his evidence on Aff. . By applying the same analogy,",audio_22_68.mp3 +"unless there is just and reasonable ground to refuse such permission, there is no express bar on accused to give evidence on Aff. either in",audio_22_69.mp3 +"the accused or in the court. In a decision reported in 2006 scc online, bombay 703, in a Cas. between peacock industries Ltd. vidhyadhar and",audio_22_70.mp3 +Ors. v/s. Dudhrani finance Ltd. bombay and Anr. . Ratio layout judgment 10 c.c.no.21084/2017 therein was partly firm in a decision reported in (2010) 3,audio_22_71.mp3 +"scc 83, in a Cas. between mandovi co-operative society ltd., v/s. Nimesh b takore. Wherein, by citing the decisions reported in ksl and industries ltd.,",audio_22_72.mp3 +"Cas. , it was pleased to observed that, the observation made by the division bench in ksl and industries ltd., Cas. , clearly indicate that, even the",audio_22_73.mp3 +accused should be given option to lead her evidence on Aff. . But such request should be made in writing as providing for S. 315(1) of,audio_22_74.mp3 +"Cr.P.C. wherein, lordship was pleased observed that, find no justified reason to refuse permission to the accused to give his evidence on",audio_22_75.mp3 +"Aff. subject to the provisions contained in Ss. 315 and 316 of Cr.P.C. 16. That apart, in a judgment passed by the",audio_22_76.mp3 +Hon'ble HC of karnataka dated 13 th day of february 2020 in a Cas. between jagadeesh hiremath and r. Venkatesh in Crl. appeal no.907,audio_22_77.mp3 +"of 2017 a/w Crl. appeal no.908 of 2017 is pleased to observed that, in view of the orders of this court in Crl.P. No. ",audio_22_78.mp3 +"9331/2017 c/w Crl.P. No. 9332/2017 dated 02.07.2019, wherein following the law laid down by the Hon'ble SC in indo international ltd., & Anr. ",audio_22_79.mp3 +"vs. State of maharashtra & Anr. , 2005 Crl. l.j. 208, it is held that, ""the court dealing with a complaint under S. 138 judgment 11",audio_22_80.mp3 +c.c.no.21084/2017 of the said act of 1881 had an option to take evidence of the witnesses on the side of the prosecution as well asm.kempaiah,audio_22_81.mp3 +"vs. g.t.muralidhar on 4 december, 2020",audio_22_82.mp3 +"17. The accused in his Aff. evidence has contended that, he was a tenant in the house of complainant. He never have any loan transaction",audio_22_83.mp3 +with the complainant and he had no necessity to borrow the loan as alleged by the complainant. The complainant has not paid any loan of,audio_22_84.mp3 +"rs.6 lakhs by way of cash as he alleged on 21.06.2016 and he not executed any loan agreement in his favour. He also contended that,",audio_22_85.mp3 +he never issued any cheque much or less produced in the present Cas. as well as in Anr. cheque produced in c.c.no.21082/2017. 18. The accused,audio_22_86.mp3 +"has placed his defence in his Aff. evidence that, the complainant is well aware that, he is a mediator and an agent for getting a",audio_22_87.mp3 +"Govt. contract in respect of led bulb supplies in the rural areas. In the said transaction, the complainant had approached one kumar, who happened to",audio_22_88.mp3 +"be in the acquaintance of accused and proposed the accused to venture into the said business, which requires huge deposit of money. Accused had clearly",audio_22_89.mp3 +"expressed his inability to pay huge sum of money as deposit, however the complainant had persuaded the accused to do the business by guaranteeing huge",audio_22_90.mp3 +"judgment 12 c.c.no.21084/2017 profits and also offered unsolicited help stating that, he would pay the deposit on behalf of accused, in pursuance of which, the",audio_22_91.mp3 +"complainant took signed blank cheques and insisted to give cheque of Anr. person, would would stand as a guaranteer. The complainant took 3 cheques from",audio_22_92.mp3 +"the accused and 2 cheques from his sister-in-law by name smt.h.J. mamatha. He also detailed his Anr. cheque bearing no.024457 drawn on axis bank, belongs",audio_22_93.mp3 +"to accused and Anr. cheque bearing no.055818 drawn on state bank of india, belongs to smt.h.J. mamatha. The accused has further alleged that, out of",audio_22_94.mp3 +"the 5 cheques, 3 cheques belongs to the accused and 2 cheques were of smt.h.J. mamatha taken by the complainant and thereafter, he not procured",audio_22_95.mp3 +"the promised led bulb contract. The accused believing the complainant representations, he handed over the above mentioned cheques and a blank stamp paper to secure",audio_22_96.mp3 +"the led bulb contract in his favour. The xerox copy of the blank cheque and blank stamp paper, which are misused and produced at exs.p1",audio_22_97.mp3 +"to p5 by the complainant. The accused has further contended that, the complainant being his landlord, forced him to vacate the premises citing that, judgment",audio_22_98.mp3 +"13 c.c.no.21084/2017 he needs same for his personal use. Accordingly, he vacated the premises on 10.03.2017, but complainant did not returned his security deposit till",audio_22_99.mp3 +"the date. When accused started repeatedly requests to him to refund the security deposit, the complainant had misused the said cheques and issued legal notice",audio_22_100.mp3 +"alleging all falsities for his illegal gain through unlawful means. There was a specific understanding between complainant and accused that, the said stamp paper or",audio_22_101.mp3 +cheques are only meant to be used for securing Govt. led bulb contract not for any other purpose. But the complainant got misused the stamp,audio_22_102.mp3 +"paper and cheque by alleging, accused executed the loan agreement. The said contention of the complainant absolutely false and it was created fictitious witnesses i.e.,",audio_22_103.mp3 +"p.kannan and e.s.diwakar, those persons are not known to him at any point of time. The accused has further contended that, infact not 2 cheques,",audio_22_104.mp3 +but 3 cheques are belonging to the accused and 2 blank cheques of his sister-in-law by name smt.h.J. mamatha was taken by them.kempaiah vs. g.t.muralidhar,audio_22_105.mp3 +"on 4 december, 2020",audio_22_106.mp3 +"Complainant could not returned her cheques and smt.h.J. mamatha has never given those cheques, which was in the possession of the accused and it was",audio_22_107.mp3 +"given by the accused to the complainant. Now, it is learnt judgment 14 c.c.no.21084/2017 that, the complainant had misused the said cheques and has filed",audio_22_108.mp3 +"complaint against his sister-in-law through his friend. The act of the complainant clearly establishes that, he committed fraud, cheating and abused the process of law.",audio_22_109.mp3 +The complainant was not entitled to deposit the said cheque for collection as no point of time consideration was ever passed to the accused in,audio_22_110.mp3 +"any manner. He is not liable to pay the amount covered under the cheque, as the same is not legally enforceable debt or liability. 19.",audio_22_111.mp3 +"Apart from the accused also choosen to produced the documents at exs.d4 & d5, and also at the time of cross of pw.1, his counsel",audio_22_112.mp3 +got confronted 3 documents and same are marked as exs.d1 to d3. They are: a) ex.d1 is the copy of house rental agreement dated: 18.06.2015,audio_22_113.mp3 +entered in to between complainant and accused. B) ex.d1(a) is the signature of accused. C) ex.d2 is the copy of endorsement issued by vidyaranyapura police,audio_22_114.mp3 +"station, bengaluru. D) ex.d3 is the copy of service provider agreement dated:21.12.2015 entered into between complainant and jas e techno services pvt. Ltd. E) ex.d3(a)",audio_22_115.mp3 +and d3(b) are the signatures of complainant and accused. F) ex.d4 is the blank xerox copy of e-stamp paper with signature of accused and since,audio_22_116.mp3 +"the accused gave the foundation that, its original was with the complainant and produced at ex.d5, subject to the objection from judgment 15 c.c.no.21084/2017 the",audio_22_117.mp3 +"Adv. for complainant, the said document were marked and g) ex.d5 is the loan agreement dated:21.06.2016 executed by accused herein in favour of complainant. 20.",audio_22_118.mp3 +The dw.1 was subjected to the cross-examination by the Adv. for the complainant. The Adv. for complainant choosen to cross-examine the dw.1 and by way,audio_22_119.mp3 +"of confrontation since, accused has admitted the document and signature ex.d5 was marked. The signatures of accused was marked at ex.d3(b) during his cross-examination. With",audio_22_120.mp3 +"that, the accused got closed his side. 21. On going through the rival contentions of the parties, it made clear that, the accused in this",audio_22_121.mp3 +"Cas. has seriously attack on the claim put forth by the complainant. On going through the materials it discloses, the complainant has brought the present",audio_22_122.mp3 +"Cas. against the accused based on the questioned cheque at ex.p1. Therefore, it needs to draw the presumption as per Ss. 118 and 139 ofm.kempaiah",audio_22_123.mp3 +"vs. g.t.muralidhar on 4 december, 2020",audio_22_124.mp3 +"Prove, the holder of the cheque, the complainant received the cheque for discharge of legal liability. This presumption is rebuttable. Accordingly, Ss. 139 and 118",audio_22_125.mp3 +"of NI Act , it also requires to presume that, cheque was judgment 16 c.c.no.21084/2017 drawn for discharge of liability of drawer, it is presumption",audio_22_126.mp3 +"under law. Therefore, it made clear that, by virtue of the above said Ss. stated, it made clear that, it requires to draw statutory presumption",audio_22_127.mp3 +"in favour of complainant that, in respect of discharge of existence of legally recoverable debt, the accused got issued the ex.p1-cheque unless and until contrary",audio_22_128.mp3 +"prove. Therefore, as per those Ss. , it made clear that, it is the initial onus on the accused to prove his Cas. based on the",audio_22_129.mp3 +"principles of 'preponderance of probabilities'. It is require to cite the decision reported in air 2010 scc 1898, in a Cas. between rangappa v/s mohan.",audio_22_130.mp3 +"Wherein, the Hon'ble apex court pleased to observe that, the obligation on the prosecution may be discharged with the help of presumption of law or",audio_22_131.mp3 +"facts, unless the accused adduce evidence showing the reasonable probability of non-existence or presumed fact. Wherein also, it was pleased to observed that, the accused",audio_22_132.mp3 +"can prove the non-existence of consideration by raising probable defence. If accused is able to discharge the initial onus of proof of showing that, the",audio_22_133.mp3 +"existing of consideration was improbably or adverse or the same was illegal, the onus would shift to the complainant, who will be obliged to prove",audio_22_134.mp3 +"it as a matter of fact, and upon its failure to prove would dis-entitle his to grant the relief judgment 17 c.c.no.21084/2017 on the basis",audio_22_135.mp3 +of NI Act . The burden on the accused of proving the non-existence of consideration can either direct or by bringing on record the preponderance,audio_22_136.mp3 +"of probabilities by referring to the circumstances upon which, he relies could bare denial of passing consideration apparently does not appears to be any defence.",audio_22_137.mp3 +Something which is probable has to be brought on record for getting benefit of shifting the onus of proving to the complainant. To disprove the,audio_22_138.mp3 +"presumption, the accused has to bring on record such facts and circumstances upon the consideration of which the court may either believe that, consideration did",audio_22_139.mp3 +"not exist or its non-existence was so probable that, a prudent man would, under the circumstances of the Cas. , act upon that, it did not",audio_22_140.mp3 +"exist. Therefore, it made clear that, the accused need to take the probable defence mere denial is not enough. That apart, in a decision reported",audio_22_141.mp3 +"in ilr 2006 kar 4672, in a Cas. between J. ramaraj v/s hiyaz khan. Wherein, it was pleased to observed that, mere denial of issuing",audio_22_142.mp3 +"cheque, whether is sufficient to discharge the initial burden is to be looked into. In that dictum, it was pleased to held that, mere denial",audio_22_143.mp3 +"of issuing cheques would not be sufficient as it is time and again noted that, once the cheque issued duly signed by the accused, the",audio_22_144.mp3 +"judgment 18 c.c.no.21084/2017 presumption goes against him as per S. 139 of NI Act . 22. On going through the provisions referred supra, it made",audio_22_145.mp3 +"clear that, whereas the presumption must prove that, guilt of accused beyond the reasonable doubt. The standard or proof so as to prove a defence",audio_22_146.mp3 +"on the part of the accused is 'preponderance of probabilities'. Inference of 'preponderance of probabilities' can be drawn, not only from the materials brought on",audio_22_147.mp3 +"record by parties, but also by reference to the circumstances upon which he relies.m.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_22_148.mp3 +"Burden on the accused to prove his probable defence, in order to rebut the statutory presumption as well as the Cas. put forth by the",audio_22_149.mp3 +"complainant. In that backdrop, it requires to appreciate the materials available on record. No doubt, in this Cas. , the accused from the inception by way",audio_22_150.mp3 +of caused reply notice as per ex.p5 has contested the claim put forth by the complainant till the fag end of the Cas. . In that,audio_22_151.mp3 +"backdrop, the accused also subjected the pw.1 and 2 cross- examination and gave his statement coupled with entered into witness box and led his evidence",audio_22_152.mp3 +"as dw.1. On going through the judgment 19 c.c.no.21084/2017 defence set out by the accused, it made clear that, he has denied each and every",audio_22_153.mp3 +averments and allegations made in the complaint as to alleged request of loan and its borrowal and got issuance of questioned cheque at ex.p1 for,audio_22_154.mp3 +"discharge of repayment of loan, which covers at ex.p1 cheque in the present Cas. as well as cheque involved in c.c.no.21082/2017. 24. That apart, the",audio_22_155.mp3 +"accused has placed his specific defence in the present Cas. that, complainant is well aware that, he is a mediator and an agent for getting",audio_22_156.mp3 +"Govt. contract in respect of led bulb supplies in the rural areas. In that transaction, he approached one Mr. kumar, who happened to be acquainted",audio_22_157.mp3 +"to accused and proposed the accused to venture in to the said business, which requires huge deposit of money. Since, accused had no money, he",audio_22_158.mp3 +"expressed his inability. However, persuaded the accused to do business by assuring to get huge profit and offered unsolicited help stating that, he would pay",audio_22_159.mp3 +"the deposit money on behalf of accused in pursuance of the same, complainant took signed blank 3 cheques of the accused and 2 blank cheques",audio_22_160.mp3 +"of his sister-in-law by name mrs.h.J. mamatha as security. It was specific understanding between complainant and accused that, the blank stamp paper and signed blank",audio_22_161.mp3 +cheques are only meant to be used for securing Govt. led bulb contract and not for any other purpose. As judgment 20 c.c.no.21084/2017 assured by,audio_22_162.mp3 +"the complainant and undertaken by the complainant, he not procured the led bulb contract. Meanwhile, the complainant being a landlord, forced the accused to vacate",audio_22_163.mp3 +"the rented premises citing, he was in need of same for his personal use and accordingly, on 10.03.2017, he vacated the said house. But he",audio_22_164.mp3 +"did not returned the security deposit amount till the date, when he asked for refund, he got misused his signed blank cheques and issued legal",audio_22_165.mp3 +"notice and filed false Cas. . 25. The accused by taken up the specific defence, had contended, before starting the talks of procuring led bulb contract,",audio_22_166.mp3 +"he was the tenant under the complainant in respect of his house by paying advance of rs.1,50,000/- to the complainant. In that regard, the accused",audio_22_167.mp3 +"has produced the rental agreement at ex.d1, which got marked through pw.1. The complainant has admitted, the landlord and tenant relationship as found in ex.d1.",audio_22_168.mp3 +"Even the complainant endorsing the same got marked the signature of accused at ex.d1(a). On going through the said ex.d1, it discloses, the rent agreement",audio_22_169.mp3 +"was entered into between complainant and accused on 18.06.2015 for the period of 11 months and wherein also stated, his advance amount of rs.1,50,000/- were",audio_22_170.mp3 +"paid by the accused to the complainant and monthly rent was fixed at rs.10,000/- p.m. Coupled with bare other expenses. The complainant has not disputed,",audio_22_171.mp3 +"the judgment 21 c.c.no.21084/2017 said document at ex.d1 entered into between them. As per ex.d1 on 18.06.2015, the accused was inducted as tenant by paying",audio_22_172.mp3 +"advance of rs.1,50,000/-. The complainant has not stated, when the said landlord and tenant relationship was emerged and came to be an ended between them.",audio_22_173.mp3 +"The accused hasm.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_22_174.mp3 +"Accused to obtain led bulb contract under his assurance, as he had no money, the complainant took his 3 signed blank cheques and 2 signed",audio_22_175.mp3 +"blank cheques of his sister-in-law by name h.J. mamatha as security, but as promised not procured. On the other hand, he forcefully evicted the accused",audio_22_176.mp3 +"from the rented premises on 10.03.2017 without refund security deposit amount. 26. On going through the said testimony of accused, the factum of accused, quit",audio_22_177.mp3 +from the rented premises under the instance of complainant very particularly on 10.03.2017 is been denied by the complainant. The accused specifically alleged against the,audio_22_178.mp3 +"complainant that, the complainant forcefully without refund his security deposit amount of rs.1,50,000/- quit in from premises. When he demanded for refund of cash security,",audio_22_179.mp3 +then the complainant got misused his signed blank cheques and signed blank stamp paper which gave in pursuance of procure led bulb contract. Judgment 22,audio_22_180.mp3 +"c.c.no.21084/2017 in that line, the accused has subjected the pw.1 for cross- examination. ""€□ €€‚‚ ƒƒƒ„ƒ…†„ƒ ‡‚ˆ ƒƒƒ‰š…ˆƒ ˆ ƒ†‹€„ œ‹□ ‡‚ □ ‚†…‰□‹€„†ƒ„ƒ ˆƒšžƒ‚‚†.""",audio_22_181.mp3 +"ˆˆ‰ □□ □□□ƒ 27. The pw.1 voluntarily deposed that, after return the advance amount to the accused, then only he handed over the key to",audio_22_182.mp3 +"the complainant. Thereby, the complainant has projected, he refund his advance amount to the accused, then only he quit from his premises. Taken into consideration,",audio_22_183.mp3 +"as per the accused on 10.03.2017 he quit from rented premises by alleging the complainant has not refund cash security. When he asked for refund,",audio_22_184.mp3 +"the complainant misused his signed blank cheques and e-stamp paper and filed the false Cas. . The pw.1 has denied the suggestion not refund the advance,",audio_22_185.mp3 +"but stated, he was refund then only accused quit the Sch. premises. In that regard, during the course of cross of pw.1 suggested by the",audio_22_186.mp3 +"Adv. for complainant that, the accused after got received the advance money from the complainant quit the rented premises. But pw.1 has volunteers that, the",audio_22_187.mp3 +"complainant by cause threat forcefully quit him from the rented premises. Since, he was threat from the complainant as well as still he was stayed",audio_22_188.mp3 +"in the house of complainant, he not ventured for lodge police complaint. He asserted, asked the complainant for judgment 23 c.c.no.21084/2017 refund the advance money,",audio_22_189.mp3 +"no legal notice were issued. The complainant has denied the said answer given by the dw.1. 28. On the other hand, it made clear that,",audio_22_190.mp3 +"the complainant has projected his Cas. that, after refund the advance, the accused quit from rented premises. Whereas, the accused has seriously attack on the",audio_22_191.mp3 +"complainant that, without refund his advance, the complainant forcefully quit him from rented premises, when he asked for refund, he got misused the signed blank",audio_22_192.mp3 +"cheques and signed blank e-stamp paper coupled with misusing security cheques of his sister-in-law and complainant filed the false Cas. through one manjunath. No doubt,",audio_22_193.mp3 +"the complainant has admitted, manjunath was his friend and through the same Adv. , they have filed cheque bounce cases against the accused herein and sister-in-law",audio_22_194.mp3 +"of accused. From which, only one inference can draw that, through the saidm.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_22_195.mp3 +"The proceedings and transaction held in separate cases initiated by them. No doubt, Cas. filed by manjunath against the sister-in-law of accused is not subject",audio_22_196.mp3 +"matter of the present Cas. , but it only draw the inference that, through the same Adv. , complainant and manjunath have prosecuted against the accused as",audio_22_197.mp3 +"well as sister-in-law of accused, judgment 24 c.c.no.21084/2017 therefore, the some nexus in transaction between complainant and manjunath. 29. In order to show that, the",audio_22_198.mp3 +"complainant has deposed in the witness box to show that, he got refund the advance amount of rs.1,50,000/- received from the accused and he quit",audio_22_199.mp3 +"from rented premises on 10.03.2017. To substantiate the said contention, complainant has not produced any document before this court. Therefore, the say of the accused",audio_22_200.mp3 +"has to be accepted. If at all, any loan lent by the complainant to the accused as alleged in the complaint on 21.06.2016 itself, that",audio_22_201.mp3 +"too, for the tune of rs.6 lakhs definitely, question of complainant without deducting the portion of the said loan amount, got refund the entire advance",audio_22_202.mp3 +"amount of rs.1,50,000/- to the accused does not arise. Hence, the said rival contentions and sequences placed by both the parties, it would leads for",audio_22_203.mp3 +"draw only one inference that, complainant has not refund the advance amount of rs.1,50,000/-, which got received by him as per ex.d1 on 18.06.2015. 30.",audio_22_204.mp3 +"That apart, the complainant throughout his pleading not whispered about the procurement of led bulb contract, either he was authorized to do or he got",audio_22_205.mp3 +"entered into contract with the authorized dealer, which excite him to entered into contract with either the accused or any other as alleged by the",audio_22_206.mp3 +"accused, nothing judgment 25 c.c.no.21084/2017 has been contended by the complainant. In that regard, to prove the probable defence of the accused, as the complainant",audio_22_207.mp3 +"forcefully brought the accused though, he expressed his inability to funding to procure led bulb contract, on the assurance of complainant as he assured to",audio_22_208.mp3 +"get the highest profit, accused got issued 3 signed blank cheques and one signed blank stamp paper coupled with security of 2 signed blank cheques",audio_22_209.mp3 +"of his sister-in-law. The same got misused by th complainant, when he demanding for refund of advance amount. In that regard, it was the suggestion",audio_22_210.mp3 +"made to pw.1, wherein he deposed that: ""€†††„ƒ„ ‘Š †ƒ ‹ Œ‰‰ ˆˆ‰ ‰‚‚.   ‚‰„ƒ‹ƒ ’„□□ €ƒœƒ“”□□ƒ‚ ˆˆˆ ƒ‚ƒ‚ ‘‚†† ˆšƒ… ž…„□ †□‚žž",audio_22_211.mp3 +"□††ƒ ‡‰□□. €□‰ „ˆƒ□‚21.12.2015 †ƒ„ƒ •€ž‘ □□□ˆ□ €†□†€€ž ‘ƒšž ”□”.□ƒ□šž –‰□ ”ž†„ž ˆšƒ… □ ”□‚ €□‰ ˆš„„ □ˆˆ□„ €††€ ”□……š† ’‰□ƒƒ□ž•†□ ‚□□†€□‰, €□ ’„†□ ‚ˆˆ",audio_22_212.mp3 +"€– ˆ□□š ‰ƒ†ƒ‚€†ƒ‚‚†. □ ”□‚ □ƒ„ƒ ‰ƒ†ƒ‚€□ƒ ‡†□□” ”† …□□□†ƒ ’„ƒ •†□ ‡□”€†ƒ‚‚†. €„† □††ˆ ƒ□□ ”□‚ ‚ˆˆ œ‹ ‘□□ □ƒœƒ„‰ €□ ˆƒš„ ƒ□†‰, ”ž†„",audio_22_213.mp3 +"…□□□† ‡□”— ‚‹‹ –□ ˆš-3 □ƒœƒ„‰ ‰ƒ†ƒ‚€□ž‚ƒ. ˆš-3 †□†ƒ… €□ž €–žˆƒ ˆ ˆš-3(□) □ƒ„ƒ ‰ƒ†ƒ‚€□ž‚ƒ."" 31. On going through the testimony of pw.1, suggestion made",audio_22_214.mp3 +"to pw.1 as to knowingness of securing led bulb contract from the judgment 26 c.c.no.21084/2017 Govt. were made to pw.1, then he deposed, he does",audio_22_215.mp3 +"not know. More particularly, it was asked to him that, in that regard, was therem.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_22_216.mp3 +"Was entered into. Then, the Adv. for accused has tendered him a xerox copy of agreement dated:21.12.2015 entered into between jos e techno services pvt.",audio_22_217.mp3 +"Ltd., through its managing partners by names Mr. kumar and Mr. deen kumar, then complainant has identified his signature at ex.d3(a). Though his Adv. has",audio_22_218.mp3 +"opposed the marking of the said document as the said document pertaining to the complainant and the said concern, except the accused secure the secondary",audio_22_219.mp3 +"evidence, question of expect to produce unconcern document, the objection raised by the complainant was rejected and got marked the said document at ex.d3 as",audio_22_220.mp3 +the accused already laid foundation under which circumstance questioned cheque was came to the custody of the complainant. The complainant has admitted his signature at,audio_22_221.mp3 +"ex.d3, but denied no such agreement was entered into. But the subsequent cross-examination when questioned based on ex.d3 he deposed that: ""€††† □□‘š œ□□ˆ †‚†—‰",audio_22_222.mp3 +"€ƒœƒ“”□□ƒ‚ –□€œ‹□ƒ □ƒœ ž•ˆžšž□ ˆˆƒ, □ƒƒ† □ˆƒ ˆ ……†ˆƒ ˆ ˜□□ ƒš ˆš-3 ’‰□…ƒƒ□ˆƒ ˆ ƒš□□ƒš„ˆ □ƒ„† €†."" judgment 27 c.c.no.21084/2017 32. The pw.1 has",audio_22_223.mp3 +"categorically admitted, under the said agreement at ex.d3, he entered into contract with for supply of led bulb from Govt. . Thereby, though earlier he denied",audio_22_224.mp3 +"the entered into such agreement between the said concern and complainant, subsequently, he categorically admitted his role in supplying led bulb contract. 33. No doubt,",audio_22_225.mp3 +"as per ex.d2 the complainant only entered into contract with jos e techno services pvt. Ltd. It is significant fact to note that, if at",audio_22_226.mp3 +"all, the defence suggested by the accused were not to be true, then why complainant brought the signature of the accused at ex.d3 as witness",audio_22_227.mp3 +"to the said transaction is also not been narrated by the complainant. Since, the role of complainant appears to be true, as he assured the",audio_22_228.mp3 +"accused to do the said business for getting higher profit, he made the accused as witness to the ex.d3 has to be presume. On going",audio_22_229.mp3 +"through the ex.d3, wherein not mentioned about any monetary transaction, but discloses, terms and conditions binding on the complainant as to supply of led bulbs",audio_22_230.mp3 +"and its distribution. The signature of the accused brought under ex.d3 leads the presumption that, the complainant has assured the accused to get the said",audio_22_231.mp3 +"business. From the say of pw.1, though earlier he denied his role in entered into contract as per ex.d3 subsequently, on seeing document he categorically",audio_22_232.mp3 +"admitted. Judgment 28 c.c.no.21084/2017 34. That apart, during the course of cross of dw.1, the acknowledgment given by the police sub-inspector of vidyaranyapura police station,",audio_22_233.mp3 +"was tendered, then he on seeing the name and address pertaining to him, he admitted, hence, the said document got marked at ex.d2. Subsequently, he",audio_22_234.mp3 +"volunteers that, it was not them.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_22_235.mp3 +"Categorically admitted the address of him subsequently, he got twisted his evidence by stating, he does not know, in his name who lodged the complaint.",audio_22_236.mp3 +"Then it requires to focus on ex.d2. 35. On meticulous perusal of ex.d2 it discloses, the admitted name and address of complainant. Wherein, it was",audio_22_237.mp3 +"define the purpose of lodge of complaint, one kumar residing at vinayakanagar, vidyaranyapuram of receiving rs.5 lakhs from the complainant for supply of led bulbs,",audio_22_238.mp3 +"not returned the money and has troubled the complainant. On going through the ex.d2 it reveal that, the complainant by alleging paid rs.5 lakhs to",audio_22_239.mp3 +"kumar, who is none other than one of the partner in jos e techno services pvt. Ltd., as found in ex.d3. If at all, the",audio_22_240.mp3 +"complainant paid rs.5 lakhs to the said kumar, why the complainant has denied that, he not lodged complaint to the jurisdictional police station. Then it",audio_22_241.mp3 +"is him to explain, who lodged complaint in his name, if it was false, definitely, judgment 29 c.c.no.21084/2017 could have initiate necessary action, but he",audio_22_242.mp3 +"did not explain anything on the same. Therefore, from the say of pw.1, in view of he denied the lodging of complaint in his name",audio_22_243.mp3 +"as per ex.d2, only one inference could be drawn against the complainant that, he not approached this court with clean hands. Though he already entered",audio_22_244.mp3 +"into agreement as per ex.d3 and lodged complaint as per ex.d2 for the reasons better known to him, he deposed contrary to his own document.",audio_22_245.mp3 +"Thereby, it creates doubt as to the bonafidness and approach of the complainant, as to the genuineness of transaction. The complainant clearly admitted the documents",audio_22_246.mp3 +"at exs.d1 to d3. Thereby, the accused has proved the role of complainant in doing led bulb contract service pvt. Ltd., as per ex.d3. 36.",audio_22_247.mp3 +"Based on the defence taken by the accused, it was suggested to pw.1 that: ""ˆš-3 † €††€ ”□……š† ’‰□ƒƒ□žˆ ” □†† □□‘š œ□□ˆ ‰ƒ‚‚‰žˆƒ ˆ",audio_22_248.mp3 +‚‰€□□šƒ…„‰ –□‹ ‡†□□”žƒ„ €– ƒš„ ™□ ‘-€□□ƒ”ž ”□”†ˆƒ ˆ –‰□ €.€.ˆƒ.21084/2017 ƒ‚ƒ‚ €.€.ˆƒ.21082/2017 † ”□□†—‰‹□ –•†ƒ”š€†ƒ… €– ƒš„ 2 š□ƒ □ ‰‹ˆƒ ˆ ”š„„ □ƒ„†,audio_22_249.mp3 +"€†ž□□. ‡ †□‚ □††ˆƒ ˆ ‚‰€□□š„, ‡†□□”žƒ„ ˆš-1 † ”□†† ‡†□□”žƒ„ ”š„ƒ‚– ƒƒƒ‰š †□‚1,50,000/- ‡‚ˆ‰ ƒ†‹€„ ‡‚ˆ ƒ□□ „•†ˆ□ □€‰ ƒˆžƒ„ œš€„ □ƒ„† €†žž□□."" judgment",audio_22_250.mp3 +"30 c.c.no.21084/2017 37. The accused specifically placed his defence by way of suggestion made to pw.1 that, as per ex.d3 - service provider agreement, the",audio_22_251.mp3 +complainant assured the accused to procure led bulb contract and got obtained signed blank cheques and singed blank e-stamp paper from him and not procured,audio_22_252.mp3 +"the said business, but misused his 2 signed blank cheques which subjected in the present Cas. as well as in c.c.no.21082/2017. That apart, it was",audio_22_253.mp3 +"also suggested, even the cash security of rs.1,50,000/- were also not refund to the accused and by cause threat on accused forcefully quit from rented",audio_22_254.mp3 +"premises. The said evidence clearly manifest the defencem.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_22_255.mp3 +"Agreement, but as assured not returned the document obtained as security as suggested by the accused. Even, in the subsequent cross-examination it was suggested to",audio_22_256.mp3 +"pw.1 that, for procuring led bulb contract business as security the complainant took signed blank cheques of his sister-in-law and by misusing the same got",audio_22_257.mp3 +"filed the Cas. through manjunath, but the complainant has denied the same. 38. It was also suggested to pw.1 that, as assured and promise made",audio_22_258.mp3 +"by the complainant, the complainant has not procured led bulb contract business to the accused, though he got obtained his 2 signed blank cheques and",audio_22_259.mp3 +"signed blank e-stamp paper and by judgment 31 c.c.no.21084/2017 misusing the same got filed the false Cas. , hence, accused is not liable to pay money",audio_22_260.mp3 +to the complainant. But the pw.1 has denied the same. Though serious allegations were made against the complainant as to misuse of questioned cheque at,audio_22_261.mp3 +"ex.p1 and e- stamp paper coupled with misusing of guarantee cheque of his sister-in-law, when tendered for cross-examination by the dw.1, no worthy suggestion is",audio_22_262.mp3 +"made and failed to extract any admission from the accused as to the alleged loan transaction. Even during the course of cross of dw.1, whatever",audio_22_263.mp3 +"the averments and allegations made mentioned by the complainant, as to alleged request made by the accused seeking for loan with its purpose and alleged",audio_22_264.mp3 +"receipt of loan and questioned cheque issued by the accused for discharge is also not been specifically suggested, but made general suggestion by stating for",audio_22_265.mp3 +"repayment of loan of rs.6 lakhs obtained by the accused for the development of his business, accused gave questioned cheque involved in the present Cas. ",audio_22_266.mp3 +as well as in c.c.no.21082/2017 and deposed falsely. The accused has denied the suggestion made by the complainant and withstood his contention by deposing that:,audio_22_267.mp3 +"""œ□□ˆ …□…–†□□ □ ”ž†„žƒ„‰ ƒš„ …□…–†□□ □ €ƒœƒ“†□□ □ƒ„† €†žž□□. ˆˆƒ €„† …□…–† ƒšƒ‚‚„ˆ □ƒœƒ„‰ ‚□□†€□ƒ, ˆš-3 †□ €□ž‰ €– ƒš†ƒ‚‚□ˆ."" judgment 32 c.c.no.21084/2017 39.",audio_22_268.mp3 +"On meticulous perusal of the evidence of dw.1, the suggestion made by the Adv. for complainant stating that, with regard to led bulb business as",audio_22_269.mp3 +"well as transaction held with complainant are not interlinked, but the dw.1 has deposed to show that, he did the said business to establish the",audio_22_270.mp3 +"same he put his signature to the ex.d3 as witness and produced before this court. Though complainant has suggested both the business are altogether different,",audio_22_271.mp3 +"but the said suggestion leads to draw the inference that, there were talks held with regard to procure led bulb contract as projected by the",audio_22_272.mp3 +"accused. Now the complainant cannot bifurcated both the business as altogether different. If at all, the complainant had paid the loan of rs.6 lakhs to",audio_22_273.mp3 +"the accused, it is him to suggest the dw.1, when accused was requested for the same and what was the compelling circumstances was made such",audio_22_274.mp3 +"approach and how the complainant had mobilized the fund and exactly on whose presence, on whichm.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_22_275.mp3 +"Whether led bulb procurement transaction was concluded between the complainant and accused or not?. Even no exact suggestion is made, on which date the accused",audio_22_276.mp3 +got issued and executed the ex.p1 cheque in favour of complainant. The dw.1 withstood his contention successfully and thereby rebutted the statutory presumption and judgment,audio_22_277.mp3 +"33 c.c.no.21084/2017 facts and circumstances narrated by the complainant. When the Cas. of the complainant itself is surrounded with several contradiction, inconsistence different signature made",audio_22_278.mp3 +by the accused in respect of the cheques involved in the present Cas. as well as in c.c.no.21082/2017 itself is not a ground accept the,audio_22_279.mp3 +"claim of the complainant. 40. That apart, the accused got marked the xerox copy of e-stamp paper which bares the signature of the accused and",audio_22_280.mp3 +same were marked subject to the objection to the Adv. for complainant at ex.d4 and signature at ex.d4(a). The complainant Adv. has objected to mark,audio_22_281.mp3 +"the said document, but the accused has projected his defence that, in order to procure led bulb contract business from the complainant, he got issued",audio_22_282.mp3 +"signed e-stamp paper and signed blank cheques coupled with signed blank cheques of his sister-in-law, the same got misused by the complainant. The complainant by",audio_22_283.mp3 +"way of creating ex.d5 the alleged loan agreement. Since, the accused has placed the foundation, under which circumstance he gave signed blank e-stamp paper at",audio_22_284.mp3 +"ex.d4 and its original placed by the complainant as per ex.d5, the said xerox copy got marked as secondary evidence as per ex.d4. 41. On",audio_22_285.mp3 +"going through the ex.d4 coupled with ex.d5 it discloses, the front side blank sheet without type, the accused has affixed his judgment 34 c.c.no.21084/2017 signature",audio_22_286.mp3 +"as found in ex.d4(a). Contrary to the said ex.d4, in the ex.d5 the same signature at ex.d5(a) is found. But the interesting thing is that,",audio_22_287.mp3 +in ex.d5 three lines typed matter is found. In ex.d4 the backside e-stamp paper kept blank. But in ex.d5 backside it was contra print out,audio_22_288.mp3 +"is been seen, wherein also found the alleged signatures of complainant and accused and 2 witnesses. But those recitals and signatures and particulars of witnesses",audio_22_289.mp3 +"were not been seen in ex.d4. 42. On meticulous perusal of the ex.d5 as well as ex.d4 which discloses, before handed over the ex.d5 e-stamp",audio_22_290.mp3 +"paper, the accused got xeroxed including his signature on blank stamp paper on the front page. The accused has denied his signature found at backside",audio_22_291.mp3 +"of ex.d5. In order to show that, back side of the same he not signed, back side he not chosen to got xerox in blank.",audio_22_292.mp3 +"On close perusal of the same to the bare eyes the signature at front and backside appears to be different. If at all, the accused",audio_22_293.mp3 +"got executed the said document at ex.d5 definitely, the signature of accused must be in similar on both sides. But, back side of the said",audio_22_294.mp3 +"documents appears to be slight different. However, the said document is only not criteria to either to accept or suspect the alleged signature of the",audio_22_295.mp3 +"accused. From the available documents, on record it discloses, the accused not in the habit of sign documents in uniformed manner.m.kempaiah vs. g.t.muralidhar on 4",audio_22_296.mp3 +"december, 2020",audio_22_297.mp3 +"Stages, it is not enough to accept the claim of the complainant. When the front page the admitted signature of the accused is been seen,",audio_22_298.mp3 +"how without his knowledge, the said document got executed as ex.d5 itself created doubt. 43. By way of production of ex.d1, the accused has successfully",audio_22_299.mp3 +"established that, he gave signed blank cheque at ex.p1 to the complainant in connection to the procure led bulb contract business. Therefore, the accused by",audio_22_300.mp3 +"way of producing convincing, corroborative evidence has successfully rebutted the Cas. of complainant as well as statutory presumption. Therefore, it goes reverse burden on the",audio_22_301.mp3 +"complainant as per Ss. 118 and 139 of NI Act to prove the guilt of the accused, as he alleged. It is well worthy",audio_22_302.mp3 +"to cite the decision reported in ilr 2009 kar 1633 (kumar exports v/s. Sharma carpets). Wherein, it was pleased to held by the Hon'ble apex",audio_22_303.mp3 +"court that: (d) NI Act , 1881, Ss. 118, 139 and 138 - presumption under Ss. 118 and 139 - how to be rebutted -",audio_22_304.mp3 +"standard of proof required rebuttal - held, rebuttal does not require proof beyond reasonable doubt - something probable has to be brought record - judgment",audio_22_305.mp3 +36 c.c.no.21084/2017 burden of proof can be shifted back to complainant by producing convincing circumstantial evidence - thereafter the said presumption arising under S. 118,audio_22_306.mp3 +"and 139 Cas. to operate - to rebut said presumption accused can also rely upon presumptions under evidence act, 1872 S. 114 (common course of",audio_22_307.mp3 +"natural even human conduct and public and Pvt. business) - evidence act, 1872 - S. 114 - presumptions of fact under"". Added to that, in",audio_22_308.mp3 +"a decision of air 2008 SC 278 between john k john v/s. Tom verghees, the Hon'ble apex court it is held that: ""the presumption",audio_22_309.mp3 +under S. 139 could be raised in respect of some consideration and burden is on the complainant to show that he had paid amount shown,audio_22_310.mp3 +"in the cheque. Whenever there is huge amount shown in the cheque, though the initial burden is on the accused, it is equally necessary to",audio_22_311.mp3 +"know how the complainant advanced such a huge amount"". 44. From the point of above dictums also, it was the reverse burden casted upon the",audio_22_312.mp3 +"complainant to establish the very Cas. beyond the reasonable doubt in order to convict the accused. Judgment 37 c.c.no.21084/2017m.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_22_313.mp3 +"Week of june, 2016 approached the complainant being a tenant seeking for loan of rs.6 lakhs, to meet out expenses in developing his flower decoration",audio_22_314.mp3 +"business and purchase materials. Was it necessary for doing the said business, the need of rs.6 lakhs is created doubt and it is the complainant",audio_22_315.mp3 +"needs to explain by utilizing rs.6 lakhs, what kind of development were done in doing flower decoration business is not been satisfactorily pleaded and explained.",audio_22_316.mp3 +"That apart, on which date, the accused exactly approached the complainant, when he was tenant under him is also not been satisfactorily explained. However, the",audio_22_317.mp3 +"complainant has pleaded that, on 21.06.2016 he gave rs.6 lakhs to the accused and he undertakes to repay the same within 6 months and got",audio_22_318.mp3 +"executed the ex.d5 loan agreement on the same day itself. If at all, the complainant was possessed ex.d5 as on the date of made pleading",audio_22_319.mp3 +"definitely, what was the recitals in the agreement, who were the witnesses present as eye witnesses to the said transaction could have pleaded, but the",audio_22_320.mp3 +"said ex.d5 were placed by him during his evidence only. In that regard, it requires to appreciate the evidence of pw.1. 46. During the course",audio_22_321.mp3 +"of cross of pw.1, he deposed, he had bar and restaurant and it was leased out and hence, he had no other judgment 38 c.c.no.21084/2017",audio_22_322.mp3 +"income. In his cross-examination it does not disclose, to whom for what amount he leased out his business is not been explained. During the course",audio_22_323.mp3 +"of cross-examination, the pw.1 categorically admitted that: ""‡†□□” 2016 † •□ˆž ƒ„□ˆ□ …†„□ œƒ„ƒ €□…ˆƒ ˆ □□‹„„†ƒ. ‡ „ˆ ˆˆˆ œ‹ ’›ƒ □ –— ‘□□„",audio_22_324.mp3 +"††— ‡†□□” □□‹„ □□š□□ –— □□š□□□ □ƒ„† €†. ’„□ †□‚ „ˆƒ□‚21.06.2016 †ƒ„ƒ □□š ˆˆˆ œ‹ †□‚6 □□ ˆ‰„ƒ ‘†□□□ □ƒ„† €†ž□□."" 47. On going through",audio_22_325.mp3 +"the testimony of pw.1, he reasserted, during the 1st week of june, 2016, accused asked for the loan. He more categorically admitted, on the day",audio_22_326.mp3 +"he made request, since he had no such amount in his hand, therefore, he was not paid money to the accused. By deposing so, the",audio_22_327.mp3 +"complainant had clearly admitted, on the date of request made by the accused, he had no requisite fund in order to pay loan to the",audio_22_328.mp3 +"accused. Thereby, it is made clear that, as on the request made by the accused, the complainant had no financial capacity. Though he deposes as",audio_22_329.mp3 +"such, the complainant has not explained, how he mobilized rs.6 lakhs in order to enable to be paid to the accused. When he admitted, as",audio_22_330.mp3 +"on the date of request made by the accused, he had no money, then how he mobilized the fund, he needs to explain. Judgment 39",audio_22_331.mp3 +"c.c.no.21084/2017 48. On going through the previous portion of cross-examination, the pw.1 has deposed that: ""œ ”□□†— –‰□ €.€.ˆƒ.21082/2017 †□ †—€†ƒ… □□ƒ □ †□‚6 □□",audio_22_332.mp3 +"–— ‡†□□”‰ €□ ˆ□š□ƒ, ˆƒƒ œ†ˆƒ ˆ †ž□ž □ˆƒ „ , ’„†ƒ„ œƒ„ –— ˆ□š†ƒ‚‚□ˆ. ˆ ……†‰ ˜□□‰□□□ ˆ□š„ƒ ˆ œ ”□□†—„□ –•†ƒ”š€□□. ‡ ’„□□",audio_22_333.mp3 +"€ƒœƒ“”□□ „™□žˆƒ †□‚ ˜□□‰□…ˆƒ ˆ □‹„ 3 …›†‰‹ –ƒ„ ’ƒ„† 2015 †□ –□„ˆ. „ˆƒ□, ‚ƒ‰‹ƒ ˆˆ”□□. 6 □□ –— ˆˆˆ □…žž□‚ƒ‚. ""m.kempaiah vs. g.t.muralidhar on",audio_22_334.mp3 +"4 december, 2020",audio_22_335.mp3 +"He asserted in this Cas. as well as in c.c.no.21082/2017, he leased out his bar and restaurant to one Mr. vishal and got obtained the",audio_22_336.mp3 +"leased amount of rs.6 lakhs. He categorically deposed, he not produced any document with regard to receipt of lease amount as he alleged. But he",audio_22_337.mp3 +"deposed, he gave lease to the same in the year 2015, but he does not remember the date and month. By deposing so, the complainant",audio_22_338.mp3 +"has projected that, the leased amount received from Mr. vishal in the year 2015 was with him, and claimed to be paid the same to",audio_22_339.mp3 +"accused, complainant though he not explained, it conveys meaning as such. If at all, he got received leased amount of rs.6 lakhs in the year",audio_22_340.mp3 +"2015, he must depose, as on the date of request made by the accused during 1st week of june, 2016, he had leased money. Judgment",audio_22_341.mp3 +"40 c.c.no.21084/2017 50. As discussed earlier, the cross-examination of pw.1, though he stated, he had leased amount which received in the year 2015 and very",audio_22_342.mp3 +"particularly deposed, rs.6 lakhs was with him. But in the cross-examination he categorically deposed, since he had no requisite fund of rs.6 lakhs on the",audio_22_343.mp3 +"date of alleged request made by the accused, he had not paid to the accused. Therefore, the above said contradictory statement of the pw.1 clearly",audio_22_344.mp3 +"manifest that, though he had leased out his bar and restaurant in the year 2015, to show that, he had requisite fund of rs.6 lakhs",audio_22_345.mp3 +"during 1 st week of june, 2016 or as on the alleged date on 21.06.2016, he needs to produce some document or explanation, in that",audio_22_346.mp3 +"regard, no effort is forthcoming from the side of complainant. However, the Adv. for complainant try to demonstrate the financial capacity of the complainant during",audio_22_347.mp3 +"the course of cross of dw.1. Wherein, he suggested to dw.1 that, the complainant was leased out his bar and restaurant for monthly rent of",audio_22_348.mp3 +"rs.2,50,000/- and got obtained the advance of rs.35 lakhs, but the accused has denied the same. If at all, the complainant got received the advance",audio_22_349.mp3 +"money of rs.35 lakhs and monthly rent of rs.2,50,000/- definitely, he had every opportunity to produce necessary document, at least the lease agreement or any",audio_22_350.mp3 +document which reveals the receipt of rentals or advance as such. Mere making suggestion does not suffice to judgment 41 c.c.no.21084/2017 establish the financial capacity,audio_22_351.mp3 +"of the complainant. Thereby, the complainant has failed to demonstrate the financial capacity of rs.6 lakhs as on 21.06.2016. 51. The complainant has alleged that,",audio_22_352.mp3 +"on 21.06.2016 he gave loan of rs.6 lakhs to the accused in turn, he got executed the ex.d5 agreement. It is pertinent to note that,",audio_22_353.mp3 +"there is no pleading from the part of complainant, as to the due execution and issuance of loan agreement at ex.d5. Even not stated about",audio_22_354.mp3 +"who were the attested witnesses to the said document. All of sudden, the complainant without gave necessary description with regard to due execution and the",audio_22_355.mp3 +"names of the participants to the said document, got produced at ex.d5. In that regard, he was questioned in the witness box. Wherein, he deposed",audio_22_356.mp3 +"that: ""‡†”‰ € ˆŠ„ „ˆ €„ ”‚ ‚ ˆƒ ˆ ‡‚ˆƒ„ œ†ž€□□ƒš„ˆƒ. €□„ ”‚ ‚ „ˆƒ□‚21.06.2016 †ƒ„ƒ ‡†□□” œ†„ƒ□□□□„„ ƒ, ’„ˆƒ ˆ ˆ”-6 □ƒœƒ„‰ €.€.ˆƒ.21082/2017",audio_22_357.mp3 +"”□□†—„□ ‰ƒ†ƒ‚€□‰†ƒ‚‚„. ’„† ÿ” †‰„…ˆƒ ˆ ‡†□□” „ˆƒ□‚21.06.2016 †ƒ„□m.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_22_358.mp3 +‚‹€†□□□. ‡‚ˆ ƒ□□ ˆƒœ□ ‘‚ƒ‚. Œ†‹šš„ ˆƒ‚† ˆˆƒ ƒ‚ƒ‚ ‡†□□” ”†€€†† €ƒ□ƒ ‡ □††‰ €–‰‹ˆƒ ˆ ƒš„…. ˆƒƒœ□† ˆ ƒš□□. –†‚ƒ Œ†Ž †ƒ €–‰‹ˆƒ judgment,audio_22_359.mp3 +"42 c.c.no.21084/2017 ‡†”‰ €  ˆƒ‚† –‰ Œ†„ƒ ††ˆƒ ˆ ˆˆƒ ‚‰„ƒƒŠƒ ˆˆˆ ƒˆ‰ –„ˆƒ. ‡ †‚ ††ˆƒ ˆ ‡†” ˆˆ‰ Œ†„ƒ,   ‡†”Žƒ„",audio_22_360.mp3 +”Š„ƒ‚– ™ Ÿ” †‰„ ˆƒ ˆ ˆˆƒ — ƒŠƒŠ„ˆƒ„† €†Ž. €‰ „ˆƒ‚21.06.2016 † ƒ‚‚ƒ„ƒ ™ ‘-Ÿ” †‰„ ˆƒ ˆ ‚†€ ’„ˆƒ ˆ ‡†” ˆˆˆ –€†ˆ,audio_22_361.mp3 +"‚ƒ„„ˆƒ„ƒ, ‡†”Ž €– ‘†ƒ  Ÿ” †‰„ ‚†€‰, ”Ž†„ †ƒ ™ •† ˆ ‚”Š€†ƒ‚‚†. ‡”—Žˆƒ  ”‚Žˆƒ € ‡ •† ˆ ˆŠ ˆ ˆˆ‰ ˆŠ",audio_22_362.mp3 +"ƒ„ƒ ˆƒŠŽƒ‚‚†. ™ Ÿ” †‰„ ˆƒ ˆ”-6 ††ˆ ‘†ƒ €–Žˆƒ ˆ € ˆŠ ‰ƒ†ƒ‚€„ ƒ†‰ ˆ”-6() □ƒœƒ„‰ ‰ƒ†ƒ‚€□ž‚ƒ. ˆ”-6(□) €–‰□, ’„† 2 ˆ□ ”□„□ ‘†ƒ…",audio_22_363.mp3 +‡†□□”ž„ƒ„ƒ €–‰□ €□›ƒ □ …□‚□€ ‘„ □ƒ„† €□ ˆ ‡†□□”ž□ œ†„ƒ□□□□„†ƒ„ƒ ˆƒš„†ƒ‚‚†. ˆ”-1(□) ’„ˆƒ €–‰□ ˆ”-6 † 2 ˆ□ ”□„□†ƒ… ‡†□□”ž €– €□›ƒ □ …□‚□€,audio_22_364.mp3 +"‘„ □ƒ„† ’„□ †□‚ ƒš□□□□„†ƒ„ƒ ˆƒšžƒ‚‚†. €.€.ˆƒ.21082/2017 ”□□†—„□ ‰ƒ†ƒ‚€□‰†ƒ… ˆ”-6 † 2 ˆ□ ”□„□†ƒ… €– ‡†□□”ž„„□ □ , ’„ˆƒ ˆ ˆˆ□ €”›□€□□ƒšƒ –•†ƒ”š€„ˆ □ƒ„† €†ž□□.""",audio_22_365.mp3 +"52. On going through the said testimony of pw.1, he deposed, on the date of he gave loan to accused, he got executed loan agreement",audio_22_366.mp3 +"from the accused on the day itself. Though, he contended as such, the complainant for the reasons best known to him, and his claim is",audio_22_367.mp3 +"based on the said document, he not chosen to judgment 43 c.c.no.21084/2017 produce its original or its certified copy. Whenm.kempaiah vs. g.t.muralidhar on 4 december,",audio_22_368.mp3 +2020,audio_22_369.mp3 +"Even, not produce the said documents in the present Cas. , the complainant has not assigned any valid reason. However, the accused got produced the certified",audio_22_370.mp3 +copy of the alleged agreement produced by the complainant herein in c.c.no.21082/2017 at ex.d5. 53. The Adv. for the accused has attack on the alleged,audio_22_371.mp3 +"agreement relied by the complainant. Wherein, the pw.1 has deposed that, the accused brought e-stamp paper on the said day itself. Even he deposed, accused",audio_22_372.mp3 +"himself got typed and brought the same and he was not instructed about the recitals of the said agreement. As per say of pw.1, he",audio_22_373.mp3 +"deposes, accused himself got purchased the e-stamp paper and got typed the recitals. From which, it made clear that, before the complainant alleged to be",audio_22_374.mp3 +"handed over the alleged loan to the accused, the accused himself got typed the recitals. Therefore, it made clear that, the complainant is not instructed",audio_22_375.mp3 +"the recitals of the ex.d5. Then, how the accused has anticipated that, the complainant is going to pay the huge loan of rs.6 lakhs to",audio_22_376.mp3 +"him and what was the terms and conditions as to the payment of interest and time bond for its repayment needs explanation. Therefore, as per",audio_22_377.mp3 +"say of complainant, he not dictated judgment 44 c.c.no.21084/2017 the terms. Therefore, the person who is going to get the loan without got received the",audio_22_378.mp3 +"loan amount, himself got typed the terms and conditions itself is unilateral document and unknown to law. After the receipt of money, then got executed",audio_22_379.mp3 +"and issued the loan document, then it could have been accepted, but before doing so, the accused shown his extraordinary interest to got prepare the",audio_22_380.mp3 +"ex.d5 recitals itself creates doubt and hence, it is not safe rely upon the contention of complainant. 54. That apart, the said evidence of pw.1",audio_22_381.mp3 +"it also discloses that, after got typed the agreement in the presence of complainant and accused, themselves have singed the same and no other persons",audio_22_382.mp3 +"were singed. No doubt, in the deposition on close reading of the sentence, it prima-facie appears that, except the word has left. Hence, from the",audio_22_383.mp3 +"say of the complainant, it made clear that, except the complainant and accused none were present. Even he deposed, after he gave money to the",audio_22_384.mp3 +"accused got received the ex.d5, he went back to home. The accused has denied the very execution and issuance of ex.d5 loan agreement in favour",audio_22_385.mp3 +"of complainant, but strongly alleged that, on obtaining signed blank e- stamp paper as tendered at ex.d4, the pw.1 took the blank document from the",audio_22_386.mp3 +"accused and later it was got created by the complainant. Judgment 45 c.c.no.21084/2017 55. On going through the ex.d5 it prima-facie discloses, two witnesses are",audio_22_387.mp3 +"singed as e.n.divakara and p.kannan, other than the signature of the complainant and accused. The pw.1 has deposed, except the complainant and accused none were",audio_22_388.mp3 +"singed, then it is the complainant needs to explain, how their signatures came on ex.d5 as witnesses is not been explained. Therefore, the participation of",audio_22_389.mp3 +"the said witnesses itself creates doubt as to due execution and issuance of ex.d5 loan agreement. 56. That apart, there was suggestion made to pw.1",audio_22_390.mp3 +"that, the admitted signature of ex.d5 in front page and the alleged signature found in backside of the said document appears to be altogether different",audio_22_391.mp3 +"is been suggested to pw.1, but he not denied the same and deposed, the accused wrote the same. By way of suggesting so, the accused",audio_22_392.mp3 +"was taken up the contention that, whatever the signaturem.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_22_393.mp3 +"Of pw.1 rather convinced his claim as to the alleged lent of loan by him to the accused and in turn, accused got executed ex.d5",audio_22_394.mp3 +"in favour of the complainant. 57. On going through the said ex.d5, it discloses, the complainant and accused were friends and accused was tenant under",audio_22_395.mp3 +"the judgment 46 c.c.no.21084/2017 complainant. If at all, the accused was friend rather tenant under the complainant, was it permissible to make recital as such",audio_22_396.mp3 +itself created doubt. It also pleaded by the complainant for the purpose of development of flower decoration business and prepare iron frames and for purchase,audio_22_397.mp3 +"of decorated items, the accused was in need of rs.6 lakhs and accordingly, in the presence of witnesses singed in the document, the accused alleged",audio_22_398.mp3 +to be received rs.6 lakhs and undertakes to repay the same within 6 months with monthly interest at 18% p.a. On going through the said,audio_22_399.mp3 +"recitals, if at all, the accused himself borrowed loan for the reasons urged in exd5, definitely, it is the complainant needs to furnish necessary explanation.",audio_22_400.mp3 +"For the said requirement as contended by the complainant, was it need of rs.6 lakhs, is also created doubt. 58. That apart, if at all,",audio_22_401.mp3 +the witnesses were signed and ex.d5 was already in the hands of complainant as on the date of alleged issuance of legal notice or prepare,audio_22_402.mp3 +"the complaint definitely, the presence of witnesses with their particulars might have been mentioned, but the same is lapse. That apart, pw.1 has deposed, except",audio_22_403.mp3 +"the complainant and accused, none other were signed the ex.d5, which indicates the signature of the alleged witnesses were came subsequently. Hence, there is some",audio_22_404.mp3 +"force in the defence of judgment 47 c.c.no.21084/2017 the accused that, ex.d5 is created for the convenience of complainant. 59. That apart, the ex.d5 also",audio_22_405.mp3 +"discloses, accused himself undertakes to pay the interest at 18% p.m. Amounting to 216% p.a., which is unknown to the law and against the banking",audio_22_406.mp3 +rules and regulations. No prudent man for the huge amount of rs.6 lakhs would not agreed to pay the monthly interest at 18% p.m. Amount,audio_22_407.mp3 +"to 216% p.a. Taken in to consideration of the said recitals, if the accused undertakes to pay the interest at 18% p.m., he needs to",audio_22_408.mp3 +"pay 18% interest per rs.1 lakh and accordingly, for rs.6 lakhs, he needs to pay rs.1,08,000/- per month. Was it permissible to pay the interest",audio_22_409.mp3 +"of rs.1,08,000/- p.m. For the loan of rs.6 lakhs is created doubt. If accused agreed to borrow loan for the said huge amount, for the",audio_22_410.mp3 +"agreed period of 6 months if any taken in to interest of rs.1,08,000/- p.m. Amounting to rs.6,48,000/- it will be beyond the alleged loan of",audio_22_411.mp3 +rs.6 lakhs. The very contention of the complainant is reckless and not safe to relied upon. No prudent man for the huge interest of 18%,audio_22_412.mp3 +"p.m. Would not borrow loan that too being a flower seller/decorator. Therefore, on going through the ex.d5 rather it support the claim of complainant, it",audio_22_413.mp3 +"created doubt as to the alleged claim of complainant. Judgment 48 c.c.no.21084/2017 60. On going through the recitals it discloses, as on the date of",audio_22_414.mp3 +"alleged execution of ex.d5 dated:21.06.2016, the accused was tenant under the complainant. As stated earlier, the accused was forcefully quit by the complainant on 10.03.2017.",audio_22_415.mp3 +"From which, it made clear that, whatever the advance amount paid by the accused was with held by the complainant and if at all, he",audio_22_416.mp3 +"lent loan ofm.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_22_417.mp3 +"Said money, the same could have been adjusted against the alleged loan of rs.6 lakhs. No prudent man would do so, therefore, the say of",audio_22_418.mp3 +"complainant rather support his contention, it creates strong doubtful circumstances as to the genuineness of the transaction. 61. No doubt, the complainant without citing the",audio_22_419.mp3 +"witnesses name in the ex.d5 in his pleading as well as he deposed, except the complainant and accused none were signed. Then how, all of",audio_22_420.mp3 +"sudden, the pw.2 came into witness box and deposed, complainant gave rs.6 lakhs to accused and on that day, ex.d5 came into force, he got",audio_22_421.mp3 +"singed as witness. In his cross-examination he deposed as to the alleged transaction that: ""„ˆƒ□‚21.06.2016 †ƒ„ƒ †•—— †…† ’ƒ‰š, ˆˆˆ …ƒ□□□ž€† „ , ’□ ‡†□□”žˆƒ",audio_22_422.mp3 +□ˆ ‰□□…□ ’ƒ‰šž ”□□„□„ƒ ˆ ˆ□□š„ˆ. Judgment 49 c.c.no.21084/2017 ”Ž†„ ’ „ˆ –—„  –†„ €ƒ ‰ ’‰ Œƒ„„„†ƒ. ‡ †‚ Ž „ –—„ ,audio_22_423.mp3 +"–† ‡‰, ˆˆƒ €ƒ‹ƒ ‹ € ˆƒŠŽƒ‚‚„ˆ ƒ„† €†Ž."" 62. On going through the evidence of pw.2, though he is unnecessary witness as his name",audio_22_424.mp3 +"was not cited earlier, either in the pleading or as deposed by the pw.1, all of sudden he came in to witness box and deposed.",audio_22_425.mp3 +"In his cross-examination, he deposed, on 21.06.2016 his venkateshwara engraves shop, the shop of rajanna were situated abutting. Wherein, he saw the accused. The complainant",audio_22_426.mp3 +"and accused for doing monetary business came there. It was suggested to him that, in that manner no monetary transaction were happened and hence, it",audio_22_427.mp3 +"is not safe to rely upon the evidence of the pw.2. Taken in to the evidence of pw.2, he disclosed the alleged loan transaction not",audio_22_428.mp3 +"taken place in the house of complainant or accused. But he was stated, it was alleged to be happened somewhere near the shops. Therefore, the",audio_22_429.mp3 +"very say of pw.2 also created doubt, as to his presence on the alleged date of execution of loan agreement. The evidence of pw.2 is",audio_22_430.mp3 +"not clarificatory from the point of evidence led by the complainant. Therefore, the evidence of pw.1 and pw.2 is not safe to place reliance to",audio_22_431.mp3 +"prove the guilt of the accused. Judgment 50 c.c.no.21084/2017 63. The complainant has pleaded, as agreed within 6 months, the accused has not repaid money",audio_22_432.mp3 +"and whenever he requested for repayment he, by stating there were ups and downs in his business on account of demonetarization of money and finally",audio_22_433.mp3 +"on 01.05.2017, he got issued the questioned cheque in his favour. But, the accusedm.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_22_434.mp3 +"Questioned cheque for payment of alleged loan amount. But strongly taken up the defence that, in order to procure led bulb contract the complainant took",audio_22_435.mp3 +"his signed 3 blank cheques and 2 signed blank cheques of his sister-in-law without procuring the business, forcefully quit the accused from the rented premises,",audio_22_436.mp3 +"when he demanded for repayment of advance amount, then got misused his cheque and e-stamp paper. Thereby, contended questioned cheque was given by him as",audio_22_437.mp3 +"a security for procure led bulb contract. The complainant not stated that, he was procure led bulb contract to the accused. The ex.d2 clearly manifest",audio_22_438.mp3 +"the role of complainant, in doing the said business. Unless, the accused was not assured by the complainant, definitely, no need to accused to affix",audio_22_439.mp3 +"his signature as witness to the service provider agreement entered in to between complainant with the concern. The pw.1 in his cross-examination has deposes that,",audio_22_440.mp3 +on 01.05.2017 itself the cheque involved in the present Cas. as well as cheque involved in judgment 51 c.c.no.21084/2017 c.c.no.21082/2017 given by the accused by,audio_22_441.mp3 +"himself filled. Later, he also deposed, the accused earlier got filled the cheque and not written in his presence. Even he deposed, in his presence",audio_22_442.mp3 +"accused was not signed the same. More categorically the pw.1 has deposed that: ""‡ 2 š□ƒ □ ‰‹□ ‡†□□”ž €– –‰□ ‹„ œ†–‰‹ƒ œ□† œ□†",audio_22_443.mp3 +"‘ƒ□ˆƒ„ □□š„ □ƒ„† €†."" 64. The pw.1 categorically admitted that, the hand writing in both the cheques as well as the signature are made in",audio_22_444.mp3 +"different hand writing and ink. Thereby, it made clear that, whatever the fillings are made in the cheque are not of the accused. On meticulous",audio_22_445.mp3 +"perusal of the ex.p1-cheque, it clearly discloses, the admitted signature of the accused and other writings are made in different hand writing. The complainant has",audio_22_446.mp3 +failed to demonstrate the due execution of cheque by the accused in respect of the alleged loan transaction. When the complainant utterly failed to prove,audio_22_447.mp3 +"the due execution and issuance of cheque in respect of repayment of portion of loan of rs.3 lakhs. The accused being an educated, no impediment",audio_22_448.mp3 +"to get fill the cheque in his own hand writing. If he liable to pay the amount covered under the cheque. Therefore, it made clear",audio_22_449.mp3 +"that, the accused only gave signed blank cheque to the complainant as the defence placed by him in connection to procure led bulb contract, judgment",audio_22_450.mp3 +"52 c.c.no.21084/2017 but the same got misused by the complainant and projected the present Cas. , as he lent loan to accused for rs.6 lakhs. When",audio_22_451.mp3 +"the complainant himself not able to refund the cash security of rs.1,50,000/- to accused, as the legal debt payable to him, once again he came",audio_22_452.mp3 +forward to pay huge amount loan of rs.6 lakhs as alleged in the complaint itself created doubt. 65. On going through the ex.d3 the acknowledgment,audio_22_453.mp3 +"given by the police, it also creates doubt on Anr. corner that, the complainant as alleged against one kumar, who is one of the partner",audio_22_454.mp3 +"in ex.d2 agreement, despite, he took rs.5 lakhs, not supplied led bulbs to him. From which, it has to be gather that, the complainant try",audio_22_455.mp3 +to brought the dispute with kumar by misusing the questioned cheque of the accused in filing the present Cas. . The very Cas. placed by the,audio_22_456.mp3 +"complainant, no where corroborates his own documents. No doubt, the Cas. filed by manjunath against smt.h.J. mamatha. It discloses, their advocates are one and the",audio_22_457.mp3 +"same. No doubt, the dispute involved in the said Cas. ism.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_22_458.mp3 +"Defence that, the questioned cheque was not issued by him to the complainant in respect of payment of any liability. Despite, it creates reverse burden",audio_22_459.mp3 +"on the complainant to prove the very transaction judgment 53 c.c.no.21084/2017 beyond the reasonable doubt, he utterly failed to do so. Thereby, the accused is",audio_22_460.mp3 +entitled for acquittal. It is relevant to cite the decision reported in 2015 (1) SC cases 99 kccr 1569 (k.subramani v/s. K.damodara naidu). Wherein,audio_22_461.mp3 +"the Hon'ble apex court observed that: ""debt, financial and monetary laws - NI Act , 1881 - Ss. 138, 118 and 139 - dishonour of",audio_22_462.mp3 +cheque - legally recoverable debt not proved as complainant could not prove source of income from which alleged loan was made to appellant- accused -,audio_22_463.mp3 +"presumption in favour of holder of cheque, hence, held, stood rebutted - acquittal restored"". 66. As per the said dictum, it made clear that, in",audio_22_464.mp3 +"view of the accused attack on the claim of complainant, it is the complainant needs to prove the source of income from the alleged loan",audio_22_465.mp3 +"was disbursed to the accused. In that regard, no source or accumulation of fund has been demonstrated by the complainant in order to pay the",audio_22_466.mp3 +"alleged loan to the accused. That apart, whatever the amount of refund of advance payable to the accused was not paid by the complainant at",audio_22_467.mp3 +"the time of he quit from rented premises. If at all, any amount was really payable by the accused as alleged in the present Cas. ,",audio_22_468.mp3 +"question of refund as deposed by the pw.1 does not arise. Judgment 54 c.c.no.21084/2017 normally, no common man without deducting the recoveries, then only would",audio_22_469.mp3 +"return balance. Therefore, from that point also it creates doubt as to the bonafidness of the complainant. Though the transaction has covered under exs.d2 and",audio_22_470.mp3 +"d3 were held between complainant and the concern with regard to supply of led bulb contract, the complainant has denied the same earlier and later",audio_22_471.mp3 +"on showing document admitted. Though, he lodged complaint against one of the partner by name kumar as per ex.d3, for the reasons better known to",audio_22_472.mp3 +"him, he denied the same. When he made allegation against kumar as the payment of rs.5 lakhs and non-supply of led bulb materials, once again",audio_22_473.mp3 +"how the complainant came forward to pay the huge amount of rs.6 lakhs to the accused, itself created doubt. The complainant has utterly failed to",audio_22_474.mp3 +"prove his Cas. beyond the reasonable doubt in proving the guilt of the accused. Hence, the accused is entitled for benefit of doubt for acquittal.",audio_22_475.mp3 +"67. On overall appreciation of the material facts available on record, it discloses that, despite the accused harping on the very claim of the complainant,",audio_22_476.mp3 +"he fails to demonstrate his very Cas. . While appreciate the materials available on record, this court has humbly gone through the decision relied by both",audio_22_477.mp3 +"parties apart from the following decisions. Judgment 55 c.c.no.21084/2017 in the decision reported in ilr 2009 kar 2331 (b.indramma v/s. Sri.eshwar). Wherein, the Hon'ble court",audio_22_478.mp3 +"held that:m.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_22_479.mp3 +"The complainant and its receipt by complainant from the accused itself is seriously disputed by the accused, his admission in his evidence that, the cheque",audio_22_480.mp3 +"in question bares his signature would not be sufficient proof of the fact that, he delivered the said cheque to the complainant and the latter",audio_22_481.mp3 +"received if from the former"". 68. The principle of law laid down in the above decision is applicable to the facts of this Cas. . Merely",audio_22_482.mp3 +"because, the accused admits that, cheque bares his signature, that, does not mean that, the accused issued cheque in discharge of a legally payable debt.",audio_22_483.mp3 +"At this stage, this court also relies upon Anr. decision reported in air 2007 noc 2612 a.p. (g.veeresham v/s. Shivashankar and Anr. ). Wherein, the Hon'ble ",audio_22_484.mp3 +"court has held as under: ""NI Act (26 of 1881). S. 138 dishonour of cheque - presumptions available to complainant under S. 118 and",audio_22_485.mp3 +"S. 139 of act - rebuttal of cheque in question was allegedly issued by accused to discharge hand loan taken from complainant. However, no material",audio_22_486.mp3 +"placed on record by complainant judgment 56 c.c.no.21084/2017 to prove alleged lending of hand loan said fact is sufficient to infer that, accused is liable",audio_22_487.mp3 +"to rebut presumptions available in favour of complainant under Ss. 118 and 139 of act, order acquitting accused for offence under S. 138 proper"". 69.",audio_22_488.mp3 +"The principle of law laid down in the above decisions is applicable to the facts of this Cas. . In the Cas. on hand also, as",audio_22_489.mp3 +"discussed above, the complainant has failed to prove with cogent evidence as to the lending of loan of rs.6 lakhs to the accused. Thus, that",audio_22_490.mp3 +"fact itself is sufficient to infer that, accused is able to rebut presumptions available in favour of complainant under Ss. 118 and 139 of the",audio_22_491.mp3 +NI Act . In a decision reported in air 2006 SC 3366 (m.s.narayana menon alian mani v/s. State of kerala and Anr. ). The Hon'ble ,audio_22_492.mp3 +"apex court held that: ""once the accused discharges the initial burden placed on him the burden of proof would revert back to the prosecution"". 70.",audio_22_493.mp3 +"In this Cas. on hand also, on the lapse of the complaint failed to prove the alleged loan transaction, it can gather the probability that,",audio_22_494.mp3 +"he is not liable to pay ex.p1 cheque amount of rs.3 lakhs and it is not legally recoverable debt. So, the burden is on the",audio_22_495.mp3 +"complainant to prove strictly with cogent and believable judgment 57 c.c.no.21084/2017 evidence that, the accused has borrowed the amount and he is legally liable to",audio_22_496.mp3 +"pay the same. Just because, there is a presumption under S. 139 of NI Act , that, will not create any special right to the",audio_22_497.mp3 +"complainant so as to initiate a proceeding against the drawer of the cheque, who is not at all liable to pay the cheque amount. The",audio_22_498.mp3 +"accused has taken his defence at the earliest point of time, while record accusation and statement under S. 313 of Cr.P.C. by",audio_22_499.mp3 +"way of denial. The evidence placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheque form.kempaiah vs. g.t.muralidhar on",audio_22_500.mp3 +"4 december, 2020",audio_22_501.mp3 +"The offence punishable under S. 138 of NI Act . Apart from that, in a decision reported in, kccr 12 (3) page 2057, the Hon'ble ",audio_22_502.mp3 +"apex court held that: ""mere issuance of cheque is not sufficient unless it is shown that, the said cheque was issued towards discharge of legally",audio_22_503.mp3 +"recoverable debt. When the financial capacity of complainant is questioned, the complainant has to establish his financial capacity"". Judgment 58 c.c.no.21084/2017 71. In the Cas. ",audio_22_504.mp3 +"on hand, accused has questioned the financial capacity of complainant. Complainant has not produced any document to show his financial capacity to lend an amount",audio_22_505.mp3 +"of rs.6 lakhs to accused. When complainant has failed to prove the transaction alleged in the complaint, then the question of issuing the cheque for",audio_22_506.mp3 +"partial discharge of rs.3 lakhs does not arise. The evidence placed on record clearly probablize that, complainant has failed to prove that, accused issued the",audio_22_507.mp3 +"cheque for partial discharge of liability of rs.3 lakhs. Hence, complainant has failed to prove the guilt of accused for the offence punishable under S. ",audio_22_508.mp3 +"138 of NI Act . 72. From the above elaborate discussions, it very much clear that, the complainant has failed to adduce cogent and corroborative",audio_22_509.mp3 +"evidence to show that, accused has issued cheque- ex.p1 in discharge of his legally payable debt for valid consideration. The presumption envisaged under S. 138",audio_22_510.mp3 +"of NI Act is mandatory presumption and it has to be raised in every cheque bounce cases. Now, it is settled principles that, to",audio_22_511.mp3 +"rebut the presumption, accused has to set up a probable defence and he need not prove the defence beyond reasonable doubt. Accordingly, as discussed above,",audio_22_512.mp3 +the accused has established his probable defense and thereby rebutted the judgment 59 c.c.no.21084/2017 statutory presumptions as well as the claim put forth by the,audio_22_513.mp3 +"complainant. 73. Thus, on appreciation of evidence on record, i hold that, the complainant has failed to prove the Cas. by rebutting the presumption envisaged",audio_22_514.mp3 +under Ss. 118 and 139 of NI Act . The complainant has failed to discharge the initial burden to prove his contention as alleged in,audio_22_515.mp3 +"the complaint. Hence, the complainant has not produced needed evidence to prove that, amount of rs.3 lakhs legally recoverable debt. Therefore, since the complainant has",audio_22_516.mp3 +"failed to discharge the reverse burden, question of appreciating other things and weakness of the accused is not a ground to accept the claim of",audio_22_517.mp3 +the complainant in its entirety without the support of the substantial documentary evidence pertaining to the said transaction. The complainant fails to prove his Cas. ,audio_22_518.mp3 +"beyond all reasonable doubt. As discussed above, the complainant has utterly failed to prove the guilt of the accused for the offence punishable under S. ",audio_22_519.mp3 +"138 of NI Act . Accordingly, im.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_22_520.mp3 +"74. Point no.3: in view of my findings on point nos.1 and 2, i proceed to pass the following: judgment 60 c.c.no.21084/2017 order acting under",audio_22_521.mp3 +S. 255(1) of Cr.P.C. the accused is acquitted for the offence punishable under S. 138 of NI Act . The bail bond,audio_22_522.mp3 +"and cash security/surety bond of the accused stands cancelled. (dictated to stenographer, transcribed and computerized by him, corrected and then pronounced by me in the",audio_22_523.mp3 +"open court on this the 4 th day of december - 2020) (shridhara.m) xxiii addl. Chief MM , bengaluru. Annexure list of witnesses examined on",audio_22_524.mp3 +behalf of complainant: pw-1 : m.kempaiah pw.2 : p.kannan list of exhibits marked on behalf of complainant: ex.p1 : original cheque ex.p1(a) : signature of,audio_22_525.mp3 +accused ex.p2 : bank endorsement ex.p3 : office copy of legal notice ex.p4 : postal acknowledgment card ex.p5 : reply notice list of witnesses examined,audio_22_526.mp3 +on behalf of the defence: dw.1 : g.t.muralidhar list of exhibits marked on behalf of defence: ex.d1 : house rental agreement ex.d1(a) : signature of,audio_22_527.mp3 +accused ex.d2 : acknowledgment judgment 61 c.c.no.21084/2017 ex.d3 : xerox copy of service provider agreement ex.d3(a) & d3(b) : signatures of complainant and accused ex.d4,audio_22_528.mp3 +": xerox copy of empty e-stamp paper ex.d4(a) : signature of accused ex.d5 : copy of loanm.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_22_529.mp3 +"judgment 62 c.c.no.21084/2017 09.11.2020. Comp - accd - for judgment while preparing judgment, it was noticed by both side counsels that, on going through the",audio_22_530.mp3 +"Cas. records and documents marked by the accused, it discloses, through the pw.1, the accused got marked exs.d1 to d3 on 07.06.2018. Thereafter, on 25.05.2019,",audio_22_531.mp3 +"he got marked Anr. document in the evidence of dw.1. Inspite of mark ex.d5 on the document produced and marked on 25.05.2019, it was wrongly",audio_22_532.mp3 +"marked as ex.d1 and signature at ex.d1(a). Therefore, in order to avoid confusion and asserting the rank of the documents, whatever the document produced by",audio_22_533.mp3 +the accused on 25.05.2019 is remarked as ex.d5 and signature as ex.d5(a). This order shall be read as part and parcel of the order sheet,audio_22_534.mp3 +"and deposition dated:25.05.2019. Kept by judgment. Xxiii addl. Chief MM , bengaluru. Judgment 63 c.c.no.21084/2017 04.12.2020. For judgment Cas. called out. Complainant and accused are",audio_22_535.mp3 +"absent. No representation from both side advocates, despite, web-host the Cas. proceedings and intimate the date of pronouncement of judgment. Hence, as per S. 353(6)",audio_22_536.mp3 +of Cr.P.C. the following judgment is pronounced in the open court vide separate order. ***** order acting under S. 255(1) of code,audio_22_537.mp3 +of Crl. procedure the accused is acquitted for the offence punishable under S. 138 of NI Act . The bail bond and cash security/surety bond,audio_22_538.mp3 +"of the accused stands cancelled.m.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_22_539.mp3 +"Sri.vijaykumar.h vs. smt.hema.k.c on 5 september, 2022 kabc030244062019 presented on : 01-04-2019 registered on : 01-04-2019 decided on : 05-09-2022 duration : 3 years, 5",audio_23_1.mp3 +"months, 4 days in the court of xx addl.chief MM at bengaluru city present: bhola pandit, b.com.,ll.m., xx addl. C.m.m. Bengaluru. Dated this the",audio_23_2.mp3 +"5th day of september 2022 c.c.no.8012/2019 complainant : sri.vijaykumar.h, s/o sri.hanumaiah, age 45 years, r/at.no.244, anjana nilaya, gandadagudi road, near maheshwari temple, maheshwarinagar, t.dasarahalli, bengaluru-",audio_23_3.mp3 +"560 057. { by sri.b.k.devaraju - Adv. } 2 c.c.8012/2019 vs. Accused : smt.hema.k.c. W/o sri.lohith, age 35 years, r/at.no.30, 23rd cross, subban building, bhuvaneshwari",audio_23_4.mp3 +"nagar, near gangadharaiah temple, t.dasarahalli, bengaluru- 560 057. { by sri.c.ramakrishnaiah - Adv. }sri.vijaykumar.h vs. smt.hema.k.c on 5 september, 2022",audio_23_5.mp3 +Plea of accused : pleaded not guilty final order : accused is convicted date of order : 05-09-2022 judgment the present complaint is filed under,audio_23_6.mp3 +S. 2(d) r/w S. 200 of Cr.P.C. against the accused seeking to punish her for the offence punishable under S. 138,audio_23_7.mp3 +"of the NI Act ( in short referred as ""n.i. Act""). 02. The factual matrix of the complaint is summarized as under; it is",audio_23_8.mp3 +"averred in the complaint that, he knows the accused since many years and for the family and legal necessities, the accused had borrowed hand loan",audio_23_9.mp3 +"of rs.4,00,000/- from the complainant by way of cash on several dates and accused has promised to repay the said amount within a short period.",audio_23_10.mp3 +"Towards the discharge of here liability, the accused has issued a cheque bearing No. 000009 dated 27.12.2018 for a sum of rs.4,00,000/- drawn on kotak",audio_23_11.mp3 +"mahindra bank, peenya branch, bengaluru in favour of the complainant. The complainant has presented the said cheque for encashment through his banker axis bank, tumkur",audio_23_12.mp3 +"road branch, bengaluru, but it returned unpaid with banker's endorsement dated 06.02.2019 as ""funds insufficient"". On 13.02.2019, demand notice was issued to the accused by",audio_23_13.mp3 +"rpad. The demand notice issued by rpad has been duly served to the accused on 19.02.2019. Inspite of service of legal notice, the accused neither",audio_23_14.mp3 +"has paid the cheque amount nor has given any reply. On these assertions, it is sought to punish the accused for the offence punishable under",audio_23_15.mp3 +"S. 138 of ni act and to order for compensation as per S. 357 of Cr.P.C. . 03. On presentation of complaint, this",audio_23_16.mp3 +court has verified the averments of complaint along with records and thereby had taken cognizance for the offence punishable under S. 138 of ni act.,audio_23_17.mp3 +"Thereby, as per the verdict of the Hon'ble apex court reported in air 2014 SC 1983 in the Cas. of indian bank Assn. and",audio_23_18.mp3 +"Ors. v/s UOI and Ors. , the sworn statement of the complainant has been recorded as pw.1 and got exhibited five documents at ex.p.01",audio_23_19.mp3 +"to 05. Having been made out the prima-facie Cas. , the complaint has been registered in register No. iii and issued process against the accused. 04.",audio_23_20.mp3 +"In response to the summons, the accused put his appearance before the court through his counsel and filed bail Appl. under S. 436 of code",audio_23_21.mp3 +"of Crl. procedure, the accused hassri.vijaykumar.h vs. smt.hema.k.c on 5 september, 2022",audio_23_22.mp3 +"He pleaded not guilty and intends to put forth his defense. On filing Appl. by the complainant under S. 145(1) of ni act, sworn statement",audio_23_23.mp3 +"of the complainant has been treated as examination in chief. Similarly, on filing Appl. under S. 145(2) of ni act, the accused has been permitted",audio_23_24.mp3 +"to cross examine pw.1. On completion of the trial of the complainant's side, the Cas. was posted for accused statement under S. 313 of code",audio_23_25.mp3 +"of Crl. procedure. The accused did not appeared before the court, this attitude of the accused shows to protract the proceedings and this attitude of",audio_23_26.mp3 +"the accused is against the spirit of the ni act and also. Therefore, in view of guidelines in the Cas. of indian bank Assn. and",audio_23_27.mp3 +"Ors. v/s UOI and Ors. , and as per the judgment of kent HC in Crl. rp. No.437/2010 dated 28.06.2012, the proceedings being",audio_23_28.mp3 +held as summary in nature. The statement of accused under S. 313 of Cr.P.C. has been taken as not recorded. In the,audio_23_29.mp3 +"ratio laid down by the Hon'ble HC of karnataka, in Crl. rp. No.437/2010 dated 28.06.2012, wherein it is held that; ""it is for the",audio_23_30.mp3 +accused to appear before the court and to have defended himself effectively and to make himself available for the court to record the statement under,audio_23_31.mp3 +"S. 313 of Cr.P.C. ."" the accused himself not appeared before the court to give explanation to the incriminating evidence appeared in the",audio_23_32.mp3 +"trial of the complainant's Cas. . Further, Cas. was posted for defense evidence. The accused has entered in the witness box and adduced the defense as",audio_23_33.mp3 +dw.1 and not produced any documents before the court. 05. Heard the oral argument of learned counsels for both the parties. The learned counsel for,audio_23_34.mp3 +"the complainant has filed written arguments. Perused the materials available on record. In support of his written arguments, the learned counsel for the complainant has",audio_23_35.mp3 +relied the following verdicts; 1. Ilr 2019 kar 493 sri.yogesh poojary vs. Sri.k.shankara bhat 2. Air 2010 SC 1898 rangappa vs. Mohan 3. Air,audio_23_36.mp3 +2018 SC 3601 t.p.murugan (dead) thr.lrs. Vs. Bojan posa nandhi represented by thr power of attorney holder. T.p.murugan vs. Bojam 4. 2007 air scw,audio_23_37.mp3 +3578 c.c.alavi haji vs. Palapetty muhammed and anr. I have carefully and meticulously gone through the above relied precedents. 06. The following points that arise,audio_23_38.mp3 +"for my consideration are as under; pointssri.vijaykumar.h vs. smt.hema.k.c on 5 september, 2022",audio_23_39.mp3 +"Bearing No. 000009 dated 27.12.2018 for a sum of rs.4,00,000/- towards the discharge of his lawful liability of the complainant and when the said cheque",audio_23_40.mp3 +"was presented for encashment, it was returned unpaid due to ""funds insufficient"" in the account of the drawer as per banker's memo and inspite of",audio_23_41.mp3 +"issuance of demand notice, the accused has failed to pay the cheque amount, thereby has committed the offence punishable under S. 138 of ni act?",audio_23_42.mp3 +2. What order or sentence ? 07. My findings to the above points is as follows; 1. Point no.1: in the affirmative 2. Point no.2:,audio_23_43.mp3 +"as per final order for the following; reasons 08. Point no.1: it is the specific Cas. of the complainant that, the accused had borrowed hand",audio_23_44.mp3 +"loan of rs.4,00,000/- in cash from the complainant to meet her family and legal necessities and towards discharge of the said hand loan amount, the",audio_23_45.mp3 +"accused has issued the disputed cheque and when the said cheque was presented for encashment, it returned unpaid due to ""funds insufficient"" in the account",audio_23_46.mp3 +"of the drawer and inspite of receipt of demand notice, the accused has failed to make the payment of the cheque amount. 09. To substantiate",audio_23_47.mp3 +and establish this fact before the court beyond reasonable doubts as per the verdict of the Hon'ble apex court in the Cas. of indian bank,audio_23_48.mp3 +"Assn. and Ors. v/s UOI and Ors. , the sworn statement of the complainant has been treated as Aff. evidence. In his Aff. ",audio_23_49.mp3 +"evidence, pw.1 has replicated the averments of the complainant. To corroborate the evidence of pw.1, the complainant has placed on record in all five documents",audio_23_50.mp3 +"as per ex.p.1 to 5. Ex.p.1 is the disputed cheque dated 27.12.2018, ex.p.1 (a) is the signature of accused, ex.p.2 is the banker's memo dated",audio_23_51.mp3 +"06.02.2019, which shows the reasons for the return of the cheque at ex.p.1 for unpaid is as ""funds insufficient"" , ex.p.3 is the legal notice",audio_23_52.mp3 +"dated 13.02.2019 demanding for payment of cheque amount by replicating the averments of complaint, which was duly served to the accused on 19.02.2019. Ex.p.4 is",audio_23_53.mp3 +the the postal receipt about sending legal notice at ex.p.3 and ex.p.5 is the postal acknowledgement about receipt of the demand notice. Pw.1 has been,audio_23_54.mp3 +substantially cross examined by the counsel of accused. 10. To disprove the Cas. of the complainant as well as to rebut the statutory presumption which,audio_23_55.mp3 +"could be drawn in favour of the complainant and also to prove the probable defense to the touch stone of preponderance of probabilities, the accused",audio_23_56.mp3 +entered in the witness box and adduced his evidence as dw.1. The prosecuting counsel has substantially cross examined dw.1 in substance. 11. The learned counsel,audio_23_57.mp3 +"for the complainant has filed written argument, wherein it is contended that, the accused has admitted the issuance of cheque and her signature there on,",audio_23_58.mp3 +"but taken a standsri.vijaykumar.h vs. smt.hema.k.c on 5 september, 2022",audio_23_59.mp3 +Before the court and to examine as her witness. By this defense and admission of cheque to pw.1 clearly leads to genuine transaction between complainant,audio_23_60.mp3 +"and the accused and this fact has been proved beyond reasonable doubts. It is further contended that, the complainant also proved beyond reasonable doubts that,",audio_23_61.mp3 +"the accused has borrowed rs.4,00,000/- from the pw.1 to meet her family necessities and the accused has agreed to pay the said due amount and",audio_23_62.mp3 +"towards the said liability, she has issued the disputed cheque. Therefore, the legal presumption shall be raised in favour of the complainant under Ss. 118(a)",audio_23_63.mp3 +"& 139 of ni act. Therefore, he sought to convict the accused. In support of oral argument, the learned prosecuting counsel has relied the above",audio_23_64.mp3 +"judgments as stated above. On the contrary, the learned defense counsel has argued that, the complainant has failed to prove the hand loan transaction. Further",audio_23_65.mp3 +"contended that, by the oral evidence of dw.1, the statutory presumption under S. 118(a) & 139 of ni act has been rebutted. Therefore, the learned",audio_23_66.mp3 +"defense counsel has sought to dismiss the complaint, thereby to acquit the accused. 12. As per Ss. 118(a) & 139 of ni act are two",audio_23_67.mp3 +important provisions and they provides for raising mandatory presumptions in favour of the complainant until the contrary is proved by the accused. Even in the,audio_23_68.mp3 +"catena of decisions i.e., in the Cas. of rangappa vs. Mohan reported in 2010(11) scc 441, in the Cas. of bir singh vs. Mukesh kumar",audio_23_69.mp3 +"reported in 2019(4) scc 197, in the Cas. of aps forex services (p) ltd., vs.shakthi international fashion linkers reported in 2020(12) scc 724, in the",audio_23_70.mp3 +"Cas. of rajeshbai muljibhai patel vs. State of gujarat, reported in 2020(3) scc 794, in the Cas. of triyambak S. hegde vs. Sripad reported in",audio_23_71.mp3 +"live law 2021 SC 492 and it is laid down that, "" once the issuance of cheque and the signature thereon is admitted by",audio_23_72.mp3 +"the accused, the court is required to raise presumption in favour of the complainant stating that, the accused has issued the cheque for some consideration",audio_23_73.mp3 +towards discharge of his legal debt or liability of the complainant and that the complainant is the due holder of the said cheque. The burden,audio_23_74.mp3 +"shifts on the accused to rebut the statutory presumptions under Ss. 118(a) & 139 of ni act."" now, it is well established law that, the",audio_23_75.mp3 +"presumption mandated by S. 139 of ni act, thus indeed includes the existence of legally enforceable debt or liability and it is open for the",audio_23_76.mp3 +accused to raise a probable defense wherein the existence of legally enforceable debt or liability can be contested and he shall prove before the court,audio_23_77.mp3 +"on preponderance of probabilities, only thereupon a statutory presumption raised in favour of the complainant stands rebutted. 13. In the land mark judgment of the",audio_23_78.mp3 +"Hon'ble apex court reported in air 2019 SC 1983 , in the Cas. of basalingappa vs. Mudibasappa in para no.19, the top court of",audio_23_79.mp3 +"the country held that; ""applying the rule of the word 'proved' under S. 3 of evidence act, it became evident that in a trial under",audio_23_80.mp3 +"S. 138, a prosecution will have to be made out every negotiable instrument was made or drawn for consideration and that it was extended for",audio_23_81.mp3 +discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges burden to prove,audio_23_82.mp3 +"that instrument was executed by the accused, the rules of presumptions under S. 118 & 139 help him to shift the burden on the accused.sri.vijaykumar.h",audio_23_83.mp3 +"vs. smt.hema.k.c on 5 september, 2022",audio_23_84.mp3 +"Proved by the accused, i.e. the cheque was not issued for consideration and in discharge of any debt or liability. A presumption itself is",audio_23_85.mp3 +"not evidence, but only makes a prima-facie Cas. for a party to whose benefits it exists. The accused may adduce direct evidence to prove that",audio_23_86.mp3 +"the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court",audio_23_87.mp3 +need not insists in every Cas. the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative,audio_23_88.mp3 +"evidence is neither possible nor contemplated, but bare denial of the passing of consideration and existence of debt, apparently would not serve the purpose of",audio_23_89.mp3 +the accused. Something which is possible has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the,audio_23_90.mp3 +"presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration & debt",audio_23_91.mp3 +"did not exists or their non- existence was so probable, that a prudent man would under the circumstances of the Cas. act upon the plea",audio_23_92.mp3 +"that they did not exists."" 14. Before to appreciate the rival contention of both the parties and also scrutinize the oral and documentary evidence placed",audio_23_93.mp3 +"on record, it is necessary to find out whether the present complaint has been filed in consonance with the provisions of S. 138 of ni",audio_23_94.mp3 +"act or not?. 15. The present complaint is filed on 20.03.2019. On perusal of the disputed cheque, banker's memo, demand notice and also postal acknowledgement",audio_23_95.mp3 +"at ex.p.q to 3 & 5 it appears that, the complaint filed in compliance of S. 138(a) to (c) of ni act. 16. On scrutinizing",audio_23_96.mp3 +"the cross examination of pw.1 from the defense side, a suggestion has been made with regard to non service of demand notice issued by the",audio_23_97.mp3 +"complainant under ex.p.3. But, during his cross examination in para no.2 of page no.3 dw.1 has clearly admitted that, his address shown in the cause",audio_23_98.mp3 +"tiltel of the complaint is correct and he has been residing thereonly. He further admitted that, to his said address the complainant had sent demand",audio_23_99.mp3 +"notice and he has received the same, but he could not given reply to the said notice and also gone through the contents of the",audio_23_100.mp3 +"said notice. Further, as per the postal acknowledgement at ex.p.5, in spite of receipt of demand notice issued under ex.p.3 by the complainant, the accused",audio_23_101.mp3 +"has not given her reply. Therefore, the accused has failed to raise her defense in the beginning itself and as per S. 114 of evidence",audio_23_102.mp3 +"act an adverse inference can be drawn against the accused. On further scrutinizing of cross examination of pw.1 on page no.8, a suggestion has been",audio_23_103.mp3 +"made that, the accused had participated the chit business runned by one manjamma and for the repayment of the said chit amount, the accused had",audio_23_104.mp3 +"issued the disputed cheque of the Cas. to the said manjamma as a security. Though, pw.1 has denied this suggestion, but by taking into account",audio_23_105.mp3 +"of this suggestion to pw.1, it appears that, this is the defense put forth by the accused to rebut the legal presumption. That apart, the",audio_23_106.mp3 +"accused smt.hema has deposed in her oral evidence as dw.1 stating that, she never availed hand loan of rs.4,00,000/- from the complainant in the year",audio_23_107.mp3 +"2019 and she never had given disputed cheque to the complainant. Dw.1 stated that, one smt.manjamma and complainant were doing chit business and she becamesri.vijaykumar.h",audio_23_108.mp3 +"vs. smt.hema.k.c on 5 september, 2022",audio_23_109.mp3 +"Rs.1,30,000/- bid amount and thereafter has repaid the entire chit amount in 10 installments and after repayment of the said amount, when she had requested",audio_23_110.mp3 +"smt.manjamma for the return of her security cheque, she replied that, the said cheque was lost. Dw.1 further testified that, there was no business connection",audio_23_111.mp3 +"between her and the complainant and no money transaction has taken place between both of them. She stated that, only after her appearance before the",audio_23_112.mp3 +"court, she came to know that, one sri.vijay kumar has filed the present Cas. against her. She further stated that, by mis-utilizing the security cheque",audio_23_113.mp3 +"given to one smt.manjamma, the present false complaint has been filed against her through the complainant vijaykumar.h. By the evidence of accused, it further appears",audio_23_114.mp3 +"that, it is the specific defense of the accused that, she had given the disputed cheque to one smt.manjamma as a security in-connection with chit",audio_23_115.mp3 +"amount. By this defense of the accused and also during her cross examination in para no.2 of page no.3, dw.1 has clearly admitted that, the",audio_23_116.mp3 +"cheque at ex.p.1 belongs to her account and the signature at ex.p.1(a) bears to be her signature. Therefore, as per the verdicts of the above",audio_23_117.mp3 +"relied judgments, since the accused has been admitting the issuance of cheque and also her signature thereon, the presumption under S. 118(a) & 139 of",audio_23_118.mp3 +"ni act would requires to be drawn in favour of the complainant and against the accused, that the cheque at ex.p.1 was drawn from the",audio_23_119.mp3 +account of accused and it was issued towards the discharge of lawful debt of the complainant and also the complainant is the due holder of,audio_23_120.mp3 +"the said cheque. Therefore, the burden shifts on the accused to rebut the said statutory presumption by raising a probable defense and to prove the",audio_23_121.mp3 +"same on preponderance of probabilities. In order to rebut the statutory presumption under S. 118(a) & 139 of ni act, now it is well settled",audio_23_122.mp3 +"law that, the accused shall raise probable defense and thereby to prove the same by leading his own evidence or he can make use of",audio_23_123.mp3 +the evidence of complainant during his cross examination. During cross examination of pw.1 with regard to running of chit business by the complainant along with,audio_23_124.mp3 +"one smt.manjamma, nothing has been culled out from the mouth of pw.1. On the contrary, the defense of the accused has been suggested to pw.1,",audio_23_125.mp3 +"but the said suggestion has been denied by pw.1. Further scrutinizing the cross examination of pw.1, it discloses that, he is doing real estate business",audio_23_126.mp3 +"since 8 to 10 years and further he has been suggested that, he has filed many cheque bounce cases against many people. But, the said",audio_23_127.mp3 +"suggestion was also denied by pw.1. Further, the writings on ex.p.1 is also denied, it is well settled law that, as per the S. 20",audio_23_128.mp3 +"of ni act, the complainant can very well fill-up the cheque and presenting through his banker, for which there is no impediment. Therefore, during entire",audio_23_129.mp3 +"cross examination of pw.1, nothing has been culled out to support the defense. 17. During further cross examination of pw.1, a suggestion is made that,",audio_23_130.mp3 +the disputed loan amount alleged to have been advanced to the accused was not shown in the IT returns of the complainant. Mere making,audio_23_131.mp3 +"suggestion to the witness is not enough unless the accused shall establish that, the complainant is the IT assessee and required to be a",audio_23_132.mp3 +assessee and the nature of his IT assessment and the IT return which pw.1 was filed requires to be disclosed and the precedent,audio_23_133.mp3 +"has been laid down by the Hon'ble HC of karnataka, in the relied judgment reported in ilr 2019 kar 493. In the light of",audio_23_134.mp3 +"this ratio, there was only a mere suggestion to pw.1, even not mentioning the disputed loan in the IT return does not cause any",audio_23_135.mp3 +"fatal to the Cas. of the complainant. In the judgment reported in 2019(18) scc 106, in the Cas. of rohitbhai jeevan lal patel vs. The",audio_23_136.mp3 +"state of gujarat, wherein it is held that;sri.vijaykumar.h vs. smt.hema.k.c on 5 september, 2022",audio_23_137.mp3 +"IT Dept. to initiate action under the IT act. "" therefore, mere non mentioning of the disputed loan in the IT returns",audio_23_138.mp3 +"of the complainant do not fatals to his complaint under S. 138 of ni act. That apart, a suggestion has been made to pw.1 that,",audio_23_139.mp3 +"he has filed cheque bounce cases against many persons, though the witness has denied the said suggestion, but it is not the Cas. of the",audio_23_140.mp3 +"accused that, the complainant is running finance business without obtaining necessary license from the competent Auth. under such circumstances, the said suggestion do not stands",audio_23_141.mp3 +"against the accused. That apart, Anr. suggestion has been made to pw.1 about his not producing license for the running real estate business and the",audio_23_142.mp3 +"said evidence can be considered against pw.1 only when the accused has successfully rebutted the legal presumption. On the other hand, the learned counsel of",audio_23_143.mp3 +"complainant has cross examined dw.1 at length and during her cross examination, dw.1 herself discloses before the court that, she would adduce the evidence of",audio_23_144.mp3 +"smt.manjamma on her behalf, but the accused has failed to adduce the evidence of the said witness. As per the defense raised by the accused,",audio_23_145.mp3 +"smt. Manjamma is the material witness to believe or to hold that the defense taken by the accused is probable one. Since, the accused has",audio_23_146.mp3 +failed to secure and examine smt. Manjamma on her behalf. The sole testimony of dw.1 do not appears to be a sufficient evidence to hold,audio_23_147.mp3 +"that, the accused has proved her defense before the court. Apart from that, on page No. 4 of her cross examination dw.1 further stated that,",audio_23_148.mp3 +"in all 20 persons were the members of the chit business runned by smt.manjamma. When this being her specific defense, even when the accused has",audio_23_149.mp3 +"failed to adduce the evidence of smt. Manjamma, she could have lead the evidence of any one of the member out of 20 chit members",audio_23_150.mp3 +"to corroborate her testimony before the court. Therefore, by considering the sole evidence of dw.1 it appears that, now a days it is became common",audio_23_151.mp3 +to take such a defense in a cheque bounce Cas. without producing any oral or documentary evidences in support of such a defense. I have,audio_23_152.mp3 +carefully and meticulously gone through the above relied judgments of the complainant having with high regard to those precedents. The precedents laid down in the,audio_23_153.mp3 +above relied judgments are applicable to the Cas. on hand when the accused has admitted the issuance of her cheque as well as her signature,audio_23_154.mp3 +"thereon. Therefore, the accused has miserably failed to rebut the statutory presumptions under Ss. 118(a) & 139 of ni act raised in favour of the",audio_23_155.mp3 +"complainant. Therefore, the question of shifting onus on the complainant does not arise. Hence, i answered point no.1 in the affirmative. 18. Point no.2: in",audio_23_156.mp3 +"view of the reasons stated and discussed above, the complainant has proved the guilt of the accused punishable under S. 138 of n.i. Act it",audio_23_157.mp3 +"is worth to note that, the offence is of the nature of Civ. wrong. Hence, it is proper to award sentence of fine, instead of",audio_23_158.mp3 +"awarding sentence of imprisonment. Accordingly, this court proceed to pass the following; order acting under S. 255 (2) of Crl. procedure code, accused is hereby",audio_23_159.mp3 +"convicted for the offencesri.vijaykumar.h vs. smt.hema.k.c on 5 september, 2022",audio_23_160.mp3 +"negotiable instrument act and sentenced to pay fine of rs.5,10,000/- (Rs. five lakhs ten thousand only). In default, the accused shall undergo simple imprisonment for",audio_23_161.mp3 +"3 (three) months. Acting under S. 357(1) of Cr.P.C. , it is ordered that an amount of rs.5,00,000/- ( Rs. five lakhs only),",audio_23_162.mp3 +"there from shall be paid to the complainant as a compensation, remaining fine amount of rs.10,000/- (Rs. ten thousand only) is defrayed to the state",audio_23_163.mp3 +for the expenses incurred in the prosecution. The bail bond of accused stands canceled subject to appeal period. Supply free copy of judgment to the,audio_23_164.mp3 +"accused. {dictated to the stenographer, transcribed and computerized by her, revised corrected and then pronounced in the open court on this 5 th day of",audio_23_165.mp3 +"september 2022}. (bhola pandit) xx acmm, bengaluru. Annexure list of witnesses examined on behalf of complainant: p.w.1 sri.vijaykumar.h, list of documents produced on behalf of",audio_23_166.mp3 +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 postal receipt ex.p.,audio_23_167.mp3 +5 postal acknowledgement list of witnesses examined on behalf of accused: d.w.1 smt.hema.k.c. List of documents produced on behalf of accused:sri.vijaykumar.h vs. smt.hema.k.c on 5,audio_23_168.mp3 +"september, 2022",audio_23_169.mp3 +"Xx a.c.m.m., bengaluru.sri.vijaykumar.h vs. smt.hema.k.c on 5 september, 2022",audio_23_170.mp3 +"Smt.dhanalakshmi vs. sri. K.puttappa on 28 february, 2023 kabc020032182014 before the court of xxiii additional court of small causes at bengaluru. (scch−25) present: miss.b.t.annapoorneshwari b.a.,",audio_24_1.mp3 +"l.l.b., l.l.m. Xxiii additional small causes judge, bangalore. Dated this the 28th day of february 2023 SC no.339/2014 plaintiff/s : smt.dhanalakshmi w/o late ramakrishnappa,",audio_24_2.mp3 +"aged about 50 years, r/at mahadeshwara nilaya, no.4/2 (old no.21), ground floor, 6th cross (old 5th cross), nagappa street, palace guttahalli, bangalore - 560 003.",audio_24_3.mp3 +"(by sri.sangamesh r.b., Adv. .) defendant/s : sri. K.puttappa s/o sri. T.p.krishnappa, aged about 51 years, 2 SC 339/2014 scch-25 Adv. , r/at no.4/2. 6th cross",audio_24_4.mp3 +"(old no.21, 5th cross) nagappa street, palace gutta halli, bangaluru - 560 003. (by sri.mahabaleshwara g.c., Adv. .) date of institution of the suit: 05.03.2014smt.dhanalakshmi vs. ",audio_24_5.mp3 +"sri. K.puttappa on 28 february, 2023",audio_24_6.mp3 +Suit for declaration and possession suit for injunction etc.): ejectment date of commencement of recording of the evidence: 04.08.2015 date on which the judgment is,audio_24_7.mp3 +"pronounced : 28.02.2023 total duration: years month/s days 08 11 23 xxiii addl. Judge judgment this suit is filed for ejectment, arrears of rent for",audio_24_8.mp3 +"rs.22,435/€ and future damages at rs.2,000/€ per day scch-25 from the date of this suit till delivery of the vacant possession of the Sch. premises",audio_24_9.mp3 +"and cost. 2. The Cas. of the plaintiff in brief is that, the defendant is the tenant under the plaintiff in respect of the residential",audio_24_10.mp3 +"house in the first floor, one portion, out of the property bearing municipal Corp. khatha no.4/2, house no.21, situated at 6th cross (old 5th cross),",audio_24_11.mp3 +"nagappa street, palace guttahalli, bangalore, which is described in the Sch. and the defendant has entered into eleven months rental agreement on 23.03.1999. As per",audio_24_12.mp3 +"the said rental agreement, the defendant agreed to reside in the Sch. premises and agreed to pay monthly rent of rs.1,600/€, further agreed to pay",audio_24_13.mp3 +"enhanced rent at 10% on the said agreed rent once in every two years, further agreed to pay the previous month rent on or before",audio_24_14.mp3 +"5th of the succeeding month, the defendant paid rs.45,000/€ as security deposit on the said day and further agreed to keep the Sch. house in",audio_24_15.mp3 +scch-25 good condition and will deliver possession of the Sch. premises in good condition while vacating the Sch. premises and as per the said rent,audio_24_16.mp3 +"agreement the tenancy has been renewed form time to time till now the defendant is residing in the Sch. premises as tenant, the defendant has",audio_24_17.mp3 +"to pay rent at rs.3,115/€ per month from 23.05.2013, but the defendant is paying rent only rs.2,900/€ per month from 23.05.2013 and not paying the",audio_24_18.mp3 +agreed rent from the month of august 2013 and the defendant is a chronic defaulter in payment of the agreed rent. 3. It is further,audio_24_19.mp3 +"pleaded by the plaintiff that, the defendant is her tenant, a Civ. dispute in respect of the said building with neighbour has been entrusted to",audio_24_20.mp3 +"the defendant and the defendant is appearing for the plaintiff as her Adv. in os no.2711/2010 on the file of the Hon'ble city Civ. judge,",audio_24_21.mp3 +"bangalore. The defendant taking advantage that he is her Adv. , with an intention to scch-25 cheat and to grab the entire building in which the",audio_24_22.mp3 +defendant is tenant managed to create false documents in favour of his wife smt.t.s.ambika as if the plaintiff agreed to sell the entire building worth,audio_24_23.mp3 +"about rs.95.00 lakhs to his wife for meager amount of rs.36,00,000/€ and got fled suit against her for specific performance of contract before the Hon'ble ",audio_24_24.mp3 +"city Civ. judge court,smt.dhanalakshmi vs. sri. K.puttappa on 28 february, 2023",audio_24_25.mp3 +"Dishonour Cas. against her before the 15th acmm court, bangalore in c.c.no:12503/2012 which is also pending. Again the defendant created Anr. sale agreement as if",audio_24_26.mp3 +"she sold the entire building to the defendant for rs.45,00,000/€ and the defendant has filed o.s.8747/2013 against her which also pending. 4. The plaintiff further",audio_24_27.mp3 +"pleaded that, the Sch. premises are required for her bonafide use and occupation, as the premises in which she alongwith his scch-25 brother and Ors. ",audio_24_28.mp3 +are residing is not sufficient and her brother sri.nagaraj require separate residence and the defendant is a chronic defaulter in payment of the agreed rent,audio_24_29.mp3 +and the defendant is in the habit of creating false document and is trying to deceive and cheat as such the defendant is liable to,audio_24_30.mp3 +"be evicted from the Sch. premises. Therefore he got issued legal notice u/sec.106 of tp act, dated 08.11.2013 by registered post and by courier service",audio_24_31.mp3 +"on 30.11.2013 which is duly served on the defendant, but the defendant as an Adv. though residing in the Sch. premises managed to return the",audio_24_32.mp3 +"said registered legal notice but postal authorities delivered intimation of the said registered letter, the defendant intentionally not received the registered legal notice within time.",audio_24_33.mp3 +"She has terminated the tenancy w.e.f. 31.12.2013 mid night, the defendant neither vacated the Sch. premises nor tendered the arrears of rent, thereby",audio_24_34.mp3 +"the defendant is in un€authorized possession of scch-25 the Sch. premises and is liable to pay rs.2,000/€ per day as damages form the date of",audio_24_35.mp3 +"this suit till he vacates and delivers vacant possession of the Sch. premises. The defendant has paid rent at rs.2,900/€ per month from 23.05.2013 till",audio_24_36.mp3 +"22.07.2013, instead of the agreed rent of rs.3,115/€ per month, the difference rent of rs.215/€ per month for the said two month which amount to",audio_24_37.mp3 +"rs.430/€ , further the defendant not paid the agreed rent of rs.3,115/€ per month from 23.07.2013 till 23.02.2014 which amount to rs.22,005/€, in all the",audio_24_38.mp3 +"defendant is due rs.22,435/€ as arrears of rent and is also liable to pay damages at rs.2,000/€ per day from the date of this suit",audio_24_39.mp3 +till delivering the possession of the Sch. premises. As the carpet area of the Sch. premises is above the limit prescribed under karnataka rent control,audio_24_40.mp3 +"act, as such the present suit is filed for ejectment/eviction as per law. Scch-25 5. In response to summons issued by this court, the defendant",audio_24_41.mp3 +has appeared through his counsel and filed the written statement denied that the plaintiff is his land lady and he is her tenant and denied,audio_24_42.mp3 +her Cas. except which he admits and admits that he entered into possession of the suit property in pursuance to the rental agreement dated 23.5.1999,audio_24_43.mp3 +"(wrongly shown as 23.3.1999 in the plaint) but however, the rental agreement was with the then owner of the Sch. property viz. smt.mudduganagamma, who is",audio_24_44.mp3 +now dead. Further submitted that sjmt.muddugangamma is the original owner of the suit property who died on 30.10.2011 and the plaintiff being the co€W/O ,audio_24_45.mp3 +late smt.muddugangamma claimed that she has succeeded to the suit Sch. property and asked him to pay rent to her. Accordingly he started paying rents,audio_24_46.mp3 +"to the plaintiff from november 2011 and has paid the rents upto august 2013. He was paying rent at the rate of rs.2,900/€ per scch-25",audio_24_47.mp3 +"month but denies that he has not paid the rent from august 2013. Further contends that the correct rate of rent is rs.2,900/€ per month",audio_24_48.mp3 +only and he paid said rent till august 2013 and non€payment of rent from september 2013 is not without reasons. On 19.1.2012 the plaintiff executed,audio_24_49.mp3 +"a sale agreement insmt.dhanalakshmi vs. sri. K.puttappa on 28 february, 2023",audio_24_50.mp3 +"Sch. property is only a portion and plaintiff also received substantial amount by way of advance under that agreement. However, the plaintiff tried to back",audio_24_51.mp3 +of that agreement which necessitated his wife to file a specific performance suit against the plaintiff in o.s.no:5858/2012. During the pendency of the said suit,audio_24_52.mp3 +"the plaintiff entered into further negotiations with him and executed a fresh sale agreement in his favour with respect to the entire property, which includes",audio_24_53.mp3 +"the present suit Sch. property also which is dated 12.06.2013. In view of the second agreement, his wife scch-25 converted her specific performance suit into",audio_24_54.mp3 +"money suit for recovering the advance amount which she paid to the plaintiff under the first sale agreement. As a matter of fact, that suit",audio_24_55.mp3 +"was decreed on 19.8.2014, challenging it the plaintiff filed rfa no:1570/2014 which is now pending before Hon'ble h.c.. When the plaintiff tried to back out",audio_24_56.mp3 +"of the second agreement also, this defendant filed a suit for specific performance in o.s.no:8747/2013 which is pending before city Civ. court. At the time",audio_24_57.mp3 +"the second agreement dated 12.6.2013 was entered into, one of the terms of the same was that he need not pay any rent in respect",audio_24_58.mp3 +of the Sch. property which is admitted by the plaintiff while giving evidence in o.s.no:5858/2012. Having regard to the aforesaid facts and particularly the sale,audio_24_59.mp3 +"agreement dated 12.06.2013 and also having regard to the clear admission of the plaintiff as aforesaid, the question of his paying any rent does not",audio_24_60.mp3 +arise. The averments and allegations made in Para. scch-25 no.4 of the plaint are bundle of lies and are wholly misleading. The plaintiff is trying,audio_24_61.mp3 +to misrepresent facts even before this court. The plaintiff's assertion that he was representing her in o.s.2711/2010 is already negatived by the city Civ. court,audio_24_62.mp3 +"in its judgment passed in o.s.no:5858/2012. Similarly plaintiff's assertion that false document were created, sale agreement were concocted, etc., are all negatived by the judgment",audio_24_63.mp3 +"passed in the aforesaid suit. Even after suffering adverse findings on these aspects, the plaintiff with an oblique motive is persisting with her untrue and",audio_24_64.mp3 +uncharitable allegations. There is no true or merit in the averment made in para 5 of the plaintiff that plaintiff requires the Sch. property for,audio_24_65.mp3 +"her bonafide use and occupation. As a matter of fact she has agreed to sell the entire property, firstly in favour of his wife and",audio_24_66.mp3 +"thereafter in his favour. While the first agreement is held to have been duly proved in the judgment rendered in o.s.5858/2012, the plaintiff has scch-25",audio_24_67.mp3 +admitted the execution of the second agreement in the course of her evidence recorded in the said suit. He admits issuance of notice by the,audio_24_68.mp3 +plaintiff on 8.11.2013 but denies the contents of said notice as the demand made in it is legally untenable and he has sent a reply,audio_24_69.mp3 +on 29.10.2013. Further contends that this court has no jurisdiction to entertain this suit. On the plaintiff's own assertion the rate of rent payable by,audio_24_70.mp3 +"the defendant in respect of the Sch. property is rs.3,115/€ per month. Assuming without conceding that the said assertion is correct then the rate of",audio_24_71.mp3 +"rent being below rs.3,500/€ the karnataka rent act 1999 get attracted to the Sch. property and accordingly this suit is not maintainable. The carpet area",audio_24_72.mp3 +mentioned in Para. 8 of the plaint and which is referable to the karnataka rent act is only in respect of non residential or commercial,audio_24_73.mp3 +"premises. Residential premises in respect of which the rate of rent is less than rs.3,500/€ per month are attracted to the scch-25 provisions of the",audio_24_74.mp3 +"karnataka rent act 1999. Therefore, prayed for dismissal of the suit. 6. The plaintiff in order to prove her Cas. got examined herself as pw.1",audio_24_75.mp3 +and produced 10 documents as per exs.p.1 to p.10 and in the cross€examination exs.d.1 and d.2 marked. On the other side in support of the,audio_24_76.mp3 +"defence, the defendant got examined himself as dw.1 and produced documents as per exs.d.3 to d.11(a). The exs.d.1 and d.2 are confronted and got marked",audio_24_77.mp3 +"in the cross€smt.dhanalakshmi vs. sri. K.puttappa on 28 february, 2023",audio_24_78.mp3 +7. Now the points that arise for the consideration of this court are as under; 1. Whether this court has jurisdiction to try this suit?,audio_24_79.mp3 +"2. Whether plaintiff proves that there exists a landlord and tenant relationship between herself and defendant? scch-25 3. If so, whether the plaintiff further proves",audio_24_80.mp3 +that there is termination of tenancy as required u/sec.106 of t.p.act? 4. Whether the plaintiff is entitled for the reliefs as sought in the plaint?,audio_24_81.mp3 +5. What order or decree? 8. Heard arguments of both the counsel. The counsel for the plaintiff has relied upon the following decisions; (i) 1950,audio_24_82.mp3 +(SC ) mad 997 : jessie thavamani vs. Laikath basha. (ii) air 2019 SC 682 : Dr. h.k.sharma vs. Ram lal. (iii) writ,audio_24_83.mp3 +petition no.65068/2011 (gm€cpc) : smt.daxayani vs. Machchendranath baburao sadare. (iv) 2015(4) kccr 3329 : p.gangadhara patil vs. Madhavarao m.k. The counsel for the defendant has,audio_24_84.mp3 +relied upon the following decisions; (i) c.r.p. (ndp) no.233/2012 and m.p.no.1/2012: s.navaneethkrishnan vs. Kamachi ammal and anr. (madras HC ) on 19th january 2012. Scch-25,audio_24_85.mp3 +(ii) calcutta HC smt.sashi jain @ shashi jain vs. Sandip sarkar on 2 march 2022. (iii) air 2003 SC 4149 r.kanthimathi and anr.,audio_24_86.mp3 +"Vs. Beatrice xaver (mrs), 8.2.2000. (iv) bombay HC : ramesh kumar jhamb and anr. Vs. Official assignee, HC ,.........on 4 march 1993.smt.dhanalakshmi vs. sri.",audio_24_87.mp3 +"K.puttappa on 28 february, 2023",audio_24_88.mp3 +"Here under: point no.1 : in the negative, point no.2 : in the negative, point no.3 : in the negative, point no.4 : in the",audio_24_89.mp3 +"negative, point no.5 : as per the final order, for the following: reasons 10. Point no.1:− it is the Cas. of the plaintiff that she",audio_24_90.mp3 +is the owner of the Sch. property and the defendant is tenant under her in respect of the Sch. property who entered the scch-25 Sch. ,audio_24_91.mp3 +"property under rental agreement dated 23.3.1999 on monthly rent of rs.1600/€ agreeing for its enhancement at 10% once in every two years and paid rs.45,000/€",audio_24_92.mp3 +as security deposit but instead of paying rent of rs.3115/€ the defendant is paying rs.2900/€ per month and not paid agreed rent from august 2013,audio_24_93.mp3 +and become chronic defaulter and is in the habit of created concocted documents and has filed suit for specific performance and cheque bounce Cas. against,audio_24_94.mp3 +her on the said created documents and hence as she is in need of the Sch. property for the use of her brother and hence,audio_24_95.mp3 +she issued quit notice which duly served but even then the defendant not obliged her demand but remained in the Sch. premises illegally. The defendant,audio_24_96.mp3 +has denied the Cas. of the plaintiff as false and contended that the plaintiff executed agreement of sale in favour of his wife on 19.1.2012,audio_24_97.mp3 +and as the plaintiff went back to her words which lead to his wife filing suit for specific scch-25 performance suit and during pendency of,audio_24_98.mp3 +said suit the plaintiff executed second agreement of sale in his favour on 12.6.2013 and hence his wife converted said suit for recovery of money,audio_24_99.mp3 +which came to be decreed and again as the plaintiff went back to her words which lead to filing Anr. suit by him in os.5858/2012,audio_24_100.mp3 +in which the plaintiff admitted about execution of agreement of sale but by suppressing the said facts has filed this false suit and he replied,audio_24_101.mp3 +"to the notice of plaintiff suitable and further this suit is not maintainable as the deemed rent is less than rs.3,500/€. 11. The plaintiff in",audio_24_102.mp3 +support of her Cas. got examined herself as pw.1 and has reiterated the plaint averments in the chief examination Aff. and got marked exs.p.1 to,audio_24_103.mp3 +"p.10. They are, ex.p.1 is the original rental agreement, ex.p.2 is the fee receipt, ex.p.3 is the copy of vakalathnama bearing the signature of the",audio_24_104.mp3 +"defendant for appearing in Cas. os no.2711/2010, ex.p.4 scch-25 is the copy of examination in chief in os no.2711/2010, ex.p.5 is the copy of lr",audio_24_105.mp3 +"Appl. of os 2711/2010, ex.p.6 is the rental agreement of other tenants of dhanalakshmi drafted and witnessed by defendant, ex.p.7 is the copy of Pvt. ",audio_24_106.mp3 +"complaint pcr no.16231/2012, ex.p.8 is the copy of stay in rfa 1570/2014, ex.p.9 is the copy of revision petition no.02/2015 of bar counsel of india",audio_24_107.mp3 +"and ex.p.10 is the copy of legal notice, postal receipt rpad cover with acknowledgement.smt.dhanalakshmi vs. sri. K.puttappa on 28 february, 2023",audio_24_108.mp3 +"Appearing in it and as per ex.p.1 the rent fixed was rs.1600/€ with security deposit of rs.45,000/€. The pw.1 denied several suggestion put about execution",audio_24_109.mp3 +of sale agreements and receipt of sale consideration. She admitted that as per sale deed dated 02.07.1986 herself and muddagangamma are the owners to the,audio_24_110.mp3 +whole property and the ex.d.1/c.c. Scch-25 of the vakalath filed in o.s.2711/2010 and ex.d.2/sale agreement dated 12.06.2013. 13. The defendant has got examined himself as,audio_24_111.mp3 +dw.1 and has reiterated the averments of written statement in his examination in chief and got marked exs.d.3 to d.11(a). They are ex.d.3 is the,audio_24_112.mp3 +"certified copy of dismissal of complaint filed by the plaintiff before the ksbc alongwith postal cover (four pages), ex.d.4 is the certified copy of list",audio_24_113.mp3 +"of documents handed over to the defendant (one page), ex.d.5 is the certified copy of the 'b' final report filed in cr.no.164/2012, ex.d.6 is the",audio_24_114.mp3 +"certified copy of the agreement of sale dated 12.06.2013 with receipt, ex.d.7 is the certified copy of judgment in os no.5858/2012 along with decree, ex.d.8",audio_24_115.mp3 +"is the original passbook of smt.ambika W/O the defendant, ex.d.8(a) relevant entry dated 15.9.2020, ex.d.9 is the one electricity bill, ex.d.10 one water bill",audio_24_116.mp3 +"alongwith one bill paid receipt, ex.d.11 metered backup ledger report scch-25 issued by bwssb on the request made by the defendant alongwith challan for having",audio_24_117.mp3 +paid the fee alongwith certificate u/sec.65 b of indian evidence act and ex.d.11(a) three relevant entries. 14. In the cross€examination of dw.1 it is brought,audio_24_118.mp3 +"out that he entered into Sch. property as tenant under rent agreement of the year 1999 executed by muddugangamma on rent of rs.1600/€, from 30.10.2011",audio_24_119.mp3 +"till august 2013 he paid rents to the plaintiff, he paid rent of rs.2900/€ per month, o.s.5858/2012 filed by his wife got decreed, rfa no:1570/2014",audio_24_120.mp3 +filed against said decree wherein stay is operating. The witness denied several suggestion put with regard to he filing vakalath on behalf of muddugangamma and,audio_24_121.mp3 +later on behalf of present plaintiff and got creating sale agreements by getting signatures of the plaintiff on blank stamp papers and cheque. It is,audio_24_122.mp3 +"brought out that cheque bounce Cas. c.c.12503/2012 ended in conviction of the plaintiff and scch-25 Crl. a.no:1316/2015 is pending, in either of the agreements dated",audio_24_123.mp3 +"19.1.2012 or 12.6.2013 there is no any mention of delivery of possession of the property to him, he is in possession of premises at first",audio_24_124.mp3 +"floor (Sch. property) measuring 700€800 sq.ft., in the remaining portion of the property the plaintiff and one more tenant are residing, the said tenant is",audio_24_125.mp3 +"not paying rent to him, he used to pay rents to the plaintiff after the death of smt.muddugangamma and he is paying water bill and",audio_24_126.mp3 +electricity bill in respect of Sch. property. 15. As per the plaintiff the agreed rate of rent in respect of the Sch. property is rs.3115/€.,audio_24_127.mp3 +The defendant contends that he paid rent of rs.2900/€ in respect of Sch. property. Even if the plaintiff's claim is considered also the rent fixed,audio_24_128.mp3 +is only rs.3115/€ per month to the Sch. property. The plaintiff's counsel claims that as the carpet area of the Sch. premises is above the,audio_24_129.mp3 +"limit prescribed under karnataka rent control scch-25 act, as such the present suit is filed for ejectment and karnataka rent act is not applicable. Per",audio_24_130.mp3 +contra the counsel for the defendant contends that as the rent fixed even considered as per the say of plaintiff is rs.3115/€ p.m. Also this,audio_24_131.mp3 +court has no jurisdiction as the karnataka rent act is applicable. Whether the present suit for ejectment before this court is maintainable or not is,audio_24_132.mp3 +"needs to be decided first before going to the merits of the Cas. .smt.dhanalakshmi vs. sri. K.puttappa on 28 february, 2023",audio_24_133.mp3 +"C.R.P. no:141/2012 at para 5 it is held as under; ""5. To examine the contention raised, it is relevant to refer to S. 2",audio_24_134.mp3 +"of the rent act, to the extent it is necessary here: 2. Appl. of the act.€ ................................................... (3) nothing contained in this act shall apply.€",audio_24_135.mp3 +(a) to any premises belonging to.€ (i) the state Govt. or the central Govt. or a local Auth. ; (ii) a muzarai or religious or charitable,audio_24_136.mp3 +"institution; (iii) a wakf, scch-25 explanation.€ if any doubt arises whether any institution referred to in sub€ clauses (ii) and (iii) above is a muzarai",audio_24_137.mp3 +"or religious or charitable institution or a wakf, the decision of the regional commissioner shall be final. (b) ........................................ (c) ............................... (d) .................................................. (e) to",audio_24_138.mp3 +"any premises, deemed rent on the date of commencement of this act or the standard rent of which exceeds.€ (1) three thousand five hundred Rs. ",audio_24_139.mp3 +per month in any area referred to in part a of the first Sch. ; and (ii) two thousand Rs. per month in any other,audio_24_140.mp3 +"area. Explanation.€ ""deemed rent on the date of commencement of this act"" shall be the rent calculated in the manner provided in S. 7, together",audio_24_141.mp3 +"with revision, if any, as provided in S. 9 and decreased in the Cas. of premises constructed after the commencement of this act at the",audio_24_142.mp3 +same rate as the rate of enhancement stipulated in the third Sch. to reflect the position on the date of commencement of this act; (f),audio_24_143.mp3 +.................................... (g) to any premises used for non€residential purpose but excluding premises having a plinth area of not exceeding fourteen square meters used for commercial,audio_24_144.mp3 +"purpose; (h) ......................................""smt.dhanalakshmi vs. sri. K.puttappa on 28 february, 2023",audio_24_145.mp3 +"Premises under any of the clauses in sub€S. (3), such a premises stands excluded from the applicability of the rent act notwithstanding anything contained in any",audio_24_146.mp3 +of the other clauses in the sub€S. . This should be the interpretation of scch-25 the clauses inter se in sub€S. (3) of S. 2 of,audio_24_147.mp3 +"the rent act, as this will not defeat the intention of the legislature reflected in sub€ S. (3). Any other interpretation would defeat the object",audio_24_148.mp3 +of sub€S. (3). 7. The object of sub€S. (3) of S. 2 of the rent act is to exclude certain types of premises from the,audio_24_149.mp3 +applicability of the rent act. If the rent act is not applicable to a premises in view of any of the clauses i.e. Clauses (a),audio_24_150.mp3 +"to (h) in sub€ S. (3), such a premises stands excluded from the applicability of the rent act and that cannot be defeated by relying",audio_24_151.mp3 +on an exception in any other Cl. in sub€S. (3) as a legislature will not at the same time give something by one hand and,audio_24_152.mp3 +"take back the same thing by Anr. . The exception provided in some of the clauses in sub€S. (3) will come into play, if the premises",audio_24_153.mp3 +"is not excluded from the applicability of the rent act under any of the other clauses. To illustrate, the rent act is not applicable to",audio_24_154.mp3 +any premises belonging to the state Govt. or the central Govt. or a local Auth. in view of Cl. (a). This cannot be defeated by,audio_24_155.mp3 +"relying on the exception provided under Cl. (e) on the ground that the rent of the premises does not exceed the limit stipulated therein. Similarly,",audio_24_156.mp3 +"if the area of the premises used for commercial purpose is more than fourteen square meters, it stands excluded from the applicability of the rent",audio_24_157.mp3 +act in view of Cl. (g). This cannot be defeated on the ground that its rent is less than the amount stipulated in Cl. (e).,audio_24_158.mp3 +"To give one more instance, if a premises is excluded from applicability of the rent act under Cl. (e), it cannot be defeated by relying",audio_24_159.mp3 +on the exception provided in Cl. (g) on the ground that the scch-25 premises is used for commercial purpose and its plinth area does not,audio_24_160.mp3 +exceed fourteen square meters. 8. The trial court having found that the suit premises is excluded from the applicability of the rent act under Cl. ,audio_24_161.mp3 +(g) had erred in law in taking the view that the rent act is applicable on the ground that the premises would fall within the,audio_24_162.mp3 +"exception provided in Cl. (e). The view taken is clearly erroneous in law."" 17. Further, in Civ. revision petition no:452/2013 (SC ) in the",audio_24_163.mp3 +"Cas. of dr.(mrs.)smita jain vs. . Mr. n.a.parameshwar dated 16.1.2014 it is held as under; ""4.................. S. 2(3) spells out that this very act does",audio_24_164.mp3 +"not apply if it falls under clauses 9a) to (h). The petitioner is paying rent of more than rs.3,500/€ which falls under the t.p. Act",audio_24_165.mp3 +"ans the very premises is used for no residential purpose and the petitioner is running dental clinic, the area of which whether exceeds 14 sq.",audio_24_166.mp3 +"Meters or not it does not decide. Since the Cas. of the respondent falls under clauses (e) and (g), the exception provided under Cl. (g)",audio_24_167.mp3 +"cannot be taken into account to defeat the purpose of exceptions."" 18. On perusal of the above decisions makes it crystal clear that if the",audio_24_168.mp3 +Cas. falls in any of the exceptions of sub€S. (3) of S. 2 of the rent act will exclude the applicability of the rent act.,audio_24_169.mp3 +"Here in this Cas. the scch-25 deemed rent is rs.3115/€ per month and though the schedulesmt.dhanalakshmi vs. sri. K.puttappa on 28 february, 2023",audio_24_170.mp3 +Sufficient that it is excluded in any one of the exceptions of sub€S. (3) of S. 2 and as the deemed rent is rs.3115/€ per,audio_24_171.mp3 +month and hence the karnataka rent act is applicable and this suit under transfer of property act for ejectment is not at all maintainable and,audio_24_172.mp3 +"this court has no jurisdiction to try this suit as rightly pointed out by the counsel for the defendant. Accordingly, i answer this point is",audio_24_173.mp3 +in the negative. 19. Point no.2:€ the plaintiff claims that the defendant entered into possession of the Sch. property as a tenant and still he,audio_24_174.mp3 +is a tenant under her and became a defaulter in payment of agreed rents from august 2013 and created concocted sale agreements by getting her,audio_24_175.mp3 +signatures on scch-25 blank stamp papers and cheque and misused her trust. On the other side the defendant contends that he entered into the possession,audio_24_176.mp3 +of the Sch. property as a tenant under the rent agreement executed by smt.mudduganagamma and after her demise as the plaintiff demanded payment of rents,audio_24_177.mp3 +claiming she derived title of the property by will hence he paid rents to the plaintiff till august 2013 and later he stopped paying rents,audio_24_178.mp3 +as the plaintiff orally instructed him to not to pay rents in view of sale of agreements executed in his favour in respect of whole,audio_24_179.mp3 +property and receipt of sale consideration amount by the plaintiff. Though the plaintiff denies the execution of sale agreements and receipt of part sale consideration,audio_24_180.mp3 +"but admits ex.d.2 in her evidence and she suffers decree based on the first sale agreement. Further, the defendant by producing the ex.d.3 which is",audio_24_181.mp3 +the certified copy of the dismissal of complaint lodged by the plaintiff before the ksbc has scch-25 proved that false complaint was filed by the,audio_24_182.mp3 +plaintiff against the defendant even though his signature was not appearing in the vakalathnama filed on behalf of smt.muddugangamma. By producing ex.d.5 the defendant has,audio_24_183.mp3 +"proved that upon investigation on the first information lodged by the plaintiff the police have filed b final report in cr.no.164/2012, which also supports the",audio_24_184.mp3 +"contention of the defendant that the plaintiff did file false complaint before the police. 20. Despite this, the defendant has produced ex.d.6 is the certified",audio_24_185.mp3 +copy of the agreement for sale dated 12€06€2013 which is the admitted document by the plaintiff during her cross examination and said document on confrontation,audio_24_186.mp3 +is also marked at ex.d.2. Admittedly the o.s.no.5858/2012 filed by the W/O the present defendant on the basis of the first agreement of sale,audio_24_187.mp3 +executed by the plaintiff which later converted to money recovery suit got decreed and plaintiff was directed to scch-25 refund the earnest money paid under,audio_24_188.mp3 +first agreement of sale. Admittedly the plaintiff preferred appeal on the said decree before the Hon'ble h.c. And stay is operating but however the Hon'ble ,audio_24_189.mp3 +xi addl city Civ. court has held first sale agreement is proved and on that basis earnest money was ordered to be refunded. From this,audio_24_190.mp3 +it is clear that the plaintiff executed the first agreement of sale as contended by the defendant. As per the defendant he preferred o.s.8747/2013 for,audio_24_191.mp3 +"specific performance of contract on the second agreement for sale, which is pending for adjudication before the Hon'ble city Civ. court. During the course of",audio_24_192.mp3 +cross examination the ex.d.2 is got marked on confrontation and its certified copy is produced as per ex.d.6. 21. On perusal of ex.d.6 which is,audio_24_193.mp3 +the agreement for sale dated 12€06€2013 it is executed between the present plaintiff and defendant in respect of the property bearing new no.4/2 which includes,audio_24_194.mp3 +"the Sch. property also, scch-25 wherein the plaintiff asserted that she derived title of the said property through will dated 29€09€2011 from muddugangamma and she",audio_24_195.mp3 +"agreed to sell thesmt.dhanalakshmi vs. sri. K.puttappa on 28 february, 2023",audio_24_196.mp3 +"Rs.5,25,000/€ through cheque and agreed for receiving remaining sale consideration at the time of execution of sale deed and in the said agreement at Cl. ",audio_24_197.mp3 +(10) it is specifically mentioned that the possession of the property will be delivered upon execution of deed of absolute sale deed. From bare perusal,audio_24_198.mp3 +of ex.d.6 it is clear that there is no any specific mentioned about delivery of possession to the defendant. On the basis of ex.d.6 and,audio_24_199.mp3 +execution of first agreement for sale in favor of W/O the defendant the counsel for the defendant contends that now the defendant is not,audio_24_200.mp3 +in possession of the Sch. property as a tenant but he is in possession of the property on the basis of above two agreements in,audio_24_201.mp3 +new capacity and by scch-25 executing the above said two agreements the earlier status of the defendant as tenant has been converted as a purchaser,audio_24_202.mp3 +of the property and earlier status of the defendant has been ceased and hence there do not exist relationship of landlord and tenant between the,audio_24_203.mp3 +plaintiff and defendant as the plaintiff has received part of the sale consideration under the agreements and the defendant got decree in o.s.no.5858/2012. On the,audio_24_204.mp3 +other side the counsel for the plaintiff submits that as the plaintiff's specific Cas. is that the defendant has created the above agreements by fraud,audio_24_205.mp3 +and misrepresentation by taking signatures of the plaintiff on blank papers and blank cheque and they preferred appeal on the decree passed in o.s.no.5858/2012 and,audio_24_206.mp3 +the other suit is pending for adjudication and hence as the plaintiff disputes the said agreements for sale and hence still the relationship of landlady,audio_24_207.mp3 +and tenant exists. Scch-25 22. Looking to the above contention and rival contention of the parties as narrated above there is a serious dispute between,audio_24_208.mp3 +the parties about the agreements for sale but this court has Ltd. jurisdiction only to adjudicate the dispute of the parties with regard to ejectment,audio_24_209.mp3 +and arrears of rent by considering whether there exists the relationship of landlord and tenant between the parties and hence this court can not adjudicate,audio_24_210.mp3 +"about the genuineness of the above said agreements for sale. However, the Hon'ble city Civ. court in o.s.no.5858/2012 has upheld the first agreement for sale",audio_24_211.mp3 +executed on 19€01€2012 and decreed the suit in favor of W/O the defendant and ordered for refund of earnest money and still the said,audio_24_212.mp3 +finding is binding on the parties even though there is a stay but the said finding has not been set aside till today and still,audio_24_213.mp3 +the appeal is pending. From this it can be held that the plaintiff executed the first agreement for sale dated 19€01€ scch-25 2012. Admittedly the,audio_24_214.mp3 +"plaintiff is convicted in a cheque bounce Cas. , which is also under challenge in the appeal, from that also the conduct of the plaintiff can",audio_24_215.mp3 +"be make out at present. Moreover, the plaintiff is suffering the above said decree against her. The pw€1 clearly admitted her signaturs on the the",audio_24_216.mp3 +second agreement for sale which is as per ex.d.6. No doubt under ex.d.6 there is no specific mentioned above delivery of the possession of the,audio_24_217.mp3 +property in favour of the defendant. The counsel for the defendant contends that once the parties entered into agreements for sale then the status of,audio_24_218.mp3 +"the parties changes as the owner terminates the earlier agreement i.e., rent agreement then the owner/plaintiff can not agitate on the old status. Per contra",audio_24_219.mp3 +the counsel for the plaintiff argues that as there was no any delivery of possession in favor of defendant and moreover the defendant is in,audio_24_220.mp3 +possession of the Sch. property under the first rental agreement executed by smt.muddugangamma and hence there is no scch-25 any changes of status of the,audio_24_221.mp3 +parties and moreover the plaintiff do not admits the said sale agreements as they are created and accordingly they are under challenge.smt.dhanalakshmi vs. sri. K.puttappa,audio_24_222.mp3 +"on 28 february, 2023",audio_24_223.mp3 +"Relied upon first decision which is mentioned above. In the said decision the Hon'ble madras h.c. Observed that, in the said Cas. the parties even",audio_24_224.mp3 +not produced agreement of sale and in the copy of receipt also there is no any mention that the parties have agreed that the relationship,audio_24_225.mp3 +of landlord and tenant should cease and the tenants possession should be traced only to the agreement of sale and hence as the said document,audio_24_226.mp3 +was not produced and no such narration in the receipt about ceasing of status of the tenant and hence the Hon'ble madras h.c. Held that,audio_24_227.mp3 +the liability to pay the rent does not cease and hence the respondent therein is entitled for eviction of the tenant. In the second decision,audio_24_228.mp3 +which is referred above the Hon'ble scch-25 s.c. At para 37 observed that there is no any such Cl. or a Cl. akin thereto in,audio_24_229.mp3 +the agreement dated 13.5.1993 and nor we find that the existing conditions in the agreement discern the intention of the parties to surrender the tenancy,audio_24_230.mp3 +"agreement either expressly or impliedly. In the third decision the Hon'ble h.c. At para 7, 8 observed that the Hon'ble apex court has clarified the",audio_24_231.mp3 +"legal position that mere assertion by the tenant that he is in possession in part performance of an agreement of sale, or the mere filing",audio_24_232.mp3 +"a suit for specific performance, by itself will not lead to deferment of the eviction proceedings under S. 43 of the new act. In the",audio_24_233.mp3 +"fourth decision it is observed that agreement of sale with tenant - no right can be acquired by tenant in property, if possession traceable to",audio_24_234.mp3 +"agreement, then such possession can be sustained on basis of principle of part performance. In this Cas. the defendant has produced the ex.d.6 alongwith receipt",audio_24_235.mp3 +and no doubt there is no any mention scch-25 about ceasing of status of the parties from the date of execution of ex.d.6 but the,audio_24_236.mp3 +defendant in his written statement and in his evidence clearly contended that as the plaintiff orally instructed him not to pay rents and hence he,audio_24_237.mp3 +"only paid two months rent after ex.d.6 and thereafter he stopped paying rents upon the instructions of plaintiff. Further, the defendant's wife got decree in",audio_24_238.mp3 +"the first suit filed by her. But the plaintiff completely disputes about the execution of ex.d.6, earlier sale agreement and denies the said document and",audio_24_239.mp3 +claims that she did not instruct the defendant not to pay rents as she did not execute any agreement for sale even though she suffered,audio_24_240.mp3 +decree and conviction in Crl. cheque bounce Cas. . As already discussed above the pw€1 admitted her signatures on the ex.d.6 and on perusal of ex.d.6,audio_24_241.mp3 +no doubt there is no any specific mention about change in the status of the parties or ceasing of earlier status of the parties but,audio_24_242.mp3 +as per the defendant upon oral instruction of scch-25 the plaintiff he stopped paying the rents. From the conduct of the defendant that she denying,audio_24_243.mp3 +the very execution of the agreements for sale an adverse inference can be drawn that with implied understanding of the parties to ex.d.6 there was,audio_24_244.mp3 +"end to the earlier status of the parties and with that intention the plaintiff received part sale consideration from the defendant. Therefore, as the facts",audio_24_245.mp3 +and circumstances of this Cas. and the aforesaid decisions are different and hence with due respect to the said decisions this court is of the,audio_24_246.mp3 +opinion that they are not applicable to the present Cas. . 24. The counsel for the defendant has relied upon the first decision of Hon'ble madras,audio_24_247.mp3 +"h.c. In s.navaneethkrishnan vs. . Kamachi ammal & anr., wherein it is observed at para 8 as under; 8. Further, the judgment relied upon by",audio_24_248.mp3 +the learned counsel for the petitioner reported in (2000) 9 scc 339 (cited supra) cannot be made applicable to the facts of the present Cas. .,audio_24_249.mp3 +"In the said reported Cas. after the agreement of sale was scch-25 entered into between the parties, the landlord rescinded the contract and filed a",audio_24_250.mp3 +"suit for eviction and in that circumstances, the Hon'ble SC has held that the tenant was in possession of the property in part performance",audio_24_251.mp3 +"of thesmt.dhanalakshmi vs. sri. K.puttappa on 28 february, 2023",audio_24_252.mp3 +Status of the tenant and after the agreement of sale was entered into between the parties the tenant continue to be in possession of the,audio_24_253.mp3 +"property in part performance of the agreement of sale and there is no relationship of landlord and tenant between the parties and therefore, the suit",audio_24_254.mp3 +"for eviction will not lie. But, in this Cas. , the agreement of sale was rescinded by the tenant and the tenant filed the suit for",audio_24_255.mp3 +"return of the advance amount. Hence, it cannot be contended by the tenant that he Conti. to be in possession of the property in part",audio_24_256.mp3 +"performance of the agreement of sale"". In the second decision relied upon by the counsel for the defendant which is already referred above it is",audio_24_257.mp3 +"observed as under; ""Mr. sourav sen, in this regard, has relied upon two decisions of the Hon'ble SC in arjunlal bhatt mall gothani &",audio_24_258.mp3 +"ors., vs. Girish chandra dutta & ors. Reported in 1973 (2) scc 197 Para. 5) and in r.kanthimathi and ors., vs.beatrice xavier reported in (2000)",audio_24_259.mp3 +9 scc 339 (Para. 6). In reply Ms. sabita mutherjee roy chowdhury has submitted that the judgment in arjunlal (supra) is scch-25 distinguishable as in,audio_24_260.mp3 +the agreement for sale which has clearly stated that if the purchaser failed to pay the defaulted installments the purchaser shall make over possession of,audio_24_261.mp3 +"the land and house shown in Sch. to the vendor which is conspicuously absent in the present agreement"". 2) in the instant Cas. , the appellant",audio_24_262.mp3 +"was in possession of the suit property and the acceptance of rs.40,000/€ as earnest money by the landlord clearly shows that such acceptance was made",audio_24_263.mp3 +in terms of the agreement for sale and all other payments received are in terms of the said agreement. When the plaintiff/ landlord accepted the,audio_24_264.mp3 +"sum he actually acted under the agreement for sale. This acceptance was preceded by agreement of sale, changing their relationship and this was what they",audio_24_265.mp3 +"had actually intended. This has been clarified in Para. 8 of the r kanthimathi (supra) which stated that: ""this decision clearly spells out that once",audio_24_266.mp3 +"there is agreement of sale between a land lord and a tenant, the old relationship as such comes to an end. It goes on to",audio_24_267.mp3 +"record that even after the cancellation of such agreement of sale the status of tenant is not restored as such. In other words, on the",audio_24_268.mp3 +date of execution of the aforesaid agreement of sale their status as that of landlord and tenant changed into a new status as that of,audio_24_269.mp3 +"a purchaser and a seller."" the parties who have acted in terms of the agreement for sale and altered their relationship consciously cannot now go",audio_24_270.mp3 +back to their old relationship and seek relief in terms of such relationship. There is a clear and conscious act on the part of the,audio_24_271.mp3 +appellant to surrender her right as a scch-25 tenant to acquire a superior right of an owner of the second floor of the suit premises.smt.dhanalakshmi,audio_24_272.mp3 +"vs. sri. K.puttappa on 28 february, 2023",audio_24_273.mp3 +"Relationship arises as regards the identical subject€ matter the two sets of mutually contra relationships cannot co€exist as being inconsistent and incompatible, i.e. to",audio_24_274.mp3 +"say, if the latter can come into effect only on termination of the earlier that would be deemed to have been terminated in order to",audio_24_275.mp3 +"enable the latter to operate. [see: velu v lekshmi & ors., reported in air 1953 travancore€cochin 584] in the third decision of r.kanthimathi it is",audio_24_276.mp3 +"observed at para 6 to 8 as under; ""6. Any jural relationship between two persons could be created through agreement and similarly could be changed",audio_24_277.mp3 +through agreement subject to the limitations under the law. Earlier when appellants were inducted into tenancy it only means both agreed that their relations is,audio_24_278.mp3 +to be that of a landlord and tenant. Later when landlord decides to sell this property to the tenant and tenant agreed by entering into,audio_24_279.mp3 +agreement they by their positive act changed their relationship as purchaser and seller. When seller€landlord accepts sum he actually acts under this agreement. This acceptance,audio_24_280.mp3 +preceded by agreement of sale changes their relationship. This is how they intended. Once accepting such a change then their relationship of landlord tenant ceases.,audio_24_281.mp3 +Scch-25 7. This court in arjunlal bhatt mall gothani v.girish chandra dutta held as under: the appellants were tenants in the premises of the respondent€landlord,audio_24_282.mp3 +"and three suits, including an eviction suit, were pending against them. By an agreement between the appellants and the respondent, the respondent agreed to sell",audio_24_283.mp3 +the whole property to the appellants for a certain sum to be paid to him by equal instalments. Cl. 5 of the agreement provided that,audio_24_284.mp3 +"in Cas. of default of any instalment, the agreement for sale would stand cancelled and if the purchasers failed to pay the defaulted instalments within",audio_24_285.mp3 +one month's notice the payments made would stand forfeited and purchasers would make over possession of the property to the vendor. Xxx xxx under Cl. ,audio_24_286.mp3 +(5) of the agreement the question of giving notice arises only if the vendor wanted to forfeit the instalments paid by the purchaser. Not even,audio_24_287.mp3 +one instalment having been paid the question of forfeiture does arise and no notice was necessary for cancelling agreement. It stood automatically cancelled. It was,audio_24_288.mp3 +sought to be argued before us that once the agreement stood cancelled the appellants stood restored to their original position as tenants and the suit,audio_24_289.mp3 +"could not be filed without giving notice under the transfer of property act. We are of opinion that when the agreement, d/ june 7, 1959",audio_24_290.mp3 +was entered into the old relationship of landlord and tenant came to an end. The rights and liabilities of the parties have to be worked,audio_24_291.mp3 +out on the basis of that agreement. This decision clearly spells out that once there is agreement of sale between a land lord and a,audio_24_292.mp3 +"tenant, the old relationship as such comes to an end. It goes on to record that even after the scch-25 cancellation ofsmt.dhanalakshmi vs. sri. K.puttappa",audio_24_293.mp3 +"on 28 february, 2023",audio_24_294.mp3 +The date of execution of the aforesaid agreement of sale their status as that of landlord and tenant changed into a new status as that,audio_24_295.mp3 +"of a purchaser and a seller. 8. Thus within this legal premises, the submission by learned counsel for (he respondent of revival of their old",audio_24_296.mp3 +"relationship of landlord and tenant when she repudiates this agreement by sending back to the tenant Rs. 20,000/€ through a cheque, (which according to the",audio_24_297.mp3 +appellant was not encashed) cannot be accepted. So we have no hesitation to reject the same. Every conduct of the landlady right from the date,audio_24_298.mp3 +"of entering into agreement of sale, accepting money towards the sale consideration, delivering possession in lieu of such agreement all clearly indicates and has to",audio_24_299.mp3 +be construed in law that she repudiated her old relationship of landlord and tenant. Thus after this parties enter into new cloak of seller and,audio_24_300.mp3 +purchaser and their relationship to be governed under the said terms of the agreement. Every right and obligation thereafter would flow from it. Even if,audio_24_301.mp3 +parties under the agreement of sale does not perform their obligations remedy may be availed in law as permissible under the law. Hence we have,audio_24_302.mp3 +no hesitation to hold that courts below including HC committed error in holding that tenant committed wilful default. When appellant is no more tenant,audio_24_303.mp3 +"how can non€payment be construed as wilful default"". Further, it is also important to refer S. 53€a which reads thus; scch-25 S. 53a. Part performance",audio_24_304.mp3 +- where any person contract to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms,audio_24_305.mp3 +"necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the",audio_24_306.mp3 +"property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some",audio_24_307.mp3 +"act in furtherance of the contract,..........."". Above S. clearly recognizes that the transferee being already in possession, continues in possession in part performance of the",audio_24_308.mp3 +contract as in this Cas. the defendant also Conti. in possession in recognition of part performance of said contract. No doubt the ex.d.2 is unregistered,audio_24_309.mp3 +"one but the said fact cannot be appreciated by this court in this Cas. having Ltd. jurisdiction. Therefore, on careful perusal of the above decisions",audio_24_310.mp3 +they are aptly applicable to the facts and circumstances of the present Cas. to hold that after execution of sale agreements there do not exists,audio_24_311.mp3 +"relationship of landlord and tenant between the plaintiff and defendant herein. Scch-25 25. Therefore, on over all assessment of the entire evidence on record and",audio_24_312.mp3 +by applying the ratio held in the above decisions relied upon by the counsel for the defendant it is clear that after execution of sale,audio_24_313.mp3 +agreements by plaintiff and receipt of earnest money under them the earlier status of the plaintiff and defendant came to an end and there do,audio_24_314.mp3 +"not exists land lady and tenant relationship between them. Therefore, the defendant by leading the evidence and relying on the above decisionssmt.dhanalakshmi vs. sri. K.puttappa",audio_24_315.mp3 +"on 28 february, 2023",audio_24_316.mp3 +The plaintiff. Moreover admittedly the earlier rent agreement was executed between one muddugangamm and the defendant as per ex.p.1 and hence the plaintiff failed to,audio_24_317.mp3 +"prove said relationship as pleaded. Accordingly, this point is answered in the negative. Scch-25 26. Point nos.3 and 4:€ as discussed above the plaintiff has",audio_24_318.mp3 +failed to prove the relationship between herself and defendant as landlady and tenant and hence the plaintiff's claim that she did quit the tenancy of,audio_24_319.mp3 +the defendant cannot be acceptable and receipt of said notice also not helpful in favor of Cas. of plaintiff as the defendant suitable replied it,audio_24_320.mp3 +and consequently the plaintiff is not entitled to any of the reliefs as sought by her in this Cas. . Accordingly these points are answered in,audio_24_321.mp3 +"the negative. 27. Point no.5:€ for the reasons and discussions made above and findings given on point nos.1 to 4, this court proceeds to pass",audio_24_322.mp3 +the following:€ order the suit of the plaintiff is dismissed. No order as to cost. Scch-25 office to draw decree accordingly. (dictated to the stenographer,audio_24_323.mp3 +"on line, revised, corrected and then pronounced in the open court this the 28th day of february 2023.) (miss.b.t.annapoorneshwari) xxiii addl. Small causes judge, bangalore.",audio_24_324.mp3 +Annexure list of the witnesses examined on behalf of plaintiff: pw.1 smt. Dhanalakshmi list of the documents exhibited on behalf of plaintiff: ex.p.1: original rental,audio_24_325.mp3 +agreement ex.p.2: fee receipt ex.p.3: copy of vakalath nama bearing the signature of the defendant for appearing in Cas. os 2711/2010 ex.p.4: copy of examination,audio_24_326.mp3 +in chief in os 2711/2010 ex.p.5: copy of lr Appl. of os 2711/10 ex.p.6: rent agreement of other tenants of dhanalakshmi drafted and witnessed by,audio_24_327.mp3 +defendant ex.p.7: copy of Pvt. complaint pcr.16231/2012 ex.p.8 copy of stay in rfa 1570/14 scch-25 ex.p.9 copy of revision petition no.02/2015 if bar counsel of,audio_24_328.mp3 +"india ex.p.10 copy of legal notice, postal receipt rpad cover with acknowledgement list of the witnesses examined on behalf of defendant: dw.1: Mr. t.k.puttappa list",audio_24_329.mp3 +of the documents exhibited on behalf of defendant: ex.d.1: signature of the defendant at certified copy of vakalath in os no.2711/2010 ex.d.2: copy of sale,audio_24_330.mp3 +agreement dated 12.06.2013 ex.d.3: certified copy of dismissal of complaint filed by the plaintiff before the ksbc along with postal cover (four pages) ex.d.4: certified,audio_24_331.mp3 +"copy of list of documents handed over to the defendant (onesmt.dhanalakshmi vs. sri. K.puttappa on 28 february, 2023",audio_24_332.mp3 +Certified copy of agreement of sale dated12.06.2013 with receipt ex.d.7: certified copy of judgment in os no.5858/2012 along with decree scch-25 ex.d.8: original pass book,audio_24_333.mp3 +of smt.ambika w/o of the defendant ex.d.8(a): relevant entry dated 15.09.2020 ex.d.9: one electricity bill ex.d.10: one water bill alongwith one bill paid receipt ex.d.11:,audio_24_334.mp3 +metered backup ledger report issued by bwssb on the request made by the defendant alongwith challan for having paid the fee alongwith certificate u/sec.65 b,audio_24_335.mp3 +"of evidence act(four pages and one challan) ex.d.11(a) three relevant entries i.e., september 2020, march 2021 and july 2022 respectively payments made by the defendant.",audio_24_336.mp3 +"(miss.b.t.annapoorneshwari) xxiii addl.small causes judge, bangalore. Sch. residential premises consisting of one beg rood, one hall, one kitchen, one bath and flushout in all about",audio_24_337.mp3 +"350 sq.feet in the first floor (one portion) out of the property bearing Corp. katha no.4/2 house no.21, situated at 6th cross (old 5th cross)",audio_24_338.mp3 +"nagappa street, palace guttahalli, bangalore, bounded on east by Pvt. scch-25 property bearing house no.20, west by Anr. house of the plaintiff in the first",audio_24_339.mp3 +"floor of same building, north by Pvt. property bearing house no.18 and south by road. (miss.b.t.annapoorneshwari) xxiii addl.small causes judge, bangalore.smt.dhanalakshmi vs. sri. K.puttappa on",audio_24_340.mp3 +"28 february, 2023",audio_24_341.mp3 +"Sri.renukaprasad. K.s vs. m/S. bhargavi trading on 9 december, 2021 1 cc.no.12327/2016 j in the court of the xvi additional chief MM , bengaluru city",audio_25_1.mp3 +"dated:− this the 9th day of december, 2021 present: sri.s.b.handral, b.sc., l.l.b(spl)., xvi addl.c.m.m., bengaluru city. Judgment u/s 355 of Cr.P.C. ,",audio_25_2.mp3 +"Cas. No. : c.c.no.12327/2016 complainant : sri.renukaprasad. K.s, s/o. Hemadri naidu, aged about 45 years, r/at no.23, sai krishna residency, 1st cross, 15th main, munivenkatappa",audio_25_3.mp3 +"layout, uttarahalli main road, bengaluru − 61. (by sri. M.v.anil kumar., adv.,) − vs − accused : 1. M/s. Bhargavi trading Corp. (now doing the",audio_25_4.mp3 +"business in the name and style of m/s.hoysala plantation and processing), rep.by its proprietor, v.prasanna, situated at no.b−142 & 143, industrial estate, hebbala, mysore −570",audio_25_5.mp3 +"016. 2 cc.no.12327/2016 j 2. V.prasanna, s/o. Shivananda, aged about 48 years, proprietor of m/s. Bhargavi trading corporationsri.renukaprasad. K.s vs. m/S. bhargavi trading on 9",audio_25_6.mp3 +"december, 2021",audio_25_7.mp3 +"name and style of m/s.hoysala plantation and processing), r/at no.9c−45, ""maruthi prasanna"", 5th main, 9th cross, srinidhi layout, chunchaghatta, bangalore − 62. (by smt. Veena",audio_25_8.mp3 +"bhat adv .,) Cas. instituted : 20.05.2016 offence complained : u/s 138 of n.i act of plea of accused : pleaded not guilty final order",audio_25_9.mp3 +: accused no.1 and 2 are acquitted date of order : 9.12.2021 judgment the complainant has filed this complaint against the accused for the offence,audio_25_10.mp3 +"punishable u/sec.138 of the NI Act . Cc.no.12327/2016 j 2. Briefly stated the Cas. of the complainant is that, accused no.1 is proprietorship concern firm",audio_25_11.mp3 +"represented by its proprietor ie., the accused no.2 and the accused no.2 is incharge of the day to day affairs of the accused no.1 as",audio_25_12.mp3 +the accused no.1 is a juristic person and accused no.2 represents the accused no.1 as a proprietor who is aware and incharge/ authorized person and,audio_25_13.mp3 +also responsible to the accused no.1 for the conduct of business of the accused no.1 in the capacity of proprietor. It is further contended by,audio_25_14.mp3 +"the complainant that, he is the absolute owner of site property bearing no.43, katha no.16/1b in the layout viz. green banks , anjanapura village, uttarahalli",audio_25_15.mp3 +"hobli, bangalore under the limits of bbmp measuring to an extent of 4,114 sq.ft and he is intending to sell the said property as he",audio_25_16.mp3 +"was in urgent need of funds for better investment and to clear hand loan and for his legal necessities and other requirements, thus the accused",audio_25_17.mp3 +no.2 has come forward to purchase the said property for valuable sale consideration and negotiations took place between them to purchase the property. Cc.no.12327/2016 j,audio_25_18.mp3 +"3. It is further contended by the complainant that, after negotiation a MOU dt: 27.8.2011 entered into between him and accused no.2 regarding",audio_25_19.mp3 +said property on certain terms and conditions and on the same day an agreement of sale also came entered into between them and in the,audio_25_20.mp3 +"MOU it has been mentioned that, rs.1 lakh paid by way of cheque bearing no.000324 dt: 13.2.2011 drawn on city union bank ltd.,",audio_25_21.mp3 +"jayanagar branch, bangalore as an advance sale consideration and rs.30 lakhs bysri.renukaprasad. K.s vs. m/S. bhargavi trading on 9 december, 2021",audio_25_22.mp3 +"Lakh by way of cheque bearing no.963033 dt: 31.12.2011 and rs.12 lakhs by way of cheque bearing no.963034 dt: 28.2.2011, all the cheques were drawn",audio_25_23.mp3 +"on sbi, J. p.nagar branch, bangalore and assured to him to encash the said cheques. 4. It is further contended by the complainant that, that",audio_25_24.mp3 +on 3.9.2011 absolute sale deed came entered into between him and accused no.2 in the presence of witnesses and same came to be registered before,audio_25_25.mp3 +"the Sr. sub€registrar, J. p.nagar bangalore cc.no.12327/2016 j and after execution of the sale deed the accused no.2 assured that, after getting the bank loan",audio_25_26.mp3 +he will going to clear the entire amount to him until then accused no.2 requested him not to present the above said cheques but instead,audio_25_27.mp3 +of which the accused no.2 has dodged the time for one or other reason for several years and finally the accused no.2 has issued post,audio_25_28.mp3 +"dated cheques ie., cheque bearing no.084746 dt: 10.11.2015 for sum of rs.5 lakh and cheque bearing no.084751 dt: 10.11.2015 for sum of rs.5 lakhs both",audio_25_29.mp3 +"cheques were drawn on Corp. bank, laxmipuram branch, mysore and along with the said cheques the accused no.2 has also given cheques bearing no.084747 for",audio_25_30.mp3 +"sum of rs.10 lakhs, cheque bearing no.084750 for rs.10 lakhs thus the accused no.2 has issued cheques for total sum of rs.45 lakhs in all",audio_25_31.mp3 +"and for the balance amount of rs.5 lakh , the accused no.2 has assured to give on the same day itself ie in total including",audio_25_32.mp3 +the cheques amount is rs.50 lakhs and in the MOU it has been mentioned that accused no.2 has paid an amount of rs.30,audio_25_33.mp3 +lakhs to him but the accused no.2 has not paid the said amount to him at the time of MOU and the accused,audio_25_34.mp3 +"cc.no.12327/2016 j has issued the cheque bearing no.084747 in his favour as a proprietor of bhargavi trading Corp. ie., accused no.1. 5. It is further",audio_25_35.mp3 +"contended by the complainant that, on 21.8.2014 he had lodged a complaint against the accused no.2 before the subramanyapura police station for non payment of",audio_25_36.mp3 +amount to him and for cheating and on 11.9.2014 the accused no.2 and his wife smt. Veena have appeared before the said police and both,audio_25_37.mp3 +"of them requested to grant six months time and the accused no.2 has not kept up his promise and repaid the cheques amount, therefore without",audio_25_38.mp3 +alternative he once again approached the same police station and lodged the police complaint on 23.5.2015 against the accused no.2 for which the jurisdictional police,audio_25_39.mp3 +have issued acknowledgement to him and even after foisting the complaint the accused no.2 has not come forward to clear the cheques amount and requested,audio_25_40.mp3 +"him to give some more time to pay the amount. Thereafter after lodging the complaint by him, the W/O accused no.2 has lodged a",audio_25_41.mp3 +false complaint against him before the thalagattapura police station cc.no.12327/2016 j on 13.09.2015 and the police have registered a Cas. in ncr no.558/2015 against him,audio_25_42.mp3 +and on 11.10.2015 he had appeared before the police and given statement about the property transaction at that time the wife ofsri.renukaprasad. K.s vs. m/S. ,audio_25_43.mp3 +"bhargavi trading on 9 december, 2021",audio_25_44.mp3 +"6. It is further contended by the complainant that, after issuance of the cheques the accused no.2 requested him to present the cheque bearing no.084748",audio_25_45.mp3 +dt: 10.1.2016 for sum of rs.10 lakhs and cheque bearing no.084749 dt: 10.2.2016 for sum of rs.10 lakhs and cheque bearing no.084750 dt: 10.3.2016 for,audio_25_46.mp3 +sum of rs.10 lakhs and agreed to keep sufficient fund to honour the cheques and on the promise of the accused no.2 he has presented,audio_25_47.mp3 +"the said cheques through his banker ie state bank of mysore, kathriguppe branch bangalore but the said cheques were returned dishonoured for the reason of",audio_25_48.mp3 +"""funds insufficient"" and ""payment stopped by drawer"" vide endorsement dt:22.3.2016 and 11.3.2016 and thereafter he contacted accused no.2 but he expressed his financial difficulties and",audio_25_49.mp3 +dodged the time for one and other reasons and failed to pay the cheques cc.no.12327/2016 j amount and thereafter the accused no.2 himself called him,audio_25_50.mp3 +"and requested to represent cheque bearing no.084750 dt: 10.3.2016 for a sum of rs.10 lakhs drawn at Corp. bank, laxmipura branch, mysore for encashment and",audio_25_51.mp3 +"he has presented the said cheque on 16.4.2016 through his banker but once again the said cheque was returned dishonoured for the reason of ""payment",audio_25_52.mp3 +"stopped by drawer"" dt: 20.4.2016 and the accused no.2 has not paid the cheques amount and has given evasive reply to him , therefore the",audio_25_53.mp3 +said sum of rs.30 lakhs is a legally recoverable debt as the accused no.2 promised to pay the said amount under the MOU ,audio_25_54.mp3 +and obtained the sale deed from him since august 2011 as a sale consideration amount and towards the repayment of the said transaction the cheques,audio_25_55.mp3 +in question have been issued by the accused no.2 in the capacity of proprietor of accused no.1 to him. 7. It is further contended by,audio_25_56.mp3 +"the complainant that, he got issued demand notice to the accused through his Adv. on 21.4.2016 through rpad and by ordinary post to repay the",audio_25_57.mp3 +"cheques amount and the cc.no.12327/2016 j notice sent by rpad was returned with shara "" not claimed returned to addressee"" and notice sent by ordinary",audio_25_58.mp3 +post was received by the accused and he did not reply to the same. Hence he has filed this present complainant against the accused for,audio_25_59.mp3 +"the offence punishable u/s.138 of NI Act . 8. Before issuing process against the accused, the the complainant has filed his Aff. €in€lieu of his sworn",audio_25_60.mp3 +"statement, in which, he has reiterated the averments made in the complaint. In support of his evidence, p.w.1 has relied upon the documentary evidence as",audio_25_61.mp3 +"per ex.c.1 to c.14 i.e, original cheques dated: 10.1.2016, 10.2.2016, 10.3.2016, are as per ex.c.1 to c.3, the signatures on the said cheques identified by",audio_25_62.mp3 +"p.w.1 are those of the accused as per ex.c.1(a) to c.3(a), the bank memos as per ex.c4 to c.6 the office copy of legal notice",audio_25_63.mp3 +"as per ex.c7, postal receipts as per ex.c.8 and c.9, postal acknowledgement as per ex.c.10, copy of returned legal notice as per ex.c.11, postal envelope",audio_25_64.mp3 +"as per ex.c.12, postal receipt as per ex.c.13, postal acknowledgement as per ex.c.14, subsequently the cc.no.12327/2016 j complainant has produced MOU dt: 27.8.2011",audio_25_65.mp3 +"as per ex.c.15sri.renukaprasad. K.s vs. m/S. bhargavi trading on 9 december, 2021",audio_25_66.mp3 +"Lakhs cheque dt.28.2.2012 for rs.12 lakhs as per ex.c.16 to c.18 respectively, true copy of the complaint filed by the complaint dt: 21.8.2014 before the",audio_25_67.mp3 +"subramanyapura police station as per ex.c.19 and endorsement issued by the concerned police as per ex.c.20, true copy of the statement of the accused dt:",audio_25_68.mp3 +"11.9.2014 as per ex.c.21 , true copy of the statement of the W/O the accused no.2 dt: 11.9.2014 as per ex.c.22, true copy of",audio_25_69.mp3 +"the complaint filed by the complainant dt: 23.5.2015 as per ex.c.23, true copy of the complaint filed by the W/O the accused no.2 before",audio_25_70.mp3 +"the thalagattapura police station dt: 12.9.2015 as per ex.c.24, endorsement issued by the concerned police as per ex.c.25, true copy of the statement given by",audio_25_71.mp3 +"the complainant dt; 11.10.2015 as per ex.c.26, original cheques dt: 10.11.2015, for sum of rs.5 lakhs and dt: 10.11.2015 for sum of rs.5 lakhs as",audio_25_72.mp3 +"per ex.c.27 and c.28, cheque dt: 10.12.2015 for sum of rs.10 lakhs as per ex. C.29, returned memos as per ex.c.30 to c.35 respectively. Cc.no.12327/2016",audio_25_73.mp3 +j 9. Prima€facie Cas. has been made out against the accused and summons was issued against the accused in turn has appeared before the court,audio_25_74.mp3 +"and got enlarged on bail and the substance of the accusation has been read over to him, to which he pleaded not guilty and claims",audio_25_75.mp3 +"to be tried. 10. As per the direction of the Hon'ble apex court in the decision of the indian bank Assn. vs., UOI ,",audio_25_76.mp3 +"reported in 2014 (5) scc 590, after recording the plea of the accused, as he intended to set out her defence, then the Cas. was",audio_25_77.mp3 +"posted for the cross€examination of the pw.1 and cross€examination of pw.1 recorded and complainant has closed his side evidence. 11. Thereafter, the statement of the",audio_25_78.mp3 +accused as required under sec.313 of the Cr.P.C. has been recorded. He has denied the incriminating evidence appearing against him and has,audio_25_79.mp3 +chosen to lead his rebuttal evidence. The accused himself examined as dw.1 during the course of cross examination of complainant got marked the certified copy,audio_25_80.mp3 +"of the cc.no.12327/2016 j registered sale deed dt 3.9.2011 as per ex.d.1, certified copy of the agreement of sale dt: 15.3.2011 as per ex.d.2, certified",audio_25_81.mp3 +copy of the cancellation of sale agreement dt: 2.9.2019 as per ex.d.3 and relevant entries in ex.c.15 as per ex.d.4. The accused has also produced,audio_25_82.mp3 +"certified copies of the five d.ds as per ex.d.5 to d.9 , notarized copy of the aadhar card and driving license as per ex.d.10 and",audio_25_83.mp3 +d.11 and closed his side. 12. Heard by learned counsel for the complainant and the accused and perused the material on record and decisions relied,audio_25_84.mp3 +"upon by the learned counsel for the complainant ie. Air 2021 SC 2814 in the Cas. of aps forex services pvt. Ltd., vs. Shakti",audio_25_85.mp3 +"international fashion linkers and Ors. . The decisions relied upon by the learned counsel for the accused ie., crl. Appeal no.31/2009 decided by Hon'ble HC ",audio_25_86.mp3 +"of madras on 6.3.2019 in the Cas. of n. Perumal vs.c. Purushotham. Cc.no.12327/2016 jsri.renukaprasad. K.s vs. m/S. bhargavi trading on 9 december, 2021",audio_25_87.mp3 +Arise for consideration are:€ 1. Whether the complainant proves that the accused has issued three cheques ie 1) cheque bearing no.084748 dt: 10.01.2016 for sum,audio_25_88.mp3 +"of rs.10 lakhs 2) cheque bearing no.084749 dt: 10.02.2016 for sum of rs.10 laksh 3) cheque bearing no.084750 dt: 10.03.2016 for sum of rs.10 lakhs,",audio_25_89.mp3 +"drawn on Corp. bank, lakshmipuram branch, mysore, to discharge legally recoverable debt to the complainant and when the complainant has presented cheque for encashment through",audio_25_90.mp3 +"his banker but the said cheques have been dishonoured for the reasons ""funds insufficient"" and ""payment stopped by drawer"" on 22.3.2016 and 18.4.2016 respectively and",audio_25_91.mp3 +the complainant issued legal notice to the accused on 21.04.2016 and inspite of it the accused has not paid the cheque amount within prescribed period,audio_25_92.mp3 +there by the accused has committed an offence u/s.138 of the NI Act ? 2. What order? cc.no.12327/2016 j 14. The above points are answered,audio_25_93.mp3 +as under: point no.1: in the negative point no.2: as per final order for the following: .. Reasons 15. Point no.1: before appreciation of the,audio_25_94.mp3 +"facts and oral and documentary evidence of the present Cas. , it is relevant to mention that under Crl. jurisprudence prosecution is required to establish guilt",audio_25_95.mp3 +"of the accused beyond all reasonable doubts however, a proceedings u/s.138 of n.i.act is quasi Crl. in nature. In these proceedings proof beyond all reasonable",audio_25_96.mp3 +"doubt is subject to presumptions as envisaged u/s.118, 139 and 136 of n.i.act. An essential ingredient of S. 138 of n.i.act is that, whether a",audio_25_97.mp3 +person issues cheque to be encashed and the cheque so issued is towards payment of debt or liability and if it is returned as unpaid,audio_25_98.mp3 +"for want of funds, then the person issuing such cheque shall be deemed to have been committed an offence. The offence u/s.138 of n.i. Act",audio_25_99.mp3 +"pre€supposes three conditions for prosecution of an offence which are as under:sri.renukaprasad. K.s vs. m/S. bhargavi trading on 9 december, 2021",audio_25_100.mp3 +"I.e., from the date of issue or before expiry of its validity. 2. The holder shall issue a notice demanding payment in writing to the",audio_25_101.mp3 +drawer within one month from the date of receipt of information of the bounced cheque and 3. The drawer inspite of demand notice fails to,audio_25_102.mp3 +make payment within 15 days from the date of receipt of such notice. If the above said three conditions are satisfied by holder in due,audio_25_103.mp3 +"course gets cause action to launch prosecution against the drawer of the bounced cheque and as per sec.142(b) of the n.i. Act, the complaint has",audio_25_104.mp3 +to be filed within one month from the date on which cause of action arise to file complaint. 16. It is also one of the,audio_25_105.mp3 +"essential ingredients of S. 138 of n.i.act that, a cheque in question must have been issued towards legally recoverable debt or liability. S. 118 and",audio_25_106.mp3 +"139 of n.i.act envisages certain presumptions i.e., u/s.118 a presumption shall be raised regarding 'consideration' 'date' 'transfer' cc.no.12327/2016 j 'endorsement' and holder in course of",audio_25_107.mp3 +"negotiable instrument. Even sec.139 of the act are rebuttable presumptions shall be raised that, the cheque in question was issued regarding discharge of a legally",audio_25_108.mp3 +"recoverable or enforceable debt and these presumptions are mandatory presumptions that are required to be raised in cases of negotiable instrument, but the said presumptions",audio_25_109.mp3 +"are not conclusive and rebuttable one, this proportion of law has been laid down by the Hon'ble apex court of india and Hon'ble HC ",audio_25_110.mp3 +"of karnataka in catena of decisions. 17. In the present Cas. , there is no dispute between the complainant and accused with regard to their acquaintance.",audio_25_111.mp3 +"It is also not in dispute that, the accused no.2 is the proprietor of accused no.1 propitiatory concern ie. M/s.bhargavi trading Corp. (now doing the",audio_25_112.mp3 +"business in the name and style of m/s. Hoysala plantation and processing) and it is also not in dispute that, the cheques in question belongs",audio_25_113.mp3 +to account of the accused no.1 proprietary concern and signatures found at ex.c..1(a) to c.3(a) are those of signatures of accused no.2. The accused cc.no.12327/2016,audio_25_114.mp3 +"j have also not disputed that the cheques in dispute were presented for encashment and dishonoured for the reason of ""funds insufficient, payment stopped by",audio_25_115.mp3 +"drawer"" vide bank endorsements dated: 22.3.2016 and 18.4.2016 therefore as a matter on record and has been proved by producing bank memos i.e., ex.c.4 to",audio_25_116.mp3 +"c.6 respectively issued by the concerned bank dated:22.3.2016 and 18.04.2016. Therefore the complainant has proved that, the cheques in question i.e ex.c.1 to c.3 were",audio_25_117.mp3 +presented within their validity period and dishonoured as per bank endorsements issued by the banker of the accused and the cheques in question belonging to,audio_25_118.mp3 +the account of accused no.1 proprietary concern and signatures are those of the accused no.2 as a proprietor of accused no.1 propitiatory concern which are,audio_25_119.mp3 +"at ex.c.1(a) to c.3(a) respectively. 18. In relation to the service of notice, the accused in his defence denied the service of notice upon him",audio_25_120.mp3 +"by contending that, his name is v.S. prasanna and not v.prasanna and his house name is ""maruthi prasad"" and not ""maruthi prasanna"" as cc.no.12327/2016 j",audio_25_121.mp3 +"mentioned in the notice and in the complaint and since 2013€14 his house No. is changed as ""anantanugraha"" and insri.renukaprasad. K.s vs. m/S. bhargavi trading",audio_25_122.mp3 +"on 9 december, 2021",audio_25_123.mp3 +"D.11. 19. On the other hand the complainant in order to prove the service of notice upon the accused, has produced the documents i.e copy",audio_25_124.mp3 +"of the legal notice, postal receipts, postal acknowledgement, returned legal notice, rpad cover and postal receipt and postal acknowledgement which are at ex.c.7 to c.14",audio_25_125.mp3 +"respectively. On perusal of the ex.c.7 to c.14 it appears that, the complainant has issued legal notice within 30 days from the date of receipt",audio_25_126.mp3 +"of endorsements of the bank and the said notice was sent through rpad and the said rpad returned with an endorsement of ""addressee not claimed,",audio_25_127.mp3 +"hence returned to sender dt: 29.04.2016"", hence, it goes to show that, the legal notice caused by the complainant through rpad to the address of",audio_25_128.mp3 +"the accused shown in the notice returned with postal endorsement of ""addressee not claimed, hence cc.no.12327/2016 j returned to sender dt: 29.04.2016"". The perusal of",audio_25_129.mp3 +"the address of the accused shown by the complainant in ex.c.7 to c.14 as ""m/s.bhargavi trading Corp. now the business in the name and style",audio_25_130.mp3 +"of m/s. Hoysala plantation and processing, rep. By v. Prasanna, no.b€142 and 143, industrial estate, hebbal, mysore€570016"" and the perusal of address of the accused",audio_25_131.mp3 +in the documents produced by the ex.d.10 and d.11 they are pertains to the address of his residential house but not address of his proprietary,audio_25_132.mp3 +"concern ie accused no.1, hence the accused has not produced any documents to show that, the address shown by the complainant in ex.c.7 to c.14",audio_25_133.mp3 +"is not the correct address of accused no.1 proprietary concern, and the documents produced by the accused are not helpful for him to disprove the",audio_25_134.mp3 +"address mentioned by the complainant is not the correct address of the accused no.1 proprietary concern. In addition to that, the accused in his cross",audio_25_135.mp3 +"examination admitted that, he is doing coffee business at mysore and m/s. Plantation and processing partnership firm at mysore and m/s. Bargavi trading Corp. firm",audio_25_136.mp3 +"partnership firm at cc.no.12327/2016 j bengaluru are belongs to him, hence it goes to show that, the accused has admitted that, he is the proprietor",audio_25_137.mp3 +of m/s. Bhargavi trading Corp. and m/s. Hoysala plantation and processing as shown by the complainant in the legal notice and also in the complaint.,audio_25_138.mp3 +It is also seen from the ex.c.7 ie the legal notice though the complainant has shown the residential address of the accused as r/at no.9c€45,audio_25_139.mp3 +"""maruthi prasanna"" 5th main, 9th cross, srinidhi layout, chunchanagatta, bangalore €62 but the legal notice was sent to the address of accused no.1 and same",audio_25_140.mp3 +has been returned as not claimed by the accused. This fact has not been disputed by the accused and accused himself admitted in his cross,audio_25_141.mp3 +"examination that, as per ex.c.15€MOU , ex.c.19€ complaint, ex.c.21 statement, his residential house No. shown as 9€c/45, 5th main, 9th cross, srinidhi layout,",audio_25_142.mp3 +"and also admitted that, if any letter is sent to the said address through post and same will be reached to him, in such circumstances",audio_25_143.mp3 +"the accused himself admitted that, the address mentioned by the complainant is his correct residential address therefore the denial of the accused in his evidence",audio_25_144.mp3 +"with cc.no.12327/2016 j regard to service of legal notice cannot be acceptable one. Apart from that, it is not the defence of the accused that,",audio_25_145.mp3 +"the complainant by colluding with the postal authorities got created the postal endorsement and produced before the court , therefore in view of non denial",audio_25_146.mp3 +"of the postal endorsement issued by the concerned Dept. it cannot be held that, the endorsement found on ex.c.12 ie ""addressee not claimed, hence returned",audio_25_147.mp3 +"to sender"" got created by the complainant, therefore in view of the oral and documentary evidence produced by the complainant and admitted facts by the",audio_25_148.mp3 +"accused it can be held that, the legal notice caused by the complainant as per ex.c.7 sent through rpad to the correct address of the",audio_25_149.mp3 +"accused and same has been returned assri.renukaprasad. K.s vs. m/S. bhargavi trading on 9 december, 2021",audio_25_150.mp3 +"Be held that, the legal notice issued by the complainant was to the correct address of the accused and same has been returned with shara",audio_25_151.mp3 +"of "" addressee not claimed, hence returned to sender"", in such circumstances, it can be held that, the notice sent by the complainant to the",audio_25_152.mp3 +"correct address of the accused cc.no.12327/2016 j is presumed to have been served on him u/s. 27 of general clauses act. In this regard, it",audio_25_153.mp3 +is relevant here to refer the decision of Hon'ble HC of karnataka reported in 2011 acd 1572 (kar) in the Cas. of jayamma vs.,audio_25_154.mp3 +"Lingamma, wherein the Hon'ble HC held that, ""notice sent at correct address returned unclaimed - is deemed to be served. In Anr. decision reported",audio_25_155.mp3 +"in 1998 kar 1841 in the Cas. of shridhar m.a. Vs. Metalloy steel Corp. and 1999 cri.l.j. 4606 ""k. Bhaskaran vs. Vaidhanbalan wherein the Hon'ble ",audio_25_156.mp3 +apex court was concerned with the question as to when the service of notice could be inferred and it was held that if there is,audio_25_157.mp3 +an endorsement like 'not available in the house' 'house locked' 'shop closed' 'unclaimed' the service should be deemed to have been effected. It is also,audio_25_158.mp3 +"relevant here to refer the decision reported in 2008(4) Civ. code cases 027 (SC ) ""m/s. Indo automobiles vs., m/s. Jai durga enterprises and",audio_25_159.mp3 +"Ors. ."" wherein the Hon'ble apex court held that, ""notice sent by cc.no.12327/2016 j registered post with acknowledgement to a correct address€service of notice has to",audio_25_160.mp3 +"be presumed"". Therefore in view of the principles of law in the above decisions, it can be safely held that, the service of notice on",audio_25_161.mp3 +accused in this Cas. is presumed to have been served on him since in this Cas. also the complainant has issued notice to the accused,audio_25_162.mp3 +"to his correct address through registered post and the said notice was returned with an endorsement of ""addressee not claimed, hence returned to sender"", hence",audio_25_163.mp3 +"the notice issued by the complainant through registered post is held to be proper. In addition to that, it is relevant here to refer the",audio_25_164.mp3 +"decision reported in 2007 air scw 3578 in the Cas. of c.c.alavi haji vs. Palapetty muhammed and Anr. ., wherein the Hon'ble apex court held that",audio_25_165.mp3 +""" the drawer of the cheque is permitted to deposit the cheque amount within 15 days from the date of his appearance before the court",audio_25_166.mp3 +"in pursuance of the service of summons on him and in such situation, his defence of non service of the legal notice cannot be available",audio_25_167.mp3 +"to him'. Hence, in view cc.no.12327/2016 j of the said principles of law, even for sake of discussion, though there is no cogent and reliable",audio_25_168.mp3 +documentary proof to substantiate the claim of the complainant with regard to address of the accused to show there is due service of the legal,audio_25_169.mp3 +"notice on the accused, in view of settled position of law by virtue of the above said decision of Hon'ble apex court of india, the",audio_25_170.mp3 +"accused is not entitled to the technical defence of the alleged non service of the legal notice. Therefore, the argument convassed by the learned counsel",audio_25_171.mp3 +"for the accused that, the notice issued by the complainant was not served on the accused and the complainant has not complied the mandatory requirements",audio_25_172.mp3 +"of sec.138(b) of n.i.act and complaint is not maintainable cannot be acceptable. 20. It is the specific claim of the complainant that, he is the",audio_25_173.mp3 +"absolute owner of site property bearing no.43, katha no.16/1b in the layout viz. green banks anjanapura village, uttarahalli hobli, bangalore measuring an extent of 4114",audio_25_174.mp3 +sq.ft. And he was intending to sell the said property as he was in need of funds and the accused no.2 has come forward cc.no.12327/2016,audio_25_175.mp3 +j to purchase the said property for valuable consideration after negotiation a MOU dt: 27.8.2011 entered into between him and the accused no.2,audio_25_176.mp3 +on certain terms and conditions and on the same day an agreement of sale also came to entered into between him and accused no.2. It,audio_25_177.mp3 +"is also the claim of the complainant that, as per the MOU it has been mentioned that, an amount of rs.1 lakh paid",audio_25_178.mp3 +"by way of chequesri.renukaprasad. K.s vs. m/S. bhargavi trading on 9 december, 2021",audio_25_179.mp3 +"On 29.8.2011, rs.11 lakhs by way of cheque No. 963032 dt: 31.10.2011, rs.11 lakhs by way of cheque No. 963033 dt: 31.12.2011, and rs.12 lakhs",audio_25_180.mp3 +"by way of cheque baring no.963034, dt: 28.2.2011, all the cheques were drawn on sbi jp nagar branch, bangalore and assured him to encash the",audio_25_181.mp3 +"said cheques. It is also the claim of the complainant that, on 3.9.2011 absolute sale deed came entered into him and the accused no.2 in",audio_25_182.mp3 +"the presence of witnesses and same came to be registered before the subregistrar, J. p.nagar, bangalore and after execution of the sale deed the accused",audio_25_183.mp3 +"no.2 has assured that, after getting the bank loan he will going to clear the entire amount cc.no.12327/2016 j to him until then the accused",audio_25_184.mp3 +no.2 requested him not to present the cheques but instead of which the accused no.2 dodged the time for one or other reasons for several,audio_25_185.mp3 +"years and finally has issued post dated cheques ie cheque bearing No. 084746, dt; 10.11.2015 for sum of rs.5 lakhs cheque bearing no.084751 dt: 1.11.2015",audio_25_186.mp3 +"for sum of rs.5 lakhs and also given the cheques ie cheque bearing no.084747 for rs.10 lakhs , cheque bearing No. 084750 for rs.10 laksh",audio_25_187.mp3 +thus the accused no.2 has issued cheque for total sum for rs 45 lakhs in all and for the balance amount of rs.5 lakhs he,audio_25_188.mp3 +"has assured to give on the same day itself ie total amount of rs.50 lakhs. It is also the claim of the complainant that, in",audio_25_189.mp3 +"MOU it has been mentioned that, accused no.2 has paid rs.30 lakhs to him but has not paid the said amount at the",audio_25_190.mp3 +"time of MOU . It is also claim of the complainant that, on 21.8.2014 he had lodged a complaint against accused no.2 before",audio_25_191.mp3 +the police station for non payment of amount to him and for cheating and on 11.9.2014 the accused no.2 and his wife appeared before the,audio_25_192.mp3 +"police station and requested to grant six months time but the accused no.2 has not kept his promise and cc.no.12327/2016 j repaid the cheques amount,",audio_25_193.mp3 +thereafter again he approached the police station and lodged the complaint against the accused no.2 on 23.5.2015 even after filing the complaint accused no.2 has,audio_25_194.mp3 +not clear the said cheques amount and requested to grant some more time and thereafter the W/O the accused no.2 lodged the complaint against,audio_25_195.mp3 +him at thalagatta pura police station on 13.9.2015 and the police have registered the said Cas. in ncr no.558/2015 against him and on 11.10.2015 he,audio_25_196.mp3 +appeared before the police and given his statement and thereafter as per the request of the accused no.2 he has presented the cheques in question,audio_25_197.mp3 +"but the said cheques were dishonoured for want of sufficient fund and payment stopped by drawer. It is also the claim of the complainant that,",audio_25_198.mp3 +the sum of rs.30 lakhs is legally enforceable debt as the accused no.2 has promised to pay the aid amount under MOU and,audio_25_199.mp3 +obtained sale deed from him since august 2011 as a sale consideration amount and towards the repayment of the aid transaction the cheques in question,audio_25_200.mp3 +"have been issued by the accused no.2 in the capacity of accused no.1 to him. Cc.no.12327/2016 j 21. On the other hand, the accused has",audio_25_201.mp3 +denied the issuance of cheques in question to the complainant towards sale consideration amount and towards the repayment of the sale transaction and also denied,audio_25_202.mp3 +"the entire claim made by the complainant. Therefore the initial burden is on the complainant to prove that, the cheques in question have been issued",audio_25_203.mp3 +by the accused towards sale consideration amount and repayment of the sale transaction in his favour. 22. On careful perusal of the claim made by,audio_25_204.mp3 +"the complainant and defence of the accused , at the outset it is not in dispute that, earlier complainant is the owner of site property",audio_25_205.mp3 +"bearing no.43, katha no.16 1b situated at anajanapura village, uttarahalli hobli, bangalore to an extent of 4114 sq. Ft. Itsri.renukaprasad. K.s vs. m/S. bhargavi trading",audio_25_206.mp3 +"on 9 december, 2021",audio_25_207.mp3 +"Been registered before the sr. Subregistrar, J. p.nagar bangalore. In support of oral evidence the complainant has not produced copy of the registered sale deed",audio_25_208.mp3 +"executed by him in favour of the accused on 3.9.2011. It is also relevant here to mention that, the complainant either cc.no.12327/2016 j in his",audio_25_209.mp3 +"legal notice, complaint or evidence has not disclosed the total sale consideration of the property shown under the registered sale deed and also not disclosed",audio_25_210.mp3 +"that, how much sale consideration amount was received by him and how much sale consideration amount remained as balance from the accused and this fact",audio_25_211.mp3 +"has been admitted by the accused in his cross examination and also admitted that, there is no hindrance for him to disclose the said facts",audio_25_212.mp3 +"in his legal notice and complaint. On the other hand, during the course of cross examination of the complainant, the learned Adv. for the accused",audio_25_213.mp3 +has confronted the certified copy of the registered sale deed dt: 3.9.2011 executed by the complainant in favour of the accused and same has been,audio_25_214.mp3 +"got marked as ex.d.1. It is also relevant here to mention that, the complainant during his cross examination has admitted that, he has not produced",audio_25_215.mp3 +the certified copy of the registered sale deed before the court and he had taken the certified copy of the registered sale consideration from the,audio_25_216.mp3 +office of the sub€registrar but has not produced before the court and there is no hindrance for him to produce the said copy before the,audio_25_217.mp3 +"court, therefore the admissions of the cc.no.12327/2016 j complainant makes it clear that, though the complainant secured the certified copy of the registered sale deed",audio_25_218.mp3 +"executed by him in favour of the accused has not been produced for his unrevealed reasons. It is important here to mention that, the complainant",audio_25_219.mp3 +has not disclosed the sale consideration amount mentioned in the sale deed and also not produced the copy of the registered sale deed though is,audio_25_220.mp3 +"available with him may creates a serious doubt that, for the reasons known to him has not disclosed the material facts in his legal notice,",audio_25_221.mp3 +"complaint and evidence, therefore non disclosure of material facts by the complainant may leads to draw an adverse inference against him that, the complainant intentionally",audio_25_222.mp3 +and for his unrevealed reasons has not disclosed the necessary and material facts which are required to be disclosed in this Cas. . 23. On careful,audio_25_223.mp3 +perusal of the recitals of ex.d.1 ie certified copy of the registered sale deed dt: 3.9.2011 executed by the complainant in favour of the accused,audio_25_224.mp3 +"in respect of the site property bearing no.43 situated at anjanapura vilalge, uttarahalli hobli, bangalore south taluk and wherein it is mentioned cc.no.12327/2016 j that,",audio_25_225.mp3 +"the complainant has agreed to sell the said site property infavour of the accused in order to mobilize funds, to meet some of urgent commitments",audio_25_226.mp3 +"and for the legal necessities he offered to sell the Sch. property to the purchaser ie., the accused for sale consideration amount of rs.47 lakhs",audio_25_227.mp3 +". It is also seen from the sale deed that, the purchaser ie., the accused has paid the sale consideration amount of rs.47 lakhs ie",audio_25_228.mp3 +"by way of pay order five numbers each amount of rs.9 lakhs having numbers 550264, 550265, 550266, 550267 and 550268 all are dt: 30.8.2011 drawn",audio_25_229.mp3 +"on the national co€operative bank ltd., electronic city branch, hosur main road bangalore and rs.2 lakhs by way of cash. It is also seen that,",audio_25_230.mp3 +"the vendor ie., the complainant herein acknowledges having received the full and final settlement of sale consideration of the sale deed and admits and acknowledges",audio_25_231.mp3 +"andsri.renukaprasad. K.s vs. m/S. bhargavi trading on 9 december, 2021",audio_25_232.mp3 +"Also seen that, the possession of the said property has been handed over infavour of the purchaser ie the accused herein. Hence, on careful reading",audio_25_233.mp3 +"of the recitals of the ex.d.1 ie registered sale cc.no.12327/2016 j deed makes it clear that, the complainant has offered to sell his property to",audio_25_234.mp3 +the accused for sale consideration of rs.47 lakhs and the said entire sale consideration amount has been received by him and the complainant himself acknowledges,audio_25_235.mp3 +"for having received the sale consideration amount and discharged the purchaser ie., accused herein from further payment thereof and as per the recitals of the",audio_25_236.mp3 +"sale deed there was no balance by the accused to the complainant towards payment of sale consideration amount. In addition to that, the complainant during",audio_25_237.mp3 +"the course of his cross examination has admitted that, □‚ƒƒ□„ …† †‡ ‡‡ˆ □□.9 ‰šˆ‹ 5 œœ …□□□ ˆ‹‹ ‡‡ˆ □□†□‹žž□ □□†□ ƒš‘‹ ‡‡‡ ššˆ",audio_25_238.mp3 +š□’ƒ□‹□†‰‰□□†‹ “žž□ƒ‹žž□ □□”‘‹ ‡‰ ‡•□†□‹□ ƒƒž‹ž ƒœ‰„–œ–„□□†□ ‡‚. Ƒ†□ ƒœ‰„–œ–„ ‡‰ ‡‡ˆ □□ □□.9 ‰šˆ‹ 5 œœ …□□□ ˆ‹‹ □□†□‹žž□□†‹ —œœ š□□–□‹žžœ‡ □□†□ ‡‚. ˜†œ,audio_25_239.mp3 +□œž □□ 2 ‰š ‡ˆ†‹ □□œ†‰ □□†□‹žž† □□†‹ —œœ š□□–□‹žžœ‡ ˜□†□ □□†□‹□†‰‰............................ ‡‡ˆ ƒœ‰„ –œ–„ ‡‰ ‡•□†ƒ□‹□ œœ …□□□ ˆ‹‹ •ž‹ž □□.2 ‰š ‡ˆ†‹ ™š,audio_25_240.mp3 +□□†□‹□†‰‰ □□†‹ ‡‡‹ œœ‰œƒ□ˆ š□œ‰œ□’„ š□’ƒ□‹ □†‰‰ … □ˆˆ ‡‡‹ …□□œœˆ ‡□œ’œƒ‹ š□’ƒ□‹□†‰‰ ›š□†□ □□”‘‹ ‡‰ —œœ š□□–††□□† …□□œœˆ ‡□œ’œƒ‹ š□□□œš□† cc.no.12327/2016 j ‡ƒ□‹□†‰‰. □□.,audio_25_241.mp3 +9 ‰š† 5 œœ …□□□ ‡‡‡ ™ƒ□‡‰ □□†□‹□†‡‡ ƒœ‰„ –œ–„ † ‡‰ ‡□œ–†‹ …†□ ‡‡ˆ –– š□’ƒ□‹□†‰‰ •ž‹ž ‡□œ–□‹□†‰‰ . ‡„œ‡‰„š□œ …œ□œ’œ□„ † ˜□ˆ‹‡‹ □□□šˆ,audio_25_242.mp3 +™□œˆ ‡‡‡ ™ƒ□‡‰ 5 œœ …□□□ ˆ‹‹ □□††‹ ‡ □‰œƒ„•–□‹□†□ □ˆˆ ‡□œ–□‹□†‰‰ ƒ†□ 5 œœ …□□□ ˆ‹‹ ‡‡‡ ™ƒ□‡‰ ‡ˆ†œš□š □† □ˆˆ □□□š‡‰ □□□š •–□‹□†‰‰.,audio_25_243.mp3 +"Further accused admitted that, ƒœ‰„ –œ–„ ‡‰ □□. 47 ‰ššš •□’ □ˆ† □□†‹ □□‘‰ˆ† □□†□ ‡‚. Ƒœ‰„ –œ–„ œ œš□ ‡‡ˆ ƒ□œš□ ™š □□†□‹žž† □□†‹",audio_25_244.mp3 +"ƒœ‰„–œ–„‡‰ ‡•□†† □□†□ ‡‚ …†□ ‡‡ˆ ƒ□œš□ ™š □□†□‹□†‰‰ □□†‹ ƒƒžž ™œ‹□‹žž□ "" hence, the above admissions of the complainant makes it clear that, the",audio_25_245.mp3 +"complainant has admitted that, the total sale consideration amount is shown as rs.47 lakhs in the registered sale deed and also admitted that, he has",audio_25_246.mp3 +received pay orders of 5 numbers each amount of rs.9 lakhs in his name pertains to the national co€ operative bank and also received rs.2,audio_25_247.mp3 +"lakhs by way of cash from the accused. It is relevant here to mention that, the complainant at one breath he admits that, in the",audio_25_248.mp3 +sale deed there is mentioning of receipt of pay order of five numbers each amount of rs.9 lakhs and rs.2 lakhs by way of cash,audio_25_249.mp3 +"but Anr. breath cc.no.12327/2016 j contends that, he has not received the said amount of rs.47 lakhs. If really the complainant has not received the",audio_25_250.mp3 +"total sale consideration amount of rs.47 lakhs as shown in the ex.d.1 registered sale deed , definitely he would have issued notice to the accused",audio_25_251.mp3 +or filed complaint against the accused or at least he would have made an efforts for cancellation of the registered sale deed executed by him,audio_25_252.mp3 +"in favour of the accused by filing the suit before the competent courts of law, but it is an admitted fact as on today the",audio_25_253.mp3 +complainant has not made any efforts in respect of cancellation of the sale deed on the ground that he has not received the sale consideration,audio_25_254.mp3 +"amount which is shown in the ex.d.1 sale deed and even has not disputed the contents of the sale deed , therefore mere denial in",audio_25_255.mp3 +"the cross examination by the complainant is not sufficient to hold that, he has notsri.renukaprasad. K.s vs. m/S. bhargavi trading on 9 december, 2021",audio_25_256.mp3 +"Complainant produced the documentary proof to show that, he has not been parted with the sale consideration amount though he has executed registered sale deed",audio_25_257.mp3 +in the name of accused. It is also relevant here to mention that the accused no.2 has cc.no.12327/2016 j produced true copies of the 5,audio_25_258.mp3 +pay orders which have been shown in the registered sale deed ie ex.d.1 which are marked as ex.d.5 to d.9 respectively. The complainant during the,audio_25_259.mp3 +"course of cross examination of the accused has not disputed the issuance of 5 pay orders of rs.9 lakhs each in his name, all are",audio_25_260.mp3 +"drawn on the national co€operative bank ltd., but the learned counsel for the complainant has suggested the accused during the cross examination that, all the",audio_25_261.mp3 +"5 pay orders of rs.9 lakhs each have been encashed by the accused but not encashed by the complainant but in order to show that,",audio_25_262.mp3 +all the 5 pay orders ie ex.d.5 to d.9 were encashed by the accused except the suggestion nothing has been placed before the court though,audio_25_263.mp3 +"the complainant has admitted that, all pay orders for rs.9 lakhs each ie rs.45 lakhs in the name of complainant and his signatures is also",audio_25_264.mp3 +"appearing on the hind side of the ex.d.5 to d.9, therefore the suggestion made by the learned counsel for the complainant cannot be acceptable one",audio_25_265.mp3 +", on the contrary the documentary proof produced by the accused ie ex.d.5 to d.9 clearly establishes that, all 5 pay orders of rs.9 lakhs",audio_25_266.mp3 +each were issued in the cc.no.12327/2016 j name of complainant and same were encashed by the complainant which is evidenced in the registered sale deed,audio_25_267.mp3 +"ie ex.d.1 . If really the accused has encashed the amount covered under ex.d.5 to d.9 pay orders, definitely the complainant would have produced the",audio_25_268.mp3 +"documentary proof to prove the said fact but the complainant himself admitted that, he has not approached the concerned bank and enquired about the encashment",audio_25_269.mp3 +"of ex.d.5 to d.9 in his name , in such circumstances the say of the complainant that, he has not received the amount shown in",audio_25_270.mp3 +ex.d.5 to d.9 cannot be acceptable one. Therefore on combined reading of the documentary evidence produced by the accused ie ex.d.1 and ex.d.5 to d.9,audio_25_271.mp3 +"coupled with the admissions of the complainant it can be held that, the complainant for his legal necessity and as he was in need of",audio_25_272.mp3 +funds to meet his urgent commitments decided to sell his property and offered to sell his property to the accused for total sale consideration of,audio_25_273.mp3 +rs.47 lakhs and in turn the accused has agreed to purchase the said property and has paid the total sale dissertation amount of rs.47 lakhs,audio_25_274.mp3 +"by way of pay order 5 numbers each amount of rs.9 lakhs and cc.no.12327/2016 j rs.2 lakhs by way of cash ie., total sale consideration",audio_25_275.mp3 +amount of rs.47 lakhs and the complainant had acknowledged having receipt of the full and final settlement of sale consideration of the sale deed and,audio_25_276.mp3 +"also admits and acknowledged and discharged the accused for further payment thereof. 24. It is also relevant here to mention that, the complainant in his",audio_25_277.mp3 +"legal notice, complaint and evidence stated that, the accused no.2 has issued the cheques in question for sum of rs.30 lakhs as a sale consideration",audio_25_278.mp3 +"amount and towards said transaction. But in order to prove the said fact the complainant has not produced any documentary proof, as it is already",audio_25_279.mp3 +"held in the above that, the complainant himself admitted that, the total sale consideration amount in respect of the property sold by him was for",audio_25_280.mp3 +"rs.47 lakhs as shown in the registered sale deed ie ex.d.1 and it is alsosri.renukaprasad. K.s vs. m/S. bhargavi trading on 9 december, 2021",audio_25_281.mp3 +"From the accused which is evidenced by documentary proof produced by the accused ie ex.d.1 and ex.d.5 to d.9, now the complainant cc.no.12327/2016 j cannot",audio_25_282.mp3 +"be permitted to claim and contends that, the accused no.2 has issued the cheques in question for sum of rs.30 lakhs as a sale consideration",audio_25_283.mp3 +"amount and towards the sale transaction, therefore the complainant has miserably failed to produce any documentary proof to substantiate his claim in respect of the",audio_25_284.mp3 +"cheques in question. 25. It is relevant here to mention that, the complainant has specifically claimed in his complaint and evidence that, accused has issued",audio_25_285.mp3 +the cheques in question ie ex.c.1 to c.3 for total sum of rs.30 lakhs towards sale consideration as agreed by him under MOU ,audio_25_286.mp3 +"and obtained the sale deed, but if really the accused no.2 has agreed to pay sum of rs.30 lakhs as per MOU towards",audio_25_287.mp3 +"sale consideration amount of rs.65 lakhs and obtained the registered sale deed in his favour , definitely the complainant would have shown the total sale",audio_25_288.mp3 +consideration amount as rs.65 lakhs instead of rs.47 lakhs which is shown in the registered sale deed ie ex.d.1 and also mentioned about the payment,audio_25_289.mp3 +of remaining sale consideration amount of rs.30 lakhs as claimed by the complainant cc.no.12327/2016 j in his complaint and evidence but the complainant has not,audio_25_290.mp3 +disclosed about the existence of MOU dt; 27.8.2011 at the time of registration of the sale deed dt: 3.9.2011 ie ex.d.1 that too,audio_25_291.mp3 +"the sale deed was executed by him subsequently to the MOU dt: 27.8.2011 entering into between him and the accused no.2 , in",audio_25_292.mp3 +"such circumstances it can be held that, if really the site property of the complainant was agreed to sell for sum of rs.65 lakhs to",audio_25_293.mp3 +the accused and accused assured to pay the sale consideration amount by way of cash and cheques as shown in the MOU ie,audio_25_294.mp3 +"ex.c.15 definitely the same would have been reflected in ex.d.1 sale deed, on the contrary it is seen from the registered sale deed that, the",audio_25_295.mp3 +complainant has voluntarily offered to sell his site property to the accused for total sale consideration amount of rs.47 lakhs and the accused has also,audio_25_296.mp3 +agreed to purchase the same and the complainant has also received the entire sale consideration amount by acknowledging the receipt of the sale consideration amount,audio_25_297.mp3 +"and also acknowledges and discharges the accused from further payment there of, therefore the claim of the complainant on the basis of MOU ",audio_25_298.mp3 +dt: cc.no.12327/2016 j 27.8.2011 that too after execution of the registered sale deed without disclosing the existence of MOU in sale deed cannot,audio_25_299.mp3 +"be acceptable one. 26. It is also relevant here to mention that, if really the accused no.2, after execution of the sale deed has assured",audio_25_300.mp3 +"that, after getting the bank loan he will going to clear the entire amount ie the cheques amount which are shown in the memorandum of",audio_25_301.mp3 +understanding ie ex.c.15 and requested until then not to present the cheques and instead of which has dodged the time for several years and finally,audio_25_302.mp3 +"issued the cheques ie cheques bearing no.084746 dt: 10.11.2015 for sum of rs.5 lakhs, cheque bearing no.084751 dt: 10.11.2015 for sum of rs.5 lakhs, cheque",audio_25_303.mp3 +"bearing no.084747 for rs.10 lakhs, cheque bearing no.084750 for rs.10 lakhs, ie for total sum of rs,45 lakhs and assure to give rs.5sri.renukaprasad. K.s vs. ",audio_25_304.mp3 +"m/S. bhargavi trading on 9 december, 2021",audio_25_305.mp3 +"Would have been mentioned in the MOU but except the oral say nothing has been produced by the complainant to prove his claim,",audio_25_306.mp3 +"therefore without there being any documentary proof it cannot be held that, after execution of the sale deed the accused no.2 has assured that, after",audio_25_307.mp3 +getting cc.no.12327/2016 j the bank loan he will going to clear the entire amount to him and requested not to present the cheques which are,audio_25_308.mp3 +"shown in MOU and thereafter has issued the cheques as stated by the complainant. It is also relevant here to mention that, the",audio_25_309.mp3 +"complainant has not stated on which date, month and year and place the accused no.2 has issued the alleged cheques after execution of the registered",audio_25_310.mp3 +"sale deed in his favour, therefore there are no pleadings or evidence with regard to date, month and year and place of issue of cheques",audio_25_311.mp3 +in such circumstances the claim of the complainant appears to be on the basis of bald statement. Even it is not the claim of the,audio_25_312.mp3 +"complainant that, after execution of the registered sle deed the accused no.2 has issued the cheques for sum of rs.45 lakhs by receiving the earlier",audio_25_313.mp3 +"cheques which have been shown in MOU dt: 27.8.2011 and he has not produced any documentary proof to that effect, therefore the claim",audio_25_314.mp3 +"of the complainant that the accused no.2 has issued post dated cheques cannot be acceptable one. 27. It is also relevant here to mention that,",audio_25_315.mp3 +"on cc.no.12327/2016 j plain reading of Cl. 6 of the MOU dt: 27.8.2011 ie ex.c.15 wherein it is mentioned that, in Cas. if",audio_25_316.mp3 +"the second party ie the accused fails to honour any one of the cheques , then MOU stands cancelled, the first party ie",audio_25_317.mp3 +complainant shall have right to forfeit 25% of the sale consideration received by him from the second party ie the accused and refund the balance,audio_25_318.mp3 +sale consideration to the second party ie the accused and the second party ie the accused shall execute the sale deed in favour of the,audio_25_319.mp3 +"first party ie the complainant and in Cas. if the MOU cancelled for any circumstances, then the second party ie the accused shall",audio_25_320.mp3 +"clear the loan amount with interest to the national co€operative bank ltd., electronic city, branch, bangalore and returned the original documents within 60 days from",audio_25_321.mp3 +"the date of cancellation. Hence, the complainant and accused have agreed that, if any one of the cheques issued by the accused which have been",audio_25_322.mp3 +"shown in MOU fails to honour, then the MOU stands cancelled and thereafter the right was given to the complainant to",audio_25_323.mp3 +forfeit 25% of the sale consideration received by him cc.no.12327/2016 j and refund the balance sale consideration and the obligation was imposed on the accused,audio_25_324.mp3 +"that, he shall execute the sale deed in favour of the complainant. It is an admitted fact that the cheques which have been shown in",audio_25_325.mp3 +"MOU have not been honoured, and even the MOU does not permits either the complainant or to the accused to issue",audio_25_326.mp3 +"or receive the fresh cheques if any of the cheques which are shown in the MOU fails to honour, in such circumstances without",audio_25_327.mp3 +"there being any condition or consent the claim made by the complainant that, after execution of the registered sale deed the accused no.2 has requested",audio_25_328.mp3 +him not to present cheques which are shown in MOU and subsequently has issued the cheques to him cannot be acceptable one as,audio_25_329.mp3 +"there is no such written agreement between the complainant andsri.renukaprasad. K.s vs. m/S. bhargavi trading on 9 december, 2021",audio_25_330.mp3 +"Receive further fresh cheques from the accused, therefore on this count also the claim made by the complainant is not acceptable one and the complainant",audio_25_331.mp3 +"has miserably failed to prove that, the accused no.2 has issued the post dated cheques for sum of rs.45 lakhs in his favour after execution",audio_25_332.mp3 +"of cc.no.12327/2016 j the sale deed. In addition to that, the complainant has produced the original cheques bearing nos. 084746 dt: 10.11.2015 for sum of",audio_25_333.mp3 +"rs.5 lakhs, cheque bearing no.084751 dt: 1.11.2015 for sum of rs.5 lakhs and cheque bearing no.084747 dt: 10.12.2015 for sum of rs.10 lakhs which are",audio_25_334.mp3 +at ex.c.27 to c.29 respectively and the said cheques have been presented to the bank by the complainant as per the bank endorsement issued by,audio_25_335.mp3 +"the concerned bank which are at ex.c.30 to c.34 respectively, hence it goes to show that, the complainant has presented the cheques issued by the",audio_25_336.mp3 +"accused and the said cheques have been dishonoured for want of sufficient funs which is evidence by ex.c.30 to c.34. Hence, it goes to show",audio_25_337.mp3 +"that, the complainant has suppressed the presentation of the above stated cheques through his banker and even the said cheques were dishonorued for want of",audio_25_338.mp3 +"sufficient funds inspite of it, he had not proceeded to take action against the accused and has not stated any reason for non proceeding or",audio_25_339.mp3 +"taking action against the accused though the cheques which were allegedly issued by the accused and same were dishonoured as per ex.c.30 to c.34 ,",audio_25_340.mp3 +"in such circumstances the cc.no.12327/2016 j conduct of the complainant in suppressing the material facts may leads to draw an adverse inference that, the complainant",audio_25_341.mp3 +"has not initiated any action against the accused for the reason that, there was no due by the accused toward the sale consideration amount, if",audio_25_342.mp3 +really the accused had issued the cheques to him towards balance sale consideration amount definitely the complainant would have proceeded against the accused on the,audio_25_343.mp3 +"basis of dishonoured cheques for recovery of sale consideration amount. 28. In addition to the above, the complainant during the course of his cross examination",audio_25_344.mp3 +"has admitted that, he has not stated in his complaint and legal notice ie ex.c.7 that, he has sold his site property for sale consideration",audio_25_345.mp3 +amount of rs.65 lakhs and he has not stated either in his complaint or in his legal notice how much amount and in what manner,audio_25_346.mp3 +he has been received out of sale consideration amount of rs.65 lakhs and there was no hindrance for him to disclose the same in his,audio_25_347.mp3 +"legal notice and complaint and also admitted that, MOU was entered into between him and the accused prior to the registration of the",audio_25_348.mp3 +"sale deed and there is reference of payment of cc.no.12327/2016 j sale consideration amount after sanctioning he loan from national co€ operative bank. Hence, the",audio_25_349.mp3 +"above admissions of the complainant makes it clear that, if really the complainant has sold his site property for rs.65 lakhs and has received the",audio_25_350.mp3 +"part of the sale consideration amount from the accused, definitely he would have disclosed the said fact in his legal notice, compliant and evidence but",audio_25_351.mp3 +the complainant has not disclosed the said material facts which may leads to create a serious doubt in respect of the claim made by the,audio_25_352.mp3 +"complainant in his legal notice, complaint and evidence ie on the basis of MOU dt: 27.8.2011. 29. The complainant has also specifically claimed",audio_25_353.mp3 +"that in the MOU it has been mentioned that, accused no.2 has paid rs.30 lakhs to him but has not paid the said",audio_25_354.mp3 +"amount at the time of MOU andsri.renukaprasad. K.s vs. m/S. bhargavi trading on 9 december, 2021",audio_25_355.mp3 +Said amount under MOU and obtained the sale deed from him sine august 2011 as a sale consideration and towards repayment of the,audio_25_356.mp3 +"said transaction has issued the cheques in question. It is also claimed by the cc.no.12327/2016 j complainant that, on 21.8.2014 he had lodged a complaint",audio_25_357.mp3 +before the police station for non payment of the amount to him and for cheating and thereafter on 11.9.2014 the accused no.2 and his wife,audio_25_358.mp3 +have appeared before the police and requested to grant six months time but accused no.2 has not kept up his promise and repaid the cheques,audio_25_359.mp3 +amount and thereafter again he approached the same police station and lodged the complaint on 23.5.2016 against the accused no.2 even after filing the said,audio_25_360.mp3 +complaint the accused no.2 has not come forward to clear the said cheques amount and requested him to give some more time to pay the,audio_25_361.mp3 +"amount and after lodging the complaint against the accused no.2, his wife has lodged a false complaint against him before the thalagattapura police on 13.9.2015",audio_25_362.mp3 +and thereafter on 11.10.2015 he appeared before the said police and gave the statement about the alleged property transaction and thereafter issuance of cheques the,audio_25_363.mp3 +accused no.2 requested him to preset the same and on the promise of the accused no.2 he has presented the said cheques in question and,audio_25_364.mp3 +"same have been dishonoured for the reason of funds insufficient and cc.no.12327/2016 j payment stopped by drawer. Though the complainant has claims that, the cheques",audio_25_365.mp3 +in question ie ex.c.1 to c3 issued towards sale consideration amount of rs.65 lakhs shown in MOU ie ex.c.15 but in the cross,audio_25_366.mp3 +"examination he has categorically admitted tht, he has produced the ex.c.1 to c.3 cheques in respect of the property shown in registered sale deed, hence",audio_25_367.mp3 +"it goes to show that, if really the ex.c.1 to |c.3 issued towards the property mentioned in the registered sale deed definitely the same would",audio_25_368.mp3 +"have been reflcted in the registered sale deed ie ex.d.1 but no such recitals are found in the sale deed, therefore the claim made by",audio_25_369.mp3 +"the complainant in his complaint cannot be acceptable one. 30. It is important here to mention that, on entire perusal of the contents of legal",audio_25_370.mp3 +"notice, averments of the complaint and evidence of the complainant it is nowhere stated by the complainant on which date, month and year and place",audio_25_371.mp3 +"in which the cheques in question ie ex.c.1 to c.3 have been issued by the accused in his favour , hence in view of the",audio_25_372.mp3 +above said facts a serious doubt creates with cc.no.12327/2016 j regard to issuance of cheques in question by the accused infavour of the complainant towards,audio_25_373.mp3 +sale consideration amount as claimed by him. If really the accused has issued the cheques in question towards sale consideration amount as mentioned in the,audio_25_374.mp3 +"MOU ie ex.c.15 claimed by the complainant, definitely the same would have mentioned in the MOU and the complainant would have",audio_25_375.mp3 +"also mentioned that, the date, month and year place of issuance of the cheques in question by the accused but nothing has been disclosed by",audio_25_376.mp3 +"the accused, therefore non mentioning of date, month and year and place of issuance of cheques creates a serious doubt with regard to issuance of",audio_25_377.mp3 +"cheques in question by the accused towards payment of sale consideration amount. In this regard, it is relevant here to refer the decisions of Hon'ble ",audio_25_378.mp3 +"apex court of india reported in air 2019 SC 1983 in the Cas. of basalingappa vs. Mudibasappa., wherein it is held that, a) ""negotiable",audio_25_379.mp3 +"instruments act, (26 of 1881)€ S. 138, s 139, s.118(a)€ dishonour of cheque€ non mentioning of date of issue of cheque by complainant in complaint",audio_25_380.mp3 +as well as in his evidence - complainant not satisfactorily cc.no.12327/2016 j explaining contradiction in complaint vis €a € vis his examination in chief and,audio_25_381.mp3 +cross examination€ his failure to prove financial capacity though he is retired employee to advance substantial amount to different persons including accused€ findings of trial,audio_25_382.mp3 +"court that, complainant cannot prove his financial capacity cannot besri.renukaprasad. K.s vs. m/S. bhargavi trading on 9 december, 2021",audio_25_383.mp3 +"Therefore by applying the principles of law laid down by the Hon'ble apex court in the decision it can be held that, in the present",audio_25_384.mp3 +"Cas. also the complainant has failed to explain on which date, month, year and place of issuance of cheques in question and which may leads",audio_25_385.mp3 +"to draw an adverse inference against the complainant that, complainant has miserably failed to prove that, the cheques in question have been issued by the",audio_25_386.mp3 +"accused towards payment of sale consideration amount as claimed by him. 31. It is also relevant here to mention that, the complainant has produced true",audio_25_387.mp3 +"copies of the complaint dt: 21.8.2014 lodged by him before the cc.no.12327/2016 j subramanyapura police station, endorsement issued by said police station, statement of the",audio_25_388.mp3 +"accused no.2 and his wife, copy of the complaint lodged by him dt: 23.5.2015 before the subramanyapura police station, copy of the complaint lodged by",audio_25_389.mp3 +"the W/O accused no.2 dt: 12.9.2015, endorsement given by the police , statement given by the complainant before the thalagattapura police station dt: 11.10.2015",audio_25_390.mp3 +"which are at ex.c.19 to c.26. It is relevant here to mention that, the complainant has lodged the complaint against the accused no.2 and his",audio_25_391.mp3 +"wife before the subramanaypura police station ie ex.c.19 and c.23 in which he has stated that, he has sold his site property to the accused",audio_25_392.mp3 +no.2 and his wife for sum of rs.65 lakhs and also executed the registered sale deed and at the time of registration he has received,audio_25_393.mp3 +rs.30 lakhs and the accused no.2 and his wife have taken time of six months to pay remaining balance amount of rs.35 lakhs by agreeing,audio_25_394.mp3 +"to pay interest on the said amount and also issued the three cheques bearing no.963034, 963033, 963032 all are drawn on bank of india, and",audio_25_395.mp3 +"also executed agreement to show that, they have sold their hoysala plantation mission cc.no.12327/2016 j in his favour and requested not to present the said",audio_25_396.mp3 +cheques since they are going to pay the amount but till today they did not paid the amount and requested to take action against them.,audio_25_397.mp3 +"Hence, on plain reading of the complaint lodged by the complainant as per ex.c.19 and c.23 it appears that, the complainant before the police has",audio_25_398.mp3 +"claimed the amount against the claim made by him in his legal notice, complaint and evidence . It is relevant here to mention that, the",audio_25_399.mp3 +"complainant in ex.c.19 and c.23 stated that, he has sold his property to the accused no.2 and his wife for sum of rs.65 lakhs and",audio_25_400.mp3 +also executed registered sale deed and has received rs.30 lakhs out of sale consideration of rs.65 lakhs at the time of registration of the sale,audio_25_401.mp3 +deed and accused no.2 and his wife have agreed to pay the remaining amount tof rs.35 lakhs within six months. But in the register sale,audio_25_402.mp3 +"deed ie ex.d.1 it is nowhere mentioned that, complainant has sold the property for sum of rs.65 lakhs and the complainant has executed registered sale",audio_25_403.mp3 +deed in favour of the accused no.2 and his wife and he has received rs.30 lakhs and also accused no.2 and his wife have agreed,audio_25_404.mp3 +"to pay remaining cc.no.12327/2016 j amount of rs.35 lakhs within six months and have issued three cheques bearing no.963034, 963033, 963032 all are drawn on",audio_25_405.mp3 +"bank of india, therefore the documents produced by the complainant ie ex.c.19 and c.23 are itself against his own claim. It is also relevant here",audio_25_406.mp3 +"to mention that, the perusal ofsri.renukaprasad. K.s vs. m/S. bhargavi trading on 9 december, 2021",audio_25_407.mp3 +Accused no.2 amicably settled their dispute and agreed for settlement accordingly the accused no.2 agreed to pay rs.50 lakhs to him and has issued the,audio_25_408.mp3 +"cheques bearing No. 084746, 084748, for sum of rs.5 lakhs each, cheque No. 084747 , 084749, 084750 for sum of rs.30 lakhs all cheques were",audio_25_409.mp3 +"drawn on Corp. bank, ie for total amount of rs.45 lakhs and also agreed to pay rs.5 lakhs through cheque bearing No. 084751 dt: 10.11.2015.",audio_25_410.mp3 +The complainant has given his statement before the thalagattapura police on 11.10.2015 and as per ex.c.26 as admitted by him and as per his statement,audio_25_411.mp3 +on 10.11.2015 only he had collected the above said cheques ie including the cheques in question from the accused no.2 as per their amicable settlement,audio_25_412.mp3 +at police station but the accused no.2 has cc.no.12327/2016 j not issued the cheques in question and other cheques as per the MOU ,audio_25_413.mp3 +"ie ex.c.15 towards payment of sale consideration amount of rs.30 lakhs as claimed by the complainant in legal notice, complaint and evidence if really the",audio_25_414.mp3 +accused is due of rs.30 lakhs towards sale consideration amount as per MOU ie ex.c.15 then the question of issuing the cheques for,audio_25_415.mp3 +"rs.50 lakhs as stated by the complainant before the police does not arise at all. It is also relevant here to mention that, the complainant",audio_25_416.mp3 +in his complaint ie ex.c.19 and c.23 and in his statement ie ex.c.26 nowhere disclosed about the execution of MOU dt: 27.8.2011 and,audio_25_417.mp3 +"even the cheques in question have also not issued by the accused as per the terms and conditions of the MOU , therefore",audio_25_418.mp3 +the complainant cannot claim the alleged sale consideration amount on the basis of cheques in question as the accused has not issued the cheques in,audio_25_419.mp3 +"question infavour of the complainant as claimed by him. It is also relevant here to mention that, according to the ex.c.26 the cheques in question",audio_25_420.mp3 +and other cheques have been handed over to the complainant on 11.10.2015 ie the date of statement given by the complainant before the cc.no.12327/2016 j,audio_25_421.mp3 +"concerned police and it is not the Cas. of the complainant that, the accused has issued the cheques in question as post dated cheques at",audio_25_422.mp3 +the police station by mentioning the dates on it and he has presented the said cheques on the dates mentioned on the cheques in question,audio_25_423.mp3 +"or he has been instructed by the accused to present the said cheques subsequent to the date mentioned on them, therefore a serious doubt creates",audio_25_424.mp3 +with regard to issuance of the cheques by the accused either as post dated cheques or the cheques have been issued on the dates mentioned,audio_25_425.mp3 +"thereon. Therefore on careful perusal of the ex.c.15 and c.26 it appears that, the accused has not issued the cheques in question as per the",audio_25_426.mp3 +"MOU ie ex.c.15 in favour of the complainant and the complainant himself stated in ex.c.26 that, the cheques have been issued by the",audio_25_427.mp3 +accused since they have amicably settled before the police in such circumstances the complainant cannot claim any amount on the basis of the cheques in,audio_25_428.mp3 +"question by contending that, the cheques in question have been issued by the accused no.2 since he had promised to pay the said amount under",audio_25_429.mp3 +MOU and obtained the sale deed from him as cc.no.12327/2016 j a sale consideration amount. Hence for the above said reasons the complainant,audio_25_430.mp3 +"has miserably failed to prove that, the cheques in question have been issued by the accused towards the sale consideration amount as per thesri.renukaprasad. K.s",audio_25_431.mp3 +"vs. m/S. bhargavi trading on 9 december, 2021",audio_25_432.mp3 +"32. It is settled law that, once the issuance of cheque in favour of the holder in due course is admitted by the drawer, presumption",audio_25_433.mp3 +"can be drawn about the existence of legally recoverable debt under sec.139 of ni act, terms in favour of holder in due course. ""the Hon'ble ",audio_25_434.mp3 +"apex court of india in rangappa vs. Mohan's Cas. reported in 2010(11) scc 441 held that, issuance of cheque would create a presumption with respect",audio_25_435.mp3 +"to legally enforceable debt in faovur of the payee of the cheque, however the said presumption is rebuttable."" in the present Cas. though the accused",audio_25_436.mp3 +no.2 has admitted cheques belongs to account of accused no.1 and also signatures thereon belongs to him but has denied the transaction in question and,audio_25_437.mp3 +"issuance of the cheques to the complainant towards sale consideration amount in question, hence though cc.no.12327/2016 j initial presumption drawn in favour of the complainant,",audio_25_438.mp3 +"but the said presumption is rebuttal, in such circumstances it has be examined as to whether the accused no.2 has rebutted the presumption successfully or",audio_25_439.mp3 +"not. It is also settled law that, the accused in a proceedings u/s.138 of n.i.act has two options i.e. The accused can either show that,",audio_25_440.mp3 +"consideration and debt did not exists or that, under particular circumstances of the Cas. the non existence of consideration and debt is so probable that,",audio_25_441.mp3 +"a prudent man ought to suppose that, no consideration and debt existed and in order to rebut the statutory presumption accused is not expected to",audio_25_442.mp3 +prove his defence beyond reasonable doubt as expected of the complainant in Crl. trial and the accused may adduce direct evidence to prove that the,audio_25_443.mp3 +cheque in question was not supported by consideration and there was no debt or liability to be discharged by him and the court need not,audio_25_444.mp3 +"insist in every Cas. that, the accused should disprove the non existence of consideration that, by leading direct evidence because the existence of negative evidence",audio_25_445.mp3 +is neither possible nor contemplated. In this regard it is relevant here to cc.no.12327/2016 j refer the decision of Hon'ble apex court of india reported,audio_25_446.mp3 +in laws (SC ) 2019€8€82 in the Cas. of shri.dhaneshwari traders vs. Sanjay jain and in Anr. Cas. reported in ( 2020) 12 scc,audio_25_447.mp3 +"500 wherein the Hon'ble apex court held that "" it is well settled that, rebuttal can be made with reference to the evidence of the",audio_25_448.mp3 +"prosecution as well as of defence"" and in Anr. decision reported in (2010) 11 scc 441 in thecase of rangappa vs. Sri. Mohan wherein the",audio_25_449.mp3 +"Hon'ble apex court held that ""ordinarily in cheque bounce cases, what the courts have consdiered is whether the ingredients of the offence enumerated in sec.138",audio_25_450.mp3 +"of act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by sec.139 of the act, and",audio_25_451.mp3 +"also held that ""it is settled position that, when an accused has to rebut the presumption u/s.139, the standard of proof for doing so is",audio_25_452.mp3 +"that of preponderance of probabilities"". Hence, in view of the principles of law laid down by the Hon'ble apex court of india in cc.no.12327/2016 j",audio_25_453.mp3 +the above referred decision in order to rebut the statutory presumption an accused is not expected to prove his defence beyond reasonable doubt and the,audio_25_454.mp3 +accused may adduce direct evidence to prove his defence or the rebuttal can be make with reference to the evidence of the prosecution and standard,audio_25_455.mp3 +of proof for rebuttal of the presumption is that of preponderance of probabilities i.e. Something which is probable has to be brought on record by,audio_25_456.mp3 +"the accused, by applying these principles of law to the present Cas. , now the oral and documentary evidence adduced by the accused has to be",audio_25_457.mp3 +"examined. 33. The accused himself examined as dw.1 and in his evidence has stated that, complainant is his vendor and he has purchased the site",audio_25_458.mp3 +"property bearing no.43, katha no.16/1b situated at anjanapura village, uttarahalli hobli, bengaluru and the complainant executed the sale deed onsri.renukaprasad. K.s vs. m/S. bhargavi trading",audio_25_459.mp3 +"on 9 december, 2021",audio_25_460.mp3 +Complainant entered into sale agreement in respect of the site property on 22.2.2011 for sale consideration of rs.65 cc.no.12327/2016 j lakhs and he had paid,audio_25_461.mp3 +rs.1 lakh as advance amount by way of cheque bearing no.000324 dt: 03.02.2011 which was encashed by the complainant and for remaining balance sale consideration,audio_25_462.mp3 +"has issued five cheques bearing No. 000327, 000328, 000329, 000330, 000331 for rs.19 lakhs , rs.10 lakhs, rs.10 lakhs, rs.10 lakhs, and rs.15 lakhs respectively",audio_25_463.mp3 +", all cheques drawn on city union bank india ltd., jayanagar branch, as security with a condition to complete the sale transaction within 15.8.2011. As",audio_25_464.mp3 +the loan was delayed on 27.8.2011 a MOU was entered into between him and the complainant and also the cheques given at the,audio_25_465.mp3 +time of sale agreement were outdated and as per MOU it was agreed to pay rs.30 lakhs by cash and for remaining balance,audio_25_466.mp3 +"amount of rs.34 lakhs issued fresh cheques bearing nos. 963032, 963033, 963034 for rs.11 lakhs, rs.11 lakhs, and rs.12 lakhs respectively. The accused further deposed",audio_25_467.mp3 +"that, complainant had suppressed him about execution of registered sale agreement infavour of one sri.c.r.narasimha murthy by receiving rs.40 lakhs on 15.3.2011 and the complainant",audio_25_468.mp3 +agreed to register the sale deed in his cc.no.12327/2016 j favour and he was constrained to cancel the earlier sale agreement by paying back rs.40,audio_25_469.mp3 +"lakhs to the said c.r.narasimha murthy, therefore the complainant demanded him the cash of rs.30 lakhs accordingly he paid rs.30 lakhs to the complainant by",audio_25_470.mp3 +way of cash and the complainant got cancelled the previous agreement of sale on 2.9.2011 and in the meantime the national co€operative bank sanctioned loan,audio_25_471.mp3 +of rs.45 lakhs to him to purchase the property and when all were set to register the sale deed in his favour on 3.9.2011 the,audio_25_472.mp3 +loan amount of rs.45 lakhs will be paid directly to the complainant by way of demand draft and the complainant demanded more money to get,audio_25_473.mp3 +register the sale deed and after negotiation he hs paid extra amount of rs.13 lakhs and the national co€operative bank released the loan amount issuing,audio_25_474.mp3 +five numbers of dds in favour of the complainant each amounting to rs.9 lakhs totaling rs.45 lakhs and the complainant endorsed for receiving the said,audio_25_475.mp3 +"dd's by executing sale deed in his favour. The accused further deposed that, he has already paid rs.31 lakhs to the complainant as per memorandum",audio_25_476.mp3 +of understanding and on the date of registration of sale deed a cc.no.12327/2016 j sum of rs.45 lakhs by way of five dds and rs.2,audio_25_477.mp3 +lakhs by way of cash thus the complainant has received rs.78 lakhs from him and though he has paid the agreed sale consideration amount to,audio_25_478.mp3 +the complainant and requested him to return all the cheques pertaining to the sale transaction the complainant dodged the time on one or other reasons,audio_25_479.mp3 +"and failed to return the cheques to him. The accused further stated that, the complainant by colluding with the subramnayapura police station lodged false complaint",audio_25_480.mp3 +against him and his wife and the police authorities called them and by threatening them to register a Cas. and send them to jail and,audio_25_481.mp3 +forced them to sign on the paper what they have written and when they were about the execute joint develop agreement and visited the site,audio_25_482.mp3 +"at that time the complainant had erected a shed in the said site with the help of local roudies, therefore on 13.9.2015 his wife lodged",audio_25_483.mp3 +a complaint before the thalagattapura police station and same was registered in ncr 558/2015 and the police authorities called the complainant and later the said,audio_25_484.mp3 +police started threatening them to register false Cas. and forced him and his wife to issue post dated cc.no.12327/2016 j cheques for rs.50 lakhs in,audio_25_485.mp3 +"favour of the complainant, accordingly he has issued cheque bearing No. 084746, of rs.5 lakhs, 084747, 084748, 084749 and 084750 for rs.10 lakhs each all",audio_25_486.mp3 +"cheques are drawn o Corp. bank, laxmipuam branch, mysore for sum of rs.45 lakhs and the complainant started him to make payment but he informed",audio_25_487.mp3 +"that, he has already paid extra amount of rs.13 lakhs an demanded for return of cheques but the complainantsri.renukaprasad. K.s vs. m/S. bhargavi trading on",audio_25_488.mp3 +"9 december, 2021",audio_25_489.mp3 +"To the bank for all the cheques , hence the cheques were taken forcibly and not for clearing any legally enforceable debt. 34. The accused",audio_25_490.mp3 +"in support of his oral evidence has produced certified copy of the sale deed dt: 3.9.2011, agreement of sale dt: 15.3.2011, cancellation of sale agreement",audio_25_491.mp3 +"dt: 2.9.2011, true copies of the five d.ds and notarized copy of his aadhar card and driving licence which are at ex.d.1 to d.11. Though",audio_25_492.mp3 +"the accused stated in his evidence that, he and complainant entered into sale agreement cc.no.12327/2016 j of the sale property on 20.2.2011 for sum of",audio_25_493.mp3 +rs.65 lakhs and paid rs.1 lakh by way of cheque bearing no.000324 dt: 3.2.2011 and for remaining balance consideration amount he has issued five cheques,audio_25_494.mp3 +"but has not produced any such sale agreement , therefore the said evidence is of no relevancy unless the accused produced sale agreement. It is",audio_25_495.mp3 +"also stated by the accused that, the complainant has demanded him to pay cash of rs.30 lakhs accordingly he has paid rs.30 lakhs to him",audio_25_496.mp3 +"by way of cash and thereafter the complainant paid the said amount to one sri.c.r.narasimha murthy and cancelled the previous agreement of sale dt: 15.3.2011,",audio_25_497.mp3 +"but in order to prove the said defence the accused has not produced any documents ie to show that, he has paid rs.30 lakhs by",audio_25_498.mp3 +"way of cash to the complainant , therefore except his oral say nothing has been produced before the court in such circumstances it cannot be",audio_25_499.mp3 +"held that, the accused has paid rs.30 lakhs to the complainant by way of cash as contended by him though he has produced the true",audio_25_500.mp3 +"copies of the agreement of sale and cancellation of agreement of sale ie., ex.d.2 and d.3 . It is also stated by the accused that,",audio_25_501.mp3 +he has already cc.no.12327/2016 j paid rs.31 lakhs to the complainant as per the MOU but no documents have been produced by the,audio_25_502.mp3 +"accused to show that, he has paid rs.31 lakhs to the complainant, therefore only on the basis of oral evidence of the accused it can",audio_25_503.mp3 +"not be held that, as per MOU he has paid rs.31 lakhs to the complainant. It is true that, the accused has produced",audio_25_504.mp3 +"the documentary proof ie., ex.d.1 sale deed and also true copies of the dd's ie., ex.d.5 to d.9 to show that, on the date of",audio_25_505.mp3 +registration of sale deed he has paid rs.47 lakhs as a sale consideration to the accused and same has been proved by the accused as,audio_25_506.mp3 +discussed in the above. Therefore the claim of the accused that he has paid rs.78 lakhs to the complainant has not been proved by him,audio_25_507.mp3 +"by producing documentary evidence, however the accused has proved that, as per ex.d.7 and d.5 to d.9 he has paid rs.47 lakhs to the complainant",audio_25_508.mp3 +"as sale consideration amount in respect of the site property purchased by him. 35. It is the specific defence of the accused that, his wife",audio_25_509.mp3 +"has lodged the complaint dt: 12.9.2015 cc.no.12327/2016 j against the complainant before the thalagattapura police station and same was registered in ncr no.558/2015, the police",audio_25_510.mp3 +authorities have called the complainant and them and gave threat to them to register Cas. against them and forced to issue post dated cheques accordingly,audio_25_511.mp3 +the accused no.2 has issued the cheques in question and other cheques in favour of the complainant but not for clearing any legally enforceable debt.,audio_25_512.mp3 +"The complainant in his legal notice, complaint and evidence though he has stated that, the accused has issued the cheques in question as he hassri.renukaprasad.",audio_25_513.mp3 +"K.s vs. m/S. bhargavi trading on 9 december, 2021",audio_25_514.mp3 +"Consideration amount but he has not stated on which date, month, year and place of issuance of the cheques in question but he has produced",audio_25_515.mp3 +the statement given by him before the thalagattapura police station on the complaint lodged by the W/O accused no.2 which is at ex.c.26. The,audio_25_516.mp3 +"perusal of ex.c.26 it appears that, the complainant had given the statement before the police that, as per the amicable settlement between him and accused",audio_25_517.mp3 +no.2 the accused has handed over the five cheques ie cc.no.12327/2016 j including the cheques in question for sum of rs.50 lakhs which is not,audio_25_518.mp3 +"stated by the complainant either in his legal notice, complaint and evidence and the complainant has also admitted in his cross examination that, the cheques",audio_25_519.mp3 +"in question ie ex.c.1 to c.3 have been received by him in the police station , hence it goes to show that, the admissions of",audio_25_520.mp3 +"the complainant corroborates the defence of the accused that, the cheques in question have been collected by the complainant in the thalagattapura police station but",audio_25_521.mp3 +"the accused has not voluntarily issued the cheques in question to the complainant towards payment of sale consideration ie., not towards discharge of legally recoverable",audio_25_522.mp3 +debt. In this regard the learned counsel for the accused relied upon the decision of Hon'ble HC of madras decided in crl. Appeal no.31/2009,audio_25_523.mp3 +"dt; 6.3.2019 in the Cas. of n.perumala vs c. Purushotham wherein the Hon'ble HC of madras has held that"" "" the cheque was issued",audio_25_524.mp3 +only after the complaint was given against the brother of the petitioner and petitioner was enquired in the police station and only thereafter the cheque,audio_25_525.mp3 +"was given by the cc.no.12327/2016 j petitioner, though this court does not go into question whether the cheque was given by the petitioner in the",audio_25_526.mp3 +"police station due to the coercion and threat , the fact remains , the cheque was issued only after the complaint bring given in the",audio_25_527.mp3 +"police station against the brother of the petitioner for cheating and also held that, from the admitted facts the complainant that there but the question",audio_25_528.mp3 +whether he can be made liable for the amount admitted in the Crl. liability by his brother and undertakes to pay the amount legally the,audio_25_529.mp3 +"petitioner cannot be compelled to pay the amount and there is no legally enforceable debt or other liability and also held that, form the date",audio_25_530.mp3 +"of issuance of cheque there was no legally enforceable debt or liability."" hence, by applying the principles laid down by the Hon'ble HC in",audio_25_531.mp3 +the above decision to the present facts of the Cas. on hand are aptly applicable since in the present Cas. also the cheques in question,audio_25_532.mp3 +have been obtained by the complainant only after filing complaint by the W/O accused no.2 that too the said cheques have been cc.no.12327/2016 j,audio_25_533.mp3 +"obtained in the police station , therefore this court does not go into question whether the cheques were given by the accused in the police",audio_25_534.mp3 +"station due to coercion or threat but the fact remains that, the cheques were collected by the complainant at the police station, in such circumstances",audio_25_535.mp3 +as on the date of issuance of cheques in question the accused no.2 has nowhere undertakes to pay the amount legally payable to the complainant.,audio_25_536.mp3 +On entire perusal of the cross examination of the dw.1 ie accused by the complainant nothing has been elicited from the accused to disbelieve or,audio_25_537.mp3 +discredit his evidence in respect of cheques in question which were issued by him towards repayment of the sale consideration amount. The complainant nowhere disputed,audio_25_538.mp3 +"that, the cheques in question were collected by him in thalagattapura police station from the accused, therefore nothing has been elicited to show that cheques",audio_25_539.mp3 +have been issued by the accused without there being threat or force and have been issued towards repayment of the sale consideration. It is also,audio_25_540.mp3 +"not disputed by the complainant that, after issuance of the cheques in question the accused has issued cc.no.12327/2016 j stop payment instructions to his banker",audio_25_541.mp3 +", in such circumstances it can be held that, the cheques in question have not been issued by the accused towards payment of the sale",audio_25_542.mp3 +"consideration amount and after collecting the cheques by thesri.renukaprasad. K.s vs. m/S. bhargavi trading on 9 december, 2021",audio_25_543.mp3 +"Banker. 36. The learned counsel for the complainant during the course of his argument has specifically argued that, the accused has issued the cheques in",audio_25_544.mp3 +question towards payment of sale consideration amount of rs.30 lakhs as per the MOU ie ex.c.15 and the accused has not disputed the,audio_25_545.mp3 +cheques in question belongs to account of accused no.1 and signatures found on the cheques are those of signatures of accsued no.2 and also not,audio_25_546.mp3 +"disputed that, the cheques were presented within the validity period and notice was also issued to the accused and also argued that, the accused has",audio_25_547.mp3 +"not disputed the MOU but he contends that, the cheques have been obtained forcibly by the complainant but has not been proved by",audio_25_548.mp3 +the accused no.2 and W/O accused no.2 is also cc.no.12327/2016 j practicing Adv. if really the complainant had collected cheques in question forcibly or,audio_25_549.mp3 +"by giving threat to the accused no.2 in the police station, definitely the W/O accused no.2 would have filed complaint against the complaint or",audio_25_550.mp3 +initiated action against the complainant but nothing has been done by the accused no.2 or his wife therefore the defence of the accused is false,audio_25_551.mp3 +and the accused no.2 has admitted the signature of his wife and his signature found in ex.c.22 and 23 and the complainant had appeared before,audio_25_552.mp3 +the police station only on the complaint lodged by the W/O the accused no.2 and in the said complaint the W/O the accused,audio_25_553.mp3 +"no.2 admitted that, her husband has to pay amount to the complainant , therefore the accused has issued the cheques in question towards legally recoverable",audio_25_554.mp3 +"debt which is payable as per the terms of MOU ie., towards sale consideration amount and in support of his argument has relied",audio_25_555.mp3 +"upon the decision reported in air 2021 SC 2814 in the Cas. of aps forex services Pvt. ltd., vs. Shakthi international fasion linkers and",audio_25_556.mp3 +Ors. . Cc.no.12327/2016 j 37. On the other hand the learned counsel for the defence during the course of his argument has referred the oral and,audio_25_557.mp3 +"documentary evidence adduced by the complainant and accused and also argued that,the accused has paid rs.78 lakhs to the complainant ie more than the sale",audio_25_558.mp3 +consideration amount mentioned in MOU and the complainant has executed the registered sale deed in favour of the accused by receiving entire sale,audio_25_559.mp3 +"consideration amount as per ex.d.1 sale deed and also argued that, though the accused has paid extra amount of rs.13 lakhs inspite of that, the",audio_25_560.mp3 +"complainant has obtained the cheques in question and other cheques in thalagattapura police station by using force and threat through the concerned police, therefore the",audio_25_561.mp3 +cheques in question have not been issued towards any legally enforceable debt but have been obtained forcibly from the accused and though the accused has,audio_25_562.mp3 +paid entire sale consideration amount and has not issued the cheques in question the complainant towards discharge of any debt or liability has filed this,audio_25_563.mp3 +false Cas. against the accused. 38. On careful considering the rival contentions cc.no.12327/2016 j of the learned counsel for the complainant and accused as it,audio_25_564.mp3 +"is already held in the above that, the complainant has miserably failed to prove that, the accused has to pay sum of rs.30 lakhs towards",audio_25_565.mp3 +sale conditioner amount as per MOU ie ex.c.15 and the accused no.2 has issued cheques in question towards repayment of the said sale,audio_25_566.mp3 +"consideration amount and also held that, the accused no.2 proved that, the cheques in questionsri.renukaprasad. K.s vs. m/S. bhargavi trading on 9 december, 2021",audio_25_567.mp3 +Issued the cheques in question towards sale conditioner amount as claimed by complainant. With due respect to the principles of law laid down by the,audio_25_568.mp3 +Hon'ble apex court of india in the decision relied upon by the learned counsel for the complainant are not applicable to the claim made by,audio_25_569.mp3 +"the complainant in this Cas. , since in the present Cas. , the complainant has miserably failed to prove that, the cheques in question have been issued",audio_25_570.mp3 +"by the accused towards sale consideration amount as per MOU ie ex.c.15 and the accused nowhere admitted that, the cheques in question have",audio_25_571.mp3 +"been issued towards security of the amount due by him. Apart cc.no.12327/2016 j from the above, it is also relevant here to mention that, as",audio_25_572.mp3 +per the Cl. no.6 of the MOU ie ex.c.15 in Cas. if the accused fails to honour any one of the cheques mentioned,audio_25_573.mp3 +in MOU then the MOU stands cancelled and the complainant shall have right to forfeit 25% of the sale consideration received,audio_25_574.mp3 +by him from the accused and refund the balance sale consideration amount to the accused and in turn the accused shall execute the sale deed,audio_25_575.mp3 +in favour of the complainant and in Cas. MOU stand cancelled for any circumstances then the accused shall clear the loan amount along,audio_25_576.mp3 +"with interest to the national co€ operative bank ltd., and to return original documents within 60 days from the date of cancellation. It is an",audio_25_577.mp3 +"admitted fact by the complainant that, the cheques which were issued by the accused under MOU ie ex.c.15 have not been honoured ,",audio_25_578.mp3 +"hence, by virtue of non honouring of cheques the MOU itself stand cancelled and as per the Cl. no.6 it is for the",audio_25_579.mp3 +complainant to forfeit 25% of the sale consideration amount received by him and refund the balance sale consideration amount to the accused. It is also,audio_25_580.mp3 +"an admitted fact by the complainant that, he has received cc.no.12327/2016 j rs.30 lakhs from the accused no.2 and the accused no.2 has to pay",audio_25_581.mp3 +"rs.35 lakhs towards sale consideration amount as evidenced by the complaint lodged by the complainant before the police station as per ex.c.19 and c.23, in",audio_25_582.mp3 +"such circumstances as per the Cl. 6 of the MOU , it is for the complainant to forfeit 25% of the sale consideration",audio_25_583.mp3 +amount received by him and has to refund the balance sale consideration amount to the accused and in turn the accused shall execute the sale,audio_25_584.mp3 +"deed in his favour, therefore the remedy itself is provided to the complainant under Cl. 6 of MOU but instead of enforcing the",audio_25_585.mp3 +"condition enumerated in Cl. 6 of MOU the complainant is claiming that, the accused has issued the cheques in question towards balance sale",audio_25_586.mp3 +"consideration amount , as the same is not permissible to claim by virtue of Cl. 6 of MOU ie ex.c.15, in such circumstances",audio_25_587.mp3 +if the accused fails to execute the sale deed in his favour as per condition mentioned in MOU it is for the complainant,audio_25_588.mp3 +to approach competent court to get the remedy and not by approaching this court for filing this complaint. Even for sake of discussion if it,audio_25_589.mp3 +"is assumed that, the cc.no.12327/2016 j cheques in question have been issued by the accused it cannot be held that the same have been issued",audio_25_590.mp3 +"towards existence of legally recoverable debt as per MOU ie ex.c.15, since as per Cl. 6 of the MOU the cheques",audio_25_591.mp3 +issued by the accused under MOU have not been honoued by virtue of the same the very MOU ie ex.c.15 stands,audio_25_592.mp3 +"cancelled, therefore as per the MOU as on today there is no existence of legally recoverable debt in respect of sale consideration amount",audio_25_593.mp3 +but it is for the complainant to get the remedy by approaching the competent court to get relief by enforcing the condition involved in memorandum,audio_25_594.mp3 +"of understanding ie Cl. 6 of MOU , therefore for the above said reasons the complainant has miserably failed to prove that, there",audio_25_595.mp3 +exist a legally enforceable debt as against the accused no.2 and in order to discharge the said liability the accused no.2 has issued the cheques,audio_25_596.mp3 +"in question.sri.renukaprasad. K.s vs. m/S. bhargavi trading on 9 december, 2021",audio_25_597.mp3 +"Admissions of the complainant in his cross€ examination makes it clear that, the accused no.2 has rebutted the presumptions available to the complainant not only",audio_25_598.mp3 +on the materials placed by the cc.no.12327/2016 j complainant but also by leading his oral and documentary evidence and established his defence. In addition to,audio_25_599.mp3 +"that, as it is already held and come to the conclusion that, the complainant has miserably failed to prove that the accused no.2 has issued",audio_25_600.mp3 +the cheques in question towards the sale consideration amount of rs.30 lakhs as per MOU ie ex.c.15 and there is an existence of,audio_25_601.mp3 +"legally recoverable debt against the accused no.2 . However when the complainant himself has failed to establish his Cas. beyond all reasonable doubt, he cannot",audio_25_602.mp3 +be permitted to find fault in the defence of the accused no.2 as the standard of proof is expected from side of the complainant is,audio_25_603.mp3 +proof beyond all reasonable doubt and in the present Cas. complainant has failed to prove his Cas. beyond all reasonable doubt on the contrary the,audio_25_604.mp3 +"accused no.2 has successfully rebutted the presumption available infavour of the complainant u/s.118 and 139 of n.i. Act by taking reasonable and probable defence, accordingly",audio_25_605.mp3 +for the above said reasons this point is answered in the 'negative'. 40. Point no.2: in the light of discussions made at above point and,audio_25_606.mp3 +for the said reasons this cc.no.12327/2016 j point is answered in the negative and it is just and proper to pass the following :€ order,audio_25_607.mp3 +the complaint u/s.200 of Cr.P.C. filed by the complainant for the offence punishable u/sec.138 of n.i.act is hereby dismissed. No costs. Acting,audio_25_608.mp3 +u/sec.255(1) of cr.p.c the accused no.1 and 2 are acquitted for the offence punishable u/sec.138 of n.i.act. Personal bond and surety bond executed by the,audio_25_609.mp3 +"accused no.2 stands cancelled after appeal period is over. (directly dictated to the stenographer online, printout taken by her, verified, corrected and then pronounced by",audio_25_610.mp3 +"me in the open court on this the 9th day of december 2021). (sri.s.b. Handral), xvi acmm, bengaluru city. Annexure 1. List of witness/s examined",audio_25_611.mp3 +on behalf of the complainant:€ p.w.1 : sri.renukaprasad k.s cc.no.12327/2016 j 2. List of documents exhibited on behalf of the complainant:€ ex.c€1 to c.3 :,audio_25_612.mp3 +"original cheques; ex.c€1(a) to : signatures of the accused; c.3(a) ex.c−4 to 6 : bank memossri.renukaprasad. K.s vs. m/S. bhargavi trading on 9 december, 2021",audio_25_613.mp3 +Ex.c−8 & 9 : postal receipts ex.c−10 : postal acknowledgement ex.c−11 : returned legal notice ex.c−12 : postal envelope ex.c−13 : postal receipt ex.c−14 :,audio_25_614.mp3 +"postal acknowledgement ex.c−15 : MOU dt: 27.8.2011 ex.c.15(a) relevant entry ex.c.16 to original cheques dt: 31.10.2011 for c.18 rs.11 lakhs, cheque bearing no.31.12.2011",audio_25_615.mp3 +for rs.11 lakhs cheque bearing no.28.2.2012 for rs.12 lakhs ex.c.19 : true copy of the complaint filed by the complaint dt: 21.8.2018 before the subramanyapura,audio_25_616.mp3 +police station ex.c.20 : endorsement issued by the concerned police ex.c.21 : true copy of the statement of the accused t: 11.9.2014 ex.c.22 : true,audio_25_617.mp3 +copy of the statement of the W/O the accused no.2 dt: 11.9.2014 ex.c.23 : true copy of the complaint filed by the complainant dt:,audio_25_618.mp3 +23.5.2015 cc.no.12327/2016 j ex.c.24 : true copy of the complaint filed by the W/O the accused no.2 before the thalagatta pura police station dt:,audio_25_619.mp3 +12.9.2015 ex.c.25 : endorsement issued by the concerned police ex.c.26 : true copy of the statement given by the complainant dt; 11.10.2015 ex.c.27 & :,audio_25_620.mp3 +"original cheques dt: 10.11.2015, for sum c.28 of rs.5 lakhs and cheque dt: 10.11.2015 for sum of rs.5 lakhs ex.c.29 : cheque dt: 10.12.2015 for",audio_25_621.mp3 +sum of rs.10 lakhs as ex.c.30 to : returned memos c.35 3. List of witness/s examined on behalf of the accused:€ dw.1 ; v.prasanna 4.,audio_25_622.mp3 +List of documents exhibited on behalf of the accused:€ ex.d1 : certified copy of the registered sale deed dt: 3.09.2011 (marked through pw.1) ex.d.2 :,audio_25_623.mp3 +certified copy of the agreement of sale dt:15.03.2011 ( marked through pw.1) cc.no.12327/2016 j ex.d.3 : certified copy of cancellation of sale agreement dt: 2.9.2019,audio_25_624.mp3 +(marked through pw.1) ex.d4 : relevant entry (in ex.c.€15) (marked through dw.1) ex.d.5 to d€9 : certified copies of five d.d.s (marked through dw.1) ex.d.10,audio_25_625.mp3 +: notarized copy of the aadhar card of accused (marked through dw.1) ex.d.11 : notarized copy of the driving license of accused (marked through dw.1),audio_25_626.mp3 +"(sri.s.b.handral), xvi acmm, bengaluru city. Cc.no.12327/2016 jsri.renukaprasad. K.s vs. m/S. bhargavi trading on 9 december, 2021",audio_25_627.mp3 +"and counsel for the complainant absent, accused absent and counsel for the accused present, judgment pronounced in the open court, vide separate order. Order the",audio_25_628.mp3 +complaint u/s.200 of Cr.P.C. filed by the complainant for the offence punishable u/sec.138 of n.i.act is hereby dismissed. No costs. Acting u/sec.255(1),audio_25_629.mp3 +of cr.p.c the accused no.1 and 2 are acquitted for the offence punishable u/sec.138 of n.i.act. Personal bond and surety bond executed by the accused,audio_25_630.mp3 +"no.2 stands cancelled after appeal period is over. Xvi acmm, b'luru. 83 cc.no.12327/2016 jsri.renukaprasad. K.s vs. m/S. bhargavi trading on 9 december, 2021",audio_25_631.mp3 +"Dharambir vs. . M/s alkarma page 1 of 24 on 25 may, 2023 in the court of shri harshal negi:mm-05(ni act): south-west district:dwarka courts:new delhi",audio_26_1.mp3 +"ct cases no.31099/2019 cnr no.dlsw02-043297-2019 dharambir s/o sh. Raghubir singh r/o h.no.90, vpo mitraon, najafgarh, new delhi -110043 ...complainant vs. m/s alkarma 57, rama road,",audio_26_2.mp3 +"najafgarh road, moti nagar, new delhi -110015 through its partners shri sandeep chaudhary and Ms. . Anjaly chaudhary 57, rama road, najafgarh road, moti nagar, new",audio_26_3.mp3 +"delhi -110015 also at: sandeep chaudhary s/o sh. Subhash chaudhary r/o soverign house, house no.c-2/102, vatika city, sector-49, gurugram, haryana ...accused offence complained of :",audio_26_4.mp3 +"u/s 138, ni act, 1881 date on which the complaint : 19.08.2019 was instituted plea of the accused : pleaded not guilty date of pronouncement",audio_26_5.mp3 +"of judgment : 25.05.2023 ct. Cases 31099/2019 dharambir vs. M/s alkarma page 1 of 24 judgment 1. Tersely put, the Cas. of the complainant is",audio_26_6.mp3 +that accused sandeep chaudhary is the partner of Co. viz. m/s alkarma and was/is looking after the day-to-day affairs of the Co. . It is also,audio_26_7.mp3 +the Cas. of the complainant that the complainant was working in the accused Co. . Thatdharambir vs. . M/s alkarma page 1 of 24 on 25,audio_26_8.mp3 +"may, 2023",audio_26_9.mp3 +"Made settlement with the complainant for a sum of rs 12,01,689/-. That to discharge the legal liability the accused issued a total of five cheques",audio_26_10.mp3 +"one of the cheques being the cheque in question i.e., cheque bearing no 037350 dated 16.06.2019 of rs 2,35,419/- and drawn on canara bank, connaught",audio_26_11.mp3 +"place branch, new delhi to the complainant with an assurance of its encashment. The complainant presented the cheque in his account which were returned with",audio_26_12.mp3 +"the remarks ""contact drawer/drawee bank"" dated 28.06.2019 and with the remarks ""account closed"". Thereafter, complainant served a legal notice dated 08.07.2019 upon the accused through",audio_26_13.mp3 +"his counsel demanding the said amount. Despite service of aforesaid notice the money was not repaid by the accused. Thereafter, complainant has filed the present",audio_26_14.mp3 +complaint Cas. . Material on record 2. The accused entered appearance on 07.03.2020. Notice under S. 251 cr pc dated 18.12.2021 was framed accordingly to which,audio_26_15.mp3 +the accused pleaded not guilty and claimed trial. The accused stated that the blank signed cheques were used to be kept in his office for,audio_26_16.mp3 +daily use and the same were taken from the said office and misused. 3. The complainant relied upon the following documents: a) original cheque in,audio_26_17.mp3 +question is ex.cw1/a. B) original returning memo is ex.cw1/b. C) copy of legal notice is ex.cw1/c. D) original receipts of postal Dept. is ex.cw1/d to,audio_26_18.mp3 +ex.cw1/f. E) copy of delivery report is ex.cw1/g to ex.cw1/i. F) mark a is settlement deed. G) mark b is settlement acknowledgement h) mark c,audio_26_19.mp3 +is partnership deed. 4. During the course of the trial the complainant examined himself as cw 1 and one vijay thakur as cw 2. 5.,audio_26_20.mp3 +The complainant adopted his pre-summoning evidence as post summoning evidence and also relied on the documents tendered by him during pre-summoning evidence. The complainant also,audio_26_21.mp3 +relied upon ex.cw1/j (being the proof of appointment). The same was objected to by the counsel for the accused although the same was decided in,audio_26_22.mp3 +"favour of the complainant. The complainant alsodharambir vs. . M/s alkarma page 1 of 24 on 25 may, 2023",audio_26_23.mp3 +6. In his cross examination dated 26.04.2022 the complainant stated that alkarma is a firm. He affirmed that ex.cw1/j and ex.cw1/k were not issued by,audio_26_24.mp3 +any partner/accused. He voluntarily stated that the same was issued by the manager of the firm. He denied the suggestion that the manager was not,audio_26_25.mp3 +authorised to issue the above said documents. He further affirmed that in both the documents ex.cw1/j and ex.cw1/k nothing with respect to due amount has,audio_26_26.mp3 +been mentioned. That he have been working in the firm since 1996 to 30.11.2017. He further affirmed that the aforesaid documents ex.cw1/j ex.cw1/k do not,audio_26_27.mp3 +bear the signature of accused sandeep chaudhary. He voluntarily stated that the above said documents were issued by the firm. That he was working as,audio_26_28.mp3 +supervisor in the accused firm as the same is reflecting in above said document. That the accused never entered into any written settlement with him.,audio_26_29.mp3 +"He voluntarily stated that the accused has verbally assured in the presence of other employees and also directed one mr. Vijay thakur, sr. Manager accounts",audio_26_30.mp3 +to draft a settlement with him. He voluntarily stated that he had been supplied a photocopy of the documents which is framed by mr. Vijay,audio_26_31.mp3 +thakur at the behest of the accused which is mark-1 and mark-2. That he have not mentioned the above said details in his complaint and,audio_26_32.mp3 +evidence by way of Aff. . That he have not filed any document which shows that vijay thakur was authorised. He denied the suggestion that vijay,audio_26_33.mp3 +thakur was never authorised by the accused. He voluntarily stated that vijay thakur was working in the capacity of sr. Manager accounts and he used,audio_26_34.mp3 +to work on the directions of the accused who was the partner of the accused firm. He denied the suggestion that mr. Vijay thakur was,audio_26_35.mp3 +never authorized to enter into settlement on behalf of the firm with any employee of the firm. He voluntarily stated that vijay thakur not entered,audio_26_36.mp3 +into settlement and accused only directed the vijay thakur to formulate the settlement. That he used to go to the office of the firm whenever,audio_26_37.mp3 +was called by the firm. He denied the suggestion that he entered with the conspiracy with vijay thakur. He also denied the suggestion that he,audio_26_38.mp3 +illegally took the blank signed cheque in question in connivance with vijay thakur. That since he was the employee of the firm it is quite,audio_26_39.mp3 +natural that he used to work in the premises of the firm for his employment. He further affirmed that apart from the cheque in question,audio_26_40.mp3 +the remaining documents which have been filed by him till now does not bear the signature of the accused. He denied the suggestion that he,audio_26_41.mp3 +have filled the particulars of the cheque in question. He voluntarily stated that the particulars of the cheque apart from the signature was filled by,audio_26_42.mp3 +mr. Vijay thakur in the presence of the accused. That there was no written document entered between him and the accused where it is written,audio_26_43.mp3 +that accused has issued the cheque in question to him. He voluntarily stated that the accused assured him that the cheques which he has issued,audio_26_44.mp3 +will be duly honored when the meeting took place for the purpose of settling the accounts of the employees as it came to their information,audio_26_45.mp3 +that accused is closing the firm. That he have not mentioned the above said either in his complaint or in evidence by way of Aff. .,audio_26_46.mp3 +That he is not aware whether any Cas. is pending between mr vijay thakur and accused. That as on date he is not aware that,audio_26_47.mp3 +firm is still in existence or whether the firm has been closed by the accused. He voluntarily stated that since it is his firm he,audio_26_48.mp3 +might be aware of the same. That he do not know when the firm was closed. He denied the suggestion that he have intentionally sent,audio_26_49.mp3 +the legal notice to the address of the firm despite knowing that firm was closed in 2017. He denied the suggestion that there is no,audio_26_50.mp3 +liability against him when he left the job. He further denied the suggestion that there is no legally and enforceable debt of the accused. He,audio_26_51.mp3 +also denied the suggestion that the multiple cases have been filed by him to put pressure upon accuseddharambir vs. . M/s alkarma page 1 of,audio_26_52.mp3 +"24 on 25 may, 2023",audio_26_53.mp3 +Work. That he cannot say whether he used to visit the office in the absence of the accused. He voluntarily stated that he used to,audio_26_54.mp3 +visit the office whenever he was called by the firm. During cross examination the documents mark a and mark b were objected to by the,audio_26_55.mp3 +counsel for the accused and the same was decided in favor of the accused since they were not original documents. He further denied the suggestion,audio_26_56.mp3 +that nothing was due against the accused/firm and he have already received his entire due from the accused when he left the firm. 7. The,audio_26_57.mp3 +"complainant, thereafter, examined cw 2 i.e., vijay thakur. Cw 2 adopted his evidence by way of Aff. on 26.09.2022 and relied on mark a i.e.,",audio_26_58.mp3 +"appointment letter, ex cw2/a i.e., authorization letter to sign identity cards, cw 2/b i.e., Auth. letter, cw2/c i.e., emails and ex cw2/d. 8. In his",audio_26_59.mp3 +cross-examination cw 2 stated that he has been working with the accused Co. since 16.02.1993 till february 2018. That initially he joined as an accountant,audio_26_60.mp3 +and left the services as Sr. manager accounts and administration. That he have not filed any appointment and designation letter on record. That he do,audio_26_61.mp3 +not remember his starting salary when he joined the accused Co. since its long time back. That at the time when he left the services,audio_26_62.mp3 +"of the accused Co. he was earning Rs. 1,30,000/-. That he is residing in his own house. That he brought the same in 1996 from",audio_26_63.mp3 +his earnings. That he cannot remember his salary in the year 1996. He denied the suggestion that he was not honest in his work with,audio_26_64.mp3 +the accused firm. He denied the suggestion that he have duped amount from the accused firm. He also denied the suggestion that he used to,audio_26_65.mp3 +manipulate the records of the accused firm. That he have brought the id card issued by the accused firm which is ex. Cw-2/e (osr). He,audio_26_66.mp3 +affirmed that the signature at point a reflecting issuing Auth. are his signature. He voluntarily stated that he have been authorized by the accused to,audio_26_67.mp3 +sign the identity cards on behalf of the accused firm which is ex. Cw2/a. He denied the suggestion that he used to issue and misuse,audio_26_68.mp3 +"his Auth. to sign without prior knowledge and consent of the accused. At this stage, the counsel for the accused confronted mark a & b",audio_26_69.mp3 +of cw1 to cw 2. He affirmed the suggestion that mark a & b does not bear the signature of any partner of alkarma. He,audio_26_70.mp3 +voluntarily stated that he had sought the Auth. letter from the accused with respect to signing on mark a & b which was given to,audio_26_71.mp3 +him on 08.01.2018 which is ex. Cw2/b. He further affirmed that the signature at point a in mark a & b of cw1 belongs to,audio_26_72.mp3 +him. He further affirmed that he was not having any written authorization in his favour to sign in mark a & b on behalf of,audio_26_73.mp3 +the accused Co. . He voluntarily stated that he was having oral directions and approval of the accused. He voluntarily stated that since he was working,audio_26_74.mp3 +in continuity with the accused firm he was under direction from the accused to sign mark a & b whereas the accused in writing had,audio_26_75.mp3 +issued the Auth. letter to him on 08.01.2018 with respect to entering into mark a & b of cw1 on behalf of the accused firm.,audio_26_76.mp3 +He further affirmed that the ex. Cw2/b does not mention that the same would be having retrospective effect pertaining to mark a & b. He,audio_26_77.mp3 +voluntarily stated that since the talks of full and final settlement were running in continuity he was authorized under directions to sign mark a and,audio_26_78.mp3 +b although the Auth. in writing was given to him on 08.01.2018. He denied the suggestion that he was not authorized by any partner of,audio_26_79.mp3 +"the accused firm to enter into the settlement on behalf of accused firm on 30.11.2017. At this stage, the counsel for the accused confronted ex.",audio_26_80.mp3 +Cw2/c. He affirmed that the emails which are ex. Cw2/c are not of the year 2017. He voluntarily stated thatdharambir vs. . M/s alkarma page,audio_26_81.mp3 +"1 of 24 on 25 may, 2023",audio_26_82.mp3 +Respect to his full and final settlement. He also voluntarily stated that the accused in this email ex. Cw2/c has stated that he will settle,audio_26_83.mp3 +his payment also as he has done with Ors. too. That there was around 40 staff members approx of the accused firm in the year,audio_26_84.mp3 +2017. That there were about 160 approx workers of the accused firm in the year 2017. He affirmed that the name of the complainant does,audio_26_85.mp3 +not find any mention in ex. Cw2/c. He denied the suggestion that he was not having Auth. to enter into full and final settlement with,audio_26_86.mp3 +the complainant on behalf of the accused and his firm. He denied the suggestion that the ex cw2/b is forged and fabricated. He also denied,audio_26_87.mp3 +the suggestion that ex. Cw2/b is forged and fabricated by typing on blank paper. He also denied the suggestion that he had entered into mark,audio_26_88.mp3 +a and mark b of cw1 behind the back of the accused and without his knowledge on commission basis. He denied the suggestion that he,audio_26_89.mp3 +had been indulging in creating forged and fabricated documents. He denied the suggestion that the accused has no liability whatsoever against the accused. He also,audio_26_90.mp3 +denied the suggestion that he was in possession of blank signed cheque book of the accused. He denied the suggestion that he have misused the,audio_26_91.mp3 +cheque in question in connivance with the complainant. He further denied the suggestion that he have created various kinds of letters documents without the permission,audio_26_92.mp3 +of the accused. He also denied the suggestion that he have misused his power and position in the accused firm and have acted in utter,audio_26_93.mp3 +violations in his responsibility. He affirmed that there is a cheque bounce Cas. pending between him and the accused. He affirmed that settlement which has,audio_26_94.mp3 +been placed by him in his Cas. is not signed by any partner of the accused firm. That he cannot answer who has signed the,audio_26_95.mp3 +settlement which has been placed by him in his Cas. . 9. The complainant thereafter closed his evidence. 10. The statement of the accused under S. ,audio_26_96.mp3 +313 crpc was then recorded on 09.12.2022. He stated that the documents which have been furnished by cw2 were never authorized by him. That they,audio_26_97.mp3 +are forged and fabricated. That the e-mail which have been furnished has no relevance to the present matter. That there exists no due on him,audio_26_98.mp3 +with respect to the complainant. That whatever due which he had has already been paid by him to the complainant. That the cheque in question,audio_26_99.mp3 +were in possession of the vijay thakur for business purposes since he used to travel abroad and he had issued instructions that the cheque would,audio_26_100.mp3 +"not be issued without his knowledge. However, the cheques in question have been misused by vijay thakur. That he have never given any authorization to",audio_26_101.mp3 +"anyone. 11. The accused opted to lead his defence evidence, however, on 27.02.2023 he closed his de. 12. Evidences and documents on record perused carefully.",audio_26_102.mp3 +"Arguments heard. Law point 13. Before analyzing the material on record, it is imperative to set forth the legal benchmark which governs the adjudication of",audio_26_103.mp3 +cases under S. 138 ni act. A bare reading of S. 138 ni act reveals that in addition to the cheque being issued for the,audio_26_104.mp3 +"discharge, in whole or in part, of any debt or other liability; following are the ingredients which constitute an offence:-dharambir vs. . M/s alkarma page",audio_26_105.mp3 +"1 of 24 on 25 may, 2023",audio_26_106.mp3 +A. That such a cheque when presented to the bank is returned by the bank unpaid; b. That such a cheque was presented to the,audio_26_107.mp3 +bank within a period of six months from the date it was drawn or within the period of its validity whichever is earlier; c. That,audio_26_108.mp3 +the payee demanded in writing from the drawer of the cheque the payment of the amount of money due under the cheque to payee; and,audio_26_109.mp3 +d. Such a notice of payment is made within a period of 30 days from the date of the receipt of the information by the,audio_26_110.mp3 +"payee from the bank regarding the return of the cheque as unpaid. (para 26, n. Harihara krishnan vs. j. Thomas, (2018) 13 scc 663, referred",audio_26_111.mp3 +"to in himanshu vs. b. Shivamurthy (2019) 3 scc 797) 14. S. 138 is to be r/w the presumption, being a rebuttable presumption, as",audio_26_112.mp3 +"contained in S. 139. S. 139 provides that: ""presumption in favour of holder - it shall be presumed, unless the contrary is proved, that the",audio_26_113.mp3 +"holder of a cheque received the cheque of the nature referred to in S. 138 for the discharge, in whole or in part, of any",audio_26_114.mp3 +"debt or other liability."" 15. Thus, in cheque bouncing cases, the judicial scrutiny revolves around the satisfaction of ingredients enumerated under S. 138 ni act",audio_26_115.mp3 +"and if so, whether the accused was able to rebut the statutory presumption contemplated by S. 139 ni act. S. 139 is an example of",audio_26_116.mp3 +"reverse onus Cl. which usually imposes an evidentiary burden and not a persuasive burden. In other words, evidence of a character, not to prove a",audio_26_117.mp3 +"fact affirmatively, but to lead evidence to show non-existence of a liability. Further the law is well settled that when an accused has to rebut",audio_26_118.mp3 +"the presumption under S. 139, the standard of proof of doing so is that of ""preponderance of probability"" (rangappa vs. sri mohan (2010) 11 scc",audio_26_119.mp3 +"441). Once execution of cheque is admitted, it is a legal presumption under S. 139 of negotiable instrument act, the cheque was issued for discharging",audio_26_120.mp3 +legally enforceable debt. 16. Attention is also invited to S. 118(a) wherein a presumption of the cheque having been issued in discharge of a legally,audio_26_121.mp3 +"sustainable liability and drawn for good consideration, arises. S. 118 of the n.i act provides:- ""presumptions as to negotiable instruments: until the contrary is proved,",audio_26_122.mp3 +"the following presumptions shall be made: (a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument,",audio_26_123.mp3 +"when it has been accepted, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;"" 17. Hence, it can be seen that from",audio_26_124.mp3 +its very inception a presumption that the cheque was issued in discharge of a debt or other liability subsists in favour of the complainant and,audio_26_125.mp3 +"onus rests upon thedharambir vs. . M/s alkarma page 1 of 24 on 25 may, 2023",audio_26_126.mp3 +"18. Further, the accused in a trial under S. 138 has two options. He can either show that consideration and debt did not exist or",audio_26_127.mp3 +that under the particular circumstances of the Cas. the non-existence of consideration and debt is so probable that a prudent man ought to suppose that,audio_26_128.mp3 +"no consideration and debt existed (para 20, kumar exports vs. sharma carpets (2009) 2 scc 513). The accused can also show that he has already",audio_26_129.mp3 +"returned the amount taken by him. Analysis & conclusion 19. Now, the law is also well settled that ""once the cheque relates to the account",audio_26_130.mp3 +"of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under S. 139 of the negotiable",audio_26_131.mp3 +"instruments act has to be raised by the court in favor of the complainant."" (rangappa vs. mohan, air 2010 SC 1898). Reference can also",audio_26_132.mp3 +"be made to k. Bhaskaran vs. . Sankaran vaidhyan balan 1999 (4) rcr (Crl. ) 309, wherein it has been held by the Hon'ble SC ",audio_26_133.mp3 +"as under: ""as the signature in the cheque is admitted to be that of the accused, the presumption envisaged in S. 118 of the act",audio_26_134.mp3 +can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. S. 139 of the act,audio_26_135.mp3 +"enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability."" 20. In this",audio_26_136.mp3 +"matter, the accused has admitted his signature. Therefore, the presumption under S. 139 ni act does get raised in favor of the complainant and against",audio_26_137.mp3 +"the accused. Thus, the accused now has to rebut the presumption on the touchstone of preponderance of probabilities. Further, the accused has not lead his",audio_26_138.mp3 +"defence evidence. However, the law is also well settled that the accused in order to rebut the presumption need not to step into the witness",audio_26_139.mp3 +box or lead his defence evidence. The accused can through the material brought on record by the complainant can also rebut the presumption existing against,audio_26_140.mp3 +"him. 21. At the outset, on the close scrutiny and appraisal of the original cheque in question marked as ex cw1/a it clearly transpires that",audio_26_141.mp3 +"the same had been issued as per the above details. Further, the cheque in question got dishonored vide returning memos dated 28.06.2019 with remarks ""please",audio_26_142.mp3 +"contact drawer "" and also ""account closed"" marked as ex cw 1/b. Thus, one of the essential ingredients of S. 138 i.e., that a person",audio_26_143.mp3 +drew a cheque on an account maintained by him with the banker; and that such a cheque when presented to the bank is returned by,audio_26_144.mp3 +"the bank unpaid, stands fulfilled. Further, on a co-joint reading of the cheque in question ex cw 1/a, return memo ex cw 1/b, it also",audio_26_145.mp3 +"stands proved that ""cheque was presented to the bank within a period of six months from the date it was drawn"". 22. The legal notice",audio_26_146.mp3 +"dated 08.07.2019 ex cw-1/c further proves that the same was issued on 08.07.2019 and dispatched vide postal receipts ex cw1/d to ex cw1/f. Now, the",audio_26_147.mp3 +"accused has denied the receipt of legal notice.dharambir vs. . M/s alkarma page 1 of 24 on 25 may, 2023",audio_26_148.mp3 +"Para 18 observed thus: ""......'giving notice' in the context is not the same as 'receipt of notice'. Giving is a process of which receipt is",audio_26_149.mp3 +"the accomplishment. It is for the payee to perform the former process i.e. Giving, by sending the notice to the drawer at the correct address.....""",audio_26_150.mp3 +"24. Further, in para 24 of the above said judgment the Hon'ble SC held that where the sender has dispatched the notice by post",audio_26_151.mp3 +"with correct address written on it, the principle Inc. in S. 27 of general clauses act could profitably be imported in such a Cas. . It",audio_26_152.mp3 +was further held that in this situation service of notice is deemed to have been effected on the sendee. 25. Law with respect to the,audio_26_153.mp3 +delivery of legal notice by post and the presumption with respect to the same has been succinctly put forth by the Hon'ble SC in,audio_26_154.mp3 +"c c alavi haji vs. palapetty muhammed (2007) 6 scc 555. Para 13 & 14 of the judgment is worth mentioning as under: ""13. According",audio_26_155.mp3 +"to S. 114 of the act, r/w illustration (f) thereunder, when it appears to the court that the common course of business renders it",audio_26_156.mp3 +"probable that a thing would happen, the court may draw presumption that the thing would have happened, unless there are circumstances in a particular Cas. ",audio_26_157.mp3 +"to show that the common course of business was not followed. Thus, S. 114 enables the court to presume the existence of any fact which",audio_26_158.mp3 +"it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and Pvt. business in their",audio_26_159.mp3 +"relation to the facts of the particular Cas. . Consequently, the court can presume that the common course of business has been followed in particular cases.",audio_26_160.mp3 +"When applied to communications sent by post, S. 114 enables the court to presume that in the common course of natural events, the communication would",audio_26_161.mp3 +have been delivered at the address of the addressee. But the presumption i.e. raised under S. 27 of the g.c. Act is a far,audio_26_162.mp3 +"stronger presumption. Further, while S. 114 of evidence act refers to a general presumption, S. 27 refers to a specific presumption 14. S. 27 gives",audio_26_163.mp3 +rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of,audio_26_164.mp3 +"the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further",audio_26_165.mp3 +"aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee",audio_26_166.mp3 +"is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have",audio_26_167.mp3 +"been effected at the time at which the letter would have been delivered in the ordinary course of business. 26. Thus, in view of the",audio_26_168.mp3 +law as above said and the fact that the address given by accused in his notice under S. 251 crpc being the same address which,audio_26_169.mp3 +"finds mention in the legal notice and that thedharambir vs. . M/s alkarma page 1 of 24 on 25 may, 2023",audio_26_170.mp3 +"As ex cw 1/c is deemed to have been served on the accused in the present Cas. . Thus, the factum of issuance and receipt of",audio_26_171.mp3 +"mandatory statutory legal notice also stands proved based on the documentary evidence of legal notice, postal receipts. It has been also proved that despite issuance",audio_26_172.mp3 +"of legal notice, the accused had failed to make the payment of the cheque amount. 27. Before noting the line of defence of the accused",audio_26_173.mp3 +"that can be deduced through the cross examination of the complainant witnesses, it is apposite to note the admitted facts in the present matter: i)",audio_26_174.mp3 +"the accused is a partnership firm. This has been established in view of the consistent position of cw 1 as well as cw 2. Furthermore,",audio_26_175.mp3 +nowhere during the course of the trial the accused has disputed that alkarna is not a partnership firm. Not a single suggestion disputing alkarma not,audio_26_176.mp3 +being a partnership firm has been put forth by the accused. Ii) accused sandeep chaudhary is the partner and authorized signatory of accused alkarma firm.,audio_26_177.mp3 +The same stands proved on a co-joint reading and perusal of the cheque in question and notice under S. 251 crpc. The accused sandeep chaudhary,audio_26_178.mp3 +"has admitted his signatures on the cheque in question and perusal of the cheque reflects that the same is belong to ""alkarma"" of which sandeep",audio_26_179.mp3 +"chaudhary is the authorized signatory. Furthermore, it is also not the Cas. of the accused that he is not the authorized signatory/partner of accused alkarma.",audio_26_180.mp3 +Iii) complainant used to work for the accused alkarma. This has also not been disputed by the accused. Not a single suggestion or question has,audio_26_181.mp3 +been put by the accused which could directly or indirectly goes on to establish that it is the Cas. of the accused that the complainant,audio_26_182.mp3 +"has no connection whatsoever with the accused alkarma firm or that complainant was never an employee of the accused firm. As a matter of fact,",audio_26_183.mp3 +"ex cw1/j i.e., proof of appointment and ex cw1/k i.e., proof of salary brought on record by the complaint further cements the position that the",audio_26_184.mp3 +"complainant indeed was the employee of accused alkarma firm. 28. In order to rebut the presumption existing in favor of the complainant, the accused through",audio_26_185.mp3 +the cross examination and notice under S. 251 crpc attempted to create following line of defence: i)) the cheque in question was never issued to,audio_26_186.mp3 +the complainant. Ii) there never existed any settlement between him and the complainant as to the outstanding amount claimed by the complainant. Iii) the blank,audio_26_187.mp3 +signed cheques were used to be kept in his office for daily use and the same were taken from the said office and misused. (notice,audio_26_188.mp3 +"under S. 251 crpc.)dharambir vs. . M/s alkarma page 1 of 24 on 25 may, 2023",audio_26_189.mp3 +Been misused by vijay thakur and never gave authorization to anyone regarding the issuance of cheque in question. (statement under S. 313 crpc.) v) whatever,audio_26_190.mp3 +documents that have been brought on record by the complainant and his witness are forged and fabricated and were never created by him. Vi) whatever,audio_26_191.mp3 +"due, if any, is there against him has already been paid by him to the complainant. (statement under S. 313 crpc.) 29. The line of",audio_26_192.mp3 +defence raised by the accused appears to be incredible. In his notice under S. 251 crpc he only stated that blank signed cheques used to,audio_26_193.mp3 +"be kept in his office for daily use and the same were taken from the said office and misused. Here, the accused never even mentioned",audio_26_194.mp3 +"as to who took the said cheques or when the said cheques were taken. However, only when the complainant examined cw 2 i.e., vijay thakur,",audio_26_195.mp3 +the accused in his statement under S. 313 crpc modified and changed his position and stated that the cheque in question were in possession of,audio_26_196.mp3 +vijay thakur and the same have been misused by vijay thakur. 30. During the course of the trial objection was raised with respect to full,audio_26_197.mp3 +"and final settlement brought on record since the same was not original. The objection was also decided in favor of the accused. However, mere absence",audio_26_198.mp3 +"of settlement agreement by itself does not in any manner create probable defence in favor of the accused, viewed specifically in the light of the",audio_26_199.mp3 +"fact that the complainant was the employee of the accused firm and further cw1 i.e., the complainant and cw 2 i.e., vijay thakur through their",audio_26_200.mp3 +"testimony has been able to establish that a settlement was arrived between the accused firm and the complainant. 31. Furthermore, the accused never initiated any",audio_26_201.mp3 +"complaint or legal proceedings with respect to the misuse of the cheque. As a matter of fact, there exists a total of 5 cheques bounce",audio_26_202.mp3 +cases pending between the accused and the complainant in the same court. A total of 33 cases are pending against the accused with respect to,audio_26_203.mp3 +multiple cheques in the same court. It is highly unnatural and improbable that where close to three dozen cheque bounce cases have been filed against,audio_26_204.mp3 +"the accused and he takes a stand that all the cheques have been misused, not a single complaint or legal proceedings or even a stop",audio_26_205.mp3 +payment instruction has been initiated by the accused. This conduct of the accused further weakens his line of defence. 32. Anr. point which is noticeable,audio_26_206.mp3 +"is that during the cross examination of the complainant as well as cw 2 i.e., vijay thakur, the counsel of the accused took a line",audio_26_207.mp3 +"of defence that the documents which has been filed on record i.e., settlement, does not bear the signature of the accused and only of vijay",audio_26_208.mp3 +kumar cw 2. He has further through the cross examination of the complainant as well as his witness attempted to establish that cw 2 was,audio_26_209.mp3 +never authorized by the accused to enter into any settlement with the complainant. This line of defence also does not hold much water. It stands,audio_26_210.mp3 +"proved through the testimony of cw 2 i.e., vijay thakur that he was also the employee of accused firm and was working in the position",audio_26_211.mp3 +of Sr. manager. The same also stands proved through the documents which has been brought on record by cw 2 which are on the letter,audio_26_212.mp3 +"head of the accuseddharambir vs. . M/s alkarma page 1 of 24 on 25 may, 2023",audio_26_213.mp3 +33. Cw 2 further brought on record authorization letter dated 08.01.2018 ex cw2/b which does establish that he was duly authorized. Although the accused did,audio_26_214.mp3 +"attempt to show that since the settlement was dated 30.11.2017 and whereas the authorization letter ex cw2/b is of 08.01.2017, cw 2 was never authorized",audio_26_215.mp3 +"to enter into any settlement agreement on behalf of the accused. However, a plausible explanation to this effect was given by cw 2 in his",audio_26_216.mp3 +cross examination that since he was working in continuity with the accused firm he was under directions form the accused to sign mark a and,audio_26_217.mp3 +mark b whereas the accused in writing had issued the Auth. letter to him on 08.01.2018. It is proved that cw 2 has been working,audio_26_218.mp3 +"in the position of Sr. manager with accused alkarma and was also authorized to issue identity cards to the employees of the accused alkarma. Further,",audio_26_219.mp3 +"cw 2 has been working in the accused firm since 1993. In view the abovesaid long tenure and responsible position, the delay of merely a",audio_26_220.mp3 +month in the issuance of the authorization letter does not create any reasonable doubt that cw 2 was never authorized by accused sandeep chaudhary to,audio_26_221.mp3 +"enter into settlement on behalf of accused firm. 34. Furthermore, a suggestion was put during the cross examination of cw 2 that ex cw2/b i.e.,",audio_26_222.mp3 +"the authorization letter is forged and fabricated. However, mere suggestion by itself does not prove that the document is forged and fabricated. Something more ought",audio_26_223.mp3 +to be brought on record to establish the same. It is not the Cas. of the accused that he has initiated any Crl. proceedings with,audio_26_224.mp3 +"respect to the forging and fabrication of ex cw2/b. No material whatsoever has been brought on record by accused to even suggest the same. Thus,",audio_26_225.mp3 +it stands proved that cw 2 was authorized to enter into settlement agreement on behalf of accused firm with the complainant. 35. The accused had,audio_26_226.mp3 +"an option to examine himself as a witness which the accused opted not to avail. Where the accused does not examine himself as a witness,",audio_26_227.mp3 +his statement under S. 281 cr. P.c. Or 313 cr. P.c. Cannot be read as evidence of the accused and it has to be looked,audio_26_228.mp3 +into only as an explanation of the incriminating circumstance and not as evidence. There is no presumption of law that explanation given by the accused,audio_26_229.mp3 +"was truthful (v.S. yadav vs. reena 2010 scc online del 3294). In the present matter, in his statement under S. 313 crpc the accused stated",audio_26_230.mp3 +"that the documents brought by cw 2 were never authorized by him and they are forged and fabricated. If the accused wanted to prove this,",audio_26_231.mp3 +"he was supposed to appear in the witness box and testify and get himself subjected to cross examination. Furthermore, nothing came in the cross examination",audio_26_232.mp3 +"of cw 2 so as to cast any doubt on the documents brought on record by him. 36. During the cross examination of the complainant,",audio_26_233.mp3 +a suggestion was put to the complainant that there is nothing due against the accused/firm and that the complainant has already received his entire due,audio_26_234.mp3 +"from the accused when he left the firm. In other words, it is the stand of the accused that he has already paid the entire",audio_26_235.mp3 +"due when the complainant left the firm and no due is left against the accused/firm. The same was, however, denied by the complainant. The abovesaid",audio_26_236.mp3 +position of the accused further stands corroborated through the statement of the accused under S. 313 crpc wherein the accused stated that whatever due which,audio_26_237.mp3 +"he had has already been paid by him to the complainant.dharambir vs. . M/s alkarma page 1 of 24 on 25 may, 2023",audio_26_238.mp3 +"Wages act, the act is applicable to a factory. Now, the accused firm alkarma is a factory. The same is proved on perusal of form",audio_26_239.mp3 +"no 3a i.e., notice of change of manager brought on record by cw 2. 38. S. 13 a of payment of wages act is as",audio_26_240.mp3 +"follows: [13a. Maintenance of registers and records.--(1) every employer shall maintain such registers and records giving such particulars of persons employed by him, the work",audio_26_241.mp3 +"performed by them, the wages paid to them, the deductions made from their wages, the receipts given by them and such other particulars and in",audio_26_242.mp3 +"such form as may be prescribed. (2) every register and record required to be maintained under this S. shall, for the purposes of this act,",audio_26_243.mp3 +"be preserved for a period of three years after the date of the last entry made therein.] 39. Thus, as can be seen S. 13a",audio_26_244.mp3 +"mandates that an employer shall maintain registers and records of person employed by him, work performed, wages paid, deductions made, and receipts given. Alkarma being",audio_26_245.mp3 +a factory was therefore required to maintain the registers as per the labor legislations. The accused brought no registers maintained by him in this regard.,audio_26_246.mp3 +"If the stand of the accused is that he had already paid all the dues to the complainant, he ought to have brought the registers",audio_26_247.mp3 +"which were maintained by him reflecting the same, however, the accused brought nothing on record. Thus, adverse inference needs to be drawn against the accused",audio_26_248.mp3 +"firm and further the defence raised by the accused regarding due payment already been made to the complainant stands rejected. 40. The present matter, as",audio_26_249.mp3 +per the memo of parties has been filed against m/s alkarma through its partner sandeep chaudhary. In the complaint there exists a separate averment that,audio_26_250.mp3 +"accused sandeep chaudhary is partner of m/s alkarma and was/is looking after day-to-day affairs and is the authorized signatory of the Co. . Further, accused sandeep",audio_26_251.mp3 +chaudhary signed on the cheque in question as the authorized signatory of alkarma. Notice under S. 251 crpc was also framed against accused sandeep chaudhary,audio_26_252.mp3 +as partner of accused alkarma. It is also not the Cas. of the accused sandeep chaudhary that he is not the partner or authorized signatory,audio_26_253.mp3 +of accused alkarma. In fact the entire defence of accused sandeep chaudhary was raised on the premise that accused sandeep chaudhary is the partner of,audio_26_254.mp3 +"accused alkarma. Hence, in the present matter the accused sandeep chaudhary was separately arraigned as an accused along with m/s alkarma. Thus, accused sandeep chaudhary",audio_26_255.mp3 +"is also vicariously liable in terms of S. 141 ni act being the partner of accused firm. 41. Thus, in view of the oral and",audio_26_256.mp3 +"documentary evidence brought on record by the complainant, statement of the accused under S. 313 cr.p.c, the accused has failed to create a dent/doubt in",audio_26_257.mp3 +"the Cas. of the complainant and it is clear that the accused had committed an offence under S. 138 of the NI Act . Further,",audio_26_258.mp3 +"the complainant has also been able to establish his Cas. .dharambir vs. . M/s alkarma page 1 of 24 on 25 may, 2023",audio_26_259.mp3 +Alkarma and ii) sh sandeep chaudhary s/o shri subhash chaudhary is convicted for the commission of the offence punishable under S. 138 of the act.,audio_26_260.mp3 +This judgment contains 24 pages. Every page of this judgment has been signed by me. Harshal negi announced in the open court negi date: 2023.05.25,audio_26_261.mp3 +"on this day of 25th may, 2023 16:52:02 +0530 (harshal negi) mm(ni act)-05/south-west district dwarka courts/new delhidharambir vs. . M/s alkarma page 1 of 24",audio_26_262.mp3 +"on 25 may, 2023",audio_26_263.mp3 +"P.subramani vs. sathyanarayana.t.n on 2 may, 2018 in the court of the xxiii addl.chief metropoliton magistrate, nrupathunga road, bengaluru city dated this the 2nd day",audio_27_1.mp3 +"of may - 2018 present: sri. Shridhara.m, b.a., ll.m., xxiii addl.c.m.m., bengaluru city. C.c.no.7015/2016 judgment under S. 355 of Cr.P.C. complainant :",audio_27_2.mp3 +"p.subramani, s/o.late.v.a.periyappa, aged about 58 years, r/at no.12, 4th cross, 6th block, rajajinagar, bengaluru-10. (rep. By sri.a.ramachandra, adv.) v/s accused : sathyanarayana.t.n, s/o.narayanappa, aged about",audio_27_3.mp3 +"35 years, r/at. No.478, 15th cross, jakkur layout, bengaluru-64. (rep.by sri.prasad.g.v, adv.) offence complained of : u/S. 138 of NI Act . Plead of the",audio_27_4.mp3 +"accused : not guilty. Final order : accused is acquitted. Date of order : 02.05.2018. (shridhara.m) xxiii addl.cmm., bengaluru. Judgment 2 c.c.7015/2016 judgment the complainant",audio_27_5.mp3 +has presented the instant complaint against the accused under S. 200 of Cr.P.C. for the offence punishable under S. 138 of negotiable,audio_27_6.mp3 +"instruments act, for dishonour of cheque amount of rs.7,50,000/-. 2. The brief, the Cas. of the complainant is:p.subramani vs. sathyanarayana.t.n on 2 may, 2018",audio_27_7.mp3 +"Rs.7,50,000/- in the 4th week of july, 2015 for the purpose of his family difficulties towards the same discharge the above debt, he issued the",audio_27_8.mp3 +"post dated cheque bearing no.009391, dated:28.01.2016, drawn for rs.7,50,000/- drawn on hdfc bank, cauvery bhavan d-block, kempegowda road branch, bengaluru in favour of the complainant",audio_27_9.mp3 +"and agreed to pay the said money within six months. The complainant has further contended that, on the assurance of the accused, the complainant has",audio_27_10.mp3 +"presented the said cheque with his banker viz., karnataka bank ltd., rajajinagar branch, bengaluru for encashment and the same got dishonoured as per memo dated:02.02.2016",audio_27_11.mp3 +"reasons ""account closed"". After dishonour of the said cheque, the complainant intimated to the accused, but he postponed for one or the other reason. Thereafter,",audio_27_12.mp3 +"he got issued the legal notice to the accused through his counsel on 10.02.2016 by R.P. a.d, the same was duly served upon accused",audio_27_13.mp3 +"on 11.02.2016. Despite, he not paid the money covered under the cheque. Hence, filed the present complaint against the accused. 3. After receipt of the",audio_27_14.mp3 +"Pvt. complaint, my predecessor in office took the cognizance and got registered the pcr and recorded the sworn statement. Since made out prima-facie grounds to",audio_27_15.mp3 +"proceed against the accused for the alleged offence got registered the Cas. in register no.iii, and got issued process. 4. In response to the summons,",audio_27_16.mp3 +"the accused appeared through his counsel and obtained the bail. As required, complaint copy was supplied to the accused as per S. 207 of code",audio_27_17.mp3 +"of Crl. procedure thereafter, accusation was read over and explained to him, wherein, he denied the same and claimed to have the defence. 5. Thereafter,",audio_27_18.mp3 +"to prove the Cas. of the complainant, he himself choosen to examined as pw.1 and got marked ex.p1 to p9. The pw.1 was subjected for",audio_27_19.mp3 +"cross-examination by the Adv. for the accused. 6. Thereafter, incriminating evidence made against the accused was recorded under S. 313 of cr.p.c, wherein the accused",audio_27_20.mp3 +"denied the same and the answer was given by him is recorded. In support of the defence, the accused himself was examined as dw.1 and",audio_27_21.mp3 +got marked exs.d1 to d3 and also subjected for cross- examination by the Adv. for the complainant. 7. Heard the arguments of both side counsels.,audio_27_22.mp3 +"The learned counsel for accused has also submitted his detailed written arguments. 8. On going through the rival contentions, based on the substantial evidence available",audio_27_23.mp3 +"on record, the following points have been arising for determination: 1) whether the complainant proves beyond the reasonable doubt that, he lent sum of rs.7,50,000/-p.subramani",audio_27_24.mp3 +"vs. sathyanarayana.t.n on 2 may, 2018",audio_27_25.mp3 +"No.009391, dated:28.01.2016 for rs.7,50,000/- drawn on hdfc bank, cauvery bhavan d-block branch, kempegowda road, bengaluru? 2) whether the complainant proves the guilt of the accused",audio_27_26.mp3 +"for the offence punishable under S. 138 of NI Act ? 3) what order? 9. On appreciation of materials available on record, my findings on",audio_27_27.mp3 +"the above points are as under: point no.1 : in the negative point no.2 : in the negative point no.3 : as per final order,",audio_27_28.mp3 +"for the following: reasons 10. Point nos.1 & 2: since both points are connected with each other, they have taken together for common discussion in",audio_27_29.mp3 +"order to avoid repetition of facts. On going through the materials available on record, to prove the Cas. of the complainant, the pw.1 is examined.",audio_27_30.mp3 +"The pw.1, in his substantial examination Aff. evidence, he reiterating the complaint averments and got marked exs.p1 to p9, which are: a) ex.p1 is the",audio_27_31.mp3 +"cheque bearing no.009391 issued by the accused for sum of rs.7,50,000/-, dated:28.01.2016 drawn on hdfc bank. B) ex.p1(a) is the signature of accused. C) ex.p2",audio_27_32.mp3 +is the bank memo with shara stating account closed dated:02.02.2016. D) exs.p3 and p4 are the consideration receipt and on demand promissory note alleged to,audio_27_33.mp3 +be executed by accused in favour of the complainant on 28.07.2015. E) exs.p3(a) and p4(a) are the signatures of accused. F) ex.p5 is the legal,audio_27_34.mp3 +notice dated:10.02.2016. G) ex.p6 is the postal receipt. H) ex.p7 is the postal acknowledgment card. I) ex.p8 is the katha extract issued by the bbmp,audio_27_35.mp3 +"stands in the name of complainant, andp.subramani vs. sathyanarayana.t.n on 2 may, 2018",audio_27_36.mp3 +"The pw.1 was subjected to the cross-examination by the Adv. for the accused. 11. In order to prove the defence of the accused, he himself",audio_27_37.mp3 +"choosen examined as dw.1 and got marked exs.d1 to d3, they are: a) ex.d1 is the certified copy of Pvt. complaint filed by the complainant",audio_27_38.mp3 +herein against one purushotham.d in c.c.no.10923/2016 on the file of this court. B) ex.d2 is the certified copy of Pvt. complaint filed by the complainant,audio_27_39.mp3 +herein against one g.sunilkumar in c.c.no.7014/2016 on the file of this court. C) ex.d3 is the letter executed by the complainant herein in favour of,audio_27_40.mp3 +"the accused herein. D) ex.d3(a) is the signature of the complainant. 12. Apart from lead defence evidence, the dw.1 through his counsel has produced the",audio_27_41.mp3 +"citations and relied upon same. They are: a) air 2010 SC 1898 13. The dw.1 orally deposed that, since 12 years he knew the",audio_27_42.mp3 +"complainant and 10 years back he borrowed sum of rs.15,000/- from the complainant, at that time, the complainant took one on demand promissory note and",audio_27_43.mp3 +"singed blank cheque, 2 - 3 months he paid the interest on the said money, later not paid the interest, but after one year, he",audio_27_44.mp3 +"clear the said loan including the interest. Thereafter, the dw.1 asked the pw.1 to return the on demand pronote and blank signed cheque, at that",audio_27_45.mp3 +"time the pw.1 told him that, it was kept in his house he was forgotten where he kept and would return after trace out and",audio_27_46.mp3 +"on the said period, the pw.1 got executed one letter though the school student stating the on demand pronote and blank signed cheque are with",audio_27_47.mp3 +"him and affixed his signature, the same got marked as ex.d3 and ex.d3(a). 14. On going through the rival contentions of the parties, as per",audio_27_48.mp3 +"S. 118 and 139 of NI Act , the statutory initial presumption is to be drawn in favour of the complainant regarding issuance of ex.p1-cheque.",audio_27_49.mp3 +"Since, the amount covered under the ex.p1-cheque is legally recoverable debt, for payment of the same, the accused got issued the ex.p1-cheque in favour of",audio_27_50.mp3 +him subject to prove the contrary. Unless prove the contrary is very much necessary. It is the specific defence of the accused has stated above,audio_27_51.mp3 +"only alleged to be borrowed sum of rs.15,000/-, at that time the complainant got obtained the on demand pronote and singed blank cheque, the same",audio_27_52.mp3 +"came to be misused by filing the false Cas. for gain illegal money. No doubt, the accused choosen to produce the ex.d1 to d3 documents",audio_27_53.mp3 +"to show that, the pw.1 is in the habit of filing the cheque bounce cases against some other persons, to prove the same, got produced",audio_27_54.mp3 +"ex.d1 and d2. In order to prove his defence regarding he is borrowal of rs.15,000/- and issuance of on demand pronote and signedp.subramani vs. sathyanarayana.t.n",audio_27_55.mp3 +"on 2 may, 2018",audio_27_56.mp3 +"15. On going through the materials available on record has re- produced above, the complainant got issued the legal notice to accused at ex.p5 as",audio_27_57.mp3 +"per ex.p7 postal acknowledgment some one has received the said notice. During the course of cross- examination of dw.1, he deposed that, he does not",audio_27_58.mp3 +"know the complainant has issued the legal notice to him, but deposed that, he is residing in the address mentioned at ex.p5 legal notice. The",audio_27_59.mp3 +"address made mentioned in the legal notice, the address of the accused made mentioned in the cause title of the complaint is one and the",audio_27_60.mp3 +"same. So also, the postal acknowledgment at ex.p7 also discloses the address of the accused, the dw.1 admitted that it is his address. On comparative",audio_27_61.mp3 +"perusal of the signature found in ex.p7 alleged to be served on the address of the accused, with the signature of the accused has found",audio_27_62.mp3 +"in ex.p1-cheque, on demand promissory note at exs.3 and p4 are the signatures of the accused found in the present proceedings appears to be different",audio_27_63.mp3 +"and the same is mismatching. Therefore, it is complainant has to demonstrate that, to whom the said notice was served on behalf of the accused",audio_27_64.mp3 +"in his address. In that regard to show that, the person who received the ex.p5 - legal notice as per ex.p7 is the family member",audio_27_65.mp3 +"of the accused as single suggestion is not made from the complainant. The signature found at ex.p7 prima facie discloses to be bare eyes that,",audio_27_66.mp3 +"it is not served on the accused. In order to show that, the said legal notice was served on any one of the family members",audio_27_67.mp3 +"nothing has whispered or suggested in the evidence of pw.1, therefore, the legal notice at ex.p5 cannot be considered as it is deemed served or",audio_27_68.mp3 +"served on the accused. 16. In view of non service of legal notice at ex.p5 directly to the complainant, definitely it was not open to",audio_27_69.mp3 +"the accused to gave any reply to the notice issued by the complainant. Therefore, except the accused from issuance of reply to the said notice",audio_27_70.mp3 +"does not require. However, the accused got appeared before this court while recording plea as well 313 statement coupled with cross- examination of pw.1 or",audio_27_71.mp3 +"examination of himself, he clearly denied the allegations made against him and put forth his new theory stated above. In order to prove that, he",audio_27_72.mp3 +"borrowed only rs.15,000/- from the complainant, not rs.7,50,000/-, at that time of borrowing of loan of rs.15,000/- the pw.1 got secured the on demand pronote",audio_27_73.mp3 +"and singed blank cheque from him. To prove the said defence, he choosen to produce ex.d3 letter. It is worthy to re-produce it contents, which",audio_27_74.mp3 +"runs thus: ""€.□‚ƒ„…†‚ƒt‡ dz‚ ˆ‰ˆ‚ƒ n.jˆš.□‚v‚‹ˆ‰g‰ai‚ƒuš g‚†‚juœ p‚□‚žz‚□□g‚ƒ†‰v 15,000/- □‰‘g‚ g‚’u‚“‚ˆ‚ƒ” pœ’nžzœ•–ˆœ. Cz‚pœ— e‰‘’ˆ‚ƒ pœ’nžz‰•gœ. Cz‚pœ— e‰‘ƒ–ˆ‚ƒ kˆœaz‚gœ ˜œzšrj™sšš ›‰‹aqˆ‚ s‰□ eg‚ƒ†‚ ˜‚“œai‚ƒ zœp‚—ˆ‚ƒ” vœuœz‚ƒpœ’arzœ•–ˆœ.",audio_27_75.mp3 +"Cz‚g‚ □‚asœ‹009391, p‰†œ–j ›‚s†‚ˆ‚, ›œau‚“‚’g‚ƒ œ‰sœ ˜‰u‚’ s‰□ eg‚ƒ†‚ ™‚…ˆœ’–lƒ ˆ‚ˆ‚” „□ eg‚ƒv‚žzœ. ™‚…ˆœ’–lƒ †‚ƒv‚ƒž zœpš ˆ‚†‚ƒÿ †‚ƒˆœai‚ƒ□□ j œ’□ elƒž †‚ƒgœv‚ƒ ˜œ’–vzœ•–ˆœ. Dz‚•jaz‚ n.jˆš.□‚v‚‹ˆ‰g‰ai‚ƒuš",audio_27_76.mp3 +"g‚†‚g‚ƒ 15,000/- g‚’u‚“‚ˆ‚ƒ” c□‚¡ƒ †‚ƒv‚ƒž „r¢ □œ–j pœ’nžz‰•gœ. E‰‘’ˆ‚ƒ pœ’nžg‚ƒ†‚ ™‚…ˆœ’–lƒ †‚ƒv‚ƒž zœpš šq—z‚ ˆ‚av‚g‚ pœ’q‚ƒvœž–ˆœ. †‚ƒv‚ƒž c†‚juœ ˆ‚ˆ‚” †‚ƒv‚ƒž ˆ‚ˆ‚” †‚ƒp‚—□az‚ ai‚i‰†‚£zœ– j–wai‚ƒ p‰ˆ‚’ˆ‚ƒ",audio_27_77.mp3 +"™‚g‚†‰v p‚…†‚ƒ†‚ˆ‚ƒ” pœ¤uœ’“‚ƒ¥†‚£¦¡□. Ez‚jaz‰v ˆ‚ˆ‚uœ †‚ƒv‚ƒž n.jˆš.□‚v‚‹ˆ‰g‰ai‚ƒuš g‚†‚juœ ˜‚tp‰šˆ‚□□ ai‚i‰†‚£zœ– j–wai‚ƒ □‚a„az‚s eg‚ƒ†‚£¦¡□.""p.subramani vs. sathyanarayana.t.n on 2 may, 2018",audio_27_78.mp3 +"In his evidence definitely, no confidence is focus on the ex.d3, but during the course of cross- examination of pw.1, he specifically suggested that: ""dgœ’–€",audio_27_79.mp3 +"ˆ‚ˆ‚” ˜‚wžg‚ g‚’.15,000/- □‰¡ ™‚qœz‚ƒpœ’arz‚•g‚ƒ jaz‚gœ □‚jai‚ƒ¡□. □‚z‚j □‰¡†‚ˆ‚ƒ” ™‚qœai‚ƒƒ†‰u‚ dgœ’–€§ƒaz‚ ¨€-1 □‚© †‚i‰rz‚ s‰□ zœpš †‚ƒv‚ƒž □‚© †‚i‰rz‚ s‰□ ¨€-3 †‚ƒv‚ƒž 4 z‰r œu‚“‚ˆ‚ƒ”",audio_27_80.mp3 +"™‚qœz‚ƒpœ’arzœ• jaz‚gœ □‚jai‚ƒ¡□. Dgœ’–€ ˆ‚ˆ‚uœ g‚’.15,000/- ˜‚t†‚ˆ‚ƒ” †‰™‚□š ¨–rg‚ƒv‰žgœaz‚gœ □‚jai‚ƒ¡□. Dgœ’–€ ˆ‚ˆ‚uœ g‚’.15,000/- ˜‚t†‚ˆ‚ƒ” †‰™‚□š pœ’m‰žu‚ ˆ‰ˆ‚ƒ dgœ’–€uœ maz‚ƒ ™‚v‚…†‚ˆ‚ƒ” „gœz‚ƒpœ’lƒž □‚z‚j ™‚v‚…pœ— □‚© †‚i‰rg‚ƒvœž–ˆœaz‚gœ",audio_27_81.mp3 +□‚jai‚ƒ¡□. □‚z‚j ™‚v‚…z‚□□ □‚© †‚i‰rz‚ s‰□ zœpš ˆ‚a.9391 †‚ƒv‚ƒž s‰□ ™œª…ˆœ’–mš ˜‰u‚’ g‚š–¦u‚“‚ˆ‚ƒ” j œ’□– †‚ƒgœv‚ƒ ˜œ’–vzœ•–ˆœ šq—z‚ ˆ‚av‚g‚ pœ’q‚ƒvœž–ˆœaz‚ƒ ˜œ–□zœ•–ˆœaz‚gœ □‚jai‚ƒ¡□. ˆ‚ˆ‚” □‚©ai‚ƒˆ‚ƒ” ˆ‚ˆ‚uœ,audio_27_82.mp3 +"u‚ƒg‚ƒw□‚¡ƒ du‚ƒ†‚£¦¡□ czœ– j–w dgœ’–€ai‚ƒ □‚©ai‚ƒˆ‚’” ˆ‚ˆ‚uœ u‚ƒg‚ƒw□‚¡ƒ du‚ƒ†‚£¦¡□. □‚©ai‚ƒˆ‚ƒ” ˆ‰ˆ‚ƒ ›œ–gœai‚ƒ†‚g‚ †‚ƒ’¡p‚ u‚ƒg‚ƒw□‚ƒvœž–ˆœ."" 18. From the meticulous reading of the testimony of pw.1, he",audio_27_83.mp3 +"denied the suggestion of borrowing loan of rs.15,000/- and issuance of ex.p1-singed blank cheque and on demand pronote at ex.p3 and p4. In respect of",audio_27_84.mp3 +"receiving the said documents and clear the said loan of rs.15,000/-, the contents of ex.d3 was suggested to the pw.1, but he denied the said",audio_27_85.mp3 +"contents and stating that, he is not able to identify his signature or the signature of the accused and identify it through some other person.",audio_27_86.mp3 +"In view of he denial of the said document, inevitable the accused produced at ex.d3. On meticulous reading of the said ex.d3, it discloses the",audio_27_87.mp3 +"signature of the complainant and accused. The said document does not bare the date, but clearly discloses borrowing loan of rs.15,000/- and handed over the",audio_27_88.mp3 +"on demand pronote and signed blank cheque bearing no.009391, which is non other than the exs.p1, p3 and p4. The dw.1 has contended that, the",audio_27_89.mp3 +said letter was executed by dw.1 and it is relevant to re-produce his evidence in order to better understanding of the same and the same,audio_27_90.mp3 +"is runs thus: ""¨r-3 z‰r œai‚ƒˆ‚ƒ” €g‰‹¦ ai‚i‰†‚ ¦ˆ‰ap‚ „gœz‚ƒpœ’nžz‰•gœaz‚ƒ ˜œ–“‚¡ƒ „g‚ƒ†‚£¦¡□. ¨r-3 z‰r œai‚ƒˆ‚ƒ” „gœz‚ƒpœ’lƒž 10 †‚□‚«u‚“‰vg‚ƒv‚žzœ. □‚z‚j z‰r œai‚ƒˆ‚ƒ” œ‰ œai‚ƒ□□ €g‰‹¦ c†‚juœ",audio_27_91.mp3 +ˆ‚a¬pœ ez‚• m„- ‘z‰‹y«ai‚ƒ pœ¤§ƒaz‚ „gœšpœ’nžg‚ƒv‰žgœ. □‚z‚j ‘z‰‹y«ai‚ƒ ˜œ□‚g‚ƒ uœ’wž¡□. □‰q®ai‚i‰v €g‰‹¦ai‚ƒ ™‚g‚†‰v m„-g‚ƒ □‚© ˜‰qg‚ƒv‰žgœ. □‰q® †‚ƒƒaz‚ƒ†‚jz‚ƒ œ‰ œai‚ƒ ˜‚ƒq‚ƒu‚ □‚© ˜‰qg‚ƒv‰žgœaz‚ƒ ˆ‚ƒr¦g‚ƒv‰žgœ. □‚z‚j,audio_27_92.mp3 +œ‰ œ ¯…–g‰†‚ƒ™‚£g‚ ™œª□–□š o‰uœai‚ƒ ©a›s‰u‚z‚□□zœ. €g‰‹¦ pœ¡□‚ †‚i‰q‚ƒwžz‚• œ‰ œ □‚p‰«j ©jai‚ƒ ™‰…x‚‘ƒp‚ ›‰¡qai‚ƒ œ‰ œ jaz‚gœ ˆ‚ˆ‚uœ uœ’wž¡□. D œ‰ œai‚ƒ□□ ˜‚ƒq‚ƒvai‚ƒg‚ƒ †‚i‰v‚…,audio_27_93.mp3 +ez‚•gœaz‚gœ ˆ‚ˆ‚uœ uœ’wž¡□. ˆ‰ˆ‚ƒ ˜œ–□z‚avœ □‚p‰«j œ‰ œuœ ˜œ’–v¡□ †‚ƒv‚ƒž ¨r-3 z‰r œai‚ƒˆ‚ƒ” €g‰‹¦ „gœz‚ƒpœ’nž¡□ jaz‚gœ □‚jai‚ƒ¡□. ¨r-3(j) □‚© €g‰‹¦ai‚ƒ □‚© c¡□ jaz‚gœ □‚jai‚ƒ¡□. ¨r-3,audio_27_94.mp3 +"z‰r œai‚ƒˆ‚ƒ” □‚¤°ž †‚i‰r □‚ƒ“‚ƒ¥ □‰q® ˆ‚ƒrai‚ƒƒwžzœ•–ˆœaz‚gœ □‚jai‚ƒ¡□."" 19. It is equally important to re-produce the relevant portion of cross-examination of pw.1, which runs thus:p.subramani",audio_27_95.mp3 +"vs. sathyanarayana.t.n on 2 may, 2018",audio_27_96.mp3 +"†‚i‰q‚ƒvœž–ˆœ. Ez‚ƒ†‚gœuœ ai‚i‰g‚’ ˆ‚ˆ‚” □‚©ai‚ƒˆ‚ƒ” mv‰žai‚ƒ™‚ª†‚«p‚†‰v ™‚qœz‚ƒpœ’AR ¡□, z‰r œu‚“‚ƒ ˆ‚†‚ƒÿ □€ai‚ƒ□□ e¡□zœ– ez‚•gœ ˆ‚ˆ‚uœ ˆ‚a¬pœ eg‚ƒ†‚†‚g‚ †‚ƒ’¡p‚ n¦ w□z‚ƒpœ’“‚ƒ¥vœž–ˆœ. Eav□□šˆ‚□□ ˆ‰ˆ‚ƒ ˆœ’–mš± †‚i‰rpœ’“‚¥„˜‚ƒz‚ƒ.",audio_27_97.mp3 +"Dgœ’–€ai‚ƒˆ‚ƒ” ˜œ’g‚v‚ƒ™‚rš ˆ‰ˆ‚ƒ ›œ–gœ ai‚i‰ju‚’ □‰¡ ��–rg‚ƒ†‚£¦¡□. Dgœ’–€uœ ˜‚t pœ’lž „uœ² „g‚†‚t‡uœai‚ƒ□□ ˆœ’–mš± †‚i‰rpœ’arg‚ƒ†‚£¦¡□."" 20. On comparative reading of the ex.d3 - letter as well",audio_27_98.mp3 +"as evidence of pw.1 it made clear that, none has taken the signature of the pw.1 forcibly, therefore it is him to rebut the contents",audio_27_99.mp3 +"of ex.d3. As he not blind about forcibly or fraudulently obtained his signature on ex.d3 definitely, it show draw the presumption that, the complainant got",audio_27_100.mp3 +"executed the ex.d3. 21. On going through the said testimony of pw.1, he deposed that, it does not remember when the said document at ex.d3",audio_27_101.mp3 +"was executed by the complainant, but it was executed 10 years back and the same was written by the school student with him, the pw.1",audio_27_102.mp3 +has confidence and the dw.1 does not know the name of the student and to prove the said incident one person was signed to the,audio_27_103.mp3 +"said document. The said school was situated behind the srirampura police station and he suggested that, the pw.1 was working in the girls primary school",audio_27_104.mp3 +"not boys school and also denied the execution of ex.d3 along with its signature. In order to show that, the pw.1 was working in the",audio_27_105.mp3 +"girls school as against the contents written by the boy, even the school particulars or any other documents in that regard is not been produced",audio_27_106.mp3 +"by the complainant to rebut the genuineness of the ex.d3. One thing made out that, the pw.1 is a blind person, he under the assistance",audio_27_107.mp3 +of someone else is very much clear. On comparative reading of the signature at ex.d3-lettr coupled with the signature of the complainant in the present,audio_27_108.mp3 +"Cas. as well as the Pvt. complaint filed by him against the purushotham.d and g.sunil kumar as per exs.d1 and d2, all the signatures of",audio_27_109.mp3 +"the pw.1 are tallies with each other, therefore, it is the pw.1 ahs to produce the corroborative evidence to rebut the said document is not",audio_27_110.mp3 +"been executed by him. The ex.d3 it made clear that, only rs.15,000/- was borrowed by the accused from the complainant and as security the pw.1",audio_27_111.mp3 +"took the on demand pronote and signed blank cheque, which are produced in this Cas. . On meticulous reading of the exs.p1, p3 and p4 it",audio_27_112.mp3 +"also discloses the fact that, the signatures in the said documents belongs to the accused is undisputed and the same were made in blue ink",audio_27_113.mp3 +"ball pen and the other contends of the said documents are written in different hand writing and ink. If at all, the accused himself has",audio_27_114.mp3 +"borrowed the loan of rs.7,50,000/- definitely, he could have issued the said document in his hand writing. But, the documents at exs.p1, p3 and p4",audio_27_115.mp3 +"does not bare the hand writing of the accused except the signatures. If, the accused borrowed the loan of rs.7,50,000/- from the complainant, it is",audio_27_116.mp3 +"him to expected to disclose when the accused made the request. If, the accused borrowed the loan of rs.7,50,000/- from the complainant, it is him",audio_27_117.mp3 +"to expected to disclose when the accused made the request, on which source he accumulated the money and on whose presence he being a blind",audio_27_118.mp3 +"handed over the said huge amount of rs.7,50,000/- to the accused is not been explained in his legal notice, complaint as well as Aff. . If",audio_27_119.mp3 +"at all, the accused is borrowed money from the complainant, can the complainant accepted to receive the cheque for the said amount without expecting any",audio_27_120.mp3 +"special rewards like interest etc., is also not been disclosed. From the ex.d3, it made clear that, thep.subramani vs. sathyanarayana.t.n on 2 may, 2018",audio_27_121.mp3 +"Respect of borrowing of rs.15,000/- about 10 years back the complainant got obtained blank on demand pronote and blank signed cheque which is subject matter",audio_27_122.mp3 +"of this complaint, inspite of he repay the said money without returning the same to the accused filed the present Cas. , and there is some",audio_27_123.mp3 +"force in the defence of the accused by proving such defence, it is a reverse burden casted on the complainant to prove his financial capacity",audio_27_124.mp3 +"and passing of consideration to him to the accused, and issuance of ex.p1-cheque for its repayment as to be demonstrate by the complainant beyond reasonable",audio_27_125.mp3 +"doubt. It is relevant to cite the decision reported air 2007 noc 2612 a.p. (g.veeresham v/s. Shivashankar and Anr. ). Wherein, the Hon'ble court has held",audio_27_126.mp3 +"as under: ""NI Act (26 of 1881). S. 138 dishonour of cheque - presumptions available to complainant under S. 118 and S. 139 of",audio_27_127.mp3 +"act - rebuttal of cheque in question was allegedly issued by accused to discharge hand loan taken from complainant. However, no material placed on record",audio_27_128.mp3 +"by complainant to prove alleged lending of hand loan said fact is sufficient to infer that, accused is liable to rebut presumptions available in favour",audio_27_129.mp3 +"of complainant under Ss. 118 and 139 of act, order acquitting accused for offence under S. 138 proper"". It is relevant to cite Anr. decision",audio_27_130.mp3 +"reported in iv (2009) bc 147 (h.r.nagarathna v/s. Jayashree prasad). The Hon'ble HC of karnataka observed that: ""(i) NI Act , 1181 - Ss. ",audio_27_131.mp3 +"138, 139 - dishonour of cheque - legally enforceable debt - presumption - no offence under S. 138 of act made out against accused -",audio_27_132.mp3 +existence of legally enforceable debt not proved beyond reasonable doubt - no reason to interfere with impugned judgment and order of acquittal. (ii) Crl. trail,audio_27_133.mp3 +"- proof of Cas. beyond reasonable doubt - accused in Crl. Cas. need not prove his defence beyond reasonable doubt, but complainant has to prove",audio_27_134.mp3 +"his Cas. beyond reasonable doubt"". It is relevant to cite Anr. decision reported in 2008 (7) scc 655: 2008 (8) scr 1210 (mallavarupu kasivisweswara rao",audio_27_135.mp3 +"v/s. Thadikonda ramulu firm). Wherein, it was pleased to held that: ""by virtue of Cl. (a) of S. 118 court is obliged to presume that,",audio_27_136.mp3 +the promissory note was made for consideration until the contrary is proved. Initial burden lies on the defendant to prove to non existence of consideration,audio_27_137.mp3 +"which would lead the court to believe the non existence of consideration either by direct evidence or by preponderance of probabilities showing that, the existence",audio_27_138.mp3 +"of consideration was improbable, doubtful or illegal"".p.subramani vs. sathyanarayana.t.n on 2 may, 2018",audio_27_139.mp3 +"On hand, therefore it is reverse burden is casted upon the complainant to prove the very transaction beyond the reasonable doubt. 23. Since, the amount",audio_27_140.mp3 +"involved in the present Cas. is of rs.7,50,000/-. Therefore, it is the complainant has to prove his financial capacity with regard to income and passing",audio_27_141.mp3 +"of consideration. It is just and proper to cite the decisions reported in (2015) 1 scc 99 (k.subramani v/s. K.damodara naidu). Wherein, it was pleased",audio_27_142.mp3 +"to held by the Hon'ble apex court that: ""debt, financial and monetary laws - NI Act , 1881 - ss.138, 118 and 139 - dishonour",audio_27_143.mp3 +of cheque - legally recoverable debt not proved as complainant could not prove source of income from which alleged loan was made to appellant-accused -,audio_27_144.mp3 +"presumption in favour of holder of cheque, hence, held, stood rebutted - acquittal restored"". It is well worthy to cite the Anr. decision reported in",audio_27_145.mp3 +"air 2011 (noc) 75 (kar) (amzad pashav/s. H.n.lakshmana). Wherein, it was pleased to held by the Hon'ble apex court that: (b) NI Act (26",audio_27_146.mp3 +of 1881). S. 138 - dishonour of cheque - accused alleged to have taken loan from complainant - complainant has not placed any evidence to,audio_27_147.mp3 +"show that he had financial capacity to lend substantial amount of rs.4,50,000/- - admittedly no document evidencing the loan transaction has come into existence -",audio_27_148.mp3 +"Cas. of complainant that he had lent rs.4,50,000/- to the respondent is highly impossible and not acceptable - none of witnesses in presence of whom",audio_27_149.mp3 +"loan amount was paid by complainant examined by complaint - adverse inference can be drawn against complainant - accused liable to be acquitted"". It is",audio_27_150.mp3 +"well worthy to cite the Anr. decision reported in Crl. appeal no.2402 of 2014, between k.subramani v/s k.damodara naidu, the Hon'ble apex court held that:",audio_27_151.mp3 +"""the Hon'ble apex court confirmed the judgment of trial court acquitting the accused on the ground of capacity to pay the amount of cheque. In",audio_27_152.mp3 +the above said ruling the trial court acquitted the accused on the ground that the complainant had no source of income to lend sum of,audio_27_153.mp3 +"rs.14,00,000/-. In the appeal the 1st appellate court set aside the order and remanded the matter to the trial court to give an opportunity to",audio_27_154.mp3 +complainant to prove the same. The accused went in appeal before the Hon'ble apex court and the Hon'ble apex court has set aside the order,audio_27_155.mp3 +"of the 1st appellate court and upheld the acquittal order passed by the trial court"". It is well worthy to cite the Anr. decision reported",audio_27_156.mp3 +"in air 2008 SC 278 between john k john v/s. Tom verghees, the Hon'ble apex court it is held that:p.subramani vs. sathyanarayana.t.n on 2",audio_27_157.mp3 +"may, 2018",audio_27_158.mp3 +And burden is on the complainant to show that he had paid amount shown in the cheque. Whenever there is huge amount shown in the,audio_27_159.mp3 +"cheque, though the initial burden is on the accused, it is equally necessary to know how the complainant advanced such a huge amount"". 24. On",audio_27_160.mp3 +"going through the above said dictums, it made clear that, when the financial capacity of the complainant is questioned, it is the complainant has to",audio_27_161.mp3 +establish his financial capacity. In that background it is just and proper to appreciate the materials available on record. 25. During the course of cross-examination,audio_27_162.mp3 +"of pw.1, he deposed that, he is an IT assessee, and regarding the alleged lending loan of rs.7,50,000/- is not disclosed in his income",audio_27_163.mp3 +"tax returns. 26. During the cross-examination of pw.1, he deposed that: ""dƒ œ¤ 2015g‚ 4ˆœ– †‰g‚z‚□□ ˆ‚ˆ‚” ˜‚wžg‚ g‚’.7,50,000/- ˜‚t ev‚ƒž jaz‚ƒ vœ’–j□‚¡ƒ z‰r œai‚ƒˆ‚ƒ”",audio_27_164.mp3 +"˜‰dg‚ƒ †‚i‰r¡□. ˆ‚ˆ‚” dz‰ai‚ƒ vœjuœ †‚g‚¦ai‚ƒ□□ g‚’.7,50,000/- ˜‚t ˆ‚ˆ‚” ˜‚wžg‚ ez‚ƒ•z‚ˆ‚ƒ” vœ’–jšg‚ƒ†‚£¦¡□. 2015g‚ dƒ œ¤ 4ˆœ– †‰g‚z‚ ©azœ cx‚†‚ †‚ƒƒazœ ˆ‰ˆ‚ƒ ai‚i‰jaz‚¡’ ˜‚t ™‚qœ¦g‚ƒ†‚£¦¡□ †‚ƒv‚ƒž",audio_27_165.mp3 +"ai‚i‰ju‚’ ˜‚t pœ’nžg‚ƒ†‚£¦¡□."" ""ˆ‚ˆ‚uœ ™‚£g‚ƒ□œ’–v‚ž†‚iš.r jˆ‚ƒ”†‚g‚ƒ uœ’v‚ƒž. □‚z‚j g‚†‚g‚ ‘g‚ƒz‚³ ezœ– ˆ‰‹ai‚i‰¡ai‚ƒz‚□□ šš ˆ‚a.10923/2016ˆ‚ƒ” z‰r□šzœ•–ˆœaz‚gœ □‚j. □‚z‚j ™‚…p‚g‚tz‚ z‚’g‚ƒ, ™‚…†‚i‰t ™‚ª†‚«p‚ ˜œ–□ai‚ƒ z‚´rµ–p‚´v‚ ˆ‚p‚¡ˆ‚ƒ” ˜‰dg‚ƒ",audio_27_166.mp3 +"†‚i‰rz‚ƒ• ¨r-1 jaz‚ƒ u‚ƒg‚ƒw□‚ ‰§ƒv‚ƒ. □‚ƒ¨ š p‚ƒ†‚i‰gš jˆ‚ƒ”†‚g‚ ‘g‚ƒz‚³ šš ˆ‚a.7014/2016ˆ‚ƒ” z‰r□šzœ•–ˆœaz‚gœ □‚j. □‚z‚j ™‚…p‚g‚tz‚ z‚’g‚ƒ, ™‚…†‚i‰t ™‚ª†‚«p‚ ˜œ–□ai‚ƒ z‚´rµ–p‚´v‚ ˆ‚p‚¡ˆ‚ƒ” ˜‰dg‚ƒ †‚i‰rz‚ƒ• ¨r-2",audio_27_167.mp3 +"jaz‚ƒ u‚ƒg‚ƒw□‚ ‰§ƒv‚ƒ. ™‚£g‚ƒ□œ’–v‚ž†‚išuœ g‚’.1,50,000/- †‚ƒv‚ƒž □‚ƒ¨ š p‚ƒ†‚i‰gšuœ g‚’.5,50,000/- ¨–rg‚ƒvœž–ˆœ."" 27. On going through the same, he admitted that, to show that on 4th",audio_27_168.mp3 +"week of july, 2015 he had rs.7,50,000/-, he has not choosen to produce any document, the same not reflected in his IT returns. Moreover,",audio_27_169.mp3 +"either in the 4th week of july, 2015, prior or later he not borrowed any money or not given to any one. From which it",audio_27_170.mp3 +"clear that, earlier to the said event or later the pw.1 as deposed not lent any loan to any one. But in the later cross-",audio_27_171.mp3 +"examination he deposed that, he filed the cheque bounce cases in c.c.no.10923/2016 and c.c.no.7014/2016 as per exs.d1 and d2 against one purushotham.d and g.sunil kumar",audio_27_172.mp3 +"for sum of rs.1,50,000/- and rs.5,50,000/- respectively. On going through the exs.d1 and d2, it also clear that, it was a specifically allegation made by",audio_27_173.mp3 +"the complainant, as such though he specifically deposed as re-produced above that, either earlier to 4th week of july, 2015 or later, he not lend",audio_27_174.mp3 +"any money to anyone. On going through the ex.d1, it made clear that, he alleged to be paid sum of rs.2 lakhs in the 3rd",audio_27_175.mp3 +"week of august, 2015 to one purushotham.d, and sum of rs.5 lakhs in the 3rd week of july, 2015 to one g.sunil kumar. Thep.subramani vs. ",audio_27_176.mp3 +"sathyanarayana.t.n on 2 may, 2018",audio_27_177.mp3 +"Into consideration of the present complainant amount of rs.7,50,000/- as well as exs.d1 and d2 it made clear that, rs.14,50,000/- was alleged to be lent",audio_27_178.mp3 +"to pw.1 and Ors. in the month of july and august, 2015. The pw.1 being a school teacher, getting the salary of rs.60,000/- per month",audio_27_179.mp3 +"as per ex.p8 - pay slip, how it possible to him to arrange the money of rs.14,50,000/- within a span of two months is created",audio_27_180.mp3 +"doubt in the mind of court. To show that, he possessed the said huge money, it is the complainant has to produce necessary documents. Whether,",audio_27_181.mp3 +"he accumulated the said money from his personal earnings or from his property as per ex.p7, no documents shown relating to the mobilization of funds,",audio_27_182.mp3 +"therefore, the accused mobilize the funds of rs.7,50,000/- as against payment made to purushotham.d and g.sunil kumar as per exs.d1 and d2 definitely, he shall",audio_27_183.mp3 +"produce necessary document, but not choosen to produce any documents, thereby, he fails to prove his financial capacity. Therefore, the adverse inference has to be",audio_27_184.mp3 +"drawn against him. Apart from that, he also deposed in his cross-examination that, to; one suresh he lent sum of rs.3,50,000/- and filed the Cas. .",audio_27_185.mp3 +"From which, it discloses that, the complainant is doing the money lending business without obtaining necessary licence. The blindness of the pw.1 is not a",audio_27_186.mp3 +"ground to accept his financial capacity, but when he alleged to be pay the huge loan definitely, it is him to demonstrate, but he fails",audio_27_187.mp3 +"todo so. The pw.1 in his cross-examination has deposed that, he is not able to say, the ex.p1 on whose hand writing and ex.p3 and",audio_27_188.mp3 +"p4 were written by whom, therefore, it is him to examine the witnesses cited in the ex.p3 or the person who present, who deal with",audio_27_189.mp3 +the matter between the complainant and accused on behalf of the complainant as he blind. But none of the witnesses were examined to prove the,audio_27_190.mp3 +"Cas. of the complainant. 28. On going through the materials available on record, in view of the accused challenged the financial capacity as well as",audio_27_191.mp3 +"borrowing of the huge loan, it is the complainant has to except produce the oral and documentary evidence and to prove his Cas. beyond reasonable",audio_27_192.mp3 +"doubt, but he fails to prove the same. However, no material placed on record by the complainant to prove the alleged lending of hand loan",audio_27_193.mp3 +"of rs.7,50,000/- and the said fact sufficient to infer that, the accused is liable to rebut the presumption, accordingly, by producing exs.d1 to d3 not",audio_27_194.mp3 +"only shaking financial capacity of the complainant, but also proved that, the exs.p1, p3 and p4 were taken by the complainant in respect of the",audio_27_195.mp3 +"borrowing loan of rs.15,000/-, not in respect of the alleged loan. The accused has proved his probable defence, by producing oral as well as documentary",audio_27_196.mp3 +"evidence and smashes the Cas. of the complainant, therefore he is entitled for acquittal. The complainant ha fails to prove his Cas. beyond the reasonable",audio_27_197.mp3 +"doubt, regarding the guilt of the accused for dishonour of the cheque as per S. 138 of NI Act . On overall appreciation of the",audio_27_198.mp3 +"material facts available on record, it discloses that, despite the accused harping on the very claim of the complainant, he fails to demonstrate his very",audio_27_199.mp3 +"Cas. . While appreciate the materials available on record, this court has humbly gone through the decision relied by both parties apart from the following decisions.",audio_27_200.mp3 +"Further in a decision reported in ilr 2008 kar 4629 (shiva murthy v/s. Amruthraj). Wherein, the Hon'ble court held that: ""on the date of the",audio_27_201.mp3 +"cheque, if no consideration was paid or if a loan was taken on a particular date and in discharge of the same the cheque was",audio_27_202.mp3 +"issued on the later date,p.subramani vs. sathyanarayana.t.n on 2 may, 2018",audio_27_203.mp3 +"Rebutted"". 29. The principles of law laid down in the above decisions also applicable to the facts of the Cas. . In the instant Cas. , as",audio_27_204.mp3 +"appreciated above, it clearly manifested that, without any obligation from the side of the accused, as well as without narrating proper grounds, as to how,",audio_27_205.mp3 +accused is liable to pay amount covered under the cheque alleged to be issued by the accused is also not demonstrated by the complainant satisfactorily.,audio_27_206.mp3 +"On the contrary, it can presume that, the said cheque was possessed by the complainant from the unexplainable source, and falsely projected the Cas. and",audio_27_207.mp3 +"failed to prove the same. Hence, there is no question of drawing presumption under S. 118(a) or 139 of the NI Act , even though",audio_27_208.mp3 +"the signature in ex.p1 is admitted by the accused. Just because, the cheque bares the signature of the accused, that, will not mandate the court",audio_27_209.mp3 +"to draw the presumption under S. 118 of NI Act . At this stage, this court relies upon the decision reported in ilr 2009 kar",audio_27_210.mp3 +"2331 (b.indramma v/s. Sri.eshwar). Wherein, the Hon'ble court held that: ""held, when the very factum of delivery of the cheque in question by the accused",audio_27_211.mp3 +"to the complainant and its receipt by complainant from the accused itself is seriously disputed by the accused, his admission in his evidence that, the",audio_27_212.mp3 +"cheque in question bares his signature would not be sufficient proof of the fact that, he delivered the said cheque to the complainant and the",audio_27_213.mp3 +"latter received if from the former"". 30. The principle of law laid down in the above decision is applicable to the facts of this Cas. .",audio_27_214.mp3 +"Merely because, the accused admits that, cheque bares his signature, that, does not mean that, the accused issued cheque in discharge of a legally payable",audio_27_215.mp3 +debt. In a decision reported in air 2006 SC 3366 (m.s.narayana menon alian mani v/s. State of kerala and Anr. ). The Hon'ble apex court,audio_27_216.mp3 +"held that: ""once the accused discharges the initial burden placed on him the burden of proof would revert back to the prosecution"". 31. In this",audio_27_217.mp3 +"Cas. on hand also, on the lack of the complaint failed to prove the alleged loan transaction, it can gather the probability that, he is",audio_27_218.mp3 +"not liable to pay ex.p1 cheque amount of rs.7,50,000/- and it is not legally recoverable debt. So, the burden is on the complainant to prove",audio_27_219.mp3 +"strictly with cogent and believable evidence that, the accused has borrowed the cheque amount and he is legally liable to pay the same. Just because,",audio_27_220.mp3 +"there is a presumption under S. 139 of NI Act , that, will not create any special right to the complainant so as to initiate",audio_27_221.mp3 +"a proceeding against the drawer of the cheque, who is not at all liable to pay the cheque amount. The accused has taken his defence",audio_27_222.mp3 +"at the earliest point of time, while record accusation and statement under S. 313 of Cr.P.C. by way of denial. The evidence",audio_27_223.mp3 +"placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheque for discharge of liability of rs.7,50,000/-. Hence, complainant has",audio_27_224.mp3 +"failed to prove the guilt of accused for the offencep.subramani vs. sathyanarayana.t.n on 2 may, 2018",audio_27_225.mp3 +"32. Basically, insertion of the penal provision under S. 138 of the NI Act , 1881, is to maintain a healthy business transaction between the",audio_27_226.mp3 +"people based on faith, belief and understanding. i.e. why; the drawer of a cheque should not be allowed to abuse the accommodation given to",audio_27_227.mp3 +"him by a creditor. At the same time, the payee or holder of a cheque cannot be permitted to use that, penal provision under law",audio_27_228.mp3 +"as a weapon for unlawful gain or to harass the debtor. To initiate a penal action under S. 138 of NI Act , against a",audio_27_229.mp3 +"drawer of cheque, there should not be any kind of lapse or lacuna on the part of the holder of a cheque. Because, the proceeding",audio_27_230.mp3 +"under S. 138 of NI Act is not for recovery of money, but to punish a dishonest and incredible debtor, who intentionally tries to",audio_27_231.mp3 +"escape from his liability. i.e. why; it is the duty of the complainant in a given Cas. under the NI Act , 1881, to",audio_27_232.mp3 +"place a stable and firm Cas. on his behalf before the court. When the Cas. of the complainant itself is shaky, unstable, untrustworthy and doubtful",audio_27_233.mp3 +"one, then in the option of this court, presumption that, is available under law will come to his help. In the Cas. on hand, the",audio_27_234.mp3 +"accused has taken several contentions before the court and made out grounds to show that, the Cas. of the complainant is highly improbable. 33. The",audio_27_235.mp3 +"sum and substances of principles laid down in the rulings referred above are that, once it is proved that, cheque pertaining to the account of",audio_27_236.mp3 +"the accused is dishonoured and the requirements envisaged under S. 138 of (a) to (c) of NI Act is complied, then it has to",audio_27_237.mp3 +"be presumed that, cheque in question was issued in discharge of legally recoverable debt. The presumption envisaged under S. 138 of NI Act is",audio_27_238.mp3 +"mandatory presumption and it has to be raised in every cheque bounce cases. Now, it is settled principles that, to rebut the presumption, accused has",audio_27_239.mp3 +"to set up a probable defence and he need not prove the defence beyond reasonable doubt. 34. Thus, on appreciation of evidence on record, i",audio_27_240.mp3 +"hold that, the complainant has failed to prove the Cas. by rebutting the presumption envisaged under S. 138 of NI Act . The complainant has",audio_27_241.mp3 +"failed to discharge the initial burden to prove his contention as alleged in the complaint. Hence, the complainant has not produced needed evidence to prove",audio_27_242.mp3 +"that, amount of rs.7,50,000/- legally recoverable debt. Therefore, since the complainant has failed to discharge the reverse burden, question of appreciating other things and weakness",audio_27_243.mp3 +of the accused is not a ground to accept the claim of the complainant in its entirety without the support of the substantial documentary evidence,audio_27_244.mp3 +pertaining to the said transaction. The complainant fails to prove its Cas. beyond all reasonable doubt. As discussed above the complainant has utterly failed to,audio_27_245.mp3 +"prove the guilt of the accused for the offence punishable under S. 138 of NI Act . Accordingly, i answered the point nos.1 and 2",audio_27_246.mp3 +"are negative. 35. Point no.3: in view of my findings on point nos.1 and 2, i proceed to pass the following: order acting under S. ",audio_27_247.mp3 +"255(1) of Cr.P.C. p.subramani vs. sathyanarayana.t.n on 2 may, 2018",audio_27_248.mp3 +"Instruments act. The bail bond and cash security/surety bond of the accused stands cancelled. (dictated to stenographer, transcribed and computerized by him, corrected and then",audio_27_249.mp3 +"pronounced by me in the open court on this the 2nd day of may - 2018) (shridhara.m) xxiii addl. Chief MM , bengaluru. Annexure list",audio_27_250.mp3 +of witnesses examined on behalf of complainant: pw-1 : p.subramani list of exhibits marked on behalf of complainant: ex.p1 : original cheque ex.p1(a) : signature,audio_27_251.mp3 +of accused ex.p2 : bank endorsement exs.p3 & p4 : consideration receipt & on demand pronote exs.p3(a) & p4(a) : signatures of accused ex.p5 :,audio_27_252.mp3 +office copy of legal notice ex.p6 : postal receipt ex.p7 : postal acknowledgment card ex.p8 : khatha extract ex.p9 : pay slip list of witnesses,audio_27_253.mp3 +examined on behalf of the defence: dw.1 : sathyanarayana list of exhibits marked on behalf of defence: ex.d1 : cc of complainant in c.c.no.10923/16 ex.d2,audio_27_254.mp3 +": cc of complainant in c.c.no.7014/16 ex.d3 : letter ex.d3(a) : signature of complainant xxiii addl. Chief MM , bengaluru. 02.05.2018. Comp - accd -",audio_27_255.mp3 +for judgment judgment pronounced in the open court vide separate order. ***** order acting under S. 255(1) of Cr.P.C. the accused is,audio_27_256.mp3 +"acquitted for the offence punishable under S. 138 of NI Act .p.subramani vs. sathyanarayana.t.n on 2 may, 2018",audio_27_257.mp3 +"Xxiii addl. Chief MM , bengaluru.p.subramani vs. sathyanarayana.t.n on 2 may, 2018",audio_27_258.mp3 +"Smt. Sova mukherjee vs. rajiv mehra on 21 june, 1996 equivalent citations: 1998(2)ald(cri)171, (1996)2callt339(HC ) judgment rabin bhattacharyya, j. 1. This Crl. revision is",audio_28_1.mp3 +"directed for quashing of the proceedings sprang up from the complaint Cas. No. 1468 of 1994 pending disposal before the learned MM , 11th court",audio_28_2.mp3 +"calcutta. 2. The facts, as much as, they are relevant for the purpose of the decision in Crl. revision are as follows:- 3. The respondent",audio_28_3.mp3 +"opposite parties sold indian made foreign liquor to the petitioner revisionists. 4. The revisionist No. 2, as constituted attorney of the revisionist, issued an account",audio_28_4.mp3 +"payee cheque, dated 6.5.94. For a sum of Rs. 30,000/- in discharge of partial liabilities, drawn on uco bank, sealdah. The same was, however, presented",audio_28_5.mp3 +"to the said bank for encashment by the respondent opposite parties. Unfortunately, the cheque was bounced off as it exceeded the arrangement revealed by the",audio_28_6.mp3 +memo dated 1.7.94. 5. The respondent opposite parties caused a notice to be served on the petitioner revisionists on 20.7.94 which went unheaded by the,audio_28_7.mp3 +"revisionists. The cheque, since bounced the respondent opposite parties was constrained to file the complaint before the MM for an offence alleged to have",audio_28_8.mp3 +"been committed by the revisionists under the negotiable instrument act, 1881. The process was issued against the revisionists directing them to appear before it on",audio_28_9.mp3 +"3.12.84. The revisionists have challenged the proceedings to be non-est for the non-Appl. of mind by the learned MM , who according to the revisionist,",audio_28_10.mp3 +"issued process quite contrary to law. The revisionists have also attacked the complaint to be barred by limitation and the cognizance, thus, taken by the",audio_28_11.mp3 +"learned court below, is not only legal, but also inconsistent with the statutory law, when this revision before this court for quashing. 6. Mr. Talukdar",audio_28_12.mp3 +has argued with much emphasis that the complaint is ipso facto illegal as the revisionists No. 1 bore no liability under the law. She could,audio_28_13.mp3 +"not be dealt with under the provisions of the n.i. Act. The cheque, since dishonoured, could not attribute to her any liability either vicarious of",audio_28_14.mp3 +otherwise. 7. The claim has been studiously refuted by the learned counsel for the respondent on the ground that the cheque when issued by a,audio_28_15.mp3 +"constituted attorney could not absolve the revisionist nos. 1 and 2 either from the liability. It becomes, in the state of materials, a collective legal",audio_28_16.mp3 +"liability which cannotsmt. Sova mukherjee vs. rajiv mehra on 21 june, 1996",audio_28_17.mp3 +"Revisionist No. 2, cannot relieve the revisionist No. 1 of legal liability as she was not the drawer of the cheque. This is absolutely a",audio_28_18.mp3 +feeble plea as the cheque was issued under the Auth. of the accused No. 1. A constituted attorney by his acts and deeds can bind,audio_28_19.mp3 +"the principle. It means, a person appointed by Anr. to do something for him. Therefore, a constituted attorney when duly appointed under a document authorising",audio_28_20.mp3 +"the person to whom it is given to act in all respects as the grantor of the power, in relation to the matter specified in",audio_28_21.mp3 +"the document. When the power is general, it applies to every thing in which the grantor in interested. But when it is special, it applies",audio_28_22.mp3 +"to specific matter, such as the power to sign cheques, to make transfers, to receive money, to present documents for registration etc. Thus, the cheque",audio_28_23.mp3 +"issued by the constituted attorney, the revisionist no,2 in partial discharge of the debt deemed to have been issued under the Auth. of the revisionist",audio_28_24.mp3 +"No. 1, who might be a lady. The revisionist cannot shrugg off the claim of demand of the respondent opposite parties under the pretence that",audio_28_25.mp3 +"the revisionist No. 1 owes no liability under the negotiable instrument act, when the cheque was issued to discharge the partial liability is patent. A",audio_28_26.mp3 +principle is always bound by the act of his or her attorney so long the attorney does not exceed his right. There is no scanty,audio_28_27.mp3 +material on record which could be attested with ability that the attorney acted behind his power. There is no slender material to prove prima facie,audio_28_28.mp3 +"that the constituted attorney participated in illegal execution. Thus, the cheque, since issued by the revisionist No. 2, cannot exonerate the revisionist No. 1 from",audio_28_29.mp3 +the offence complained of. She will only bear the fruit but not the burden for the act of his or her agent is an argument,audio_28_30.mp3 +"is founded. 8. Returning to examine the offence in question, prima fade, it is undisputed that a cheque when issued by a person under Auth. ",audio_28_31.mp3 +in respect of an account maintained by the principle with the bank for payment of any amount of money to Anr. person out of the,audio_28_32.mp3 +said account for the discharge of debt in whole or in part or other liabilities is returned by bank with the endorsement that it exceeded,audio_28_33.mp3 +arrangement it amounts to dishonour within the meaning of S. 138 of the n.i. Act. On issuance of the notice by the payee or the,audio_28_34.mp3 +"holder in due course after dishonour to the drawer demanding payment within 15 days from the date of receipt of such notice, if he does",audio_28_35.mp3 +"not pay the same, the, statutory presumption of dishonest intention subject to any other liability stands satisfied. Once the cheque has been drawn and issued",audio_28_36.mp3 +"to the payee in discharge of debt and the payee has presented the cheque to the bank for encashment and the cheque, since dishonoured, could",audio_28_37.mp3 +attribute to any liability. It is an idle plea that the cheque issued by the constituted attorney will put a lid on the liability of,audio_28_38.mp3 +"the principle as in the instant Cas. . The apex court in electronics trade & technology development Corp. Ltd. , secunderabad vs. indian technologists & engineers electronics",audio_28_39.mp3 +"Pvt. Ltd. and ors., 1996 c cr lr 83 held the effect of a cheque being dishonoured after its presentation to the bank and the",audio_28_40.mp3 +"liabilities occurred therefrom. 9. In the instant Cas. , the statutory notice prima facie was served upon the revisionist on 20.7.94 demanding payment of the same",audio_28_41.mp3 +"within 15 days liabling them to an action in default of payment. The demand prima facie has not been obeyed, but disregarded. Therefore, the presentation",audio_28_42.mp3 +of the complaint for taking cognizance of the offence stricken with illegality is an argument few and far between. It is not only ludicrous but,audio_28_43.mp3 +"also preposterous as the law does not encompass such a sterile plea.smt. Sova mukherjee vs. rajiv mehra on 21 june, 1996",audio_28_44.mp3 +"Participated in illegal execution. Thus, i cannot accept the contention of mr. Talukdar and overrule it the contention made by mr. Roy for the respondent",audio_28_45.mp3 +"opposite party, therefore, bears considerable force which is sustained. 11. The quashing of proceeding is an extraordinary step which should be exercised by the high",audio_28_46.mp3 +"court sparingly, keeping in view, the guidelines laid down by the SC in a large No. of cases. In quashing the proceedings, there is",audio_28_47.mp3 +an insuperable obstacle on the HC in evaluating the genuineness and reliability when allegations are made in the FIR or the complaint.,audio_28_48.mp3 +"The position has been clarified by the apex court again in bhajanlal's Cas. that an FIR or complaint may be quashed, if the",audio_28_49.mp3 +allegations made therein are so absurd and inherently improbable that no prudent person can ever reach a just conclusion that there is sufficient ground for,audio_28_50.mp3 +proving against the accused. The prima facie materials disclosed constituted commission of a cognizable offence where the court would be slow for quashing the proceedings.,audio_28_51.mp3 +"12. In the result, the revision fails. In fine, the decision arrived at by me in the aforesaid revision shall govern the Crl. revision being",audio_28_52.mp3 +"Crl. revision n0.66 of 1995. Ad interim stay, if any, granted stands vacated in both the revisions.smt. Sova mukherjee vs. rajiv mehra on 21 june,",audio_28_53.mp3 +1996,audio_28_54.mp3 +"Balram verma S/O late sh. J. S. verma vs. state of up and anr. 2014 (1) jcc 26. It is on 29 may, 2014",audio_29_1.mp3 +1 in the court of sh. J. R. Aryan : district & sessions judge : north-east district : karkardooma courts : delhi : ca no.57/13,audio_29_2.mp3 +"unique Cas. id No. 02402r0289062013 balram verma s/o late sh. J. S. verma r/o d-157, mcd flat, usmanpur, shatri park, delhi. ...............appellant verus sarvesh chand",audio_29_3.mp3 +"sood s/o late sh. V. D. Sood r/o c-368, gokalpuri, delhi-94. .................respondent date of institution of Cas. : 09.09.2013 date of reserving the Cas. for",audio_29_4.mp3 +orders : 13.05.2014 date of passing of orders : 26.05.2014 ca no.54/13 unique Cas. id No. 02402r0289032013 balram verma s/o late sh. J. S. verma,audio_29_5.mp3 +"r/o d-157, mcd flat, usmanpur, shatri park, delhi. ...............appellant verus sarvesh chand sood s/o late sh. V. D. Sood r/o c-368, gokalpuri, delhi-94. .................respondent date",audio_29_6.mp3 +of institution of Cas. : 09.09.2013 date of reserving the Cas. for orders : 13.05.2014 date of passing of orders : 26.05.2014 ca no.53/13 unique,audio_29_7.mp3 +"Cas. id No. 02402r0289012013 balram verma s/o late sh. J. S. verma r/o d-157, mcd flat, usmanpur, shatri park, ca no.57/13, 54/13,53/13,55/13 & 56/13 page",audio_29_8.mp3 +1/18 2 delhi. ...............appellant verusbalram verma S/O late sh. J. S. verma vs. state of up and anr. 2014 (1) jcc 26. It is,audio_29_9.mp3 +"on 29 may, 2014",audio_29_10.mp3 +"R/o c-368, gokalpuri, delhi-94. .................respondent date of institution of Cas. : 09.09.2013 date of reserving the Cas. for orders : 13.05.2014 date of passing of",audio_29_11.mp3 +"orders : 26.05.2014 ca no.55/13 unique Cas. id No. 02402r0289042013 balram verma s/o late sh. J. S. verma r/o d-157, mcd flat, usmanpur, shatri park,",audio_29_12.mp3 +"delhi. ...............appellant verus sarvesh chand sood s/o late sh. V. D. Sood r/o c-368, gokalpuri, delhi-94. .................respondent date of institution of Cas. : 09.09.2013 date",audio_29_13.mp3 +of reserving the Cas. for orders : 13.05.2014 date of passing of orders : 26.05.2014 ca no.56/13 unique Cas. id No. 02402r0289052013 balram verma s/o,audio_29_14.mp3 +"late sh. J. S. verma r/o d-157, mcd flat, usmanpur, shatri park, delhi. ...............appellant verus sarvesh chand sood s/o late sh. V. D. Sood r/o",audio_29_15.mp3 +"c-368, gokalpuri, delhi-94. .................respondent date of institution of Cas. : 09.09.2013 ca no.57/13, 54/13,53/13,55/13 & 56/13 page 2/18 3 date of reserving the Cas. for",audio_29_16.mp3 +"orders : 13.05.2014 date of passing of orders : 26.05.2014 judgement 1. Accused-appellant balram verma convicted in five separate complaint cases cc no.206/07, cc no.127/08,",audio_29_17.mp3 +"cc no.188/08, cc no. 143/08 and cc no.154/09 for offence under S. 138 of the negotiable instrument act has challenged conviction in each Cas. by",audio_29_18.mp3 +filing five separate appeals. Allbalram verma S/O late sh. J. S. verma vs. state of up and anr. 2014 (1) jcc 26. It is,audio_29_19.mp3 +"on 29 may, 2014",audio_29_20.mp3 +"Common question of fact and law is found involved. Infact as per complainant's version in those five separate complaints, against a personal loan of Rs. ",audio_29_21.mp3 +"1,25,000/- given to accused-appellant somewhere in january, 2004 which accused had promised to repay within six months time, finally accused issued five cheques details of",audio_29_22.mp3 +which are given in para 5 of complaint in each Cas. and all those cheques bounced and proceedings were then initiated as per provisions of,audio_29_23.mp3 +"negotiable instrument act. These five cheques were (1) cheque No. 299946 dated 20.04.2007 for Rs. 19,000/- (2) cheque no.299948 dated 20.08.2007 for rs.25,000/- (3) cheque",audio_29_24.mp3 +"No. 299947 dated 20.12.2007 for rs.25,000/- (4) cheque No. 299949 dated 20.04.2008 for rs.25,000/- and finally (5) cheque No. 299950 dated 20.08.2008 for rs.25,000/-. All",audio_29_25.mp3 +"these five cheques were drawn on state bank of india, seemapuri, delhi on the saving accounts of the accused. All these cheques bounced from time",audio_29_26.mp3 +to time and statutory legal notice was issued in each Cas. and despite service of that legal notice which had been sent by registered post,audio_29_27.mp3 +as well under certificate of postage and deemed to have been received by the accused when payment of the bounced cheque was not made by,audio_29_28.mp3 +accused that complaint was filed. Trial in all five cases was taken up by the ld. Mm as a summons trial procedure and finally on,audio_29_29.mp3 +the conclusion of the trial accused has been held guilty by conviction judgement dated 22.07.2013 and then by further order dated 13.08.2013 accused was awarded,audio_29_30.mp3 +sentence of simple imprisonment for six months with a further direction to pay a certain amount as compensation to the complainant with default sentence of,audio_29_31.mp3 +four months was passed and accordingly all complaints ended with conviction and sentence against accused. As it appears from the judgement passed by the ld.,audio_29_32.mp3 +"Mm, a common contention raised in all five cases has been dealt with. Those common contentions in all five cases were if claim of the",audio_29_33.mp3 +complainant was to be found time barred on the date the cheque was issued. Second point was whether cheque had been given by accused to,audio_29_34.mp3 +the complainant under the pressure of police though there was no debt or liability existing against accused in favour of complainant and third point was,audio_29_35.mp3 +whether statutory legal notice had not been served upon accused. All these three points have been dealt with by the ld. Mm in all the,audio_29_36.mp3 +five cases by almost identical observations and reasoning in each conviction judgement and in these circumstances these five appeals are being decided by this common,audio_29_37.mp3 +"judgement. 2. Counsel sh. S. k. Verma, appeared for appellant and respondent- complainant appeared with Adv. sh. Vineet lakhani, who was provided by delhi legal",audio_29_38.mp3 +aid service Auth. . 3. The complainant's Cas. in the complaint was that accused was known to complainant since long time before. In the year 2003,audio_29_39.mp3 +"accused with his wife approached complainant for a friendly loan of Rs. 1,25,000/-, probably accused knew that complainant was going to retire from service on",audio_29_40.mp3 +"31.12.2003. Complainant considering a long time friendship with accused gave a loan of rs.1,25,000/- in january, 2004 to accused which was promised to be repaid",audio_29_41.mp3 +in six months time. After six months accused started avoiding complainant and started shifting his residence from one place to Anr. . It is further averred,audio_29_42.mp3 +"that a compromise in writing was executed between complainant and accused in the presence of witnesses wherein accused acknowledged the loan liability of rs.1,25,000/- and",audio_29_43.mp3 +issued five post dated cheques towards discharge of that liability. Each complaint then mentions individual cheque when presented for clearing through bank ofbalram verma son,audio_29_44.mp3 +"of late sh. J. S. verma vs. state of up and anr. 2014 (1) jcc 26. It is on 29 may, 2014",audio_29_45.mp3 +Complaint was filed within statutory period after complainant issued legal notice which was sent through registered post as well under certificate of postage and it,audio_29_46.mp3 +"was returned unclaimed. Accordingly, when payment of bounced cheque was not made by accused within 15 days of service of demand notice that complaint was",audio_29_47.mp3 +filed. 4. In each complaint complainant examined his evidence through an Aff. and complainant was then cross-examined and with that complainant closed his evidence in,audio_29_48.mp3 +"each Cas. . Accused when examined under S. 313 cr.p.c, he pleaded and explained that cheque in question was issued in police station under the police",audio_29_49.mp3 +"pressure. Accused admitted that cheque was drawn on his account and bank had returned it unpaid for the reason ""insufficiency of funds"". As regards service",audio_29_50.mp3 +"of demand notice accused pleaded that he had not received any such notice. Finally, accused pleaded a defence that there was some transaction between wife",audio_29_51.mp3 +of accused as well W/O complainant concerning a committee. W/O accused had made entire payment to complainant's wife. Police called accused in the,audio_29_52.mp3 +police station and accused then issued cheque under the pressure of the police. Accused denied any transaction with complainant and denied to have taken any,audio_29_53.mp3 +loan from the complainant. 5. Accused then examined himself on oath as dw1 and he further examined his wife smt. Meenakshi as dw2 and finally,audio_29_54.mp3 +he examined a witness from mcd where accused was employed and witness as per official record deposed that accused balram verma had been under suspension,audio_29_55.mp3 +vide order dated 17.10.2007 and was reinstated on 18.11.2008 and with that trial concluded. 6. Appellant's counsel referring to para-2 of complaint argued that a,audio_29_56.mp3 +"vague averment regarding friendly loan has been made. It is submitted that complaint mentions this loan amount as rs.1,25,000/- but then in the year 2005",audio_29_57.mp3 +complainant had lodged an FIR concerning an incident which involved S/O accused and in that FIR the loan amount was,audio_29_58.mp3 +"alleged and pleaded to be rs.1,40,000/-. Counsel further argued that complainant sarvesh chand sood when examined in that Crl. Cas. FIR no.547/05 ps",audio_29_59.mp3 +"gokalpuri, he admitted in cross-examination that loan of Rs. 1,40,000/- was given by him to smt. Meenakshi who is W/O accused and ld. Counsel",audio_29_60.mp3 +"referred to that statement ex.pw1/d5. Counsel submitted that such a contradictory stand of complainant regarding amount of friendly loan, the alleged friendly loan transaction should",audio_29_61.mp3 +be viewed and considered as suspicious and admittedly where cheques were received by complainant from accused in the police station then defence plea that cheques,audio_29_62.mp3 +were drawn under the pressure of police should be considered probable and consequently onus shifted upon complainant to prove the transaction of loan which complainant,audio_29_63.mp3 +"had failed to prove by any evidence. It is submitted that friendly loan transaction as per complaint was somewhere in january, 2004 but then a",audio_29_64.mp3 +"suggestion is given to defence witness smt. Meenakshi dw2 that loan transaction had taken place in january, 2003. Counsel submitted that if loan transaction took",audio_29_65.mp3 +"place in january, 2003 then complainant retiring in december, 2003 was not possessed of means to provide that big amount of friendly loan of Rs. ",audio_29_66.mp3 +"1,25,000/- and thus loan transaction cannot be held even probable and duly proved. It is contended that at every stage complainant asserted that that friendly",audio_29_67.mp3 +loan was given to the W/O accused. It is submitted that in the Crl. Cas. FIR no.547/05 complainant's averment was that he,audio_29_68.mp3 +had gone to the house of accused to demand his loan money from W/O accused. Counsel argued that when abalram verma S/O late,audio_29_69.mp3 +"sh. J. S. verma vs. state of up and anr. 2014 (1) jcc 26. It is on 29 may, 2014",audio_29_70.mp3 +Said to be towards discharge of debt or liability of accused towards complainant. Ld. Counsel submitted that it was a legal obligation of complainant to,audio_29_71.mp3 +prove the existence of debt or a liability and on that point counsel relied upon a judgement given by allahabad HC in a Cas. ,audio_29_72.mp3 +padam gupta vs. state of up and anr. 2014 (1) jcc 26. It is contended as held in the said judgement that S. 138 negotiable,audio_29_73.mp3 +"instrument act presupposes existence of legally enforceable debt or liability and in the absence of that ingredient of offence, charge will not prove. Reliance is",audio_29_74.mp3 +also placed upon delhi HC judgement reported as geeta srivastava vs. bhanu sharma 2003 cri. L. J 801 and finally a SC judgements,audio_29_75.mp3 +"is referred on the point reported as lalit kumar sharma vs. state of up, supreme laws today 2008 (v). 7. Before adverting to the facts",audio_29_76.mp3 +"of present Cas. , as a legal proposition discussed in above referred judgements in the facts of those particular cases, i find these judgements are not",audio_29_77.mp3 +attracted and applicable to the facts of the present Cas. . In the judgement given by allahabad HC cheque had been issued towards compensation for,audio_29_78.mp3 +loss sustained by complainant on account of destruction of his rented shop by national highway Auth. . Revisionist did not owe any liability towards complainant and,audio_29_79.mp3 +in those circumstances it was found that prosecution of revisionist for offence under S. 138 negotiable instrument act was misfounded. In the delhi HC ,audio_29_80.mp3 +"judgement, petitioner geeta srivastava had accompanied her husband at the time of alleged transaction of loan. Her husband had drawn cheque towards repayment of loan",audio_29_81.mp3 +and the cheque bounced. In those circumstances it was held that petitioner merely having accompanied her husband at the time of transaction of loan would,audio_29_82.mp3 +"not has saddle her with a liability for dishonour of cheque with the help of S. 141 n. I act. Accordingly, this judgement is entirely",audio_29_83.mp3 +distinguishable and not at all applicable in the present Cas. when in this Cas. we are dealing with the proposition that accused-appellant had drawn cheque,audio_29_84.mp3 +though as per appellant's plea towards discharge of loan liability of his wife. Likewise SC judgement is also not applicable in the present Cas. ,audio_29_85.mp3 +"fact situation. In that Cas. of lalit kumar sharma, drawer of the cheque viz. ashish narula and manish arora had been held guilty, convicted and",audio_29_86.mp3 +sentenced. Anr. cheque stated to have been drawn by manish arora in terms of settlement between parties concerning dispute which was subject matter of the,audio_29_87.mp3 +"cheque wherein ashish narula and manish arora had been convicted, it was held that cheque drawn by manish arora was not to be said to",audio_29_88.mp3 +have been issued in discharge of legally enforceable debt or liability. 8. Ld. Counsel stressed point that where complainant's Cas. was contradictory as regards the,audio_29_89.mp3 +amount of friendly loan and complainant's stand was further contradictory if loan was given to accused or to his wife then existence of debt or,audio_29_90.mp3 +"liability cannot be held duly proved. Having considered contentions of ld. Counsel, i find it without merits. Ld. Mm found that transaction of friendly loan",audio_29_91.mp3 +stood duly proved. I do not find any illegality in the said findings arrived by the ld. Mm on the basis of evidence. Complainant sarvesh,audio_29_92.mp3 +chand sood in the cross examination when asked about the loan stated that accused as well his wife came to his house for taking that,audio_29_93.mp3 +friendly loan. Complainant then admits in his cross examination that he had not filed any Cas. against W/O accused for recovery of the loan,audio_29_94.mp3 +amount and then suggestion is given that infact no such loan was given to her and complainant denied the suggestion. Finally in the concluding lines,audio_29_95.mp3 +of cross examination of complainant a suggestion is put and complainant denied it that the cheque in question was given asbalram verma S/O late,audio_29_96.mp3 +"sh. J. S. verma vs. state of up and anr. 2014 (1) jcc 26. It is on 29 may, 2014",audio_29_97.mp3 +"Gokalpuri. Complainant was also confronted with certain receipts like ex.cw1/d6 and d7 and by these receipts a small amount like rs.1,000/- or rs.2,000/- was shown",audio_29_98.mp3 +to have been given to the complainant or his wife by accused or his wife but then no further question was put as to in,audio_29_99.mp3 +"what context those small payments were made. Finally as regards the cheques issued by accused and given to complainant in the police station, complainant admitted",audio_29_100.mp3 +"in cross- examination that cheques were handed over to him in the police station and only accused, complainant and one police official raj kumar were",audio_29_101.mp3 +"present. To a further question in cross examination, complainant replied that accused had come to his house two or three days before to inform the",audio_29_102.mp3 +complainant that he would reach police station to hand over the cheque in question. Said statement in cross-examination conveys if accused himself wanted to deliver,audio_29_103.mp3 +cheques to the complainant in the police station and accordingly complainant reached police station. Complainant relied upon a document which was a photocopy mark a,audio_29_104.mp3 +"but then when accused admitted its contents and his signatures on it, it was given Exh. mark dw1/da. In this document complainant specifically acknowledged a",audio_29_105.mp3 +"liability of loan of rs.1,40,000/- and promised to repay that mount by every month installment in the sum of rs.1,000/- and with that settlement-compromise complainant",audio_29_106.mp3 +agreed to withdraw his Crl. Cas. FIR no.547/05. Accused as dw1 stated in cross-examination that said document was bearing his signatures and he,audio_29_107.mp3 +"further admitted that he had undertaken to pay rs.1,25,000/- allegedly taken by his wife. With this kind of evidence ld. Mm relied upon SC ",audio_29_108.mp3 +judgement in icds ltd. vs. basha sabir 2002(4) crime 75 and found that if accused had issued and drawn cheques for discharge of a loan,audio_29_109.mp3 +liability of his wife then he was liable to be prosecuted when cheque had bounced and he was not entitled to escape liability on a,audio_29_110.mp3 +plea that liability of loan was of his wife. As regards plea of accused that cheques were drawn under the pressure of police. Ld. Mm,audio_29_111.mp3 +found that there was no any other material on record to believe and accept the defence. Only by the reason or fact that cheques were,audio_29_112.mp3 +"given to the complainant in the police station, it would not prove that it was given under police pressure. As discussed above when complainant was",audio_29_113.mp3 +put a question in cross-examination that accused himself came to the complainant and asked / suggested to complainant to come to the police station and,audio_29_114.mp3 +"accordingly complainant went to the police station where cheques were delivered, there is no other evidence or material to suggest if cheques were given by",audio_29_115.mp3 +"accused under any pressure. Even if it was found that cheques were given by complainant under pressure, if it is found duly proved that cheques",audio_29_116.mp3 +were drawn towards discharge of a liability then accused has to face penal consequences of its bouncing. 9. Appellant's counsel argued that where transaction of,audio_29_117.mp3 +"loan was in january, 2004 and cheque had been drawn somewhere in the end of 2007 and beginning of 2008 then cheques could not be",audio_29_118.mp3 +said to be in discharge of a legally enforceable liability. The alleged loan liability became a bad debt as barred by limitation. Ld. Mm has,audio_29_119.mp3 +"dealt with this point in para 10 of the judgement and held that with the execution of compromise that accused had exhibited as ex.dw1/da, accused",audio_29_120.mp3 +"acknowledged the liability of loan and it provided a fresh period of limitation and since this loan acknowledgement document was executed in july, 2006 the",audio_29_121.mp3 +cheques were not to be said to be in discharge of time barred debt or liability. There appears no illegality in these findings. 10. Counsel,audio_29_122.mp3 +"for the appellant relied upon kerala HC judgement reported as joseph vs. . Devassia, 2011 (3) crimes 229 and argued that where the debt",audio_29_123.mp3 +had gone time barred then chequebalram verma S/O late sh. J. S. verma vs. state of up and anr. 2014 (1) jcc 26. It,audio_29_124.mp3 +"is on 29 may, 2014",audio_29_125.mp3 +"For prosecution as the cheque could not be said to have been issued in discharge of legally enforceable debt. Having gone through this judgement, it",audio_29_126.mp3 +"is found distinguishable on facts. In concluding part of the judgement, it has been specifically observed that since there was no acknowledgement of debt before",audio_29_127.mp3 +"expiry of three years from the date of loan, the debt was not legally enforceable at the time of issuance of cheque. In the present",audio_29_128.mp3 +"Cas. , as seen above, accused appellant acknowledged the debt in 2006 vide documents ex.pw1/da. 11. Counsel argued that statutory legal notice had not been served",audio_29_129.mp3 +"upon accused. Admittedly, the notice had been sent on the office address of accused. Ld. Mm dealt with this issue in para 12 to 14",audio_29_130.mp3 +of his judgement and in that regard ld. Counsel referred to testimony of defence witness dw3 wherein witness said in cross examination that even if,audio_29_131.mp3 +"for sometime when accused was under suspension, all his post and other relevant ""dak"" would be sent to his residential address through peon by personal",audio_29_132.mp3 +delivery or by post. Witness further admitted that any other post addressed to accused in Cas. received by the Dept. was sent to accused by,audio_29_133.mp3 +said mode. Ld. Mm found that address mentioned on the registered post envelope as well in upc on accused was his correct address where he,audio_29_134.mp3 +"was posted and working and thus as per S. 27 of general clauses act, it was deemed to have been duly served. Ld. Counsel referred",audio_29_135.mp3 +to cross examination of complainant when the registered envelope on the judicial file was found containing no copy of the notice but it was an,audio_29_136.mp3 +empty one. Ld. Complainant's counsel to my view rightly argued that envelope in question had been filed when complaint was filed in the year 2005,audio_29_137.mp3 +"and complainant was cross examined in may, 2012 then how come complainant could be answerable if copy of notice was not in the registered envelope.",audio_29_138.mp3 +No such point was ever raised at any point of time and it is none of the appellant's plea that on his first appearance in,audio_29_139.mp3 +court he was prepared to pay cheque amount if statutory notice had not been received by him. I do not find any illegality in the,audio_29_140.mp3 +findings arrived by the ld. Mm on this point. 12. Accordingly i find conviction judgement recorded by ld. Mm in each complaint Cas. is based,audio_29_141.mp3 +upon legal appreciation and analyses of facts as well law and it suffers no illegality. Appeal is without merits as regard conviction. Let it now,audio_29_142.mp3 +"be put up on 27.05.2014 for hearing on point of sentence. Announced in the open court (j. R. Aryan) on this 26th of may, 2014",audio_29_143.mp3 +"district & sessions judge, (ne distt.), karkardooma courts,delhi in the court of sh. J. R. Aryan : district & sessions judge : north- east district",audio_29_144.mp3 +: karkardooma courts : delhi :balram verma S/O late sh. J. S. verma vs. state of up and anr. 2014 (1) jcc 26. It,audio_29_145.mp3 +"is on 29 may, 2014",audio_29_146.mp3 +"D-157, mcd flat, usmanpur, shatri park, delhi. ...............appellant verus sarvesh chand sood s/o late sh. V. D. Sood r/o c-368, gokalpuri, delhi-94. .................respondent date of",audio_29_147.mp3 +institution of Cas. : 09.09.2013 date of reserving the Cas. for orders : 26.05.2014 date of passing of orders : 29.05.2014 unique Cas. id No. ,audio_29_148.mp3 +"02402r0289032013 balram verma s/o late sh. J. S. verma r/o d-157, mcd flat, usmanpur, shatri park, delhi. ...............appellant verus sarvesh chand sood s/o late sh.",audio_29_149.mp3 +"V. D. Sood r/o c-368, gokalpuri, delhi-94. .................respondent date of institution of Cas. : 09.09.2013 date of reserving the Cas. for orders : 26.05.2014 date",audio_29_150.mp3 +"of passing of orders : 29.05.2014 unique Cas. id No. 02402r0289012013 balram verma s/o late sh. J. S. verma r/o d-157, mcd flat, usmanpur, shatri",audio_29_151.mp3 +"park, delhi. ...............appellant verus sarvesh chand sood s/o late sh. V. D. Sood r/o c-368, gokalpuri, delhi-94. .................respondent date of institution of Cas. : 09.09.2013",audio_29_152.mp3 +date of reserving the Cas. for orders : 26.05.2014 date of passing of orders : 29.05.2014 unique Cas. id No. 02402r0289042013 balram verma s/o late,audio_29_153.mp3 +"sh. J. S. verma r/o d-157, mcd flat, usmanpur, shatri park, delhi. ...............appellant verus sarvesh chand sood s/o late sh. V. D. Sood r/o c-368,",audio_29_154.mp3 +"gokalpuri, delhi-94. .................respondent date of institution of Cas. : 09.09.2013 date of reserving the Cas. for orders : 26.05.2014 date of passing of orders :",audio_29_155.mp3 +"29.05.2014 unique Cas. id No. 02402r0289052013 balram verma s/o late sh. J. S. verma r/o d-157, mcd flat, usmanpur, shatri park, delhi. ...............appellant verus sarvesh",audio_29_156.mp3 +"chand sood s/o late sh. V. D. Sood r/o c-368, gokalpuri, delhi-94. .................respondent date of institution of Cas. : 09.09.2013 date of reserving the Cas. ",audio_29_157.mp3 +for orders : 26.05.2014 date of passing of orders : 29.05.2014 order on the point of sentence 1. Through common judgement dated 26.05.2014 conviction of,audio_29_158.mp3 +appellant/accused bal ram verma in five Crl. appeals no.53/2013 to 57/2013 has already been upheld. Today both sides have been heard on the point of,audio_29_159.mp3 +sentence. Counsel sh. S.k. Verma prayed for a lenient view and submitted that appellant/accused has given an undertaking to the complainant to pay him a,audio_29_160.mp3 +"total sum of rs.1,50,000/- in installments of rs.10,000/-pm and each month installment will be deposited in the saving account of complainant and on single default",audio_29_161.mp3 +"in payment of this amount, accused undertakes to undergo sentence awarded by the ld. Trial court and the trial court sentence in situation of default",audio_29_162.mp3 +"shall immediately come in operation. It is further submited that appellant had deposited a sum of rs.46,000/- plus in the trial court pursuant to interim",audio_29_163.mp3 +"order passed by this court on 09.09.2013 when sentence awarded to appellant by ld. Trial court was suspended and that amount of rs.46,000/- plus will",audio_29_164.mp3 +"form part of this total sum of rs.1,50,000/-. Ld. Counsel submits that complainant has agreed for this lenient view on sentence in terms of appellant's",audio_29_165.mp3 +undertaking to be complied with very strictly.balram verma S/O late sh. J. S. verma vs. state of up and anr. 2014 (1) jcc 26.,audio_29_166.mp3 +"It is on 29 may, 2014",audio_29_167.mp3 +"Dlsa) submits that let accused be given an opportunity to avoid jail sentence awarded by ld. Trial court, if accused/appellant very strictly sticks to his",audio_29_168.mp3 +"undertaking. 3. Undertaking statement of appellant is, accordingly, recorded on oath today. 4. Sentence awarded to accused by ld. Trial court in brief in five",audio_29_169.mp3 +"cases is as under :- (1) cc No. 188/2008, six months si and direction to pay rs.37,000/- as compensation with default sentence of four months.",audio_29_170.mp3 +"(2) cc No. 143/2008, six months si and direction to pay rs.39,000/- as compensation with default sentence of four months. (3) c.c. No. 127/2008, six",audio_29_171.mp3 +"months si and direction to pay rs.40,000/- as compensation with default sentence of four months. (4) c.c. No. 206/2007, six months si and direction to",audio_29_172.mp3 +"pay rs.40,000/- as compensation with default sentence of four months. (5) c.c. No. 154/2009, four months si and direction to pay rs.31,000/- as compensation with",audio_29_173.mp3 +"default sentence of two months. 5. It is pleaded by counsel sh. Verma that though accused/appellant was a regular municipal Corp. of delhi employee, but",audio_29_174.mp3 +because of indulgence in committee transaction he had to borrow amount from his Dept. and presently his salary is almost half. It is submitted that,audio_29_175.mp3 +accused had to incur a huge expense in the marriage of his daughter and in these circumstances he suffered a serious financial stringency and if,audio_29_176.mp3 +"accused is sent to jail in execution of sentence awarded by the ld. Trial court, then his family will suffer a serious set back. 6.",audio_29_177.mp3 +"Considering that offence is compoundable and as conceded to by complainant to the leniency prayed by the appellant, but with condition that appellant will very",audio_29_178.mp3 +"strictly stick to his undertaking given before the court, in totality of these circumstances, i find a lenient view be taken on the point of",audio_29_179.mp3 +"sentence and accordingly modification in sentence in each five cases is made to the following effect: 7. Appellant shall pay a sum of rs.1,50,000/- to",audio_29_180.mp3 +"the complainant. Rs. 46,000/- plus deposited by him with ld. Trial court in terms of order passed by this court on 09.09.2013 when sentence in",audio_29_181.mp3 +"these cases had been suspended shall form part of this total sum of rs.1,50,000/-. Let ld. Trial court release that amount of rs.46,000/- plus in",audio_29_182.mp3 +"favour of complainant and thereafter w.e.f. June, 2014 appellant shall pay rs.10,000/-pm by depositing that amount in complainant's savings bank account No. 10086420385 which is",audio_29_183.mp3 +"with state bank of india, gokulpuri branch, delhi. Each month installment shall be deposited by the 15th till entire amount of rs.1,50,000/- is deposited by",audio_29_184.mp3 +the appellant/accused. A single default in payment of any installment shall result in trial court sentence coming into operation with immediate effect. With payment of,audio_29_185.mp3 +"rs.1,50,000/- (inclusive of rs.46,000/- plus) the trial court sentence shall stand modified to the effect that appellant pays rs.1,50,000/- as compensation in all five cases",audio_29_186.mp3 +"to thebalram verma S/O late sh. J. S. verma vs. state of up and anr. 2014 (1) jcc 26. It is on 29 may,",audio_29_187.mp3 +2014,audio_29_188.mp3 +8. A copy of the judgement and order on sentence be sent to ld. Trial court with trial court record. Appeal files be consigned to,audio_29_189.mp3 +"record room. Announced in the open court (j. R. Aryan) on this 29th day of may, 2014 district & sessions judge, (ne distt.), karkardooma courts,delhibalram",audio_29_190.mp3 +"verma S/O late sh. J. S. verma vs. state of up and anr. 2014 (1) jcc 26. It is on 29 may, 2014",audio_29_191.mp3 +"Downloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018 author: sandeep sharma bench: sandeep sharma fao no.218 of 2018 . 3.07.2018 present:",audio_30_1.mp3 +"mr. V.S. chauhan, Adv. , for the appellant. Mr. Surinder sharma, Adv. , for the respondent. Sequel to order dated 15.06.2018, parties have come present in court.",audio_30_2.mp3 +"Mr. Surinder sharma, learned counsel representing the respondent, on instruction, states that there is no possibility of amicable settlement and as such, matter may be",audio_30_3.mp3 +"decided on merits. Accordingly, in view of the above, let this matter be listed next week for final hearing, as jointly agreed by learned counsel",audio_30_4.mp3 +"for the parties. (sandeep sharma) judge 3 july, 2018 rd ( shankar) . 3.07.2018 present: mr. Ramakant sharma, Adv. , for the plaintiff. None for defendants",audio_30_5.mp3 +"no.1 and 2. Mr. S.c.sharma and mr. Dinesh thakur, additional Adv. generals, with mr. Amit kumar dhumal, deputy Adv. general, for defendants No. 3 to",audio_30_6.mp3 +"6. Mr. Umesh kanwar, Adv. , for defendant no.7. Mr. Dinesh thakur, learned additional Adv. general, states that matter with regard to issuance of feasibility certificate",audio_30_7.mp3 +"is pending before the director education and as such, he may be given 3□ 4 days time to have instructions. He further states that though",audio_30_8.mp3 +"written statement on behalf of defendant no.3 already stands filed, but he will have instruction whether defendants no.4 to 6 want to file written statement",audio_30_9.mp3 +"or they want to adopt the written statement filed on behalf of defendant no.3. Accordingly, in view of the above, further one week time is",audio_30_10.mp3 +"granted to the learned additional Adv. general, todownloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_11.mp3 +"Liston 10th july, 2018. Registry to reflect the name of learned additional Adv. general in the cause list henceforth. (sandeep sharma) judge 3 july, 2018",audio_30_12.mp3 +"rd ( shankar) . 3.07.2018 present: mr. Prashant chaudhary, Adv. vice counsel for the plaintiff. Mr. P.S. goverdhan, Adv. , for the defendants. Learned counsel appearing",audio_30_13.mp3 +"for the plaintiff prays for and is granted further two weeks' time, as last opportunity, to file replication, failing which right to file the same",audio_30_14.mp3 +"shall be deemed to have been closed. List thereafter. (sandeep sharma) judge 3 july, 2018 rd ( shankar) . 3.07.2018 present: mr. Anand sharma, Adv. ,",audio_30_15.mp3 +"for the petitioner. Mr. Dheeraj vashishat, Adv. , for the respondent. Arb. Cas. no.41 of 2018 & omp no.256 of 2018 mr. Dheeraj k. Vashishat, Adv. ,",audio_30_16.mp3 +has filed power of attorney on behalf of the respondent. He prays for and is r to granted two weeks' time to file reply. List,audio_30_17.mp3 +"on 17th july, 2018. By way of instant Appl. filed under S. 8(2) of the arbitration and conciliation act, 1996, prayer has been made to",audio_30_18.mp3 +"issue direction to the opposite party to produce the original arbitration agreement dated 23.7.2015 or its certified copy. Reply, if any, be filed on or",audio_30_19.mp3 +"before the next date of hearing. (sandeep sharma) judge 3 july, 2018 rd ( shankar) . 3.07.2018 present: mr. Goldy kumar, Adv. , for the petitioner.",audio_30_20.mp3 +"Mr. S.c.sharma and mr. Mr. Dinesh thakur, additional Adv. generals, with mr. Amit kumar dhumal,deputy Adv. general for the respondent□ state.downloaded on - 31/07/2018 23:02:41",audio_30_21.mp3 +"... vs. heeralal on 30 july, 2018",audio_30_22.mp3 +"Kumar, police station, sadar, district chamba, h.p., has come present alongwith the record. Mr. Dinesh thakur, learned additional Adv. general, has also placed on record",audio_30_23.mp3 +"status report, prepared on the basis of the investigation carried out by the investigating agency. Learned additional Adv. general states that since report of sfsl,",audio_30_24.mp3 +"junga is still awaited and as such matter may be adjourned for two weeks. Accordingly, in view of the above, list this matter on 24th",audio_30_25.mp3 +"july, 2018. (sandeep sharma) judge 3 july, 2018 rd ( shankar) certified . 3.07.2018 present: mr. R.k.gautam, Sr. Adv. , with mr. Gaurav gautam, Adv. , for",audio_30_26.mp3 +"the plaintiff. Mr. S.c.sharma and mr. Mr. Dinesh thakur, additional Adv. generals, with mr. Amit kumar dhumal,deputy Adv. general for the defendants. Mr. S.c.sharma, learned",audio_30_27.mp3 +"additional Adv. general states that though defendants witnesses have come present, but since they have not come with the relevant record, their statements may be",audio_30_28.mp3 +"deferred and he be allowed to move an appropriate Appl. , if required under law. Aforesaid prayer is not opposed and as such,witnesses viz. sh. Satish",audio_30_29.mp3 +"kumar, sh. Chuni lal, mhc bhagat ram, sh. Jhaneshwar negi and sh. Prem raj thakur, present in court are discharged for today. Accordingly, in view",audio_30_30.mp3 +"of the above, let this matter be listed for recording the statement of defendant's witnesses, on a date to be fixed by additional registrar(judicial). (sandeep",audio_30_31.mp3 +"sharma) judge 3 july, 2018 rd ( shankar) Civ. suit no.43 and 44 of 2016 . 6.07.2018 present: mr. Dheeraj k. Vashishat, Adv. , for the",audio_30_32.mp3 +"plaintiff(s). Mr. Anirudh sharma, Adv. , for the defendant(s). Omp nos. 49 & 111 of 2018 mr. Anirudh sharma, learned counsel representing the applicant/defendant, states that",audio_30_33.mp3 +"he shall be filing rejoinder during the course of the day. Accordingly, in view of the above, list this matter after two weeks.downloaded on -",audio_30_34.mp3 +"31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_35.mp3 +"( shankar) 6.07.2018 present: mr. J. s.bhogal, Sr. Adv. , with mr. Rakesh . Thakur,Adv. , for the petitioner. Mr. S.c.sharma and mr. Dinesh thakur, learned additional",audio_30_36.mp3 +"Adv. generals, with mr. Amit kumar dhumal, deputy Adv. general, for the respondent□state. Perusal of the minutes of 8 th meeting held on 15.10.2016 for",audio_30_37.mp3 +"amicable settlement of pending disputes inter se petitioner and the respondent□ Dept. , suggest that the settlement committee having perused the claims/counter□ claims of the parties",audio_30_38.mp3 +"in dispute, held the petitioner entitled to Rs. 79,62,052/□ only against the total claim of rs.80.00 lac as full and final settlement. However, while arriving",audio_30_39.mp3 +"at aforesaid amount, committee members unanimously resolved that amicably settled proposal shall be subject to the specific condition that contractor shall make an undertaking in",audio_30_40.mp3 +Aff. duly attested by first class magistrate to the extent that all the claims pertaining to this work against the agreement in dispute are fully,audio_30_41.mp3 +"and finally settled and nothing is due from the executive engineer, arki and he shall withdraw all pending cases from Hon'ble HC , arbitration tribunal/or",audio_30_42.mp3 +"any other statutory authorities against the work in question. 2. Documents placed on record alongwith supplementary Aff. filed by the petitioner, clearly suggest that he",audio_30_43.mp3 +"vide communications dated 30.12.2016, 26.11.2016 and . 8.12.2016, categorically informed the Dept. that amicable settlement arrived inter se parties was with respect to arbitration pending",audio_30_44.mp3 +"before the learned arbitrator sh. Naresh markanda and he shall file his Aff. qua that matter only. 3. Shockingly, Dept. despite having received aforesaid communications,",audio_30_45.mp3 +"proceeded to remit an amount of Rs. 75,64,242/□ in the bank account of the petitioner by way rtgs on 24.1.2017, whereafter, an Appl. under sub",audio_30_46.mp3 +"S. 2(b) of S. 32 of the arbitration and conciliation act, 1996 came to be filed on behalf of respondents in this court, praying therein",audio_30_47.mp3 +to dispose of the objections filed by the petitioner in view of the final settlement arrived between the parties. It is not understood that when,audio_30_48.mp3 +"the petitioner had not furnished Aff. , as mentioned in the proceedings of the meeting held on 15.10.2016, where was the occasion for the Dept. to",audio_30_49.mp3 +"remit the aforesaid amount in the bank account of the petitioner.downloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_50.mp3 +"Circumstances under which, the aforesaid payment was remitted in the account of the petitioner without having obtained Aff. as per the agreed terms. Needful shall",audio_30_51.mp3 +"be done within a period of one . Week. List on 17th july, 2018, on which date, engineer□in□ chief shall personally remain present in court.",audio_30_52.mp3 +"Authenticated copy. 6 july, 2018 th r to (sandeep sharma) judge ( shankar) . 6.07.2018 present: mr. A.k. Bansal and mr. Sudhir thakur, Adv. , for",audio_30_53.mp3 +"the plaintiff. Mr. Satyen vaidya, Sr. Adv. with mr. Vivek sharma, Adv. , for the defendant. Downloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30",audio_30_54.mp3 +"july, 2018",audio_30_55.mp3 +"Since no specific instructions are being imparted to them with regard to compromise, if any, arrived inter se parties and as such, matter may be",audio_30_56.mp3 +"fixed for recording evidence. Mr. Sudhir thakur, learned counsel representing the plaintiff states that list of witnesses already stands furnished and as such, date may",audio_30_57.mp3 +"be fixed. In view of the above, let this matter be listed for recording plaintiff's evidence, on the date, to be fixed by additional registrar(",audio_30_58.mp3 +"judicial). (sandeep sharma) judge 6 july, 2018 th ( shankar) . 6.07.2018 present: mr. Maan singh, Adv. , for the plaintiff. Mr. Janesh gupta, Adv. , for",audio_30_59.mp3 +"the defendant. In terms of order dated 1.6.2018, parties have come present in court, but there is no possibility of amicable settlement. Though, plaintiff is",audio_30_60.mp3 +"ready and willing to resolve the matter amicably,but it appears that defendant is not interested to do so and as such, this court has no",audio_30_61.mp3 +"option, but to decide the matter on merits. Learned counsel representing the defendant prays for and is granted four weeks time to file written statement.",audio_30_62.mp3 +"(sandeep sharma) judge 6 july, 2018 th ( shankar) omp no.427 of 2017 in arb. Cas. no.31 of 2004 . 6.07.2018 present: mr. M.a.khan, Sr. ",audio_30_63.mp3 +"Adv. , with mr. Naresh sharma, Adv. , for the petitioner. Mr. R.l.sood, Sr. Adv. ,with mr. Arjun k. Lall, Adv. , for the respondent. Omp no.427 of 2017",audio_30_64.mp3 +"in arb. Cas. no.31 of 2004 mr. Y.p.sood, Adv. states that he is no more representing the petitioner and prays that he may be permitted",audio_30_65.mp3 +"to withdraw his power of attorney. Ordered accordingly. Mr. Naresh sharma, Adv. , has filed power of attorney on behalf of the petition. Heard in part.",audio_30_66.mp3 +"List for continuation on 13.7.2018. By way of instant Appl. filed under S. 151 of the code of Civ. procedure, permission has been sought to",audio_30_67.mp3 +"place on record certified copies of the record pertaining to SLP (Civ. ) no.28856□57. Since, the documents intended to be placeddownloaded on - 31/07/2018",audio_30_68.mp3 +"23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_69.mp3 +"Required to be passed as such, present petition is disposed of. Documents annexed with the Appl. are ordered to be taken on record. (sandeep sharma)",audio_30_70.mp3 +"judge 6 july, 2018 th ( shankar) . 6.07.2018 present: mr. N.k.thakur, Sr. Adv. , with mr. Divya raj singh, Adv. , for the petitioner. Mr. S.c.sharma",audio_30_71.mp3 +"and mr. Dinesh thakur, additional Adv. generals, with mr. Amit kumar dhumal, deputy Adv. general, for the respondent□state list next week, as prayed for by",audio_30_72.mp3 +"learned counsel representing the petitioner. (sandeep sharma) judge 6 july, 2018 th ( shankar) . 6.07.2018 present: Ms. . Seema guleria, Adv. , for the petitioner. Mr.",audio_30_73.mp3 +"S.c.sharma and mr. Dinesh thakur, additional Adv. generals, with mr. Amit kumar dhumal, deputy Adv. general, for the respondent□state Mr. neeraj gupta, Adv. , for respondent",audio_30_74.mp3 +"no.2. List on 13th july, 2017, as prayed for by learned counsel representing the petitioner. (sandeep sharma) judge 6 july, 2018 th ( shankar) .",audio_30_75.mp3 +"6.07.2018 present: Mr. b.s.attri, Adv. , for the petitioners. Mr. Ashwani negi, Adv. vice counsel for the respondent. Learned counsel appearing for the respondent states that",audio_30_76.mp3 +"instant matter is to be argued by mr. Dibender ghosh, Adv. , who is not present in court on account of some personal difficulty and as",audio_30_77.mp3 +"such, matter may be taken up on some other date. Accordingly, in view of the above, let this matter be listed on 17th july, 2018.",audio_30_78.mp3 +"(sandeep sharma) judge 6 july, 2018 th ( shankar) . 6.07.2018 present: nemo for the appellant. Mr. Dheeraj k. Vashishat, Adv. , for the defendant. Downloaded",audio_30_79.mp3 +"on - 31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_80.mp3 +"Present on behalf of the appellant. However, in the interest of J. , matter is adjourned. (sandeep sharma) judge 6 july, 2018 th ( shankar) .",audio_30_81.mp3 +"6.07.2018 present: nemo for the appellant. Mr. Dheeraj k. Vashishat, Adv. , for the defendant. Despite repeated calls and pass overs, none has come present on",audio_30_82.mp3 +"behalf of the appellant. However, in the interest of J. , matter is adjourned. (sandeep sharma) r judge 6 july, 2018 th ( shankar) . .downloaded",audio_30_83.mp3 +"on - 31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_84.mp3 +"Singh, Adv. , for the appellant. Mr. S.c.sharma and mr. Dinesh thakur, additional Adv. generals, with mr. Amit kumar dhumal, deputy Adv. general, for the respondent□state",audio_30_85.mp3 +"list on 10th july, 2018, as prayed for by learned counsel for the appellant. (sandeep sharma) judge 6 july, 2018 th ( shankar) . 6.07.2018",audio_30_86.mp3 +"present: mr. Yash sharma, Adv. , for the petitioners. Mr. P.s.goverdhan, Adv. , for the respondents. Learned counsel representing the petitioners states that respondent no.2 has attained",audio_30_87.mp3 +"majority during the pendency of the present appeal and as such, he may be allowed to move appropriate Appl. . Accordingly, in view of the above,",audio_30_88.mp3 +"list this matter after two weeks. In the meanwhile, Appl. , as referred hereinabove, may be filed by the petitioner. (sandeep sharma) judge 6 july, 2018",audio_30_89.mp3 +"th ( shankar) cr.mmo no.12 of 2015 . 6.07.2018 present: mr. R.k.sharma, Sr. Adv. , with mr. Surinder sharma, Adv. , for the petitioner. Mr. S.c.sharma and",audio_30_90.mp3 +"mr. Mr. Dinesh thakur, additional Adv. generals,with mr. Amit kumar dhumal, deputy Adv. general, for the respondents□state. Mr. Ramakant sharma, Sr. Adv. with mr. Dinesh",audio_30_91.mp3 +"bhatia, Adv. , for respondent no.3. R arguments heard. Judgment reserved. (sandeep sharma) judge 6 july, 2018 th ( shankar) rsa nos.344 of 2005 and 354",audio_30_92.mp3 +"of 2005 . 6.07.2018 present: mr. Anupinder rohal, Adv. , for the appellant in rsa no.344 of 2005 and for respondent no.1 in rsa no.354 of",audio_30_93.mp3 +"2005. Mr. Romesh verma, Adv. ,for respondents no.1 and 3 in rsa no.344 of 2005 and for the appellant in rsa no.354 of 2005.downloaded on -",audio_30_94.mp3 +"31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_95.mp3 +"(sandeep sharma) judge 6 july, 2018 th ( shankar) . 6.07.2018 present: Ms. . Shreya chauhan, Adv. , for the petitioner. Mr. vivek sharma, Adv. , for respondent",audio_30_96.mp3 +"no.1. Mr. S.c.sharma and mr. Mr. Dinesh thakur, additional Adv. generals,with mr. Amit kumar dhumal, deputy Adv. general, for the respondents□state. R to Ms. . Shreya",audio_30_97.mp3 +"chauhan, Adv. has filed memo of appearance on behalf of the petitioner and states that now she would be appearing as counsel for the petitioner.",audio_30_98.mp3 +"She prays for and is granted three weeks' time to file power of attorney. List thereafter. (sandeep sharma) judge 6 july, 2018 th ( shankar)",audio_30_99.mp3 +". 9.07.2018 present: mr. Vinay thakur, legal aid counsel, for the appellant. Mr. S.c.sharma and mr. Dinesh thakur, additional Adv. generals,with mr. Amit kumar dhumal,",audio_30_100.mp3 +"deputy Adv. general, for the respondents□state. On the request of the learned counsel representing the appellant, list this matter after four weeks. (sandeep sharma) judge",audio_30_101.mp3 +"9 july, 2018 th ( shankar) . 9.07.2018 present: Ms. . Poonam gehlot, Adv. vice counsel for the appellant. Mr. Dheeraj k. Vashishat, Adv. , for the",audio_30_102.mp3 +"respondent. On the request of learned counsel representing the appellant, list this matter after three weeks. (sandeep sharma) judge 9 july, 2018 th ( shankar)",audio_30_103.mp3 +". 10.07.2018 present: mr. Bhuvnesh sharma, Adv. , for the plaintiff. Downloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_104.mp3 +"Kahol, Adv. , for defendants no.1 and 2. Mr. S.c.sharma and mr. Dinesh thakur, additional Adv. generals, with mr. Amit kumar dhumal, deputy Adv. general,for defendants",audio_30_105.mp3 +"no.3 to 6. Mr. Umesh kanwar, Adv. , for respondent no.7. Learned additional Adv. general, on instructions, states that in view of the written statement filed",audio_30_106.mp3 +"on behalf of defendant no.3, no separate written statement is required to be filed on behalf of defendants No. 4 to 6. His statement is",audio_30_107.mp3 +"taken on record. Ordered accordingly. Learned additional Adv. general states that pursuant to the previous order passed by this court, steps have already been taken",audio_30_108.mp3 +"for issuance of feasibility certificate and in this regard, deputy director education is supposed to visit the premises tomorrow, whereafter necessary action shall be taken",audio_30_109.mp3 +"for issuance of feasibility certificate. In view of the above, list this matter on 24 th july, 2018. By way of instant Appl. filed undercivil",audio_30_110.mp3 +"suit no.24 of 2017 S. 151 of the code of Civ. procedure, prayer has been made on behalf of applicant/defendant no.7, . For modification/alternation of",audio_30_111.mp3 +"order, dated 23.5.2017, passed by this court, whereby parties have been directed to maintain status quo. 2. Averments contained in the Appl. suggest that applicant/defendant",audio_30_112.mp3 +no.7□bank has already initiated proceedings under S. 13(2) of the securitization and reconstruction of financial assets and enforcement of security interest act 2002 (for short,audio_30_113.mp3 +sarfaesi act) on account of default in repayment of loan facility availed by defendants no.1 and 2. It is not in dispute that in the,audio_30_114.mp3 +"instant suit having been filed by the plaintiff, no challenge has been laid to the action initiated by the applicant/defendant no.7 against defendants no.1 and",audio_30_115.mp3 +"2 under S. 13(2) of the sarfaesi act. Otherwise also, the Hon'ble apex court in jagdish singh vs. heeralal, (2014)1 scc 479, has categorically held",audio_30_116.mp3 +"that Ss. 34 and 35 of the sarfaesi act completely oust the jurisdiction of Civ. court qua the action, if any, under S. 13(2) of",audio_30_117.mp3 +"the sarfaesi act. 3. The plaintiff has not sought any relief against the bank and as such, in view of the averments contained in the",audio_30_118.mp3 +"Appl. , which have been otherwise not controverted by the defendants, this court deems it fit to modify the order dated .downloaded on - 31/07/2018 23:02:41",audio_30_119.mp3 +"... vs. heeralal on 30 july, 2018",audio_30_120.mp3 +"Shall be at liberty to proceed with the action, if any, initiated under S. 13(2) of the sarfaesi act during the pendency of the present",audio_30_121.mp3 +"suit. 4. However, it is made clear that applicant/defendant no.7□bank before taking final action against the defaulters shall inform this court. Accordingly, the present Appl. ",audio_30_122.mp3 +"is disposed of . Copy dasti. (sandeep sharma) judge 10 july, 2018 th ( shankar) . 10.07.2018 present: mr. Maan singh, Adv. , for the petitioner.",audio_30_123.mp3 +"Mr. S.c.sharma and mr. Dinesh thakur, additional Adv. generals, with mr. Amit kumar dhumal, deputy Adv. general,for the respondent□state. Mr. Maan singh, learned counsel representing",audio_30_124.mp3 +the petitioner states that he does not intend to file rejoinder and he has no objection in Cas. the matter is decided on the basis,audio_30_125.mp3 +"of the material available on record. Accordingly, in view of the above, list this matter next week. (sandeep sharma) judge 10 july, 2018 th (",audio_30_126.mp3 +"shankar) . 10.07.2018 present: mr. Maan singh, Adv. , for the petitioner. Mr. S.c.sharma and mr. Dinesh thakur, additional Adv. generals, with mr. Amit kumar dhumal,",audio_30_127.mp3 +"deputy Adv. general,for the respondent□state. Issue notice. Mr. Dinesh thakur, learned additional Adv. general, appears and wavies service of notice on behalf of the respondent□state.",audio_30_128.mp3 +"R list on 6th august, 2018. (sandeep sharma) judge 10 july, 2018 th ( shankar) . 10.07.2018 present: mr. Rajnish maniktala, Adv. , for the plaintiff.",audio_30_129.mp3 +"Downloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_130.mp3 +"Dhumal, deputy Adv. general,for the defendants. Since Civ. suit having been filed by the plaintiff stands already registered and notices have been issued to the",audio_30_131.mp3 +"defendants, returnable for 28.8.2018, Appl. filed under S. 80(2) cpc, seeking therein leave to institute the suit, is rendered infructuous and as such, Appl. is",audio_30_132.mp3 +"disposed of accordingly. Learned counsel for the plaintiff undertakes to remove the objections, if any, raised by the registry within two weeks. Such undertaking is",audio_30_133.mp3 +"accepted and taken on record. Notice. Mr. Dinesh thakur, learned additional Adv. general, wavies notice on behalf of the defendants. He prays for and is",audio_30_134.mp3 +"granted four weeks' time to file reply to the Appl. . By way of instant Appl. , prayer has been made on behalf of the applicant that",audio_30_135.mp3 +"during the pendency of the suit, defendants be restrained from taking consequential action on . The basis of notices/ demand orders dated 28.4.2016, 21.2.2017, 8.11.2017",audio_30_136.mp3 +"and 31.3.2018 issued by the defendants. Mr. Rajnish maniktala, learned counsel representing the plaintiff, on instructions, further states that an amount of Rs. 11,92,730/□ stands",audio_30_137.mp3 +"already deposited in the registry of this court. In view of the above statement of the learned counsel representing the plaintiff, operation and execution of",audio_30_138.mp3 +"notices/demand orders dated 28.4.2016, 21.2.2017, 8.11.2017 and 31.3.2018, as referred to herein above, shall remain stayed. Since defendants are duly represented, there is no requirement",audio_30_139.mp3 +"to comply with the order 39 rule 3 cpc. Copy dasti. (sandeep sharma) judge 10 july, 2018 th ( shankar) . 10.07.2018 present: mr. O.c.sharma",audio_30_140.mp3 +"and mr. Ashok thakur, Adv. , for the plaintiffs. Mr. Manoj bagga, Adv. vice counsel for defendants No. 8 to 12 and 16. Mr. O.c. Sharma,",audio_30_141.mp3 +"learned counsel representing the plaintiffs, prays for and is granted one week's time to take fresh steps for the service of unserved defendants. In the",audio_30_142.mp3 +"eventdownloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_143.mp3 +"Defendants, returnable for 28th august,2018. By way of instant Appl. filed under order 39 rule 4 r/w S. 151 of the code of Civ. ",audio_30_144.mp3 +"procedure, prayer has been made for vacating ex□ parte ad□interim order passed by this court. Learned counsel representing the non□applicant/ plaintiff prays for and is",audio_30_145.mp3 +granted two week time to file reply to the Appl. . Omp no.24 & 25 of 2018 reply be positively filed within a period of two,audio_30_146.mp3 +"weeks. By way of instant Appl. filed under Ss. 148 and 151 cpc, prayer has been made for grant of further . Time to make",audio_30_147.mp3 +"compliance of order 39 rule 3 cpc, passed in omp no.52 of 2018 on 1.5.2018. Learned counsel representing the non□applicants/ defendants prays for and is",audio_30_148.mp3 +"granted two weeks' time to file reply to the Appl. . (sandeep sharma) judge 10 july, 2018 th ( shankar) . 10.07.2018 present: mr. K.d.sood, Sr. ",audio_30_149.mp3 +"Adv. with mr. Dhananjay sharma, Adv. , for the appellant. Mr. Sudhir thakur, Adv. , for the respndent□ accused. Respondent□accused is present in court. However, learned counsel",audio_30_150.mp3 +"representing the parties, on instruction, of their respective clients, state that after recording of conviction vide judgment ,dated 22nd june, 2018, parties have resolved their",audio_30_151.mp3 +"dispute amicably inter se them, whereby both the parties have agreed that in Cas. an amount of Rs. 10 lac in lump sum is paid",audio_30_152.mp3 +"to the complainant, complainant shall have no objection in getting the matter compounded in terms of S. 147 of the NI Act ( for short",audio_30_153.mp3 +"'act'). 2. Though, mr. K.d.sood, learned Sr. counsel representing the complainant, states that he has definite instruction to get the matter compromised, as referred hereinabove,",audio_30_154.mp3 +"on behalf of the complainant, but this court solely with a view to ascertain the correctness of the aforesaid joint statement made by learned counsel",audio_30_155.mp3 +"for the parties, deems it fit to cause presence of complainant, who on oath may state before this court factum with regard to compromise, if",audio_30_156.mp3 +"any, arrived inter se parties.downloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_157.mp3 +"July, 2018, on which . Date, parties shall personally remain present in court. Needless to say, AR sh. Sudesh kumar, who had filed the",audio_30_158.mp3 +"complaint under S. 138 of the act, shall also remain present in court on behalf of the complainant. (sandeep sharma) judge 10 july, 2018 th",audio_30_159.mp3 +"( shankar) . 10.07.2018 present: mr. Surender sharma, Adv. , for the applicant. Notice be issued to the respondents, returnable within a period of three weeks,",audio_30_160.mp3 +"on taking steps within one week. (sandeep sharma) judge 10 july, 2018 th ( shankar) . 10.07.2018 present: mr. Surender k.sharma, Adv. , for the applicant.",audio_30_161.mp3 +"Notice be issued to the respondents, returnable within a period of three weeks, on taking steps within one week. (sandeep sharma) judge 10 july, 2018",audio_30_162.mp3 +"th ( shankar) . 10.07.2018 present: mr. Vishal panwar, Adv. , for the plaintiff. Mr. Sanjeev mankotia, Adv. , for the defendant. Mr. Vishal panwar, Adv. has",audio_30_163.mp3 +"filed power of attorney on behalf of the plaintiff, whereas mr. Sanjeev mankotia, Adv. has filed memo of appearance on behalf of the defendant. Though,",audio_30_164.mp3 +"pleadings are almost complete, learned counsel representing the parties, state that they requires some time to complete their brief and as such, matter may be",audio_30_165.mp3 +"adjourned for some time. Accordingly, in view of the above, list this matter after two weeks. (sandeep sharma) judge 10 july, 2018 th ( shankar)",audio_30_166.mp3 +".downloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_167.mp3 +"Negi, Adv. , for the petitioner. Mr. Santoshvir singh, Adv. vice counsel for the respondents. Learned counsel representing the respondents, prays for and is granted two",audio_30_168.mp3 +"weeks' time, as last opportunity, to file reply, failing which, right to file the same shall be deemed to have been closed and matter shall",audio_30_169.mp3 +"be decided on the basis of the material adduced on record. List thereafter. (sandeep sharma) judge 10 july, 2018 th ( shankar) . 11.07.2018 present:",audio_30_170.mp3 +"mr. Ankush dass sood, Sr. Adv. , with mr. Satish sharma,Adv. , for the petitioner. Mr. Anshul bansal and mr. Anshul attri, advocates, for the respondent□ central",audio_30_171.mp3 +"bureau of investigation . Mr. S.c.sharma and mr. Dinesh thakur, additional Adv. generals, with mr. Amit kumar dhumal, deputy Adv. general, for the respondent□state. R",audio_30_172.mp3 +"mr. Dinesh thakur, learned additional Adv. general states that Aff. of jail superintendent, kanda as well as medical report shall be filed within a period",audio_30_173.mp3 +"of two days. List on 20th july, 2018. (sandeep sharma) judge 11 july, 2018 th ( shankar) . 11.07.2018 present: mr. Balram sharma, Adv. , for",audio_30_174.mp3 +"the petitioner. Mr. S.c.sharma and mr. Dinesh thakur, additional Adv. generals, with mr. Amit kumar dhumal, deputy Adv. general, for the respondent□state. Cr.mmo no.292 of",audio_30_175.mp3 +"2018 7 cr.mp no.916 of 2018 issue notice. Mr. Dinesh thakur, learned additional Adv. general, appears and wavies service of notice on behalf of the",audio_30_176.mp3 +"respondent□state. He prays for and is granted two weeks' time to file reply. List on 8th august, 2018. Appl. is disposed of with a direction",audio_30_177.mp3 +"to file legible/typed copy of the FIR , dated 22.11.2017 and page nos. 9downloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30",audio_30_178.mp3 +"july, 2018",audio_30_179.mp3 +"(sandeep sharma) judge 11 july, 2018 th ( shankar) . 11.07.2018 present: Ms. . Poonam gehlot, Adv. vice counsel for the appellant. Mr. O.c.sharma, Adv. , for",audio_30_180.mp3 +"respondent no.1. Mr. Harsh bardhan, Adv. , for respondent no.3. Fao no.361 of 2017 & cmp no.4946 of 2018 mr. O.c.sharma and mr. Harsh bardhan, advocates",audio_30_181.mp3 +have filed power of attorney on behalf of respondents no.1 and 3 respectively. They pray for and are granted two weeks' time to file reply,audio_30_182.mp3 +"to the Appl. . List thereafter. (sandeep sharma) judge 11 july, 2018 th ( shankar) . 16.07.2018 present: mr. K.d.sood, Sr. Adv. , with mr. Dhananjay sharma,",audio_30_183.mp3 +"Adv. , for the appellant. Mr. Sudhir thakur, Adv. , for the respondent. Pursuant to judgment dated 22nd june, 2018, whereby this court while allowing the Crl. ",audio_30_184.mp3 +"appeal filed by the appellant, held respondent□ accused guilty of having committed the offence punishable under S. 138 of the NI Act , respondent□accused has",audio_30_185.mp3 +"come present in court. 2. On the last date of hearing i.e. 10 th july, 2018, learned counsel representing the parties, on instructions of their",audio_30_186.mp3 +"respective clients, stated before this court that after recording of conviction vide judgment dated 22nd june, 2018 by this court, parties have resolved their dispute",audio_30_187.mp3 +"amicably inter se them. By way of amicable settlement, both the parties have agreed that in Cas. an amount of Rs. 10 lac in lump",audio_30_188.mp3 +"sum is paid to the complainant, complainant shall have no objection in getting the matter compounded under S. 147 of the act ( for short",audio_30_189.mp3 +"'act'). But since on the last date, there was none to make definite statement with regard to compromise, matter was adjourned for today with direction",audio_30_190.mp3 +"to the complainant or his authorized representatives to remain present in court. 3. Today, during the proceedings of the Cas. , a joint . Appl. under",audio_30_191.mp3 +"S. 147 of the act, has been filed on behalf of the respondent□accused and the complainant/petitioner, placing therewith compromise arrived inter se the parties.downloaded on",audio_30_192.mp3 +"- 31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_193.mp3 +"It has been averred in the Appl. that the parties have resolved to settle their matter amicably in terms of the compromise, wherein respondent/accused has",audio_30_194.mp3 +"agreed to pay a sum of Rs. 10 in lump sum to the complainant/petitioner towards his liability. As per agreement, respondent/accused shall pay Rs. 5,00,000/□",audio_30_195.mp3 +"to the complainant within a period of one month, whereas remaining amount of Rs. 5,00,000/□ within two months from today i.e on or before 15th",audio_30_196.mp3 +"september, 2018. It has been also agreed inter se parties that after receipt of entire amount, matter shall be compromised. Though, there is specific averment",audio_30_197.mp3 +"in the Appl. with regard to compromise/settlement arrived inter se parties, but this court solely with a view to ascertain the correctness and genuineness of",audio_30_198.mp3 +"the compromise arrived inter se parties, also recorded the statement of sh. Sudesh kumar, AR of complainant/petitioner, who otherwise had filed complaint on behalf",audio_30_199.mp3 +"of the appellant/complainant under S. 138 of the act, in the competent court of law sh. Sudesh kumar, stated on oath that . Appl. under",audio_30_200.mp3 +"S. 147 of the act, praying therein for compounding the offence has been filed jointly on behalf of the complainant as well as accused and",audio_30_201.mp3 +"it also bears his signatures. He further stated on oath that as per the settlement/compromise, arrived inter se parties, respondent/accused has agreed to pay total",audio_30_202.mp3 +sum of Rs. 10 lac to the complainant towards his liability and in Cas. such amount is paid within two installments as agreed between the,audio_30_203.mp3 +"parties, complainant/petitioner shall have no objection in getting the matter compounded under S. 147 of the act. Mr. Sudesh kumar also stated that in Cas. ",audio_30_204.mp3 +"entire amount as per agreement is received within stipulated time, conviction awarded by this court can also be quashed and set□ aside, but compounding, if",audio_30_205.mp3 +"any, under S. 147 of the act, be ordered after receipt of the full payment. 4. There is no dispute that this court vide judgment",audio_30_206.mp3 +"dated 22nd june, 2018 has held respondent□accused guilty of having committed the offence punishable under S. 138 of the act and now adequate sentence and",audio_30_207.mp3 +"compensation was left to be awarded to the respondent/accused. But in view of the aforesaid developments, no final order till date has been passed as",audio_30_208.mp3 +"far as quantum is concerned. Now, question remains that whether this court after recording conviction has power to . Compound the Cas. under S. 147",audio_30_209.mp3 +"of the act or not?.downloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_210.mp3 +"Judgment rendered by Hon'ble apex court in damodar S. prabhu vs. Sayed babalal h (2010)5 scc 663, fairly submitted that even after recording conviction under",audio_30_211.mp3 +"S. 138 of the act, this court has power to compound the offence while exercising power under S. 147 of the act. In the aforesaid",audio_30_212.mp3 +"judgment, Hon'ble apex court while laying certain guidelines has held that in Cas. accused intends to compromise the matter under S. 147 of the act,",audio_30_213.mp3 +"which is otherwise a special act after recording of conviction, prayer made in that regard can be accepted with the leave of the court. Hon'ble ",audio_30_214.mp3 +"apex court further held that as far as non□obstante Cl. included in S. 147 of the 1881 act is concerned, the 1881 act being a",audio_30_215.mp3 +"special statute, shall have overriding effect over the provisions of S. 320 of cr.p.c, relating to compounding of offence and as such, prayer for compounding",audio_30_216.mp3 +of offence can be considered by the court without being influenced by provision contained under S. 320 of Cr.P.C. it would be,audio_30_217.mp3 +"profitable to reproduce following paras no. 6 to 15 of the judgment herein:□ 6. Before examining the guidelines proposed by the learned AG , it",audio_30_218.mp3 +"would be useful to clarify the . Position relating to the compounding of offences under the NI Act , 1881. Even before the insertion of",audio_30_219.mp3 +"S. 147in the act (by way of an amendment in 2002) some6. Before examining the guidelines proposed by the learned AG , it would be",audio_30_220.mp3 +"useful to clarify the position relating to the compounding of offences under the NI Act , 1881. Even before the insertion of S. 147in the",audio_30_221.mp3 +act (by way of an amendment in 2002) some high courts had permitted the compounding of the offence contemplated by S. 138 during the later,audio_30_222.mp3 +"stages of litigation. In fact in o.p. Dholakia vs. state of haryana, (2000) 1 scc 672, a division bench of this court had permitted the",audio_30_223.mp3 +compounding of the offence even though the petitioner's conviction had been upheld by all the three designated forums. After noting that the petitioner had already,audio_30_224.mp3 +"entered into a compromise with the complainant, the bench had rejected the state's argument that this court need not interfere with the conviction and sentence",audio_30_225.mp3 +since it was open to the parties to enter into a compromise at an earlier stage and that they had not done so. The bench,audio_30_226.mp3 +"had observed:□ ""... Taking into consideration the nature of the offence in question and the fact that the complainant and the accused have already entered",audio_30_227.mp3 +"into a compromise, we think it appropriate to grant permission in the peculiar facts and circumstances of the present Cas. , to compound.""downloaded on - 31/07/2018",audio_30_228.mp3 +"23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_229.mp3 +"Anr., (2002) 8 scc 164, kishore kumar vs. J. k. Corp. ltd., (2004) 12 scc 494 and sailesh shyam parsekar vs. baban, (2005) 4 scc",audio_30_230.mp3 +"162, among other cases. As mentioned above, the NI Act , 1881 was amended by the negotiable instruments (amendment and miscellaneous provisions) act, 2002 which",audio_30_231.mp3 +"inserted a specific provision, i.e. S. 147`to make the offences under the act compoundable'. We can refer to the following extract from the statement of",audio_30_232.mp3 +"objects and reasons attached to the 2002 amendment which is self□ explanatory:□ ""prefatory note □ statement of objects and reasons. □the NI Act , 1881",audio_30_233.mp3 +"was . Amended by the banking, public financial institutions and negotiable instruments laws (amendment) act, 1988 wherein a new chapter xvii was Inc. for penalties",audio_30_234.mp3 +in Cas. of dishonour of cheques due to insufficiency of funds in the account of the drawer of the cheque. These provisions were Inc. with,audio_30_235.mp3 +"a view to encourage the culture of use of cheques and enhancing the credibility of the instrument. The existing provisions in the NI Act ,",audio_30_236.mp3 +"1881, viz. , Ss. 138 to 142 in chapter xvii have been found deficient in dealing with dishonour of cheques. Not only the punishment provided in",audio_30_237.mp3 +"the act has proved to be inadequate, the procedure prescribed for the courts to deal with such matters has been found to be cumbersome. The",audio_30_238.mp3 +"courts are unable to dispose of such cases expeditiously in a time bound manner in view of the procedure contained in the act. ..."" (emphasis",audio_30_239.mp3 +"supplied) in order to address the deficiencies referred to above,S. 10 of the 2002 amendment inserted Ss. 143, 144, 145, 146 and 147 into the",audio_30_240.mp3 +"act, which deal with aspects such as the power of the court to try cases summarily (S. 143), mode of service of summons (S. 144),",audio_30_241.mp3 +"evidence on Aff. (S. 145), bank's slip to be considered as prima facie evidence of certain facts (S. 146) and offences under the act to",audio_30_242.mp3 +"be compoundable (S. 147). At present, we are of course concerned with S. 147 of the act, which reads as follows:□ ""147. Offences to be",audio_30_243.mp3 +"compoundable. □ notwithstanding anything contained in the Cr.P.C. , 1973 (2 of 1974), every offence punishable under this act shall be compoundable. 8.",audio_30_244.mp3 +"At this point, it would be apt to clarify that in view of the non□obstante Cl. , the compounding of offences under the NI Act ,",audio_30_245.mp3 +1881 is controlled by S. 147 and the scheme contemplated by S. 320 . Of the Cr.P.C. [hereinafter `crpc'] will not be,audio_30_246.mp3 +applicable in the strict sense since the latter is meant for the specified offences under the I.P.C. . So far as the crpc is,audio_30_247.mp3 +"concerned, S. 320 deals with offences which are compoundable, either by the parties without the leave of the court or by the parties but only",audio_30_248.mp3 +"with the leave of the court. Sub□S. (1) of S. 320 enumerates the offences downloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30 july,",audio_30_249.mp3 +2018,audio_30_250.mp3 +"S. (2) of the said S. specifies the offences which are compoundable with the leave of the court. S. 147 of the NI Act ,",audio_30_251.mp3 +"1881 is in the nature of an enabling provision which provides for the compounding of offences prescribed under the same act, thereby serving as an",audio_30_252.mp3 +exception to the general rule Inc. in sub□S. (9) of S. 320 of the crpc which states that `no offence shall be compounded except as,audio_30_253.mp3 +provided by this S. '. A bare reading of this provision would lead us to the inference that offences punishable under laws other thanthe indian penal,audio_30_254.mp3 +"code also cannot be compounded. However, since S. 147 was inserted by way of an amendment to a special law, the same will override the",audio_30_255.mp3 +"effect of S. 320(9) of the crpc, especially keeping in mind that S. 147 carries a non□ obstante Cl. 9.in vinay devanna nayak vs. ryot",audio_30_256.mp3 +"sewa sahakari bank ltd., (2008) 2 scc 305, this court had examined `whether an offence punishable under S. 138 of the act which is a",audio_30_257.mp3 +"special law can be compounded'. After taking note of a divergence of views in past decisions, this court took the following position (c.k. Thakker, j.",audio_30_258.mp3 +"At Para. 17):□ "" ... This provision is intended to prevent dishonesty on the part of the drawer of negotiable instruments in issuing cheques without",audio_30_259.mp3 +sufficient funds or with a view to inducing the payee or holder in due course to act upon it. It thus seeks to promote the,audio_30_260.mp3 +"efficacy of bank operations and ensures credibility in transacting business through cheques. In such matters, therefore, normally compounding of offences should not be denied. Presumably,",audio_30_261.mp3 +"parliament also realised this aspect and inserted S. 147 by the negotiable . Instruments (amendment and miscellaneous provisions) act, 2002 (act 55 of 2002). ...""",audio_30_262.mp3 +"in the same decision, the court had also noted (Para. 11):□ ""... Certain offences are very serious in which compromise or settlement is not permissible.",audio_30_263.mp3 +"Some other offences, on the other hand, are not so serious and the law may allow the parties to settle them by entering into a",audio_30_264.mp3 +compromise. The compounding of an offence signifies that the person against whom an offence has been committed has received some gratification to an act as,audio_30_265.mp3 +"an inducement for his abstaining from proceeding further with the Cas. ."" 10. It would also be pertinent to refer to this court's decision in r.",audio_30_266.mp3 +"Rajeshwari vs. h.n. Jagadish, (2008) 4 scc 82, wherein the following observations were made (s.b. Sinha, j. At Para. 12):□ ""NI Act is a",audio_30_267.mp3 +"special act. S. 147 provides for a non obstante Cl. , stating: 147. Offences to be compoundable. □ notwithstanding anything contained in the code of Crl. ",audio_30_268.mp3 +"procedure, 1973 (2 of 1974), every offence punishable under this act shall be compoundable.downloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_269.mp3 +"Proceedings pending before the courts for trial of offences under the said act. Stricto sensu, however, the table appended to S. 320 of the code",audio_30_270.mp3 +"of Crl. procedure is not attracted as the provisions mentioned therein refer only to provisions of the penal codeand none other."" 11. The compounding of",audio_30_271.mp3 +"the offence at later stages of litigation in cheque bouncing cases has also been held to be permissible in a recent decision of this court,",audio_30_272.mp3 +"reported as k.m. Ibrahim vs. k.p. Mohammed & anr., 2009 (14) scale 262, wherein kabir, j. Has noted (at paras. 11, 12):□ . ""11. As",audio_30_273.mp3 +"far as the non□obstante Cl. included in S. 147 of the 1881 act is concerned, the 1881 act being a special statute, the provisions of",audio_30_274.mp3 +S. 147 will have an overriding effect over the provisions of the code relating to compounding of offences. ... 12. It is true that the,audio_30_275.mp3 +"Appl. under S. 147 of the NI Act was made by the parties after the proceedings had been concluded before the appellate forum. However,",audio_30_276.mp3 +S. 147 of the aforesaid act does not bar the parties from compounding an offence under S. 138 even at the appellate stage of the,audio_30_277.mp3 +"proceedings. Accordingly, we find no reason to reject the Appl. undersection 147 of the aforesaid act even in a proceeding under Art. 136 of the",audio_30_278.mp3 +"constitution."" 12. It is evident that the permissibility of the compounding of an offence is linked to the perceived seriousness of the offence and the",audio_30_279.mp3 +"nature of the remedy provided. On this point we can refer to the following extracts from an academic commentary [cited from: k.n.c. Pillai, r.v. Kelkar's",audio_30_280.mp3 +"Crl. procedure, 5th edn. (lucknow: eastern book Co. , 2008) at p. 444]:□ ""a crime is essentially a wrong against the society and the state. Therefore,",audio_30_281.mp3 +"any compromise between the accused person and the individual victim of the crime should not absolve the accused from Crl. responsibility. However, where the offences",audio_30_282.mp3 +"are essentially of a Pvt. nature and relatively not quite serious, the code considers it expedient to recognize some of them as compoundable offences and",audio_30_283.mp3 +"some Ors. as compoundable only with the permission of the court. ..."" in a recently published commentary, the following observations have been made with regard",audio_30_284.mp3 +"to the offence punishable under S. 138 of the act [cited from:downloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_285.mp3 +"138, NI Act □ tackling an avalanche of cases (new delhi: universal law publishing co. Pvt. Ltd., 2009) at p. 5] ""... Unlike that",audio_30_286.mp3 +"for other forms of crime, the . Punishment here (in so far as the complainant is concerned) is not a means of seeking retribution, but",audio_30_287.mp3 +is more a means to ensure payment of money. The complainant's interest lies primarily in recovering the money rather than seeing the drawer of the,audio_30_288.mp3 +cheque in jail. The threat of jail is only a mode to ensure recovery. As against the accused who is willing to undergo a jail,audio_30_289.mp3 +"term, there is little available as remedy for the holder of the cheque. If we were to examine the No. of complaints filed which were",audio_30_290.mp3 +"`compromised' or `settled' before the final judgment on one side and the cases which proceeded to judgment and conviction on the other, we will find",audio_30_291.mp3 +"that the bulk was settled and only a miniscule No. Conti. ."" 13. It is quite obvious that with respect to the offence of dishonour of",audio_30_292.mp3 +"cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect. There is also some support for the",audio_30_293.mp3 +"apprehensions raised by the learned AG that a majority of cheque bounce cases are indeed being compromised or settled by way of compounding, albeit",audio_30_294.mp3 +during the later stages of litigation thereby contributing to undue delay in J. □ delivery. The problem herein is with the tendency of litigants to belatedly,audio_30_295.mp3 +"choose compounding as a means to resolve their dispute. Furthermore, the written submissions filed on behalf of the learned AG have stressed on the",audio_30_296.mp3 +"fact that unlike S. 320 of the crpc, S. 147 of the NI Act provides no explicit guidance as to what stage compounding can",audio_30_297.mp3 +or cannot be done and whether compounding can be done at the instance of the complainant or with the leave of the court. As mentioned,audio_30_298.mp3 +"earlier, the learned AG 's submission is that in the absence of statutory guidance, parties are choosing compounding as a method of last resort instead",audio_30_299.mp3 +of opting for it as soon as the magistrates take cognizance of the complaints. One explanation for such behaviour could be that the accused persons,audio_30_300.mp3 +are willing to take the chance of progressing through the various stages of litigation and then choose . The route of settlement only when no,audio_30_301.mp3 +"other route remains. While such behaviour may be viewed as rational from the viewpoint of litigants, the hard facts are that the undue delay in",audio_30_302.mp3 +opting for compounding contributes to the arrears pending before the courts at various levels. If the accused is willing to settle ordownloaded on - 31/07/2018,audio_30_303.mp3 +"23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_304.mp3 +"Later stage of litigation, it is generally indicative of some merit in the complainant's Cas. . In such cases it would be desirable if parties choose",audio_30_305.mp3 +"compounding during the earlier stages of litigation. If however, the accused has a valid defence such as a mistake, forgery or coercion among other grounds,",audio_30_306.mp3 +then the matter can be litigated through the specified forums. 14. It may be noted here that S. 143 of the act makes an offence,audio_30_307.mp3 +"under S. 138 triable by a judicial magistrate first class (jmfc). After trial, the progression of further legal proceedings would depend on whether there has",audio_30_308.mp3 +"been a conviction or an acquittal. In the Cas. of conviction, an appeal would lie to the court of sessions under S. 374(3)(a) of the",audio_30_309.mp3 +"crpc; thereafter a revision to the HC under S. 397/401 of the crpc and finally a petition before the SC , seeking special leave",audio_30_310.mp3 +"to appeal under 136 of the constitution of india. Thus, in Cas. of conviction there will be four levels of litigation. 7 in the Cas. ",audio_30_311.mp3 +"of acquittal by the jmfc, the complainant could appeal to the HC under S. 378(4) of the crpc, and thereafter for special leave to",audio_30_312.mp3 +"appeal to the SC under Art. 136. In such an instance, therefore, there will be three levels of proceedings. 15. With regard to the",audio_30_313.mp3 +"progression of litigation in cheque bouncing cases, the learned AG has urged this court to frame guidelines for a graded scheme of imposing costs",audio_30_314.mp3 +on parties who unduly delay compounding of the offence. It was submitted that the requirement of deposit of the costs will act as a deterrent,audio_30_315.mp3 +"for delayed composition, since at present, free and easy compounding of offences at any stage, however belated, gives an incentive to the drawer of the",audio_30_316.mp3 +cheque to delay . Settling the cases for years. An Appl. for compounding made after several years not only results in the system being burdened,audio_30_317.mp3 +"but the complainant is also deprived of effective J. . In view of this submission, we direct that the following guidelines be followed:□ the guidelines (i)",audio_30_318.mp3 +"in the circumstances, it is proposed as follows: (a) that directions can be given that the writ of summons be suitably modified making it clear",audio_30_319.mp3 +to the accused that he could make an Appl. for compounding of the offences at the first or second hearing of the Cas. and that,audio_30_320.mp3 +"if such an applicationdownloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_321.mp3 +"On the accused.(b) if the accused does not make an Appl. for compounding as aforesaid, then if an Appl. for compounding is made before the",audio_30_322.mp3 +"magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque",audio_30_323.mp3 +"amount to be deposited as a condition for compounding with the legal services Auth. , or such Auth. as the court deems fit. (c) similarly, if",audio_30_324.mp3 +"the Appl. for compounding is made before the sessions court or a HC in revision or appeal, such compounding may be allowed on the",audio_30_325.mp3 +"condition that the accused pays 15% of the cheque amount by way of costs. (d) finally, if the Appl. for compounding is made before the",audio_30_326.mp3 +"SC , the Fig. would increase to 20% of the cheque amount. Let it also be clarified that any costs imposed in accordance with these",audio_30_327.mp3 +"guidelines should be deposited with the legal services Auth. operating at the level of the court before which compounding takes place. For instance, in Cas. ",audio_30_328.mp3 +"of compounding during the pendency of proceedings before a magistrate's court or . A court of sessions, such costs should be deposited with the district",audio_30_329.mp3 +"legal services Auth. . Likewise, costs imposed in connection with composition before the HC should be deposited with the state legal services Auth. and those",audio_30_330.mp3 +"imposed in connection with composition before the SC should be deposited with the national legal services Auth. . 6. Consequently, in view of the aforesaid",audio_30_331.mp3 +"law laid down by the Hon'ble apex court coupled with the facts that this court enjoys power under S. 147 of the act, to compound",audio_30_332.mp3 +"the offence, joint prayer made on behalf of the parties for compounding the offence deserves to be considered. Since final order, if any, in term",audio_30_333.mp3 +"of the joint prayer made in the Appl. is to be passed after receipt of full payment agreed to be made by the accused, this",audio_30_334.mp3 +"court deems it fit to adjourn this Cas. till 17th august, 2018, on which date, respondent□ accused shall pay an amount of Rs. 5,00,000/□ as",audio_30_335.mp3 +"per compromise. 7. However, it is made clear that prayer for compounding the offence shall be considered and decided by this court after receipt of",audio_30_336.mp3 +"full payment i.e. Rs. 10 lac on or before 15th september, 2018. 8. Needless to say, in Cas. first installment as agreed .downloaded on -",audio_30_337.mp3 +"31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_338.mp3 +"2018, he shall surrender before this court on the next date of hearing in terms of the judgment passed by this court. List on 17th",audio_30_339.mp3 +"august, 2018. 16 july, 2018 th ( shankar) r to (sandeep sharma) judge cwp no.1353 of 2018 with cwp's No. 1347, 1354, . 1355, 1374,",audio_30_340.mp3 +"1375, 184,1393,1413,1416,1501,1504 to 1508, 1517 and 1524 of 2018 17.07.2018 present: mr. Sunil mohan goel, kulbhushan khajuria, vinod chauhan, pradeep k. Sharma, raj negi, pawanish",audio_30_341.mp3 +"shukla, vivek singh thakur and adarsh k. Vashishta, advocates, for the respective petitioners. Mr. S.c.sharma and mr. Dinesh thakur, additional Adv. generals, for the respondent□",audio_30_342.mp3 +"state in all the petitions. Mr. Neel kamal sharma, Adv. , for the respondent□university. Mr. Shrawan dogra, Sr. Adv. with mr. Bharat thakur, mr. Deven khanna",audio_30_343.mp3 +"and mr. Harsh kalta, advocates, for respondent no.4 in cwp no.1353 of 2018. Mr. b.c.negi, Sr. Adv. , with mr. Nitin thakur, Adv. , for respondent no.5",audio_30_344.mp3 +"in cwp no.1353 of 2018. Mr. r.m.bisht, Adv. , for respondent no.6 in cwp no.1353 of 2018. Mr. Ravinder thakur, Adv. , for respondent no.7 in cwp",audio_30_345.mp3 +"no.1353 of 2018.downloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_346.mp3 +learned Adv. general is not available today as he has to go to delhi in connection with some Cas. in Hon'ble apex court and as,audio_30_347.mp3 +"such, matter may be taken up on some other date. Mr. Thakur, on instructions, further informed this court that 9 seats have been blocked/kept vacant",audio_30_348.mp3 +"and same shall be filled up after out come of the present writ petitions. At this stage, mr. Sunil mohan goel, learned counsel representing the",audio_30_349.mp3 +"petitioners, states that though in the judgment . Rendered by Hon'ble mr. J. vivek singh thakur, j., it has been categorically held that children, who",audio_30_350.mp3 +"had participated in counseling shall be entitled for admission to the medical/ dental colleges, but there are certain writ petitioners, who though have participated in",audio_30_351.mp3 +"the counseling, but their forms were rejected on the ground that they had not approached this court by way of writ petitions. Aforesaid issue shall",audio_30_352.mp3 +"be determined at the time of final disposal of the cases at hand. List on 23rd july, 2018, as prayed for by learned Adv. general.",audio_30_353.mp3 +"(sandeep sharma) judge 17 july, 2018 th ( shankar) . 17.07.2018 present: mr. S.c.sharma and mr. Dinesh thakur, additional Adv. generals, for the applicant□state. Mr.",audio_30_354.mp3 +"Sanjeev kuthiala, Adv. , for the respondent. Mr. S.c.sharma, learned additional Adv. general, prays for and is granted two weeks' time to place on record certified",audio_30_355.mp3 +"copy of judgment dated 22.12.2016, passed in Crl. appeal no.543 of 208, whereby aforesaid appeal having been filed by the state was rejected on the",audio_30_356.mp3 +"ground of maintainability. List after two weeks. (sandeep sharma) judge 17 july, 2018 th ( shankar) . 17.07.2018 present: mr. Vivek sharma, Adv. , for the",audio_30_357.mp3 +"plaintiffs. Nemo for the defendants. Pursuant to court notice issued to the plaintiffs, mr. Surinder mohan sharma, sdo gagret, has come present in court. He",audio_30_358.mp3 +"prays for and is granted two weeks' time to do thedownloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_359.mp3 +"R list on 6th august, 2018. (sandeep sharma) judge 17 july, 2018 th ( shankar) . 17.07.2018 present: mr. Vivek sharma, Adv. , for the plaintiff.",audio_30_360.mp3 +"Mr. Neeraj gupta, Adv. , for defendant no.1. Mr. G.S. rathore, Adv. , for defendant no.2. As per report of the registry, report of local commissioner i.e.",audio_30_361.mp3 +"Tehsildar, chirgaon is still awaited. Vide order dated 26.6.2018, this court had specifically directed the registry to remind the tehsildar, chirgaon to submit its report",audio_30_362.mp3 +"in terms of order dated 29.5.2018, however same has not been filed till date. Learned counsel representing the parties, on instructions, state that since certified",audio_30_363.mp3 +"copy of order, dated 29.5.2018 was not received till passing of order dated 26.6.2018, no action was taken by the tehsildar, chirgaon to effect the",audio_30_364.mp3 +"partition of the property in question in terms of order, dated 29.5.2018. Learned counsel representing the parties further informed that after recording of order, dated",audio_30_365.mp3 +"26.6.2018, parties have already appeared before the tehsildar, chirgaon and he is in process of complying the order, dated 29.5.2018. Consequently, in view of the",audio_30_366.mp3 +"above, this court deems it fit to adjourn the matter for four weeks, to enable the tehsildar, chirgaon to do the needful in terms of",audio_30_367.mp3 +"order, dated 29.5.2018. Learned counsel representing the parties undertake to cause presence of the parties or their AR on 6th august, 2018 before the",audio_30_368.mp3 +"tehsildar, chirgaon to enable him . To comply with the order dated 29.5.2018. Learned additional Adv. general, undertakes to apprise the tehsildar, chirgaon with regard",audio_30_369.mp3 +"to passing of today's order, so that needful is done within stipulated period. List on 4th september, 2018, on which date, tehsildar, chirgaon shall submit",audio_30_370.mp3 +"his report. Copy dasti.downloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_371.mp3 +"( shankar) . 17.07.2018 present: mr. J. s.bhogal, Sr. Adv. with mr. Parmod negi, Adv. , for the petitioner. Mr. Ashok sharma, Adv. general with mr.",audio_30_372.mp3 +"S.c.sharma and mr. Dinesh thakur, additional Adv. generals, for the respondent□state. Sequel to order dated 6th july, 2018, sh. R.p. Verma, engineer□in□chief, hp,pwd and sh.",audio_30_373.mp3 +"A.k.soni, executive engineer, arki have come present in court. Sh. R.p. Verma, engineer□in□chief has also filed his Aff. , explaining therein circumstances under which an amount",audio_30_374.mp3 +"of rs.79,62,052/□ was remitted into the bank account of the petitioner by way of rtgs without having obtained undertaking on the Aff. in terms of",audio_30_375.mp3 +"minutes of 8 th meeting held on 15.10.2016, wherein it was resolved that before making payment towards full and final settlement arrived inter se the",audio_30_376.mp3 +"Dept. and the petitioner, undertaking in Aff. duly attested by the first class magistrate shall be procured from the petitioner to the extent that all",audio_30_377.mp3 +"the claims pertaining to this work against the agreement in dispute are fully and finally settled and nothing is due from the executive engineer, arki",audio_30_378.mp3 +"and he shall withdraw all pending cases from Hon'ble HC , arbitration tribunal or any other statutory authorities against the work in question having carefully",audio_30_379.mp3 +"perused the Aff. , this court is not satisfied and convinced with the reasons stated by the . Engineer□in□chief for releasing the aforesaid amount without having",audio_30_380.mp3 +"obtained the undertaking in Aff. . Mr. Ashok sharma, learned Adv. general, prays for and is granted one week's time to file better supplementary Aff. detailing",audio_30_381.mp3 +therein the circumstances which led to the release of the amount without complying the conditions contained in the minutes of 8th meeting held on 15.10.2016.,audio_30_382.mp3 +"List on 31st july, 2018, on which date, engineer□in□ chief, shall personally remain present in court. (sandeep sharma) judge 17 july, 2018 th ( shankar)",audio_30_383.mp3 +". 17.07.2018 present: mr. Divya raj singh, Adv. , for the appellant. Mr. S.c.sharma and mr. Dinesh thakur,additional Adv. generals, for the respondent□ state.downloaded on -",audio_30_384.mp3 +"31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_385.mp3 +"(sandeep sharma) judge 17 july, 2018 th ( shankar) . 17.07.2018 present: mr. B.s.chauhan, Sr. Adv. with mr. Munish datwalia, Adv. , for the appellants. Mr.",audio_30_386.mp3 +"Gaurav gautam, Adv. vice counsel for the respondents no.1, 3 and 4. On the request of learned counsel representing the appellants, list this matter after",audio_30_387.mp3 +"two weeks. 17 july, 2018 th ( shankar) r to (sandeep sharma) judge cr.mmo no.337 of 2015 a/w . Cr.mmo no.33 and 36 of 2016",audio_30_388.mp3 +"17.07.2018 present: mr. R.k.gautam, Sr. Adv. with mr. Gaurav gautam, Adv. , for the petitioner(s).downloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_389.mp3 +"Mr. Rajiv rai, mr. Rakesh chauhan, mukesh sharma and mr. Raj negi, advocates, for the respective respondents in all the petitions. R list on 7th",audio_30_390.mp3 +"august, 2018, as prayed for by learned counsel for the parties. (sandeep sharma) judge 17 july, 2018 th ( shankar) . 17.07.2018 present: mr. Divya",audio_30_391.mp3 +"raj singh, Adv. , for the petitioner. Mr. S.c.sharma and Mr. dinesh thakur, additional Adv. generals, for the respondent□ state. Issue notice. Mr. S.c.sharma, learned additional",audio_30_392.mp3 +"Adv. general, waives notice on behalf of the respondent□ state. Reply/status report, if any, be filed on 31st july, 2018. (sandeep sharma) judge 17 july,",audio_30_393.mp3 +"2018 th ( shankar) . 17.07.2018 present: mr. Rajesh batra and Ms. . Rinki kashmiri, advocates, for the petitioner. Mr. S.c.sharma and Mr. dinesh thakur, additional",audio_30_394.mp3 +"Adv. generals, for the respondent□ state. Nemo for respondent no.2. Mr. Dinesh bhatia, Adv. vice counsel for respondent no.3. List on 17th august, 2018 as",audio_30_395.mp3 +"prayed for by learned counsel for the parties. (sandeep sharma) judge 17 july, 2018 th ( shankar) . 17.07.2018 present: mr. Bhupinder gupta, Sr. Adv. ",audio_30_396.mp3 +"with mr. Neeraj gupta, Adv. , for the plaintiffs. Mr. Satyen vaidya, Sr. Adv. with mr. Vivek sharma, Adv. , for defendants no.1 to 3. Mr. S.c.sharma",audio_30_397.mp3 +"and mr. Dinesh thakur, additional Adv. generals, for the defendant□state. Statements of pw□2, viz. ramesh gupta, inspector, office of the assistant commissioner of IT ,",audio_30_398.mp3 +"railway board building, shimla and pw□3, anil kumar, junior technical assistant, office of downloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_399.mp3 +"Recorded, whereas Anr. plaintiff witness viz. , sh. Ankush verma, clerk, bank of india, the mall shimla, though came present, but since he has not brought",audio_30_400.mp3 +"the relevant record, his statement could not be recorded. During the proceedings of the Cas. aforesaid bank official invited attention of this court to the",audio_30_401.mp3 +"communication sent by chief manager of the bank to demonstrate that record is not available, but it has not been mentioned whether the record stands",audio_30_402.mp3 +"destroyed or weeded out. In the aforesaid background, the statement of aforesaid pw□4 is deferred for the time being. Mr. Neeraj gupta, learned counsel representing",audio_30_403.mp3 +the plaintiffs prays for and is granted two weeks' time to take steps for summoning the remaining plaintiff's witnesses including pw□ 4. In the event,audio_30_404.mp3 +"of taking such steps, additional registrar . (judicial) may fix date for their examination, preferably in the month of september, 2018. (sandeep sharma) judge 17",audio_30_405.mp3 +"july, 2018 th ( shankar) r to cmp No. 6239,6240 and 6241 of 2018 in . 18.07.2018 present: mr. Jeevan kumar, Adv. , for the non□",audio_30_406.mp3 +"applicant/appellant. Mr. Dheeraj k. Vashishat, Adv. , for the applicants/respondents. By way of instant applications filed under S. 151 of the code of Civ. procedure, prayer",audio_30_407.mp3 +"has been made on behalf of applicants/respondents no.1 to 3 for the release of amount of compensation in their favour. 2. Mr. Jeevan kumar, learned",audio_30_408.mp3 +"counsel representing the non□ applicant/appellant, states that he does not intend to file any reply to the applications and has no objection in Cas. some",audio_30_409.mp3 +reasonable amount is released in favour of the applicants/respondents no.1 to 3 during the pendency of the present appeal. 3. It is not in dispute,audio_30_410.mp3 +"that an amount of rs.23,54,485/□+ rs.25,000/□ stands deposited in the registry of this court pursuant to order dated 13.1.2017, passed by this court while staying",audio_30_411.mp3 +"the operation/execution of impugned award, dated 31 st august, 2016, passed by learned motor accident claims tribunal (iii), una, district una, h.p. 4. Averments contained",audio_30_412.mp3 +"in the applications, which have been otherwise not controverted, clearly suggest that applicants/respondents no.1 to 3 being old father, mother and wife were totally dependent",audio_30_413.mp3 +"upon the deceased, who lost his life . In motor vehicle accident and at present they do not have any source of income and are",audio_30_414.mp3 +"wholly dependent upon the relatives.downloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_415.mp3 +"No.1 to 3 for maintaining themselves, this court sees no reason to deny the relief, as claimed in the applications at hand. 5. Accordingly, in",audio_30_416.mp3 +"view of the above, the present applications are allowed and registry is directed to release a sum of Rs. 3,00,000/□ in favour of applicant/respondent no.1,",audio_30_417.mp3 +"smt. Santosh kumari, Rs. 2,00,000/□ in favour of applicant/respondent no.2, smt. Chanchala devi and Rs. 1,00,000/□ in favour of applicant/respondent no.3, sh. Roshan lal, out",audio_30_418.mp3 +"of their defined shares, by remitting the same in their bank accounts, details whereof are given in annexure a□1 annexed with the applications, subject to",audio_30_419.mp3 +"the verification of the accounts branch. Ordered accordingly. Needless to say, remaining amount shall be invested in the shape of the fdrs. The applications stand",audio_30_420.mp3 +"disposed of. (sandeep sharma) judge 18 july, 2018 th ( shankar) . 20.07.2018 present: mr. Vinod gupta, Adv. vice counsel for the petitioner. Mr. S.c.sharma",audio_30_421.mp3 +"and Mr. dinesh thakur, additional Adv. generals with mr. Amit kumar dhumal, deputy Adv. general, for the respondent□state. List on 3rd august, 2018, as prayed",audio_30_422.mp3 +"for by learned counsel for the parties. (sandeep sharma) judge 20 july, 2018 th ( shankar) . 20.07.2018 present: mr. Dheeraj k. Vashishat, Adv. , for",audio_30_423.mp3 +"the plaintiffs. Mr. Bhupinder gupta, Sr. Adv. with mr. Ajeet jaswal,Adv. , for defendant no.2(b). Ms. . Leena guleria, Adv. vice counsel for defendants no.3 to 7.",audio_30_424.mp3 +"Mr. Kamal kumar, Adv. vice counsel for defendants no.8 and 9. Mr. Dheeraj k. Vashishat, learned counsel representing the plaintiff, states that during the pendency",audio_30_425.mp3 +"of the present suit, plaintiff no.1(a), viz. sh. H.s.serna has expired on 14th july, 2018 and as such, appropriate steps are required to be taken",audio_30_426.mp3 +"for bringing on record the legal representatives of deceased plaintiff no.1(a). Downloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_427.mp3 +"Weeks' time to move appropriate Appl. for bringing on record the legal representatives of deceased plaintiff no.1(a). Though, in terms of order, dated 20.4.2018 plaintiff's",audio_30_428.mp3 +"witnesses viz. sh. Ghan shyam singh (pw□2), sh. Uma shankar(pw□3), sh. Padam parkash (pw□4) and smt. Sumidha have come present, but on account of aforesaid",audio_30_429.mp3 +"development, matter cannot proceed further till . The time lrs of deceased plaintiff no.1(a) are brought on record. Accordingly, the plaintiff's witnesses, who have come",audio_30_430.mp3 +"present in court are discharged for today. (sandeep sharma) judge 20 july, 2018 th ( shankar) . 20.07.2018 present: mr. Bhupinder gupta, Sr. Adv. with",audio_30_431.mp3 +"mr. Ajeet jaswal, Adv. , for the appellants. Mr. G.d.verma, Sr. Adv. with Mr. b.c.verma, Adv. , for respondents no.1(a) to 1(d). List on 24th august, 2018,",audio_30_432.mp3 +"as prayed for by learned counsel for the parties. (sandeep sharma) judge 20 july, 2018 th ( shankar) . 20.07.2018 present: mr. K.d.sood, Sr. Adv. ",audio_30_433.mp3 +"with mr. Rajnish k. Lal, Adv. , for the appellant. Mr. Bhupinder gupta, Sr. Adv. with mr. Ajeet jaswal, Adv. , for respondent no.1. Nemo for respondents",audio_30_434.mp3 +no.11(e) and 11(f). Learned counsel representing the parties state at bar that issue with regard to maintainability of composite appeal filed against the judgment rendered,audio_30_435.mp3 +"in the main suit as well as counter claims stands referred to larger bench and as such, matter may be adjourned till the time that",audio_30_436.mp3 +"issue is decided. Accordingly, in view of the above, the matter is adjourned by six weeks. By way of instant Appl. filed under S. 100(5)",audio_30_437.mp3 +"cpc, permission has been sought from this court to raise an additional substantial question of law.downloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30",audio_30_438.mp3 +"july, 2018",audio_30_439.mp3 +"granted four weeks' time to file reply to the Appl. . (sandeep sharma) judge 20 july, 2018 th ( shankar) rsa no.7 of 2005 alongwith .",audio_30_440.mp3 +"Cross□objection no.36 of 2005 20.07.2018 present: mr. G.d.verma, Sr. Adv. with Mr. b.c.verma, Adv. , for the appellants. Ms. . Leena guleria, Adv. vice counsel for the",audio_30_441.mp3 +"respondents. Ms. . Leena guleria, learned counsel representing the respondents stated that instant matter is to be argued by mr. G.r. Palsra, Adv. , who had to",audio_30_442.mp3 +"leave the court abruptly on account of some personal work. Accordingly, in view of the above,list this matter after two weeks. (sandeep sharma) judge 20",audio_30_443.mp3 +"july, 2018 th ( shankar) . 20.07.2018 present: mr. Karan sharma, Adv. , for the appellant. Mr. Surinder sharma, Adv. vice counsel for respondents no.1 and",audio_30_444.mp3 +"2. Mr. Karan sharma, learned counsel representing the appellant stated that instant matter is to be argued by mr. Anand sharma, Adv. , who had to",audio_30_445.mp3 +"leave the court abruptly on account of some personal work. Accordingly, in view of the above,list this matter after two weeks. (sandeep sharma) judge 20",audio_30_446.mp3 +"july, 2018 th ( shankar) 20.07.2018 present: mr. Karan sharma, Adv. , for the appellant. . Mr. Surinder sharma, Adv. vice counsel for respondents no.1 and",audio_30_447.mp3 +"2. Mr. Karan sharma, learned counsel representing the appellant stated that instant matter is to be argued by mr. Anand sharma, Adv. , who had to",audio_30_448.mp3 +"leave the court abruptly on account of some personal work. R to accordingly, in view of the above,list this matter after two weeks.downloaded on -",audio_30_449.mp3 +"31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_450.mp3 +"( shankar) . 20.07.2018 present: mr. Karan sharma, Adv. , for the appellant. Mr. Surinder sharma, Adv. vice counsel for respondents no.1 and 2. Mr. Karan",audio_30_451.mp3 +"sharma, learned counsel representing the appellant stated that instant matter is to be argued by mr. Anand sharma, Adv. , who had to leave the court",audio_30_452.mp3 +"abruptly on account of some personal work. Accordingly, in view of the above,list this matter after two weeks. (sandeep sharma) judge 20 july, 2018 th",audio_30_453.mp3 +"( shankar) cr.mmo no.185 and 265 of 2015 20.07.2018 present: mr. R.k.bawa, Sr. Adv. , with mr. Ajay . Sharma, Adv. , for the petitioner in cr.mmo",audio_30_454.mp3 +"no.265 of 2015. Mr. s.c.sharma and mr. Dinesh thakur, learned additional Adv. general, with mr. Amit kumar dhumal, deputy Adv. general, for the state in",audio_30_455.mp3 +"both the petitions. Mr. Vivek sharma, Adv. for respondent no.2 in cr.mmo no.185 of 2015. R mr. Dinesh thakur, learned additional Adv. general, prays for",audio_30_456.mp3 +"and is granted two weeks' time to complete his brief. List thereafter. (sandeep sharma) judge 20 july, 2018 th ( shankar) Civ. suit no.58 of",audio_30_457.mp3 +"2016 20.07.2018 present: mr. Manoj bagga, Adv. vice counsel for the . Plaintiff. Defendants ex□parte. Mr. Manoj bagga, learned counsel representing the plaintiff stated that",audio_30_458.mp3 +"instant matter is to be argued by mr. Sanjeev kuthiala, Adv. , who had to leave the court abruptly on account of some personal work. R",audio_30_459.mp3 +"accordingly, in view of the above,list this matter after two weeks. (sandeep sharma) judge 20 july, 2018 th ( shankar) 23.07.2018 present: mr. Ajay kumar,",audio_30_460.mp3 +"Sr. Adv. , with mr. Dheeraj .downloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_461.mp3 +"Mr. Sudhir thakur, Adv. , for defendants no.1 to 5 and 9 to 11. Mr. Vipin pandit, Adv. , for defendants no.6 and mr. Mukesh thakur, Adv. ,",audio_30_462.mp3 +"for defendant no.8. Mr. S.c.sharma and mr. Dinesh thakur, additional Adv. general, with mr. Amit kumar dhumal, deputy Adv. general for defendants no.12 and list",audio_30_463.mp3 +"on 30.7.2018, as prayed for by learned counsel for the parties. (sandeep sharma) judge 23rdjuly, 2018 ( shankar) 23.07.2018 present: mr. Vinod gupta, Adv. vice",audio_30_464.mp3 +"counsel for the . Petitioner. Mr. S.c.sharma & mr. Dinesh thakur, additional Adv. general, with mr. Amit kumar dhumal, deputy Adv. general, for the respondent□state.",audio_30_465.mp3 +"Issue notice. Mr. S.c.sharma, learned additional Adv. general, waives notice on behalf of the respondent□ state. Reply/status report, if any, be filed on 6th august,",audio_30_466.mp3 +"2018. (sandeep sharma) judge 23 july, 2018 rd ( shankar) 23.07.2018 present: mr. Vinod gupta, Adv. vice counsel for the . Petitioner. Mr. S.c.sharma &",audio_30_467.mp3 +"mr. Dinesh thakur, additional Adv. general, with mr. Amit kumar dhumal, deputy Adv. general, for the respondent□state. Issue notice. Mr. S.c.sharma, learned additional Adv. general,",audio_30_468.mp3 +"waives notice on behalf of the respondent□ state. Reply/status report, if any, be filed on 6th august, 2018. (sandeep sharma) judge 23 july, 2018 rd",audio_30_469.mp3 +"( shankar) 23.07.2018 present: mr. Ajay chandel, Adv. , for the petitioner. . Mr. C.s.thakur, Adv. , for the respondent. Inadvertently, while recording order dated 17 th",audio_30_470.mp3 +"july, 2017, this court omitted to mention amount in the bailable warrants to be issued. Accordingly, registry is directed to issue bailable warrants in the",audio_30_471.mp3 +"sum of rs.25,000/□ with one local surety in the like amount to the satisfaction of the arresting police officer against the petitioner, downloaded on -",audio_30_472.mp3 +"31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_473.mp3 +"(sandeep sharma) judge 23 july, 2018 rd ( shankar) 23.07.2018 present: mr. Sanjeev kuthiala, Adv. , for the plaintiff/ . Petitioner. Mr. Vikrant chandel, Adv. , for",audio_30_474.mp3 +"respondent no.1. Respondent no.2 already ex□parte. By way of instant Appl. filed under S. 89 r/w S. 151 of the code of Civ. procedure,",audio_30_475.mp3 +"prayer has been made to refer the matter to medication for amicable settlement inter se parties. However, mr. Vikrant chandel, learned counsel representing the non□",audio_30_476.mp3 +"applicant/respondent, states that he has definite instruction to state that there is no possibility of amicable settlement between the parties and as such, no fruitful",audio_30_477.mp3 +"purpose would be served in sending the matter to mediation. In view of the above, learned counsel representing the applicant/plaintiff does not press this Appl. ",audio_30_478.mp3 +"at this stage and as such, same is disposed of accordingly. Cmpmo no.469 of 2017 & cmp no.1818/2017 learned counsel representing respondent no.1 states that",audio_30_479.mp3 +he does not intend to file any reply to the Appl. and matter may be heard on the basis of the material available on record.,audio_30_480.mp3 +"In view of the above, list this matter next week, as jointly prayed for by learned counsel . For the parties. (sandeep sharma) judge 23",audio_30_481.mp3 +"july, 2018 rd ( shankar) r to 23.07.2018 present: mr. Romesh verma, Adv. , for the appellants. . Mr. Neeraj gupta, Adv. , for respondents no.1,2 and",audio_30_482.mp3 +"Mr. s.c.sharma & mr. Dinesh thakur, additional Adv. generals, with mr. Amit kumar dhumal, deputy Adv. general, for the respondents□state. Mr. Neeraj gupta, Adv. has",audio_30_483.mp3 +"filed power of attorney on behalf of respondents no.1, 2 and 7. Though, respondent no.7 stands already proceeded against ex□parte, but no formal Appl. for",audio_30_484.mp3 +"recalling order, dated 30.5.2018, whereby respondent no.7 was ordered to be proceeded against ex□parte, has been filed. However, on the oral request of mr. Neeraj",audio_30_485.mp3 +"gupta, who has already filed power of attorney on behalf of respondent no.7, order dated 30.5.2018 is recalled and respondent no.7 is permitted to join",audio_30_486.mp3 +"the proceedings. Downloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_487.mp3 +"Since very small point is involved in the Cas. and as such, same can be heard at pre□ admission stage. Accordingly, on the joint request",audio_30_488.mp3 +"of learned counsel for the parties, list this matter after two weeks. Cmp no.3677 of 2018 interim order dated 27.4.2018 is made absolute. The Appl. ",audio_30_489.mp3 +"stands disposed of. (sandeep sharma) judge 23rdjuly, 2018 ( shankar) 23.07.2018 present: mr. Neeraj gupta, Adv. , for the petitioner. . Mr. Sunil mohan goel, Adv. ,",audio_30_490.mp3 +"for the respondent. Mr. Sunil mohan goel, Adv. has put in appearance on behalf of the respondent/complainant. He prays for and is granted two weeks'",audio_30_491.mp3 +"time to file power of attorney. List thereafter. (sandeep sharma) judge 23rdjuly, 2018 ( shankar) 23.07.2018 present: Ms. . Abhilasha kaundal, Adv. , for the . Plaintiff.",audio_30_492.mp3 +"Mr. sandeep k. Sharma, Adv. , for the defendant. Since learned counsel representing the plaintiff failed to take steps in terms of order, dated 31.7.2017 for",audio_30_493.mp3 +"issued for today. R to summoning the plaintiff's witnesses, notice could not be Ms. . Abhilasha kaundal, learned counsel representing the plaintiff prays for and is",audio_30_494.mp3 +granted one week further time to take steps in terms of order dated 31.7.2017 for summoning plaintiff's witnesses. In the event of taking steps within,audio_30_495.mp3 +"aforesaid period, additional registrar(judicial) to fix date for the examination of the plaintiff witnesses. (sandeep sharma) judge 23 july, 2018 rd ( shankar) 23.07.2018 present:",audio_30_496.mp3 +"mr. Jagdish thakur, Adv. , for the applicant. . Mr. Ajay sharma, Adv. , for respondents no.1 to 4. Nemo for respondent no.5.downloaded on - 31/07/2018 23:02:41",audio_30_497.mp3 +"... vs. heeralal on 30 july, 2018",audio_30_498.mp3 +Where it has been stated that no cogent and convincing reason has been assigned in the Appl. for filing the accompanying appeal beyond the period,audio_30_499.mp3 +"of limitation and as such, same deserved to be dismissed. However, this court having perused the Appl. , which is duly supported by an Aff. , is",audio_30_500.mp3 +"of the view that delay of 58 days in maintaining the appeal, has been sufficiently explained and as such, same deserves to be condoned. Accordingly,",audio_30_501.mp3 +"Appl. allowed and delay is condoned. The Appl. stands disposed of. Be registered. Mr. ajay sharma, Adv. has filed power of attorney on behalf of",audio_30_502.mp3 +"respondents no.1 to 4, whereas none has come present on behalf of respondent no.5 despite service and as such, he is ordered to be proceeded",audio_30_503.mp3 +"against ex□parte. Learned counsel representing the parties state that since very small point is involved in the Cas. and as such, same can be heard",audio_30_504.mp3 +"and decided at pre□ admission stage. Accordingly, on the joint request of learned counsel for the parties, list this matter after two weeks. . Learned",audio_30_505.mp3 +"counsel representing the non□applicants/ respondents, states he does not intend to file any reply to the Appl. and he has no objection in Cas. the",audio_30_506.mp3 +"execution/ operation of the award is stayed subject to the applicant's depositing the entire award amount alongwith up□to□date interest, within a period of four weeks",audio_30_507.mp3 +"from today. Learned counsel representing the applicant/ appellant, states that entire award amount in terms of the award passed by the learned commissioner under employee's",audio_30_508.mp3 +"compensation at, jawali, district kangra, h.p. Stands deposited ans as such, present Appl. may be allowed. Accordingly, in view of the above, the operation/ execution",audio_30_509.mp3 +"of the impugned award/judgment dated 30.11.2016, passed by learned commissioner under employee's compensation at, jawali, district kangra, h.p., in Civ. suit no.49 of 2013 titled",audio_30_510.mp3 +as usha devi and Ors. vs. rajat thakur and Anr. ; shall remain stayed. Appl. stands disposed of. Copy dasti.downloaded on - 31/07/2018 23:02:41 ... vs. ,audio_30_511.mp3 +"heeralal on 30 july, 2018",audio_30_512.mp3 +"24.07.2018 present: mr. Maan singh, Adv. , for the petitioner. . Mr. Anup rattan, Adv. , for the respondent. Mr. Maan singh, learned counsel representing the petitioner,",audio_30_513.mp3 +"fairly stated that petitioner□accused has failed to pay an amount of rs.2,50,000/□ on or before 15.7.018 in terms of order dated 27.4.2018 and as such,",audio_30_514.mp3 +"appropriate orders may be passed. Vide order dated 2.1.2018, this court while suspending the substantive sentence imposed by the learned court below, had directed the",audio_30_515.mp3 +"petitioner/accused to deposit amount of compensation and furnish personal and surety bonds in the sum of Rs. 25,000/□to the satisfaction of learned trial court, within",audio_30_516.mp3 +"a period of four weeks. But, despite repeated opportunities petitioner has failed to comply with order dated 2.1.2018 and as such , this court has",audio_30_517.mp3 +"no option, but to vacate the order. Accordingly, order dated 2.1.2018 is vacated. Respondent is at liberty to get the judgment of the trial court",audio_30_518.mp3 +"executed, in accordance with law. List on 30.7.2018 for final hearing. (sandeep sharma) judge 24 july, 2018 th ( shankar) 24.07.2018 present: mr. Aman sood,",audio_30_519.mp3 +"Adv. , for the appellant. . Mr. Ambika kotwal, Adv. , for respondents no.1 to 5. Ms. . Rubeena bhutt, Adv. vice counsel for respondents no.6 and 7.",audio_30_520.mp3 +"Rdespite sufficient opportunities, non□applicant/ appellant has failed to file reply to the Appl. having been filed by applicants/respondents no.1 and 2, praying therein for release",audio_30_521.mp3 +"of the amount. 2. Mr. Aman sood, learned counsel representing the non□ applicant/appellant, states that in Cas. amount is ordered to be released at this",audio_30_522.mp3 +"stage, it may be very difficult for the non□ applicant/appellant to recover the same in the event of appeal being allowed by this court and",audio_30_523.mp3 +"as such, instead of releasing the amount, as prayed for in the Appl. , main matter may be heard and decided on merits. He further stated",audio_30_524.mp3 +"that in Cas. this court intends to accept the prayer made in the Appl. , in that eventuality, some reasonable amount may be ordered to bedownloaded",audio_30_525.mp3 +"on - 31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_526.mp3 +"3. In view of the averments contained in the Appl. , where it has been stated that applicants/respondents were fully dependents upon the deceased and as",audio_30_527.mp3 +"such, they require money to meet their day to day expenses, prayer made in the Appl. deserve to be allowed. . 4. Consequently, in view",audio_30_528.mp3 +"of the above, the present Appl. is allowed and registry is directed to release a sum of Rs. 2,00,000/□ each in favour of applicants/respondents no.1",audio_30_529.mp3 +"and 2 from their respective shares, by remitting the same in their bank accounts, details whereof are given in para□5 of the Appl. , subject to",audio_30_530.mp3 +"the verification of the accounts branch. The Appl. is disposed of. (sandeep sharma) judge 24th july, 2018 ( shankar) Civ. suit no.43 and 44 of",audio_30_531.mp3 +"2016 24.07.2018 present: mr. Dheeraj k. Vashishat, Adv. , for the . Plaintiff(s). Mr. Anirudh sharma, Adv. , for the defendant(s). Omp no.49 & 111 of 2018",audio_30_532.mp3 +"list next week, as prayed for by learned counsel for the plaintiff(s). R (sandeep sharma) judge 24th july, 2018 ( shankar) 24.07.2018 present: mr. Dibender",audio_30_533.mp3 +"ghosh, Adv. , for the . Petitioners. As per report of the registry, notice issued to sole respondent has been received back unserved with the report",audio_30_534.mp3 +"that no such named person has been residing on the given address for the last three years. Mr. Dibender ghosh, learned counsel representing the petitioners,",audio_30_535.mp3 +"prays for and is granted two weeks' time to take steps for the service of sole respondent. In the event of taking such steps, notice",audio_30_536.mp3 +"be issued to the said respondent, returnable for 28th august, 2018. (sandeep sharma) judge 24 july, 2018 th ( shankar) 24.07.2018 present: mr. Ramakant sharma,",audio_30_537.mp3 +"Adv. , for the .downloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_538.mp3 +"Mr. Abhishek raj, Adv. , for defendants No. 1 and 2. Mr. S.c.sharma & mr. Dinesh thakur, addi tonal Adv. general, with mr. Amit kumar dhumal,",audio_30_539.mp3 +"deputy Adv. general, for defendants No. 3 to mr. Umesh kanwar, Adv. , for defendant no.7. Despite repeated orders passed by this court, adequate steps have",audio_30_540.mp3 +"not been taken by the deputy director, education for issuance of feasibility certificate. On the last date of hearing i.e. 10th july, 2018, this",audio_30_541.mp3 +"court was informed by learned additional Adv. general that deputy director, education is supposed to visit the premises tomorrow, whereafter necessary action shall be taken",audio_30_542.mp3 +"for issuance of feasibility certificate. 2. On 10th july, 2018, this court taking note of aforesaid submission having been made by learned additional Adv. general,",audio_30_543.mp3 +"had granted two weeks' time to do the needful, but till date nothing has been done. 3. Today, during the proceedings of the Cas. , learned",audio_30_544.mp3 +"additional Adv. general has invited attention of this court to communication, dated 12.7.2018 sent by the deputy director, education to demonstrate that matter is under",audio_30_545.mp3 +active consideration and necessary action shall be taken in the matter at the earliest. . 4. This court having perused the averments contained in the,audio_30_546.mp3 +"communication, dated 12.7.2018 is not convinced and satisfied with the progress made with regard to issuance of feasibility certificate because no reason whatsoever, has been",audio_30_547.mp3 +"assigned in the communication for non issuance of feasibility certificate. 5. Though, learned additional Adv. general, states that one last opportunity may be given to",audio_30_548.mp3 +"the deputy director, education to comply with the order passed by this court, but having perused the previous orders passed by this court, whereby repeated",audio_30_549.mp3 +"opportunities have been granted, this court is not inclined to accept the aforesaid prayer having been made by learned additional Adv. general. However, by way",audio_30_550.mp3 +"of indulgence, last and final opportunity of one week is granted to the deputy direction, education to take necessary steps, failing which, he shall personally",audio_30_551.mp3 +"remain present in the court on the next date of hearing. List on 7th august, 2018. Copy dasti.downloaded on - 31/07/2018 23:02:41 ... vs. heeralal",audio_30_552.mp3 +"on 30 july, 2018",audio_30_553.mp3 +"24.07.2018 present: mr. Dhairya sushant, Adv. , for the plaintiff. . Mr. P.s.goverdhan, Adv. , for the defendants. Learned counsel representing the non□applicants/ defendants prays for and",audio_30_554.mp3 +"is granted two weeks' time to file reply. List thereafter. R to (sandeep sharma) judge 24th july, 2018 (shankar) 24.07.2018 present: mr. H.r.sidhu, Adv. , for",audio_30_555.mp3 +"the petitioner. . Mr. Virender singh chauhan, Adv. , for the respondents. For the reasons set out in the Appl. , the same is allowed. Name of",audio_30_556.mp3 +proforma respondent no.3 is ordered to be deleted from the array of the respondents. Registry is directed to carry out necessary corrections in the memo,audio_30_557.mp3 +"of parties on the basis of the amended memo annexed with the Appl. . The Appl. is disposed of. Mr. Virender singh chauhan, Adv. has filed",audio_30_558.mp3 +"power of attorney on behalf of respondents no.1 and 2. List after two weeks, as prayed for. (sandeep sharma) judge 24th july, 2018 (shankar) 24.07.2018",audio_30_559.mp3 +"present: mr. Ajit gupta, Adv. , for the appellant.downloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_560.mp3 +"Mr. Rajinish k. Lall, Adv. , for the respondents. Sh. Ajit gupta, learned counsel representing the appellant states that though he is ready with the matter",audio_30_561.mp3 +"but on account of some personal difficulty, he is not in a position to argue the Cas. today and as such, matter may be taken",audio_30_562.mp3 +"up on some other date accordingly, in view of the above, list this matter after two weeks. (sandeep sharma) judge 24th july, 2018 (vinod) 24.07.2018",audio_30_563.mp3 +"present: mr. Ajit gupta, Adv. , for the appellant. . Mr. Rajinish k. Lall, Adv. , for the respondents. Sh. Ajit gupta, learned counsel representing the appellant",audio_30_564.mp3 +"states that though he is ready with the matter but on account of some personal difficulty, he is not in a position to argue the",audio_30_565.mp3 +"Cas. today and as such, matter may be taken up on some other date accordingly, in view of the above, list this matter after two",audio_30_566.mp3 +"weeks. (sandeep sharma) judge 24th july, 2018 (vinod) 24.07.2018 present: mr. B.c. Verma, Adv. , for the appellant. . Mr. Dinesh bhatia, Adv. vice counsel, for",audio_30_567.mp3 +"the respondent. Sh. Dinesh bhatia, learned counsel representing the respondent states that instant matter is to be argued by learned Sr. counsel viz. mr. Ramakant",audio_30_568.mp3 +"sharma, who is out of station on account of admission of her daughter and as such, matter may be taken up on some other date.",audio_30_569.mp3 +"Accordingly, in view of the above, list this matter after two weeks. (sandeep sharma) judge 24th july, 2018 (vinod) 24.07.2018 present: mr. S.c. Sharma and",audio_30_570.mp3 +"dinesh thakur, additional . Adv. generals, with mr. Amit kumar dhumal, deputy Adv. general, for the petitioner. Ms. . Neetu sharma, Adv. vice counsel, for the",audio_30_571.mp3 +"respondent.downloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_572.mp3 +"the respondent states that instant matter is to be argued by sh. Sumit raj sharma, Adv. , who is not present today on account of some",audio_30_573.mp3 +"personal work and as such, matter may be taken up on some other date. Though, this court after having perused the previous orders passemr. S.c.",audio_30_574.mp3 +"Sharma and dinesh thakur, additional Adv. generals, with mr. Amit kumar dhumal, deputy Adv. general, for the petitioner. D by this court, whereby matter was",audio_30_575.mp3 +"repeatedly adjourned on the request of learned counsel for the respondent, sees no reasons to grant further time, however, as a matter of indulgence, matter",audio_30_576.mp3 +"is adjourned for 21.08.2018, on which date, matter shall be heard and decided on the basis of the material available on record and no request",audio_30_577.mp3 +"for adjournment shall be entertained on behalf of the petitioner. (sandeep sharma) judge 24th july, 2018 (vinod) . 24.07.2018 present: mr. Ajit sharma, Adv. vice",audio_30_578.mp3 +"counsel for the . Petitioner. Mr. S.c. Sharma and dinesh thakur, additional Adv. generals, with mr. Amit kumar dhumal, deputy Adv. general, for the respondent.",audio_30_579.mp3 +"List after two weeks, as prayed for by learned counsel for the petitioner. (sandeep sharma) judge 24th july, 2018 (vinod) 24.07.2018 present: mr. Dhiraj thakur,",audio_30_580.mp3 +"Adv. for the appellant. . Mr. Debinder ghosh, Adv. for respondent no.1 and 2. Mr. Dinesh bhatia, Adv. for respondent no.3. Learned counsel representing the",audio_30_581.mp3 +"parties states that instant appeal is required to be heard and decided along with fao No. 77 of 2014, as both the appeals arising out",audio_30_582.mp3 +"of the common award. Accordingly, in view of the above, list this matter after two weeks alongwith fao no.77 of 2014. (sandeep sharma) judge 24th",audio_30_583.mp3 +"july, 2018 (vinod) 24.07.2018 present: mr. Vikas chandel, Adv. vice mr. Manoj . Pathak, Adv. , for the appellants. Downloaded on - 31/07/2018 23:02:41 ... vs. ",audio_30_584.mp3 +"heeralal on 30 july, 2018",audio_30_585.mp3 +"Adv. generals, with mr. Amit kumar dhumal, deputy Adv. general, for the respondent. List after four weeks, as prayed for by learned counsel for the",audio_30_586.mp3 +"appellant. (sandeep sharma) judge 24th july, 2018 (vinod) 24.07.2018 present: nemo for the appellant. . Sh. Neeraj gupta, Adv. for respondent no.1. Despite repeated calls",audio_30_587.mp3 +"and pass overs none has put in appearance on behalf of the appellant. However, in the interest of J. , matter is adjourned by four weeks.",audio_30_588.mp3 +"R to (sandeep sharma) judge 24th july, 2018 (vinod) 24.07.2018 present: Ms. . Ritu raj sharma,Adv. , for the petitioner. . Mr. S.c.sharma & mr. Dinesh thakur,",audio_30_589.mp3 +"additional additional Adv. general, with mr. Amit kumar dhumal, deputy Adv. general, for the respondent□state. Issue notice. Mr. S.c.sharma, learned additional Adv. general, waives notice",audio_30_590.mp3 +"on behalf of the respondent□ state. Reply/status report, if any, be filed on 31st july, 2018.downloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30",audio_30_591.mp3 +"july, 2018",audio_30_592.mp3 +"Petitioner, in Cas. FIR no.67 of 2018, dated 8.7.2018, under Ss. 20 of the narcotic drugs and psychotropic substances act, registered at police",audio_30_593.mp3 +"station bharmour, district chamba h.p, he shall be enlarged on bail on his furnishing personal bonds in the sum of Rs. 50,000/□ with one local",audio_30_594.mp3 +"surety in the like amount to the satisfaction of the arresting officer. Petitioner is directed to join the investigation at 10:00 am on 25.7.2018, failing",audio_30_595.mp3 +"which, police shall be at liberty to approach the court for cancellation of bail. Copy dasti. (sandeep sharma) judge 24th july, 2018 (vinod) 30.07.2018 present:",audio_30_596.mp3 +"mr. Rajesh kumar, Adv. , for the petitioner. . Mr. Ajay chandel, Adv. , for the respondent. Mr. Rajesh kumar, learned counsel representing the petitioner, on instructions,",audio_30_597.mp3 +states that petitioner would be satisfied in Cas. some reasonable time is granted to vacate the demised premises in terms of the judgment passed by,audio_30_598.mp3 +"the learned courts below. Mr. Ajay chandel, learned counsel representing the respondent, states that respondent is not averse to the aforesaid prayer having been made",audio_30_599.mp3 +"on behalf of the petitioner, but some reasonable time may be granted by this court to vacate the demised premises. Learned counsel representing the petitioner",audio_30_600.mp3 +"undertakes to cause presence of some responsible officer of the petitioner□ society, so that while accepting the aforesaid request having been made on behalf of",audio_30_601.mp3 +"the petitioner, his/her statement is recorded and Cas. is disposed of accordingly. List on 31st july, 2018, on which date, some responsible officer of the",audio_30_602.mp3 +"petitioner□ society shall remain present in court. (sandeep sharma) judge 30 july, 2018 th ( shankar) 30.07.2018 present: mr. N.k.thakur, Sr. Adv. with mr. Divya",audio_30_603.mp3 +"raj . Singh, Adv. , for the appellant. Mr. Vijay chaudhary, Adv. , for the respondent.` mr. Vijay chaudhary, Adv. has filed power of attorney on behalf",audio_30_604.mp3 +"of the sole respondent.downloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_605.mp3 +"inter□se parties, effort can be made towards amicable settlement inter□se parties and as such, both the parties may be summoned. Accordingly, in view of the",audio_30_606.mp3 +"above, list this matter on 27th august, 2018, on which date, both the parties shall remain present in court. Cmp no.5212 of 2018. Interim order",audio_30_607.mp3 +"dated 18.6.2018 is made absolute. The Appl. stands disposed of. (sandeep sharma) judge 30 july, 2018 th (shankar) 30.07.2018 present: mr. Chander shekhar sharma, Adv. ,",audio_30_608.mp3 +"for the . Petitioner. Mr. S.c.sharma and mr. Dinesh thakur, additional Adv. generals, with mr. Amit kumar dhumal, deputy Adv. general, for the respondent□state. Issue",audio_30_609.mp3 +"notice. Mr. Dinesh thakur, learned additional Adv. general, waives notice on behalf of the respondent□ state. Reply/status report, if any, be filed on 6th august,",audio_30_610.mp3 +"2018. In the meanwhile, in the event of arrest of the petitioner in Cas. FIR no.153 of 2018, dated 22.6.2018, under Ss. 498□a",audio_30_611.mp3 +"and 506 of the I.P.C. , registered at police station, chamba city district chamba h.p, he shall be enlarged on bail on his furnishing",audio_30_612.mp3 +"personal bonds in the sum of rs.50,000/□ with one surety in the like amount to the satisfaction of the arresting officer. Needless to add, the",audio_30_613.mp3 +petitioner shall also join the investigation as and when required by the investigating officer; shall not hamper the investigation and temper with the prosecution evidence,audio_30_614.mp3 +in any manner. He shall also comply with the conditions as contained in S. 438 of the Cr.P.C. . Copy dasti. (sandeep sharma),audio_30_615.mp3 +"judge 30 july, 2018 th (shankar) arbitration Cas. no.46 of 2018 . 30.07.2018 present: mr. J. s.bhogal, Sr. Adv. with mr. Suneet goel, Adv. , for",audio_30_616.mp3 +"the petitioner. Mr. Janesh gupta, Adv. , for the respondent. Downloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_617.mp3 +"The any. List thereafter. R to respondent prays for and is granted four weeks' time to file reply, if by way of instant Appl. filed",audio_30_618.mp3 +"under S. 36(3) of the arbitration and conciliation act, prayer has been made on behalf of the applicant/petitioner for staying the operation/ execution of the",audio_30_619.mp3 +"impugned award, dated 30.3.2018, passed by the learned arbitrator learned counsel representing the non□applicant/ respondent states that he does not intend to file any reply",audio_30_620.mp3 +to the Appl. and has no objection in Cas. the operation/execution of the impugned award is stayed subject to applicant's depositing the entire award amount,audio_30_621.mp3 +"alongwith up□to□date interest in the registry of this court. Accordingly, the present Appl. is allowed and operation/execution of the impugned award, dated 30.3.2018, is stayed",audio_30_622.mp3 +subject to the applicant's depositing the entire award amount alongwith up□to□date interest within a period of four weeks from today. Appl. stands disposed of. .,audio_30_623.mp3 +"Copy dasti. (sandeep sharma) judge 30 july, 2018 th (shankar) r to . 30.07.2018 present: mr. S.c.sharma & mr. Dinesh thakur, additional Adv. generals, with",audio_30_624.mp3 +"mr. Amit kumar dhumal, deputy Adv. general, for the applicant/appellant. Mr. anoop chitkara, Adv. with Ms. . Sheetal vayas, Adv. , for the respondent. Mr. Anoop chitkara,",audio_30_625.mp3 +"Adv. has filed power of attorney on behalf of the respondent. Learned counsel representing the respondent, states that he does not intend to file any",audio_30_626.mp3 +reply to the Appl. and has no objection in Cas. the delay in maintaining the Crl. appeal is condoned and the appeal is decided on,audio_30_627.mp3 +"merits. Accordingly, for the reasons stated in the Appl. , which is duly supported by an Aff. , delay of 17 days in maintaining the appeal, which",audio_30_628.mp3 +"has been otherwise sufficiently explained in the Appl. , is condoned. The Appl. stands disposed of. Appeal be registered. Leave to appeal granted. The Appl. stands",audio_30_629.mp3 +"disposed of. Cr. Appeal no.______ of 2018 admit. List in due course. Downloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_630.mp3 +"july, 2018 th (shankar) Civ. suit no.56 of 2018 . 30.07.2018 present: mr. Dinesh bhatia, Adv. vice counsel for the plaintiff. Mr. Janesh gupta, Adv. ,",audio_30_631.mp3 +"for the defendants. Civ. suit no.56 & omp no.252 of 2018 mr. Janesh gupta, Adv. has put in appearance on behalf of the defendants. He",audio_30_632.mp3 +prays for and is granted two weeks' time to file power of attorney as well reply to the stay Appl. . List thereafter. (sandeep sharma) judge,audio_30_633.mp3 +"30 july, 2018 th (shankar) . 30.07.2018 present: mr. Devinder kumar sharma, Adv. , for the applicant/petitioner. Mr. Sunil mohan goel, Adv. , for respondents no.1 to",audio_30_634.mp3 +"7. Mr. S.c.sharma & mr. Mr. Dinesh thakur, additional Adv. generals, with mr. Amit kumar dhumal, deputy Adv. general, for respondents no.8 and 9. R",audio_30_635.mp3 +"to mr. Sunil mohan goel, Adv. has put in appearance on behalf of respondents No. 1 to 7. Learned counsel representing respondents No. 1 to",audio_30_636.mp3 +"7, states that he does not intend to file any reply to the Appl. and has no objection in Cas. the delay in maintaining the",audio_30_637.mp3 +"Civ. revision is condoned and the petition is decided on merits. Accordingly, for the reasons stated in the Appl. , which is duly supported by an",audio_30_638.mp3 +"Aff. , delay of 53 days in maintaining the petition, which has been otherwise sufficiently explained in the Appl. , is condoned. The Appl. stands disposed of.",audio_30_639.mp3 +"Petition be registered. Civ. revision petition no.___□ of 2018 mr. Sunil mohan goel, learned counsel representing respondents no.1 to 7, prays for and is granted",audio_30_640.mp3 +"two weeks' time to file power of attorney as well as to complete his brief, so that matter is heard and decided on the basis",audio_30_641.mp3 +"of the material available on record. List thereafter. .downloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_642.mp3 +"On or before the next date of hearing. In the meanwhile, operation and execution of impugned order dated 1.12.2017, passed by learned executing court(additional district",audio_30_643.mp3 +"judge) kullu, district kullu, h.p. And subsequent proceedings in execution petition no.13 of 2017, titled as pune ram vs. Lac and Ors. ; shall remain stayed.",audio_30_644.mp3 +"Copy dasti. (sandeep sharma) judge 30th july, 2018 (shankar) . 30.07.2018 present: mr. G.d.verma, Sr. Adv. with mr. Romesh verma, Adv. , for the plaintiffs. Mr. ",audio_30_645.mp3 +"s.c.sharma & mr. Dinesh thakur, additional Adv. generals, with mr. Amit kumar dhumal, deputy Adv. general, for the respondent□state. Statement of pw□7, viz. ram krishan",audio_30_646.mp3 +"stands recorded. Though, other witnesses viz. , kuldeep and amit kumar (pw□8 & 9) have come present, but learned counsel representing the plaintiffs states that he",audio_30_647.mp3 +"intends to give up them being repetitive. Now to come up for remaining evidence of the plaintiffs, on a date to be fixed by additional",audio_30_648.mp3 +"registrar(judicial). (sandeep sharma) judge 30 july, 2018 th (shankar)downloaded on - 31/07/2018 23:02:41 ... vs. heeralal on 30 july, 2018",audio_30_649.mp3 +"M/s icici bank Ltd. vs. akash parashar on 6 august, 2018 author: anu malhotra bench: anu malhotra * in the HC of delhi at",audio_31_1.mp3 +"new delhi + fao 311/2018 judgment reserved on : 31st july, 2018 date of decision: 6th august, 2018 m/s icici bank Ltd. ..... Appellant. Through:",audio_31_2.mp3 +"mr. Puneet bhalla, Adv. vs. akash parashar ...... Respondent through: coram: hon'ble Ms. . J. anu malhotra judgment anu malhotra, j. 1. Vide the present appeal,",audio_31_3.mp3 +the appellant assails the impugned order dated 04.06.2018 of the learned trial court in cs No. 1848/18 whereby on a suit filed by the plaintiff,audio_31_4.mp3 +"for recovery along with an Appl. under order xl rule 1 of the code of Civ. procedure, 1908 for appointment of a receiver to take",audio_31_5.mp3 +"over the possession of the vehicle, i.e., car make ""ecosport/1.5 titanium d"" bearing registration No. dl 11 ca 5115, the learned trial court directed the",audio_31_6.mp3 +issuance of the summons for settlement of issues along with the notice of the said Appl. to the defendant returnable for 18.10.2018. 2. The prayer,audio_31_7.mp3 +"made by the appellant herein as plaintiff to the said suit seeking appointment of an ex parte receiver was declined by the learned trial court,",audio_31_8.mp3 +"it having been observed to the effect that as per the averments made in the plaint a loan of rs.8,28,,000/- had been given by the",audio_31_9.mp3 +"plaintiff, i.e., the appellant herein to the defendant/respondent herein, for purchase of the vehicle in question vide a loan agreement No. ladel00031219384 and that the",audio_31_10.mp3 +"said loan was to be paid in 60 emis of rs.17,945/- each but the respondent, i.e., the defendant had paid only 37 emis and defaulted",audio_31_11.mp3 +"in payment of three emis and thus the plaintiff i.e., the petitioner herein had recalled the said loan amount vide notice dated 17.02.2018 requesting the",audio_31_12.mp3 +"respondent i.e., the defendant herein to pay the outstanding amount and also to hand over the possession of the said vehicle but the respondent despite",audio_31_13.mp3 +service of the notice neither paid the loan amount nor handed over the possession of the vehicle and that there is an apprehension that the,audio_31_14.mp3 +"respondent may dispose of the security, i.e.,m/s icici bank Ltd. vs. akash parashar on 6 august, 2018",audio_31_15.mp3 +Appointment of a receiver to take possession of the vehicle in question. 3. The learned trial court observed to the effect that as the defendant,audio_31_16.mp3 +admittedly had paid 37 instalments it was not considered appropriate at this stage to appoint an ex parte receiver. 4. The grievance of the appellant,audio_31_17.mp3 +through the present appeal is thus to the effect that the respondent had executed a credit facility Appl. along with the terms and conditions of,audio_31_18.mp3 +the loan; a deed of hypothecation and an irrevocable power of attorney on 22.12.2014 in favour of the appellant bank and had undertaken to repay,audio_31_19.mp3 +"the loan amount of rs.8,28,000.00 along with interest @ 10.86% in 60 equated monthly instalments of rs.17,945/- and had also agreed to pay the penal",audio_31_20.mp3 +interest @ 24% per annum in Cas. there was any delay in the payment of the instalment and that the respondent had also agreed that,audio_31_21.mp3 +"in the event of default in making the payment of instalments by the respondent, the appellant bank would be entitled to recall the entire loan",audio_31_22.mp3 +and take further steps for recovery and enforcement of security. 5. It was also submitted on behalf of the appellant that as per the deed,audio_31_23.mp3 +of hypothecation the vehicle financed to be hypothecated in the name of the appellant bank can be taken over by the bank in the event,audio_31_24.mp3 +of default by the respondent being the rightful owner of the same. 6. It has also been submitted by the appellant that as per the,audio_31_25.mp3 +irrevocable power of attorney also the appellant had been authorized to take over the possession to sell the vehicle to appropriate the dues in the,audio_31_26.mp3 +event of default of payment by the respondent. Inter alia the appellant has submitted that despite the respondent having been informed to make the payment,audio_31_27.mp3 +"of the outstanding amount and also to hand over the peaceful possession of the vehicle, the respondent did not do so and thus had no",audio_31_28.mp3 +right to use the vehicle in Cas. of non-payment of equated monthly instalments and that as per the loan account maintained by the appellant as,audio_31_29.mp3 +"on 2.5.2018, a sum of rs.4,10,284.76 was payable towards the principal, interest, penal interest and other dues. Inter alia the appellant contended that the respondent",audio_31_30.mp3 +"was trying to part with the possession of the vehicle, which is, in fact, the property of the appellant bank and the respondent was also",audio_31_31.mp3 +trying to remove the vehicle from the jurisdiction of this court which would cause an irreparable loss/injury to the appellant bank and would also deprive,audio_31_32.mp3 +the bank of its legal and contractual rights which had been acquired by the documentation entered between the appellant bank and the respondent. 7. A,audio_31_33.mp3 +catena of verdicts has been relied upon on behalf of the appellant in support of its contention that the ex parte receiver ought to be,audio_31_34.mp3 +appointed in the facts and circumstances of the instant Cas. . 8. In the verdict of this court relied upon by the appellant in citi bank,audio_31_35.mp3 +"n.a. vs. sudesh kumar, fao (os) no.117/2002, an ex parte order was granted appointing the receiver for seizure of the vehicle pursuant to a loan",audio_31_36.mp3 +scheme between the appellant and the respondent wherein the respondent had agreed to make the payment due pursuant to the agreement between the parties with,audio_31_37.mp3 +"payments to be made in instalments, which were not so paid.m/s icici bank Ltd. vs. akash parashar on 6 august, 2018",audio_31_38.mp3 +198/2006 it was observed to the effect that the apprehension on the part of the appellant in the event of notice being issued to the,audio_31_39.mp3 +"respondent that he may proceed to dispose of the vehicle in question to defeat the suit claim, could not be taken to be unfounded and",audio_31_40.mp3 +it was held that there were sufficient grounds for passing the ex parte order for appointment of the receiver and that it was not proper,audio_31_41.mp3 +to declined the relief sought. The legal representative of the Co. in that Cas. was thus appointed as a local commissioner to take over the,audio_31_42.mp3 +possession of the vehicle from the respondent or anyone found in possession thereof and to keep the same in his safe custody and not to,audio_31_43.mp3 +dispose of the same without the order of the court and the receiver was also authorized to seek necessary police assistance from the local police.,audio_31_44.mp3 +"10. The verdicts of this court in icici bank Ltd. vs. kaptan singh; ii (2007) bc 586 and icici bank Ltd. vs. . Jal singh,",audio_31_45.mp3 +fao 271/2017 also with the similar prayer made by the plaintiff thereof for appointment of an ex parte receiver having been allowed in view of,audio_31_46.mp3 +the non-payment of the emi dues towards the loan agreement and the verdicts of this court in icici bank Ltd. vs. sushma & anr.; fao,audio_31_47.mp3 +"8/2018, icici bank Ltd. vs. sabir malik & anr.; fao 196/2018, icici bank Ltd. vs. rajesh kumar; fao 291/2018; icici bank Ltd. vs. hakim singh;",audio_31_48.mp3 +"fao 230/2018 are all to the similar effect. 11. Undoubtedly, vide the verdict in icici bank ltd. vs. prakash kaur and Ors. ; (2007) 2 supreme",audio_31_49.mp3 +court cases 711 the Hon'ble SC deprecated the procedure adopted by the bank in removing the vehicle from the possession of the person from,audio_31_50.mp3 +"whom they had to get the emi and in whose possession the vehicle was, by hiring musclemen or recovery agents and observed vide para 16",audio_31_51.mp3 +"thereof to the effect that "" the bank should resort to procedure recognized by law to take possession of the vehicles in cases where the",audio_31_52.mp3 +"borrower may have committed default in payment of the instalments instead of taking resort to strong-arm tactics."" 12. It was thus submitted on behalf of",audio_31_53.mp3 +the appellant that it is because of the observations of the Hon'ble SC in icici bank Ltd. vs. prakash kaur (supra) that the appellant,audio_31_54.mp3 +and other banks have thus now sought the recovery of the vehicle hypothecated to the bank pursuant to loan agreements executed by the purchasers of,audio_31_55.mp3 +the said vehicle who have purchased the vehicle on the basis of the loan issued by the bank and that the banks have started instituting,audio_31_56.mp3 +suits for recovery of the amount due and re- possession of the vehicles in question. 13. Undoubtedly the institution of the suit by the appellant,audio_31_57.mp3 +"herein is a recourse to a fair procedure in the circumstances of the Cas. . As held in citi bank n.a. vs. sudesh kumar (supra), the",audio_31_58.mp3 +apprehension of the appellant that the respondent would sell the hypothecated vehicle cannot be held to be imaginary in as much as there has been,audio_31_59.mp3 +a default in payment of three emis by the respondent and the factum that despite the reminder to pay the amount due towards the equated,audio_31_60.mp3 +"monthly instalments, the respondent, had failed to do so and his cheques issued were also not honoured in as much as cheque bouncing charges are",audio_31_61.mp3 +"also claimed by the appellant, the apprehension of the appellant that the vehicle in possession of the respondent may be misappropriated or sold off cannot",audio_31_62.mp3 +"be held to be merely imaginary.m/s icici bank Ltd. vs. akash parashar on 6 august, 2018",audio_31_63.mp3 +"Appointed as a receiver to take over the possession of the vehicle, i.e., car make ""ecosport/1.5 titanium d"" bearing registration No. dl 11 ca 5115,",audio_31_64.mp3 +"from the respondent and in terms of the verdict of this court in icici bank Ltd. vs. updesh nagar; 2016 lawsuit(del) 64, it is directed",audio_31_65.mp3 +"as under: 1 the receiver, while taking possession of the subject vehicle will ensure that the due courtesies are extended to the respondent/ defendant. 2",audio_31_66.mp3 +"the receiver will also keep in mind the time and the place where the subject vehicle is taken possession of. If, at the time of",audio_31_67.mp3 +"taking possession, the respondent/ defendant were to pay the sums, which are due and payable then, the receiver, will issue a receipt in that behalf",audio_31_68.mp3 +"to the respondent/ defendant and release the vehicle on superdari to him. 3 in Cas. the police assistance is required, the receiver will approach the",audio_31_69.mp3 +"station house officer manning the nearest police station, who, in such an eventuality, shall render due assistance to enable compliance in the matter. 4 the",audio_31_70.mp3 +receiver will file his report with the trial court within ten days of taking possession of the subject vehicle. 5 in Cas. the receiver is,audio_31_71.mp3 +"successful in obtaining possession of the subject vehicle before the next date of hearing, the trial court will pass appropriate orders on the next date",audio_31_72.mp3 +"of hearing. 6 however, in Cas. the subject vehicle is not traced till the next date of hearing, the trial court will, accordingly, extend the",audio_31_73.mp3 +"period for locating the vehicle and, in that behalf, pass appropriate orders in the pending Appl. . In view of the above terms, the appeal is",audio_31_74.mp3 +"disposed of. Copy of this judgment be given dasti, under the signatures of the court master, as prayed. Anu malhotra, j. Th august 6 ,",audio_31_75.mp3 +"2018/svm/s icici bank Ltd. vs. akash parashar on 6 august, 2018",audio_31_76.mp3 +"Society on the same day. The accused has ... vs. has placed reliance upon his own oral ... On 1 january, 2016 in the court",audio_32_1.mp3 +"of the xl addl.chief MM , bangalore city. Scch-14 present: basavaraj chengti., b.com.,ll.b.,(spl) xl acmm, bangalore. C.c.No. 16485/2013 dated this the 1st day of january",audio_32_2.mp3 +2016 1. Sl.No. of the Cas. c.c. No.16485/2013 2. The date of institution 15.05.2013 3. The date of commencement of the evidence 07.08.2014 4. Name,audio_32_3.mp3 +"of the complainant m/s saphalya credit co- operative society ltd., no.640, 80 feet road, girinagar ii phase, bangalore-560 085. Represented by its g.p.a holder and",audio_32_4.mp3 +"recovery officer, sri.d.r.ravindra, (by pleader sri uls) 5. Mr.b.n.anand name of the accused s/o b.n.krishna reddy, aged about 47 years, r/at bellandur village & post,",audio_32_5.mp3 +"varthur hobli, bangalore south taluk, bangalore- 560 047. (by pleader sri sdk) 6. The offence complained of under sec.138 of n.i. Act. Or proved 7.",audio_32_6.mp3 +Plea of the accused on his pleaded not guilty examination 8. Final order accused is convicted 9. Date of such order 01.01.2016 scch-14 2 cc,audio_32_7.mp3 +"no.16485/2013 judgmentsociety on the same day. The accused has ... vs. has placed reliance upon his own oral ... On 1 january, 2016",audio_32_8.mp3 +U/sec.138 of NI Act (hereinafter called the act). 2. Brief averments of the complaint are as under: the accused is a member of complainant's,audio_32_9.mp3 +"society under membership no.2177. He has borrowed a personal loan of rs.25,000/- on 13.01.2002 under l.l.f no.1428 from the complainant's society and agreed to pay",audio_32_10.mp3 +"the same in 40 equal monthly installments with interest @ 19% p.a., and penal interest @ 2% p.a., on delayed payment. To secure the repayment",audio_32_11.mp3 +"of said loan, he has executed security documents in favour of complainant's society on the same day. The accused has failed to pay loan amount",audio_32_12.mp3 +"in regular installments. The complainant's society demanded the balance outstanding with present interest @ 17% pa., amounting to rs.55,460/-. The accused has issued a cheque",audio_32_13.mp3 +"bearing no.6626901 dt.30.03.2013 for rs.55,460/- in favour of the complainant's society drawn on state bank of mysore, whitefield branch, bangalore. The complainant has presented the",audio_32_14.mp3 +"said cheque for encashment through his banker, sree thyagaraja co-operative bank ltd., srinivasanagar branch, bangalore, but the cheque was returned unpaid for the reasons ""funds",audio_32_15.mp3 +"insufficient"" vide is banker's memo dt.03.04.2013. Therefore, the complainant got issued a legal notice to the accused on 18.04.2013 through rpad to his residential address,",audio_32_16.mp3 +"calling upon him to pay the amount of cheque. But the said notice returned un-served as ""incomplete address"" on 27.04.2013. Hence, the complainant has filed",audio_32_17.mp3 +"this complaint praying for convicting the accused for the offence punishable u/sec.138 and 142 of the act, punishing him and for awarding compensation. 3. On",audio_32_18.mp3 +"the basis of the complaint, cognizance of offence was taken and the complaint was registered in pcr no.9880/2013. Then, sworn statement of the gpa holder",audio_32_19.mp3 +"of the complainant's society was recorded. After hearing the complainant and his counsel, the court found sufficient material to issue process against the accused for",audio_32_20.mp3 +"the offence punishable u/s 138 of the act. Accordingly, this Crl. Cas. was registered against the accused for the said offence and process was issued.",audio_32_21.mp3 +"Initially, the complaint was presented before 12th acmm bangalore which was transferred to 19th acmm, bangalore and later, it came to be transferred to this",audio_32_22.mp3 +"court. In the pursuance of the process, the accused has appeared before court through his counsel and he is enlarged on bail. Then, substance of",audio_32_23.mp3 +"accusation was read over and explained to the accused. He has pleaded not guilty. Hence, the complainant was called upon to prove his Cas. . 4.",audio_32_24.mp3 +"During evidence, the complainant has examined his gpa holder as pw.1 and examined a witness as pw.2. He has got marked documents as ex.p1 to",audio_32_25.mp3 +"ex.p7. Then, statement of accused was recorded. The accused has examined himself as dw.1 and examined three witnesses as dw.2 to 4. He has got",audio_32_26.mp3 +marked documents as ex.d1 and 2. 5. Heard the arguments. The complainant has relied upon ruling reported in 2014 Crl. l.J. 3937 (m/s ajeet seeds,audio_32_27.mp3 +ltd vs k.gopala krishnaiah). The accused has relied upon following rulings;society on the same day. The accused has ... vs. has placed reliance upon his,audio_32_28.mp3 +"own oral ... On 1 january, 2016",audio_32_29.mp3 +2. 2009 Crl. lj 4460 (m/s matheson bonsanquet vs k.v.manjunath ) 3. 2014 (3) dcr 783 (n.shrihari vs babu shetty) 4. 2013 (1) bc 101,audio_32_30.mp3 +( shobha vs gajanan) i have gone through the ruling and perused the record. 6. Now the points arise for my consideration are: 1. Whether,audio_32_31.mp3 +the complainant has proved that the accused has issued ex.p-1 cheque in his favour towards discharge of legally recoverable debt without maintaining sufficient balance in,audio_32_32.mp3 +his bank account and has failed to pay the cheque amount within time inspite of deemed service of demand notice? 2. What order? 7. My,audio_32_33.mp3 +findings are: point no.1 : in affirmative. Point no.2 : as per final order. Reasons 8. Point no.1: the complainant has relied upon oral evidence,audio_32_34.mp3 +of pw-1 and documentary evidence at ex.p-1 to 7 to prove his Cas. . The accused has placed reliance upon his own oral evidence and that,audio_32_35.mp3 +of dw-2 to 4 and documents at ex.d-1 and 2 to prove his defence and to disprove the Cas. of the complainant. 9. The admitted,audio_32_36.mp3 +"facts of the Cas. are that the complainant is a co-operative society of which the accused and dw-3 are members, that the accused and dw-3",audio_32_37.mp3 +"have borrowed loans from the complainant on different dates and said loans were repayable in monthly installments, that the accused and dw-2 and 3 are",audio_32_38.mp3 +"residing in bellandur village, varthur hobli, bangalore south taluk, bangalore, that ex.p-1 cheque is of the accused and it bears his signature, that the accused",audio_32_39.mp3 +"is residing in the address shown in the complaint, that a cheque bounce Cas. is filed by the complainant against dw-3. 10. Pw-1:ravindra has deposed",audio_32_40.mp3 +"that the accused has issued ex.p-1 cheque in favour of the complainant towards discharge of debt, that the said cheque came to be dishonoured for",audio_32_41.mp3 +"insufficient funds in his account, that a demand notice was sent to the accused calling upon him to pay the amount of cheque, but it",audio_32_42.mp3 +"was returned with endorsement ""incomplete address"", that the accused has neither replied the notice nor paid the amount of cheque and thereby committed the offence",audio_32_43.mp3 +punishable u/s 138 of the act. His evidence is as per the averments of the complaint.society on the same day. The accused has ... vs. ,audio_32_44.mp3 +"has placed reliance upon his own oral ... On 1 january, 2016",audio_32_45.mp3 +Copy of gpa and letter of sbm which are marked as ex.p-1 to 7. The accused has contended that there is no seal on the,audio_32_46.mp3 +cheque and memo and there is no signature on the memo as such the cheque was not presented for encashment and memo is got created,audio_32_47.mp3 +"for this Cas. . In that regard, the accused has examined dw-4: srinivasa who has supported the contention of the accused. Then, the complainant has examined",audio_32_48.mp3 +pw-2:nataraj who has deposed regarding dishonour of cheque at ex.p-1 and stated that the cheque was dishonoured for insufficient funds in the account of the,audio_32_49.mp3 +accused. He has produced letter regarding dishonour of cheque for insufficient funds which is marked as ex.p-7. On perusal of oral evidence of pw-2 and,audio_32_50.mp3 +"dw-4, it reveals that evidence of both of them is true in their respective capacity. The cheque at ex.p-1 was not presented to the branch",audio_32_51.mp3 +"for encashment in which dw-4 is working and the account of the accused is not debited with cheque bounce charges, but that itself does not",audio_32_52.mp3 +"make the evidence of pw-2 unbelievable. When there is a clearing house, the cheques will not be presented to concerned branch for encashment. The clearing",audio_32_53.mp3 +"cell is able to see the balance in the account of customer and issue memo. In such event, the branch will have no document or",audio_32_54.mp3 +"material to say that the cheque was in fact presented for encashment. i.e. what dw-4 has deposed. But, the clearing cell is competent to",audio_32_55.mp3 +depose in that regard. There is nothing on record to believe that pw-2 is deposing falsely to help the complainant. There is no nexus between,audio_32_56.mp3 +"the him and the complainant to do so. Hence, i am of the opinion that evidence of pw-2 is trustworthy. Ex.p-2 is not issued by",audio_32_57.mp3 +"clearing cell, but it was issued by apex co-op. Bank ltd., (axb) based on the memo issued by the clearing cell. Ex.p-7 confirms the presentation",audio_32_58.mp3 +of cheque and its dishonour for insufficient funds. Evidence of pw-2 and contents of ex.p-7 are sufficient to believe that the cheque at ex.p-1 was,audio_32_59.mp3 +presented for encashment on 2.4.2013 and it came to be dishonoured for insufficient funds on 3.4.2013. Exd-1 and 2 are statements pertaining to the bank,audio_32_60.mp3 +account of the accused which confirm that there was no balance in his account to honour the cheque at ex.p-1 on its date and on,audio_32_61.mp3 +"the date of its presentation for encashment. Merely on the basis of the fact that cheque bounce charges were not debited to the account, we",audio_32_62.mp3 +can not conclude that the cheque was not at all presented for encashment and ex.p-2 and 7 are created for this Cas. . There is no,audio_32_63.mp3 +logic behind the argument of the defence in that regard. There was no necessity for the payee to create the bank memo which can be,audio_32_64.mp3 +"obtained by mere presentation of cheque for encashment. Hence, i reject the argument of the counsel for the accused regarding non-presentation of cheque to bank.",audio_32_65.mp3 +"12. The accused has denied the Auth. of pw-1 to file complaint and to depose regarding the matter. Except bare denials, nothing is elicited from",audio_32_66.mp3 +pw-1 in that regard. Ex.p-6 is copy of gpa which authorizes pw-1 to file complaint and to give evidence in the matter. The accused is,audio_32_67.mp3 +"not competent to deny the contents of ex.p-6 and the Auth. given to pw-1 by the president of the complainant. Moreover, the evidence of dw-1",audio_32_68.mp3 +"to 3 makes it clear that pw-1 has got personal knowledge about the facts of the Cas. . Hence, i am of the opinion that evidence",audio_32_69.mp3 +"of pw-1 is admissible and believable. 13. Pw-1 is cross examined minutely in respect of loan transaction between the complainant and the accused. However, it",audio_32_70.mp3 +"is admitted impliedly by way of suggestions and expressly by dw-1 to 3 that the accused has borrowed a loan of rs.25,000/- from the complainant",audio_32_71.mp3 +"in the year 2002. The said fact is admitted by the accused during his statement. When such being the Cas. , minute particulars of loan, documents",audio_32_72.mp3 +"pertaining to loan, date of loan, deduction of amount towards share, etc.,society on the same day. The accused has ... vs. has placed reliance upon",audio_32_73.mp3 +"his own oral ... On 1 january, 2016",audio_32_74.mp3 +His defence. 14. The counsel for the accused has argued that the loan is of the year 2002. The last admitted payment was on 28.3.2006.,audio_32_75.mp3 +"The outstanding amount if any in the account of the accused had become time barred on 28.3.2009. Whatever may be the amount, it was not",audio_32_76.mp3 +"a legally enforceable debt or liability on the date of cheque and hence, dishonour of ex.p-1 cheque does not attract offence u/s 138 of the",audio_32_77.mp3 +"act. But, it is to be noted that cheque is a negotiable instrument. Issuance of cheque itself is a promise to pay the amount including",audio_32_78.mp3 +"a time barred debt. Hence, argument of the counsel for the accused in that regard holds no water. 15. Dw-4:srinivasa has deposed that the account",audio_32_79.mp3 +of the accused pertaining to ex.p-1 was opened prior to 2003 and the cheque in question was from the cheque book issued to the accused,audio_32_80.mp3 +"prior to 2003, that no cheque book is issued to him after 2005, that account No. is changed after 2005 in which year the bank",audio_32_81.mp3 +"is computerized. Dw-1: anand has stated that the complainant got his account opened in sbm, whitefield branch and obtained 10 blank signed cheque from him",audio_32_82.mp3 +"as security for the loan, that one cheque is misused and other 9 cheques are still lying with the complainant. Pw-1 was cross examined at",audio_32_83.mp3 +"length in that regard, but nothing is extract from him regarding obtaining of 10 blank signed cheques from the accused as security and availability of",audio_32_84.mp3 +other 9 cheques with the complainant. The counsel for the accused has argued that the cheque at ex.p-1 is of the year 2002 which was,audio_32_85.mp3 +"obtained as security with other 9 cheques, that the cheque is misused for filing this false Cas. against the accused, that the cheque contains two",audio_32_86.mp3 +different handwritings and two different colour ink which indicate the misuse of cheque. It is to be noted that there is no doubt that the,audio_32_87.mp3 +"cheque is of year 2002 or 2003, but that itself is no ground to believe that the complainant has obtained 10 blank signed cheques from",audio_32_88.mp3 +"the accused as security and one of them is misused to file this complaint. A customer of bank after getting the cheque book, can use",audio_32_89.mp3 +the cheques in it at any time during continuation of the account. Neither the creditor nor the bank has any control over the issuance of,audio_32_90.mp3 +cheque by the drawer. The cheque at ex.p-1 is not dishonoured on the ground that it is an old cheque. There will be no occasion,audio_32_91.mp3 +for the payee to know about the date of issuance of cheque book by the bank to the drawer. There cannot be any chance of,audio_32_92.mp3 +knowing that it was an old cheque. There is no corroboration to the evidence of dw-1 that the complainant has got his account opened and,audio_32_93.mp3 +"obtained 10 blank signed cheque as security. There was no necessity for getting 10 blank cheques as security for a loan of rs.25,000/-. It is",audio_32_94.mp3 +"pointed out that ex.p-1 is the first cheque in the series, but that itself does not prove the contention of the accused that other 9",audio_32_95.mp3 +"cheques are with the complainant. Hence, argument of the counsel for the accused in that regard is liable to be rejected. 16. Ex.p-1 is the",audio_32_96.mp3 +cheque dt.30.3.2013. The contention of the accused that the cheque was issued in blank as security in the year 2002 is against the legal presumption,audio_32_97.mp3 +u/s 118 of the act which mandates the court to believe that the cheque is issued on the date which is mentioned in the cheque.,audio_32_98.mp3 +There is no cogent evidence to disbelieve the same. Uncorroborated evidence of dw-1 is not sufficient to rebut the presumption and to establish that the,audio_32_99.mp3 +"cheque was in fact issued in the year 2002. Admittedly, the cheque is drawn on an account of the accused maintained by him with sbm,",audio_32_100.mp3 +"whitefield branch, bangalore and it bears his signature. When signature on the cheque is admitted, then handwritings and colour of ink of handwritings on the",audio_32_101.mp3 +"cheque become immaterial. The personsociety on the same day. The accused has ... vs. has placed reliance upon his own oral ... On 1 january,",audio_32_102.mp3 +2016,audio_32_103.mp3 +"Disbelieved only on mere denial by him. The cheque at ex.p-1 is drawn in favour of the complainant for rs.55,460/-. Sec.118 of the act says",audio_32_104.mp3 +that it can be presumed that a cheque is issued for consideration. Sec.139 of the act mandates the court to draw a presumption that a,audio_32_105.mp3 +"cheque is issued towards discharge of legally enforceable debt or liability. When these legal presumptions are drawn in favour of the complainant, then it shall",audio_32_106.mp3 +"be presumed that the cheque at ex.p-1 was issued by the accused for consideration in favour of the complainant towards legally enforceable debt. But, it",audio_32_107.mp3 +"is to be noted that if the complainant discharges his primary burden, then only we can draw such presumptions. In this Cas. , the cheque at",audio_32_108.mp3 +"ex.p-1 is issued in the name of the complainant for rs.55,460/-. It is dated 30.3.2013. Ex.p-2 reveals that the cheque was presented for encashment on",audio_32_109.mp3 +2.4.2013 and it was dishonoured on 3.4.2013. Ex.p-3 to 5 disclose that the complainant got issued legal notice to the accused on 18.4.2013 by rpad,audio_32_110.mp3 +"which returned unserved as ""incomplete address"". The counsel for the accused has argued that the notice was not served on the accused as such no",audio_32_111.mp3 +cause of action arose to the complainant to file the complaint. It is to be noted that dw-1 has admitted during cross examination that the,audio_32_112.mp3 +"address mentioned in the complaint is his correct address, that there was no house No. to his house when he borrowed loan and house No. ",audio_32_113.mp3 +is allotted about 2-3 years back. These admissions go to show that the notice at ex.p-3 was sent to correct address of the accused by,audio_32_114.mp3 +"prepaid postal service. Hence, the notice is deemed to have been served on the accused. The onus shifts upon the accused to prove that there",audio_32_115.mp3 +was no chance of service of notice on the said address. The accused has not adduced any evidence in that regard. His admissions go against,audio_32_116.mp3 +"his contention. Hence, i hold that there was deemed service of notice upon the accused. The last date mentioned on the cover at ex.p-5 is",audio_32_117.mp3 +"27.4.2013. If the said date is considered as the date of deemed service of notice, there was time to pay the amount till 12.5.2013. Cause",audio_32_118.mp3 +of action arose for filing the complaint on 13.5.2013. The complainant has filed this complaint on 15.5.2013 which is well within time. Pw-1 has deposed,audio_32_119.mp3 +"about the facts averred in the complaint which is corroborated by the contents of ex.p-1 to 7. Thus, the complainant has discharged his primary burden",audio_32_120.mp3 +"to prove his Cas. . Hence, the court has to draw legal presumptions u/s 118 and 139 of the act in favour of the complainant. The",audio_32_121.mp3 +"said presumptions are in respect of date of drawing of cheque, existence of debt or liability and issuance of cheque towards discharge of debt or",audio_32_122.mp3 +"liability as held by Hon'ble SC in rangappa vs mohan Cas. . But, the said presumptions are rebuttable presumptions. The accused has to rebut the",audio_32_123.mp3 +same by probable defence. Plausible explanation is not sufficient to rebut the presumptions as held by Hon'ble SC . The accused has to prove his,audio_32_124.mp3 +"defence by preponderance of probability. 17. In this Cas. , the accused has admitted the borrowing of loan of rs.25,000/- from the complainant, but he has",audio_32_125.mp3 +"contended that entire loan amount is repaid to the complainant, that the cheque in question was delivered to the complainant along with other 9 cheques",audio_32_126.mp3 +"as security on the date of loan, that in spite of repayment of entire loan amount, the complainant has not closed the loan account, has",audio_32_127.mp3 +"not returned blank signed documents including the cheques and misused the cheque at ex.p-1 without there being any legally enforceable debt, that he is not",audio_32_128.mp3 +"liable to pay the amount of cheque. Hence, he has sought for his acquittal from the Cas. . He has examined himself as dw-1, examined his",audio_32_129.mp3 +brother and a neighbour as dw-2 and 3 to prove the repayment of amount and to prove his defence. Evidence of dw-4 and contents of,audio_32_130.mp3 +"ex.d-1 and 2 are already discussed above. If the accused is able to prove his defence by preponderance of probability, then onus shifts upon thesociety",audio_32_131.mp3 +"on the same day. The accused has ... vs. has placed reliance upon his own oral ... On 1 january, 2016",audio_32_132.mp3 +"Presumptions u/s 118 and 139 are drawn in favour of the complainant, loan documents, ledger extract, vouchers and receipts are not necessary. The complainant has",audio_32_133.mp3 +produced ledger extract as per the direction of the court given in pursuance of i.a. Filed by the accused. The said document remained unmarked. The,audio_32_134.mp3 +"person calling the other party to produce a document is bound to give it in evidence, but the accused has not chosen to get it",audio_32_135.mp3 +"marked. Since, the said document is produced by the complainant before the court as per direction given in that regard, it becomes part of the",audio_32_136.mp3 +records and its contents can be read in evidence. 18. Dw-1:anand has stated as per his defence. Dw-2:venugopala reddy and dw-3 basavaraj have supported the,audio_32_137.mp3 +"version of dw-1 as to payment of all installments by him to the complainant. Pw-1 ravindra has admitted the payment of rs.20,000/- by the accused",audio_32_138.mp3 +"on 28.3.2006 in the house of dw-2, but he has denied the repayment of entire loan amount by the accused and retention of blank signed",audio_32_139.mp3 +"cheques and other documents, misuse of cheque at ex.p1 and filing of this Cas. based on misused cheque. Dw-1 has deposed that the complainant has",audio_32_140.mp3 +not issued any receipts for the amount paid and he went on postponing to return the documents including the cheques even after payment of entire,audio_32_141.mp3 +"dues. The suggestions given to dw-1 to 3 and evidence of pw-1 go to show that repayment of rs.20,000/- on 28.3.2006 is admitted. The said",audio_32_142.mp3 +"fact does not require further proof, but payment of 20 installments by the accused is denied by pw-1. Except bare denials, nothing is elicited from",audio_32_143.mp3 +"him. Only on the say of dw-1 to 3, it can not be believed that the accused has paid monthly installments regularly for about 20",audio_32_144.mp3 +months and the payment made by him on 28.3.2006 was towards full and final settlement. The accused has not produced receipt or counter foil for,audio_32_145.mp3 +having paid the amount to the complainant. He has not initiated any legal action against the complainant for filing this complaint on the basis of,audio_32_146.mp3 +"forged cheque till this date. He was very much residing in the address shown in the cause title, but the statutory notice was not served",audio_32_147.mp3 +"upon him. The conduct of the accused indicates that he was knowing about the dishonour of cheque and in spite of it, he has not",audio_32_148.mp3 +"received the notice. There is no reply by the accused for the said notice. Hence, the defence of the accused is baseless and the accused",audio_32_149.mp3 +"has failed to raise his defence at the earliest point of time. Even after his appearance before the court, the accused has not made any",audio_32_150.mp3 +"efforts to get back his cheques if any, from the complainant. He has not filed any complaint or suit for getting back his cheques and",audio_32_151.mp3 +"other documents. Except oral evidence of dw-1 to 3, there is nothing on record to believe that the accused has paid 20 installments regularly prior",audio_32_152.mp3 +"to 28.03.2006 and has paid rs.20,000/- on 28.3.2006 towards full and final settlement of his loan account. Hence, i am of the opinion that the",audio_32_153.mp3 +defence raised by the accused is improbable and unbelievable. 19. Dw-2:venugopala reddy is none other than the brother of the accused. Dw-3:basavaraj is a neighbour,audio_32_154.mp3 +against whom similar cheque bounce Cas. is filed by the complainant. Their evidence is uncorroborated. Any amount of oral evidence does not equate the documentary,audio_32_155.mp3 +"evidence as to payment of amount. Dw-1 and 2 have deposed that in spite of payment of entire dues, the complainant has not returned blank",audio_32_156.mp3 +documents and cheques. No prudent man keeps quite under said situation. He ought to have obtained an endorsement regarding closure of account or regarding payment,audio_32_157.mp3 +"of amount towards full and final settlement of dues. The accused has not acted like a prudent man. Hence, his evidence as to discharge of",audio_32_158.mp3 +entire liability is unbelievable. Dw-3 is a neighbour of the accused who is sailing in the same boat and facing cheque bounce charges by thesociety,audio_32_159.mp3 +"on the same day. The accused has ... vs. has placed reliance upon his own oral ... On 1 january, 2016",audio_32_160.mp3 +"Interested to see the acquittal of the accused and hence, oral evidence of dw-2 and 3 is also unbelievable and unreliable. Thus, the accused has",audio_32_161.mp3 +"failed to prove his defence as to repayment of entire dues of the complainant. Only on the basis of oral say of dw-1 to 3,",audio_32_162.mp3 +it can not be held that the accused was not liable to pay any amount to the complainant as on the date of cheque. The,audio_32_163.mp3 +"accused ought to have examined the bill collector of the complainant to prove the payment of installments. He has neither produced receipts, bank statement nor",audio_32_164.mp3 +pass book to prove the payment of amount. I am of the opinion that the accused has failed to prove his defence by preponderance of,audio_32_165.mp3 +"probability. The rulings relied upon by the accused are not applicable to the facts of this Cas. . Hence, i hold that presumptions raised in favour",audio_32_166.mp3 +of the complainant remained unrebutted. The complainant has got marked relevant and necessary documents before the court. He has complied all requirements of sec.138 of,audio_32_167.mp3 +"the act. Hence, the complainant need not produce evidence as to proof of transaction, balance due and issuance of cheque. The complainant is the payee",audio_32_168.mp3 +named in the cheque. It came to be dishonoured for want of funds. The demand notice was in time and it is deemed to be,audio_32_169.mp3 +"served on the accused. In spite of knowing about the dishonour of cheque, the accused has kept quite. Cheque in question was in the custody",audio_32_170.mp3 +of the complainant prior to its production before the court. It implies that the amount of loan is not repaid. Uncorroborated testimony of dw-1 to,audio_32_171.mp3 +3 does not inspire the confidence of the court to believe the discharge of debt. There is no enmity or grudge between pw-1 and the,audio_32_172.mp3 +"accused. There is nothing on record to believe that the complainant has misused the blank cheque of the accused to file this complaint. Therefore, i",audio_32_173.mp3 +"disbelieve the evidence of dw-1 to 3 as to repayment of entire loan amount by the accused to the complainant. Since, the legal presumptions remained",audio_32_174.mp3 +"unrebutted, it can be said that there was legally enforceable debt payable by the accused for the issuance of cheque at ex.p-1. The said cheque",audio_32_175.mp3 +came to be dishonoured for insufficient funds. The complainant has demanded the payment of amount of cheque in writing and the notice is deemed to,audio_32_176.mp3 +"have been served upon the accused. In spite of it, the accused has not paid the amount of cheque. He has not tendered the amount",audio_32_177.mp3 +"even after his appearance before the court on service of summons. Hence, i hold that the complainant has proved his Cas. . The accused is guilty",audio_32_178.mp3 +"for the offence punishable u/s 138 of the act and he is liable for conviction. Consequently, i answer the point in affirmative. 20. Point no.2:",audio_32_179.mp3 +"in view of above discussion and finding, i pass following: order the accused is found guilty and is convicted u/s 255(2) of code of Crl. ",audio_32_180.mp3 +"procedure for the offence punishable u/s 138 of NI Act . The accused is sentenced to pay a fine of rs.1,10,000/-. In default of payment",audio_32_181.mp3 +"of fine, the accused shall undergo si for a period of 6 months. Out of fine amount, rs.1,00,000/- shall be paid to the complainant as",audio_32_182.mp3 +"compensation. Bail bond of accused stands cancelled. (dictated to the stenographer, directly on computer and then corrected by me and pronounced in the open court,",audio_32_183.mp3 +"on this the 1st day of january 2016.) basavaraj chengti xl acmm,society on the same day. The accused has ... vs. has placed reliance upon",audio_32_184.mp3 +"his own oral ... On 1 january, 2016",audio_32_185.mp3 +Complainant: pw.1 - ravindra d.r pw.2 - nataraj.k.r list of document marked on behalf of the complainant: ex.p.1 - cheque ex.1(a) - signature of the,audio_32_186.mp3 +accused ex.p2 - bank memo ex.p3 - copy of legal notice ex.p4 - postal receipt ex.p5 - postal acknowledgments ex.p6 - authorisation letter ex.p7 -,audio_32_187.mp3 +certificate ex.p7(a) - signature of the witness as ex.p7 list of witnesses examined on behalf of the defence: dw.1 b.k.anand dw.2 venugopala reddy b.k dw.3,audio_32_188.mp3 +"basavaraj dw.4 srinivasa k list of documents marked on behalf of the defence: ex.d.1 - account extract ex.d2 - account statement xl acmm, bangalore. Dt;01.01.2016",audio_32_189.mp3 +c-uls a-sdk for judgment order pronounced in open court vide separate judgment. Ordersociety on the same day. The accused has ... vs. has placed reliance,audio_32_190.mp3 +"upon his own oral ... On 1 january, 2016",audio_32_191.mp3 +U/s 255(2) of Cr.P.C. for the offence punishable u/s 138 of NI Act . The accused is sentenced to pay a fine,audio_32_192.mp3 +"of rs.1,10,000/-. In default of payment of fine, the accused shall undergo si for a period of 6 months. Out of fine amount, rs.1,00,000/- shall",audio_32_193.mp3 +"be paid to the complainant as compensation. Bail bond of accused stands cancelled. Xl acmm, bangaloresociety on the same day. The accused has ... vs. ",audio_32_194.mp3 +"has placed reliance upon his own oral ... On 1 january, 2016",audio_32_195.mp3 +"S. ashok and anr. vs. vasudevan moosad on 11 march, 1993 equivalent citations: 1993(2)alt(cri)42, [1995]82compcas665(ker), 1993crilj2486 judgment l. Manoharan, j. 1. Petition under S. 482",audio_33_1.mp3 +"of the Crl. procedure code, 1973, is to quash the complaint and the proceedings in S. t. No. 47 of 1992 on the file of",audio_33_2.mp3 +"the chief judicial magistrate's court, kozhi-kode, 2. Annexure 5, complaint, was filed by the respondent against the petitioners under S. 142 of the negotiable instruments",audio_33_3.mp3 +"act, 1881 (26 of 1881) (for short ""the act""), on the allegation that, against a loan availed of by the first petitioner on june 30,",audio_33_4.mp3 +"1991, he issued a cheque dated july 4, 1991, for an amount of Rs. 25,000, that the cheque when sent for collection was returned with",audio_33_5.mp3 +"the endorsement ""stop payment"", that then only it was known that the respondent was cheated and that since in spite of a notice of dishonour",audio_33_6.mp3 +"the amount was not paid within the stipulated time, the petitioners have committed an offence punishable under S. 138 of the act. 3. The petitioners",audio_33_7.mp3 +"contend that the allegation that the respondent availed of a loan on june 30, 1991, is false. According to the petitioners on the representation of",audio_33_8.mp3 +"the respondent that he would supply 20,000 gross of veneers within three days provided an advance of Rs. 25,000 would be given, the cheque was",audio_33_9.mp3 +issued. But since the respondent failed to supply the veneers within three days as agreed by him the second petitioner stopped the payment as per,audio_33_10.mp3 +"the cheque. It is also contended by the petitioners that, since there is no Cas. that the cheque was returned without payment for want of",audio_33_11.mp3 +"sufficient amount in the account of the drawer, the complaint is not maintainable. 4. In support of their contention that the cheque was issued as",audio_33_12.mp3 +"an advance for the supply of 20,000 gross of veneers and that the petitioners had sufficient funds in the bank, reliance was made on annexures",audio_33_13.mp3 +"1 to 4. Annexures 1 and 2 are relied on in support of their contention that they did not go over to kozhikode, as alleged",audio_33_14.mp3 +by the respondent and reliance was placed on annexure 4 in support of the allegation that the respondent was at sivakasi at the relevant time.,audio_33_15.mp3 +"These annexures are relied on by the petitioners in support of their contention that the plaint transaction is not as alleged in annexure 5, complaint.",audio_33_16.mp3 +It need hardly be said that i.e. a question of fact which cannot be gone into in a proceeding under S. 482 of the,audio_33_17.mp3 +Crl. procedure code. 5. But the main contention urged to quash the complaint and the proceedings is that the complaint being under S. 142 of,audio_33_18.mp3 +"the act and cognizance having been taken by the learned magistrate under S. 138 of the act, there being no allegation in annexure 5, complaint,",audio_33_19.mp3 +"to the effect thats. Ashok and anr. vs. vasudevan moosad on 11 march, 1993",audio_33_20.mp3 +"Hence is liable to be quashed. 6. On the other hand, learned counsel for the respondent contended that, merely because the cheque was returned with",audio_33_21.mp3 +"the endorsement ""stop payment"" that would not mean that the complaint is not maintainable ; the question as to whether the cheque was returned on",audio_33_22.mp3 +"account of want of sufficient funds is a matter for evidence and, therefore, according to learned counsel, the complaint cannot be quashed on the ground",audio_33_23.mp3 +that there is no allegation that the cheque bounced on account of insufficiency of funds. 7. For constituting an offence under S. 138 of the,audio_33_24.mp3 +"act, the cheque ought to have been drawn for the discharge of any debt or other liability, it should have been returned by the bank",audio_33_25.mp3 +"unpaid ""either because the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the",audio_33_26.mp3 +"amount arranged to be paid from that account by an agreement made with that bank"". Then notice of dishonour on receipt of intimation as to",audio_33_27.mp3 +the dishonour and on receipt of the notice failure to pay the amount within the time specified in the S. are all necessary ingredients. As,audio_33_28.mp3 +noticed the contention is since there is no allegation in annexure 5 to the effect that the cheque was returned either because the amount of,audio_33_29.mp3 +money standing to the credit of the account of the drawer is insufficient to honour the cheque or it exceeds the amount arranged to be,audio_33_30.mp3 +"paid from the account, the complaint is liable to be quashed. In the decision in nagawwa (smt.) vs. veeranna shivalingappa konjalgi, air 1976 SC ",audio_33_31.mp3 +"1947, 1951 among the grounds on which a complaint can be quashed, it is stated (headnote) : ""where the allegations made in the complaint or",audio_33_32.mp3 +the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no Cas. against the accused or,audio_33_33.mp3 +"the complaint does not disclose the essential ingredients of an offence which is alleged against the accused."" 8. In the decision in sharda prasad sinha",audio_33_34.mp3 +"(dr.) vs. state of bihar, air 1977 SC 1754, also it is stated (at page 1755) : ""it is now settled law that where",audio_33_35.mp3 +"the allegations set out in the complaint or the charge-sheet do not constitute any offence, it is competent to the HC exercising its inherent",audio_33_36.mp3 +"jurisdiction under S. 482 of the Cr.P.C. to quash the order passed by the magistrate taking cognizance of the offence."" 9. In",audio_33_37.mp3 +"the decision in state of haryana vs. ch. Bhajan lal, air 1992 SC 604, also the said principle is reiterated. As noticed, here the",audio_33_38.mp3 +"offence alleged is one under S. 138 of the act. So, the question is whether the allegations in the complaint would constitute the said offence.",audio_33_39.mp3 +"As per Para. 8 of. Annexure 5, the respondent's Cas. is that, the accused has committed an offence under S. 138 of the negotiable instruments",audio_33_40.mp3 +act. When such is the situation from the said decision it is clear that unless the ingredients of the offence under S. 138 of the,audio_33_41.mp3 +"act are pleaded, the complaint is liable to be quashed under S. 482 of the Crl. procedure code.S. ashok and anr. vs. vasudevan moosad on",audio_33_42.mp3 +"11 march, 1993",audio_33_43.mp3 +"[1993] 1 klt 13 ; [1994] 79 comp cas 488 (ker) contended that the insufficiency of funds is a matter for evidence and, therefore, it",audio_33_44.mp3 +is not obligatory for the complainant to allege the said fact in the complaint. According to learned counsel the same need be established at the,audio_33_45.mp3 +trial. Reliance was also placed by learned counsel for the respondent on the decisions in calcutta sanitary wares vs. c. T. Jacob [1991] 1 klt,audio_33_46.mp3 +269 ; [1993] 76 comp cas 347 (ker) and thomas varghese vs. p. Jerome [1992] 1 klt 812 ; [1993] 76 comp cas 380 (ker).,audio_33_47.mp3 +"On the other hand, learned counsel for the petitioners relied on the decision in bhageerathy vs. v. Beena [1992] 2 klt 31 ; [1993] 76",audio_33_48.mp3 +"comp cas 684 (ker) and also the decision in cm. M. C. No. 901 of 1992, to contend that the said fact unless pleaded is",audio_33_49.mp3 +"fatal to the complaint. In the decision in c. T. Jacob's Cas. [1991] 1 klt 269 ; [1993] 76 comp cas 347 (ker), the learned",audio_33_50.mp3 +judge held that the fact that the payment was countermanded by a stop memo is of no consequence and the same would not affect the,audio_33_51.mp3 +"right to institute proceedings under the act, the question whether the allegation that the cheque was returned on account of insufficiency of funds to honour",audio_33_52.mp3 +"the cheque was not considered in that decision, what was considered in that d'ecision was the fact that the cheque was returned by stop memo",audio_33_53.mp3 +whether would affect the right of the payee to institute the complaint under S. 138 of the act. In thomas varghese's Cas. [1992] 1 klt,audio_33_54.mp3 +"812 ; [1993] 76 comp cas 380 (ker), it is held that the nature of the endorsement on the cheque, when it is returned, is",audio_33_55.mp3 +"not decisive as to whether the offence under S. 138 of the act is made out. It is pointed out that (at page 385): ""the",audio_33_56.mp3 +"offence under the S. cannot depend on the endorsement made by the banker while returning the cheque. Irrespective of the endorsement made by the banker,",audio_33_57.mp3 +if it is established that in fact the cheque was returned unpaid either because the amount of the money standing to the credit of the,audio_33_58.mp3 +account of the drawer is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an,audio_33_59.mp3 +"agreement made with that bank, the offence will be established"". 11. As a matter of fact the question whether the said ingredients have to be",audio_33_60.mp3 +"alleged did not actually arise in that decision. It is stated in Para. 2 of the judgment (at page 382) : ""the complainant proceeded on",audio_33_61.mp3 +"to state that the accused had no funds with his bank either on december 8, 1989, or on any subsequent date and so he issued",audio_33_62.mp3 +"a stop memo to the bank."" 13. There was specific allegation that the accused had no funds in the bank. In t. P. Pappachan's Cas. ",audio_33_63.mp3 +"[1993] 1 klt 13 ; [1994] 79 comp cas 488, it is observed (at page 489) : ""it is difficult to say that in all",audio_33_64.mp3 +"cases where payment is stopped by the drawer (as in this Cas. ), the offence will not arise. In every Cas. of insufficiency of funds, it",audio_33_65.mp3 +"will be open to the drawer to stop payment and keep the statute at bay. i.e. not intended.""S. ashok and anr. vs. vasudevan moosad",audio_33_66.mp3 +"on 11 march, 1993",audio_33_67.mp3 +": ""in the complaint it is stated that the cheque was returned with the endorsement ""payment stopped by the drawer"". As the cheque was returned",audio_33_68.mp3 +with the said endorsement and as there is no averment in the petition that the bank dishonoured the cheque for want of adequate funds in,audio_33_69.mp3 +"the account of the drawer it is not possible to hold that S. 138 of the act is attracted."" 15. In crl. M. C. No. ",audio_33_70.mp3 +901 of 1992 also this court followed the decision in bhageerathy's Cas. [1992] 2 kit 31 ; [1993] 76 comp cas 684. In understanding the,audio_33_71.mp3 +"decision in t. P. Pappachan's Cas. [1993] 1 klt 13 ; [1994] 79 comp cas 488, the decision in crl. M. C. No. 901 of",audio_33_72.mp3 +"1992, has to be kept in view. In view of the declaration of law by the SC in smt. Nagawwa's Cas. , air 1976 supreme",audio_33_73.mp3 +"court 1947, dr. Sharda prasad sinha's Cas. , air 1977 SC 1754 and chand dhawan vs. jawahar lal, air 1992 SC 1379, as to",audio_33_74.mp3 +"the necessity of allegation concerning the ingredients of the offence it is clear that, unless the charge or complaint contains the ingredients of the offence,",audio_33_75.mp3 +"the HC in its inherent power under S. 482 of the Crl. procedure code, 1973, can quash the complaint. As noticed, to constitute the",audio_33_76.mp3 +"offence under S. 138 of the act, one of the ingredients is that, there was no sufficient fund in the account of the drawer to",audio_33_77.mp3 +"honour the cheque. That being the position, since annexure 5, complaint, does not contain an allegation to the said effect and since the allegations therein",audio_33_78.mp3 +"are not capable of bringing out a contention to the said effect even by necessary implication, annexure 5 is liable to be quashed. Consequently, the",audio_33_79.mp3 +"petition is allowed and annexure 5 and the proceedings thereunder are quashed.S. ashok and anr. vs. vasudevan moosad on 11 march, 1993",audio_33_80.mp3 +"Mr hemachandra m kuppalli vs. m/s r.b. Green field agro infra pvt ltd on 28 february, 2024 author: m. Nagaprasanna bench: m. Nagaprasanna 1 in",audio_34_1.mp3 +"the HC of karnataka at bengaluru r dated this the 28th day of february, 2024 before the hon'ble mr. J. m. Nagaprasanna Wp. ",audio_34_2.mp3 +"no.12169 of 2023 (gm-res) between: mr. Hemachandra m.kuppalli S/O late k.b.manappa aged about 80 years r/at p.o. Box no.60515 palo alto, ca 94306, usa",audio_34_3.mp3 +"represented by his power of attorney holder miss uma ram D/O late b.r.ram aged about 79 years r/at no.27/2, 1st main jayamahal extension bengaluru",audio_34_4.mp3 +"- 560 046. ... Petitioner (by sri p.p.hedge, Sr. Adv. for smt. Sharadi s.shetty, Adv. ) and: 1. M/s r.b.green field agro infra pvt ltd., no.801/1,",audio_34_5.mp3 +"1st floor, 3rd main 7th cross, ganganagar bengaluru - 560 032. 2mr hemachandra m kuppalli vs. m/s r.b. Green field agro infra pvt ltd on",audio_34_6.mp3 +"28 february, 2024",audio_34_7.mp3 +"authorised signatory mr. Rakshith S/O bhaskar aged about 35 years r/at no.217, sterling orchard 4th floor, 5th cross rajmahal, vilas rmv extension, sadashivnagar bengaluru",audio_34_8.mp3 +"- 560 080. 2. Mr. Rakshith S/O bhaskar aged about 35 years r/at no.217, sterling orchard 4th floor, 5th cross, rajmahal, vilas rmv extension",audio_34_9.mp3 +sadashivnagar bengaluru - 560 080. 3. Director general and inspector general of police karnataka state police headquarters no.2 nrupatunga road bengaluru - 560 001. 4.,audio_34_10.mp3 +Commissioner of police ali asker road bengaluru - 560 001. 5. Inspector of police J. c.nagar police station jayamahal main road J. c.nagar 3 bengaluru,audio_34_11.mp3 +"- 560 006. ... Respondents (by smt. K.p.yashodha, hcgp for r-3 to r-5) this Wp. is filed under articles 226 and 227 of the",audio_34_12.mp3 +"constitution of india r/w S. 482 of cr.p.c., praying to issue writ for expeditious disposal of execution Cas. no.640/2017 on the file of city",audio_34_13.mp3 +"Civ. andmr hemachandra m kuppalli vs. m/s r.b. Green field agro infra pvt ltd on 28 february, 2024",audio_34_14.mp3 +"this Wp. having been heard and reserved for orders, coming on for pronouncement this day, the court made the following:- order the petitioner is",audio_34_15.mp3 +before this court seeking a direction by issuance of a writ in the nature of mandamus for expeditious disposal of execution Cas. no.640 of 2017,audio_34_16.mp3 +"pending before the city Civ. and sessions judge, bengaluru and has also sought further slew of prayers including restoration of the order of conviction and",audio_34_17.mp3 +"sentence dated 26-08-2015 passed against the respondent no.1/accused no.2 in c.c.no.15698 of 2014 by the xxi additional chief MM , bengaluru. 2. Facts adumbrated are",audio_34_18.mp3 +as follows:- the petitioner is the complainant and respondent no.1 is accused no.2. The 1st respondent is the firm represented by its proprietor the 2nd,audio_34_19.mp3 +respondent. For the sake of convenience both these respondents would be referred to as 'respondent' in this order. Both the petitioner and the respondent have,audio_34_20.mp3 +a transaction and the transaction leads to issuance of a cheque by the respondent in favour of the petitioner for an amount of `49/- lakhs,audio_34_21.mp3 +drawn on axis bank Ltd. . The cheque when presented for realization was dishonoured for want of sufficient funds on 21-01-2014. The petitioner takes up legal,audio_34_22.mp3 +"proceedings against the respondent/accused before the learned magistrate invoking S. 200 of the Cr.P.C. , for offence punishable under S. 138 of",audio_34_23.mp3 +"the NI Act , 1881 ('the act' for short). The learned magistrate by order dated 26-08-2015 convicts the respondent in c.c.no.15698 of 2014 holding him",audio_34_24.mp3 +"to be guilty of the offence punishable under S. 138 of the act and sentences him to pay a fine of `29,10,000/- and in default",audio_34_25.mp3 +"to undergo simple imprisonment for a period of ten months. It was further ordered that a sum of `29,00,000/- was to be paid to the",audio_34_26.mp3 +"complainant by way of compensation under S. 357 of the Cr.P.C. , out of the fine amount. 3. The respondent immediately prefers",audio_34_27.mp3 +"an appeal before the principal city Civ. and sessions judge at bengaluru invoking the provisions under S. 374 of the Cr.P.C. ,",audio_34_28.mp3 +"in Crl. appeal no.1216 of 2015. During the pendency of the appeal, the court refers the matter to the lok adalat for settlement of dispute",audio_34_29.mp3 +between the petitioner and the respondent on 05-05-2016. The matter gets settled before the lok adalat on that day and an award is drawn up,audio_34_30.mp3 +"by the lok adalat whereby the accused undertook to pay sum of `29,00,000/- in installments, failing which the petitioner was at liberty to recover `30,00,000/-",audio_34_31.mp3 +with 12% interest from the date of the award. The accused fails to make any payment or fails to adhere to the conditions of settlement.,audio_34_32.mp3 +The petitioner then files an execution petition before the concerned court in execution Cas. no.640 of 2017 on 03-03-2017 and the present Wp. is,audio_34_33.mp3 +"preferred on 07-06-2023, 6 years after filing of the execution Cas. alleging that there is no progress in the execution Cas. . Therefore, a direction to",audio_34_34.mp3 +the concerned court to expedite the execution Cas. and secure the presence of the respondents 1 and 2 is sought. Themr hemachandra m kuppalli vs. ,audio_34_35.mp3 +"m/s r.b. Green field agro infra pvt ltd on 28 february, 2024",audio_34_36.mp3 +"It was noticed that the 2nd respondent though had been absconding, effort to serve him was not directed to be made. Therefore, this court on",audio_34_37.mp3 +"18-11-2023 had passed the following order: ""the matter was heard, reserved and is also listed for pronouncement of order today. Notice was not issued to",audio_34_38.mp3 +"the accused in c.c.15698 of 2014. Though, the accused has been evading the process of law for the last 6 years and no nbws issued",audio_34_39.mp3 +"against him by the concerned court are executed, as every attempt of execution has been returned as addressee left, in those circumstances, hearing or issuing",audio_34_40.mp3 +"notice to the accused was in the considered view of the court an exercise in futility. But then, since the conviction has been set aside",audio_34_41.mp3 +"on account of a settlement between the petitioner and the accused before the lok adalath, this court thought it fit to make an attempt to",audio_34_42.mp3 +"serve on the accused. Therefore, the order is not pronounced, but the matter is directed to be listed for further hearing treating it as heard",audio_34_43.mp3 +"in part, to be heard in the event the accused would appear before the court. The petitioner shall serve the respondents 1 and 2 by",audio_34_44.mp3 +"way of hand summons and file an acknowledgement before this court. Post the matter immediately after service of notice."" again the matter was listed on",audio_34_45.mp3 +01-02-2024 and two more weeks time was granted to do the needful. On 16-02-2024 the learned counsel for the petitioner files an Aff. that the,audio_34_46.mp3 +"2nd respondent is absconding and he is unable to serve him. In the light of the Aff. , respondents 1 and 2 are taken as served.",audio_34_47.mp3 +"4. Heard sri p.p. Hedge, learned Sr. counsel appearing for the petitioner and smt. K.p.yashodha, leaned HC Govt. pleader for official respondents. 5. The",audio_34_48.mp3 +learned Sr. counsel sri p.p. Hegde appearing for the petitioner would vehemently contend that this is a tragic Cas. where the petitioner/complainant who has in,audio_34_49.mp3 +his favour an order of conviction against the respondent is referred for settlement. Bona fide believing that the respondent would abide by the terms of,audio_34_50.mp3 +"settlement, he settles the issue before the lok adalat. The conviction recorded by the learned magistrate is set aside on the ground of settlement. 6",audio_34_51.mp3 +"years have passed by, but no fruit of settlement has fallen to the share of the petitioner. He would contend that even the executing court",audio_34_52.mp3 +for the last 6 years has been trying to secure the presence of the accused and nothing fruitful has happened as no warrant has been,audio_34_53.mp3 +"executed and even the arrest warrant issued has not even been executed by the jurisdictional police. 6. On the other hand, the learned HC ",audio_34_54.mp3 +Govt. pleader would seek to plead that there are no instructions secured in the Cas. at hand with regard to the execution of warrant against,audio_34_55.mp3 +the respondent as the state is not a party to these proceedings.mr hemachandra m kuppalli vs. m/s r.b. Green field agro infra pvt ltd on,audio_34_56.mp3 +"28 february, 2024",audio_34_57.mp3 +7. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. 8. The,audio_34_58.mp3 +"transaction between the petitioner and the respondent is a matter of record. Towards the said transaction a cheque bearing no.009886 for a sum of `49,00,000/-",audio_34_59.mp3 +drawn on axis bank was issued by the respondent in favour of the petitioner. The petitioner presents the said cheque before the bank upon which,audio_34_60.mp3 +"it had been returned with the endorsement ""funds insufficient"". Proceedings under S. 138 of the act were taken up by the petitioner against the respondent.",audio_34_61.mp3 +"The concerned court i.e., the learned magistrate in terms of the judgment dated 26-08-2015 convicts the respondent for offence punishable under S. 138 of the",audio_34_62.mp3 +"act by the following order: ""23. Point no.3: to this point, i made the following: order the accused no. 2 is convicted u/ S. 255",audio_34_63.mp3 +"(2) of cr.pc for the offence punishable u/sec 138 of n.i act. The accused is sentenced to pay fine amount of Rs. 29,10,000/- (Rs. forty",audio_34_64.mp3 +"nine lakh ten thousand only). In default to undergo simple imprisonment for a period of ten months. Out of the total fine amount of rs.29,10,000/-",audio_34_65.mp3 +"a sum of rs.29,00,000/- is ordered to be paid to the complainant by way of compensation u/sec.357 of Cr.P.C. , and the",audio_34_66.mp3 +"balance amount of Rs. 10,000/- shall be remitted to the state. The bail bond of the accused no.2 stands cancelled. The accused no. 1 is",audio_34_67.mp3 +"acquitted u/S. 255(1) of cr.p.c for the offence punishable u/sec 138 of n.i act. The bail bond of the accused no.1 stands cancelled. (sic)"" (emphasis",audio_34_68.mp3 +supplied) this is called in question by the respondent/accused in Crl. appeal no.1216 of 2015 before the learned sessions judge. During the pendency of the,audio_34_69.mp3 +"appeal and when the matter was set down for final arguments, a joint memo is filed before the concerned court. The joint memo was allowed",audio_34_70.mp3 +"and the appeal was referred to the lok adalat for settlement. On the very day, the settlement was drawn and an award was passed by",audio_34_71.mp3 +the lok adalat recording the terms of settlement and the award passed by the lok adalat reads as follows:mr hemachandra m kuppalli vs. m/s r.b.,audio_34_72.mp3 +"Green field agro infra pvt ltd on 28 february, 2024",audio_34_73.mp3 +"Bengaluru city having been referred for determination to the lok adalat and the parties having compromised/settled the matter, the following award is passed in terms",audio_34_74.mp3 +of the settlement: Crl. appeal no:1216/2015 is disposed off in terms of compromise petition. Judgment and order of sentence dt.26.08.2015 in cc no.15698/2014 on the,audio_34_75.mp3 +"file of xxi-addl. Chief MM , bengaluru city is set aside. Accused is acquitted for the offence u/s.138 of ni act. Accused shall pay rs.29,00,000/-",audio_34_76.mp3 +"on or before 02.11.2016 i.e., rs.3,00,000 on or before 01.06.2016, rs.3,00,000 on or before 01.07.2016, rs.3,00,000 on or before 01.08.2016, rs.3,00,000 on or before 01.09.2016,",audio_34_77.mp3 +"rs.6,00,000 on or before 01.10.2016, rs.5,18,000 on or before 02.11.2016, in favour of complainant, failing which complainant is at liberty to recover of rs 30,00,000/-",audio_34_78.mp3 +"with 12% interest from the date of award. Complainant shall withdraw amount of rs.5,82,000/- deposited by accused before trial court. The parties are informed that",audio_34_79.mp3 +"the court fee, if any paid by any of them shall be refunded."" (emphasis supplied) in terms of the aforesaid award, the Crl. appeal is",audio_34_80.mp3 +disposed of; the judgment of conviction and order of sentence are set aside; the accused is acquitted of the offence under the act and later,audio_34_81.mp3 +the terms are drawn. The liberty that was reserved to the complainant in the event the accused would fail to adhere to the terms of,audio_34_82.mp3 +settlement is to recover the amount with 12% interest from the date of award. The deposit that was made at the time of admission of,audio_34_83.mp3 +the appeal was permitted to be withdrawn by the complainant. 9. Here begins the trauma of the complainant. The respondent deviates from the terms of,audio_34_84.mp3 +"settlement and does not pay a penny to the petitioner which brings the petitioner to file an execution petition in execution Cas. no.640 of 2017,",audio_34_85.mp3 +"as in law, an award of the lok adalat is said to be a decree which is executable. Therefore, execution proceedings were initiated by the",audio_34_86.mp3 +"petitioner/complainant. For the last 6 years securing presence of the accused/respondent has been a herculean task, despite issuing arrest warrant and the shara indicates that",audio_34_87.mp3 +"arrest warrant could not be executed as the addressee has left. Therefore, the respondent/accused has been dodging payment despite the sword of conviction which was",audio_34_88.mp3 +"hanging on his head being taken away on account of the settlement before the lok adalat. In the light of passage of 6 years, the",audio_34_89.mp3 +"petitioner has knocked the doors of this court at this juncture seeking the following prayer: ""wherefore it is prayed that this Hon'ble court be pleased",audio_34_90.mp3 +to 1. Issue a writ of mandamus for expeditious disposal of execution Cas. no.640/2017 on the file of city Civ. & sessions judge at bengaluru,audio_34_91.mp3 +"(cch-57) vide annexure 'e';mr hemachandra m kuppalli vs. m/s r.b. Green field agro infra pvt ltd on 28 february, 2024",audio_34_92.mp3 +Respondent nos. 3 to 5 to arrest and cause production of respondent nos.1 and 2 before the city Civ. & sessions judge at bengaluru (cch-57),audio_34_93.mp3 +"by executing the arrest warrant issued in execution Cas. no.640/2017 vide annexure 'e'; 3. In the event of respondents 1 and 2, failing to satisfy",audio_34_94.mp3 +"the award within the time limit that may be fixed by this Hon'ble court, it is prayed that this Hon'ble court be pleased to issue",audio_34_95.mp3 +appropriate writ/order for restoration of the judgement of conviction and sentence dated 26- 08-2015 passed in c.c.no.15698/2014 on the file of xxi additional chief metropolitan,audio_34_96.mp3 +magistrate at bengaluru vide annexure 'a' by recalling the settlement arrived before the lok adalat as per award dated 05-05-2016 passed by lok adalat in,audio_34_97.mp3 +"Crl. appeal no.1216/2015 on the file of city Civ. and sessions judge, bengaluru(cch-57) vide annexure 'c'; and issue appropriate writs to the trial court to",audio_34_98.mp3 +execute the conviction warrant by directing the police/respondent nos. 3 to 5 to assist in executing the conviction warrant and submit compliance report for this,audio_34_99.mp3 +"Hon'ble court. 4. Grant such other and further reliefs as this Hon'ble court deems fit to grant under the circumstances of the Cas. , in the",audio_34_100.mp3 +"interest of J. ."" (emphasis supplied) the aforesaid prayers are sought in a piquant circumstance that a complainant/victim who has lost money and who also has",audio_34_101.mp3 +a judgment of conviction against the accused in his favour offers himself for a settlement before the lok adalat. The conviction goes away on account,audio_34_102.mp3 +"of such settlement on certain terms and conditions. Not a single term or condition is adhered to by the accused. Therefore, for the sake of",audio_34_103.mp3 +"setting aside the conviction, settlement has been entered into, and the accused with impunity is dodging the clutches of law for the last 6 years.",audio_34_104.mp3 +"No doubt the award of the lok adalat is an executable decree in terms of law. Therefore, the petitioner prefers an execution Cas. which is",audio_34_105.mp3 +"also pending consideration for the last 6 years. In these circumstances, the aforesaid prayers are sought. Whether they are grantable is what requires to be",audio_34_106.mp3 +considered. 10. The first of the prayers is for a direction to the executing court for expeditious disposal of the Cas. before it. The other,audio_34_107.mp3 +"prayer is restoration of the order of conviction. The award of the lok adalat, as is held by the apex court in the Cas. of",audio_34_108.mp3 +"k.n. Govindan kutty menon vs. c.d. Shaji - (2012) 2 scc 51, is akin to a decree passed by the Civ. court which is executable.",audio_34_109.mp3 +There can be no qualm about the principle enunciated by the apex court in the Cas. of k.n.govindan kutty menon (supra) which has been consistently,audio_34_110.mp3 +followed. The Cas. at hand projects a different circumstance. The difference in circumstance is the conduct of the accused. The matter was referred to the,audio_34_111.mp3 +lok adalat on account of a joint memo being filed by the complainant and the accused.mr hemachandra m kuppalli vs. m/s r.b. Green field agro,audio_34_112.mp3 +"infra pvt ltd on 28 february, 2024",audio_34_113.mp3 +"Was at the stage of arguments. But, the court accepts the joint memo and sends the matter for settlement to the lok adalat. At that",audio_34_114.mp3 +juncture the court ought to have noticed whether there has been compliance with the judgment of the apex court in the Cas. of damodar s.prabhu,audio_34_115.mp3 +vs. sayed babalal.h1 wherein three judge bench of the apex court laid down certain guidelines with regard to the settlement in a dishonour Cas. for,audio_34_116.mp3 +"offence punishable under S. 138 of the act. The apex court has held as follows: "".... .... .... .... 8. Before examining the guidelines proposed",audio_34_117.mp3 +"by the learned AG , it would be useful to clarify the position relating to the compounding of offences under the NI Act , 1881.",audio_34_118.mp3 +Even before the insertion of S. 147 in the act (by way of an amendment in 2002) some high courts had permitted the compounding of,audio_34_119.mp3 +"the offence contemplated by S. 138 during the later stages of litigation. In fact, in o.p. Dholakia vs. state of haryana [(2000) 1 scc 762",audio_34_120.mp3 +: 2000 scc (cri) 310] a division bench of this court had permitted the compounding of the offence even though the petitioner's conviction had been,audio_34_121.mp3 +"upheld by all the three designated forums. After noting that the petitioner had already entered into a compromise with the complainant, the bench had rejected",audio_34_122.mp3 +the state's argument that this court need not interfere with the conviction and sentence (2010) 5 scc 663 since it was open to the parties,audio_34_123.mp3 +"to enter into a compromise at an earlier stage and that they had not done so. The bench had observed: (scc p. 763, para 3)",audio_34_124.mp3 +"""3. ... Taking into consideration the nature of offence in question and the fact that the complainant and the accused have already entered into a",audio_34_125.mp3 +"compromise, we think it appropriate to grant permission, in the peculiar facts and circumstances of the present Cas. , to compound."" similar reliefs were granted in",audio_34_126.mp3 +"the orders reported as sivasankaran vs. state of kerala [(2002) 8 scc 164 : 2002 scc (cri) 1872] , kishore kumar vs. J. k. Corpn.",audio_34_127.mp3 +Ltd. [(2004) 13 scc 494 : (2006) 1 scc (cri) 348] and sailesh shyam parsekar vs. baban [(2005) 4 scc 162 : 2005 scc (cri),audio_34_128.mp3 +"1321] among other cases. 9. As mentioned above, the NI Act , 1881 was amended by the negotiable instruments (amendment and miscellaneous provisions) act, 2002",audio_34_129.mp3 +"which inserted a specific provision i.e. S. 147 ""to make the offences under the act compoundable"". We can refer to the following extract from the",audio_34_130.mp3 +"statement of objects and reasons attached to the 2002 amendment which is self-explanatory: ""prefatory note--statement of objects and reasons.--the NI Act , 1881 was amended",audio_34_131.mp3 +"by the banking, public financial institutions and negotiable instruments laws (amendment) act, 1988 wherein a new chapter xvii wasmr hemachandra m kuppalli vs. m/s r.b.",audio_34_132.mp3 +"Green field agro infra pvt ltd on 28 february, 2024",audio_34_133.mp3 +Funds in the account of the drawer of the cheque. These provisions were Inc. with a view to encourage the culture of use of cheques,audio_34_134.mp3 +"and enhancing the credibility of the instrument. The existing provisions in the NI Act , 1881, viz. , Ss. 138 to 142 in chapter xvii have",audio_34_135.mp3 +"been found deficient in dealing with dishonour of cheques. Not only the punishment provided in the act has proved to be inadequate, the procedure prescribed",audio_34_136.mp3 +for the courts to deal with such matters has been found to be cumbersome. The courts are unable to dispose of such cases expeditiously in,audio_34_137.mp3 +"a time bound manner in view of the procedure contained in the act."" (emphasis supplied) in order to address the deficiencies referred to above, S. ",audio_34_138.mp3 +"10 of the 2002 amendment inserted Ss. 143, 144, 145, 146 and 147 into the act, which deal with aspects such as the power of",audio_34_139.mp3 +"the court to try cases summarily (S. 143), mode of service of summons (S. 144), evidence on Aff. (S. 145), bank's slip to be considered",audio_34_140.mp3 +"as prima facie evidence of certain facts (S. 146) and offences under the act to be compoundable (S. 147). 10. At present, we are of",audio_34_141.mp3 +"course concerned with S. 147 of the act, which reads as follows: ""147. Offences to be compoundable.-- notwithstanding anything contained in the code of Crl. ",audio_34_142.mp3 +"procedure, 1973 (2 of 1974), every offence punishable under this act shall be compoundable."" at this point, it would be apt to clarify that in",audio_34_143.mp3 +"view of the non obstante Cl. , the compounding of offences under the NI Act , 1881 is controlled by S. 147 and the scheme contemplated",audio_34_144.mp3 +"by S. 320 of the Cr.P.C. (hereinafter ""crpc"") will not be applicable in the strict sense since the latter is meant for",audio_34_145.mp3 +"the specified offences under the penal code, 1860. 11. So far as crpc is concerned, S. 320 deals with offences which are compoundable, either by",audio_34_146.mp3 +the parties without the leave of the court or by the parties but only with the leave of the court. Sub-S. (1) of S. 320,audio_34_147.mp3 +"enumerates the offences which are compoundable without the leave of the court, while sub-S. (2) of the said S. specifies the offences which are compoundable",audio_34_148.mp3 +"with the leave of the court. 12. S. 147 of the NI Act , 1881 is in the nature of an enabling provision which provides",audio_34_149.mp3 +"for the compounding of offences prescribed under the same act, thereby serving as an exception to the general rule Inc. in sub-S. (9) of S. ",audio_34_150.mp3 +"320 crpc which states that ""no offence shall be compounded except as provided by this S. "". A bare reading of this provision would lead us",audio_34_151.mp3 +"to the inference that offences punishable under laws other than the penal code also cannot be compounded. However, since S. 147 was inserted by way",audio_34_152.mp3 +"of an amendment to a special law, the same will override the effect of S. 320(9) crpc, especiallymr hemachandra m kuppalli vs. m/s r.b. Green",audio_34_153.mp3 +"field agro infra pvt ltd on 28 february, 2024",audio_34_154.mp3 +13. In vinay devanna nayak vs. ryot sewa sahakari bank ltd. [(2008) 2 scc 305 : (2008) 1 scc (cri) 351] this court had examined,audio_34_155.mp3 +"""whether an offence punishable under S. 138 of the act which is a special law can be compounded"". After taking note of a divergence of",audio_34_156.mp3 +"views in past decisions, this court took the following position (c.k. Thakker, j. At scc p. 310, para 17): ""17. ... This provision is intended",audio_34_157.mp3 +to prevent dishonesty on the part of the drawer of negotiable instruments in issuing cheques without sufficient funds or with a view to inducing the,audio_34_158.mp3 +payee or holder in due course to act upon it. It thus seeks to promote the efficacy of bank operations and ensures credibility in transacting,audio_34_159.mp3 +"business through cheques. In such matters, therefore, normally compounding of offences should not be denied. Presumably, parliament also realised this aspect and inserted S. 147",audio_34_160.mp3 +"by the negotiable instruments (amendment and miscellaneous provisions) act, 2002 (55 of 2002)."" in the same decision, the court had also noted: (scc p. 308,",audio_34_161.mp3 +"para 11) ""11. ... Certain offences are very serious in which compromise or settlement is not permissible. Some other offences, on the other hand, are",audio_34_162.mp3 +not so serious and the law may allow the parties to settle them by entering into a compromise. The compounding of an offence signifies that,audio_34_163.mp3 +the person against whom an offence has been committed has received some gratification to an act as an inducement for his abstaining from proceeding further,audio_34_164.mp3 +"with the Cas. ."" 14. It would also be pertinent to refer to this court's decision in r. Rajeshwari vs. h.n. Jagadish [(2008) 4 scc 82",audio_34_165.mp3 +": (2008) 2 scc (cri) 186] wherein the following observations were made (s.b. Sinha, j. At scc p. 85, para 12): ""12. NI Act ",audio_34_166.mp3 +"is a special act. S. 147 of the act provides for a non obstante Cl. , stating: '147. Offences to be compoundable.-- notwithstanding anything contained in",audio_34_167.mp3 +"the Cr.P.C. , 1973 (2 of 1974), every offence punishable under this act shall be compoundable.' indisputably, the provisions of the code of",audio_34_168.mp3 +"Crl. procedure, 1973 would be applicable to the proceedings pending before the courts for trial of offences under the said act. Stricto sensu, however, the",audio_34_169.mp3 +table appended to S. 320 of the Cr.P.C. is not attracted as the provisions mentioned therein refer only to provisions of the,audio_34_170.mp3 +"penal code and none other.""mr hemachandra m kuppalli vs. m/s r.b. Green field agro infra pvt ltd on 28 february, 2024",audio_34_171.mp3 +"Been held to be permissible in a recent decision of this court, reported as k.m. Ibrahim vs. k.p. Mohammed [(2010) 1 scc 798 : (2010)",audio_34_172.mp3 +"1 scc (cri) 921 : (2009) 14 scale 262] wherein kabir, j. Has noted (at scc p. 802, paras 13-14): ""13. As far as the",audio_34_173.mp3 +"non obstante Cl. included in S. 147 of the 1881 act is concerned, the 1881 act being a special statute, the provisions of S. 147",audio_34_174.mp3 +will have an overriding effect over the provisions of the code relating to compounding of offences. ... 14. It is true that the Appl. under,audio_34_175.mp3 +"S. 147 of the NI Act was made by the parties after the proceedings had been concluded before the appellate forum. However, S. 147",audio_34_176.mp3 +"of the aforesaid act does not bar the parties from compounding an offence under S. 138 even at the appellate stage of the proceedings. Accordingly,",audio_34_177.mp3 +"we find no reason to reject the Appl. under S. 147 of the aforesaid act even in a proceeding under Art. 136 of the constitution.""",audio_34_178.mp3 +16. It is evident that the permissibility of the compounding of an offence is linked to the perceived seriousness of the offence and the nature,audio_34_179.mp3 +"of the remedy provided. On this point we can refer to the following extracts from an academic commentary [cited from: k.n.c. Pillai, r.v. Kelkar's Crl. ",audio_34_180.mp3 +"procedure, fifth edn. (lucknow: eastern book Co. , 2008) at p. 444]: ""17.2. Compounding of offences.--a crime is essentially a wrong against the society and the",audio_34_181.mp3 +"state. Therefore any compromise between the accused person and the individual victim of the crime should not absolve the accused from Crl. responsibility. However, where",audio_34_182.mp3 +"the offences are essentially of a Pvt. nature and relatively not quite serious, the code considers it expedient to recognise some of them as compoundable",audio_34_183.mp3 +"offences and some Ors. as compoundable only with the permission of the court."" 17. In a recently published commentary, the following observations have been made",audio_34_184.mp3 +"with regard to the offence punishable under S. 138 of the act [cited from: arun mohan, some thoughts towards law reforms on the topic of",audio_34_185.mp3 +"S. 138, NI Act -- tackling an avalanche of cases (new delhi: universal law publishing co. Pvt. Ltd., 2009) at p. 5]: ""... Unlike that",audio_34_186.mp3 +"for other forms of crime, the punishment here (insofar as the complainant is concerned) is not a means of seeking retribution, but is more a",audio_34_187.mp3 +means to ensure payment of money. The complainant's interest lies primarily in recovering the money rather than seeing the drawer of the cheque in jail.,audio_34_188.mp3 +"The threat of jail is only a mode to ensure recovery. As against the accused who is willing to undergo a jail term, there is",audio_34_189.mp3 +"little available as remedy for the holder of the cheque.mr hemachandra m kuppalli vs. m/s r.b. Green field agro infra pvt ltd on 28 february,",audio_34_190.mp3 +2024,audio_34_191.mp3 +"'settled' before the final judgment on one side and the cases which proceeded to judgment and conviction on the other, we will find that the",audio_34_192.mp3 +"bulk was settled and only a miniscule No. Conti. ."" 18. It is quite obvious that with respect to the offence of dishonour of cheques, it",audio_34_193.mp3 +is the compensatory aspect of the remedy which should be given priority over the punitive aspect. There is also some support for the apprehensions raised,audio_34_194.mp3 +"by the learned AG that a majority of cheque bounce cases are indeed being compromised or settled by way of compounding, albeit during the",audio_34_195.mp3 +later stages of litigation thereby contributing to undue delay in J. delivery. The problem herein is with the tendency of litigants to belatedly choose compounding,audio_34_196.mp3 +"as a means to resolve their dispute. Furthermore, the written submissions filed on behalf of the learned AG have stressed on the fact that",audio_34_197.mp3 +"unlike S. 320 crpc, S. 147 of the NI Act provides no explicit guidance as to what stage compounding can or cannot be done",audio_34_198.mp3 +"and whether compounding can be done at the instance of the complainant or with the leave of the court. 19. As mentioned earlier, the learned",audio_34_199.mp3 +"AG 's submission is that in the absence of statutory guidance, parties are choosing compounding as a method of last resort instead of opting for",audio_34_200.mp3 +it as soon as the magistrates take cognizance of the complaints. One explanation for such behaviour could be that the accused persons are willing to,audio_34_201.mp3 +take the chance of progressing through the various stages of litigation and then choose the route of settlement only when no other route remains. While,audio_34_202.mp3 +"such behaviour may be viewed as rational from the viewpoint of litigants, the hard facts are that the undue delay in opting for compounding contributes",audio_34_203.mp3 +to the arrears pending before the courts at various levels. If the accused is willing to settle or compromise by way of compounding of the,audio_34_204.mp3 +"offence at a later stage of litigation, it is generally indicative of some merit in the complainant's Cas. . In such cases it would be desirable",audio_34_205.mp3 +"if parties choose compounding during the earlier stages of litigation. If however, the accused has a valid defence such as a mistake, forgery or coercion",audio_34_206.mp3 +"among other grounds, then the matter can be litigated through the specified forums. 20. It may be noted here that S. 143 of the act",audio_34_207.mp3 +"makes an offence under S. 138 triable by a judicial magistrate, first class (jmfc). After trial, the progression of further legal proceedings would depend on",audio_34_208.mp3 +"whether there has been a conviction or an acquittal. € in the Cas. of conviction, an appeal would lie to the court of sessions under",audio_34_209.mp3 +"S. 374(3)(a) crpc; thereafter a revision to the HC under Ss. 397/401 crpc and finally a petition before the SC , seeking special leave",audio_34_210.mp3 +"to appeal under S. 136 of the constitution of india. Thus, in Cas. of conviction there will be four levels of litigation. € in the",audio_34_211.mp3 +"Cas. of acquittal by jmfc, the complainant could appeal to the HC under S. 378(4) crpc, and thereafter for special leave to appeal to",audio_34_212.mp3 +"the SC under Art. 136. In such an instance, therefore, there will be three levels of proceedings. 21. With regard to the progression of",audio_34_213.mp3 +"litigation in cheque bouncing cases, the learned AG has urged this court to frame guidelines for a graded scheme of imposing costs on partiesmr",audio_34_214.mp3 +"hemachandra m kuppalli vs. m/s r.b. Green field agro infra pvt ltd on 28 february, 2024",audio_34_215.mp3 +"The costs will act as a deterrent for delayed composition, since at present, free and easy compounding of offences at any stage, however belated, gives",audio_34_216.mp3 +an incentive to the drawer of the cheque to delay settling the cases for years. An Appl. for compounding made after several years not only,audio_34_217.mp3 +"results in the system being burdened but the complainant is also deprived of effective J. . In view of this submission, we direct that the following",audio_34_218.mp3 +"guidelines be followed: the guidelines (i) in the circumstances, it is proposed as follows: (a) that directions can be given that the writ of summons",audio_34_219.mp3 +be suitably modified making it clear to the accused that he could make an Appl. for compounding of the offences at the first or second,audio_34_220.mp3 +"hearing of the Cas. and that if such an Appl. is made, compounding may be allowed by the court without imposing any costs on the",audio_34_221.mp3 +"accused. (b) if the accused does not make an Appl. for compounding as aforesaid, then if an Appl. for compounding is made before the magistrate",audio_34_222.mp3 +"at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount",audio_34_223.mp3 +"to be deposited as a condition for compounding with the legal services Auth. , or such Auth. as the court deems fit. (c) similarly, if the",audio_34_224.mp3 +"Appl. for compounding is made before the sessions court or a HC in revision or appeal, such compounding may be allowed on the condition",audio_34_225.mp3 +"that the accused pays 15% of the cheque amount by way of costs. (d) finally, if the Appl. for compounding is made before the supreme",audio_34_226.mp3 +"court, the Fig. would increase to 20% of the cheque amount. 22. Let it also be clarified that any costs imposed in accordance with these",audio_34_227.mp3 +"guidelines should be deposited with the legal services Auth. operating at the level of the court before which compounding takes place. For instance, in Cas. ",audio_34_228.mp3 +"of compounding during the pendency of proceedings before a magistrate's court or a court of session, such costs should be deposited with the district legal",audio_34_229.mp3 +"services Auth. . Likewise, costs imposed in connection with composition before the HC should be deposited with the state legal services Auth. and those imposed",audio_34_230.mp3 +in connection with composition before the SC should be deposited with the national legal services Auth. . 23. We are also in agreement with the,audio_34_231.mp3 +learned AG 's suggestions for controlling the filing of multiple complaints that are relatable to the same transaction. It was submitted that complaints are being,audio_34_232.mp3 +"increasingly filed in multiple jurisdictions in a vexatious manner which causes tremendous harassment and prejudice to the drawers of the cheque. For instance, in the",audio_34_233.mp3 +"samemr hemachandra m kuppalli vs. m/s r.b. Green field agro infra pvt ltd on 28 february, 2024",audio_34_234.mp3 +"Instalments, several cheques are taken which are dated for each monthly instalment and upon the dishonour of each of such cheques, different complaints are being",audio_34_235.mp3 +"filed in different courts which may also have jurisdiction in relation to the complaint. In light of this submission, we direct that it should be",audio_34_236.mp3 +mandatory for the complainant to disclose that no other complaint has been filed in any other court in respect of the same transaction. Such a,audio_34_237.mp3 +disclosure should be made on a sworn Aff. which should accompany the complaint filed under S. 200 crpc. If it is found that such multiple,audio_34_238.mp3 +"complaints have been filed, orders for transfer of the complaint to the first court should be given, generally speaking, by the HC after imposing",audio_34_239.mp3 +heavy costs on the complainant for resorting to such a practice. These directions should be given effect prospectively. 24. We are also conscious of the,audio_34_240.mp3 +view that the judicial endorsement of the abovequoted guidelines could be seen as an act of judicial law-making and therefore an intrusion into the legislative,audio_34_241.mp3 +domain. It must be kept in mind that S. 147 of the act does not carry any guidance on how to proceed with the compounding,audio_34_242.mp3 +of offences under the act. We have already explained that the scheme contemplated under S. 320 crpc cannot be followed in the strict sense. In,audio_34_243.mp3 +"view of the legislative vacuum, we see no hurdle to the endorsement of some suggestions which have been designed to discourage litigants from unduly delaying",audio_34_244.mp3 +the composition of the offence in cases involving S. 138 of the act. 25. The graded scheme for imposing costs is a means to encourage,audio_34_245.mp3 +"compounding at an early stage of litigation. In the status quo, valuable time of the court is spent on the trial of these cases and",audio_34_246.mp3 +"the parties are not liable to pay any court fee since the proceedings are governed by the Cr.P.C. , even though the impact",audio_34_247.mp3 +"of the offence is largely confined to the Pvt. parties. Even though the imposition of costs by the competent court is a matter of discretion,",audio_34_248.mp3 +the scale of costs has been suggested in the interest of uniformity. The competent court can of course reduce the costs with regard to the,audio_34_249.mp3 +"specific facts and circumstances of a Cas. , while recording reasons in writing for such variance. Bona fide litigants should of course contest the proceedings to",audio_34_250.mp3 +"their logical end."" (emphasis supplied) the apex court while delineating every character of the settlement being arrived at by the accused particularly at the stage",audio_34_251.mp3 +of conviction records certain guidelines to be followed by the concerned court while recording compounding of offence. One such direction is that if the Appl. ,audio_34_252.mp3 +"for compounding is made before the concerned court or the HC in revision or appeal, such compounding should be allowed only on a condition",audio_34_253.mp3 +that the accused pays 15% of the cheque amount by way of costs. This would be for the reason that the accused demonstrates his bona,audio_34_254.mp3 +fides in arriving at a settlement with the complainant. Certain other conditions are also issued by the apex court. The apex court holds that it,audio_34_255.mp3 +should be mandatory that the aforesaid amount is made a condition precedent for even considering the Appl. for compounding of the offence. 12. If the,audio_34_256.mp3 +"finding of the apex court or the guidelines laid down therein are considered qua the facts obtaining in the Cas. at hand, what would emerge",audio_34_257.mp3 +"is that the very reference of the Cas. to the lok adalat is erroneous, as there is nothing recorded by the concerned court that the",audio_34_258.mp3 +accused has deposited 20% fine amount as a condition precedent for referring the matter to the lok adalat.mr hemachandra m kuppalli vs. m/s r.b. Green,audio_34_259.mp3 +"field agro infra pvt ltd on 28 february, 2024",audio_34_260.mp3 +Adalat runs counter to the judgment of the apex court supra. This is the first threshold of illegality in the reference being made to the,audio_34_261.mp3 +lok adalat. What has driven the petitioner to this court is the trauma i.e. generated in the aftermath of the award. It is no,audio_34_262.mp3 +"doubt true that the compromise in terms of law can be executed, as a decree i.e. to be executed would also include proceedings under",audio_34_263.mp3 +"S. 431 of the crpc. To enforce such compromise, the court is empowered to issue fine levy warrant or even arrest warrant to secure the",audio_34_264.mp3 +"presence of the accused for executing the compromise. 13. All the above stages are over in the Cas. at hand. Non- bailable warrant, fine levy",audio_34_265.mp3 +warrant and arrest warrant have been issued for the last 6 years and nothing fruitful has happened. An accused who is convicted for an offence,audio_34_266.mp3 +is moving free and the victim/complainant who holds a decree is struggling to get his money arising out of such compromise. What is discernible from,audio_34_267.mp3 +"the aforesaid action of the accused after getting away with the conviction is that, he had no intention to adhere to the terms of settlement,",audio_34_268.mp3 +"and settlement is arrived at before the lok adalat only to get the hanging sword of conviction on his head taken away. This would, on",audio_34_269.mp3 +"the face of it, amount to playing fraud on the court, and if it is construed to be a fraud, the accused in getting the",audio_34_270.mp3 +"matter settled, it would unravel the settlement, as it is trite law that ""fraud unravels everything"" and this court in exercise of its jurisdiction under",audio_34_271.mp3 +"Art. 226 of the constitution of india, should step in to consider such cases, to be a Cas. of obtaining a decree/order of compromise by",audio_34_272.mp3 +"playing fraud and pass necessary orders in accordance with law. The accused, despite suffering an order of conviction, is dodging the clutches of law for",audio_34_273.mp3 +"the last 6 years, taking advantage of the compromise. Therefore, on the aforesaid ground of fraud as aforesaid being played by the respondent/accused, the proceedings",audio_34_274.mp3 +"before the court of sessions requires to be restored, failing which, the petitioner/victim would be put to insurmountable injustice. 15. Whenever a court, particularly in",audio_34_275.mp3 +cases where the accused who is convicted offers himself for settlement of the dispute and the judgment and conviction is set aside on account of,audio_34_276.mp3 +"such compromise, those courts shall make it mandatory to observe that the deviation of terms of the compromise will automatically efface of the compromise and",audio_34_277.mp3 +"the effect of it will be restoration of proceedings on the original side, in the manner known to law, failing which, the accused who get",audio_34_278.mp3 +"away with conviction on compromise like in the Cas. at hand, take advantage of the laborious rigmarole of procedure of getting the compromise decree executed",audio_34_279.mp3 +"and bring about a situation as is found in the Cas. at hand. 16. For all the aforesaid reasons, the following: order (i) Wp. ",audio_34_280.mp3 +"is allowed in part.mr hemachandra m kuppalli vs. m/s r.b. Green field agro infra pvt ltd on 28 february, 2024",audio_34_281.mp3 +"Learned lvi additional city Civ. and sessions judge, bengaluru city in Crl. appeal no.1216 of 2015 stands quashed. (iii) the proceedings before the learned lvi",audio_34_282.mp3 +"additional city Civ. and sessions judge, bengaluru city in Crl. appeal no.1216 of 2015 stands restored. (iv) the learned lvi additional city Civ. and sessions",audio_34_283.mp3 +"judge, bengaluru city shall regulate the procedure to consider the appeal on its merit, and pass appropriate orders, in accordance with law. Sd/- judge bkp",audio_34_284.mp3 +"ct:ssmr hemachandra m kuppalli vs. m/s r.b. Green field agro infra pvt ltd on 28 february, 2024",audio_34_285.mp3 +"Unknown vs. sayed babalal on 16 july, 2018 author: sandeep sharma bench: sandeep sharma cr. Appeal no.592 of 2017 . 16.07.2018 present: mr. K.d.sood, Sr. ",audio_35_1.mp3 +"Adv. , with mr. Dhananjay sharma, Adv. , for the appellant. Mr. Sudhir thakur, Adv. , for the respondent. Pursuant to judgment dated 22nd june, 2018, whereby this",audio_35_2.mp3 +"court while allowing the Crl. appeal filed by the appellant, held respondent□ accused guilty of having committed the offence punishable under S. 138 of the",audio_35_3.mp3 +"NI Act , respondent□accused has come present in court. 2. On the last date of hearing i.e. 10th july, 2018, learned counsel representing the parties,",audio_35_4.mp3 +"on instructions of their respective clients, stated before this court that after recording of conviction vide judgment dated 22nd june, 2018 by this court, parties",audio_35_5.mp3 +"have resolved their dispute amicably inter se them. By way of amicable settlement, both the parties have agreed that in Cas. an amount of Rs. ",audio_35_6.mp3 +"10 lac in lump sum is paid to the complainant, complainant shall have no objection in getting the matter compounded under S. 147 of the",audio_35_7.mp3 +"act ( for short 'act'). But since on the last date, there was none to make definite statement with regard to compromise, matter was adjourned",audio_35_8.mp3 +"for today with direction to the complainant or his authorized representatives to remain present in court. 3. Today, during the proceedings of the Cas. , a",audio_35_9.mp3 +"joint . Appl. under S. 147 of the act, has been filed on behalf of the respondent□accused and the complainant/petitioner, placing therewith compromise arrived inter",audio_35_10.mp3 +se the parties. Appl. is ordered to be taken on record and it be registered. It has been averred in the Appl. that the parties,audio_35_11.mp3 +"have resolved to settle their matter amicably in terms of the compromise, wherein respondent/accused has agreed to pay a sum of Rs. 10 in lump",audio_35_12.mp3 +"sum to the complainant/petitioner towards his liability. As per agreement, respondent/accused shall pay Rs. 5,00,000/□ to the complainant within a period of one month, unknown",audio_35_13.mp3 +"vs. sayed babalal on 16 july, 2018",audio_35_14.mp3 +"From today i.e on or before 15th september, 2018. It has been also agreed inter se parties that after receipt of entire amount, matter shall",audio_35_15.mp3 +"be compromised. Though, there is specific averment in the Appl. with regard to compromise/settlement arrived inter se parties, but this court solely with a view",audio_35_16.mp3 +"to ascertain the correctness and genuineness of the compromise arrived inter se parties, also recorded the statement of sh. Sudesh kumar, AR of complainant/petitioner,",audio_35_17.mp3 +"who otherwise had filed complaint on behalf of the appellant/complainant under S. 138 of the act, in the competent court of law sh. Sudesh kumar,",audio_35_18.mp3 +"stated on oath that . Appl. under S. 147 of the act, praying therein for compounding the offence has been filed jointly on behalf of",audio_35_19.mp3 +"the complainant as well as accused and it also bears his signatures. He further stated on oath that as per the settlement/compromise, arrived inter se",audio_35_20.mp3 +"parties, respondent/accused has agreed to pay total sum of Rs. 10 lac to the complainant towards his liability and in Cas. such amount is paid",audio_35_21.mp3 +"within two installments as agreed between the parties, complainant/petitioner shall have no objection in getting the matter compounded under S. 147 of the act. Mr.",audio_35_22.mp3 +"Sudesh kumar also stated that in Cas. entire amount as per agreement is received within stipulated time, conviction awarded by this court can also be",audio_35_23.mp3 +"quashed and set□ aside, but compounding, if any, under S. 147 of the act, be ordered after receipt of the full payment. 4. There is",audio_35_24.mp3 +"no dispute that this court vide judgment dated 22nd june, 2018 has held respondent□accused guilty of having committed the offence punishable under S. 138 of",audio_35_25.mp3 +"the act and now adequate sentence and compensation was left to be awarded to the respondent/accused. But in view of the aforesaid developments, no final",audio_35_26.mp3 +"order till date has been passed as far as quantum is concerned. Now, question remains that whether this court after recording conviction has power to",audio_35_27.mp3 +". Compound the Cas. under S. 147 of the act or not?. 5. Learned counsel representing the parties, while inviting attention of this court to",audio_35_28.mp3 +"the judgment rendered by Hon'ble apex court in damodar S. prabhu vs. Sayed babalal h (2010)5 scc 663, fairly submitted that even after recording conviction",audio_35_29.mp3 +"under S. 138 of the act, this court has power to compound the offence while exercising power under S. 147 of the act. In the",audio_35_30.mp3 +"aforesaid judgment, Hon'ble apex court while laying certain guidelines has held that in Cas. accused intends to compromise the matter under S. 147 of the",audio_35_31.mp3 +"act, which is unknown vs. sayed babalal on 16 july, 2018",audio_35_32.mp3 +Accepted with the leave of the court. Hon'ble apex court further held that as far as non□obstante Cl. included in S. 147 of the 1881,audio_35_33.mp3 +"act is concerned, the 1881 act being a special statute, shall have overriding effect over the provisions of S. 320 of cr.p.c, relating to compounding",audio_35_34.mp3 +"of offence and as such, prayer for compounding of offence can be considered by the court without being influenced by provision contained under S. 320",audio_35_35.mp3 +of Cr.P.C. it would be profitable to reproduce following paras no. 6 to 15 of the judgment herein:□ 6. Before examining the,audio_35_36.mp3 +"guidelines proposed by the learned AG , it would be useful to clarify the . Position relating to the compounding of offences under the negotiable",audio_35_37.mp3 +"instruments act, 1881. Even before the insertion of S. 147in the act (by way of an amendment in 2002) some6. Before examining the guidelines proposed",audio_35_38.mp3 +"by the learned AG , it would be useful to clarify the position relating to the compounding of offences under the NI Act , 1881.",audio_35_39.mp3 +Even before the insertion of S. 147in the act (by way of an amendment in 2002) some high courts had permitted the compounding of the,audio_35_40.mp3 +"offence contemplated by S. 138 during the later stages of litigation. In fact in o.p. Dholakia vs. state of haryana, (2000) 1 scc 672, a",audio_35_41.mp3 +division bench of this court had permitted the compounding of the offence even though the petitioner's conviction had been upheld by all the three designated,audio_35_42.mp3 +"forums. After noting that the petitioner had already entered into a compromise with the complainant, the bench had rejected the state's argument that this court",audio_35_43.mp3 +need not interfere with the conviction and sentence since it was open to the parties to enter into a compromise at an earlier stage and,audio_35_44.mp3 +"that they had not done so. The bench had observed:□ ""... Taking into consideration the nature of the offence in question and the fact that",audio_35_45.mp3 +"the complainant and the accused have already entered into a compromise, we think it appropriate to grant permission in the peculiar facts and circumstances of",audio_35_46.mp3 +"the present Cas. , to compound."" 7. Similar reliefs were granted in orders reported as sivasankaran vs. state of kerala & anr., (2002) 8 scc 164,",audio_35_47.mp3 +"kishore kumar vs. J. k. Corp. ltd., (2004) 12 scc 494 and sailesh shyam parsekar vs. baban, (2005) 4 scc 162, among other cases. As",audio_35_48.mp3 +"mentioned above, the NI Act , 1881 was amended by the negotiable instruments (amendment and miscellaneous provisions) act, 2002 which inserted a specific provision, i.e.",audio_35_49.mp3 +S. 147`to make the offences under the act compoundable'. We can refer to the following extract from the statement of objects and reasons attached to,audio_35_50.mp3 +"the 2002 amendment which is self□ explanatory:□ .unknown vs. sayed babalal on 16 july, 2018",audio_35_51.mp3 +"Instruments act, 1881 was amended by the banking, public financial institutions and negotiable instruments laws (amendment) act, 1988 wherein a new chapter xvii was Inc. ",audio_35_52.mp3 +for penalties in Cas. of dishonour of cheques due to insufficiency of funds in the account of the drawer of the cheque. These provisions were,audio_35_53.mp3 +Inc. with a view to encourage the culture of use of cheques and enhancing the credibility of the instrument. The existing provisions in the negotiable,audio_35_54.mp3 +"instruments act, 1881, viz. , Ss. 138 to 142 in chapter xvii have been found deficient in dealing with dishonour of cheques. Not only the punishment",audio_35_55.mp3 +"provided in the act has proved to be inadequate, the procedure prescribed for the courts to deal with such matters has been found to be",audio_35_56.mp3 +cumbersome. The courts are unable to dispose of such cases expeditiously in a time bound manner in view of the procedure contained in the act.,audio_35_57.mp3 +"..."" (emphasis supplied) in order to address the deficiencies referred to above,S. 10 of the 2002 amendment inserted Ss. 143, 144, 145, 146 and 147",audio_35_58.mp3 +"into the act, which deal with aspects such as the power of the court to try cases summarily (S. 143), mode of service of summons",audio_35_59.mp3 +"(S. 144), evidence on Aff. (S. 145), bank's slip to be considered as prima facie evidence of certain facts (S. 146) and offences under the",audio_35_60.mp3 +"act to be compoundable (S. 147). At present, we are of course concerned with S. 147 of the act, which reads as follows:□ ""147. Offences",audio_35_61.mp3 +"to be compoundable. □ notwithstanding anything contained in the Cr.P.C. , 1973 (2 of 1974), every offence punishable under this act shall be",audio_35_62.mp3 +"compoundable. . 8. At this point, it would be apt to clarify that in view of the non□obstante Cl. , the compounding of offences under the",audio_35_63.mp3 +"NI Act , 1881 is controlled by S. 147 and the scheme contemplated by S. 320 of the Cr.P.C. [hereinafter `crpc'] will",audio_35_64.mp3 +not be applicable in the strict sense since the latter is meant for the specified offences under the I.P.C. . So far as the,audio_35_65.mp3 +"crpc is concerned, S. 320 deals with offences which are compoundable, either by the parties without the leave of the court or by the parties",audio_35_66.mp3 +but only with the leave of the court. Sub□ S. (1) of S. 320 enumerates the offences which are compoundable without the leave of the,audio_35_67.mp3 +"court, while sub□ S. (2) of the said S. specifies the offences which are compoundable with the leave of the court. S. 147 of the",audio_35_68.mp3 +"NI Act , 1881 is in the nature of an enabling provision which provides for the compounding of offences prescribed under the same act, thereby",audio_35_69.mp3 +"serving as an exception to the general rule Inc. in sub□S. (9) of S. 320 of the crpc unknown vs. sayed babalal on 16 july,",audio_35_70.mp3 +2018,audio_35_71.mp3 +Bare reading of this provision would lead us to the inference that offences punishable under laws other thanthe I.P.C. also cannot be compounded.,audio_35_72.mp3 +"However, since S. 147 was inserted by way of an amendment to a special law, the same will override the effect of S. 320(9) of",audio_35_73.mp3 +"the crpc, especially keeping in mind that S. 147 carries a non□ obstante Cl. 9.in vinay devanna nayak vs. ryot sewa sahakari bank ltd., (2008)",audio_35_74.mp3 +"2 scc 305, this court had examined `whether an offence punishable under S. 138 of the act which is a special law can be compounded'.",audio_35_75.mp3 +"After taking note of a divergence of views in past decisions, this court took the following position (c.k. Thakker, j. At Para. 17):□ . """,audio_35_76.mp3 +... This provision is intended to prevent dishonesty on the part of the drawer of negotiable instruments in issuing cheques without sufficient funds or with,audio_35_77.mp3 +a view to inducing the payee or holder in due course to act upon it. It thus seeks to promote the efficacy of bank operations,audio_35_78.mp3 +"and ensures credibility in transacting business through cheques. In such matters, therefore, normally compounding of offences should not be denied. Presumably, parliament also realised this",audio_35_79.mp3 +"aspect and inserted S. 147 by the negotiable instruments (amendment and miscellaneous provisions) act, 2002 (act 55 of 2002). ..."" in the same decision, the",audio_35_80.mp3 +"court had also noted (Para. 11):□ ""... Certain offences are very serious in which compromise or settlement is not permissible. Some other offences, on the",audio_35_81.mp3 +"other hand, are not so serious and the law may allow the parties to settle them by entering into a compromise. The compounding of an",audio_35_82.mp3 +offence signifies that the person against whom an offence has been committed has received some gratification to an act as an inducement for his abstaining,audio_35_83.mp3 +"from proceeding further with the Cas. ."" 10. It would also be pertinent to refer to this court's decision in r. Rajeshwari vs. h.n. Jagadish, (2008)",audio_35_84.mp3 +"4 scc 82, wherein the following observations were made (s.b. Sinha, j. At Para. 12):□ ""NI Act is a special act. S. 147 provides",audio_35_85.mp3 +"for a non obstante Cl. , stating: 147. Offences to be compoundable. □ notwithstanding anything contained in the Cr.P.C. , 1973 (2 of 1974),",audio_35_86.mp3 +"every offence punishable under this act shall be compoundable. Indisputably, the provisions of the Cr.P.C. , 1973 would be applicable to the proceedings",audio_35_87.mp3 +"pending before the courts for trial of offences under the said act. Stricto sensu, however, the table appended to S. 320 of the code of",audio_35_88.mp3 +"Crl. procedure is not unknown vs. sayed babalal on 16 july, 2018",audio_35_89.mp3 +"The provisions mentioned therein refer only to provisions of the penal codeand none other."" 11. The compounding of the offence at later stages of litigation",audio_35_90.mp3 +"in cheque bouncing cases has also been held to be permissible in a recent decision of this court, reported as k.m. Ibrahim vs. k.p. Mohammed",audio_35_91.mp3 +"& anr., 2009 (14) scale 262, wherein kabir, j. Has noted (at paras. 11, 12):□ r to ""11. As far as the non□obstante Cl. included",audio_35_92.mp3 +"in S. 147 of the 1881 act is concerned, the 1881 act being a special statute, the provisions of S. 147 will have an overriding",audio_35_93.mp3 +effect over the provisions of the code relating to compounding of offences. ... 12. It is true that the Appl. under S. 147 of the,audio_35_94.mp3 +"NI Act was made by the parties after the proceedings had been concluded before the appellate forum. However, S. 147 of the aforesaid act",audio_35_95.mp3 +"does not bar the parties from compounding an offence under S. 138 even at the appellate stage of the proceedings. Accordingly, we find no reason",audio_35_96.mp3 +"to reject the Appl. undersection 147 of the aforesaid act even in a proceeding under Art. 136 of the constitution."" 12. It is evident that",audio_35_97.mp3 +the permissibility of the compounding of an offence is linked to the perceived seriousness of the offence and the nature of the remedy provided. On,audio_35_98.mp3 +"this point we can refer to the following extracts from an academic commentary [cited from: k.n.c. Pillai, r.v. Kelkar's Crl. procedure, 5th edn. (lucknow: eastern",audio_35_99.mp3 +"book Co. , 2008) at p. 444]:□ ""a crime is essentially a wrong against the society and the state. Therefore, any compromise between the accused person",audio_35_100.mp3 +"and the individual victim of the crime . Should not absolve the accused from Crl. responsibility. However, where the offences are essentially of a Pvt. ",audio_35_101.mp3 +"nature and relatively not quite serious, the code considers it expedient to recognize some of them as compoundable offences and some Ors. as compoundable only",audio_35_102.mp3 +"with the permission of the court. ..."" in a recently published commentary, the following observations have been made with regard to the offence punishable under",audio_35_103.mp3 +"S. 138 of the act [cited from: arun mohan, some thoughts towards law reforms on the topic of S. 138, NI Act □ tackling",audio_35_104.mp3 +"an avalanche of cases (new delhi: universal law publishing co. Pvt. Ltd., 2009) at p. 5] ""... Unlike that for other forms of crime, the",audio_35_105.mp3 +"punishment here (in so far as the complainant is unknown vs. sayed babalal on 16 july, 2018",audio_35_106.mp3 +Payment of money. The complainant's interest lies primarily in recovering the money rather than seeing the drawer of the cheque in jail. The threat of,audio_35_107.mp3 +"jail is only a mode to ensure recovery. As against the accused who is willing to undergo a jail term, there is little available as",audio_35_108.mp3 +remedy for the holder of the cheque. If we were to examine the No. of complaints filed which were `compromised' or `settled' before the final,audio_35_109.mp3 +"judgment on one side and the cases which proceeded to judgment and conviction on the other, we will find that the bulk was settled and",audio_35_110.mp3 +"only a miniscule No. Conti. ."" 13. It is quite obvious that with respect to the offence of dishonour of cheques, it is the compensatory aspect",audio_35_111.mp3 +of the remedy which should be given priority over the punitive aspect. There is also some support for the apprehensions raised by the learned attorney,audio_35_112.mp3 +"general that a majority of cheque bounce cases are indeed being compromised or settled by way of compounding, albeit . During the later stages of",audio_35_113.mp3 +litigation thereby contributing to undue delay in J. □ delivery. The problem herein is with the tendency of litigants to belatedly choose compounding as a means,audio_35_114.mp3 +"to resolve their dispute. Furthermore, the written submissions filed on behalf of the learned AG have stressed on the fact that unlike S. 320",audio_35_115.mp3 +"of the crpc, S. 147 of the NI Act provides no explicit guidance as to what stage compounding can or cannot be done and",audio_35_116.mp3 +"whether compounding can be done at the instance of the complainant or with the leave of the court. As mentioned earlier, the learned AG 's",audio_35_117.mp3 +"submission is that in the absence of statutory guidance, parties are choosing compounding as a method of last resort instead of opting for it as",audio_35_118.mp3 +soon as the magistrates take cognizance of the complaints. One explanation for such behaviour could be that the accused persons are willing to take the,audio_35_119.mp3 +chance of progressing through the various stages of litigation and then choose the route of settlement only when no other route remains. While such behaviour,audio_35_120.mp3 +"may be viewed as rational from the viewpoint of litigants, the hard facts are that the undue delay in opting for compounding contributes to the",audio_35_121.mp3 +arrears pending before the courts at various levels. If the accused is willing to settle or compromise by way of compounding of the offence at,audio_35_122.mp3 +"a later stage of litigation, it is generally indicative of some merit in the complainant's Cas. . In such cases it would be desirable if parties",audio_35_123.mp3 +"choose compounding during the earlier stages of litigation. If however, the accused has a valid defence such as a mistake, forgery or coercion among other",audio_35_124.mp3 +"grounds, then the matter can be litigated unknown vs. sayed babalal on 16 july, 2018",audio_35_125.mp3 +14. It may be noted here that S. 143 of the act makes an offence under S. 138 triable by a judicial magistrate first class,audio_35_126.mp3 +"(jmfc). After trial, the progression of further legal proceedings would depend on whether there has been a conviction or an acquittal. . In the Cas. ",audio_35_127.mp3 +"of conviction, an appeal would lie to the court of sessions under S. 374(3)(a) of the crpc; thereafter a revision to the HC under",audio_35_128.mp3 +"S. 397/401 of the crpc and finally a petition before the SC , seeking special leave to appeal under 136 of the constitution of india.",audio_35_129.mp3 +"Thus, in Cas. of conviction there will be four levels of litigation. 7 in the Cas. of acquittal by the jmfc, the complainant could appeal",audio_35_130.mp3 +"to the HC under S. 378(4) of the crpc, and thereafter for special leave to appeal to the SC under Art. 136. In",audio_35_131.mp3 +"such an instance, therefore, there will be three levels of proceedings. 15. With regard to the progression of litigation in cheque bouncing cases, the learned",audio_35_132.mp3 +AG has urged this court to frame guidelines for a graded scheme of imposing costs on parties who unduly delay compounding of the offence.,audio_35_133.mp3 +"It was submitted that the requirement of deposit of the costs will act as a deterrent for delayed composition, since at present, free and easy",audio_35_134.mp3 +"compounding of offences at any stage, however belated, gives an incentive to the drawer of the cheque to delay settling the cases for years. An",audio_35_135.mp3 +Appl. for compounding made after several years not only results in the system being burdened but the complainant is also deprived of effective J. . In,audio_35_136.mp3 +"view of this submission, we direct that the following guidelines be followed:□ the guidelines (i) in the circumstances, it is proposed as follows: (a) that",audio_35_137.mp3 +directions can be given that the writ of summons be suitably modified making it clear to the accused that he could make an Appl. for,audio_35_138.mp3 +". Compounding of the offences at the first or second hearing of the Cas. and that if such an Appl. is made, compounding may be",audio_35_139.mp3 +"allowed by the court without imposing any costs on the accused.(b) if the accused does not make an Appl. for compounding as aforesaid, then if",audio_35_140.mp3 +"an Appl. for compounding is made before the magistrate at a subsequentunknown vs. sayed babalal on 16 july, 2018",audio_35_141.mp3 +"Required to pay 10% of the cheque amount to be deposited as a condition for compounding with the legal services Auth. , or such Auth. as",audio_35_142.mp3 +"the rcourt deems fit. (c) similarly, if the Appl. for compounding is made before the sessions court or a HC in revision or appeal,",audio_35_143.mp3 +"such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs. (d) finally, if the",audio_35_144.mp3 +"Appl. for compounding is made before the SC , the Fig. would increase to 20% of the cheque amount. Let it also be clarified that",audio_35_145.mp3 +any costs imposed in accordance with these guidelines should be deposited with the legal services Auth. operating at the level of the court before which,audio_35_146.mp3 +"compounding takes place. For instance, in Cas. of compounding during the pendency of proceedings before a magistrate's court or a court of sessions, such costs",audio_35_147.mp3 +"should be deposited with the district legal services Auth. . Likewise, costs imposed in connection with composition before the HC should be deposited with the",audio_35_148.mp3 +state legal services Auth. and those imposed in connection with composition before the SC should be deposited with the national legal services Auth. . .,audio_35_149.mp3 +"6. Consequently, in view of the aforesaid law laid down by the Hon'ble apex court coupled with the facts that this court enjoys power under",audio_35_150.mp3 +"S. 147 of the act, to compound the offence, joint prayer made on behalf of the r to parties for compounding the offence deserves to",audio_35_151.mp3 +"be considered. Since final order, if any, in term of the joint prayer made in the Appl. is to be passed after receipt of full",audio_35_152.mp3 +"payment agreed to be made by the accused, this court deems it fit to adjourn this Cas. till 17th august, 2018, on which date, respondent□",audio_35_153.mp3 +"accused shall pay an amount of Rs. 5,00,000/□ as per compromise. 7. However, it is made clear that prayer for compounding the offence shall be",audio_35_154.mp3 +"considered and decided by this court after receipt of full payment i.e. Rs. 10 lac on or before 15th september, 2018. 8. Needless to say,",audio_35_155.mp3 +"in Cas. first installment as agreed by the respondent□ accused is not paid on or before 17 th august, 2018, he shall surrender before this",audio_35_156.mp3 +"court on the next date of . Hearing in terms of the judgment passed by this court.unknown vs. sayed babalal on 16 july, 2018",audio_35_157.mp3 +"(sandeep sharma) judge 16 july, 2018 th ( shankar) unknown vs. sayed babalal on 16 july, 2018",audio_35_158.mp3 +"Kamlesh kumar vs. state of bihar & anr on 11 december, 2013 equivalent citations: air 2014 SC 660, 2014 air scw 306, air 2014",audio_36_1.mp3 +"SC (Crl. ) 427, 2014 acd 465 (SC ), (2014) 2 madlw(cri) 325, (2014) 57 ocr 363, (2014) 133 allindcas 42 (SC ),",audio_36_2.mp3 +"(2014) 1 pat ljr 299, (2014) 2 mh lj (cri) 1, (2014) 1 dlt(crl) 742, 2014 (1) scc (cri) 839, (2014) 1 orissa lr 456,",audio_36_3.mp3 +"(2014) 3 raj lw 1880, (2014) 4 mah lj 30, (2014) 2 mplj 672, (2014) 1 nij 228, 2014 crilr(SC &mp) 103, 2014 calcrilr",audio_36_4.mp3 +"2 18, (2014) 1 allcrir 18, (2014) 2 civlj 571, (2014) 2 kccr 103, (2014) 118 cut lt 47, (2014) 3 mpht 512, (2014) 1",audio_36_5.mp3 +"sim LC 527, 2014 crilr(SC mah guj) 1 103, 2014 allmr(cri) 348, 2014 (2) scc 424, 2014 (133) allindcas 42, 2013 (15) scale",audio_36_6.mp3 +"202, (2014) 2 pun lr 701, (2014) 1 curcrir 108, (2014) 1 crimes 108, (2014) 1 curcc 22, (2014) 1 crilr(raj) 103, (2014) 2 callt",audio_36_7.mp3 +"1, (2014) 1 uc 197, (2014) 1 civilcourtc 343, (2014) 1 mad lj(cri) 230, (2014) 1 reccrir 332, (2014) 1 reccivr 334, (2013) 15 scale",audio_36_8.mp3 +"202, (2014) 1 jljr 163, (2014) 84 allcric 311, (2014) 1 allcrilr 647 author: a.k.sikri bench: a.k.sikri, k.s.radhakrishnan [reportable] in the SC o f",audio_36_9.mp3 +india Crl. appellate jurisdiction Crl. appeal no. 2083/2013 (arising out of SLP (Crl. ) No. 10056 of 2012) kamlesh kumar …..appellant vs. State of,audio_36_10.mp3 +"bihar & anr. ….respondents j u d g m e n t a.k.sikri,J. kamlesh kumar vs. state of bihar & anr on 11 december, 2013",audio_36_11.mp3 +2. The appellant herein is facing trial in the complaint filed by respondent no.2 under S. 138 of the NI Act (n.i. Act for,audio_36_12.mp3 +"short). According to the appellant, Crl. complaint is not maintainable and no such proceedings could be launched against him. He, therefore, approached the HC ",audio_36_13.mp3 +of judicature at patna in the form of a petition under S. 482 of the Cr.P.C. for quashing of the order dated,audio_36_14.mp3 +"28.10.2009 whereby the court of magistrate had taken cognizance of the complaint filed by the respondent no.2 issued summons to the appellant. This petition, however,",audio_36_15.mp3 +has been dismissed by the HC vide impugned judgment dated 1.11.2012. The solitary reason given by the HC while dismissing the petition is,audio_36_16.mp3 +"that trial has already commenced and two witnesses have already been examined and discharged. Hence, at this stage it would not be proper to interfere",audio_36_17.mp3 +with the trial. Various contentions which were raised by the appellant questioning the very maintainability of the complaint under S. 138 of the n.i. Act,audio_36_18.mp3 +"are not gone into by the HC with the observations that those contentions would be available to the appellant before the trial court, subject",audio_36_19.mp3 +"to the rebuttal of respondent no.2. 3. Mr. Mishra, learned Sr. counsel appearing for the appellant submitted that even on admitted facts the complaint was",audio_36_20.mp3 +untenable as it was clearly time barred and not filed within the stipulated period prescribed in law and therefore the HC could not have,audio_36_21.mp3 +scuttled the issue raised by the appellant by merely relegating the appellant to the trial court when the issue could be decided on the admitted,audio_36_22.mp3 +"facts on records. He, further, submitted that the appellant had approached the HC without loss of any time and if during the pendency of",audio_36_23.mp3 +"the petition filed by the appellant under S. 482, Cr.P.C. , two witnesses had been examined in the meantime, that factor could",audio_36_24.mp3 +"not have weighed against the appellant. 4. In order to understand the controversy, we may give basic facts which are undisputed. 5. The complaint under",audio_36_25.mp3 +"S. 138 of the n.i. Act is filed by respondent no.2 on the basis of cheque bearing no.003285 drawn on bank of india, mahua branch",audio_36_26.mp3 +"where the appellant holds bank account bearing no.23371. This cheque was for a sum of rs.3,45,000/-. The complainant had presented this cheque on 25.10.2008 which",audio_36_27.mp3 +was returned dishonoured by the bank. The defence on merits set up by the appellant is that he is a Dr. by profession who is,audio_36_28.mp3 +"having his Pvt. practice. He found that certain cheques, some signed and some unsigned, were missing from his clinic in december 2006 in respect to",audio_36_29.mp3 +"which he had even given information to the sub- divisional officer, mahua, on 30th december 2006. Cheque No. 003285 was also one of those stolen",audio_36_30.mp3 +cheques. We have stated this defence of the appellant just for record and are not going into this explanation of the appellant or influenced by,audio_36_31.mp3 +"it. We only tend to examine as to whether on admitted events, complaint is not maintainable. 6. The cheque in question was presented on 25.10.2008.",audio_36_32.mp3 +"After it was dishonoured, complainant issued notice dated 27.10.2008 to the appellant. The appellant did not accede to the demand contained in the said notice.",audio_36_33.mp3 +"Even the complainant chose not to file any complaint under S. 138 of the n. I. Act at that time. Instead, he presented same very",audio_36_34.mp3 +cheque again for encashment through his banker on 10.11.2008. It bounced this time as well because of insufficient funds. Anr. legalkamlesh kumar vs. state of,audio_36_35.mp3 +"bihar & anr on 11 december, 2013",audio_36_36.mp3 +"Positive response from the appellant, this time the complainant filed the complaint dated 7.01.2009. The summary of the aforesaid events, accordingly, is as under:- |",audio_36_37.mp3 +date |events | | 25.10.2008 |cheque presented | | 27.10.2008 |legal notice | | 10.11.2008 |2nd presentation | | 17.12.2008 |legal notice | | 07.01.2009,audio_36_38.mp3 +"|complaint filed | 7. On the basis of the aforesaid facts, the submission of mr. Mishra was that the complaint was not filed within the",audio_36_39.mp3 +"limitation prescribed under S. 138 r/w S. 142 of the n. I. Act. To appreciate this contention, we first state the aforesaid provision which",audio_36_40.mp3 +"reads as under: □138. Dishonour of cheque for insufficiency,etc. Of funds in the account.-where any cheque drawn by a person on an account maintained by",audio_36_41.mp3 +"him with a banker for payment of any amount of money to Anr. person from out of that account for the discharge, in whole or",audio_36_42.mp3 +"in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit",audio_36_43.mp3 +of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement,audio_36_44.mp3 +"made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this act,",audio_36_45.mp3 +"be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of",audio_36_46.mp3 +"the cheque, or with both: provided that nothing contained in this S. shall apply unless- (a) the cheque has been presented to the bank within",audio_36_47.mp3 +"a period of six months from the date on which it is drawn or within the period of its validity, whoever is earlier; (b) the",audio_36_48.mp3 +"payee or the holder in due course of the cheque, as the Cas. may be , makes a demand for the payment of the said",audio_36_49.mp3 +"amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him",audio_36_50.mp3 +from the bank regarding the return of the cheque as unpaid; and (c) the drawyer of such cheque fails to make the payment of the,audio_36_51.mp3 +"said amount of money to the payee or, as the Cas. may be, to the holder in due course of the cheque, within fifteen days",audio_36_52.mp3 +"of the receipt of the said notice. 142. Cognizance of offences.- notwithstanding anything contained in the Cr.P.C. , 1973 (2 of 1974)-kamlesh kumar",audio_36_53.mp3 +"vs. state of bihar & anr on 11 december, 2013",audio_36_54.mp3 +"Upon a complaint, in writing, made by the payee or, as the Cas. may be. The holder in due course of the cheque; (b) such",audio_36_55.mp3 +complaint is made within one month of the date on which the cause of action arises under Cl. (c) of the proviso to S. 138:,audio_36_56.mp3 +"[provided that the cognizance of a complaint may be taken by the court after the prescribed period, if the complainant satisfies the court that he",audio_36_57.mp3 +had sufficient cause for not making a complaint within such period.] (c) no court inferior to that of a MM or a judicial magistrate,audio_36_58.mp3 +"of the first class shall try any offence punishable under S. 138.]‚ 8. In the present Cas. , the complainant had not filed the complaint on",audio_36_59.mp3 +"the dishonor of the cheque in the first instance, but presented the said cheque again for encashment. This right of the complainant in presenting the",audio_36_60.mp3 +same very cheque for the second time is available to him under the aforesaid provision. This aspect is already authoritatively determined by this court in,audio_36_61.mp3 +msr leathers vs. . S.palaniappan & anr. (2013) 1 scc 177. Specific question which was formulated for consideration by the court and referred to three,audio_36_62.mp3 +"judge bench in that Cas. , the following question for determination was as under: □whether the payee or holder of a cheque can initiate prosecution for",audio_36_63.mp3 +"an offence under S. 138 of the NI Act , 1881 for its dishonor for the second time, if he had not initiated any action",audio_36_64.mp3 +on the earlier cause of action?‚ this question was answered by the three judge bench in the aforesaid matter in the following manner: □what is,audio_36_65.mp3 +important is that neither S. 138 nor S. 142 or any other provision contained in the act forbids the holder or payee of the cheque,audio_36_66.mp3 +from presenting the cheque for encashment on any No. of occasions within a period of six months of its issue or within the period of,audio_36_67.mp3 +"its validity, whichever is earlier. That such presentation will be perfectly legal and justified was not disputed before us even at the bar by the",audio_36_68.mp3 +learned counsel appearing for the parties and rightly so in the light of the judicial pronouncements on that question which are all unanimous. Even sadanandan,audio_36_69.mp3 +"Cas. , the correctness whereof we are examining, recognized that the holder or the payee of the cheque has the right to present the same any",audio_36_70.mp3 +"No. of times for encashment during the period of six months or during the period of its validity, whichever is earlier.‚ 9. To this extent,",audio_36_71.mp3 +"there cannot be any quarrel and the act of the complainant in presenting the cheque again cannot be questioned by the appellant. However, we findkamlesh",audio_36_72.mp3 +"kumar vs. state of bihar & anr on 11 december, 2013",audio_36_73.mp3 +"Unpaid, legal notice for demand was issued only on 17.12.2008 which was not within 30 days of the receipt of the information by him from",audio_36_74.mp3 +the bank regarding the return of the cheque as unpaid. Non-issuance of notice within the limitation prescribed has rendered the complaint as not maintainable. 10.,audio_36_75.mp3 +"In msr leathers (supra), this court analyzed the provisions of Ss. 138 and 142 of the n.i. Act in the following manner: □the proviso to",audio_36_76.mp3 +"S. 138, however, is all important and stipulates three distinct conditions precedent, which must be satisfied before the dishonor of a cheque can constitute an",audio_36_77.mp3 +offence and become punishable. The first condition is that the cheque ought to have been presented to the bank within a period of six months,audio_36_78.mp3 +"from the date on which it is drawn or within the period of of its validity, whichever is earlier. The second condition is that the",audio_36_79.mp3 +"payee or the holder in due course of the cheque, as the Cas. may be, ought to make a demand for the payment of the",audio_36_80.mp3 +"said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by",audio_36_81.mp3 +him from the bank regarding the return of the cheque as unpaid. The third condition is that the drawer of such a cheque should have,audio_36_82.mp3 +"failed to make payment of the said amount of money to the payee or as the Cas. may, to the holder in due course of",audio_36_83.mp3 +the cheque within fifteen days of the receipt of the said notice. It is only upon the satisfaction of all the three conditions mentioned above,audio_36_84.mp3 +"and enumerated under the proviso to S. 138 as clauses (a), (b) and (c) thereof that an offence under S. 138 can be said to",audio_36_85.mp3 +have been committed by the person issuing the cheque. S. 142 of the NI Act governs taking of cognizance of the offence and starts,audio_36_86.mp3 +"with a non obstante Cl. . It provides that no court shall take cognizance of any offence punishable under S. 138 except upon a complaint, in",audio_36_87.mp3 +"writing, made by the payee or, as the Cas. may be, by the holder in due course and such complaint is made within one month",audio_36_88.mp3 +of the date on which the cause of action arises under Cl. (c) of the proviso to S. 138. In terms of Cl. (c) to,audio_36_89.mp3 +"S. 142, no count inferior to that of a MM or a judicial magistrate of the first class is competent to try any offence",audio_36_90.mp3 +punishable under S. 138. A careful reading of the above provisions makes it manifest that a complaint under S. 138 can be filed only after,audio_36_91.mp3 +"cause of action to do so has accrued in terms of Cl. (c) of the proviso to S. 138 which, as noticed earlier, happens no",audio_36_92.mp3 +sooner than when the drawer of the cheque fails to make the payment of the cheque amount to the payee or the holder of the,audio_36_93.mp3 +cheque within 15 days of the receipt of the notice required to be sent in terms of Cl. (b) of the proviso to S. 138,audio_36_94.mp3 +of the act. The presentation of the cheque and dishonor thereof within the period of its validity or a period of six months is just,audio_36_95.mp3 +"one of the three requirements that constitutes □causekamlesh kumar vs. state of bihar & anr on 11 december, 2013",audio_36_96.mp3 +i.e. more commonly used in Civ. law than in penal statutes. For a dishonor to culminate into the commission of an offence of which,audio_36_97.mp3 +"a court may take cognizance, there are two other requirements, viz. , (a) service of a notice upon the drawer of the cheque to make payment",audio_36_98.mp3 +"of the amount covered by the cheque, and (b) failure of the drawer to make any such payment within the stipulated period of 15 days",audio_36_99.mp3 +of the receipt of such a notice. It is only when the said two conditions are superadded to the dishonor of the cheque that the,audio_36_100.mp3 +"holder/payee of the cheque acquires the right to institute proceedings for prosecution under S. 138 of the act, which right remains legally enforceable for a",audio_36_101.mp3 +"period of 30 days counted from the date on which the cause of action accrued to him. Therefore, there is, nothing in the proviso to",audio_36_102.mp3 +"S. 138 or S. 142 for that matter, to oblige the holder/payee of a dishonoured cheque to necessarily file a complaint even when he has",audio_36_103.mp3 +acquired an indefeasible right to do so. The fact that an offence is complete need not necessarily lead to launch of prosecution especially when the,audio_36_104.mp3 +"offence is not a cognizable one. It follows that the complainant may, even when he has the immediate right to institute Crl. proceedings against the",audio_36_105.mp3 +"drawer of the cheque, either at the request of the holder/payee of the cheque or on his own volition, refrain from instituting the proceedings based",audio_36_106.mp3 +on the cause of action that has accrued to him. Such a decision to defer prosecution may be impelled by several considerations but more importantly,audio_36_107.mp3 +it may be induced by an assurance which the drawer extends to the holder of the cheque that given some time the payment covered by,audio_36_108.mp3 +"the cheques would be arranged, in the process rendering a time- consuming and generally expensive legal recourse unnecessary. It may also be induced by a",audio_36_109.mp3 +belief that a fresh presentation of the cheque may result in encashment for a variety of reasons including the vicissitudes of trade and business dealings,audio_36_110.mp3 +where financial accommodation given by the parties to each other is not an unknown phenomenon. Suffice it to say that there is nothing in the,audio_36_111.mp3 +provisions of the act that forbids the holder/payee of the cheque to demand by service of a fresh notice under Cl. (b) of the proviso,audio_36_112.mp3 +"to S. 138 of the act, the amount covered by the cheque, should there be a second or a successive dishonor of the cheque on",audio_36_113.mp3 +its presentation.‚ 11. It is thus clear that period of limitation is not to be counted from the date when the cheque in question was,audio_36_114.mp3 +"presented in the first instance on 25.10.2008 or the legal notice was issued on 27.10.2008, inasmuch as the cheque was presented again on 10.11.2008. For",audio_36_115.mp3 +"the purposes of limitation, in so far as legal notice is concerned, it is to be served within 30 days of the receipt of information",audio_36_116.mp3 +"by the drawyee from the bank regarding the return of the cheque as unpaid. Therefore, after the cheque is returned unpaid, notice has to be",audio_36_117.mp3 +issued within 30 days of the receipt of information in this behalf. i.e. the period of limitation provided for issuance of legal notice calling,audio_36_118.mp3 +upon the drawer of the cheque to make the payment. After the sending of this notice 15 days time is to be given to the,audio_36_119.mp3 +"noticee, from the date of receipt of the said notice to make the payment, if i.e. already not done. If noticee fails to make",audio_36_120.mp3 +"the payment, the offence can be said to have been committed and in that event cause ofkamlesh kumar vs. state of bihar & anr on",audio_36_121.mp3 +"11 december, 2013",audio_36_122.mp3 +"Month time from the date of cause of action to file the complaint. 12. Applying the aforesaid principles, in the present Cas. , we find that",audio_36_123.mp3 +"cheque was presented, second time, on 10.11.2008. The complainant, however, sent the legal notice on 17.12.2008 i.e. Much after the expiry of the 30 days.",audio_36_124.mp3 +It is clear from the complaint filed by the complainant himself that he had gone to the bank for encashment the cheque on 10.11.2008 but,audio_36_125.mp3 +the cheque was not honoured due to the unavailability of the balance in the account. 13. The crucial question is as to on which date,audio_36_126.mp3 +the complainant received the information about the dishonour of the cheque. As per the appellant the complainant received the information about the dishonour of the,audio_36_127.mp3 +"cheque on 10.11.2008. However, the respondent has disputed the same. However, we would like to add that at the time of arguments the aforesaid submission",audio_36_128.mp3 +"of the appellant was not refuted. After the judgment was reserved, the complainant has filed the Aff. alleging therein that he received the bank memo",audio_36_129.mp3 +of the bouncing of cheque on 17.11.2008 and therefore legal notice sent on 17.12.2008 is within the period 30 days from the date of information.,audio_36_130.mp3 +"Normally, we would have called upon the parties to prove their respective versions before the trial court by leading their evidence. However, in the present",audio_36_131.mp3 +"Cas. , as rightly pointed out by the learned Sr. counsel for the appellant, the complainant has accepted in the complaint itself that he had gone",audio_36_132.mp3 +"to the bank for encashment of cheque on 10.11.2008 and the cheque was not honoured due to insufficient of funds, thereby admitting that he came",audio_36_133.mp3 +to know about the dishonor of the cheque on 10.11.2008 itself. It is for this reason that appellant has filed reply Aff. stating that this,audio_36_134.mp3 +is an after thought plea as no material has been filed before the court below to show that the bank had issued memo about the,audio_36_135.mp3 +return of cheque which was received by the complainant on 17.11.2008. The specific averment made in the complaint in this behalf is as under: □subsequently,audio_36_136.mp3 +the complainant again went to encash the cheque given by the accused on 10.11.2008 which again bounced due to unavailability of balance in the accused,audio_36_137.mp3 +"account.‚ it is, thus, clear from the aforesaid averment made by the complainant himself that he had gone to the bank for encashing the cheque",audio_36_138.mp3 +"on 10.11.2008 and found that because of unavailability of sufficient balance in the account, the cheque was bounced. Therefore, it becomes obvious that he had",audio_36_139.mp3 +come to know about the same on 10.11.2008 itself. In view of this admission in the complaint about the information having been received by the,audio_36_140.mp3 +"complainant about the bouncing of the cheque on 10.11.2008 itself, no further enquiry is needed on this aspect. 14. It is, thus, apparent that he",audio_36_141.mp3 +"received the information about the dishonor of the cheque on 10.11.2008 itself. However, he did not send the legal notice within 30 days therefrom. We,",audio_36_142.mp3 +"thus, find that the complaint filed by him was not maintainable as it was filed without satisfying all the three conditions laid down in S. ",audio_36_143.mp3 +"138 of the n. I. Act as explained in para 12 of the judgment in the Cas. of msr leathers, extracted above.kamlesh kumar vs. state",audio_36_144.mp3 +"of bihar & anr on 11 december, 2013",audio_36_145.mp3 +"Impugned order of the HC . As a consequence, petition filed by the petitioner under S. 482, Cr.P.C. is also allowed and",audio_36_146.mp3 +"the complaint of the complainant is dismissed. €€€€€€€€€€€..j. (k.s.radhakrishnan) €€€€€€€€€€€..j. (a.k.sikri) new delhi, december 11, 2013kamlesh kumar vs. state of bihar & anr on 11",audio_36_147.mp3 +"december, 2013",audio_36_148.mp3 +"Sri. D. Chikkanna vs. sri. Vishwanath on 28 may, 2021 1 c.c.no.610/2018 j the court of the xvi additional chief MM , bengaluru city dated:−",audio_37_1.mp3 +"this the 28th day of may, 2021 present: sri.s.b.handral, b.sc., l.l.b(spl)., xvi addl.c.m.m., bengaluru city. Judgment u/s 355 of Cr.P.C. , Cas. ",audio_37_2.mp3 +"No. : c.c.no.610/2018 complainant : sri. D. Chikkanna, s/o. Narayanappa, aged about 45 years, occupation : ......., r/at maruthi nagar, 1st cross gubbalala village, subramanyapura",audio_37_3.mp3 +"post, bengaluru − 560 061. (rep. By sri m.k. Shivaraju., adv.,) − vs − accused : sri. Vishwanath, s/o. Krishnappa, aged about 26 years, r/at",audio_37_4.mp3 +"maruthi nagar, 1st cross gubbalala village, subramanyapura post, bengaluru − 560 061. (rep. By sri. B.n. Nanjappa., adv.,) Cas. instituted : 08.12.2017 2 c.c.no.610/2018 j",audio_37_5.mp3 +offence complained : u/s 138 of n.i act of plea of accused : pleaded not guilty final order : acquittedsri. D. Chikkanna vs. sri. Vishwanath,audio_37_6.mp3 +"on 28 may, 2021",audio_37_7.mp3 +judgment the complainant has filed this complaint against the accused for the offence punishable u/sec.138 of the NI Act . 2. Briefly stated the Cas. ,audio_37_8.mp3 +"of the complainant is that, the father in law of the accused by name mr. Subramani resident of gubbalala village were good friends and shared",audio_37_9.mp3 +"good, healthy and cordial relationship among us being the villagers of the gubbalala village for the past 20 years and he engaged in the business",audio_37_10.mp3 +"of poultry farm and other petty business and has been deriving good source of income besides deriving rental income to the tune of rs.15,000/€ per",audio_37_11.mp3 +month and due to aforesaid source of income he had substantial saving with him. It is further contended that the father€in€law of the accused engaged,audio_37_12.mp3 +"in hiring / letting out the jcb equipments, vehicles and other machinery on hire / rental basis and has been carrying on the said business",audio_37_13.mp3 +"and accused is a software engineer working in software Co. in bengaluru, it is further contended, that the accused and his father€ in€law approached him",audio_37_14.mp3 +"during 2 nd week of october 2016 stating the subramani was intending to purchase new jcb machine/ equipment, for which he was in requirement of",audio_37_15.mp3 +"hand loan of rs.4 lakhs from him, and they have requested him to advance the loan, accordingly in the last week of october 2016 he",audio_37_16.mp3 +paid sum of rs.4 lakhs by cash to accused and at that time the accused and his father€in€law have represented and assured to repay the,audio_37_17.mp3 +"said sum on or before 31st march 2017 without committing any default. It is further contended that, during the first week of april 2017, the",audio_37_18.mp3 +accused and his father in law have voluntarily met and requested him for granting some more time for repayment of hand loan amount of rs.4,audio_37_19.mp3 +lakhs up to mid of september 2017 and accused has issued two post dated cheques bearing no.184675 dated: 16.09.2017 for rs.2 lakhs and Anr. cheque,audio_37_20.mp3 +"bearing No. 184679 dated: 16.10.2017 for rs.2 lakhs both cheques drawn on indus ind bank, jakkasandra branch, bengaluru towards discharge of the said loan and",audio_37_21.mp3 +requested him to present the said cheques on the date of cheques and same will be honoured. It is further contended that thereafter he had,audio_37_22.mp3 +"presented the first cheque bearing no.184679 dated: 16.10.2017 for realization through his banker indus ind bank, jakkasandra branch, bengaluru but it was returned dishonoured as",audio_37_23.mp3 +"""insufficient funds"" on 18.10.2017 and thereafter he got issued legal notice on 07.11.2017 to the accused by way of speed post and rpad calling upon",audio_37_24.mp3 +the accused to settle the payment of loan amount within 15 days from the date of notice and the said legal notice was not served,audio_37_25.mp3 +"on the accused, however the intimation was delivered to his family members for collecting the notice and returned with an endorsement as ""intimation delivered"" on",audio_37_26.mp3 +"08.11.2017 and 09.11.2017 thus, the accused intentionally not arranged sufficient funds in his bank account and has committed an offence punishable u/sec. 138 of negotiable",audio_37_27.mp3 +instrument act. Hence the complainant has filed this present complainant against the accused for the offence punishable u/s.138 of NI Act .sri. D. Chikkanna vs. ,audio_37_28.mp3 +"sri. Vishwanath on 28 may, 2021",audio_37_29.mp3 +"Sworn statement, in which, he has reiterated the averments of the complaint. In support of his oral evidence, p.w.1 has relied upon the documentary evidence",audio_37_30.mp3 +"as per ex.p.1 to p.7 i.e, original cheque dated:€16.10.2017 as per ex.p.1, the signature on the said cheque identified by p.w.1 as that of the",audio_37_31.mp3 +"accused as per ex.p.1(a), the bank memo as per ex.p.2, the office copy of the legal notice as per ex.p.3, copy of the returned notice",audio_37_32.mp3 +"as per ex.p.4, copy of the postal cover as per ex.p.5, copy of the receipt as per ex.p.6, copy of the acknowledgement as per ex.p.7.",audio_37_33.mp3 +4. Prima€facie Cas. has been made out against the accused and summons was issued against the accused in turn he has appeared before the court,audio_37_34.mp3 +"and got enlarged on bail and the substance of the accusation has been read over to him, to which he pleaded not guilty and claims",audio_37_35.mp3 +to be tried. 5. In view of the principles of law laid down and as per the directions of the Hon'ble apex court in the,audio_37_36.mp3 +"decision of the indian bank Assn. vs., UOI , reported in 2014 (5) scc 590, after recording the plea of the accused, as he",audio_37_37.mp3 +"intended to set out his defence, the Cas. was posted for the complainant evidence. 6. The complainant himself examined as pw.1 and his Aff. filed",audio_37_38.mp3 +"at the time of sworn statement treated as Aff. filed in view of oral evidence, in which he has reiterated the complaint averments and has",audio_37_39.mp3 +"adopted the documents which are already marked as ex.p.1 to p.7 at the time of recording of sworn statement and closed his side. 7. Thereafter,",audio_37_40.mp3 +the statement of the accused as required under sec.313 of the Cr.P.C. has been recorded. He has denied the incriminating evidence appearing,audio_37_41.mp3 +against him and has chosen to lead his rebuttal evidence. 8. The accused himself examined as dw.1 and he has filed his Aff. in lieu,audio_37_42.mp3 +"of his examinations€ in€ chief and got marked the documents as ex.d.1 to ex.d.4 i.e., two cancelled cheque's bearing no. 184678 and 184677 marked as",audio_37_43.mp3 +"ex.d.1 and ex.d.2, statement of accounts pertaining to icici bank are marked as ex.d.3 and ex.d.4, marriage card marked as ex.d.5. The accused has also",audio_37_44.mp3 +examined his mother by name smt. Marakka w/o. Late kittappa and his uncle by name sri. V. Subramani has dw.2 and dw.3 and closed his,audio_37_45.mp3 +side. 9. Heard the arguments of both learned counsels for the complainant and the accused and perused the written argument submitted by the learned counsel,audio_37_46.mp3 +"for the complainant and accused and decisions submitted by the learned counsel for both parties and materials on record. 10. On the basis of complaint,",audio_37_47.mp3 +"evidence of complainant and documents and having heard the arguments of both learned counsels for the complainant and the accused, the following points that are",audio_37_48.mp3 +"arise for consideration are:€ 1. Whether the complainant proves that the accused has issued cheque i.e 1) cheque for rs.2,00,000/= bearing no.184679 dated:€ 16.10.2017 drawn",audio_37_49.mp3 +"on indusind bank, jakkasandrasri. D. Chikkanna vs. sri. Vishwanath on 28 may, 2021",audio_37_50.mp3 +"Complainant has presented a cheque for encashment through his banker but the said cheque has been dishonoured for the reasons ""funds insufficient"" on 20.10.2017 and",audio_37_51.mp3 +the complainant issued legal notice to the accused on 07.11.2017 and inspite of it the accused has not paid the cheque amount within prescribed period,audio_37_52.mp3 +there by the accused has committed an offence u/s.138 of the NI Act ? 2. What order? 11. The above points are answered as under:,audio_37_53.mp3 +point no.1: in the negative. Point no.2:as per final order for the following: reasons 12. Point no.1: before appreciation of the facts and oral and,audio_37_54.mp3 +"documentary evidence of the present Cas. , it is relevant to mention that under Crl. jurisprudence prosecution is required to establish guilt of the accused beyond",audio_37_55.mp3 +"all reasonable doubts however, a proceedings u/s.138 of n.i.act is quasi Crl. in nature. In these proceedings proof beyond all reasonable doubt is subject to",audio_37_56.mp3 +"presumptions as envisaged u/s.118, 139 and 136 of n.i.act. An essential ingredient of S. 138 of n.i.act is that, whether a person issues cheque to",audio_37_57.mp3 +"be encashed and the cheque so issued is towards payment of debt or liability and if it is returned as unpaid for want of funds,",audio_37_58.mp3 +then the person issuing such cheque shall be deemed to have been committed an offence. The offence u/s.138 of n.i. Act pre€supposes three conditions for,audio_37_59.mp3 +"prosecution of an offence which are as under: 1. Cheque shall be presented for payment within specified time i.e., from the date of issue or",audio_37_60.mp3 +before expiry of its validity. 2. The holder shall issue a notice demanding payment in writing to the drawer within one month from the date,audio_37_61.mp3 +of receipt of information of the bounced cheque and 3. The drawer inspite of demand notice fails to make payment within 15 days from the,audio_37_62.mp3 +date of receipt of such notice. If the above said three conditions are satisfied by holder in due course gets cause action to launch prosecution,audio_37_63.mp3 +"against the drawer of the bounced cheque and as per sec.142(b) of the n.i. Act, the complaint has to be filed within one month from",audio_37_64.mp3 +the date on which cause of action arise to file complaint. 13. It is also one of the essential ingredients of S. 138 of n.i.act,audio_37_65.mp3 +"that, a cheque in question must have been issued towards legally recoverable debt or liability. S. 118 and 139 of n.i.act envisages certain presumptions i.e.,u/s.118",audio_37_66.mp3 +a presumption shall be raised regarding 'consideration' 'date' 'transfer' 'endorsement' and holder in course of negotiable instrument. Even sec.139 of the act are rebuttable presumptions,audio_37_67.mp3 +"shall be raised that, the cheque in question was issued regarding dischargesri. D. Chikkanna vs. sri. Vishwanath on 28 may, 2021",audio_37_68.mp3 +"That are required to be raised in cases of negotiable instrument, but the said presumptions are not conclusive and or rebuttable one, this proportion of",audio_37_69.mp3 +law has been laid down by the Hon'ble apex court of india and Hon'ble HC of karnataka in catena of decisions. 14. In the,audio_37_70.mp3 +present Cas. the complainant has examined as pw.1 by filing his Aff. evidence wherein he has reiterated the entire contents of the complaint. The complainant/pw.1,audio_37_71.mp3 +"testified that, the father in law of the accused by name mr. Subramani resident of gubbalala village were good friends since 20 years and he",audio_37_72.mp3 +engaged in the business of poultry farm and other petty business and has been deriving good source of income besides deriving some rental income to,audio_37_73.mp3 +"the tune of rs.15,000/€ per month and due to aforesaid source of income. The complainant / pw1 further testified that the father€ in€law of the",audio_37_74.mp3 +"accused engaged in hiring out/ letting out the jcb equipments, vehicles and other machinery on hire / rental basis and has been carrying on the",audio_37_75.mp3 +said business and accused is a software engineer working in software Co. in bengaluru. The complainant / pw1 further testified that the accused and his,audio_37_76.mp3 +"father€in€law approached him during 2nd week of october 2016 stating the subramani was intending to purchase new jcb machine/ equipment, for which he was in",audio_37_77.mp3 +"requirement of hand loan of rs.4 lakhs from him, accordingly in the last week of october 2016 he paid sum of rs.4 lakhs by cash",audio_37_78.mp3 +to accused and at that time the accused and his father€in€law have represented and assure to repay the said sum on or before 31st march,audio_37_79.mp3 +"2017 without committing any default. The complainant / pw1 further testified that during the first week of april 2017, the accused and his father in",audio_37_80.mp3 +law have voluntarily met and requested him for granting some more time for repayment of hand loan amount of rs.4 lakhs upto mid of september,audio_37_81.mp3 +2017 and at that time the accused has issued two post dated cheques bearing no.184675 dated: 16.09.2017 for rs.2 lakhs and Anr. cheque bearing No. ,audio_37_82.mp3 +"184679 dated: 16.10.2017 for rs.2 lakhs (i.e., ex.p.1 in this Cas. ) both cheques were drawn on indus ind bank, jakkasandra branch, bengaluru towards discharge of",audio_37_83.mp3 +the said loan and requested him to present the said cheques on the date of cheques and same will be honoured. The complainant / pw1,audio_37_84.mp3 +"further testified that he had presented the first cheque bearing no.184679 dated: 16.10.2017 for realization through his banker indus ind bank, jakkasandra branch, bengaluru but",audio_37_85.mp3 +"it was returned dishonoured as ""insufficient funds"" on 18.10.2017 and thereafter he got issued legal notice on 07.11.2017 to the accused by way of speed",audio_37_86.mp3 +post and rpad calling upon the accused to settle the payment of loan amount within 15 days from the date of notice and the said,audio_37_87.mp3 +"legal notice was not served on the accused, however the intimation was delivered to his family members for collecting the notice and returned with an",audio_37_88.mp3 +"endorsement as ""intimation delivered"" on 08.11.2017 and 09.11.2017 thus, the accused intentionally not arranged sufficient funds in his bank account and has committed an offence",audio_37_89.mp3 +"punishable u/sec. 138 of negotiable instrument act. 15. In support of oral evidence the complainant/pw.1 has produced documents as per ex.p.1 to p.7 i.e, original",audio_37_90.mp3 +"cheque dated:€16.10.2017 as per ex.p.1, the signature on the said cheque identified by p.w.1 as that of the accused as per ex.p.1(a), the bank memo",audio_37_91.mp3 +"as per ex.p.2, the office copy of thesri. D. Chikkanna vs. sri. Vishwanath on 28 may, 2021",audio_37_92.mp3 +"Ex.p.5, copy of the receipt as per ex.p.6, copy of the acknowledgement as per ex.p.7 respectively. 16. The accused in his defence has denied the",audio_37_93.mp3 +loan transaction in question and issuance of cheque in question towards discharge of loan in question and service of legal notice upon him. The accused,audio_37_94.mp3 +is also disputed the financial capacity of the complainant. It is the specific defence of the accused that his mother have borrowed a loan of,audio_37_95.mp3 +"rs.1,50,000/€ from the complainant for his marriage purpose by agreeing to repay the said amount within six months and interest of 5% per month and",audio_37_96.mp3 +"on the same day the complainant had collected his two filled cheques bearing no.184678 and 184677 for rs.75,000/€ each, for the security towards the said",audio_37_97.mp3 +"loan amount and also a cheque bearing no. 560034 for rs.7,500/€ towards interest of 5% per month and he and his mother have paid the",audio_37_98.mp3 +"interest regularly and after six months the complainant approached his mother and requested for repayment of loan, at that time his mother sought extension of",audio_37_99.mp3 +time for repayment of the said loan amount but the complainant has requested his mother to give the blank signed cheques for the purpose of,audio_37_100.mp3 +"extension of time, as per instructions his mother had given two blank signed cheques bearing No. 184679 and 184675 for the purpose of extension of",audio_37_101.mp3 +the time and the complainant has returned his earlier two filled cheques to his mother and as per the instruction of the complainant he has,audio_37_102.mp3 +"returned the loan amount along with the interest by way of issuing 4 cheques bearing nos. 948, 949, 946 and 950 by filling amount without",audio_37_103.mp3 +"mentioning the name of the complainant and the said cheques were presented and encashed in his name for sum of rs.70,000/€, and in the name",audio_37_104.mp3 +"of his son i.e., rangantha .c for rs.40,000/€ and in the name of his wife smt. Savithramma .c for rs.40,000/€ and one cheque presented in",audio_37_105.mp3 +"the name of vinutha enterprises for sum of rs.50,000/€ and even after honoring of the all above four cheques and repayment of the loan amount",audio_37_106.mp3 +and he and his mother requested for return of his two blank signed cheques but the complainant informed them that the said cheques were misplaced,audio_37_107.mp3 +"and same will be returned to her after securing the same, but the complainant instead of returning the same has misused his two blank singed",audio_37_108.mp3 +"cheques given by his mother which were collected by him for extension of time to repay the loan, by filing this Cas. against him. It",audio_37_109.mp3 +"is settled law that, once the issuance of the cheque infavour of holder in due course is admitted by the drawer, presumption can be drawn",audio_37_110.mp3 +"about the existence of legally recoverable debt u/s.139 of n.i. Act, terms in favour of holder in due course, however the Hon'ble apex court of",audio_37_111.mp3 +"india in rangappa vs. Mohan Cas. reported in 2010(11) scc 441, has held that, ""issuance of the cheque would create a presumption with respect to",audio_37_112.mp3 +"legally enforceable debt in favour of the payee of the cheque"", however, the said presumption is rebuttable. In the present Cas. , it has to be",audio_37_113.mp3 +examined as to whether the accused has rebutted the presumption successfully or not by examining oral and documentary evidence adduced by the both parties. 17.,audio_37_114.mp3 +"In the present Cas. , it is not in dispute by the accused that, the cheque in question belong to the account of the accused and",audio_37_115.mp3 +"signature found at ex.p.1(a) is that of the accused. It is also not in dispute that, the cheque in question was presented for encashment within",audio_37_116.mp3 +its validity period and the said cheque has been returned as dishonored for want of sufficient fund as per the returned memo issued by the,audio_37_117.mp3 +"concerned bank i.e., ex.p.2, hence as on matter on record it is proved by the complainant that, the cheque in question belongs to the account",audio_37_118.mp3 +"of accused and signature found onsri. D. Chikkanna vs. sri. Vishwanath on 28 may, 2021",audio_37_119.mp3 +18. In relation to the service of notice the accused during course of cross examination of the complainant has denied service of notice upon him.,audio_37_120.mp3 +"The complainant in order to prove the service of notice upon the accused, has produced the documents i.e., copies of legal notice, original returned legal",audio_37_121.mp3 +"notice, postal cover, post receipt and acknowledgment which are at ex.p.3 to ex.p.7 respectively. It appears from the ex.p.3 that after dishonor of the cheque",audio_37_122.mp3 +"in question, the complainant got issued legal notice dated: 07.11.2017 through his Adv. by rpad to the residential of the accused. The ex.p.5 to ex.p.7",audio_37_123.mp3 +"discloses that the ex.p.3 notice was sent to the accused through rpad and the said notice was returned to the complainant with an endorsement ""intimation",audio_37_124.mp3 +"delivered"" i.e., i/d dated 09/11, hence it goes to show that the legal notice issued by the complainant was returned to the complainant with a",audio_37_125.mp3 +postal endorsement of intimation delivered. Though the accused has denied the service of legal notice upon him during the course cross€ examination of the complainant,audio_37_126.mp3 +but has not denied his residential address mentioned by the complainant in the legal notice and on the rpad cover as the said address is,audio_37_127.mp3 +not of his correct residential address and also not produced any documents to disprove the address shown by the complainant in the legal notice and,audio_37_128.mp3 +"on rpad cover as the said address is not of his residential address, except bare denial of service of legal notice in the cross€examination of",audio_37_129.mp3 +the complainant nothing has been elicited to belive the fact that the legal notice issued by the complainant was not to the correct address of,audio_37_130.mp3 +the accused. In addition to the above the accused has not produced any documents to show that as on the date of issuance of legal,audio_37_131.mp3 +notice or endorsement issued by the postal Auth. with regard to service of notice he was not residing in the address shown in legal notice,audio_37_132.mp3 +by the complainant. It is relevant here to mention that the accused has not disputed the endorsement given by the concerned postal Auth. on the,audio_37_133.mp3 +"ex.p.5 i.e., rpad cover, hence it goes to show that the accused has not denied the issuance of legal notice by the complainant through rpad",audio_37_134.mp3 +and return of the said notice to the complainant and even it is not the defence of the accused that the complainant has got created,audio_37_135.mp3 +"the postal endorsement on ex.p.5 by colluding with the postal Dept. , in such circumstances it can be held that the legal notice issued by the",audio_37_136.mp3 +complainant as per ex.p.3 through rpad was sent to the correct address of the accused and the said notice was return to the complainant with,audio_37_137.mp3 +"and endorsement of intimation delivered as per ex.p.5, therefore the notice sent by the complainant to the correct address of the accused is presumed to",audio_37_138.mp3 +have been served on him as per S. 27 of general clauses act. In this regard it is relevant to refer that decision reported in,audio_37_139.mp3 +"2008(4) Civ. code cases 027 (SC ) ""m/s. Indo automobiles vs., m/s. Jai durga enterprises and Ors. ."" wherein the Hon'ble apex court held that,",audio_37_140.mp3 +"""notice sent by registered post with acknowledgement to a correct address€ service of notice has to be presumed"". Therefore in view of the principles of",audio_37_141.mp3 +"law in the above decision, it can be safely held that, the service of notice on accused in this Cas. is presumed to have been",audio_37_142.mp3 +"served on him since in this Cas. also the complainant has issued notice to the accused to his correct residential address through registered post hence,",audio_37_143.mp3 +"the notice issued by he complainant through registered post is held to be proper. In addition to that, it is relevant here to refer the",audio_37_144.mp3 +"decision reported in 2007 air scw 3578 in the Cas. of c.c.alvai haji vs. Palapetty muhammed and Anr. ., wherein the Hon'ble apex court held that",audio_37_145.mp3 +"""the drawer of the cheque is permitted to deposit the cheque amount within 15 days from the date of his appearance before the court in",audio_37_146.mp3 +"pursuance of the service of summons on him and in such situation, his defence of non service of the legal notice cannot be available to",audio_37_147.mp3 +"him"". Hence, in view of the said principles ofsri. D. Chikkanna vs. sri. Vishwanath on 28 may, 2021",audio_37_148.mp3 +Substantiate the claim of the complainant with regard to address of the accused to show there is due service of the legal notice on the,audio_37_149.mp3 +"accused, in view of settled position of law by virtue of the above said decision of Hon'ble apex court of india, the accused is not",audio_37_150.mp3 +"entitled to the technical defence of the alleged non service of the legal notice. Therefore, the contentions taken by the learned counsel for the accused",audio_37_151.mp3 +"that, the notice issued by the complainant was not served on the accused and the complainant has not complied the mandatory requirements of sec.138(b) of",audio_37_152.mp3 +n.i.act and complainant are not maintainable cannot be acceptable and are not sustainable in law. 19. It is also the specific defence of the accused,audio_37_153.mp3 +that the complainant has failed to prove his financial capacity as claimed by him in his complaint and evidence and the accused is also denied,audio_37_154.mp3 +"the loan transaction in question and issuance of the cheque in question towards discharge of loan in question, therefore in view of denial of the",audio_37_155.mp3 +"transaction in question, the initial burden of the complainant to prove that he has paid an amount of rs.4 lakhs to the accused and his",audio_37_156.mp3 +father€in€ law mr. Subramani towards purchase of new jcb machine / equipments as contended by the complainant. As already stated in above that the complainant,audio_37_157.mp3 +in his oral evidence has stated that he is engaged in the business of poultry farm and other petty business and has got good source,audio_37_158.mp3 +"of income besides he has been deriving rental income to the tune of rs.15,000/€ per month, hence he has got sufficient source of income and",audio_37_159.mp3 +"he has paid an amount of rs.4 lakhs by cash as hand loan to the father€in€law of the accused i.e., mr. Subramani in the presence",audio_37_160.mp3 +"of accused for purchase of new jcb vehicle during the last week of october 2016. It is settled that, if the drawer of the cheque",audio_37_161.mp3 +"is admitted issuance of the cheque and his signature on the cheque, presumption can be drawn u/s. 118 and 139 of negotiable instrument act, however",audio_37_162.mp3 +the Hon'ble apex court of india and HC of karnataka and other Hon'ble high courts in catena of decisions held that the presumption available,audio_37_163.mp3 +"u/s. 118 and 139 of n.i.act, is rebuttal presumption and accused can rebut the said presumption either by relying the materials produce by the complainant",audio_37_164.mp3 +or by producing co€gent and convincible evidence on his behalf. 20. It is relevant to hear refer the admit fact of the complainant in his,audio_37_165.mp3 +"cross€examination. The complainant / pw1 at page no.1 of his cross€ examination dated: 21.01.2019 admitted as under : "" ‚ƒ„ † ‡„ˆ ‚‰ŠŠƒƒ , ‡‹ƒ",audio_37_166.mp3 +12 Œ†† ‹‹ƒ ‡‡‡‹ ‹ ‰ Ž‡‹ƒƒ.  ‹Œ  ˆ‘‡Š ’‰ˆ„□ □□□ ƒ“„ ž”†□’‰ˆ„„. □□□ ’„„† •†‹ ƒ –š† ˆ—— ’˜„ œœ’†…‹□□ ž‡‹ƒƒ□ ƒ,audio_37_167.mp3 +□ ‚‰□œƒ… ‘†ˆƒ□ □□□ ’ ’‡† –š† ˆ—— ’˜„ œœ’†…‹‹ƒ† …† ‡„ˆ ™‹ƒ□ □††.......................................................................... ...................................................................  Œ††‡ Œ†‚Œ  ˆ‘‡Š ’‰ˆŒ ƒ“„ ‡‡˜„„„ ™ □,audio_37_168.mp3 +œƒ□ □”. □‚‚ ‡□˜□‹‘ƒ„ □□□ ‚š š ƒ□‰š□ššƒ□ ™□□ □ œƒ□ □”. □□□ ‚… ›ƒ□ššƒ□. □□… ™„ „sri. D. Chikkanna vs. sri. Vishwanath on 28,audio_37_169.mp3 +"may, 2021",audio_37_170.mp3 +"The complainant / pw1 at page no.2 at para no.2 and 3 of his cross€examination admitted as under : ""□□□ œ†‡‡’š ‚œ ˆ□‘’‚—… šœƒ‡ ˆ„œ□□",audio_37_171.mp3 +□ ‡‡˜„„„. Œ†‡‡’ š□□ ‚œ□ ”ˆ‘ œœœž†‡‡ ›‰‰□œƒ„„ ™□□ □ œƒ□ ˆ†š„„. □□□ ’ ’‡† ž—ƒ ƒ □œ□œ‡ššƒƒ□ œ†‡‡’š ‚œ□… ˆ□‘’‚—… ™□□ □ œƒ□ □”.........................................,audio_37_172.mp3 +Œ†‡‡’š ‚œ ˆ□‘’‚—… □□□ œ†‡‡’š ˆ‚□ ‚ “ƒ„ †‡.4 „‡ †‡…‹□□ □ ‡‡˜„†□œƒ… ž‡‹□ššƒƒ □ œ ˆ‹□††ƒ„ □□□ □ ’‰ƒ□‡‡‹‰„„. Œ ˆ□‘’‚—šœ†‹ƒ šœƒ‡ ƒ“„…‹□□ „,audio_37_173.mp3 +ž— –š□š ž‡‹□œ ˆ‹‘‹□ □□□ ˆ‹□††ƒ„ □□□ ‘‹ ˆ‡†□ šœƒ‡ ƒ“„ ž”†□’‰ˆ„„. □□□ ˆ„ ‡‡‰„□ 2 œ†…‹ ‡„œ‡□œ□□ □ ’‰ƒ□‡‡‹‰ƒ ™□□ □ œƒ□ □”. □□□,audio_37_174.mp3 +‘‡† šœƒ‡ œœ‡šš‹ƒ ž— š‹ƒ□ □ƒ†‹ƒ ˆ„ ‡‡˜„„„. □‚‚ ‘‹ □ž‡„‹ƒ□ ž— –ƒƒƒ ’‡ƒ„ ž— ‡‡‰□œ ˆ‹□††ƒ„ ž— ‹ œ □œ□œ‡š –†„„„? ‡‡‰„□ 2 œ†…‹,audio_37_175.mp3 +‡„œ‡□ ’‰ƒ□‡‡‹□ ™‹ƒ† ˆ‡š□ □□□ ‘‡†šœ†‹ƒ □□□ ‡‡˜„ƒ‹šž ž—…‹□□ ˆ ’‰ƒ□‡‡‹‰□ □ƒ†‹ƒ ž— ‡‡‰„□ □□… □ œ’ˆ□ ˆ‚šƒ □œ□œ‡š –š□š ™‹ƒ□ □□‰š□šš†. □□□ ‚ƒ„□ š†…,audio_37_176.mp3 +"ˆ„ ‡‡˜„ƒƒ □ ž…‡ š†‹ƒ □ƒ□□ □ ˆ œ’ˆ□ ’‰ƒ□‡‡‹‰□ □ƒ†‹ƒ ˆ„ ‡‡˜„ƒ□□ ™□□ □ œƒ□□ □ ž‡‹„□ –ÿÿ,ˆ□œƒ„„. Œ†‡‡’š ‚œ ˆ□‘’‚— □□□‹ƒ ž— ‡‡‹ƒ",audio_37_177.mp3 +"ˆ‹□††ƒ„ □□□ ‘‹ ž— –„„ ™‹ƒ□ œš□… ž‡‹ƒ ™□□ □ œƒ□ □”."" the complainant / pw1 at page no.3 and 4 at para no.3 and",audio_37_178.mp3 +"4 of his cross€examination admitted as under : ""œ†‡‡’š ‚œ ”ˆ‘ “†‡ƒˆ„□ □□□‹ƒ ž— ‡‡‹ƒƒ†□ ™‹ƒ□ □□□ ž‡‹□ššƒƒ □ □□□ ˆƒ† ”ˆ‘ ‡□†š□ ƒ“„…‹□□ □",audio_37_179.mp3 +□‡‡‰„„...................................................................... ................................................................ □‡œ ˆ□‘’‚— †œ†… ž— ‡‡˜„ƒ† ? ™‹ƒ† ˆ‡š□ œ†‡‡’… □□□ ž— ‡‡˜„ƒƒ □ œš□ ‚‡„‡ œš□… ‚œ□… ž— ‡‡˜„ƒ□ ™‹ƒ□ □□‰š□šš†. Œ†‡‡’ ”ˆ‘,audio_37_180.mp3 +"‘□ œ ˆ□ˆ ‚‰□œƒ„„ ™□□ □ œƒ□ □”. The complainant / pw1 at page no.5 of his cross€examination admitted as under : ""œ†‡‡’š ‚œ□… □□□",audio_37_181.mp3 +ž— ‡‡˜„ƒ□‹ƒ□ ž‡‹„ƒ ˆ‹ƒ††ƒ„ œ†‡‡’š‹ƒ □□□ šœƒ‡ ƒ“„ ’‰ƒ□‡‡‹‰„„. □□□ ž— ‡‡˜„ƒ□‹ƒ□ ž‡‹„ƒ □ƒ††„œƒ š†‡“□ ž‡‹„□ ˆ□œœ„„. 21. On careful consideration of the above admission,audio_37_182.mp3 +"of the complainant makes it clear that, though the complainant in his complaint and evidence stated that he is engaged in business of poultry farm",audio_37_183.mp3 +"and other petty business and having rental income rs.15,000/€ per month and due to the said source of income he had substantial saving to his",audio_37_184.mp3 +"credit, but as per his own admission on his cross€ examination he has not produced any documents either to show that he is running poultry",audio_37_185.mp3 +farm and other petty business or having rental income as claimed by him. If really the complainant is having sufficient source of income as contended,audio_37_186.mp3 +"by him from his poultry farm and other petty business, definitely he would have produced the documents to that effect and even has not produced",audio_37_187.mp3 +his bank statement to prove his financial capacity. The complainant in his cross€ examination at one breath stated that earlier he was doing construction work,audio_37_188.mp3 +"i.e., (gare work) and poultry farm business butsri. D. Chikkanna vs. sri. Vishwanath on 28 may, 2021",audio_37_189.mp3 +"Was / is running the said business, but Anr. breath stated that as on the date of request made by the father€in€law of the accused",audio_37_190.mp3 +for advancing the loan amount he was not having sufficient funds and requested 2 weeks time to lend the loan amount and he had collected,audio_37_191.mp3 +the amount from some other persons to whom he has lend the loan amount and after collecting the said amount out of the said amount,audio_37_192.mp3 +he has lend the loan amount in question to the father€in€law of the accused and he is not able to say the name of those,audio_37_193.mp3 +persons. Hence it goes to show that the complainant is not specific about his source of income as one breath the complainant in his evidence,audio_37_194.mp3 +and complaint stated that out of his income derived from business of poultry farm and other petty business and rental income he has lent the,audio_37_195.mp3 +loan amount in question but Anr. breath has stated that he had collected the amount from some other persons to whom he had lend the,audio_37_196.mp3 +"amount and after collecting the said amount he has advance the loan amount in question, therefore the inconsistent statement of the complainant itself creates a",audio_37_197.mp3 +"serious doubts with regard financial capacity of the complainant. It really the complainant is having source of income as stated in complaint and his evidence,",audio_37_198.mp3 +definitely he would have stated the same fact in his cross€examination. 22. In addition to the above complainant in his complaint and evidence stated that,audio_37_199.mp3 +the accused and his father€in€law approached him during the second week of october 2016 and have requested him to help and lend hand loan of,audio_37_200.mp3 +"rs.4 lakhs to mr. Subramani to purchase new jcb machine / equipments, accordingly during last week of october 2016 he had paid a hand loan",audio_37_201.mp3 +of rs.4 lakhs to mr. Subramani by cash in the presence of the accused and at that time they assured to repay the said amount,audio_37_202.mp3 +on or before 31st march 2017. Hence on careful reading of the complaint and evidence of the complainant according to him the accused and his,audio_37_203.mp3 +"father€in€law viz., subramani approached him and requested to lend loan of rs.4 lakhs to mr. Subramani for purchase of new jcb machine as the father€in€law",audio_37_204.mp3 +"of the accused engaged in hiring out or letting out the jcb machines, equipments on hire/rental basis and carrying on the said business, accordingly he",audio_37_205.mp3 +"has lend the rs.4 lakhs to the father€ in€law of the accused, but whereas the complainant in his cross€examination has categorically admitted that he has",audio_37_206.mp3 +"not lend any loan amount to the subramani i.e., the father€in€ law of the accused and even has not taken any documents from the said",audio_37_207.mp3 +subramani or from the accused for having lend the alleged loan amount of rs.4 lakhs and also admitted that he has not verified the documents,audio_37_208.mp3 +with regard to alleged jcb business of the subramani and also admitted that he has given the loan amount to the accused through his father€in€law,audio_37_209.mp3 +"mr. Subramani and accused is not carrying jcb business, hence the admissions of the complainant itself goes to show that he has categorically admitted that",audio_37_210.mp3 +"he has not lend the loan amount to the father€in€law of the accused, therefore the said admission itself negativates or nullifies the very claim made",audio_37_211.mp3 +by the complainant in his complain and his evidence that he has lent an amount of rs.4 lakhs to the father€ in€law of the accused,audio_37_212.mp3 +"i.e., mr. Subramani for the purpose of purchasing the jcb machine / equipments. If really the complainant has lent rs.4 lakhs to the father€in€law of",audio_37_213.mp3 +"the accused in presence of the accused as hand loan for purchase of the jcb machine / equipments, at least he would have collected the",audio_37_214.mp3 +"documents either from the father€in€ law of the accused or if the alleged loan amount lent to the accused through his father€in€law, the complainant would",audio_37_215.mp3 +have collected documents from the accused for having lending huge amount of rs.4 lakhs but the complainant has clearly admitted that has not collected any,audio_37_216.mp3 +"documents from the father€in€ law of the accused or from the accused, that itself creates a doubt with regard to alleged lending of huge loan",audio_37_217.mp3 +"amount of rs.4 lakhs assri. D. Chikkanna vs. sri. Vishwanath on 28 may, 2021",audio_37_218.mp3 +"Insisting a document from the person, while lending of huge loan amount, in such circumstances the alleged lending of huge amount of rs.4 lakhs by",audio_37_219.mp3 +the complainant as hand loan either to the father€ in€law of the accused or accused without collecting any documents creates a serious doubts with regard,audio_37_220.mp3 +to lending of loan amount in question. In addition to that if really the complainant has lent the alleged loan of rs.4 lakhs to the,audio_37_221.mp3 +accused through his father€in€law then the complainant could have stated this fact either in his legal notice or in the complaint or in his evidence,audio_37_222.mp3 +but nothing has been stated by the complainant for the first time in his cross€examination has disclosed that he has lent the alleged loan of,audio_37_223.mp3 +"rs.4 lakhs to the accused through his father€in€law, therefore the in consistent statement of the complainant creates a doubt with regard to lending of alleged",audio_37_224.mp3 +"loan amount to the father€in€law of the accused as claimed by him. It is also relevant to mention that, the complainant in his cross€examination at",audio_37_225.mp3 +"one stretch admitted that he has not lend any loan amount to the father€in€law of the accused i.e., mr. Subramani and has lent the loan",audio_37_226.mp3 +"of rs.4 lakhs to the accused through his father€in€law i.e., mr. Subramani and Anr. stretch admitted that the loan amount is required to the father€in€law",audio_37_227.mp3 +"of the accused i.e., mr. Subramani , hence it goes to show that if really the father€in€law of the accused was in need of loan",audio_37_228.mp3 +"amount and has requested to lend the loan amount to the complainant, in such circumstances the question of lending of the alleged loan of amount",audio_37_229.mp3 +"of rs.4 lakhs to the accused doest not arise at all , therefore the admission of the complainant itself creates a doubt as to who",audio_37_230.mp3 +"have approached the complainant i.e., whether the accused or his father €in€law have approached and requested to lend the loan amount as claimed by the",audio_37_231.mp3 +"complainant, therefore on the basis of inconsistent versions of the complainant it can be held that the complainant has miserable failed to prove that the",audio_37_232.mp3 +accused and his father€in€law have approached to him and the father€in€law has requested to lend loan amount of rs.4 lakhs for purchase of new jcb,audio_37_233.mp3 +"machine / equipments. 23. It is also relevant to mention that the accused has examined his father€in€law i.e., mr. Subramani as dw3 on his behalf.",audio_37_234.mp3 +"The said Mr. subramani i.e., dw3 in his evidence has clearly stated that himself and complainant are neighbors and he is not doing any chit",audio_37_235.mp3 +fund business or owner of jcb equipments and he did not approached the complainant to purchase jcb machine or equipments during the year 2016 and,audio_37_236.mp3 +did not required any hand loan amount of rs.4 lakhs and did not received any amount from the complainant during the year 2016 and did,audio_37_237.mp3 +not promised the repay the said amount on or before 31.03.2017. The dw3 has also stated the complainant has created false story to purchase the,audio_37_238.mp3 +jcb equipments and other machinery for that he and accused approached him seeking hand loan from him. The learned counsel for the complainant has cross€examined,audio_37_239.mp3 +the dw3 in length but nothing has been elicited from him to discard or discredit the evidence of dw3. The dw3 has denied the suggestion,audio_37_240.mp3 +made to him that he and the accused have approached the complainant seeking financial help for purchase of jcb equipments and the complainant has lent,audio_37_241.mp3 +a loan of rs.4 lakhs to the accused during the year 2016 at that time the complainant had collected two cheques from the accused towards,audio_37_242.mp3 +the security of loan amount. It is true that the dw3 has admitted in his cross€ examination that he does not know the contents of,audio_37_243.mp3 +"the Aff. , but only on that ground the entire evidence of the dw3 cannot be discarded. It is relevant here to mention that it is",audio_37_244.mp3 +"an admitted fact by the complainant that the dw3 i.e., subramani is the father€in€law of the accused and as per averments of complaint the complainant",audio_37_245.mp3 +"and dw3 are good friends and having cordial relationship among them as they being villagers of gubbalal village since 20 years, in suchsri. D. Chikkanna",audio_37_246.mp3 +"vs. sri. Vishwanath on 28 may, 2021",audio_37_247.mp3 +"Some animosity between the complainant and dw3, admittedly nothing has been elicited in the cross€examination of dw3 with regard to animosity or the dw3 having",audio_37_248.mp3 +"animosity against the complainant and on the basis of said animosity the dw3 appeared before the court and deposed falsely against the complainant, therefore mere",audio_37_249.mp3 +"the dw3 is relative of the accused i.e., father€ in€ law of the accused only on that ground the evidence of the dw3 cannot be",audio_37_250.mp3 +discarded. On entire perusal of the cross€examination of the dw3 nothing has been elicited either there is enmity between the complainant and dw3 or any,audio_37_251.mp3 +"other circumstances which warrants to discard or disbelieve the evidence of dw3, therefore the evidence of dw3 is sufficient hold that he and accused have",audio_37_252.mp3 +not approached the complainant and requested hand loan of rs.4 lakhs for purchase the jcb machine or equipments during year 2016 and the complainant has,audio_37_253.mp3 +"paid rs.4 lakhs to the dw3 i.e., subramani father€in€law of the accused and the accused and dw3 have promised to repay the loan on or",audio_37_254.mp3 +"before 31.03.2017. Apart from the above it is important to here mention that, the complainant during the course of cross€examination of the dw3 has entirely",audio_37_255.mp3 +"changed his version in respect lending of the loan amount in question i.e., the complainant in his legal notice, complaint and evidence has specifically claimed",audio_37_256.mp3 +"that he has lent a loan amount of rs.4 lakhs to the father€in€law of the accused i.e., dw3 for purchase of new jcb machine /",audio_37_257.mp3 +"equipments in the presence of the accused, but whereas in the cross€examination of dw3 has suggested that the complainant has lent the loan amount of",audio_37_258.mp3 +rs.4 lakhs to the accused for the purchase of jcb and at that time the complainant has collected two cheques from the accused towards the,audio_37_259.mp3 +"security of loan amount, therefore the very suggestion made to the dw3 itself negativates the claim of the complainant that he has lent alleged amount",audio_37_260.mp3 +of rs.4 lakhs to the father€in€law of the accused as claimed in the complaint. 24. Therefore from careful perusal of the entire oral and documentary,audio_37_261.mp3 +"evidence of the complainant and admitted facts by the complainant during the course of his cross€examination makes it clear that, the complainant has miserably fails",audio_37_262.mp3 +to establish that he was having sufficient source of income to lent the alleged loan amount of rs.4 lakhs and the accused and his father€in€law,audio_37_263.mp3 +"have approached him during the year 2016 seeking financial help i.e., hand loan of rs.4 lakhs for the purpose of purchasing new jcb maching /",audio_37_264.mp3 +"equipments and the complainant has paid alleged loan of rs.4 lakhs to the father€in€ law of the accused, as claimed by the complainant in his",audio_37_265.mp3 +"complaint and his evidence. 25. It is settled law that,the accused in a proceedings u/s.138 of ni act has two options i.e., the accused can",audio_37_266.mp3 +"either show that, consideration and debt did not exist or that, under particular circumstances of the Cas. the non existance of consideration and debt is",audio_37_267.mp3 +"so probable that , a prudent man ought to suppose that, no consideration and debt existed and in order to rebut the statutory presumption, accused",audio_37_268.mp3 +is not expected to prove his defence beyond reasonable doubt as expected of the complainant in Crl. trial and the accused may adduce direct evidence,audio_37_269.mp3 +to prove that the cheque in question was not supported by consideration and there was no debt or liability to be discharged by him and,audio_37_270.mp3 +"the court need not insist in every Cas. that, the accused should disprove the non existence of consideration that, by leading direct evidence because the",audio_37_271.mp3 +existence of negative evidence is neither possible nor contemplated. In this regard it is relevant here refer the decision of Hon'ble apex court of india,audio_37_272.mp3 +"reported in ""laws (SC ) 2019€8€82 in a Cas. of sri.dhaneshwarisri. D. Chikkanna vs. sri. Vishwanath on 28 may, 2021",audio_37_273.mp3 +"Hon'ble apex court held that ""it is well settled that, rebuttal can be made with reference to the evidence of prosecution as well as of",audio_37_274.mp3 +"defence"" and in Anr. decesion reported in (2010) 11 scc 441 in the Cas. of rangappa vs. Sri.mohan wherein it is held that ""ordinarily in",audio_37_275.mp3 +"cheque bounce cases, what the courts have considered is whether the ingredients of the offence enumerated in sec.138 of act have been met and if",audio_37_276.mp3 +"so, whether the accused was able to rebut the statutory presumption contemplated by sec.139 of the act and also held that ""it is settled position",audio_37_277.mp3 +"that, when an accused has to rebut the presumption u/s.139, the standard of proof for doing so is that of preponderance of probabilities"". Hence, in",audio_37_278.mp3 +"view of the principles of law laid down in the above referred decisions, the accused in order to rebut the statutory presumption is not expected",audio_37_279.mp3 +to prove his defence beyond all reasonable doubt and the accused may adduce direct evidence to prove his defence or rebuttal can be made with,audio_37_280.mp3 +"reference to the evidence of the prosecution and standard of proof for rebuttal of presumption is that of preponderance of probabilities i.e., something which is",audio_37_281.mp3 +probable has to be brought on record by the accused. By keeping these principles of law in the mind now let us examine the oral,audio_37_282.mp3 +and documentary evidence adduced by the accused as to whether the accused has successfully rebutted the statutory presumptions as against the complainant. 26. The accused,audio_37_283.mp3 +"in order to rebut the presumption has himself examined as dw.1. The accused / dw1 in his evidence stated that, his mother by name smt.",audio_37_284.mp3 +"Marakka has approached the complainant on 01.06.2019 seeking hand loan of rs.1,50,000/€ for his marriage purpose without his knowledge and the complainant has paid the",audio_37_285.mp3 +said amount to his mother and his mother promised to repay the said amount within six months and on the same day the complainant has,audio_37_286.mp3 +"collected 2 filled cheques of him bearing nos. 184678 and 184677 for rs.75,000/€ each both are drawn on indus ind bank, branch kormanagala, bangaluru and",audio_37_287.mp3 +"he has also paid interest of rs.7,500/€ per month regularly through his mother to the complainant. The accused / dw1 has also stated that, after",audio_37_288.mp3 +expiry of six moths the complainant has approached to his mother for repayment of the loan amount at that time his mother requested to extend,audio_37_289.mp3 +the time to repay the loan amount and the complainant has returned the 2 filled cheques and requested to give blank signed cheques for the,audio_37_290.mp3 +"purpose of extension of time, as per the instruction of complainant he issued two blank cheques bearing no.184679 and 184675 for the purpose of extension",audio_37_291.mp3 +"of time and also issued 4 cheques bearing nos. 948, 949, 946 and 950 all the cheques were drawn on icici bank, maruthinagar, bengaluru by",audio_37_292.mp3 +"filling the amount including the interest without mentioning the name of the complainant and handed over to complainant. The accused / dw.1 furthere deposed that,",audio_37_293.mp3 +"the complainant has presented the cheques in his nmae for sum of rs.70,000/€ and two cheques for rs.40,000/€ each in the name of his son",audio_37_294.mp3 +"ranganatha and his wife smt. Savithrammma and one cheque for rs.50,000/€ dated: 12.07.2017 in the name of vinutha enterprises and all the cheques were cleared,",audio_37_295.mp3 +"thereafter re€payment of loan amount he and his mother were approached the complainant to collect the two blank cheques but the complainant informed them that,",audio_37_296.mp3 +the said cheques were misplaced in his house and some would be returned after securing the cheques and also promised that the cheques will not,audio_37_297.mp3 +be misused but without his knowledge the complainant has presented the two cheques and has created false story and has filed this false Cas. . 27.,audio_37_298.mp3 +"In support of oral evidence the accused has produced two original cheques bearing nos. 184678 and 184677 are at ex.d.1 and ex.d.2, copy of bank",audio_37_299.mp3 +"statements pertaining to his account is at ex.d.3sri. D. Chikkanna vs. sri. Vishwanath on 28 may, 2021",audio_37_300.mp3 +"28. The accused has also examined his mother smt. Marakka as dw.2. The dw.2 in her evidence has also supported the accused that, she has",audio_37_301.mp3 +"approached the complainant on 01.06.2015 seeking hand loan of rs.1,50,000/€ and on 09.06.2015 the complainant has paid rs.1,50,000/€ and she promised to repay the loan",audio_37_302.mp3 +"amount within six months and on that day the complainant has collected 2 filled cheques bearing nos. 184678 and 184677 for rs.75,000/€ each both are",audio_37_303.mp3 +"drawn on indus ind bank, branch kormanagala, bangaluru for security purpose and her son i.e., accused has also paid interest of rs.7,500/€ per month regularly",audio_37_304.mp3 +"through her to the complainant. The dw.2 has also stated that, after expiry of six moths the complainant has approached to her for repayment of",audio_37_305.mp3 +the loan amount at that time she has requested to extend the time to repay the loan amount and the complainant has returned the 2,audio_37_306.mp3 +"filled cheques and requested to give blank signed cheques for the purpose of extension of time, as per the instruction of complainant accused has issued",audio_37_307.mp3 +"two blank signed cheques bearing no.184679 and 184675 for the purpose of extension of time and also issued 4 cheques bearing nos. 948, 949, 946",audio_37_308.mp3 +and 950 by filling the amount including the interest without mentioning the name of the complainant and handed over to complainant. The accused / dw.1,audio_37_309.mp3 +"further deposed that, the complainant has presented the cheques in his name for sum of rs.70,000/€ and two cheques for rs.40,000/€ each in the name",audio_37_310.mp3 +"of his son ranganatha and his wife smt. Savithrammma and one cheque for rs.50,000/€ dated: 12.07.2017 in the name of vinutha enterprises and all the",audio_37_311.mp3 +"cheques were cleared, thereafter she and her son i.e., accused were approached the complainant to collect the two blank cheques but the complainant informed them",audio_37_312.mp3 +"that, the said cheques were misplaced in his house and same would be returned after securing the said cheques and also promised that the cheques",audio_37_313.mp3 +will not be misused but without knowledge of the accused the complainant has presented the two cheques and has created false story and has filed,audio_37_314.mp3 +"this false Cas. against her son. 29. The accused has also examined his father€in€law i.e., subramani as dw.3. The dw.3 in his evidence has also",audio_37_315.mp3 +"stated that his sister i.e., dw.2 approached the complainant on 01.06.2016 for seeking hand loan for the purpose of marriage and she had cleared entire",audio_37_316.mp3 +amount through several cheques and there is no due by his sister. 30. On careful perusal of the oral and documentary evidence of the dw.1,audio_37_317.mp3 +"to dw.3 it appears that as per the defence of the accused, the mother of the accused i.e., smt. Marakka had approached the complainant on",audio_37_318.mp3 +"01.06.2015 and requested the complainant to advance hand loan of Rs. 1,50,000/€ for the purpose of marriage of her son i.e., accused herein, accordingly the",audio_37_319.mp3 +"complainant lend the said amount of rs.1,50,000/€ to her on 09.06.2015 and she had agreed to repay the said amount within six months and complainant",audio_37_320.mp3 +"had also collected two filled cheques bearing nos. 184678 and 184677 for rs.75,000/€ each both cheques were drawn on indus ind bank, koramangala, bengaluru towards",audio_37_321.mp3 +security of the said loan amount and accused has also paid interest at rate of 5% per month regularly to the complainant and after expiry,audio_37_322.mp3 +of six months the complainant approached the mother of the accused and requested for repayment of the loan amount but at that time the mother,audio_37_323.mp3 +of the accused requested for extension of time to repay the loan amount for that the complainant demanded blank signed cheques for the purpose of,audio_37_324.mp3 +"extension of the time, accordingly the accused had given two blank signed cheques bearing nos. 184679 i.e., ex.p.1 in this Cas. andsri. D. Chikkanna vs. ",audio_37_325.mp3 +"sri. Vishwanath on 28 may, 2021",audio_37_326.mp3 +"Cheques which were given to him and as per the instruction of the complainant the accused has also issued 4 cheques bearing nos. 948, 949,",audio_37_327.mp3 +946 and 950 by filling the amounts without mentioning name of the complainant and handed over the said cheques to the complainant and thereafter as,audio_37_328.mp3 +"per the instructions of the accused the complainant was presented the above said 4 cheques in his name for sum of rs.70,000/€ and two cheques",audio_37_329.mp3 +"in the name of his son i.e., ranganatha .c and his wife i.e., savithramma .c for rs.40,000/€ each and one cheque was presented in the",audio_37_330.mp3 +"name of vinutha enterprises for rs.50,000/€ and all the cheques were cleared and thereafter the accused and her mother approached the complainant and requested to",audio_37_331.mp3 +for return of two blank singed cheques which were given to him but the complainant assured them that the cheques were misplace and same would,audio_37_332.mp3 +"be handedover to them after securing the cheques, but instead of returning the cheques to them and without their knowledge the complainant has presented the",audio_37_333.mp3 +said cheques for clearance and has filed false Cas. against the accused. 31. It is relevant to mention that the accused has produced two original,audio_37_334.mp3 +"canceled cheques bearing nos.184678 and 184677 dated: 11.09.2015 for sum of rs.75,000/€ each both are drawn on indus ind bank, jakkasandra branch, bengaluru which are",audio_37_335.mp3 +ex.d.1 and d.2. The complainant during the course of cross€examination of the accused has denied the defence of the accused that ex.d1 and d2 were,audio_37_336.mp3 +not given to the complainant and same were return to the accused by taking blank signed cheques from the accused. The accused has also produced,audio_37_337.mp3 +copies of his bank account statement pertaining to icici bank which are at ex.d.3 and d.4. The perusal of the the accused d.4 it appears,audio_37_338.mp3 +"that the cheque bearing no.948 for sum of rs.40,000/€ was presented and encashed in the name of ranganatha .c and cheque bearing no.949 for sum",audio_37_339.mp3 +"of rs.40,000/€ was presented and encashed in the name of savithramma .c and cheque bearing no. 946 for sum of rs.70,000/€ was presented and encashed",audio_37_340.mp3 +"in the name of chikkanna i.e., complainant herein and cheque bearing no. 950 for sum of rs.50,000/€ was presented and encashed in the name of",audio_37_341.mp3 +"vinutha enterprises. It is also relevant to refer the admission of the complainant during the course of his cross€examination i.e., the complainant at page no.14",audio_37_342.mp3 +"of his cross€examination dated: 27.04.2019 has admitted as under ; ""œ†‡‡’š ÿ‡ ˆ‹“œ“ 000946 ÿ‡ 70,000/€ †□†…‹… □ œƒ□ □”. †‹…□¡ .ˆ □□□ žˆ†□„ □…ƒ‡‡†—œ…ƒ",audio_37_343.mp3 +"™□□ □ œƒ□ □”. □□□ ‚… †‹…□¡ .ˆ žˆ†□„ □□□ ‚… ™□□ œ†‡‡’š “šš ÿ‡ ˆ‹“œ“ 000948 ÿ‡ 40,000/€ †□†…‹… □…ƒ‡‡†—œ…ƒ ™□□ □ œƒ□ □”.",audio_37_344.mp3 +□□□ ‚… †‹…□¡ .ˆ ž…‡ œ†‡‡’š □‰□œ šœƒ‡ œœ œž† □‰ƒ„„ ™□□ □ œƒ□ □”. ˆœš š‚ □ œƒ□ □” . ‚ □□□ ž‹‰š ™□□,audio_37_345.mp3 +"œ‡š žˆ†□„š‡ œ†‡‡’š ÿ‡ ˆ‹“œ“ 000949 ÿ‡ 40,000/€ †‡…‹… □…ƒ‡‡†—œ…ƒ ™□□ □ œƒ□ □”. □□□ ž‹‰š ž…‡ œ†‡‡’š □‰□œ ž—‡ˆ□ –†„„„ ™□□ □ œƒ□ □”.",audio_37_346.mp3 +"3. □□□ œ□□š ™‹˜† ’’’ˆˆ ˆ‹ˆƒ š‹ƒ 50,000/€ □ œ ‘…… □□… …‡šš„„ .sri. D. Chikkanna vs. sri. Vishwanath on 28 may, 2021",audio_37_347.mp3 +"Œƒ□ ˆ†š„„ ."" †‡…‹… □…ƒ‡‡†—’‰ˆ‡‡‹‰ƒ□ ™□□ hence the above admissions of the complainant makes it clear that the complainant has categorically and unequivocally admitted that",audio_37_348.mp3 +"he has received the cheque bearing no. 946 for sum of rs.70,000/€, cheque bearing no. 948 and cheque bearing no. 949 for sum of rs.40,000/€",audio_37_349.mp3 +"each from the accused and has presented and encashed cheque bearing no. 946 for sum of rs.70,000/€ in his name and cheques bearing nos. 948",audio_37_350.mp3 +"and 949 for sum of rs.40,000/€ each presented and encashed in the name of his i.e., rangangatha .c and his wife smt. Savithramma .c and",audio_37_351.mp3 +it also admitted there were no loan or financial transaction between the accused and his wife and son. Though the complainant has denied the encashment,audio_37_352.mp3 +"of cheque bearing no.950 for sum of rs.50,000/€ in the name of vinutha enterprises but has not denied the suggestion made to him that he",audio_37_353.mp3 +"had borrowed a loan of rs.50,000/€ from vinutha enterprises, in such circumstances it can be held that the complainant has clearly admitted the defence of",audio_37_354.mp3 +"the accused that, the accused has issued 4 cheques bearing no.948, 949, 946 and 950 by filling the amounts without mentioning the name of the",audio_37_355.mp3 +"complainant and as per his instruction the complainant was presented the above said cheques in the name of his son i.e., ranganatha .c and his",audio_37_356.mp3 +"wife smt. Savithramma .c and in his name for sum of rs.40,000/€, rs.40,000/€ and rs.70,000/€ respectively and Anr. cheque was presented and encashed in the",audio_37_357.mp3 +"name of vinutha enterprises dated: 12.07.2017 for sum of rs.50,000/€ and all the cheques were encashed. 32. It is also important to refer the admission",audio_37_358.mp3 +"of the complainant in his cross€ examination dated: 27.04.2015 i.e., in page no.13 to 16, the complainant had given answer to the suggestion made to",audio_37_359.mp3 +"him as under: ""’ ’ “€ □‡œ œ†‡‡’š šš… ¢‹ƒ‡œ† „‡ †‡…‹ ˆ„ ‡‡‰□œ… œ†‡‡’š ™†‰□ ÿ‡□ ‡ …‹□□ □ š„ 75,000 †‡…‹… ’‰ƒ□‡‡‹‰ƒ† ?",audio_37_360.mp3 +"£“€ œ†‡‡’š ‚œ ÿ‡˜ □‰ˆ□ššƒƒ □ □□□ □ƒ‡‡ ƒ , œ†‡‡’ š□□ ‚œ□ ÿ‡˜š ˆ‹‘‹ƒ, □□… ˆƒˆœ □…ƒ□ š„ 75,000 †‡…‹ ™†‰□ ÿ‡□ □ ‡‡˜„ƒƒ",audio_37_361.mp3 +†□. ‡ …‹□□ □□□ š„ 1 „‡ƒ ™†‰□ ÿ‡˜…‹□□ ƒ □ƒ□ šœ □ ž‡ƒ□ □ œƒ□ □□… □□’„„„ . ˆƒ† ÿ‡˜… š„ 20 œ††ƒ„ ™□□,audio_37_362.mp3 +”□ ˆƒˆœ †□ –ƒƒ †□. ˆƒ† ÿ‡˜ šœ… ’’ † ‹†…‡‹‰□ šœ… □‹š‚…‡‹‰œ □□… …‡šš„„ . At page no.15 ’ ’ “€ □‡œ œ†‡‡’š‹ƒ ¢‹ƒ‡œ†,audio_37_363.mp3 +"„‡ †‡…‹□□ □ ÿ‡□ ‡ …‹ ‚‡„‡ ’‰ƒ□‡‡‹‰ƒ† ? œ†‡‡’ 70,000 †‡…‹□□ □ □□□ žˆ†□„ š„ 40,000 †‡…‹□□ □ □□□ ‚… ž…‡ □□□ ž‹‰šš žˆ†□„",audio_37_364.mp3 +ÿ‡□ ‡ …‹ ƒ ‚‡„‡ ’œšˆƒ□ ˆƒ† ¢‹ƒ‡œ† „‡ †‡…‹□ □□□ œš□ ‚œ□ ž‡ƒƒ ÿ‡˜ œœ œž†ƒ ˆ‹‘‹□ ‚‰„□ ˆ‹ƒšœ…†□ššƒ .sri. D. Chikkanna vs. sri.,audio_37_365.mp3 +"Vishwanath on 28 may, 2021",audio_37_366.mp3 +"Žˆ†□…‹□ ’ÿ’’ , †”□, ‚‡š†, □‚† –†□šš† . □œ†„„ †‡ □‚‚ ˆˆ ‹‡š œœ ‡š… ‹…†□šš† ."" hence the above admissions of the complainant makes",audio_37_367.mp3 +"it clear that the complainant has has not denied the suggestion that he has received two cheques for rs.75,000/€each of the accused through his mother",audio_37_368.mp3 +"at the time of lending of loan amount of rs.1,50,000/€ and also not denied the suggestion that he has received rs.1,50,000/€ from the accused through",audio_37_369.mp3 +"the 4 cheques, but instead of denying the said suggestions has stated that he was the member of chit transaction conducted by the father€in€law of",audio_37_370.mp3 +"the accused and in connection with said chit transaction has received two cheques for rs.75,000/€ each from the accused and also received rs.1,50,000/€ i.e., rs.70,000/€",audio_37_371.mp3 +"in his name and rs.40,000/€ each in the name of his son and wife through the cheques in respect of chit transaction, but the complainant",audio_37_372.mp3 +has not produced any documents to show that the father€in€ law of the accused was conducting the chit transaction and he was subscriber of two,audio_37_373.mp3 +"chits and in connection with the said chit transaction the accused has issued two cheques for rs.75,000/€each and has paid rs.1,50,000/€ through the cheques, therefore",audio_37_374.mp3 +the in the absence of document only and basis of oral say the complainant it cannot be held that the complainant has received the two,audio_37_375.mp3 +"cheques for rs.75,000/€ each from the accused and has received rs.1,50,000/€ from the accused through the cheques in his name and also in the names",audio_37_376.mp3 +of his son and wife in connection of alleged chit transaction on the contrary an adverse inference can be drawn against the complainant that he,audio_37_377.mp3 +"has admitted that at the time lending of loan amount of rs.1,50,000/€ to the mother of the accused had collected two filled cheques for rs.75,000/€",audio_37_378.mp3 +"each of the accused through his mother and thereafter the complainant has received an amount of rs.1,50,000/€ from the accused by way of cheques i.e.,",audio_37_379.mp3 +"one cheque of rs.70,000/€ in his name and two cheques for rs.40,000/€ each in the name of his son and his wife, the admission of",audio_37_380.mp3 +"the complainant corrobarates the defence of the accused that the accused has repaid the loan amount of rs.1,50,000/€ to the complainant along with interest through",audio_37_381.mp3 +the cheques. 33. It is also important here to mention that if really the father€in€law of the complainant was conducting the chit business and complainant,audio_37_382.mp3 +"was the subscriber of the chits and the cheques which were issued by the accused towards payment of rs.1,50,000/€ pertains to the chit transaction, in",audio_37_383.mp3 +such circumstances the complainant would have produce the document to show that the father€in€ law of the accused was conducting the chit business and even,audio_37_384.mp3 +"during the course of cross€ examination of the father€in€law of the accused i.e., dw.3 the complainant has not suggested single suggestion stating that father€in€law of",audio_37_385.mp3 +the accused was conducting the chit business and complainant was chit subscriber and the cheques which were issued by the accused and encashed by him,audio_37_386.mp3 +were in connection with the chit transaction but no such suggestions were made even the father€in€law of the accused even though he was examined after,audio_37_387.mp3 +"the cross€examination of the accused. Apart from that as per the admission of the complainant he and his friends by name pachappa, raju, murthy, dharma",audio_37_388.mp3 +"were also subscribers to the said chit transaction, if such being fact the complainant could have proved the alleged chit transaction conducted by the father€",audio_37_389.mp3 +"in€law of the accused at least by examining one of his friends i.e., alleged subscribers to the chit transaction as claimed by the complainant but,",audio_37_390.mp3 +the complainant has not made any efforts to examine any of his friends for his unrevealed reasons and the complainant himself admitted that he does,audio_37_391.mp3 +"not know when the chit transaction commenced and ended, in such circumstances it can be held that thesri. D. Chikkanna vs. sri. Vishwanath on 28",audio_37_392.mp3 +"may, 2021",audio_37_393.mp3 +"The cheques received and enacashed by him, from the accused are not pertains to the repayment of the loan amount of rs.1,50,000/€ borrowed by the",audio_37_394.mp3 +"mother of the accused. It is also relevant here to mention the when the complainant has denied the receipt repayment of rs.1,50,000/€ from the accused",audio_37_395.mp3 +by contending that the amount paid by the accused through the cheques is pertains to the alleged chit transaction said to have been conducted by,audio_37_396.mp3 +"the father€in€law of the accused, to that extent the burden shifted on the complainant therefor unless and until the complainant has discharged the said burden",audio_37_397.mp3 +it can be presumed that whatever the amount received from the accused by way of cheques pertains to the repayment of the loan amount of,audio_37_398.mp3 +"rs.1,50,000/€ borrowed by the mother of the accused as stated by the accused in his defence. Admittedly the complainant has not produced any documents or",audio_37_399.mp3 +"proof to show that the amount of rs.1,50,000/€ received by him through cheques and an amount of rs.50,000/€ was encashed by vinutha enterprises through the",audio_37_400.mp3 +complainant pertains to the chit transaction which is allegedly conducted by the father€in€law of the accused. 34. It is also important here to mention that,audio_37_401.mp3 +the learned counsel for the complainant has cross examined the dw.1 to dw.3 but nothing has been elicited to believe his claim that the accused,audio_37_402.mp3 +and his father€in€law have approached him during the second week october 2016 and have sought financial help of rs.4 lakhs for purchase of new jcb,audio_37_403.mp3 +"machine / equipments, accordingly the complainant has paid rs.4 lakhs to the father€in€law of the accused and inturn the accused has issued two post dated",audio_37_404.mp3 +"cheques for rs.2 lakhs each i.e., ex,p.1 cheque for rs.2 lakhs and Anr. cheque bearing no. 184675 for rs.2 lakhs towards discharge of the said",audio_37_405.mp3 +"loan amount. It is also the defence of the accused in that his mother has borrowed a loan of rs.1,50,000/€ from the complainant for his",audio_37_406.mp3 +"marriage purpose on 09.06.2015 and at that time the complainant had collected his two cheques for rs.75,000/€ each as security to the said loan amount",audio_37_407.mp3 +and thereafter the complainant approached his mother and requested to repay the loan amount at that time the mother of the accused requested for extension,audio_37_408.mp3 +"of time, the complainant requested to give blank signed cheques for extension of the time by returning the two filled the cheques of the accused",audio_37_409.mp3 +"accordingly the accused issued two blank signed cheques i.e., ex.p.1 and Anr. cheque bearing 184675 for the purpose of extension of time and thereafter the",audio_37_410.mp3 +"accused issued 4 cheques towards repayment of the loan amount rs.1,50,000/€ including in the interest and the said cheques were presented and encashed by the",audio_37_411.mp3 +complainant and even after repayment of the loan amount the complainant did not return his two signed blank cheques but has presented without his knowledge,audio_37_412.mp3 +and has filed this false Cas. . The accused has also produced marriage invitation card which is at ex.d.5 and wherein it is seen that the,audio_37_413.mp3 +"marriage of the accused was performed on 10.06.2015, though the complainant has denied the ex.d.5 but the complainant during the course of this cross€ examination",audio_37_414.mp3 +has admitted that the marriage of the accused was performed on 10.06.2015 and he was also attended to the said marriage along with his family,audio_37_415.mp3 +"members and also not denied the suggestion that he has received two cheques for rs.75,000/€ each at the time of lending of loan amount of",audio_37_416.mp3 +"rs,1,50,000/€ to the mother of the accused, hence it goes to show that admittedly the marriage of the accused was performed during the year 2015",audio_37_417.mp3 +"and there may by every chances of availing the loan of rs.1,50,000/€ by the mother of the accused from the complainant for the purpose of",audio_37_418.mp3 +"marriage of the accused, therefore the admission of the complainant corroborates the defence of the accused i.e., the circumstances warrants for the mother of the",audio_37_419.mp3 +"accused to borrow asri. D. Chikkanna vs. sri. Vishwanath on 28 may, 2021",audio_37_420.mp3 +"I.e., ex.d.1 and d2 at the time of lending of loan of rs.1,50,000/€ to the mother of the accused. As it is already stated in",audio_37_421.mp3 +"the above that the complainant has also admitted the receipt of rs.1,50,000/€ and also rs.50,000/€ by way of cheques and though the complainant has stated",audio_37_422.mp3 +"that the said amount was not pertains to the repayment of the loan amount of rs.1,50,000/€ borrowed by the mother of the accused but itwas",audio_37_423.mp3 +in connection of alleged chit transaction conducted the father€in€ law of the accused but the complainant has failed to prove that the said amount was,audio_37_424.mp3 +"received in connecting with the alleged chit transaction in such circumstances the accused has successfully proved that the loan amount of rs.1,50,000/€ borrowed his mother",audio_37_425.mp3 +for his marriage purpose from the complainant and the said amount was repaid by him along with the interest by way of 4 cheques and,audio_37_426.mp3 +"same were presented by the complainant and encashed by him. 35. It is also relevant to here to mention that, the complainant in his legal",audio_37_427.mp3 +"notice, complaint and evidence stated that the accused and his father€in€ law have borrowed a loan of rs.4 lakhs from him during the last week",audio_37_428.mp3 +of october 2016 for the purpose of purchasing new jcb machine / equipments by agreeing to repay the said amount on or before 31.03.2017 and,audio_37_429.mp3 +thereafter in the 1 st week of april 2017 the accused and his father€in€law have voluntarily met him and requested for grant of some more,audio_37_430.mp3 +"time for repayment the said loan amount till mid of september 2017 and the accused issued two post dated cheques i.e., ex.p.1 dated: 16.10.2017 for",audio_37_431.mp3 +rs.2 lakhs and Anr. cheque bearing nos. 184675 for rs.2 lakha dated: 16.09.2017 in his favour by assuring and promising to honor the said cheques,audio_37_432.mp3 +on the date of year presentation. Hence the contention of the complainant goes to show that as per his own averments and his evidence the,audio_37_433.mp3 +"cheque in question and Anr. cheque were not issued to the complainant at the time lending of the alleged loan amount of rs.4 lakhs, according",audio_37_434.mp3 +to the complainant the accused has issued the ex.p.1 cheque and Anr. cheque for rs.2 lakhs each in the 1st week of april 2017 by,audio_37_435.mp3 +"mentioning the date of as 16.09.2017 and 16.10.2017 i.e., post dated cheques, but whereas the complainant in his cross€ examination admitted that he does not",audio_37_436.mp3 +know on which date he has received cheques from the accused and the learned counsel for the complainant during the course of cross€examination of the,audio_37_437.mp3 +dw.3 has suggested that he and the accused have approached the complainant in the year 2016 seeking loan of rs.4 lakhs and at that time,audio_37_438.mp3 +"lending loan amount to, the complainant had collected two cheques from the accused towards the security of the loan amount, hence the admission of the",audio_37_439.mp3 +complainant and suggestion itself goes to show that the complainant is not confident and he himself falsified his claim that the accused has issued two,audio_37_440.mp3 +post dated cheques during the 1st week of april 2017 towards discharge of the loan amount inquestion. In addition to that even in the complaint,audio_37_441.mp3 +the complainant has not stated the date and place of issuance of the cheque in question and Anr. cheque in his favour towards discharge of,audio_37_442.mp3 +"the loan amount in question, hence in view of the above said admitted facts a serious doubt creates with regard to issuance of cheque in",audio_37_443.mp3 +"question and Anr. cheque by the accused infavour of the complainant towards discharge of the loan transaction in question, on the contrary it corroborates the",audio_37_444.mp3 +"defence of the accused that, the complainant had collected the blank signed cheques of him and at the time of extension of the time for",audio_37_445.mp3 +"repayment of the loan amount of Rs. 1,50,000/€ received by his mother form the complainant and said cheque has been misused by the complainant in",audio_37_446.mp3 +the present Cas. . If really the accused has borrowed the loan amount in question and issued the cheque in question towards discharge of the said,audio_37_447.mp3 +"loan amount as claimed by the complainant, definitely the complainant would have mentionedsri. D. Chikkanna vs. sri. Vishwanath on 28 may, 2021",audio_37_448.mp3 +"Cheque in question and Anr. cheque in his favour, failure to mention the above said important facts may leads to draw an adverse inference against",audio_37_449.mp3 +"the complainant that, the claim made by the complainant in this Cas. appears to be doubtful and it corroborates the defence of the accused. In",audio_37_450.mp3 +"this regard, it is relevant here to refer the decisions of Hon'ble HC of karnataka reported in ilr 2014 kar 6572 in a Cas. ",audio_37_451.mp3 +"of sri.h.manjunath vs. . Sri.a.m. Basavaraju, wherein the Hon'ble HC of karnataka held that ""NI Act , 1881€ S. 138 offence under - judgment",audio_37_452.mp3 +of acquittal - appealed against -absence of statement in the complaint as to when the amount was actually given to the accused€ absence of material,audio_37_453.mp3 +particulars of the transaction in the complaint€ except signature all other entries are in different handwriting different ink and undoubtedly made at different time€ mentioning,audio_37_454.mp3 +"of merely the date of issue of cheque without any material particulars - held €, judgment of acquittal is justified€ as seen from the complaint",audio_37_455.mp3 +there is no statement as to when the amount was actually given to the accused. The complainant has merely mentioned the date of issuance of,audio_37_456.mp3 +cheque without any material particulars of the transaction. The cheque in question undoubtedly is signed by the accused. The dispute raised is entries made in,audio_37_457.mp3 +the cheque are not in his handwriting. - it is not the Cas. of the complainant that cheque was issued in blank and filled up,audio_37_458.mp3 +"later with consent of the accused€ further held, perusal of cheque at ex.p.1 makes it manifest that except signature all other entries are in different",audio_37_459.mp3 +"hand writing, different ink and undoubtedly made at different time. In this view it is difficult to accept the version of the complainant. Crl. procedure",audio_37_460.mp3 +"code, 1973 - S. 378(4) - appeal against acquittal - discussed. It is a relevant here to the decision of Hon'ble apex court of india",audio_37_461.mp3 +"reported in (2015) 1 scc 99 in the Cas. of k.subramani vs. K. Damodar naidu., wherein the Hon'ble apex court held that "" debt, financial",audio_37_462.mp3 +"and monetary laws€ NI Act , 1881 € ss, 138, 118 and 139 - dishonour of cheque - legally recoverable debt not proved as complainant",audio_37_463.mp3 +"could not prove source of income from which alleged loan was made to appellant€ accused - presumption infavour of holder of cheque, hence, held, stood",audio_37_464.mp3 +"rebutted€ acquittal restored"". In Anr. decision reported in (2014) 2 scc 236 in the Cas. of john k. Abhraham vs. Simon c.abraham and Anr. ., wherein",audio_37_465.mp3 +"the Hon'ble apex court held that "" in the present Cas. the complainant not aware of the date when substantiate amount of rs.1,50,000/= was advanced",audio_37_466.mp3 +by him to the appellant/accused - respondent/ complainant failed to produce relevant documents in support of alleged source for advancing money to the accused -,audio_37_467.mp3 +complainant also not aware as to when and where the transaction took place for which the cheque in question was issued to him by accused,audio_37_468.mp3 +- complainant also not sure as to who wrote the cheque and making contradictory statements in this regard € in view of said serious defects/,audio_37_469.mp3 +"lacuna in evidence of complainant, judgment of HC reversing acquittal of accused by trial court, held was perverse and could not be sustained -",audio_37_470.mp3 +"acquittal restored"". Hence by applying the said principles of law laid down by Hon'ble apex court to the present facts of the Cas. are aptly",audio_37_471.mp3 +applicable to this Cas. as in the present Cas. also the complainant has not stated the date on which the accused and his father€ in€law,audio_37_472.mp3 +were approached him seeking alleged loan of rs.4 lakhs and has not stated the place of issuance of cheque in question and Anr. cheque to,audio_37_473.mp3 +"him and has also not produced the documents to show that, he has got sufficient source of funds to lend the loan amount to the",audio_37_474.mp3 +accused and the claim set up by the complainant in the present complaint appears to be doubtful with regard to lending of loan amount in,audio_37_475.mp3 +"question, in such circumstances in view of thesri. D. Chikkanna vs. sri. Vishwanath on 28 may, 2021",audio_37_476.mp3 +Complainant has miserably failed to prove that he has lent loan amount of rs.4 lakhs to the father€ in€law of the accused and in turn,audio_37_477.mp3 +the accused has issued the cheque in question towards the discharge of the said loan amount and the accused has rebutted the presumption available infavour,audio_37_478.mp3 +of the complainant. 36. On careful perusal of the contents of para no.1 to 12 of the written argument submitted by the learned counsel for,audio_37_479.mp3 +"the complainant, same cannot be acceptable one in view of the findings given above by this court while appreciation of the oral and documentary evidence",audio_37_480.mp3 +of the complainant and accused. No doubt the accused admitted that the cheque question belongs to the account of the accused and signature found on,audio_37_481.mp3 +the cheque in question is that of his signature but the accused has successfully rebutted the presumption available u/s. 139 of n.i.act not only on,audio_37_482.mp3 +"the materials produced by the complainant but also producing his oral and documentary evidence, therefore with due respect to the principles of law laid down",audio_37_483.mp3 +by the Hon'ble apex court of india in the Cas. of birsingh vs mukesh kumar decided in Crl. appeal No. 230€ 231/2019 relied upon by,audio_37_484.mp3 +"the learned counsel for the complainant is not applicable to the claim made by the complainant in this Cas. , as the accused has successfully rebutted",audio_37_485.mp3 +"the presumptions available u/s. 139 of n.i.act and also discharged his burden, on the contrary fails to prove his claim. 37. Therefore, on careful scrutiny",audio_37_486.mp3 +"of over all evidence of the complainant and accused as it is already held and come to the conclusion that, the complainant has miserably failed",audio_37_487.mp3 +to prove that he has lend an amount of rs.4 lakhs/= to the father€ in€law of the accused by way of cash and in order,audio_37_488.mp3 +"to discharge the said loan amount the accused has issued the cheque in question i.e., ex.p.1 for Rs. 2 lakhs infavour of the complainant. No",audio_37_489.mp3 +"doubt, some discrepancies have been elicited by the complainant during the cross€examination of accused and dw.2 and dw.3 but there are no proof regarding the",audio_37_490.mp3 +"same, however when the complainant himself has failed to establish his Cas. beyond all reasonable doubt, he cannot be permitted to find fault in the",audio_37_491.mp3 +defence of the accused. Hence the standard of proof is expected from side of the complainant is proof beyond all reasonable doubt and in the,audio_37_492.mp3 +present Cas. complainant has failed to prove his Cas. beyond all reasonable doubt on the contrary the accused has successfully rebutted the presumption available infavour,audio_37_493.mp3 +"of the complainant u/s.118 and 139 of n.i. Act by taking reasonable and probable defence, accordingly for the above said reasons this point is answered",audio_37_494.mp3 +in the 'negative'. 38. Point no.2: in the light of discussions made at above point and for the said reasons this point is answered in,audio_37_495.mp3 +the negative and it is just and proper to pass the following :€ order the complaint u/s.200 of Cr.P.C. filed by the,audio_37_496.mp3 +complainant for the offence punishable u/sec.138 of n.i.act is hereby dismissed. No costs. Acting u/sec.255(1) of Cr.P.C. the accused is acquitted for,audio_37_497.mp3 +"the offence punishable u/sec.138 of n.i.act. Personal bond executed by the accused stands cancelled.sri. D. Chikkanna vs. sri. Vishwanath on 28 may, 2021",audio_37_498.mp3 +"Ordered to be refunded to him (if not lapsed or forfeited) after the expiry of the appeal period. (directly dictated to the stenographer online, printout",audio_37_499.mp3 +"taken by her, verified, corrected and then pronounced by me in the open court on this the 28th day of may, 2021). (sri.s.b. Handral), xvi",audio_37_500.mp3 +"acmm, bengaluru city. Annexure 1. List of witness/s examined on behalf of the complainant:€ p.w.1 : sri. D.chikkanna; 2. List of documents exhibited on behalf",audio_37_501.mp3 +of the complainant:€ ex.p.1 : original cheque; ex.p.1(a) : signatures of the accused; ex.p.2 : bank memo; ex.p.3 : office copy of the legal notice;,audio_37_502.mp3 +ex.p.4 : returned copy of the legal notice; ex.p.5 : postal cover; ex.p.6 : postal receipt; ex.p.7 : postal acknowledgment; 3. List of witness/s examined,audio_37_503.mp3 +on behalf of the accused:€ dw.1 : sri. Sri. Vishwanatha s/o sri. Krishnappa; dw.2 : smt. Marakka w/o. Late kittappa; dw.3 : sri. V. Subramani,audio_37_504.mp3 +s/o. Venkateshappa; 4. List of documents exhibited on behalf of the accused:€ ex.d.1 and : original cheques; d.2 ex.d.3 and : statement of account pertaining,audio_37_505.mp3 +"to icici d.4 bank; ex.d.5 : marriage invitation card; (sri.s.b.handral), xvi acmm, bengaluru city. 28.05.2021 through v.c. (time.4.20.p.m) Cas. called the learnedsri. D. Chikkanna vs. ",audio_37_506.mp3 +"sri. Vishwanath on 28 may, 2021",audio_37_507.mp3 +"accused are present through video conferencing i.e., jitsi meeting app., judgment pronounced through v.c. (vide separate order) order the complaint u/s.200 of code of Crl. ",audio_37_508.mp3 +procedure filed by the complainant for the offence punishable u/sec.138 of n.i.act is hereby dismissed. No costs. Acting u/sec.255(1) of Cr.P.C. the,audio_37_509.mp3 +"accused is acquitted for the offence punishable u/sec.138 of n.i.act. Personal bond executed by the accused stands cancelled. The cash security of rs.2,000/= which was",audio_37_510.mp3 +deposited by the accused vide order dated 11.10.2018 is ordered to be refunded to him (if not lapsed or forfeited) after the expiry of the,audio_37_511.mp3 +"appeal period. Xvi acmm, b'luru.sri. D. Chikkanna vs. sri. Vishwanath on 28 may, 2021",audio_37_512.mp3 +"Dharambir vs. . M/s alkarma page 1 of 24 on 25 may, 2023 in the court of shri harshal negi:mm-05(ni act): south-west district:dwarka courts:new delhi",audio_38_1.mp3 +"ct cases no.27933/2018 cnr no.dlsw02-038721-2018 dharambir s/o sh. Raghubir singh r/o h.no.90, vpo mitraon, najafgarh, new delhi -110043 ...complainant vs. m/s alkarma 57, rama road,",audio_38_2.mp3 +"najafgarh road, moti nagar, new delhi -110015 through its partners shri sandeep chaudhary and Ms. . Anjaly chaudhary 57, rama road, najafgarh road, moti nagar, new",audio_38_3.mp3 +"delhi -110015 also at: sandeep chaudhary s/o sh. Subhash chaudhary r/o soverign house, house no.c-2/102, vatika city, sector-49, gurugram, haryana ...accused offence complained of :",audio_38_4.mp3 +"u/s 138, ni act, 1881 date on which the complaint : 09.08.2018 was instituted plea of the accused : pleaded not guilty date of pronouncement",audio_38_5.mp3 +"of judgment : 25.05.2023 ct. Cases 27933/2018 dharambir vs. M/s alkarma page 1 of 24 judgment 1. Tersely put, the Cas. of the complainant is",audio_38_6.mp3 +that accused sandeep chaudhary is the partner of Co. viz. m/s alkarma and was/is looking after the day-to-day affairs of the Co. . It is also,audio_38_7.mp3 +the Cas. of the complainant that the complainant was working in the accused Co. . Thatdharambir vs. . M/s alkarma page 1 of 24 on 25,audio_38_8.mp3 +"may, 2023",audio_38_9.mp3 +"Made settlement with the complainant for a sum of rs 12,01,689/-. That to discharge the legal liability the accused issued a total of five cheques",audio_38_10.mp3 +"one of the cheques being the cheque in question i.e., cheque bearing no 037347 dated 24.06.2018 of rs 2,40,000/- and drawn on canara bank, connaught",audio_38_11.mp3 +"place branch, new delhi to the complainant with an assurance of its encashment. The complainant presented the cheque in his account which were returned with",audio_38_12.mp3 +"the remarks ""funds insufficient"" dated 02.07.2018. Thereafter, complainant served a legal notice dated 10.07.2018 upon the accused through his counsel demanding the said amount. Despite",audio_38_13.mp3 +"service of aforesaid notice the money was not repaid by the accused. Thereafter, complainant has filed the present complaint Cas. . Material on record 2. The",audio_38_14.mp3 +accused entered appearance on 17.12.2018. Notice under S. 251 cr pc dated 07.03.2020 was framed accordingly to which the accused pleaded not guilty and claimed,audio_38_15.mp3 +trial. The accused stated that the blank signed cheques were used to be kept in his office for daily use and the same were taken,audio_38_16.mp3 +from the said office and misused. 3. The complainant relied upon the following documents: a) acknowledgement of settled and receipts dated 30.11.2017 is mark a,audio_38_17.mp3 +& mark b. B) original cheque in question is ex.cw1/a. C) original returning memo is ex.cw1/b. D) copy of legal notice is ex.cw1/c. E) original,audio_38_18.mp3 +receipts of postal Dept. is ex.cw1/d to ex.cw1/f. F) copy of delivery report is ex.cw1/g to ex.cw1/i. 4. During the course of the trial the,audio_38_19.mp3 +complainant examined himself as cw 1 and one vijay thakur as cw 2. 5. The complainant adopted his pre-summoning evidence as post summoning evidence and,audio_38_20.mp3 +also relied on the documents tendered by him during pre-summoning evidence. The complainant also relied upon ex.cw1/j (being the proof of appointment). The same was,audio_38_21.mp3 +objected to by the counsel for the accused although the same was decided in favour of the complainant. The complainant also relied on ex.cw1/k which,audio_38_22.mp3 +is the proof of his salary in the firm. 6. In his cross examination dated 26.04.2022 the complainant stated that alkarma is a firm. He,audio_38_23.mp3 +affirmed that ex.cw1/j and ex.cw1/k were not issued by any partner/accused. He voluntarily stated that the same was issued by the manager of the firm.,audio_38_24.mp3 +He denied the suggestion that the manager was not authorised to issue the above said documents. He further affirmed that in both the documents ex.cw1/j,audio_38_25.mp3 +"and ex.cw1/k nothing with respect to due amount has been mentioned. Thatdharambir vs. . M/s alkarma page 1 of 24 on 25 may, 2023",audio_38_26.mp3 +Documents ex.cw1/j ex.cw1/k do not bear the signature of accused sandeep chaudhary. He voluntarily stated that the above said documents were issued by the firm.,audio_38_27.mp3 +That he was working as supervisor in the accused firm as the same is reflecting in above said document. That the accused never entered into,audio_38_28.mp3 +any written settlement with him. He voluntarily stated that the accused has verbally assured in the presence of other employees and also directed one mr.,audio_38_29.mp3 +"Vijay thakur, sr. Manager accounts to draft a settlement with him. He voluntarily stated that he had been supplied a photocopy of the documents which",audio_38_30.mp3 +is framed by mr. Vijay thakur at the behest of the accused which is mark-1 and mark-2. That he have not mentioned the above said,audio_38_31.mp3 +details in his complaint and evidence by way of Aff. . That he have not filed any document which shows that vijay thakur was authorised. He,audio_38_32.mp3 +denied the suggestion that vijay thakur was never authorised by the accused. He voluntarily stated that vijay thakur was working in the capacity of sr.,audio_38_33.mp3 +Manager accounts and he used to work on the directions of the accused who was the partner of the accused firm. He denied the suggestion,audio_38_34.mp3 +that mr. Vijay thakur was never authorized to enter into settlement on behalf of the firm with any employee of the firm. He voluntarily stated,audio_38_35.mp3 +that vijay thakur not entered into settlement and accused only directed the vijay thakur to formulate the settlement. That he used to go to the,audio_38_36.mp3 +office of the firm whenever was called by the firm. He denied the suggestion that he entered with the conspiracy with vijay thakur. He also,audio_38_37.mp3 +denied the suggestion that he illegally took the blank signed cheque in question in connivance with vijay thakur. That since he was the employee of,audio_38_38.mp3 +the firm it is quite natural that he used to work in the premises of the firm for his employment. He further affirmed that apart,audio_38_39.mp3 +from the cheque in question the remaining documents which have been filed by him till now does not bear the signature of the accused. He,audio_38_40.mp3 +denied the suggestion that he have filled the particulars of the cheque in question. He voluntarily stated that the particulars of the cheque apart from,audio_38_41.mp3 +the signature was filled by mr. Vijay thakur in the presence of the accused. That there was no written document entered between him and the,audio_38_42.mp3 +accused where it is written that accused has issued the cheque in question to him. He voluntarily stated that the accused assured him that the,audio_38_43.mp3 +cheques which he has issued will be duly honored when the meeting took place for the purpose of settling the accounts of the employees as,audio_38_44.mp3 +it came to their information that accused is closing the firm. That he have not mentioned the above said either in his complaint or in,audio_38_45.mp3 +evidence by way of Aff. . That he is not aware whether any Cas. is pending between mr vijay thakur and accused. That as on date,audio_38_46.mp3 +he is not aware that firm is still in existence or whether the firm has been closed by the accused. He voluntarily stated that since,audio_38_47.mp3 +it is his firm he might be aware of the same. That he do not know when the firm was closed. He denied the suggestion,audio_38_48.mp3 +that he have intentionally sent the legal notice to the address of the firm despite knowing that firm was closed in 2017. He denied the,audio_38_49.mp3 +suggestion that there is no liability against him when he left the job. He further denied the suggestion that there is no legally and enforceable,audio_38_50.mp3 +debt of the accused. He also denied the suggestion that the multiple cases have been filed by him to put pressure upon accused and to,audio_38_51.mp3 +extort money. He affirmed that accused used to visit outside the firm premises/office for his work. That he cannot say whether he used to visit,audio_38_52.mp3 +the office in the absence of the accused. He voluntarily stated that he used to visit the office whenever he was called by the firm.,audio_38_53.mp3 +During cross examination the documents mark a and mark b were objected to by the counsel for the accused and the same was decided in,audio_38_54.mp3 +favor of the accused since they were not original documents. He further denied the suggestion that nothing was due against the accused/firm and he have,audio_38_55.mp3 +"already received his entire due from the accused when he left the firm.dharambir vs. . M/s alkarma page 1 of 24 on 25 may, 2023",audio_38_56.mp3 +"Way of Aff. on 26.09.2022 and relied on mark a i.e., appointment letter, ex cw2/a i.e., authorization letter to sign identity cards, cw 2/b i.e.,",audio_38_57.mp3 +"Auth. letter, cw2/c i.e., emails and ex cw2/d. 8. In his cross-examination cw 2 stated that he has been working with the accused Co. since",audio_38_58.mp3 +16.02.1993 till february 2018. That initially he joined as an accountant and left the services as Sr. manager accounts and administration. That he have not,audio_38_59.mp3 +filed any appointment and designation letter on record. That he do not remember his starting salary when he joined the accused Co. since its long,audio_38_60.mp3 +"time back. That at the time when he left the services of the accused Co. he was earning Rs. 1,30,000/-. That he is residing in",audio_38_61.mp3 +his own house. That he brought the same in 1996 from his earnings. That he cannot remember his salary in the year 1996. He denied,audio_38_62.mp3 +the suggestion that he was not honest in his work with the accused firm. He denied the suggestion that he have duped amount from the,audio_38_63.mp3 +accused firm. He also denied the suggestion that he used to manipulate the records of the accused firm. That he have brought the id card,audio_38_64.mp3 +issued by the accused firm which is ex. Cw-2/e (osr). He affirmed that the signature at point a reflecting issuing Auth. are his signature. He,audio_38_65.mp3 +voluntarily stated that he have been authorized by the accused to sign the identity cards on behalf of the accused firm which is ex. Cw2/a.,audio_38_66.mp3 +He denied the suggestion that he used to issue and misuse his Auth. to sign without prior knowledge and consent of the accused. At this,audio_38_67.mp3 +"stage, the counsel for the accused confronted mark a & b of cw1 to cw 2. He affirmed the suggestion that mark a & b",audio_38_68.mp3 +does not bear the signature of any partner of alkarma. He voluntarily stated that he had sought the Auth. letter from the accused with respect,audio_38_69.mp3 +to signing on mark a & b which was given to him on 08.01.2018 which is ex. Cw2/b. He further affirmed that the signature at,audio_38_70.mp3 +point a in mark a & b of cw1 belongs to him. He further affirmed that he was not having any written authorization in his,audio_38_71.mp3 +favour to sign in mark a & b on behalf of the accused Co. . He voluntarily stated that he was having oral directions and approval,audio_38_72.mp3 +of the accused. He voluntarily stated that since he was working in continuity with the accused firm he was under direction from the accused to,audio_38_73.mp3 +sign mark a & b whereas the accused in writing had issued the Auth. letter to him on 08.01.2018 with respect to entering into mark,audio_38_74.mp3 +a & b of cw1 on behalf of the accused firm. He further affirmed that the ex. Cw2/b does not mention that the same would,audio_38_75.mp3 +be having retrospective effect pertaining to mark a & b. He voluntarily stated that since the talks of full and final settlement were running in,audio_38_76.mp3 +continuity he was authorized under directions to sign mark a and b although the Auth. in writing was given to him on 08.01.2018. He denied,audio_38_77.mp3 +the suggestion that he was not authorized by any partner of the accused firm to enter into the settlement on behalf of accused firm on,audio_38_78.mp3 +"30.11.2017. At this stage, the counsel for the accused confronted ex. Cw2/c. He affirmed that the emails which are ex. Cw2/c are not of the",audio_38_79.mp3 +year 2017. He voluntarily stated that emails which are ex. Cw2/c are the communications made by him with the accused only with respect to his,audio_38_80.mp3 +full and final settlement. He also voluntarily stated that the accused in this email ex. Cw2/c has stated that he will settle his payment also,audio_38_81.mp3 +as he has done with Ors. too. That there was around 40 staff members approx of the accused firm in the year 2017. That there,audio_38_82.mp3 +were about 160 approx workers of the accused firm in the year 2017. He affirmed that the name of the complainant does not find any,audio_38_83.mp3 +mention in ex. Cw2/c. He denied the suggestion that he was not having Auth. to enter into full and final settlement with the complainant on,audio_38_84.mp3 +behalf of the accused and his firm. He denied the suggestion that the ex cw2/b is forged and fabricated. He also denied the suggestiondharambir vs. ,audio_38_85.mp3 +". M/s alkarma page 1 of 24 on 25 may, 2023",audio_38_86.mp3 +That he had entered into mark a and mark b of cw1 behind the back of the accused and without his knowledge on commission basis.,audio_38_87.mp3 +He denied the suggestion that he had been indulging in creating forged and fabricated documents. He denied the suggestion that the accused has no liability,audio_38_88.mp3 +whatsoever against the accused. He also denied the suggestion that he was in possession of blank signed cheque book of the accused. He denied the,audio_38_89.mp3 +suggestion that he have misused the cheque in question in connivance with the complainant. He further denied the suggestion that he have created various kinds,audio_38_90.mp3 +of letters documents without the permission of the accused. He also denied the suggestion that he have misused his power and position in the accused,audio_38_91.mp3 +firm and have acted in utter violations in his responsibility. He affirmed that there is a cheque bounce Cas. pending between him and the accused.,audio_38_92.mp3 +He affirmed that settlement which has been placed by him in his Cas. is not signed by any partner of the accused firm. That he,audio_38_93.mp3 +cannot answer who has signed the settlement which has been placed by him in his Cas. . 9. The complainant thereafter closed his evidence. 10. The,audio_38_94.mp3 +statement of the accused under S. 313 crpc was then recorded on 09.12.2022. He stated that the documents which have been furnished by cw2 were,audio_38_95.mp3 +never authorized by him. That they are forged and fabricated. That the e-mail which have been furnished has no relevance to the present matter. That,audio_38_96.mp3 +there exists no due on him with respect to the complainant. That whatever due which he had has already been paid by him to the,audio_38_97.mp3 +complainant. That the cheque in question were in possession of the vijay thakur for business purposes since he used to travel abroad and he had,audio_38_98.mp3 +"issued instructions that the cheque would not be issued without his knowledge. However, the cheques in question have been misused by vijay thakur. That he",audio_38_99.mp3 +"have never given any authorization to anyone. 11. The accused opted to lead his defence evidence, however, on 27.02.2023 he closed his de. 12. Evidences",audio_38_100.mp3 +"and documents on record perused carefully. Arguments heard. Law point 13. Before analyzing the material on record, it is imperative to set forth the legal",audio_38_101.mp3 +benchmark which governs the adjudication of cases under S. 138 ni act. A bare reading of S. 138 ni act reveals that in addition to,audio_38_102.mp3 +"the cheque being issued for the discharge, in whole or in part, of any debt or other liability; following are the ingredients which constitute an",audio_38_103.mp3 +offence:- a. That a person drew a cheque on an account maintained by him with the banker; a. That such a cheque when presented to,audio_38_104.mp3 +the bank is returned by the bank unpaid; b. That such a cheque was presented to the bank within a period of six months from,audio_38_105.mp3 +the date it was drawn or within the period of its validity whichever is earlier; c. That the payee demanded in writing from the drawer,audio_38_106.mp3 +"of the cheque the payment of thedharambir vs. . M/s alkarma page 1 of 24 on 25 may, 2023",audio_38_107.mp3 +Made within a period of 30 days from the date of the receipt of the information by the payee from the bank regarding the return,audio_38_108.mp3 +"of the cheque as unpaid. (para 26, n. Harihara krishnan vs. j. Thomas, (2018) 13 scc 663, referred to in himanshu vs. b. Shivamurthy (2019)",audio_38_109.mp3 +"3 scc 797) 14. S. 138 is to be r/w the presumption, being a rebuttable presumption, as contained in S. 139. S. 139 provides",audio_38_110.mp3 +"that: ""presumption in favour of holder - it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque",audio_38_111.mp3 +"of the nature referred to in S. 138 for the discharge, in whole or in part, of any debt or other liability."" 15. Thus, in",audio_38_112.mp3 +"cheque bouncing cases, the judicial scrutiny revolves around the satisfaction of ingredients enumerated under S. 138 ni act and if so, whether the accused was",audio_38_113.mp3 +able to rebut the statutory presumption contemplated by S. 139 ni act. S. 139 is an example of reverse onus Cl. which usually imposes an,audio_38_114.mp3 +"evidentiary burden and not a persuasive burden. In other words, evidence of a character, not to prove a fact affirmatively, but to lead evidence to",audio_38_115.mp3 +"show non-existence of a liability. Further the law is well settled that when an accused has to rebut the presumption under S. 139, the standard",audio_38_116.mp3 +"of proof of doing so is that of ""preponderance of probability"" (rangappa vs. sri mohan (2010) 11 scc 441). Once execution of cheque is admitted,",audio_38_117.mp3 +"it is a legal presumption under S. 139 of negotiable instrument act, the cheque was issued for discharging legally enforceable debt. 16. Attention is also",audio_38_118.mp3 +"invited to S. 118(a) wherein a presumption of the cheque having been issued in discharge of a legally sustainable liability and drawn for good consideration,",audio_38_119.mp3 +"arises. S. 118 of the n.i act provides:- ""presumptions as to negotiable instruments: until the contrary is proved, the following presumptions shall be made: (a)",audio_38_120.mp3 +"of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated",audio_38_121.mp3 +"or transferred was accepted, indorsed, negotiated or transferred for consideration;"" 17. Hence, it can be seen that from its very inception a presumption that the",audio_38_122.mp3 +cheque was issued in discharge of a debt or other liability subsists in favour of the complainant and onus rests upon the accused to rebut,audio_38_123.mp3 +"the existing presumption on the touchstone of preponderance of probability. 18. Further, the accused in a trial under S. 138 has two options. He can",audio_38_124.mp3 +either show that consideration and debt did not exist or that under the particular circumstances of the Cas. the non-existence of consideration and debt is,audio_38_125.mp3 +"so probable that a prudent man ought to suppose that no consideration and debt existed (para 20, kumar exports vs. sharma carpets (2009) 2 scc",audio_38_126.mp3 +513). The accused can also show that he has already returned the amount taken by him.dharambir vs. . M/s alkarma page 1 of 24 on,audio_38_127.mp3 +"25 may, 2023",audio_38_128.mp3 +"19. Now, the law is also well settled that ""once the cheque relates to the account of the accused and he accepts and admits the",audio_38_129.mp3 +"signatures on the said cheque, then initial presumption as contemplated under S. 139 of the NI Act has to be raised by the court",audio_38_130.mp3 +"in favor of the complainant."" (rangappa vs. mohan, air 2010 SC 1898). Reference can also be made to k. Bhaskaran vs. . Sankaran vaidhyan",audio_38_131.mp3 +"balan 1999 (4) rcr (Crl. ) 309, wherein it has been held by the Hon'ble SC as under: ""as the signature in the cheque is",audio_38_132.mp3 +"admitted to be that of the accused, the presumption envisaged in S. 118 of the act can legally be inferred that the cheque was made",audio_38_133.mp3 +or drawn for consideration on the date which the cheque bears. S. 139 of the act enjoins on the court to presume that the holder,audio_38_134.mp3 +"of the cheque received it for the discharge of any debt or liability."" 20. In this matter, the accused has admitted his signature. Therefore, the",audio_38_135.mp3 +"presumption under S. 139 ni act does get raised in favor of the complainant and against the accused. Thus, the accused now has to rebut",audio_38_136.mp3 +"the presumption on the touchstone of preponderance of probabilities. Further, the accused has not lead his defence evidence. However, the law is also well settled",audio_38_137.mp3 +that the accused in order to rebut the presumption need not to step into the witness box or lead his defence evidence. The accused can,audio_38_138.mp3 +"through the material brought on record by the complainant can also rebut the presumption existing against him. 21. At the outset, on the close scrutiny",audio_38_139.mp3 +and appraisal of the original cheque in question marked as ex cw1/a it clearly transpires that the same had been issued as per the above,audio_38_140.mp3 +"details. Further, the cheque in question got dishonored vide returning memos dated 02.07.2018 with remarks ""funds insufficient"" marked as ex cw 1/b. Thus, one of",audio_38_141.mp3 +"the essential ingredients of S. 138 i.e., that a person drew a cheque on an account maintained by him with the banker; and that such",audio_38_142.mp3 +"a cheque when presented to the bank is returned by the bank unpaid, stands fulfilled. Further, on a co-joint reading of the cheque in question",audio_38_143.mp3 +"ex cw 1/a, return memo ex cw 1/b, it also stands proved that ""cheque was presented to the bank within a period of six months",audio_38_144.mp3 +"from the date it was drawn"". 22. The legal notice dated 10.07.2018 ex cw-1/c further proves that the same was issued on 10.07.2018 and dispatched",audio_38_145.mp3 +"vide postal receipts ex cw1/d to ex cw1/f. Now, the accused has denied the receipt of legal notice. 23. The Hon'ble SC in k",audio_38_146.mp3 +"bhaskaran vs. sankaran vaidhyan balan (1999) 7 scc 510 in para 18 observed thus: ""......'giving notice' in the context is not the same as 'receipt",audio_38_147.mp3 +"of notice'. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process i.e. Giving, by",audio_38_148.mp3 +"sending the notice to the drawer at the correct address.....""dharambir vs. . M/s alkarma page 1 of 24 on 25 may, 2023",audio_38_149.mp3 +"Sender has dispatched the notice by post with correct address written on it, the principle Inc. in S. 27 of general clauses act could profitably",audio_38_150.mp3 +be imported in such a Cas. . It was further held that in this situation service of notice is deemed to have been effected on the,audio_38_151.mp3 +sendee. 25. Law with respect to the delivery of legal notice by post and the presumption with respect to the same has been succinctly put,audio_38_152.mp3 +forth by the Hon'ble SC in c c alavi haji vs. palapetty muhammed (2007) 6 scc 555. Para 13 & 14 of the judgment,audio_38_153.mp3 +"is worth mentioning as under: ""13. According to S. 114 of the act, r/w illustration (f) thereunder, when it appears to the court that",audio_38_154.mp3 +"the common course of business renders it probable that a thing would happen, the court may draw presumption that the thing would have happened, unless",audio_38_155.mp3 +"there are circumstances in a particular Cas. to show that the common course of business was not followed. Thus, S. 114 enables the court to",audio_38_156.mp3 +"presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct",audio_38_157.mp3 +"and public and Pvt. business in their relation to the facts of the particular Cas. . Consequently, the court can presume that the common course of",audio_38_158.mp3 +"business has been followed in particular cases. When applied to communications sent by post, S. 114 enables the court to presume that in the common",audio_38_159.mp3 +"course of natural events, the communication would have been delivered at the address of the addressee. But the presumption i.e. raised under S. 27",audio_38_160.mp3 +"of the g.c. Act is a far stronger presumption. Further, while S. 114 of evidence act refers to a general presumption, S. 27 refers to",audio_38_161.mp3 +a specific presumption 14. S. 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct,audio_38_162.mp3 +"address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of",audio_38_163.mp3 +"the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to",audio_38_164.mp3 +"have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee,",audio_38_165.mp3 +service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of,audio_38_166.mp3 +"business. 26. Thus, in view of the law as above said and the fact that the address given by accused in his notice under S. ",audio_38_167.mp3 +"251 crpc being the same address which finds mention in the legal notice and that the legal notice was duly dispatched through postal receipt, the",audio_38_168.mp3 +"mandatory statutory legal notice marked as ex cw 1/c is deemed to have been served on the accused in the present Cas. . Thus, the factum",audio_38_169.mp3 +"of issuance and receipt of mandatory statutory legal notice also stands proved based on the documentary evidence of legal notice, postal receipts. It has been",audio_38_170.mp3 +"also proved that despite issuance of legal notice, the accused had failed to make the payment of the cheque amount. 27. Before noting the line",audio_38_171.mp3 +"of defence of the accused that can be deduced through the cross examination of the complainant witnesses, it is apposite to note the admitted facts",audio_38_172.mp3 +"in the presentdharambir vs. . M/s alkarma page 1 of 24 on 25 may, 2023",audio_38_173.mp3 +I) the accused is a partnership firm. This has been established in view of the consistent position of cw 1 as well as cw 2.,audio_38_174.mp3 +"Furthermore, nowhere during the course of the trial the accused has disputed that alkarna is not a partnership firm. Not a single suggestion disputing alkarma",audio_38_175.mp3 +not being a partnership firm has been put forth by the accused. Ii) accused sandeep chaudhary is the partner and authorized signatory of accused alkarma,audio_38_176.mp3 +firm. The same stands proved on a co-joint reading and perusal of the cheque in question and notice under S. 251 crpc. The accused sandeep,audio_38_177.mp3 +"chaudhary has admitted his signatures on the cheque in question and perusal of the cheque reflects that the same is belong to ""alkarma"" of which",audio_38_178.mp3 +"sandeep chaudhary is the authorized signatory. Furthermore, it is also not the Cas. of the accused that he is not the authorized signatory/partner of accused",audio_38_179.mp3 +alkarma. Iii) complainant used to work for the accused alkarma. This has also not been disputed by the accused. Not a single suggestion or question,audio_38_180.mp3 +has been put by the accused which could directly or indirectly goes on to establish that it is the Cas. of the accused that the,audio_38_181.mp3 +complainant has no connection whatsoever with the accused alkarma firm or that complainant was never an employee of the accused firm. As a matter of,audio_38_182.mp3 +"fact, ex cw1/j i.e., proof of appointment and ex cw1/k i.e., proof of salary brought on record by the complaint further cements the position that",audio_38_183.mp3 +"the complainant indeed was the employee of accused alkarma firm. 28. In order to rebut the presumption existing in favor of the complainant, the accused",audio_38_184.mp3 +through the cross examination and notice under S. 251 crpc attempted to create following line of defence: a) the cheque in question was never issued,audio_38_185.mp3 +to the complainant. B) there never existed any settlement between him and the complainant as to the outstanding amount claimed by the complainant. C) the,audio_38_186.mp3 +blank signed cheques were used to be kept in his office for daily use and the same were taken from the said office and misused.,audio_38_187.mp3 +(notice under S. 251 crpc.) d) the cheque in question were in possession of cw2 vijay thakur and the same has been misused by vijay,audio_38_188.mp3 +thakur and never gave authorization to anyone regarding the issuance of cheque in question. (statement under S. 313 crpc.) e) whatever documents that have been,audio_38_189.mp3 +"brought on record by the complainant and his witness are forged and fabricated and were never created by him. F) whatever due, if any, is",audio_38_190.mp3 +there against him has already been paid by him to the complainant. (statement under S. 313 crpc.)dharambir vs. . M/s alkarma page 1 of 24,audio_38_191.mp3 +"on 25 may, 2023",audio_38_192.mp3 +251 crpc he only stated that blank signed cheques used to be kept in his office for daily use and the same were taken from,audio_38_193.mp3 +"the said office and misused. Here, the accused never even mentioned as to who took the said cheques or when the said cheques were taken.",audio_38_194.mp3 +"However, only when the complainant examined cw 2 i.e., vijay thakur, the accused in his statement under S. 313 crpc modified and changed his position",audio_38_195.mp3 +and stated that the cheque in question were in possession of vijay thakur and the same have been misused by vijay thakur. 30. During the,audio_38_196.mp3 +course of the trial objection was raised with respect to full and final settlement brought on record since the same was not original. The objection,audio_38_197.mp3 +"was also decided in favor of the accused. However, mere absence of settlement agreement by itself does not in any manner create probable defence in",audio_38_198.mp3 +"favor of the accused, viewed specifically in the light of the fact that the complainant was the employee of the accused firm and further cw1",audio_38_199.mp3 +"i.e., the complainant and cw 2 i.e., vijay thakur through their testimony has been able to establish that a settlement was arrived between the accused",audio_38_200.mp3 +"firm and the complainant. 31. Furthermore, the accused never initiated any complaint or legal proceedings with respect to the misuse of the cheque. As a",audio_38_201.mp3 +"matter of fact, there exists a total of 5 cheques bounce cases pending between the accused and the complainant in the same court. A total",audio_38_202.mp3 +of 33 cases are pending against the accused with respect to multiple cheques in the same court. It is highly unnatural and improbable that where,audio_38_203.mp3 +"close to three dozen cheque bounce cases have been filed against the accused and he takes a stand that all the cheques have been misused,",audio_38_204.mp3 +not a single complaint or legal proceedings or even a stop payment instruction has been initiated by the accused. This conduct of the accused further,audio_38_205.mp3 +weakens his line of defence. 32. Anr. point which is noticeable is that during the cross examination of the complainant as well as cw 2,audio_38_206.mp3 +"i.e., vijay thakur, the counsel of the accused took a line of defence that the documents which has been filed on record i.e., settlement, does",audio_38_207.mp3 +not bear the signature of the accused and only of vijay kumar cw 2. He has further through the cross examination of the complainant as,audio_38_208.mp3 +well as his witness attempted to establish that cw 2 was never authorized by the accused to enter into any settlement with the complainant. This,audio_38_209.mp3 +"line of defence also does not hold much water. It stands proved through the testimony of cw 2 i.e., vijay thakur that he was also",audio_38_210.mp3 +the employee of accused firm and was working in the position of Sr. manager. The same also stands proved through the documents which has been,audio_38_211.mp3 +brought on record by cw 2 which are on the letter head of the accused firm. 33. Cw 2 further brought on record authorization letter,audio_38_212.mp3 +dated 08.01.2018 ex cw2/b which does establish that he was duly authorized. Although the accused did attempt to show that since the settlement was dated,audio_38_213.mp3 +"30.11.2017 and whereas the authorization letter ex cw2/b is of 08.01.2017, cw 2 was never authorized to enter into any settlement agreement on behalf of",audio_38_214.mp3 +"the accused. However, a plausible explanation to this effect was given by cw 2 in his cross examination that since he was working in continuity",audio_38_215.mp3 +with the accused firm he was under directions form the accused to sign mark a and mark b whereas the accused in writing had issued,audio_38_216.mp3 +the Auth. letter to him on 08.01.2018. It is proved that cw 2 has been working in the position of Sr. manager with accuseddharambir vs. ,audio_38_217.mp3 +". M/s alkarma page 1 of 24 on 25 may, 2023",audio_38_218.mp3 +"Further, cw 2 has been working in the accused firm since 1993. In view the abovesaid long tenure and responsible position, the delay of merely",audio_38_219.mp3 +a month in the issuance of the authorization letter does not create any reasonable doubt that cw 2 was never authorized by accused sandeep chaudhary,audio_38_220.mp3 +"to enter into settlement on behalf of accused firm. 34. Furthermore, a suggestion was put during the cross examination of cw 2 that ex cw2/b",audio_38_221.mp3 +"i.e., the authorization letter is forged and fabricated. However, mere suggestion by itself does not prove that the document is forged and fabricated. Something more",audio_38_222.mp3 +ought to be brought on record to establish the same. It is not the Cas. of the accused that he has initiated any Crl. proceedings,audio_38_223.mp3 +with respect to the forging and fabrication of ex cw2/b. No material whatsoever has been brought on record by accused to even suggest the same.,audio_38_224.mp3 +"Thus, it stands proved that cw 2 was authorized to enter into settlement agreement on behalf of accused firm with the complainant. 35. The accused",audio_38_225.mp3 +had an option to examine himself as a witness which the accused opted not to avail. Where the accused does not examine himself as a,audio_38_226.mp3 +"witness, his statement under S. 281 cr. P.c. Or 313 cr. P.c. Cannot be read as evidence of the accused and it has to be",audio_38_227.mp3 +looked into only as an explanation of the incriminating circumstance and not as evidence. There is no presumption of law that explanation given by the,audio_38_228.mp3 +"accused was truthful (v.S. yadav vs. reena 2010 scc online del 3294). In the present matter, in his statement under S. 313 crpc the accused",audio_38_229.mp3 +stated that the documents brought by cw 2 were never authorized by him and they are forged and fabricated. If the accused wanted to prove,audio_38_230.mp3 +"this, he was supposed to appear in the witness box and testify and get himself subjected to cross examination. Furthermore, nothing came in the cross",audio_38_231.mp3 +examination of cw 2 so as to cast any doubt on the documents brought on record by him. 36. During the cross examination of the,audio_38_232.mp3 +"complainant, a suggestion was put to the complainant that there is nothing due against the accused/firm and that the complainant has already received his entire",audio_38_233.mp3 +"due from the accused when he left the firm. In other words, it is the stand of the accused that he has already paid the",audio_38_234.mp3 +"entire due when the complainant left the firm and no due is left against the accused/firm. The same was, however, denied by the complainant. The",audio_38_235.mp3 +abovesaid position of the accused further stands corroborated through the statement of the accused under S. 313 crpc wherein the accused stated that whatever due,audio_38_236.mp3 +which he had has already been paid by him to the complainant. 37. At this juncture it is pertinent to note that in terms of,audio_38_237.mp3 +"S. 1 sub-S. (4) of payment of wages act, the act is applicable to a factory. Now, the accused firm alkarma is a factory. The",audio_38_238.mp3 +"same is proved on perusal of form no 3a i.e., notice of change of manager brought on record by cw 2. 38. S. 13 a",audio_38_239.mp3 +of payment of wages act is as follows: [13a. Maintenance of registers and records.--(1) every employer shall maintain such registers and records giving such particulars,audio_38_240.mp3 +"of persons employed by him, the work performed by them, the wages paid to them, the deductions made from their wages, the receipts given by",audio_38_241.mp3 +"them and such other particulars and in such form as may bedharambir vs. . M/s alkarma page 1 of 24 on 25 may, 2023",audio_38_242.mp3 +"(2) every register and record required to be maintained under this S. shall, for the purposes of this act, be preserved for a period of",audio_38_243.mp3 +"three years after the date of the last entry made therein.] 39. Thus, as can be seen S. 13a mandates that an employer shall maintain",audio_38_244.mp3 +"registers and records of person employed by him, work performed, wages paid, deductions made, and receipts given. Alkarma being a factory was therefore required to",audio_38_245.mp3 +maintain the registers as per the labor legislations. The accused brought no registers maintained by him in this regard. If the stand of the accused,audio_38_246.mp3 +"is that he had already paid all the dues to the complainant, he ought to have brought the registers which were maintained by him reflecting",audio_38_247.mp3 +"the same, however, the accused brought nothing on record. Thus, adverse inference needs to be drawn against the accused firm and further the defence raised",audio_38_248.mp3 +"by the accused regarding due payment already been made to the complainant stands rejected. 40. The present matter, as per the memo of parties has",audio_38_249.mp3 +been filed against m/s alkarma through its partner sandeep chaudhary. In the complaint there exists a separate averment that accused sandeep chaudhary is partner of,audio_38_250.mp3 +"m/s alkarma and was/is looking after day-to-day affairs and is the authorized signatory of the Co. . Further, accused sandeep chaudhary signed on the cheque in",audio_38_251.mp3 +question as the authorized signatory of alkarma. Notice under S. 251 crpc was also framed against accused sandeep chaudhary as partner of accused alkarma. It,audio_38_252.mp3 +is also not the Cas. of the accused sandeep chaudhary that he is not the partner or authorized signatory of accused alkarma. In fact the,audio_38_253.mp3 +"entire defence of accused sandeep chaudhary was raised on the premise that accused sandeep chaudhary is the partner of accused alkarma. Hence, in the present",audio_38_254.mp3 +"matter the accused sandeep chaudhary was separately arraigned as an accused along with m/s alkarma. Thus, accused sandeep chaudhary is also vicariously liable in terms",audio_38_255.mp3 +"of S. 141 ni act being the partner of accused firm. 41. Thus, in view of the oral and documentary evidence brought on record by",audio_38_256.mp3 +"the complainant, statement of the accused under S. 313 cr.p.c, the accused has failed to create a dent/doubt in the Cas. of the complainant and",audio_38_257.mp3 +"it is clear that the accused had committed an offence under S. 138 of the NI Act . Further, the complainant has also been able",audio_38_258.mp3 +"to establish his Cas. . 42. On the basis of the above said analysis and conclusions arrived, the accused viz. i) m/s alkarma and ii) sh",audio_38_259.mp3 +sandeep chaudhary s/o shri subhash chaudhary is convicted for the commission of the offence punishable under S. 138 of the act. This judgment contains 24,audio_38_260.mp3 +"pages. Every page of this judgment has been signed by me.dharambir vs. . M/s alkarma page 1 of 24 on 25 may, 2023",audio_38_261.mp3 +"Announced in the open court negi date: 2023.05.25 16:51:45 on this day of 25th may, 2023 +0530 (harshal negi) mm(ni act)-05/south-west district dwarka courts/new delhidharambir",audio_38_262.mp3 +"vs. . M/s alkarma page 1 of 24 on 25 may, 2023",audio_38_263.mp3 +"Being a bank Inc. under the vs. under sec.200 of Cr.P.C. for the offence on 15 september, 2016 in the court of",audio_39_1.mp3 +"the ii addl. Small causes judge & xviii addl. Chief MM , bengaluru city dated this the 15th day of september 2016. Present : smt.panchakshari",audio_39_2.mp3 +"m., m.com., ll.b. Ii addl. Small causes judge & xxviii acmm, bengaluru. Cc no.68703/2009. Judgment u/s 355 of the Cr.P.C. 1973 1.",audio_39_3.mp3 +Sl. No. of the Cas. : c.c. No.68703/2009 2. The date of commission of the offence : 26.6.2009 3. Name of the complainant : hdfc,audio_39_4.mp3 +"bank ltd. Golden towers, 2nd floor, lakshmi tower, old airport road, kodihalli, bengaluru-560 017. Represented by its officer sri.b.srikanth, (by sri.s.a.associates, Adv. ) 4. Names of",audio_39_5.mp3 +"the accused: :sri.vijayanarasimha.S. no.185, 2nd cross, vidyanagara, bommasandra, hosur main road, skf bearing factory, bengaluru-560 099. Scch.13 2 cc.68703/2009 (by sri.lohith.m., Adv. ) 5. The offence",audio_39_6.mp3 +complained : under S. 138 of the of or proves negotiable instruments actbeing a bank Inc. under the vs. under sec.200 of code of Crl. ,audio_39_7.mp3 +"procedure for the offence on 15 september, 2016",audio_39_8.mp3 +his examination 7. Final order : accused is acquitted 8. Date of such order : 15.9.2016 for the following : judgment complainant being a bank,audio_39_9.mp3 +"Inc. under the provisions of banking regulations act represented by its authorized signatory, had filed this complaint against the accused under sec.200 of code of",audio_39_10.mp3 +Crl. procedure for the offence punishable under sec.138 and 142 of NI Act . 2. It is the Cas. of the complainant that during the,audio_39_11.mp3 +"course of its financial services, it had sanctioned business loan to the accused who had agreed to abide by the terms & conditions. The accused",audio_39_12.mp3 +"after availing the said facility and towards monthly installments for repayment of the loan amount, the accused had issued cheque and assured to the complainant",audio_39_13.mp3 +"that he will maintain sufficient balance in his account. But to the contrary, when cheques bearing no.526861 and 526862 dated:11.4.2009 for rs.38,493/- each, drawn on",audio_39_14.mp3 +"icici bank, were presented, it came to be dishonoured with an endorsement 'funds insufficient'. Therefore, the complainant had issued legal notice dated: 14.5.2009 to the",audio_39_15.mp3 +accident demanding him to pay the dues within 15 days from the date of receipt of the notice. The said legal notice was sent by,audio_39_16.mp3 +"registered post with acknowledgement due which was served on the accused. In spite of receipt of notice, the accused has failed and neglected to settle",audio_39_17.mp3 +"the amount due even after expiry of 15 days from the date of the notice. Thus, the accused has committed an offence punishable under sec.138",audio_39_18.mp3 +"of NI Act . 3. After taking the cognizance of the offence, on being served the summons, the accused appeared before the court through his",audio_39_19.mp3 +counsel and released on bail. Plea of the accused under sec.138 of n.i. Act was recorded. The accused pleaded not guilty and claims to be,audio_39_20.mp3 +"tried. 4. The complainant, to prove its Cas. , got examined its AR as pw.1 and got marked exs.p.1 to p.7 and closed its side.",audio_39_21.mp3 +"Statement of accused under S. 313 of Cr.P.C. was recorded. In defence, accused has been examined as dw.1 and got marked ex.d.1",audio_39_22.mp3 +"to d.3. 5. Heard both sides. 6. With these version of pleadings of both the parties, the following points arise for my consideration: 1. Whether",audio_39_23.mp3 +"the complainant proves that cheques bearing no.526861 dated: 11.4.2009 for rs.34,493/- & cheque No. 526862 dated:being a bank Inc. under the vs. under sec.200 of",audio_39_24.mp3 +"Cr.P.C. for the offence on 15 september, 2016",audio_39_25.mp3 +"Road, bengaluru issued in favour of the complainant towards discharge of legal debt, were returned unpaid for reason 'sufficient funds' and failed to make payment",audio_39_26.mp3 +"of dishonoured cheque amount in spite of intimating the same through legal notice and thereby, the accused have committed an offence punishable under sec.138 of",audio_39_27.mp3 +negotiable instrument act? 2. What order? 7. My findings on the above points are as under: point no.1: in the negative. Point no.2: as per,audio_39_28.mp3 +final order for the following: reasons 8. Point no.1: the complainant herein being the bank is represented by its officer had filed complaint against the,audio_39_29.mp3 +"accused wherein, it is contended by the complainant that the accused after availing loan facility, utilized the same and towards the monthly installment for repayment,",audio_39_30.mp3 +he had issued cheques and assured the plaintiff that he will maintain sufficient balance in his account and the cheques will be duly honoured on,audio_39_31.mp3 +"its due date. But to the contrary, the cheque bearing no.526861 dated: 11.4.2009 for rs.34,493/- and cheque bearing no.526862 dated: 11.4.2009 for rs.34,493/- when presented",audio_39_32.mp3 +"for encashment, came to be dishonoured with an endorsement, 'funds insufficient'. So, as per the specific contention of the complainant, the accused having availed loan",audio_39_33.mp3 +"facility had issued cheque towards monthly installments by assuring that the cheques will be honoured. So, the above referred cheques are issued towards monthly installment",audio_39_34.mp3 +and it came to be dishonoured with the endorsement 'insufficient funds'. Dishonour of the cheques was intimated by issuing legal notice dated: 14.5.2009 and as,audio_39_35.mp3 +"per the contention of the complainant, the notice sent through registered post returned with an endorsement 'served'. So, in spite of receipt of legal notice,",audio_39_36.mp3 +the accused had failed and neglected to settle the amount due after expiry of 15 days from the date of receipt of the notice. 9.,audio_39_37.mp3 +"The complainant in order to substantiate its Cas. had opted to examine the official of the bank who is also the power of attorney holder,",audio_39_38.mp3 +"as pw.1 and in his Aff. filed for examination in chief, he has reiterated the contents of his complaint by specifically stating that towards part",audio_39_39.mp3 +"payment for repayment of the loan amount, the accused had issued two cheques and assured that he will maintain sufficient balance in his account for",audio_39_40.mp3 +"the cheques to be duly honoured. In support of his oral evidence, he has produced documents which are marked as ex.p.1 to p.7. Ex.p.1 is",audio_39_41.mp3 +"the power of attorney, ex.p.2 and 3 are the cheques each for rs.38,493/- dated: 11.4.2009, ex.p.4 is the two bank memos, ex.p.5 is the copy",audio_39_42.mp3 +of legal notice dated: 14.5.2009 and ex.p.6 is the acknowledgement for having served with the legal notice and ex.p.7 is the statement of account. In,audio_39_43.mp3 +"the cross-being a bank Inc. under the vs. under sec.200 of Cr.P.C. for the offence on 15 september, 2016",audio_39_44.mp3 +"27.2.2008 and it was agreed to be repaid by 36 equal monthly installments of rs.12,831/- each. The loan documents are not placed before the court.",audio_39_45.mp3 +"It is only ex.p.7, the statement of account which is produced makes out the loan disbursement date as 27.2.2008 and installment starts from 7.4.2008 and",audio_39_46.mp3 +"ends on 7.3.2011. Further ex.p.7 makes out the financed amount is rs.3,50,000/- and the emi amount is rs.12,831/-. 10. The accused in order to put",audio_39_47.mp3 +forward his defence got himself examined as dw.1 wherein it is contended by the accused that he had not been served with the legal notice,audio_39_48.mp3 +and it is contended that the address noted in the legal notice is not his correct address at the time of availing the loan. In,audio_39_49.mp3 +"support of his contention, he has produced ex.d.1 which is the vat certificate of the industry of the accused and ex.d.2 is the notarized copy",audio_39_50.mp3 +of his election id card. The address noted in ex.p.5 tallies with the address as could be seen in the statement of account ex.p.7. But,audio_39_51.mp3 +"in ex.d.1, the address of the accused is noted as m/s sahana industries, no.26, 5th cross, vidyanagara layout, opposite skf, bommasandra, anekal taluk, bengaluru-560 099.",audio_39_52.mp3 +"As could be seen in ex.p.6 i.e. , rpad acknowledgement whereby the signature is endorsed as b.v.malathi. In ex.d.2 election id card, his residential address",audio_39_53.mp3 +"is shown as no.5, n.r.colony, taluka anekal, zilla bengaluru. There is no documents produced by the complainant to make out that the accused had given",audio_39_54.mp3 +particulars of his address as shown in ex.p.7 at the time of availment of the loan. Dw.1 has stated in his evidence that he has,audio_39_55.mp3 +"informed his residential address to the complainant and he has admitted that he had borrowed the loan of rs.3,50,000/- in the month of march 2008",audio_39_56.mp3 +from the complainant but it is his contention that he has availed the said loan at the interest rate at 4% p.a. It is also,audio_39_57.mp3 +"his contention that he has availed the said loan under development of small scale industries, the Govt. scheme. Further, it is stated by him that",audio_39_58.mp3 +"at the time of availing loan, he had given four cheques i.e., ex.p.2 & p.3 and other two cheques to the complainant as security. Further",audio_39_59.mp3 +it is specifically stated by him that he has not received the notice as per ex.p.5. It is also his version that except the signature,audio_39_60.mp3 +"at ex.p.2 & p.3, he has not filled the writings in the cheque. Further he has clearly stated that he had not signed ex.p.6 and",audio_39_61.mp3 +"the signature found on the said document is not the signature of any of his family members. Further, he has specifically stated that he is",audio_39_62.mp3 +residing in the address as shown in ex.p.6. He has produced ex.d.3 his bank statement so as to make out that he had issued the,audio_39_63.mp3 +"cheques i.e., ex.p.2 & p.3 in the year 2008 itself. Further he has stated that he had repaid the entire loan amount to the complainant,",audio_39_64.mp3 +"therefore, he is not liable to pay cheque amount. Though in the cross-examination, pw.1 has stated that the address shown in ex.p.5 and ex.d.1 as",audio_39_65.mp3 +"well as ex.d.3 are one and the same, on perusal of the documents it makes out, the address in ex.d.1 and d.3 does not tally",audio_39_66.mp3 +"with the address noted in ex.p.5 whereas, the No. and cross of the road differs. He has specifically stated that at the time of availing",audio_39_67.mp3 +"the loan, he has given his factory address to the complainant. So, the main contention of the accused is that the legal notice had not",audio_39_68.mp3 +"been served on him, as it is not served on his proper address. The documents which are produced on behalf of the accused makes out",audio_39_69.mp3 +"that the address that could be seen in ex.p.5, p.6 and bank statement do not tally with the documents which are produced on behalf of",audio_39_70.mp3 +"the accused. Further, it is also stated by dw.1 that the signature as could be seen in ex.p.6 is not that of any of his",audio_39_71.mp3 +"family members. Now, as the offence alleged against accused is under sec.138 of ni act, the main point for consideration is that whether there exists",audio_39_72.mp3 +any legally recoverable debt as on the date of cheque and whether ex.p.2 and p.3 cheques are issued towards discharge of the liability. The complainant's,audio_39_73.mp3 +"contention is that thebeing a bank Inc. under the vs. under sec.200 of Cr.P.C. for the offence on 15 september, 2016",audio_39_74.mp3 +"Installment is shown as rs.12,831/-. Further, the statement shows the first installment due from 7.4.2008, emi received and cheque bounced shown on 10.4.2008, cheque bounced",audio_39_75.mp3 +"charges are also leveled. In the same way, further in the month of may also, the statement makes out the monthly installment cheque bounced. So,",audio_39_76.mp3 +"each installment is for rs.12,831/-. As it is the contention of the complainant that the cheque is issued towards monthly installment, then it should have",audio_39_77.mp3 +"been for a sum of rs.12,831/- but ex.p.2 & p.3 is for rs.38,493/- each. Further, it is also disputed on behalf of the accused that",audio_39_78.mp3 +he had not at all issued the cheque towards due payment but ex.p.2 and p.3 cheques are issued for the security purpose. If the statement,audio_39_79.mp3 +"of account produced by the complainant itself is looked into, i.e. ex.p.7, as on 11.4.2009, balance due is rs.59,823/-. This amount also includes cheque",audio_39_80.mp3 +"bouncing charges on each installment which is leveled on every month. The total cheque amount in ex.p.2 & p.3 comes to rs.76,986/-. So, as on",audio_39_81.mp3 +"11.4.2009, the accused was not at all due for a sum of rs.76,986/-. So, in such circumstance, what made the accused to issue two cheques",audio_39_82.mp3 +"each for rs.38,493/- which is excess than the due amount, which is not made out. Apart from that, the thing that has to be taken",audio_39_83.mp3 +"into consideration in the present Cas. is that, drawer and payee are one and the same which is also suggested in the cross-examination of pw.1.",audio_39_84.mp3 +"In both the cheques, it is noted as follows: "" pay hdfc bank ltd. A/c business loan vijayanarasimha.s."" this vijayanarasimha.S. is none other than the",audio_39_85.mp3 +"accused herein. So, it is argued on behalf of the deceased that he is not at all liable to pay the cheque amount as he",audio_39_86.mp3 +"was not due for the said amount as on 11.4.2009. 11. Now, the point that has to be taken into consideration is that, as the",audio_39_87.mp3 +"offence is urged under sec.138 of ni act, the complainant has to prove the ingredients of sec.138 of ni act. Merely issuance of cheque will",audio_39_88.mp3 +"not give any presumption with regard to existence of liability. In the present Cas. , accused had not produced any receipts for having made payment of",audio_39_89.mp3 +"the entire loan amount, as on 11.4.2009 he was not due for payment of rs.76,986/-. The statement of complainant itself makes out that as on",audio_39_90.mp3 +"11.4.2009, including the installment of the said month, due amount comes to rs.59,823/-. Further, it is very much made out from the contention of the",audio_39_91.mp3 +"complainant itself that the cheques are issued towards installment amount. As such, as each installment amount being rs.12,831/-, how come the accused had issued each",audio_39_92.mp3 +"cheque for rs.38,493/- is not forth coming from the evidence of the complainant. So, when the accused had taken a specific contention that the cheques",audio_39_93.mp3 +"are not issued towards discharge of liability and as on the date of cheque, the amount due is not amounting to the total amount of",audio_39_94.mp3 +"the two cheques, the complainant had failed to prove that the accused was due for a total sum of rs.76,986/- as on the date of",audio_39_95.mp3 +"cheque. Further, the complainant had also failed to prove that the cheques issued towards discharge of the debt having dishonoured for 'insufficient funds' and that",audio_39_96.mp3 +has been intimated to the accused to his proper address and he having been served with the notice had failed to comply with the legal,audio_39_97.mp3 +"notice demands or that he had failed to reply to the legal notice. Under these circumstances, the complainant had failed to prove its Cas. by",audio_39_98.mp3 +making out that ex.p.2 & p.3 cheques are issued towards discharge of legally recoverable debt. 12. The counsel on behalf of the complainant had relied,audio_39_99.mp3 +"on the decision reported in air 2000 kar. 169 in the Cas. of h.marigowda vs. . Thippamma & ors. Whereby, it is held as follows:being",audio_39_100.mp3 +"a bank Inc. under the vs. under sec.200 of Cr.P.C. for the offence on 15 september, 2016",audio_39_101.mp3 +"Cannot be taken as defense to avoid decree based on such instrument. Further, he has relied on the decision reported in 2004 (3) kccr 1816",audio_39_102.mp3 +"in the Cas. of l.mohan vs. . V.mohan naidu whereby, it is held : NI Act - presumption as to - when once the",audio_39_103.mp3 +"issue of cheque and the signature of it is admitted, court has to presume that the cheque has been issued for discharging the debt or",audio_39_104.mp3 +liability. The burden of proof shifts on the accused to prove that there was no liability/debt or that the cheque was issued to a different,audio_39_105.mp3 +person. He has also relied on the judgment by Hon'ble HC of delhi in Crl. .l.p.706/2014 -suresh chandra goyal vs. . Amit singhal. Having gone,audio_39_106.mp3 +"through the above referred decisions, they are not applicable to the Cas. on hand whereby, merely because signature in the cheque is admitted, it cannot",audio_39_107.mp3 +"be presumed that it has been issued for discharging the debt or the liability as, in the present Cas. , the complainant had failed to prove",audio_39_108.mp3 +"that as on the date of cheque, there existed liability due by the accused totally amounting to rs.76,986/-. As such, when the accused was not",audio_39_109.mp3 +"at all due for said amount, he having issued those cheques towards discharge of debt cannot be accepted. 13. On the other hand, the counsel",audio_39_110.mp3 +on behalf of the accused had relied on the decision reported in 2009 (5) air kar. R 662 in the Cas. of m/s sathavahana ispat,audio_39_111.mp3 +"ltd. vs. . Umesh sharma whereby, it is held: NI Act -dishonour of cheque-prosecution for under sec.138 attracted only when cheque is issued in",audio_39_112.mp3 +"respect of current or past liabilities - cheque issued in respect of uncertain future liabilities would not attract prosecution under sec.138 - however, complainant's right",audio_39_113.mp3 +"to recover amount in Civ. forum will not get affected. Further, he has relied on the decision reported in (2008) 4 SC cases 54",audio_39_114.mp3 +"in the Cas. of krishna janardhan bhat vs. . Dattatraya g.hegde, whereby it is held: NI Act - presumption under - scope of -held:",audio_39_115.mp3 +s.139 merely raises a presumption in favour of holder of cheque that the said cheque has been issued for discharge of any debt or other,audio_39_116.mp3 +liability - existence of legally recoverable debt is not a matter of presumption under s.139. He has also relied on the decision reported in 2008,audio_39_117.mp3 +(i) dcr 65 in the Cas. of er.s.karuppusamy vs. . C.sugumar whereby it is held that: NI Act -sec.138 - dishonour of cheque -,audio_39_118.mp3 +acquitted - sustainability of - appreciation of evidence -issued undated and unnamed chequebeing a bank Inc. under the vs. under sec.200 of code of Crl. ,audio_39_119.mp3 +"procedure for the offence on 15 september, 2016",audio_39_120.mp3 +Of complainant - loan transaction - consideration of - held- it can not be said that ingredients of sec.138 of ni act attracted to warrant,audio_39_121.mp3 +conviction - no interference - appeal dismissed. He has also relied on the decision reported in 2012 (2) dcr 529 whereby it is held that:,audio_39_122.mp3 +NI Act - held : since requirement of sec.138 of ni act are not fulfilled and cheque in dispute was used by complainant which,audio_39_123.mp3 +"was given as a security and because of difference in account, so it cannot be even presumed that the cheque was given to discharge the",audio_39_124.mp3 +"legal obligation - found no illegality or irregularity in acquittal - petition dismissed. Having gone through the above referred decisions whereby, it is clearly made",audio_39_125.mp3 +"out that existence of legally enforceable debt has to be proved by the complainant. So, it is by inference of preponderance of probability by the",audio_39_126.mp3 +"available materials on record, the evidence has to be appreciated. So, under these circumstances, as the complainant had failed to prove its Cas. by making",audio_39_127.mp3 +"out that ex.p.2 & p.3 cheques are issued towards discharge of legally recoverable debt, i hold point no.1 in the negative. 14. Point no.2: in",audio_39_128.mp3 +"view of the finding on the point no.1, i proceed to pass following: order acting under S. 255(1) Cr.P.C. , the accused",audio_39_129.mp3 +"is acquitted for the offence under sec.138 of negotiable instrument act. The bail bond stands cancelled. (dictated to the stenographer, transcription thereof corrected, signed &",audio_39_130.mp3 +"pronounced in open court on this the 15th september 2016.) (panchankshari m) ii addl. Small causes judge & xxviii acmm, bengaluru. Annexure list of witness",audio_39_131.mp3 +examined on behalf of the complainant: cw.1 : srikanth rao list of documents marked on behalf of complainant: ex.p.1 : cc of power of attorney,audio_39_132.mp3 +"ex.p.2 : cheque dtd: 11.4.2009 for rs.34,493/- ex.p.3 : cheque dtd: 11.4.2009 for rs.34,493/- ex.p.4 : 2 bank memo ex.p.5 : copy of notice dated:",audio_39_133.mp3 +14.5.2009 ex.p.6 : acknowledgement ex.p.7 : statement of accountbeing a bank Inc. under the vs. under sec.200 of Cr.P.C. for the offence,audio_39_134.mp3 +"on 15 september, 2016",audio_39_135.mp3 +Dw.1 : vijayanarasimha.h. List of documents marked on behalf of defence: ex.d.1 : nc of vat certificate (compared with original and returned back to the,audio_39_136.mp3 +witness ex.d.2 : nc of election id (compared with original and returned back to the witness) ex.d.3 : cc of bank statement (panchankshari m) ii,audio_39_137.mp3 +"addl. Small causes judge & xxviii acmm, bengaluru. Order acting under S. 255(1) Cr.P.C. , the accused is acquitted for the offence",audio_39_138.mp3 +"under sec.138 of negotiable instrument act. The bail bond stands cancelled. (panchankshari m) ii addl. Small causes judge & xxviii acmm, bengaluru.being a bank Inc. ",audio_39_139.mp3 +"under the vs. under sec.200 of Cr.P.C. for the offence on 15 september, 2016",audio_39_140.mp3 +"Ge capital services india ltd. ... ... vs. . On 30 november, 2011 in the court of sh. Vipin kharb MM , dwarka courts, new",audio_40_1.mp3 +"delhi Cas. No. : 19155/09 ge capital services india ltd. ... Complainant. Aifacs building 1, rafi marg new delhi vs. Paramjeet singh h. No. 560,",audio_40_2.mp3 +"gali no.2, west guru angad nagar delhi 110092. ... Accused. Date of institution : 24.06.2009 date of reserving judgment : 18.11.2011 date of judgment :",audio_40_3.mp3 +"30.11.2011 − :: judgment :: − - brief facts and reasons for decision of the Cas. 1. By way of the present judgment, i shall",audio_40_4.mp3 +decide the complaint Cas. u/s 138 negotiable instrument act 1881 (as amended upto date) filed by the complainant ge capital services india through its representative,audio_40_5.mp3 +sh. Atul bansal against the accused sh. Paramjeet singh s/o sh asha singh. 2. The facts in brief necessary for the disposal of the present,audio_40_6.mp3 +Cas. as per the averments in the complaint are that the complainant Co. is carrying business of providing loans and the accused was granted a,audio_40_7.mp3 +vehicle loan by the complainant vide loan agreement No. tngurrcvz00295994 and towards the discharge of his partial liability the accused had issued two cheques bearing,audio_40_8.mp3 +"nos 502539 and 502540 both drawn on state bank of india, khureji khas, delhi both amounting to rs.16,700/€ in favour of the complainant. However, on",audio_40_9.mp3 +"presentation of the same the cheques got dishonoured vide cheque returning memos dated 17.04.2009 with remarks ""insufficient funds in account"". The complainant has thereafter given",audio_40_10.mp3 +a legal notice of demand dated 04.05.2009 to the accused which was sent by rlad thereby calling upon the accused to make the payment of,audio_40_11.mp3 +the cheques amount. It is alleged that the accused has failed to pay any sum in response to the legal notice of demand. As a,audio_40_12.mp3 +result of which the complainant has filed the instant complaint for prosecution of the accused u/s 138 negotiable instrument act.ge capital services india ltd. ...,audio_40_13.mp3 +"... vs. . On 30 november, 2011",audio_40_14.mp3 +"Summoning evidence by way of an Aff. and after hearing the counsel for the complainant and considering the entire material and documents on record, summons",audio_40_15.mp3 +were issued against the accused vide order dated 02.06.2009 for the offence u/s 138 negotiable instrument act 1881. On appearance of the accused a separate,audio_40_16.mp3 +notice u/s 251 Cr.P.C. dated 11.11.2010 was given to the accused to which he pleaded not guilty and claimed trial and the,audio_40_17.mp3 +matter was fixed for defence evidence as per judgment of Hon'ble HC of delhi in Cas. titled as rajesh aggarwal vs. State and ors.,audio_40_18.mp3 +"171 (2010) dlt 51. Thereafter, ld. Counsel for accused moved an Appl. u/s 145 (2) of NI Act and the same was allowed as",audio_40_19.mp3 +per mandate given by Hon'ble SC judgment dated 11.01.2010 (mandvi Corp. bank vs. Nimesh b. Thakur) and the Cas. was listed for cross examination,audio_40_20.mp3 +"of ar of the complainant. 4. In order to prove his Cas. , the substituted AR of the complainant got himself examined as cw€1 and",audio_40_21.mp3 +reiterated the contents of the complaint on oath before this court and filed an Aff. in evidence which is ex.cw1/1. He got exhibited original cheques,audio_40_22.mp3 +"before the court as ex.cw1/b and the cheque returning memos dated 17.04.2009 as ex. Cw1/c, the legal notice of demand dated 04.05.2009 as ex.cw€1/d and",audio_40_23.mp3 +"rlad which is ex.cw1/e vide which the aforesaid notice was sent. Further he got exhibited statement of account as ex.cw1/x. During cross examination of ar,",audio_40_24.mp3 +"ld. Counsel for accused brought the payment receipt issued by complainant to the accused which was exhibited as ex.cw1/da (osr). Thereafter, the complaint evidence was",audio_40_25.mp3 +closed at request. 5. After that the statement of accused was recorded u/s 313 Cr.P.C. in which all the incriminating evidence along,audio_40_26.mp3 +with exhibited documents were put to the accused sh. Paramjeet singh in which he admitted the factum of taking vehicle loan of Rs. 6 lacs/€,audio_40_27.mp3 +"approximately from the complainant in year 2007, however, he stated that the cheques in question were delivered to the complainant as a security at the",audio_40_28.mp3 +time of taking of loan. He admitted the receipt of legal notice of demand from the complainant and submitted that he had paid the cheques,audio_40_29.mp3 +amount to the complainant against the notice. Accused further submitted that the present Cas. has been instituted against him because the cheques in question got,audio_40_30.mp3 +bounced but he had made the payment against defaulted emis and had also made payment to the complainant after receiving of legal notice of demand.,audio_40_31.mp3 +6. Ld. Counsel for the accused has moved an Appl. u/s 315 cr. Pc for producing the accused as a defence witness. The aforesaid Appl. ,audio_40_32.mp3 +was allowed and the accused deposed as dw1. He was also cross examined by ld. Counsel for the complainant. No other defence evidence was produced,audio_40_33.mp3 +on behalf of the accused. Accused brought on record the payment receipt issued by complainant vide which he made payment of 3 emi to the,audio_40_34.mp3 +complainant as dw1/1. He was also cross examined by ld. Counsel for the complainant. No other defence evidence was produced on behalf of the accused.,audio_40_35.mp3 +"Thereafter, defence evidence was closed at request of ld. Counsel for the accused and the Cas. was fixed for final arguments.ge capital services india ltd.",audio_40_36.mp3 +"... ... vs. . On 30 november, 2011",audio_40_37.mp3 +"Memorandum in support of their oral arguments, which was taken on record. Ld. Counsel for accused has placed on record judgment titled as ""sudha beevi",audio_40_38.mp3 +"vs. State of kerala"" crl. M.c no 8638 of 2001. 7. I have heard ld. Counsels and perused the entire record of the Cas. file",audio_40_39.mp3 +"and the evidence on record. In order to bring home the conviction of the accused, the complainant has to show not only unbroken chain of",audio_40_40.mp3 +events leading to commission of actual offence on record but also the ingredients of the offence complained of. 8. Before proceeding further let us go,audio_40_41.mp3 +through the relevant provisions of law. The main ingredient of S. 138 of the NI Act are as follows:€ (a) the accused issued a,audio_40_42.mp3 +cheque on an account maintained by him with a bank. (b) the said cheque has been issued in discharge of any legal debt or other,audio_40_43.mp3 +liability. (c) the cheque has been presented to the bank within the period of six months from the date of the cheque or within the,audio_40_44.mp3 +"period of its validity. (d) when the aforesaid cheque was presented for encashment, the same was returned unpaid/dishonoured. (e) the payee of the cheque issued",audio_40_45.mp3 +a legal notice of demand within 30 days from the receipt of information by him from the bank regarding the return of the cheque. (f),audio_40_46.mp3 +the drawer of the cheque failed to make the payment within 15 days of the receipt of the aforesaid legal notice of demand. If the,audio_40_47.mp3 +aforesaid ingredients are satisfied then the drawer of the cheque shall be deemed to have committed an offence punishable u/s 138 NI Act . 9.,audio_40_48.mp3 +Now let us deal with the each ingredient of the S. 138 of NI Act to see whether the Cas. against the accused has,audio_40_49.mp3 +been proved or not. 10. Whether the cheque was issued or not the accused has himself admitted to have signed the cheques in question while,audio_40_50.mp3 +answering to the question at the time of framing of notice u/s 251 cr.pc. Further while answering to the question u/s 313 cr.pc the accused,audio_40_51.mp3 +has admitted to have given the cheques in question to the complainant but he stated that the same were given in blank only after putting,audio_40_52.mp3 +"his signatures thereon at the time of taking the loan by him. Therefore, so far as signing and delivery of the cheques in question by",audio_40_53.mp3 +"the accused is concerned the same is not disputed.ge capital services india ltd. ... ... vs. . On 30 november, 2011",audio_40_54.mp3 +"That ""by putting the amount and the name there is no material alteration on the cheque u/s 87 of the NI Act . In fact",audio_40_55.mp3 +there is no alteration but only adding the amount and the date. It was further observed in the aforesaid judgment that there is no rule,audio_40_56.mp3 +of banking business that the name of the payee as well as the amount should be written by the drawer himself. No law provides that,audio_40_57.mp3 +"in Cas. of cheques the entire body has to be written by the drawer only. "" in view of the aforesaid judgment and the evidence",audio_40_58.mp3 +on record it stands proved that the cheque in question was issued by the accused. 11. Whether the cheque was presented within the period of,audio_40_59.mp3 +"validity perusal of the record reveals that the cheques in question which are Exh. cw€1/b both amounting to Rs. 16,700/€ which got dishonoured vide cheque",audio_40_60.mp3 +returning memos which is Exh. cw€1/c dated 17.04.2009 which is not disputed by the accused clearly shows that the cheque has been presented within period,audio_40_61.mp3 +of its validity i.e. Within six months from the date of issuance of the cheque. 12. Dishonour of cheque in question in the instant Cas. ,audio_40_62.mp3 +sh. Atul bansal who has appeared as complainant's witness has got exhibited the cheques returning memos which is ex. Cw1/c. The dishonour of the cheques,audio_40_63.mp3 +in question has not been disputed by the accused nor the cheque returning memos has been challenged by the accused. Therefore considering the entire evidence,audio_40_64.mp3 +on record it stands duly proved that the cheques in question were dishonored vide cheque returning memo dated 17.04.2009 which are ex. Cw1/c with the,audio_40_65.mp3 +"reason ""insufficient funds in account"". 13. Service of legal notice of demand upon the accused in the instant Cas. , sh. Atul bansal who has appeared",audio_40_66.mp3 +as complainant's witness has specifically stated in his examination in chief that the complainant got issued the legal notice of demand dated 04.05.2009 which is,audio_40_67.mp3 +ex. Cw1/d and it was sent to the accused on 06.05.2009 vide rlad which is ex.cw1/e. The accused has accepted the receipt of legal notice,audio_40_68.mp3 +of demand in his statement u/s 313 cr.pc r.w 281 cr.pc and during his cross examination as dw1. Considering the evidence on record and the,audio_40_69.mp3 +"admission made by accused, the court is of the considered opinion that the legal notice of demand was served upon the accused. 14. Whether the",audio_40_70.mp3 +"cheque in question was issued in discharge of any legal debt or other liability in the Cas. in hand, sh. Atul bansal who has appeared",audio_40_71.mp3 +as complainant's witness has specifically stated in his examination in chief by way of Aff. that the accused issued the cheques in question in partial,audio_40_72.mp3 +discharge of his legal liability towards the repayment of the loan amount but in his cross examination he admitted that cheques in questionge capital services,audio_40_73.mp3 +"india ltd. ... ... vs. . On 30 november, 2011",audio_40_74.mp3 +In his statement u/s 313 cr.pc that he has given the cheques in question to the complainant but the same were given in blank only,audio_40_75.mp3 +after signing the same at the time of taking of loan but he admitted in his cross examination that they were for the repayment of,audio_40_76.mp3 +"emi. Therefore, in the light of admission made by both the parties i.e. Ar of the complainant and accused, it is clear that cheques in",audio_40_77.mp3 +question were given for payment of emis. Statement of account of accused ex.cw1/x also corroborates this fact that cheques in question 502539 and 502540 were,audio_40_78.mp3 +emi cheque. Extracts of statement of account ex.cw1/x are re drawn hereinbelow so that it can perused in a succinctly and understandable way. Table a,audio_40_79.mp3 +installment due date installment paid by paid /bounced (due credited for) cash/cheque 23 february project cash paid booked 19 march 2007 cheque no. 64489 paid,audio_40_80.mp3 +19 april 2007 cheque no. 64490 paid 19 may 2007 cheque no. 64491 paid 19 june 2007 cheque no. 64492 paid 19 july 2007 cheque,audio_40_81.mp3 +no.64493 paid 19 august 2007 cheque no.64494 paid 19 september 2007 cheque no.64495 paid 19 october 2007 cheque no.64496 paid 19 november 2007 cheque no.64497,audio_40_82.mp3 +paid 19 december 2007 cheque no.64499 paid 19 january 2008 cheque no.64488 paid 19 february 2008 cheque no.64498 paid 19 march 2008 cheque no.502532 paid,audio_40_83.mp3 +19 april 2008 cheque no.502533 paid 19 may 2008 cheque no.502534 bounced 19 june 2008 cheque no.502535 paid 19 july 2008 cheque no.502536 bounced 19,audio_40_84.mp3 +august 2008 cheque no.502537 bounced 19 september 2008 cheque no.502538 bounced 19 october 2008 cheque no.502539 bounced 19 november 2008 cheque no.502540 bounced 19 december,audio_40_85.mp3 +"2008 cheque no.502541 paid 19 january 2009 cheque no.502542 paidge capital services india ltd. ... ... vs. . On 30 november, 2011",audio_40_86.mp3 +24 february 2009 cheque no.502543 bounced 19 march 2009 no cheque not paid 2 april 2009 cheque no.502538 bounced cheque no.502539 bounced cheque no.502540 bounced,audio_40_87.mp3 +"table b payment made by the accused to the complainant in addittion to made by emi cheques. Date cheque no. Amount 11.8.2008 502544 Rs. 17,400/−",audio_40_88.mp3 +"16.09.2008 502545 Rs. 16,700/− 17.10.2008 330444 Rs. 16,700/− 24.12.2008 330445 bounced. 05.01.2009 330446 bounced. 28.01.2009 532746 Rs. 16,700/− 24 april 2009 534082 Rs. 50,000/− so,",audio_40_89.mp3 +it is very clear from the table a that due date of emi's was 19th of every month and cheques in question 502539 and 502540,audio_40_90.mp3 +were for the payment of emi of month october 2008 and november 2008 respectively. This is further corroborated by the cheques in question ex.cw1/b as,audio_40_91.mp3 +date mentioned on them were 20.10.2008 and 20.11.2008 respectively. From above discussion it is evident that cheques in question were for emi payment for month,audio_40_92.mp3 +of october 2008 and november 2008 respectively. A normal cheque can be presented within 6 months from its date of issuance but nature of emi,audio_40_93.mp3 +cheques is different. Emi cheques are issued only for the liability of a particular month i.e. Month in which the particular installment is due and,audio_40_94.mp3 +these cheques should be presented only in that particular month and should not be presented arbitrarily before or after that period. The reason is that,audio_40_95.mp3 +the payee has given consent that emi cheque will be used for the payment of installment of particular month and not for any other purpose.,audio_40_96.mp3 +"So, as the cheques in question were for the payment of emi for the month october 2008 and november 2008 they should have been presented",audio_40_97.mp3 +within those months respectively. Complainant presented the cheque no. 502539 in month of october 2008 and 502540 in month of november 2008 but both got,audio_40_98.mp3 +bounced. This fact can be observed from table a. The proper course for the complainant would have been that it should have filed the complainant,audio_40_99.mp3 +u/s 138 ni act at that time i.e. On dishonoring of cheques in question in month of october and november but it didge capital services,audio_40_100.mp3 +"india ltd. ... ... vs. . On 30 november, 2011",audio_40_101.mp3 +Shown by cheque returning memo ex.cw1/c and instituted the Cas. on dishonoring of cheques in question on presentation of the same in the month of,audio_40_102.mp3 +"april 2009. When cheques in question were presented in month of april 2009, it can be safely presumed that there was no liability on the",audio_40_103.mp3 +accused with respect to cheques in question as they were emi cheques for month of october 2008 and november 2008 respectively. Though it is the,audio_40_104.mp3 +rule of law as per the contract act 1872 that the creditor can appropriate the money paid by the debtor as per its own prerogative,audio_40_105.mp3 +"but S. 138 ni act being a penal provision which has to be strictly constructed, therefore, the payee cannot arbitrarily present it as per its",audio_40_106.mp3 +"own sweet will. Therefore, there was no legal liability on the accused to pay the cheque amount when the cheques in question were presented i.e",audio_40_107.mp3 +"april 2009. Also accused has raised the defence that even after dishonoring of the cheques in question, he made the payment in cash with respect",audio_40_108.mp3 +to 3 emis including the cheques in question and has produced the payment receipt which is ex.dw1/1 (osr). Ar accepted in cross examination the receiving,audio_40_109.mp3 +"of Rs. 50,000/€ but submitted that payment was received for other defaulted emi's with respect to which the cases have already been withdrawn. However, it",audio_40_110.mp3 +is pertinent to mention here that accused has brought nothing on the record to show as to against which of the defaulted emi's he made,audio_40_111.mp3 +the payment and even it has nowhere been brought on record by the complainant also as to in respect of which of the defaulted emis,audio_40_112.mp3 +"it has appropriated the payment. In such a situation, the court shall be guided by law of appropriation of payments as laid down under S. ",audio_40_113.mp3 +"59 to 61 of indian contract act, 1872 which is as follows:€ S. 59 states that:€ where a debtor, owing several distinct debts to one",audio_40_114.mp3 +"person, makes a payment to him, either with express intimation, or under circumstances implying that the payment is to be applied to the discharge of",audio_40_115.mp3 +"some particular debt, the payment, if accepted, must be applied accordingly. S. 60 states that:€ where the debtor has omitted to intimate and there are",audio_40_116.mp3 +"no other circumstances indicating to which debt the payment is to be applied, the creditor may apply it at his discretion to any lawful debt",audio_40_117.mp3 +"actually due and payable to him from the debtor, whether its recovery is or is not barred by the law in force for the time",audio_40_118.mp3 +"being as to the limitation of suits. S. 61 states that:€ where neither party makes any appropriation, the payment shall be applied in discharge of",audio_40_119.mp3 +"the debts in order of time, whether they are or are not barred by the law in force for the time being as to the",audio_40_120.mp3 +"limitation of suits. If the debts are of equal standing, the payment shall be applied in discharge of each proportionably. In this Cas. neither party",audio_40_121.mp3 +"has made any appropriation, therefore, as per S. 61 of indian contract act, the payment shall be applied in discharge of the debts in order",audio_40_122.mp3 +"of time.ge capital services india ltd. ... ... vs. . On 30 november, 2011",audio_40_123.mp3 +"Default in payment of 8 emi's i.e emi's of may 2008, july 2008, august 2008, september 2008, october 2008, november 2008, february 2009 and march",audio_40_124.mp3 +"2009. Before this cash payment of Rs. 50,000/€ the accused had already made 4 payments against defaulted emi's as shown in table b. Therefore, as",audio_40_125.mp3 +"per the mandate of S. 61 of indian contract act, these 4 payments shall be appropriated towards the defaulted emis in order of time i.e.",audio_40_126.mp3 +"Emi's due for month of may 2008, july 2008, august 2008 and september 2008. Similarly the later payment of Rs. 50,000/€ shall be appropriated towards",audio_40_127.mp3 +"the emis defaulted for month of october 2008, november 2008 and february 2009. Hence as per law of appropriation of payments, payment is deemed to",audio_40_128.mp3 +have been made by the accused with respect to cheques in question on 23.04.2009 and the legal notice of demand was send on 04.05.2009 as,audio_40_129.mp3 +per ex.cw1/e. Considering the evidence on record it stands proved that the accused has made the payment of the cheque amount even before the receipt,audio_40_130.mp3 +"of legal notice of demand. 16. Ld. Counsel for accused during final arguments relied upon the judgment of Hon'ble kerala HC viz. , ""sudha beevi",audio_40_131.mp3 +"vs. State of kerala"" in crl. M.c. No. 8638 of 2001. It is stated here that the judgment does not apply to the present Cas. ",audio_40_132.mp3 +as the facts of this judgment relate to a situation where the cheque was presented after the vehicle was repossessed. In the present Cas. the,audio_40_133.mp3 +vehicle was repossessed in september 2009 and sold in december 2009. The accused disputes this fact and states that the vehicle was repossessed in july€august,audio_40_134.mp3 +"2009 as is stated in his defence dated 23.08.2011. Even if the accused disputes the date of repossession, the present cheques are dated 20.10.2008 and",audio_40_135.mp3 +"20.11.2008, presented and returned unpaid vide return memo dated 17.04.2009 which is prior to the date of repossession if assumed to be in july or",audio_40_136.mp3 +"august. Hence, the aforesaid judgment of Hon'ble kerala HC does not apply to the facts and circumstances of the present Cas. . 17. In view",audio_40_137.mp3 +"of the aforesaid discussion, i am of the considered opinion that the complainant has not proved his Cas. against the accused. All the ingredients of",audio_40_138.mp3 +"S. 138 of NI Act have not been duly proved on record. Accordingly, accused sh. Paramjeet singh s/o sh. Asha singh is hereby acquitted",audio_40_139.mp3 +of the offence u/s 138 NI Act . Announced in the open court today i.e. 30.11.2011. (vipin kharb) mm: dwarka : 30.11.2011.ge capital services india,audio_40_140.mp3 +"ltd. ... ... vs. . On 30 november, 2011",audio_40_141.mp3 +"Mr. Madan S/O . Motichand gupta vs. videocon industries ltd on 29 november, 2012 author: t. V. Nalawade bench: t. V. Nalawade cri.w.p. No. ",audio_41_1.mp3 +"1074/11 1 in the HC at bombay appellate side, bench at aurangabad Crl. Wp. no. 1074 of 2011 mr. Madan s/o. Motichand gupta,",audio_41_2.mp3 +"age 42 years, occu. Business, r/o. Wz 16 and 17, nangli jalib, b-1, block, janak puti, new delhi-58. Proprietor of quick services. ....petitioner. vs. videocon",audio_41_3.mp3 +"industries ltd. A public Ltd. Co. having its registered office at 14 km stone paithan, district aurangabad and administrative office at auto cars compound, adalat",audio_41_4.mp3 +"road, aurangabad,mr. Madan S/O . Motichand gupta vs. videocon industries ltd on 29 november, 2012",audio_41_5.mp3 +"mr. Mukesh dwarkadas jariwala, age 42 years, occu. Service, r/o. Aurangabad. And branch office at 221, okhala industries phase-iii, new delhi-110020. ....respondent. Mr. G.g. Kadam,",audio_41_6.mp3 +"Adv. for petitioner. Mr. L.b. Pallod, Adv. for respondent. Coram : t. V. Nalawade, j. Reserved on : 21st november 2012 declared on : 29th",audio_41_7.mp3 +"november, 2012. Judgment : 1. Rule. Rule made returnable forthwith. Heard both sides by consent for final disposal. 2. The petition is filed under articles",audio_41_8.mp3 +"226 and 227 of constitution of india and also under S. 482 of Crl. procedure code (for short ""Cr.P.C. "") by the",audio_41_9.mp3 +"accused from s.c.c. No. 2032/2010, which is pending in the court of judicial magistrate, first class, aurangabad. The Cas. is filed by the respondent under",audio_41_10.mp3 +"S. 138 of NI Act (for short ""n.i. Act""). The Appl. at exh. 9 was filed for dismissal of the complaint under S. 203",audio_41_11.mp3 +"of Cr.P.C. by the petitioner/accused and it is rejected by J. m.f.c. In the Appl. at exh. 9, defence was taken that",audio_41_12.mp3 +the cheque was given by way of security and it is misused by the complainant. The other defence of absence of service of statutory notice,audio_41_13.mp3 +"was also taken. 3. In the present proceedings, the accused has contended that the court of J. m.f.c., aurangabad has no territorial jurisdiction in respect",audio_41_14.mp3 +"of offence described in the complaint. Some other grounds are also mentioned in the petition. In view of the nature of other defences taken, this",audio_41_15.mp3 +"court made it clear that only the ground of territorial jurisdiction can be considered at this stage. In the present proceedings, a relief of quashing",audio_41_16.mp3 +"the proceeding of Crl. Cas. is claimed. The relief of setting aside the order made by J. m.f.c. At exh. 9 is also claimed. Alternatively,",audio_41_17.mp3 +the relief is claimed for giving a direction to J. m.f.c. To return the complaint to complainant on the ground of want of territorial jurisdiction.mr.,audio_41_18.mp3 +"Madan S/O . Motichand gupta vs. videocon industries ltd on 29 november, 2012",audio_41_19.mp3 +"The quashing of the proceeding on the ground of want of territorial jurisdiction is not possible. In view of this circumstance, the Adv. for the",audio_41_20.mp3 +"petitioner argued mainly for alternative relief like for direction to return the complaint to complainant by holding that the court of J. m.f.c., aurangabad, has",audio_41_21.mp3 +"no territorial jurisdiction over the offence. 5. The contentions made in the complaint show that the complainant - Co. is a public Ltd. Co. , having",audio_41_22.mp3 +"registered office at chitegaon, tahsil paithan, district aurangabad. Its branch offices are at various places in india including aurangabad. The accused is proprietor of a",audio_41_23.mp3 +"Pvt. concern and he is doing business in delhi. At Para. No. 4 of the complaint, it is specifically contended that credit facility was given",audio_41_24.mp3 +"to the accused in delhi branch of complainant Co. and as against this facility, goods were supplied to the accused. As against these transactions, the",audio_41_25.mp3 +"amount of Rs. 5,09,643/- was due from accused to the complainant. It is contended that in discharge of this liability, the cheque in question was",audio_41_26.mp3 +issued by the accused. The cheque was drawn on the account of accused from a bank of delhi. This cheque was presented for encashment by,audio_41_27.mp3 +"the complainant in h.d.f.c. Bank, branch aurangabad. When the cheque bounced, statutory notice came to be given from aurangabad. In the notice the complainant asked",audio_41_28.mp3 +"the accused to make the payment of cheque amount at aurangabad, but during the period prescribed by law, such payment was not made and so",audio_41_29.mp3 +the complaint came to be filed. 6. It is the Cas. of the complainant that there is agreement between parties that the dispute about such,audio_41_30.mp3 +"transactions will be subject to the jurisdiction of aurangabad court. According to the complainant, such condition is mentioned in invoice prepared during the transaction. It",audio_41_31.mp3 +is also the Cas. of the complainant that intimation of bouncing of cheque was received at aurangabad. It is contended that as in the invoice,audio_41_32.mp3 +"there is aforesaid contention, as the cheque was deposited at aurangabad, as the intimation of bouncing of cheque was received at aurangabad, as statutory notice",audio_41_33.mp3 +"was given from aurangabad and as in the statutory notice the accused was directed to make payment at aurangabad, the court from aurangabad has jurisdiction",audio_41_34.mp3 +over the offence. Copies of some documents titled as 'tax invoice' are produced by the complainant in this proceeding. These documents show that the transactions,audio_41_35.mp3 +"shall be subject to aurangabad jurisdiction. Similarly, copy of notice sent by R.P. a.d. To the accused from aurangabad is produced by the complainant.",audio_41_36.mp3 +"7. On the ig other hand, it is the Cas. of the petitioner/accused that all the transactions took place at delhi. The accused has contended",audio_41_37.mp3 +"that the goods were supplied at delhi, the cheque bearing No. 004919, which was drawn on bank from delhi was handed over to the complainant",audio_41_38.mp3 +"at delhi, the bank from delhi must have been given intimation with regard to bouncing of cheque, even subsequent cheques in respect of the transactions",audio_41_39.mp3 +"were given on the same bank, the remaining cheques were deposited by the complainant for encashment in bank from delhi. Civ. suit in respect of",audio_41_40.mp3 +cheque in question is filed by the complainant for recovery of amount in a court from delhi and in that suit specific contention is made,audio_41_41.mp3 +"that the delhi court has jurisdiction as the transaction took place in delhi. At Para. No. 6 of the petition, the contention made in the",audio_41_42.mp3 +"suit at Para. No. 12 is quoted and itmr. Madan S/O . Motichand gupta vs. videocon industries ltd on 29 november, 2012",audio_41_43.mp3 +"""12. The defendant carry on business at delhi and the defendant reside at delhi. The goods were ordered and received by the defendant at delhi",audio_41_44.mp3 +"and payments with respect thereto were to be made at delhi. This Hon'ble court, therefore, has the territorial jurisdiction, to entertain and adjudicate the instant",audio_41_45.mp3 +"suit."" copy of plaint of the aforesaid suit is filed. Some record is filed to show that that subsequent cheque bearing No. 004920 given by",audio_41_46.mp3 +the accused to the complainant was presented to bank from delhi for encashment and it was honoured by the bank. It is the Cas. of,audio_41_47.mp3 +"the accused that in view of the aforesaid facts and circumstances, the J. m.f.c., aurangabad has no territorial jurisdiction over the offence. 8. On the",audio_41_48.mp3 +"aforesaid points, both the sides have cited some reported cases. Before going to the observations made by the apex court and high courts, it is",audio_41_49.mp3 +"desirable to see the relevant provisions in the aforesaid regard. 9. S. 177 of Cr.P.C. runs as under :- ""177.ordinary place of",audio_41_50.mp3 +"inquiry and trial.- every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed. "" the term",audio_41_51.mp3 +"""ordinarily"" used in S. 177 of Cr.P.C. shows that this is general provision, however, in this S. there is no reference to",audio_41_52.mp3 +other Ss. like Ss. 178 to 186 of Cr.P.C. which also govern the jurisdiction of the Crl. court in inquiries and trials,audio_41_53.mp3 +"and which are also placed in chapter xiii of Cr.P.C. thus, S. 177 of Cr.P.C. has left the place",audio_41_54.mp3 +open for trial. It is settled law that aforesaid subsequent provisions are not to be treated as the only exceptions to S. 177 of code,audio_41_55.mp3 +of Crl. procedure [relied on air 1961 SC 1589 (purushottamdas dalmia vs. State of west bengal)]. In the landmark Cas. reported as air 1999,audio_41_56.mp3 +"SC 3762 [k. Bhaskaran vs. Sankaran vaidhyan balan and anr.] also, it is laid down that the word ""ordinarily"" used in S. 177 indicates",audio_41_57.mp3 +that the rule is not invariable in all cases. 10. In the landmark Cas. of k. Bhaskaran cited supra the apex court has observed that,audio_41_58.mp3 +"following five acts are the components of the offence punishable under S. 138 of n.i. Act :- (i) drawing of the cheque, (ii) presentation of",audio_41_59.mp3 +"the cheque to the bank, (iii) returning the cheque unpaid by the drawee bank, (iv) giving notice in writing to the drawer of the demanding",audio_41_60.mp3 +"ofmr. Madan S/O . Motichand gupta vs. videocon industries ltd on 29 november, 2012",audio_41_61.mp3 +(v) failure of the drawer to make payment within 15 days of the receipt of the notice. 11. At Para. No. 11 of the aforesaid,audio_41_62.mp3 +"landmark Cas. of k. Bhaskaran, the apex court has laid down that the offence is completed only when there is failure of the drawer of",audio_41_63.mp3 +the cheque to pay the cheque amount within 15 days of receipt of notice. In this Cas. and the Cas. reported as 2009 cri.l.j. 1109,audio_41_64.mp3 +(SC ) [m/s. Harman electronics (p) ltd. & anr. Vs. M/s. National panasonic india ltd.] the law with regard to statutory notice mentioned in S. ,audio_41_65.mp3 +"138 of n.i. Act is interpreted. It is observed that for filing of the complaint, some procedure is required to be followed by the complainant,",audio_41_66.mp3 +"which includes sending of notice. But, in view of the provision of S. 138 of n.i. Act, the offence does not become complete unless and",audio_41_67.mp3 +"until the period given for making payment of the cheque amount after receipt of notice is over. In k. Bhaskaran's Cas. , it is observed by",audio_41_68.mp3 +the apex court that it is normally difficult to fix up particular locality as a place of failure to pay the amount covered by the,audio_41_69.mp3 +"cheque and a place for that purpose would depend upon a variety of the factors. In view of this difficulty, the apex court went on",audio_41_70.mp3 +discussing the components of the offence and observed that these five components can be considered for determination of the jurisdiction of the court. It is,audio_41_71.mp3 +further observed that it is not necessary that all the above five acts should have been perpetrated at the same locality. It is observed that,audio_41_72.mp3 +"it is possible that each of these five acts could be done at different locality, but concatenation of all the above five is sine qua",audio_41_73.mp3 +"non for the completion of the offence punishable under S. 138 of n.i. Act. After making this observation, the apex court discussed the provision of",audio_41_74.mp3 +S. 178 (d) of Cr.P.C. and the apex court laid down that in view of S. 178 (d) of code of Crl. ,audio_41_75.mp3 +"procedure , the court exercising jurisdiction in one of the five local areas, where the aforesaid five acts were done, can become the place of",audio_41_76.mp3 +"trial for the offence under S. 138 of n.i. Act. 12. In view of the aforesaid discussion made by the apex court, it becomes duty",audio_41_77.mp3 +"of the Crl. court to ascertain, where the payment of the amount covered by the cheque was to be made. If it is difficult for",audio_41_78.mp3 +"the court to fix up particular locality as the place of occurrence of offence on the basis of such criteria, then the court is expected",audio_41_79.mp3 +to follow the procedure laid down by the apex court in k. Bhaskaran's Cas. . The apex court has referred S. 178 (a) and even S. ,audio_41_80.mp3 +179 of Cr.P.C. in this regard. S. 178 (a) of Cr.P.C. runs as under :-mr. Madan S/O .,audio_41_81.mp3 +"Motichand gupta vs. videocon industries ltd on 29 november, 2012",audio_41_82.mp3 +"An offence was committed, or"" S. 178 (d) of Cr.P.C. runs as under :- ""(d) where it consists of several acts done",audio_41_83.mp3 +"in different local areas, it may be inquired into or tried by a court having jurisdiction over any of such local areas."" thus, as provided",audio_41_84.mp3 +"in S. 178 (a) of Cr.P.C. , when there is no certainty about the place, where the offence was committed, the court",audio_41_85.mp3 +"can take recourse of S. 178 (d) and by using both these Ss. and the aforesaid five components, the court can ascertain as to which",audio_41_86.mp3 +"court can have local jurisdiction over the offence. 13. In the present Cas. , the relevant facts are already quoted. The record and the submissions are",audio_41_87.mp3 +"sufficient to infer that the transaction took place at delhi, the credit facility was given to the accused in delhi branch of the complainant Co. ",audio_41_88.mp3 +"and so the payment in respect of goods purchased was to be made at delhi and for making the payment, the cheque was given in",audio_41_89.mp3 +"delhi. On the basis of these facts, inference is easy in the present Cas. that the court from delhi has jurisdiction over the offence. Only",audio_41_90.mp3 +"because there is the mention in invoice like ""the dispute will be subject to aurangabad jurisdiction"", inference is not possible that offence was committed in",audio_41_91.mp3 +"aurangabad. In this regard also, the law is developed and it is being discussed hereinafter. 14. If we consider five components mentioned in k. Bhaskaran's",audio_41_92.mp3 +"Cas. one by one, in the present Cas. , it is not possible to hold that J. m.f.c. Aurangabad has jurisdiction over the offence. 15. The",audio_41_93.mp3 +"first component is ""drawing of the cheque"". In the present Cas. the cheque was drawn on account of the accused from a bank of delhi.",audio_41_94.mp3 +"The second component is ""presentation of the cheque to the bank"". This point is discussed by the apex court in the Cas. reported as 2001",audio_41_95.mp3 +bom.c.r.(cri.) 419 [ishar alley steels ltd. Vs. Jayaswals neco Ltd. ]. K. Bhaskaran's Cas. was decided on 29.9.1999 and ishar alley's Cas. was decided on 22.2.2001.,audio_41_96.mp3 +Though the point involved in ishar alley's Cas. was different viz. In which bank the cheque should be deposited within a prescribed period of six,audio_41_97.mp3 +"months for encashment, whether it is the bank of the drawer or the bank of payee, the second component is a part of this point.",audio_41_98.mp3 +"In view of the ratio of ishar alley's Cas. , it needs to be presumed that the cheque needs to be presented in the bank of",audio_41_99.mp3 +drawer for the compliance of requirement of second component. In ishar alley's Cas. it is made clear that for encashment the payee may present the,audio_41_100.mp3 +"cheque in his own bank, collecting bank, but that bank is not referred in S. 138 of n.i. Act. Third component is ""returning the cheque",audio_41_101.mp3 +"unpaid by the drawee bank"". In this regard also, it needs to be presumed that it refers to bouncing of cheque in the bank where",audio_41_102.mp3 +"the accused had the account. Thus, the component nos. (ii) and (iii) in the present Cas. had the place, delhi. Only because the cheque was",audio_41_103.mp3 +"presented at the bank from aurangabad by the complainant, the place for component nos. (ii) and (iii) cannot become aurangabad.mr. Madan S/O . Motichand",audio_41_104.mp3 +"gupta vs. videocon industries ltd on 29 november, 2012",audio_41_105.mp3 +"Payment of cheque amount"". This component has two parts. It is mandatory for the complainant to give statutory notice to make the demand of cheque",audio_41_106.mp3 +"amount. However, this component does not give liberty to the complainant to change the place, where the amount was to be paid under the transaction.",audio_41_107.mp3 +"On this point, there is the Cas. of harman electronics cited supra. This Cas. was decided on 12.12.2008. The Adv. of complainant placed reliance on",audio_41_108.mp3 +the decision of the apex court given in Crl. appeal No. 1715/2008 [smt. Shamshad begum vs. B. Mohammed]. This Cas. was decided by the apex,audio_41_109.mp3 +court on 3.11.2008. In shamshad begum's Cas. the complainant changed his address and shifted to manglore from banglore. He had sent statutory notice from manglore,audio_41_110.mp3 +"and in view of this peculiar circumstance, the apex court held that manglore court can also have jurisdiction. The apex court referred the landmark Cas. ",audio_41_111.mp3 +"of k. Bhaskaran cited supra. In any Cas. , in subsequently decided Cas. viz. Harman electronics cited supra at Para. No. 14, the apex court has",audio_41_112.mp3 +"laid down that issuance of notice would not by itself give rise to cause of action, but the communication of the notice would. The facts",audio_41_113.mp3 +"of the Cas. harman electronics cited supra show that only on the basis of notice sent from a particular place, delhi, the complaint was filed",audio_41_114.mp3 +at delhi. The transaction had taken place at chandigarh and the payment was also to be made as per transaction in chandigarh. The cheque was,audio_41_115.mp3 +"drawn on a bank from chandigarh and there was the facility with this bank to encash the cheque there. In view of these circumstances, the",audio_41_116.mp3 +"apex court held that only because the notice was given from delhi, the jurisdiction cannot be given to the court from delhi. Harman electronics' Cas. ",audio_41_117.mp3 +"is referred and discussed by division bench of this court in the Cas. reported as 2010 (3) mh.l.j. 234 [ preetha S. babu, ernakulum vs.",audio_41_118.mp3 +"Voltas ltd., chochin and anr.]. The division bench of this court has held that on the aforesaid point, the ratio of harman electronics is binding",audio_41_119.mp3 +"on the courts. The facts of harman electronics are very much similar to the facts of present Cas. . So, even if the fourth component it",audio_41_120.mp3 +"is considered, it cannot be said that due to giving of notice from aurangabad, the court from aurangabad has got jurisdiction over the offence. 17.",audio_41_121.mp3 +"Fifth component is that ""failure of the drawer to make payment within 15 days of the receipt of notice"". It is already observed that as",audio_41_122.mp3 +"per the transaction, the payment was to be made in delhi in the credit account opened for the accused in delhi branch of the complainant.",audio_41_123.mp3 +"Thus, the place of payment was fixed and this component is also not in favour of the complainant. The complainant made the demand to the",audio_41_124.mp3 +accused in the statutory notice and asked him to make payment at aurangabad. Such a situation is also discussed by the apex court in harman,audio_41_125.mp3 +"electronics' Cas. cited supra. Para. nos. 24 and 25 of the reported Cas. are relevant in this regard. Those are as under :- ""24. Indisputably",audio_41_126.mp3 +"all statues deserve their strict Appl. , but while doing so the cardinal principles therefor cannot be lost sight of. A court derives a jurisdiction only",audio_41_127.mp3 +when the cause of action arose within his jurisdiction. The same cannot be conferred by any act of omission or commission on the part of,audio_41_128.mp3 +"the accused. A distinction mustmr. Madan S/O . Motichand gupta vs. videocon industries ltd on 29 november, 2012",audio_41_129.mp3 +"Of the offence. While issuance of a notice by the holder of a negotiable instrument is necessary, service thereof is also imperative. Only on a",audio_41_130.mp3 +"service of such notice and failure on the part of the accused to pay the demanded amount within a period of 15 days thereafter, commission",audio_41_131.mp3 +"of an completes. Giving of notice, therefore, cannot have any precedent over the service it is only from that view of the matter in dalmia",audio_41_132.mp3 +"cement (bharat) ltd. vs. galaxy traders & agencies ltd., [(2001) 6 scc 463] emphasis has been laid on service of notice. 25. We cannot, as",audio_41_133.mp3 +"things stand today, be oblivious of the fact that a banking institution holding several cheques signed by the same borrower cannot only present the cheque",audio_41_134.mp3 +for its encashment at four different places but also may serve noties from four different places so as to enable it to file four complaint,audio_41_135.mp3 +"cases at four different places. This only causes grave harassment to the accused. It is, therefore, necessary in a Cas. of this nature to strike",audio_41_136.mp3 +"a balance between the right of the complainant and the right of an accused viz-a-viz the provisions of the Cr.P.C. ."" so, place",audio_41_137.mp3 +"of payment fixed by transaction cannot be ordinarily changed by subsequent acts like notice. 18. For complainant, reliance was placed on some more reported cases.",audio_41_138.mp3 +"The cases are as follows :- (i) 1993 cri.l.j. 680 bombay [rakesh nemkumar porwal vs. Narayan dhondu HC joglekar and anr.], (ii) 2010 (3)",audio_41_139.mp3 +"mh.l.j. 246 bombay HC , [crompton greaves ltd., mumbai vs. Shivam traders, thane and ors.], (iii) 2012 (2) mh.l.j. 780 bombay HC [mahindra and",audio_41_140.mp3 +"mahindra financial services ltd., nagpur vs. Nitin s/o. Vishnupant thakre], (iv) 2011 (4) mh.l.j. 275 bombay HC [asr systems pvt. Ltd. New delhi and",audio_41_141.mp3 +anr. Vs. Kimberly clark hygiene products] and (v) 2011 (1) dcr 78 bombay HC [m/s. Sai auto agencies vs. Sheikh yusuf sheikh umar]. Copy,audio_41_142.mp3 +"of decision given by this court in Crl. Wp. No. 30/2011 [rajendra marga gaikwad vs. Kail Ltd. ] bombay HC , aurangabad bench, is also",audio_41_143.mp3 +produced. It is already observed that facts of each and every Cas. are always different. It is up to the court to ascertain as to,audio_41_144.mp3 +which court will have jurisdiction over a particular offence. The ratios laid down in this regard are already discussed.mr. Madan S/O . Motichand gupta,audio_41_145.mp3 +"vs. videocon industries ltd on 29 november, 2012",audio_41_146.mp3 +Has no jurisdiction over the offence described in the complaint filed by the respondent. So the order. Order (i) petition is allowed. (ii) process issued,audio_41_147.mp3 +"by the judicial magistrate, first class, aurangabad at exh. 9 in s.c.c. No. 2032/2010 is hereby quashed and set aside. (iii) after receipt of this",audio_41_148.mp3 +"order, within four weeks from that day, the magistrate is to return the complaint to the complaint along with entire record for presentation before competent",audio_41_149.mp3 +court having jurisdiction. (iv) the complainant may file the complaint before magistrate having jurisdiction within two weeks thereafter. (v) the complainant will be at liberty,audio_41_150.mp3 +"to move the magistrate for refund of court fee and refund is to be given to the complainant. (vi) to see that the process, if",audio_41_151.mp3 +"any, issued in future by the competent judicial magistrate (first class), is served on the accused, the accused to supply his e-mail address and postal",audio_41_152.mp3 +address and he changes the address and such address may be used by the complainant for service of summons. Rule made absolute in aforesaid terms.,audio_41_153.mp3 +"[ t. V. Nalawade, j. ] ssc/mr. Madan S/O . Motichand gupta vs. videocon industries ltd on 29 november, 2012",audio_41_154.mp3 +"Padmavathi.m vs. rajshekar on 12 march, 2021 in the court of the xxiii addl.chief metropoliton magistrate, nrupathunga road, bengaluru city dated this the 12th day",audio_42_1.mp3 +"of march - 2021 present: sri. Shridhara.m, b.a., ll.m., xxiii addl.c.m.m., bengaluru city. C.c.no.704/2018 judgment under S. 355 of Cr.P.C. complainant :",audio_42_2.mp3 +"padmavathi.m, w/o.chikkanna.v, aged about 48 years, r/at no.39/1, 4th main road, behind masjid, vidyaranyanagara, magadi road, bengaluru-23. (rep. By sri.mahadeva, adv.) v/s accused : rajshekar,",audio_42_3.mp3 +"s/o.narayanaswamy, aged about 55 years, r/at. Old no.107, new no.11, 3rd main, sanjeevani nagar, nagarabhavi main road, moddalapalya, bengaluru-72. (rep.by sri.b.v.manjunatha gowda, adv.) offence complained",audio_42_4.mp3 +of : u/S. 138 of NI Act . Plead of the accused : not guilty. Final order : accused is acquitted. Date of order :,audio_42_5.mp3 +"12.03.2021. (shridhara.m) xxiii addl.cmm., bengaluru. Judgment 2 c.c.no.704/2018 judgment the complainant has presented the instant complaint against the accused on 20.11.2017 under S. 200 of",audio_42_6.mp3 +"Cr.P.C. for the offence punishable under S. 138 of NI Act , for dishonour of cheque of rs.10 lakhs.padmavathi.m vs. rajshekar on",audio_42_7.mp3 +"12 march, 2021",audio_42_8.mp3 +"The complainant has pleaded that, her husband and son are auto drivers by profession and she has her own business of selling fruits and dry",audio_42_9.mp3 +fruits since 25 years continuously apart from doing tailoring business at home and had save money without making any unwanted expenditure and residing in the,audio_42_10.mp3 +"above said address since 20 years. The complainant has averred that, the accused was her relative and residing in the cause title address, being aware",audio_42_11.mp3 +"about her financial condition, the accused approached the complainant in the month of january, 2015, for financial support of rs.10 lakhs stating that, his son",audio_42_12.mp3 +"wants to start a business and for which, he pressurized the accused to arrange money for the same, otherwise he will commit suicide. However, the",audio_42_13.mp3 +"complainant stated, she needs time to think as she needs to approach and judgment 3 c.c.no.704/2018 discuss with her husband and son before confirming the",audio_42_14.mp3 +"same, as it was huge amount and cannot take decision individually. The complainant has further contended that, though she told him that, she needs time,",audio_42_15.mp3 +"the accused once again had approached her in the same month in order to convince her, by fell on the foot of complainant and weeped",audio_42_16.mp3 +"requested for help to his son to start business by providing financial support, if she did so, would remember throughout life and assured to repay",audio_42_17.mp3 +"the same within one year. The complainant has further alleged that, she managed to convince her husband and son and approved to help the accused",audio_42_18.mp3 +"financially to start the business of S/O accused and paid rs.10 lakhs i.e., rs.3,10,000/- by way of cheque from her savings account maintained at",audio_42_19.mp3 +"karnataka bank, and sum of rs.6,90,000/- by way of cash in the month of march, 2015 as hand loan. After receiving the said amount, the",audio_42_20.mp3 +"accused executed an agreement in favour of complainant and promising to repay the same within one year. The complainant has further alleged that, as agreed,",audio_42_21.mp3 +"the accused has not repaid the loan within stipulated period, when the complainant approached accused demanded for repayment, then judgment 4 c.c.no.704/2018 he took additional",audio_42_22.mp3 +"period of one year, as his son's business was pick up and considering the situation the complainant has consented, as he would repay without fail.",audio_42_23.mp3 +"The complainant has further contended that, even then, the accused after lapse of additional period of one year not keep up his promise and on",audio_42_24.mp3 +"repeated requests and demand of the complainant, the accused had issued a cheque bearing no.518954 dated:12.09.2017 for sum of rs.10 lakhs drawn on state bank",audio_42_25.mp3 +"of india in favour of complainant with promised to honour the said cheque. When she presented the said cheque for encashment with her banker viz.,",audio_42_26.mp3 +"Corp. bank, rpc layout branch,padmavathi.m vs. rajshekar on 12 march, 2021",audio_42_27.mp3 +"Dated:16.09.2017 for the reasons ""exceeds arrangement"". The same also informed by her to the accused, but he not reciprocated. Since, the complainant has failed to",audio_42_28.mp3 +"get back the loan from the accused, hence, on 13.10.2017 she got issued legal notice to the accused through her counsel by way of review",audio_42_29.mp3 +"petition a.d., demanding him to repay the said loan, but the same got returned with shara stating 'door lock'. Thereby, he committed the offence punishable",audio_42_30.mp3 +"under S. 138 of NI Act . Hence, filed the present complaint. Judgment 5 c.c.no.704/2018 3. After receipt of the Pvt. complaint, my predecessor in",audio_42_31.mp3 +office took the cognizance and got registered the pcr and recorded the sworn statement. Since made out prima-facie grounds to proceed against the accused for,audio_42_32.mp3 +"the alleged offence, got issued process. 4. In response to the summons, the accused appeared through his counsel and obtained bail. As required, complaint copy",audio_42_33.mp3 +"was supplied to the accused. Thereafter, accusation was read over and explained to him, wherein, he denied the same and claimed to have the defence.",audio_42_34.mp3 +"5. To prove the Cas. of the complainant, she herself choosen to examined as pw.1 and got marked exs.p1 to p6(a). The pw.1 partly cross-examined",audio_42_35.mp3 +"by the accused counsel and when the Cas. stage was set for further cross-examination of pw.1, the Adv. for accused not further cross-examined the pw.1.",audio_42_36.mp3 +"Hence, further cross-examination of pw.1 from the side of accused taken as nil. 6. Thereafter, incriminating evidence made against the accused was recorded under S. ",audio_42_37.mp3 +"313 of cr.p.c, wherein the accused denied the same and answer given by him was recorded. In this Cas. , the accused not choosen to enter",audio_42_38.mp3 +into witness box and also not produced any document. Judgment 6 c.c.no.704/2018 7. I have heard the arguments of complainant counsel. Accused counsel has not,audio_42_39.mp3 +"addressed his side arguments. Inspite of given liberty to file his written arguments, but the accused counsel has not submitted his written arguments. 8. On",audio_42_40.mp3 +"going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination: 1) whether the complainant",audio_42_41.mp3 +"proves beyond the reasonable doubt that, in the month of march, 2015, she paid in all rs.10 lakhs by way of cheque as well as",audio_42_42.mp3 +"cash to thepadmavathi.m vs. rajshekar on 12 march, 2021",audio_42_43.mp3 +"The ex.p1-cheque bearing no.518954, dated:12.09.2017 for rs.10 lakhs, drawn on state bank of india? 2) whether the complainant proves beyond the reasonable doubt that, she",audio_42_44.mp3 +complied the mandatory provision under S. 138(b) of NI Act ? 3) whether the complainant proves the guilt of the accused for the offence punishable,audio_42_45.mp3 +"under S. 138 of NI Act ? 4) what order? 9. On appreciation of materials available on record, my findings on the above points are",audio_42_46.mp3 +as under: point no.1 : in the negative point no.2 : in the negative point no.3 : in the negative judgment 7 c.c.no.704/2018 point no.4,audio_42_47.mp3 +": as per final order, for the following: reasons 10. Point nos.1 to 3: since all these points are connected with each other, they have",audio_42_48.mp3 +taken together for common discussion in order to avoid repetition of facts. The pw.1 to prove her Cas. choosen to examined herself and filed Aff. ,audio_42_49.mp3 +"by reiterating the complaint averments in toto, and produced the documents at exs.p1 to p6(a), they are: a) ex.p1 is the cheque bearing no.518954 issued",audio_42_50.mp3 +"by the accused for sum of rs.10 lakhs dated:12.09.2017, drawn on state bank of india, rajajinagar industrial estate branch, bengaluru. B) ex.p1(a) is the alleged",audio_42_51.mp3 +signature of accused. C) ex.p2 is the bank memo dated:16.09.2017. D) ex.p3 is the legal notice dated:11.11.2017. E) ex.p4 is the postal receipt. F) ex.p5,audio_42_52.mp3 +is the unserved R.P. a.d cover. G) ex.p5(a) is the legal notice at ex.p5. H) ex.p6 is the Pvt. complaint. I) ex.p6(a) is the,audio_42_53.mp3 +"signature of complainant.padmavathi.m vs. rajshekar on 12 march, 2021",audio_42_54.mp3 +"Further cross- examination of pw.1, the Adv. for accused not further cross- judgment 8 c.c.no.704/2018 examined the pw.1. Hence, further cross-examination of pw.1 from the",audio_42_55.mp3 +"side of accused taken as nil, with that the complainant got closed her side. 12. Thereafter, whatever the incriminating evidence made against the accused was",audio_42_56.mp3 +"read over and explained to him as required under S. 313 of Cr.P.C. , wherein, he denied the same and gave his",audio_42_57.mp3 +"statement that: ""€□□‚ ƒ„ ……… □□□2 †‡‚ ˆˆ‰š…… ‚ , ‹‚□ … œ‡‚… ‚ , 20 □‡ž„ ‹□□š‚ž‚. ‘’‡ ‡‡□… □□□10,000/- ž„ž‚… … ‡□ž‚ž, “‚‚□žž",audio_42_58.mp3 +"’œ ‘”‚ 1 •† ˆ‡‡…… ……… ˆˆ‰š…… … ………‡‚ €”‚…‡□‡”‚‚□□, ˆˆ‰š ƒ‡ ‘□□ □□□40,000/- ……ž …ˆ”††. –‚□ ……… “‚‚□š •† ˆ‡‡…… … €”‚…, “□□ ‘”",audio_42_59.mp3 +"„ €‚‡□— ‚•†’‚□. ˆ‡˜… ‘□□ …ˆ”†… “‚‚…††."" ’…„… 13. In this Cas. , the accused has not choosen to enter into witness box and also not",audio_42_60.mp3 +"produced any document, in order to prove his defence evidence. 14. On going through the rival contentions of the parties, it made clear that, the",audio_42_61.mp3 +"accused in this Cas. has seriously attack on the claim put forth by the complainant. On going through the materials it discloses, the complainant has",audio_42_62.mp3 +"brought the present Cas. against the accused based on the questioned cheque at judgment 9 c.c.no.704/2018 ex.p1. Therefore, it is needs to draw the presumption",audio_42_63.mp3 +"as per Ss. 118 and 139 of NI Act . As per S. 118(g), it shall be presume that, unless the contrary is prove, the",audio_42_64.mp3 +"holder of the cheque, the complainant received the cheque for discharge of legal liability. This presumption is rebuttable. Accordingly, Ss. 139 and 138 of negotiable",audio_42_65.mp3 +"instruments act, it also requires to presume that, cheque was drawn for discharge of liability of drawer, it is presumption under law. Therefore, it made",audio_42_66.mp3 +"clear that, by virtue of the above said Ss. stated, it made clear that, it requires to draw statutory presumption in favour of complainant that,",audio_42_67.mp3 +"in respect of discharge of existence of legally recoverable debt, the accused got issued the ex.p1-cheque unless and until contrary prove. Therefore, as per those",audio_42_68.mp3 +"Ss. , it made clear that, it is the initial onus on the accused to prove his Cas. based on the principles of 'preponderance of probabilities'.",audio_42_69.mp3 +"It is require to cite the decision reported in air 2010 scc 1898, in a Cas. between rangappa v/s mohan. Wherein, the Hon'ble apex court",audio_42_70.mp3 +"pleased to observed that, the obligation on the prosecution may be discharged with the help of presumption of law or facts unless the accused adduce",audio_42_71.mp3 +"evidence showing the reasonable probability of non-existence or presumed fact.padmavathi.m vs. rajshekar on 12 march, 2021",audio_42_72.mp3 +"The non-existence of consideration by raising probable defence. If accused is able to discharge the initial onus of proof of showing that, the existing of",audio_42_73.mp3 +"consideration was improbably or adverse or the same was illegal, the onus would shift to the complainant, who will be obliged to prove it as",audio_42_74.mp3 +"a matter of fact, and upon its failure to prove would dis-entitle his to grant the relief on the basis of NI Act . The",audio_42_75.mp3 +burden on the accused of proving the non-existence of consideration can either direct or by bringing on record the preponderance of probabilities by referring to,audio_42_76.mp3 +"the circumstances upon which, he relies could bare denial of passing consideration apparently does not appears to be any defence. Something which is probable has",audio_42_77.mp3 +"to be brought on record for getting benefit of shifting the onus of proving to the complainant. To disprove the presumption, the accused has to",audio_42_78.mp3 +"bring on record such facts and circumstances upon the consideration of which the court may either believe that, consideration did not exist or its non-existence",audio_42_79.mp3 +"was so probable that, a prudent man would, under the circumstances of the Cas. , act upon that, it did not exist. Therefore, it made clear",audio_42_80.mp3 +"that, the accused need to take the probable defence mere denial is not enough. Judgment 11 c.c.no.704/2018 15. On going through the provisions referred supra,",audio_42_81.mp3 +"it made clear that, whereas the presumption must prove that, guilt of accused beyond the reasonable doubt. The standard or proof so as to prove",audio_42_82.mp3 +"a defence on the part of the accused is 'preponderance of probabilities'. Inference of 'preponderance of probabilities' can be drawn, not only from the materials",audio_42_83.mp3 +"brought on record by parties, but also by reference to the circumstances upon which he relies. 16. On going through the above authorities as well",audio_42_84.mp3 +"as dictums, it made clear that, it is the initial burden on the accused to prove his probable defence in order to rebut the statutory",audio_42_85.mp3 +"presumption as well as the Cas. put forth by the complainant. Therefore, whatever the initial statutory presumption has to be drawn in favour of complainant",audio_42_86.mp3 +"that, the said cheque was issued by the accused for discharge of existence of legally recoverable debt, unless and until contrary prove. 17. Whereas, the",audio_42_87.mp3 +"accused in the present Cas. on record, after his appearance has attack on the claim of complainant by way of resistance. In that line choosen",audio_42_88.mp3 +to cross-examined the pw.1 and able to extract some admission with regard to other transaction held between complainant and accused. The accused in the judgment,audio_42_89.mp3 +"12 c.c.no.704/2018 course of cross-examination of pw.1 in part, almost covered his probable defence, therefore, not further cross-examined the pw.1 would not debar the defence",audio_42_90.mp3 +"of the accused. Thereafter, in the line of his defence, he gave his statement as reproduced above. Throughout the Cas. , the accused has attack on",audio_42_91.mp3 +the claim of complainant by denying the alleged borrowing of loan including the denial of relationship between them and issuance of questioned cheque for repayment,audio_42_92.mp3 +"of the alleged loan of rs.10 lakhs and denied the service of legal notice to the accused. However, it is an appropriate to cite the",audio_42_93.mp3 +decisions of the Hon'ble SC in (2008) 2 SC cases (Crl. ) 166 (krishna janardhan bhat v/s. Dattatraya g hegde) and 2010 air scw,audio_42_94.mp3 +"2946 (rangappa v/s. Mohan).padmavathi.m vs. rajshekar on 12 march, 2021",audio_42_95.mp3 +"Envisage under S. 139 of NI Act by setting up a probable Cas. . As such, there is no strict rule that, the accused should",audio_42_96.mp3 +enter into the witness box in support or proof of his defence. The accused has got every right to prove his defence from the cross-,audio_42_97.mp3 +"examination of pw.1 or the materials already brought on record. It is also held that, the standard of evidence be to led by the accused",audio_42_98.mp3 +"is preponderance of probabilities and no proof beyond reasonable judgment 13 c.c.no.704/2018 doubt. On the contrary, for the complainant he should prove his Cas. beyond",audio_42_99.mp3 +"all reasonable doubt"". 18. As per the said dictum, the accused need not require to enter in to the witness box to prove his probable",audio_42_100.mp3 +"defence, but he can prove his defence by way of cross-examining the pw.1 and relied upon the documents of the complainant. From the point of",audio_42_101.mp3 +"above dictum, the non entering into the witness box by the accused is not a ground or hindrance to his probable defence. Therefore, whatever the",audio_42_102.mp3 +defence placed by the accused by way of oral say through pw.1 is to be appreciated. 19. On going through the defence taken by the,audio_42_103.mp3 +"accused as found in his statement while record 313 of Cr.P.C. , he specifically has stated that, he joined chit for rs.2",audio_42_104.mp3 +"lakhs with the complainant, the monthly premium was rs.10,000/- and duration of the same was 20 months. When he bid the chit, the complainant took",audio_42_105.mp3 +"his one signed blank cheque, but not even paid the balance chit amount of rs.40,000/-, but misusing his signed blank cheque, filed the false Cas. .",audio_42_106.mp3 +"The legal notice is not served on him, hence, he is not liable to pay the amount covered under the cheque. Therefore, it made clear",audio_42_107.mp3 +"that, as contended by the accused, it is him to establish the complainant has run the chit, wherein accused was the subscriber. Judgment 14 c.c.no.704/2018",audio_42_108.mp3 +"20. During the 3rd para of cross-examination of pw.1, when enquired by the accused as to she run the chit, she deposed, she not did",audio_42_109.mp3 +"the chit business. Contrary to her previous statement gave so, in the further cross-examination, she specifically deposed that: ""™vš›œ ‘…•‡□□ dg□žÿ ¡šuœž dvœ¢œ pœ£l£a¤ ¢œ¢œu□",audio_42_110.mp3 +"¥œjzœaiœ£¦š§£vœ£ jazœg□ ¨œj. ™vš ¦œ£vœ£© dp□aiœ£ uœaqœ ªdaiœ£¥œ«gœzœ¬- ¥š®¥œ¯j ¦š°¥šgœ ¦œišqœ£vš©g□ jazœg□ ¨œj. D ¨œazœ±œs²zœ¬- ¢š¢œ£ aÿn ¦œ°¦œ¡šgœ ¦œišqœ£w©zœ£³, dg□žÿ §£azœ mazœ£ aÿn ™vš´azœ jgœqœ£",audio_42_111.mp3 +"aÿn vœµš ¢š™£¶ ™pœ·p□¶ ¨□ÿj¸p□žarzœ³□ jazœg□ ¨œj. D aÿnaiœ£ ¨œzœ¨œ°jazœ, ¢š¢œ£ ¡œt ¥š¦œwaiœ£ ±œszœ¹v□ušv ¨œº ¦œišrzœavœ¡œ sš¬ z□pœ£¶uœ›œ¢œ£» ¥œq□zœ£p□žarz□³ÿ¢□azœg□ ¨œjaiœ£™-. Dg□žÿ ¦œ£vœ£© ™vš´azœ, sš¬ z□pœ£¶uœ›œ¢œ£»",audio_42_112.mp3 +¥œq□zœ£p□žarz□³ÿ¢□azœg□ ¨œjaiœ£™-. Dg□žÿ gœž.3 ™pœ·zœ ¡œvœ£© ¨šªgœp□¶ ¡œgšf¢œ¬- pœžvzœ³gœ£ jazœg□ ¨œjaiœ£™-. D ¡œt ¥š¦œw ±œszœ¹v□ušv dg□žÿ §£azœ ® 1 gœ z□pœ¶¢œ£» ¥œq□ ¼z□³ÿ¢□ jazœg□ ¨œjaiœ£™-.,audio_42_113.mp3 +"¢š¢œ£ aÿnaiœ£ ¦œ°¦œ¡šgœzœ¬- ¢œ½œ¾¦œ¢œ£» ¡□ža¼zœ pšgœt dg□žÿ ¦œ£vœ£© ™vš›œ ªgœ£zœ³ ¡□a¿¢œ ¦□žvœ©p□¶ z□pà ±á¢àâ ¥œ¹pœgœtpadmavathi.m vs. rajshekar on 12 march, 2021",audio_42_114.mp3 +"21. On going through the said testimony of pw.1, she categorically admitted that, the accused and her family came to know about her through one",audio_42_115.mp3 +"smt.latha. She also deposed, the judgment 15 c.c.no.704/2018 said smt.latha and her husband did panipuri business at vijayapura. She categorically admitted, by that time, the",audio_42_116.mp3 +"complainant was did chit business. More categorically she admitted that, she got joined the accused for one chit and smt.latha for 2 chits for rs.4",audio_42_117.mp3 +"lakhs. By deposing so, the pw.1 has categorically admitted, she was run the chit business, as contended by the accused. It is also significant fact",audio_42_118.mp3 +"to note that, wherein accused was also subscriber for the chit with the complainant. But she denied the suggestion made by the accused counsel that,",audio_42_119.mp3 +"in respect of the said chit, as a security she took signed blank cheque of the accused and smt.latha. Even she denied the suggestion that,",audio_42_120.mp3 +"the accused was bid the said chit for rs.3,10,000/-. Even she denied for repayment of the remaining chit premium, she took signed blank cheque. Even",audio_42_121.mp3 +"she deposes, since the complainant was suffered financial loss in chit, by mentioning more amount in the cheque, she is filed the separate cheque bounce",audio_42_122.mp3 +"cases against the accused and smt.latha. 22. From the above said testimony of pw.1, she categorically admitted the defence suggested by the accused, as to",audio_42_123.mp3 +"she run the chit, wherein, accused was part as member. When joined the chit as such, it is the complainant needs to give explanation, what",audio_42_124.mp3 +was judgment 16 c.c.no.704/2018 the said chit amount and its premium and duration and what amount was bid by the accused and for its repayment,audio_42_125.mp3 +"what security she was taken other than the signed blank cheque at ex.p1 as suggested by the accused is not been explained. Therefore, it clearly",audio_42_126.mp3 +"manifest the defence of the accused, as to complainant has run the cit business. Therefore, the accused has successfully proved his probable defence as narrated",audio_42_127.mp3 +"in his 313 of Cr.P.C. statement. 23. That apart, the accused has specifically stated that, he not filled the cheque only gave",audio_42_128.mp3 +"signed blank cheque at ex.p1, the complainant for extract more money herself got filled the cheque and filed the false Cas. . Though, pw.1 has denied,",audio_42_129.mp3 +"it is appropriate focus on the genuineness of ex.p1. On meticulous perusal of the ex.p1-cheque, it prima-faice discloses, the admitted signature of the accused at",audio_42_130.mp3 +"ex.p1(a) and other writings are made in different hand writing and ink. On close perusal of the said cheque, on both side it revealed the",audio_42_131.mp3 +"signature of the accused. If the accused gave the cheque to the complainant definitely, at hind portion no need to affix his signature, it is",audio_42_132.mp3 +"the drawee, who presented the cheque needs to put the signature and present it for encashment. Contrary to the same, the signature found in backside",audio_42_133.mp3 +"discloses, it was appears to be self judgment 17 c.c.no.704/2018 cheque, but how the same become advantages to the complainant to made is not been",audio_42_134.mp3 +"explained, thereby, created doubt. 24. That apart, on close perusal of the said hand writing and ink it also made clear that, the fillings are",audio_42_135.mp3 +"made from the hand writing of the accused as the strokes and curves appears to be different in compared with her signature. Therefore, it is",audio_42_136.mp3 +the complainant needs to explain the accused got issued and executed the questioned cheque in respect of the repayment of loan of rs.10 lakhs. With,audio_42_137.mp3 +"regard to the said doubtful circumstances created by the accused it goes to the route of the Cas. , as to execution and issuance of questioned",audio_42_138.mp3 +"cheque by the accused for discharge of existence of legally recoverable debt.padmavathi.m vs. rajshekar on 12 march, 2021",audio_42_139.mp3 +"Cheque. The pw.1 has not stated in her pleading that, the legal notice was served on accused, but she clearly admitted that, notice was returned",audio_42_140.mp3 +"with a shara 'door lock'. From which it made clear that, notice is not served on accused, but got returned door lock, even the postal",audio_42_141.mp3 +"Auth. as endorsement on the postal cover. Therefore, as required under S. 138(b) of NI Act , in judgment 18 c.c.no.704/2018 order to institute the",audio_42_142.mp3 +"present Cas. against the accused, the cause of action is not accrued to the complainant. As required under the relevant provision of NI Act ,",audio_42_143.mp3 +"service of legal notice to the address of the accused is mandatory. Even she not stated, the accused has still resides in the said given",audio_42_144.mp3 +"address and wantonly avoided the service of legal notice. 26. In her cross-examination, the pw.1 has deposed that: ""dg□žÿ dušu□ã ¦œ£¢□aiœ£¢œ£» ¤zœµš§£¨œ£vš©g□. ¢□žÿn¨œ£ ®ÿqœ£¦šuœ czœp□¶",audio_42_145.mp3 +"pšt䨜£¦œ ª›š¨œzœ¬- ¦š¨œªzœ³gœ£. D ¢□žÿn¨à ®ÿrzœ ¤´pœ dg□žÿ ¦œ£¢□aiœ£ ¤´ ¢š¢œ£ ¡□žÿv™-."" 27. From the said say of pw.1, she categorically admitted that, the accused",audio_42_146.mp3 +"oftenly in the habit of changing his house. Though she stated, on the date of issue legal notice the accused was resides in the address",audio_42_147.mp3 +"made mentioned at ex.p5 postal cover. If at all, the accused are his family members were resides in the said address definitely, it was no",audio_42_148.mp3 +"movement came to the postal Auth. to endorse as door lock. Therefore, it is her to establish the accused was resides in the said address",audio_42_149.mp3 +"as on the date of issuance of legal notice. She categorically admitted that, after issuance of legal notice, she not went to the address of",audio_42_150.mp3 +"the accused. Therefore, her evidence clearly manifest the defence of judgment 19 c.c.no.704/2018 the accused that, the legal notice as required under S. 138(b) of",audio_42_151.mp3 +"NI Act is not served on the accused. It is appropriate to cite the decision reported in dalmia cement (bharat) ltd., v/s. Galaxy traders",audio_42_152.mp3 +"and agencies ltd., reported in air 2001 SC 676: (2001) 6 scc 463: wherein, the Hon'ble apex court was pleased to observe that: ""it",audio_42_153.mp3 +"is not the 'giving' of the notice, which makes the offence, but it is 'receipt' of the notice by the drawer which culminates in the",audio_42_154.mp3 +"cause of action to the complainant to file the complaint within the statutory period"". 28. From the point of above dictum, it also crystal clear",audio_42_155.mp3 +"that, it is the receipt of notice by drawer which give raised cause of action. In the Cas. on hand, the notice admittedly not served",audio_42_156.mp3 +"on the accused, therefore, the complainant has no cause of action to institute the present Cas. , as she not complied the mandatory provision under S. ",audio_42_157.mp3 +"138(b) of NI Act . 29. As discussed above, the accused from the available opportunity, has successfully rebutted the facts and circumstances narrated by the",audio_42_158.mp3 +"complainant including rebutted judgment 20 c.c.no.704/2018 the statutory presumption. Therefore, it is the reverse burden on the complainant as per S. 139 of negotiable instruments",audio_42_159.mp3 +"act, to prove the guilt of the accused beyond thepadmavathi.m vs. rajshekar on 12 march, 2021",audio_42_160.mp3 +"It is well worthy to cite the decision reported in 2008 air scc 7702 (p. Venugopal v/s.madan p. Sarathi). Wherein, it was pleased to held",audio_42_161.mp3 +"by the Hon'ble division bench of the Hon'ble apex court that: ""the presumption raised does not extent to the expenditure that cheque was issued for",audio_42_162.mp3 +"the discharge of any debt or liability. Which is required to be proved by the complainant. However, it is essentially a question of fact"". In",audio_42_163.mp3 +"Anr. decision reported in ilr 2009 kar 1633 (kumar exports v/s. Sharma carpets). Wherein, it was pleased to held by the Hon'ble apex court that:",audio_42_164.mp3 +"(d) NI Act , 1881, Ss. 118, 139 and 138 - presumption under Ss. 118 and 139 - how to be rebutted - standard of",audio_42_165.mp3 +"proof required rebuttal - held, rebuttal does not require proof beyond reasonable doubt - something probable has to be brought record - burden of proof",audio_42_166.mp3 +can be shifted back to complainant by producing convincing circumstantial evidence - thereafter the said presumption arising under judgment 21 c.c.no.704/2018 S. 118 and 139,audio_42_167.mp3 +"Cas. to operate - to rebut said presumption accused can also rely upon presumptions under evidence act, 1872 S. 114 (common course of natural even",audio_42_168.mp3 +"human conduct and public and Pvt. business) - evidence act, 1872 - S. 114 - presumptions of fact under"". Added to that, in a decision",audio_42_169.mp3 +"of air 2008 SC 278 between john k john v/s. Tom verghees, the Hon'ble apex court it is held that: ""the presumption under S. ",audio_42_170.mp3 +139 could be raised in respect of some consideration and burden is on the complainant to show that he had paid amount shown in the,audio_42_171.mp3 +"cheque. Whenever there is huge amount shown in the cheque, though the initial burden is on the accused, it is equally necessary to know how",audio_42_172.mp3 +"the complainant advanced such a huge amount"". 30. From the point of above dictums also, it was the reverse burden casted upon the complainant to",audio_42_173.mp3 +"establish the very Cas. beyond the reasonable doubt in order to convict the accused. 31. The complainant has pleaded that, she is doing dry fruits",audio_42_174.mp3 +"selling business since 20 years and also doing tailoring business in the home, she has money apart from her judgment 22 c.c.no.704/2018 husband and son",audio_42_175.mp3 +"being auto drivers, she had the income. She also stated, by avoiding unwanted expenditure, she saved money. In the cross-examination she clarifies what kind of",audio_42_176.mp3 +"business she did. Wherein also, the pw.1 has reasserted since 25 years she did the said business on the pushcartpadmavathi.m vs. rajshekar on 12 march,",audio_42_177.mp3 +2021,audio_42_178.mp3 +"Got saved and how she did curtailed her unwanted expenditure not been deposed in her cross-examination. However, her cross-examination with regard to mobilization of fund,",audio_42_179.mp3 +"she stated that: ""” ‚”€‚‰‰ ¦š°¥šgœ¼azœ ¼¢œ mazœp□¶ 凂□□□ ¨šªgœ µš±œsuœ´u□ ¦œišqœ£v□©ÿ¢□. D ¦œ°¦œ¡šgœ¦œ¢œ£» ±□´u□ã 9 uœam□§£azœ ¨œae□ 6 uœam□aiœ£¦œg□u□ ¦š°¥šgœ ¦œišqœ£v□©ÿ¢□. ¢š¢œ£ d ¦œ°¦œ¡šgœ¦œ¢œ£»",audio_42_180.mp3 +z□žÿ›œgœ¥š›œ°zœ ¦œ££r°gœ¨□©aiœ£ maz□ÿ pœq□ ušraiœ£¢œ£» ®¬-¸p□žaqœ£ ¦š°¥šgœ ¦œišqœ£v□©ÿ¢□. M□æ™jauà ¦œ°¦œ¡šgœ¦œ¢œ£» ¨œae□ ¦□ÿ›□aiœ£¬- ¦œišqœ£w©zœ£ç ¼¢œ mazœp□¶ gœž.1 jazœ 1 ¦œg□ ¨šªgœ dzšaiœ£ ¤gœ£w©z□. ¢œ¢œ» uœaqœ ¼¢œ,audio_42_181.mp3 +mazœp□¶ 凂□□□ ¨šªgœ gœž¥š§£ ¡šuœž ¦œ£uœ mazœ£ ¨šªgœ dzšaiœ£ uœ´¨œ£vš©g□. C¦œj¤ègœ£ d ¡œt¦œ¢œ£» ¢œ¢œu□ vœazœ£ p□žqœ£vš©gœ□. ¢š¢œ£ ±š°ap࢜ sšv□u□ ¡špœ£v□©ÿ¢□. ¢š¢œ£ pœ¢š²lpœ ¦œ£vœ£© judgment 23,audio_42_182.mp3 +c.c.no.704/2018 pš¥□¯ÿ²g□ÿéœ¢à ±š°apà sšv□u□ ¡špœ£v□©ÿ¢□. ¦œ£¢□aiœ£¬- j½œ£¾ ±□ÿpœ£ c½œ£¾ ¡œt¦œ¢œ£» g´zœ ¡œt¦œ¢œ£» ±š°apà sšv□u□ d¦œiš ¦œišqœ£v□©ÿ¢□. ¢œ¦œ£ê ¦œ£¢□aiœ£¬- aiœišgœž dzšaiœ£ v□ju□ ¥š¦œwzšgœj™-. ¢š¢œ£ ¡œt¦œ¢œ£» ¦œ£¢□aiœ£¬-,audio_42_183.mp3 +"el£¾p□žarz□³, ±š°aq®azœ pœžqœ ¢œuœ¼ëpœj¸p□ž›œ£ìv□©ÿ¢□."" 32. On going through the said testimony of pw.1, she stated by way of doing selling of dry fruits on the",audio_42_184.mp3 +"footpath in pushcart in between 9.00 am to 6.00 p.m. She earned the profit of rs.1,500/- by parking her pushcart at one place in cholarapalya",audio_42_185.mp3 +"main road. If she earned the profit of rs.1,500/- per day, at least taken in to consideration of she got profit at 10% definitely, her",audio_42_186.mp3 +"per day turnover should be rs.15,000/-, then only she accepted profit of rs.1,500/- can be earned. By holding to pushcart on the footpath selling that",audio_42_187.mp3 +"much dry fruits and eared profit of rs.1,500/- per day, it creates doubt as she not produced any evidence in that regard. 33. That apart,",audio_42_188.mp3 +"she also deposed that, in the evening hours she did tailoring business from which also per day earned rs.1,000/- to rs.1,500/-. By taken into said",audio_42_189.mp3 +"business in order to show that, she did tailoring business also no evidence is forth coming from moth or produced any documentary evidence. As per",audio_42_190.mp3 +"her say, her daily income is rs.2,000/- to rs.3,000/- by way of selling dry fruits judgment 24 c.c.no.704/2018 on the street as well as doing",audio_42_191.mp3 +"tailoring business. Mere say is not enough to show that, she did the said business and gained money or profit as such she needs to",audio_42_192.mp3 +"produce necessary documents or evidence to rebut the defence of the accused, but she failed to demonstrate. 34. That apart, she also stated, her husband",audio_42_193.mp3 +"and son per day earning rs.1,000/- to rs.1,500/- each. Even to show that, they are having their own autos and gained such income she not",audio_42_194.mp3 +"produced any documents nor examined her husband and son, in order to establish they were gave money every day to the complainant. In the absence",audio_42_195.mp3 +"of necessary documents to show that, her husband and son running the auto rickshaws and eared rs.1,000/- to rs.1,500/- each, she not produced any documents.",audio_42_196.mp3 +"Even she deposed, she used to kept money in her bank account at karnataka bank ltd.,padmavathi.m vs. rajshekar on 12 march, 2021",audio_42_197.mp3 +"So she gathered by herself as well as through her husband and son, she used to deposit in her bank account, therefore, the production of",audio_42_198.mp3 +"said bank statements pertaining to the banks of karnataka bank ltd., and Corp. bank, is very much necessary, but for the reasons better known to",audio_42_199.mp3 +"her, she not been produced the same. Judgment 25 c.c.no.704/2018 35. That apart, she also deposed, for the requirement in the home what extent of",audio_42_200.mp3 +"money was required only kept in the home and rest of the money would deposit in her bank account. Therefore, from her say coupled with",audio_42_201.mp3 +"her pleading it discloses, since she avoided unwanted expenditure and made savings definitely, as per her say, she would deposit whatever the income she gained",audio_42_202.mp3 +"personally as well as through her husband and son should be deposit in her bank account. In order to show that, from the complainant, her",audio_42_203.mp3 +"husband and son she gathered rs.5,000/- per day definitely, she shall kept the same in her bank account, but for the reasons better known to",audio_42_204.mp3 +"her, she not been produced her bank statement. She also deposed, she not the IT assessee and kept money in her house apart from",audio_42_205.mp3 +"withdraw from her bank account. Either to show, she got hard cash in her home or to show withdraw from her bank account, she not",audio_42_206.mp3 +been produced any documents nor examined her husband and son for the reasons better known to her. From the said testimony of pw.1 it creates,audio_42_207.mp3 +"doubt, as to the alleged income of the complainant at rs.5,000/- per day from herself as well as through her husband and son. Thereby, the",audio_42_208.mp3 +accused has created doubtful circumstances as to the mobilization of fund of rs.10 lakhs by the judgment 26 c.c.no.704/2018 complainant. Which seriously attack on the,audio_42_209.mp3 +"financial capacity of the complainant, therefore, she needs to produce the same. 36. In the pleading the complainant has contended, the accused is her relative",audio_42_210.mp3 +"and resides in the cause title address. In her cross-examination contrary to the same, she categorically deposed, the accused is not her relative, only his",audio_42_211.mp3 +"wife's sister smt.latha got introduced him to the complainant. From which it made clear that, the complainant baseless contended, the accused has related and accused",audio_42_212.mp3 +"has successfully proved that, he is not a relative of the complainant. Therefore, she repose the confidence on the accused in gave alleged loan itself",audio_42_213.mp3 +creates serious doubt. 37. The complainant has not specified on which date the accused approached her and requesting for the loan of rs.10 lakhs to,audio_42_214.mp3 +"start business. If at all, the S/O the accused wishes to start the business and pressurized the complainant definitely, it repose confidence on the",audio_42_215.mp3 +"complainant to gave the huge loan as such definitely, she must know in respect of which business the S/O accused going to conduct, but",audio_42_216.mp3 +"she does not disclose. Even she utterly failed to disclose, exactly on which date the accused came to her and requested for the loan. Judgment",audio_42_217.mp3 +"27 c.c.no.704/2018 38. The complainant has alleged that, when the movement of accused requested for the loan, she not accepted, but told that, she needs",audio_42_218.mp3 +"time to think, as she needs to approach and discuss with her husband and son and accordingly, discussed and since again the accused came to",audio_42_219.mp3 +"her and fell on herpadmavathi.m vs. rajshekar on 12 march, 2021",audio_42_220.mp3 +"Complainant, she was not decided to give loan, but she acted in accordance with the directions of her husband and son, therefore, their presence is",audio_42_221.mp3 +very much necessary before this court to demonstrate the alleged request made by the accused and she mobilized the fund and alleged to be gave,audio_42_222.mp3 +"to the accused. 39. It is also discloses in the pleading that, the husband and son had approved to help the accused financially to start",audio_42_223.mp3 +"business, accordingly, she gave rs.3,10,000/- by way of cheque from her savings account at karnataka bank ltd., and remaining amount of rs.6,90,000/- by way of",audio_42_224.mp3 +"cash during the march, 2015 as hand loan. On going through the said pleading itself creates doubt, as since the request of the complainant as",audio_42_225.mp3 +"to arrange the fund and help to the accused was approved by her husband and son definitely, they are the best witnesses to prove the",audio_42_226.mp3 +"transaction of the complainant, but she utterly failed to examine them. Judgment 28 c.c.no.704/2018 40. As per say of pw.1, she gave rs.3,10,000/- by way",audio_42_227.mp3 +"of cheque and rs.6,90,000/- by way of cash. She not specified, on which date exactly she lent loan to the accused as such. If at",audio_42_228.mp3 +"all, she lent money to the accused for the tune of rs.3,10,000/- definitely, her bank statement revealed the date and cheque No. to whom she",audio_42_229.mp3 +"paid the said money, but for the reasons better known to her, despite, the accused attack on the claim of complainant, she not choosen to",audio_42_230.mp3 +"produce her bank statement. As per her oral say, she deposed apart from her income, her husband and son also every day gave their earning",audio_42_231.mp3 +"to her in order to say. In the pleading she pleaded, she by avoiding unwanted expenditure made the savings. Therefore, it made clear that, as",audio_42_232.mp3 +"per her say, whatever the income gathered from herself as well as her husband and son, she kept in her karnataka bank and Corp. bank",audio_42_233.mp3 +"accounts, but without kept those money alleging to kept hard cash of rs.6,90,000/- in the home and handed over to the accused also created doubt.",audio_42_234.mp3 +"The pw.1 has utterly failed to demonstrate, she had mobilization of fund of rs.6,90,000/- and as alleged she paid to the accused. 41. It is",audio_42_235.mp3 +"significant fact to note that, she categorically pleaded after receiving the said amount, he accused executed an agreement in favour of complainant, promising to repay",audio_42_236.mp3 +"the loan judgment 29 c.c.no.704/2018 within one year. Therefore, it made clear that, the agreement alleged to be executed by the accused is in the",audio_42_237.mp3 +"hands of complainant. It is pertinent to note that, though accused has attack on the claim of complainant by denying the enter into the alleged",audio_42_238.mp3 +"loan transaction, the complainant for the reasons better known to her, withheld the said agreement alleged to be executed by the accused. The non production",audio_42_239.mp3 +"of the said agreement is clearly manifest the defence of accused that, since no such alleged transaction were happened, the complainant has not able to",audio_42_240.mp3 +"furnish necesary details and avoided to produce the said document, which goes to the root of the Cas. of complainant. The complainant has utterly failed",audio_42_241.mp3 +to prove the alleged lent of loan as well as got execution of loan agreement by the accused in her favour. 42. The complainant has,audio_42_242.mp3 +"pleaded, as agreed, the accused has not repaid loan within one year. But making such calculation, it is the complainant needs to specify the date",audio_42_243.mp3 +"of lent, but she not specified itself creates doubt, as to the alleged lent, therefore, within one year the accused not repaid, againpadmavathi.m vs. rajshekar",audio_42_244.mp3 +"on 12 march, 2021",audio_42_245.mp3 +"One year, she approached the accused requesting for repayment of loan, then the accused sought one judgment 30 c.c.no.704/2018 year more time for repayment as",audio_42_246.mp3 +"since his son's business is picking-up. As per the say of accused, the pw.1 has deposed in her cross-examination that: ""dg□žÿ vœ¢œ» ¡□aqœw ¦œ£pœ¶›□ža¼u□ ±šru□",audio_42_247.mp3 +¦œ£¢□aiœ£¬- ¦š¨œ¦švzš³g□. Dg□žÿ ¨□pœž°jn ušqಠp□™¨œ ¦œišqœ£vš©g□. Dvœ®u□ ¦œiš¸pœ gœž.16 ¨šªgœ ¨œa¤›œ ez□ jazœg□ u□žw©™-. Dvœ¢œ ¡□aqœw ípœ·pœ›œ£. Dp□u□ ¨œ£¦œišgœ£ 18 ¨šªgœ ¨œa¤›œ ez□ jazœg□,audio_42_248.mp3 +"u□žw©™-. Dg□žÿ aiœ£ ¦œ£uœ r¥□¯-ÿ¦□žÿ ¥œzœª ¥œq□zœ£ p□™¨œ ¦œišqœ£w©zš³g□ jazœg□ u□žw©™-. ¨šq· dvœ ¥sš°pœ¾j ¦œišqœ£vš©g□ ¢œ¢œ» ¤´ ¡œt ¥œq□¼zš³g□ jazœ£ ¢œ£raiœ££vš©g□. Dg□žÿ aiœ£ ¦œ£uœ wÿxœ²,",audio_42_249.mp3 +"jaiœiµà j¨□¾ÿmà pœz□ÿjaiœ£¬- p□™¨œ ¦œišqœ£w©zœ£³, gœž.15 ¨šªgœ ¨œa¤›œ ¤gœ£w©z□ jazœg□ ¢œ¢œu□ u□žw©™-."" 43. On going through the said testimony of pw.1, she deposed that, the",audio_42_250.mp3 +"accused resides along with his wife and children in rented house. Even she admitted, accused was doing security guard work and earned salary of rs.16,000/-",audio_42_251.mp3 +"p.m. Though she denied, his salary, but admitted his work. Even , the W/O accused is a teacher and gained monthly salary of rs.18,000/-",audio_42_252.mp3 +"is not been denied by her. Even she deposed that, she does not know the S/O accused did diploma engineering. The pw.1 has judgment",audio_42_253.mp3 +"31 c.c.no.704/2018 deposed that, by stating, the accused for doing factory, she gave loan to the accused. But she deposed, she does not know that,",audio_42_254.mp3 +"the S/O accused by name theertha was working in real estate office and earned monthly salary of rs.15,000/-. The said testimony of pw.1 it",audio_42_255.mp3 +"made clear that, when the accused was working in real estate office, he is doing the factory as alleged by her does not arise. Unless,",audio_42_256.mp3 +"he start the factory as pleaded by the complainant, the accused assured her that, since her son business is not picking up, he sought the",audio_42_257.mp3 +"additional time as one year is also unbelievable. The very evidence of pw.1 is not in consonant with her pleading, rather it convince this court",audio_42_258.mp3 +with regard to draw the initial statutory presumption as to the accused was issued by the accused to the complainant for repayment of loan or,audio_42_259.mp3 +"alleged the liability of the accused, her evidence itself fails to demonstrate. Rather convince her evidence it clearly goes to the root of the Cas. ,",audio_42_260.mp3 +"which destroyed the very happening the alleged monetary transaction between complainant and accused. 44. Even the complainant has not specifically stated, on which date the",audio_42_261.mp3 +"accused gave the questioned cheque at ex.p1 dated:12.09.2017. As per her say, after lapse of 2 years 6 months, the accused alleged to be issued",audio_42_262.mp3 +"the questioned cheque. No prudent man that too, the complainant while do the business in judgment 32 c.c.no.704/2018 the street mobilize the fund of rs.10",audio_42_263.mp3 +"lakhs and without any security document, alleged to be lent to the accused itself creates doubt and she not demonstrated her Cas. with clear, convincing",audio_42_264.mp3 +"and clinching evidence. Therefore, the accused has made out sufficient grounds to disbelieve the Cas. of complainant and goes against the statutory presumption enumerated under",audio_42_265.mp3 +"Ss. 118 and 139 of NI Act . Thereby, successfully proved that, the accused is not a relative and not borrowed the alleged loan nor",audio_42_266.mp3 +"issued the questioned cheque. On the other hand, he successfully proved that, the complainant has run the chit business, wherein smt.latha and he subscribed, though",audio_42_267.mp3 +"he bid the chit, the complainant notpadmavathi.m vs. rajshekar on 12 march, 2021",audio_42_268.mp3 +"The cheque without the knowledge of the accused, therefore, the very act of the complainant has to be condemned. 45. That apart, the pw.1 also",audio_42_269.mp3 +"admitted that, apart from she filed the present Cas. against the accused, she also filed the cheque bounce Cas. against smt.latha. Therefore, it is her",audio_42_270.mp3 +"to demonstrate, apart from any money alleged to be lent to smt.latha, how she mobilized the huge amount of rs.10 lakhs is not been proved.",audio_42_271.mp3 +"Even in her cross-examination has deposed, she lent money to the accused in her house in the presence of her judgment 33 c.c.no.704/2018 husband, son,",audio_42_272.mp3 +"daughter and daughter-in-law. Therefore, they were the eye witnesses, needs to examine before this court, but for the reasons better known to her, she not",audio_42_273.mp3 +"been examined any one the witnesses, nor been produced the alleged loan agreement which is sufficient to draw the adverse inference against the complainant and",audio_42_274.mp3 +"since no such alleged monetary transaction happened between complainant and accused, she failed to prove her Cas. by producing material evidence before this court. Even",audio_42_275.mp3 +"the complainant to show that, at least gave rs.3,10,000/- by way of cheque as loan is also not been proved by avoiding to produce her",audio_42_276.mp3 +"bank statement, which clearly manifest that, the complainant appears to be misused the signed blank cheque, taken from the accused in connection to the chit",audio_42_277.mp3 +"transaction, but for the reasons better known to her, she misused the same. The very act of the complainant has to be condemned and which",audio_42_278.mp3 +is against the object of introduction of NI Act . Even legal notice is also not been served on the accused as compliance of S. ,audio_42_279.mp3 +"138 of NI Act . Viewed from any angle, it is the consider opinion of this court that, the complainant has utterly failed to prove",audio_42_280.mp3 +"her Cas. beyond the reasonable doubt. Hence, the accused is entitled for benefit of doubt for acquittal. Judgment 34 c.c.no.704/2018 46. On overall appreciation of",audio_42_281.mp3 +"the material facts available on record, it discloses that, despite the accused harping on the very claim of the complainant, he fails to demonstrate his",audio_42_282.mp3 +"very Cas. . While appreciate the materials available on record, this court has humbly gone through the decision relied by both parties apart from the following",audio_42_283.mp3 +"decisions. In the decision reported in ilr 2009 kar 2331 (b.indramma v/s. Sri.eshwar). Wherein, the Hon'ble court held that: ""held, when the very factum of",audio_42_284.mp3 +delivery of the cheque in question by the accused to the complainant and its receipt by complainant from the accused itself is seriously disputed by,audio_42_285.mp3 +"the accused, his admission in his evidence that, the cheque in question bares his signature would not be sufficient proof of the fact that, he",audio_42_286.mp3 +"delivered the said cheque to the complainant and the latter received if from the former"". 47. The principle of law laid down in the above",audio_42_287.mp3 +"decision is applicable to the facts of this Cas. . Merely because, the accused admits that, cheque bares his signature, that, does not mean that, the",audio_42_288.mp3 +"accused issued cheque in discharge of a legally payable debt.padmavathi.m vs. rajshekar on 12 march, 2021",audio_42_289.mp3 +"(g.veeresham v/s. Judgment 35 c.c.no.704/2018 shivashankar and Anr. ). Wherein, the Hon'ble court has held as under: ""NI Act (26 of 1881). S. 138 dishonour",audio_42_290.mp3 +of cheque - presumptions available to complainant under S. 118 and S. 139 of act - rebuttal of cheque in question was allegedly issued by,audio_42_291.mp3 +"accused to discharge hand loan taken from complainant. However, no material placed on record by complainant to prove alleged lending of hand loan said fact",audio_42_292.mp3 +"is sufficient to infer that, accused is liable to rebut presumptions available in favour of complainant under Ss. 118 and 139 of act, order acquitting",audio_42_293.mp3 +"accused for offence under S. 138 proper"". 48. The principle of law laid down in the above decisions is applicable to the facts of this",audio_42_294.mp3 +"Cas. . In the Cas. on hand also, as discussed above, the complainant has failed to prove with cogent evidence as to the lending of loan",audio_42_295.mp3 +"of rs.10 lakhs to the accused. Thus, that fact itself is sufficient to infer that, accused is able to rebut presumptions available in favour of",audio_42_296.mp3 +"complainant under Ss. 118 and 139 of the NI Act . 49. In this Cas. on hand also, on the lack of the complaint failed",audio_42_297.mp3 +"to prove the alleged loan transaction, it can gather the probability that, the accused is not liable to pay ex.p1 cheque amount of judgment 36",audio_42_298.mp3 +"c.c.no.704/2018 rs.10 lakhs and it is not legally recoverable debt. So, the reverse burden is on the complainant, to prove strictly with cogent and believable",audio_42_299.mp3 +"evidence that, the accused has borrowed the cheque amount and he is legally liable to pay the same. Just because, there is a presumption under",audio_42_300.mp3 +"S. 139 of NI Act , that, will not create any special right to the complainant so as to initiate a proceeding against the drawer",audio_42_301.mp3 +"of the cheque, who is not at all liable to pay the cheque amount. The accused has taken his defence at the earliest point of",audio_42_302.mp3 +"time, while record accusation and statement under S. 313 of Cr.P.C. by way of denial. The evidence placed on record clearly probablize",audio_42_303.mp3 +"that, complainant has failed to prove that, accused issued the cheque for discharge of liability of rs.10 lakhs. Hence, complainant has failed to prove the",audio_42_304.mp3 +"guilt of accused for the offence punishable under S. 138 of NI Act . Apart from that, in a decision reported in, kccr 12 (3)",audio_42_305.mp3 +"page 2057, the Hon'ble apex court held that: ""mere issuance of cheque is not sufficient unless it is shown that, the said cheque was issued",audio_42_306.mp3 +"towards discharge of legally recoverable debt. When the financial capacity of complainant is judgment 37 c.c.no.704/2018 questioned, the complainant has to establish his financial capacity"".",audio_42_307.mp3 +"50. In the Cas. on hand, accused has questioned the financial capacity of complainant. Complainant has not produced any document to show her financial capacity",audio_42_308.mp3 +"to lend an amount of rs.10 lakhs to accused. When complainant has failed to prove the transaction as alleged in the complaint, then the question",audio_42_309.mp3 +"of issuing the cheque for discharge of rs.10 lakhs does not arise. The evidence placed onpadmavathi.m vs. rajshekar on 12 march, 2021",audio_42_310.mp3 +"Discharge of liability of rs.10 lakhs. The complainant has failed to establish that, the amount covered under the cheque is the existence of legally recoverable",audio_42_311.mp3 +"debt. Hence, complainant has failed to prove the guilt of accused of the offence punishable under S. 138 of NI Act . 51. From the",audio_42_312.mp3 +"above elaborate discussions, it very much clear that, the complainant has failed to adduce cogent and corroborative evidence to show that, accused has issued cheque",audio_42_313.mp3 +"ex.p1 for discharge of his legally payable debt, for valid consideration. Hence, rebutted the legal presumptions under S. 139 and 118 of NI Act ",audio_42_314.mp3 +"in favour of the accused. Judgment 38 c.c.no.704/2018 52. The sum and substances of principles laid down in the rulings referred above are that, once",audio_42_315.mp3 +"it is proved that, cheque pertaining to the account of the accused is dishonoured and the requirements envisaged under S. 138 of (a) to (c)",audio_42_316.mp3 +"of NI Act is complied, then it has to be presumed that, cheque in question was issued in discharge of legally recoverable debt. The",audio_42_317.mp3 +"presumption envisaged under S. 138 of NI Act is mandatory presumption and it has to be raised in every cheque bounce cases. Now, it",audio_42_318.mp3 +"is settled principles that, to rebut the presumption, accused has to set up a probable defence and he need not prove the defence beyond reasonable",audio_42_319.mp3 +"doubt. 53. Thus, on appreciation of evidence on record, i hold that, the complainant has failed to prove the Cas. by rebutting the presumption envisaged",audio_42_320.mp3 +under Ss. 118 and 139 of NI Act . The complainant has failed to discharge the reverse burden to prove her contention as alleged in,audio_42_321.mp3 +"the complaint. Hence, the complainant has not produced needed evidence to prove that, amount of rs.10 lakhs legally recoverable debt. Therefore, since the complainant has",audio_42_322.mp3 +"failed to discharge the reverse burden, question of appreciating other things and weakness of the accused is not a ground to accept the claim of",audio_42_323.mp3 +"judgment 39 c.c.no.704/2018 the complainant in its entirety, without the support of the substantial documentary evidence pertaining to the said transaction. The complainant utterly fails",audio_42_324.mp3 +"to prove her Cas. beyond all reasonable doubt. As discussed above, the complainant has utterly failed to prove the guilt of the accused for the",audio_42_325.mp3 +"offence punishable under S. 138 of NI Act . Accordingly, i answered the point nos.1 to 3 are negative. 54. Point no.4: in view of",audio_42_326.mp3 +"my findings on point nos.1 to 3, i proceed to pass the following: order acting under S. 255(1) of Cr.P.C. the accused",audio_42_327.mp3 +is acquitted for the offence punishable under S. 138 of NI Act . The bail bond and cash security/surety bond of the accused stands cancelled.padmavathi.m,audio_42_328.mp3 +"vs. rajshekar on 12 march, 2021",audio_42_329.mp3 +"Pronounced by me in the open court on this the 12 th day of march - 2021) (shridhara.m) xxiii addl. Chief MM , bengaluru. Judgment",audio_42_330.mp3 +40 c.c.no.704/2018 annexure list of witnesses examined on behalf of complainant: pw-1 : padmavathi.m list of exhibits marked on behalf of complainant: ex.p1 : original,audio_42_331.mp3 +cheque ex.p1(a) : signature of accused ex.p2 : bank endorsement ex.p3 : office copy of legal notice ex.p4 : postal receipt ex.p5 : unserved review,audio_42_332.mp3 +"petition a.d., cover ex.p5(a) : legal notice at ex.p5 ex.p6 : Pvt. complaint ex.p6(a) : signature of complainant list of witnesses examined on behalf of",audio_42_333.mp3 +"the defence: - none - list of exhibits marked on behalf of defence: - nil - xxiii addl. Chief MM , bengaluru. Judgment 41 c.c.no.704/2018",audio_42_334.mp3 +"12.03.2021. Comp - accd - for judgment Cas. called out. Complainant and accused arepadmavathi.m vs. rajshekar on 12 march, 2021",audio_42_335.mp3 +"advocates, despite, web-host the Cas. proceedings and intimate the date of pronouncement of judgment. Hence, as per S. 353(6) of Cr.P.C. the",audio_42_336.mp3 +following judgment is pronounced in the open court vide separate order. Judgment pronounced in the open court vide separate order. ***** order acting under S. ,audio_42_337.mp3 +255(1) of Cr.P.C. the accused is acquitted for the offence punishable under S. 138 of NI Act . The bail bond and,audio_42_338.mp3 +"cash security/surety bond of the accused stands cancelled. Xxiii addl. Chief MM , bengaluru.padmavathi.m vs. rajshekar on 12 march, 2021",audio_42_339.mp3 +"Suresh chandra soni vs. ajeet jain & anr on 16 may, 2018 author: p.k. Lohra bench: p.k. Lohra HC of judicature for rajasthan at",audio_43_1.mp3 +"jodhpur s.b. Crl. revision No. 473 / 2018 suresh chandra soni s/o bherulal soni, through laxmi tent house r/o mastan baba road, kacchi basti, sajjannagar,",audio_43_2.mp3 +"udaipur(raj.) ----petitioner vs. 1. Ajeet jain s/o shri mangilal jain, aged about 52 years, r/o vaid dharamshala, jain plastic, ashoknagar main road, udaipur (raj.) 2.",audio_43_3.mp3 +"State of rajasthan. ----respondents _____________________________________________________ for Petitioner(s) : mr. Anuj sahlot for Respondent(s) : mr. O.p. Rathi, pp. For respondent no.1:",audio_43_4.mp3 +mr. Love jain. _____________________________________________________ hon'ble mr. J. p.k. Lohra order 16/05/2018 accused-petitioner has preferred this revision petition under S. 397/401 Cr.P.C. to,audio_43_5.mp3 +"challenge judgment dated 01.09.2016 passed by special judge, SC /st (prevention of atrocities) cases, udaipur (for short, 'learned appellate court'), whereby learned appellate court",audio_43_6.mp3 +"has confirmed judgment dated 01.10.2015, rendered by special judicial magistrate (n.i. Act cases) no.3, udaipur (for short, 'learned trial court'). The learned trial court, by",audio_43_7.mp3 +"its verdict dated 01.10.2015, indicted accused-petitioner for offence under S. 138 of the NI Act , 1881 (for short, 'act') and handed down sentence of",audio_43_8.mp3 +"two years' simple imprisonment and directed him to pay a sum of rs.3,00,000/- to the complainant as compenastion. Being (2 of 11) [crlr-473/2018] aggrieved by",audio_43_9.mp3 +"the same, petitioner approached learned appellate court but his that effort did not fructify to his advantage and the learned appellate court dismissed his appeal.",audio_43_10.mp3 +This sort of situation has necessitated filing of this revision petition. Learned counsel for the petitioner submits that now rival parties have sorted out their,audio_43_11.mp3 +"dispute and compromise has been arrived at. With this positive assertion, learned counsel has urged that both the impugned judgments be annulled and sentence handed",audio_43_12.mp3 +down by learned trial court and confirmed by learned appellate court be set aside. Learned public prosecutor on the other hand submits that although offence,audio_43_13.mp3 +"under S. 138 of the act is compoundable but after verdict of learned appellate court, it may not be appropriate to grant indulgence to the",audio_43_14.mp3 +"petitioner.suresh chandra soni vs. ajeet jain & anr on 16 may, 2018",audio_43_15.mp3 +"Between the parties, would urge that looking to the nature of offence and in the wake of settlement of dispute between the rival parties, the",audio_43_16.mp3 +"conviction recorded by the learned trial court and upheld by the learned appellate court merits annulment. I have heard learned counsel for the accused-petitioner, learned",audio_43_17.mp3 +public prosecutor as well as learned counsel for the complainant and perused the materials available on record. Chapter xvii of the act deals with penalties,audio_43_18.mp3 +in Cas. of dishonor of certain cheques for insufficiency of funds in the accounts. A complete procedure in this behalf is provided under S. 138,audio_43_19.mp3 +to 147 of the act. S. 142 deal with cognizance of (3 of 11) [crlr-473/2018] offence and S. 143 empowers a court to try cases,audio_43_20.mp3 +"under S. 138 of the act summarily. As per S. 147 of the act, every offence punishable under the act is compoundable notwithstanding anything contained",audio_43_21.mp3 +"in the Cr.P.C. while it is true that the offence is compoundable but a pivotal question, which has emerged for consideration, is",audio_43_22.mp3 +whether revisional powers can be exercised by this court to compound the offence under S. 138 of the act after conviction of the petitioner by,audio_43_23.mp3 +appellate court. The legal position in this behalf was fluid until the judgment rendered in damodar S. prabhu vs. Sayed babalal h. [(2010) 5 scc,audio_43_24.mp3 +"663] by the SC . In the said verdict, SC has examined the provisions of S. 138 and 147 of the act threadbare and",audio_43_25.mp3 +"observed that compensatory aspect of the remedy should be given priority over the punitive aspect. While discussing object of S. 138 of the act, the",audio_43_26.mp3 +"court held: ""however, there are some larger issues which can be appropriately addressed in the context of the present Cas. . It may be recalled that",audio_43_27.mp3 +"chapter xvii comprising S. 138 to 142 was inserted into the act by the banking, public financial institutions and negotiable instruments laws (amendment) act, 1988",audio_43_28.mp3 +(66 of 1988). The object of bringing S. 138 into the statute was to inculcate faith in the efficacy of banking operations and credibility in,audio_43_29.mp3 +transacting business on negotiable instruments. It was to enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for penalties in,audio_43_30.mp3 +"Cas. of bouncing of cheques due to insufficient arrangements made by the drawer, with adequate safeguards to prevent harassment of honest drawers. If the cheque",audio_43_31.mp3 +"is dishonoured for insufficiency of funds in the drawer's account or if it exceeds the amount arranged to be paid from that account, the drawer",audio_43_32.mp3 +"is to be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount",audio_43_33.mp3 +"of the cheque, or with both. (4 of 11) [crlr-473/2018] it may be noted that when the offence was inserted in the statute in 1988,",audio_43_34.mp3 +"it carried the provision for imprisonment up to one year, which was revised to two years following the amendment to the act in 2002. It",audio_43_35.mp3 +is quite evident that the legislative intent was to provide a strong Crl. remedy in order to deter the worryingly high incidence of dishonour of,audio_43_36.mp3 +"cheques. While the possibility of imprisonment up to two years provides a remedy of a punitive nature, the provision for imposing a `fine which may",audio_43_37.mp3 +extent to twice the amount of the cheque' serves a compensatory purpose. What must be remembered is that the dishonour of a chequesuresh chandra soni,audio_43_38.mp3 +"vs. ajeet jain & anr on 16 may, 2018",audio_43_39.mp3 +"Interest in ensuring the reliability of these instruments. The impact of this offence is usually confined to the Pvt. parties involved in commercial transactions."" while",audio_43_40.mp3 +"switching on to examine S. 147 of the act, SC has observed that this being an enabling provision, it can serve as exception to",audio_43_41.mp3 +"the general rule Inc. in subsec.(9) of S. 320 Cr.P.C. the court, while laying emphasis on non-abstante Cl. under the aforesaid S. ,",audio_43_42.mp3 +further held that S. 147 inserted by way of amendment to special law will override the effect of S. 320(9) Cr.P.C. placing,audio_43_43.mp3 +"reliance on some earlier judgments, the court, has approved compounding of offences at later stage of litigation in cheque bouncing cases, and held: the compounding",audio_43_44.mp3 +of the offence at later stages of litigation in cheque bouncing cases has also been held to be permissible in a recent decision of this,audio_43_45.mp3 +"court, reported as k.m. Ibrahim vs. k.p. Mohammed & anr., wherein kabir, j. Has noted (at scc p. 802, paras 13- 14): ""13. As far",audio_43_46.mp3 +"as the non-obstante Cl. included in S. 147 of the 1881 act is concerned, the 1881 act being a special statute, the provisions of S. ",audio_43_47.mp3 +147 will have an overriding effect over the provisions of the code relating to compounding of offences. ... (5 of 11) [crlr-473/2018] 14. It is,audio_43_48.mp3 +true that the Appl. under S. 147 of the NI Act was made by the parties after the proceedings had been concluded before the,audio_43_49.mp3 +"appellate forum. However, S. 147 of the aforesaid act does not bar the parties from compounding an offence under S. 138 even at the appellate",audio_43_50.mp3 +"stage of the proceedings. Accordingly, we find no reason to reject the Appl. under S. 147 of the aforesaid act even in a proceeding under",audio_43_51.mp3 +"Art. 136 of the constitution."" it is evident that the permissibility of the compounding of an offence is linked to the perceived seriousness of the",audio_43_52.mp3 +offence and the nature of the remedy provided. On this point we can refer to the following extracts from an academic commentary [cited from: k.n.c.,audio_43_53.mp3 +"Pillai, r.v. Kelkar's Crl. procedure, fifth edn. (lucknow: eastern book Co. , 2008) at p. 444]: ""17.2 compounding of offences,- a crime is essentially a wrong",audio_43_54.mp3 +"against the society and the state. Therefore, any compromise between the accused person and the individual victim of the crime should not absolve the accused",audio_43_55.mp3 +"from Crl. responsibility. However, where the offences are essentially of a Pvt. nature and relatively not quite serious, the code considers it expedient to recognize",audio_43_56.mp3 +"some of them as compoundable offences and some Ors. as compoundable only with the permission of the court. ...""suresh chandra soni vs. ajeet jain &",audio_43_57.mp3 +"anr on 16 may, 2018",audio_43_58.mp3 +"Offence punishable under S. 138 of the act [cited from: arun mohan, some thoughts towards law reforms on the topic of S. 138, negotiable instruments",audio_43_59.mp3 +"act -tackling an avalanche of cases (new delhi: universal law publishing co. Pvt. Ltd., 2009) at p. 5] ""... Unlike that for other forms of",audio_43_60.mp3 +"crime, the punishment here (in so far as the complainant is concerned) is not a means of seeking retribution, but is more a means to",audio_43_61.mp3 +ensure payment of money. The complainant's interest lies primarily in recovering the money rather than seeing the drawer of the cheque in jail. The threat,audio_43_62.mp3 +"of jail is only a mode to ensure recovery. As against the accused who is willing to undergo a jail term, there is little available",audio_43_63.mp3 +as remedy for the holder of the cheque. (6 of 11) [crlr-473/2018] if we were to examine the No. of complaints filed which were `compromised',audio_43_64.mp3 +"or `settled' before the final judgment on one side and the cases which proceeded to judgment and conviction on the other, we will find that",audio_43_65.mp3 +"the bulk was settled and only a miniscule No. Conti. ."" finally, the court has framed certain guidelines for a graded scheme of imposing costs on",audio_43_66.mp3 +"parties who unduly delay compounding of the offences. Framing the guidelines, the court held: with regard to the progression of litigation in cheque bouncing cases,",audio_43_67.mp3 +the learned AG has urged this court to frame guidelines for a graded scheme of imposing costs on parties who unduly delay compounding of,audio_43_68.mp3 +"the offence. It was submitted that the requirement of deposit of the costs will act as a deterrent for delayed composition, since at present, free",audio_43_69.mp3 +"and easy compounding of offences at any stage, however belated, gives an incentive to the drawer of the cheque to delay settling the cases for",audio_43_70.mp3 +years. An Appl. for compounding made after several years not only results in the system being burdened but the complainant is also deprived of effective,audio_43_71.mp3 +"J. . In view of this submission, we direct that the following guidelines be followed:- (i) in the circumstances, it is proposed as follows: (a) that",audio_43_72.mp3 +directions can be given that the writ of summons be suitably modified making it clear to the accused that he could make an Appl. for,audio_43_73.mp3 +"compounding of the offences at the first or second hearing of the Cas. and that if such an Appl. is made, compounding may be allowed",audio_43_74.mp3 +"by the court without imposing any costs on the accused. (b) if the accused does not make an Appl. for compounding as aforesaid, then if",audio_43_75.mp3 +"an Appl. for compounding is made before the magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will",audio_43_76.mp3 +"be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the legal services Auth. , or such Auth. ",audio_43_77.mp3 +"as the court deems fit.suresh chandra soni vs. ajeet jain & anr on 16 may, 2018",audio_43_78.mp3 +"A HC in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by",audio_43_79.mp3 +"way of costs. (7 of 11) [crlr-473/2018] (d) finally, if the Appl. for compounding is made before the SC , the Fig. would increase to",audio_43_80.mp3 +20% of the cheque amount. It is relevant that both the parties have entered into compromise and same has been verified by the counsels appearing,audio_43_81.mp3 +"on behalf of rival parties before the deputy registrar (judl.) in pursuance of direction issued by this court. The complete text of compromise, in vernacular,",audio_43_82.mp3 +reads as under: ^^vkilh jkthukek lvkei fderh 500@& v{kjs ikap lks :i;k ;g vkilh jkthukek vkt fnukad 06@04@2018 dks lfkku mn;iqj esa fueu i{kdkjku ds,audio_43_83.mp3 +"e/; blesa ;fkkof.kzr ""krksza o ""kjk;rksa ij ys[kc) fd;k tk jgk gs fd %& jh vthr tsu firk jh eakxhyky th tsu] mez o;ld] fuoklh",audio_43_84.mp3 +"& osn /kez""kkyk] v""kksd uxj] esu jksm+] mn;iqj €jkt□‚ gky fuoklh & 884] ds""ko uxj] fo""ofo|ky;] ekxz] mn;iqj €jkt□‚ ------- izfke i{kdkj cgd jh lqjs""k",audio_43_85.mp3 +punz lksuh firk jh hks:yky th lksuh] mez o;ld] fuoklh& [kku okyk ckck ds ikl] dpph clrh] lttu uxj] iqfyl fkkuk veckekrk] mn;iqj €jkt□‚ -------,audio_43_86.mp3 +"f}rh; i{kdkj 1- ;g fd eq> izfke i{kdkj }kjk vki f}rh; i{kdkj ds fo:) ,d ifjokn vurxzr /kkjk 138 ,u-vkbz-,dv ds rgr ekuuh; fof""k""v u;kf;d",audio_43_87.mp3 +"eft□ ,u-vkbz-,dv dslst ƒe la[;k 3 mn;iqj esa izlrqr fd;k ftlds eqdnek uecj 2381@2015 js-qks- €lh-vkbz-,l ƒekad 15574@2015‚ cmuokuh ^^vthr tsu cuke lqjs""k punz lksuh**",audio_43_88.mp3 +gks olrqr% ;g izdj.k psd ƒekad 004027 rknknh jde 1]50]000@& :i;s ds vuknj.k ds laca/k esa fkka bl izdj.k esa ekuuh; vuoh{kk u;k;ky; }kjk fnukad,audio_43_89.mp3 +"01@10@2015 dks f}rh; i{kdkj ds fo:) fu.kz; ikfjr dj nks'kfl) fd;k rfkk ;g n.mkns""k fn;k fd vfhk;qdr 2 lky ds lk/kkj.k dkjkokl o 3]00]000@& v{kjs",audio_43_90.mp3 +"rhu yk[k :i;s crksj izfrdj ifjoknh €vfkkzr~ ;gka izfke i{kdkj‚ dks vnk djsa 2- ;g fd mdr n.mkns""k ls o;frr gksdj f}rh; i{kdkj }kjk ekuuh;",audio_43_91.mp3 +"l= u;k;ky; mn;iqj ds le{k vihy qkstnkjh izlrqr dh xbz tks dkykurj esa fof/kor~ lquokbz gsrq ekuuh; fof""k'v u;k;k/kh""k vuqlwfpr tkfr vuqlwfpr tutkfr €vr;kpkj fuokj.k",audio_43_92.mp3 +"izdj.k‚ mn;iqj dks equrfdy (8 of 11) [crlr-473/2018] dh xbz o ;g vihy ƒekad 16@2016 vihy qkstnkjh €lh-vkbz-,l- uecj 15@2016‚ cmuokuh ^^lqjs""k punz lksuh cuke",audio_43_93.mp3 +vtht tsu o vu;** gksdj bls ekuuh; vihfy; u;k;ky; }kjk f}rh; i{kdkj dh vuqiflfkfr esa fnukad 01@09@2016 dks fulrkfjr dh ftlesa fd ekuuh; vufo{kk@vf/kulfk u;k;ky;,audio_43_94.mp3 +"ds iqozru vkns""k fnukafdr 01@10@2015 dks ;fkkor j[kk o vfhk;qdr ds fo:) duqez ltk okj.v tkjh fd;k x;k gsa 3- ;g fd vihy ds yfecr",audio_43_95.mp3 +jgus ds njfe;ku f}rh; i{kdkj dh ikfjokfjd flfkfr vr;f/kd thov o n;uh; gksus dh otg ls vihykfkhz vfkkzr~ f}rh; i{kdkj dks lfkkuh; {ks= dk ifjr;kx,audio_43_96.mp3 +"djuk im+k rfkk mls mdr vihy ƒekad vihy ƒekad 16@2016 vihy qkstnkjh €lh-vkbz-,l- uecj 15@2016‚ ds fulrkj.k dh tkudkjh le;d le; ij izkir ugha gqbz",audio_43_97.mp3 +"rfkk vc tkudkjh gksus ij fcuk dksbz vfrfjdr foyec cjrs f}rh; i{kdkj us izfkesuresh chandra soni vs. ajeet jain & anr on 16 may, 2018",audio_43_98.mp3 +I{kdkj us yksd vnkyr dh hkkouk ls izsfjr gksdj f}rh; i{kdkj us bl izdj.k esa hkh vkilh jkthukek dj fy;k gs o f}rh; i{kdkj us,audio_43_99.mp3 +"izfke i{kdkj dks fookfnr psd jkf""k e; {kfriwfrz ds fy;s nksuksa i{kdkj dh lgefr ls r; dh xbz jde 2]20]000@& v{kjs nks yk[k chl gtkj",audio_43_100.mp3 +":i;s vnk djrs gq, izfke i{kdkj dks iw.kz:is.k larq""v dj fn;k gs o mhk; i{kdkjku ds e/; vc fdlh hkh izdkj dk dksbz ysunsu vfkok",audio_43_101.mp3 +",slk dksbz fookn ftls vkxkeh le; esa fdlh u;k;ky; esa fookfnr fd;k tk;s ""ks""k ugha gs] qyr% ;g jkthukek ys[kc) fd;k x;k gsa 4- ;g",audio_43_102.mp3 +"fd f}rh; i{kdkj }kjk vihy ƒekad vihy ƒekad 16@2016 vihy qkstnkjh €lh-vkbz-,l- uecj 15@2016‚ ds fufer visf{kr dk;zokgh ekuuh; jktlfkku mpp u;k;ky; tks/kiqj esa laflfkr",audio_43_103.mp3 +"djuh gs] ,slh flfkfr esa tgka dgha hkh ekuuh; mpp u;k;ky; esa fdlh hkh izdkj dh dksbz vfhklohd`fr] lk{; ;k izkfkzuk i= vfkok i`fkd :is.k",audio_43_104.mp3 +"jkthukek vius glrk{kj ls izlrqr djuk gksxk mls izfke i{kdkj vko"";d :i ls izlrqr fd;s tkus ckcr~ rrij jgsxk rfkk ekuuh; mpp u;k;ky; ds le{k",audio_43_105.mp3 +bl jkthukes dh :g ls voxr djk vkxkeh izlrkfor dk;zokgh ds fulrkj.k esa hkkx ysxka fygktk ;g vkilh jkthukek vkt fnukad 06@04@2018 dks eq> izfke,audio_43_106.mp3 +"i{kdkj us vki f}rh; i{kdkj ds i{k esa vius iw.kz gks""k gokl esa fcuk fdlh mj ncko hk; ls fu""ikfnr dj fn;k gs tks lgh",audio_43_107.mp3 +lun~ jgs odr t:jr dke vkosa lfkku %& mn;iqj fnukad %& 06@04@2018 lgh@& g□ izfke i{kdkj lgh@& g□ f}rh; i{kdkj** (9 of 11) [crlr-473/2018] supreme,audio_43_108.mp3 +court in a recent judgment m/s. Meters and instruments pvt. Ltd. & anr. V/s. Kanchan mehta [(2018) 1 scc 560] has reiterated the compensatory aspect,audio_43_109.mp3 +"of remedy to be given priority over the punitive aspect vis-a-vis offence under S. 138 of the n.i. Act. The court held:- ""18. From the",audio_43_110.mp3 +above discussion following aspects emerge: i) offence under S. 138 of the act is primarily a Civ. wrong. Burden of proof is on accused in,audio_43_111.mp3 +"view presumption under S. 139 but the standard of such proof is ""preponderance of probabilities"". The same has to be normally tried summarily as per",audio_43_112.mp3 +provisions of summary trial under the Cr.P.C. but with such variation as may be appropriate to proceedings under chapter xvii of the,audio_43_113.mp3 +"act. Thus read, principle of S. 258 Cr.P.C. will apply and the court can close the proceedings and discharge the accused on",audio_43_114.mp3 +satisfaction that the cheque amount with assessed costs and interest is paid and if there is no reason to proceed with the punitive aspect. Ii),audio_43_115.mp3 +"the object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage",audio_43_116.mp3 +has to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found acceptable to the parties or the,audio_43_117.mp3 +"court. Iii) though compounding requires consent of both parties, even in absence of such consent, the court, in the interests of J. , on being satisfied",audio_43_118.mp3 +"that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused.suresh chandra soni vs. ajeet jain & anr",audio_43_119.mp3 +"on 16 may, 2018",audio_43_120.mp3 +"Discretion of the magistrate under second proviso to S. 143, to hold that it was undesirable to try the Cas. summarily as sentence of more",audio_43_121.mp3 +"than one year may have to be passed, is to be exercised after considering the further fact that apart from the sentence of imprisonment, the",audio_43_122.mp3 +court has jurisdiction under S. 357(3) Cr.P.C. to award suitable (10 of 11) [crlr-473/2018] compensation with default sentence under S. 64 ipc,audio_43_123.mp3 +"and with further powers of recovery under S. 431 Cr.P.C. with this approach, prison sentence of more than one year may not",audio_43_124.mp3 +"be required in all cases. V) since evidence of the complaint can be given on Aff. , subject to the court summoning the person giving Aff. ",audio_43_125.mp3 +"and examining him and the bank's slip being prima facie evidence of the dishonor of cheque, it is unnecessary for the magistrate to record any",audio_43_126.mp3 +further preliminary evidence. Such Aff. evidence can be read as evidence at all stages of trial or other proceedings. The manner of examination of the,audio_43_127.mp3 +person giving Aff. can be as per S. 264 Cr.P.C. the scheme is to follow summary procedure except where exercise of power,audio_43_128.mp3 +"under second proviso to S. 143 becomes necessary, where sentence of one year may have to be awarded and compensation under S. 357(3) is considered",audio_43_129.mp3 +"inadequate, having regard to the amount of the cheque, the financial capacity and the conduct of the accused or any other circumstances."" applying the ratio",audio_43_130.mp3 +"decidendi of damodar s.prabhu & m/s. Meters and instruments pvt. Ltd. (supra) and the guidelines framed therein, on the strength of compromise being arrived at",audio_43_131.mp3 +"between petitioner and the complainant, i feel persuaded to exercise revisional jurisdiction for doing real and substantial J. in the matter for the administration of",audio_43_132.mp3 +"which alone the courts exist. Accordingly, i prefer to give priority to the compensatory aspect of remedy over the punitive aspect in the matter in",audio_43_133.mp3 +"the wake of settlement of dispute and compromise being arrived at between the rival parties. In view of foregoing discussion, the instant revision petition is",audio_43_134.mp3 +"allowed, impugned judgment dated 01.09.2016 passed by learned appellate court as well as judgment dated 01.10.2015 (11 of 11) [crlr-473/2018] passed by the learned trial",audio_43_135.mp3 +court are set at naught as a consequence of compromise having been arrived at between the rival parties and while acknowledging their compromise offence under,audio_43_136.mp3 +S. 138 of the act is hereby compounded by resorting to S. 147 of the act. Compounding of offence under S. 138 of the act,audio_43_137.mp3 +"obviously entails acquittal of petitioner. However, taking into account the fact that petitioner has caused undue delay in making endeavour for compounding of offence in",audio_43_138.mp3 +"terms of guidelines framed by the SC in damodar S. prabhu & m/s. Meters and instruments pvt. Ltd. (supra), accused-petitioner is ordered to be",audio_43_139.mp3 +"released, if not required in any other Cas. , subject to condition that he deposits a sum of rs.10,000/- with the district legal services Auth. , udaipur",audio_43_140.mp3 +"in the backdrop of peculiar facts of the Cas. . (p.k. Lohra)j. A.asopa/-143suresh chandra soni vs. ajeet jain & anr on 16 may, 2018",audio_43_141.mp3 +"Pyara singh vs. . M/s alkarma page 1 of 24 on 14 july, 2023 in the court of shri harshal negi:mm-05(ni act): south-west district:dwarka courts:new",audio_44_1.mp3 +"delhi ct cases no.14912/2019 cnr no.dlsw02-021142-2019 pyara singh s/o late sh. Harnam singh r/o h.no.f-59d, harnam singh vishnu garden, new delhi -110018 ...complainant vs. m/s",audio_44_2.mp3 +"alkarma 57, rama road, najafgarh road, moti nagar, new delhi -110015 through its partners shri sandeep chaudhary and Ms. . Anjaly chaudhary 57, rama road, najafgarh",audio_44_3.mp3 +"road, moti nagar, new delhi -110015 also at: sandeep chaudhary s/o sh. Subhash chaudhary r/o soverign house, house no.c-2/102, vatika city, sector-49, gurugram, haryana ...accused",audio_44_4.mp3 +"offence complained of : u/s 138, ni act, 1881 date on which the complaint : 02.05.2019 was instituted plea of the accused : pleaded not",audio_44_5.mp3 +"guilty date of pronouncement of judgment : 14.07.2023 judgment 1. Tersely put, the Cas. of the complainant is that accused sandeep chaudhary is the partner",audio_44_6.mp3 +of Co. viz. m/s alkarma and was/is looking after the day-to-day affairs of the Co. . It is also the Cas. of the complainant that the,audio_44_7.mp3 +complainant was working in the accused Co. . That the payment of salary of the complainant was overdue for a long time. That on 30.11.2017 alkarma,audio_44_8.mp3 +"made settlement with the complainant for a sum of rs 10,50,329. That to discharge the legal liability the accused issued a total of five cheques",audio_44_9.mp3 +"amounting to rs 10,50,329, one of the cheques being the cheque in question i.e., cheque bearing no.037324 dated 01.02.2019 of rs 2,17,000/- drawn on canara",audio_44_10.mp3 +"bank, connaught place branch, new delhi to the complainant with an assurance of its encashment. The complainant presented the cheque in his account which was",audio_44_11.mp3 +"returned with thepyara singh vs. . M/s alkarma page 1 of 24 on 14 july, 2023",audio_44_12.mp3 +Dated 13.03.2019 upon the accused through his counsel demanding the said amount. Despite service of aforesaid notice the money was not repaid by the accused.,audio_44_13.mp3 +"Thereafter, complainant has filed the present complaint Cas. . Material on record 2. The accused entered appearance along with his counsel on 07.03.2020. Notice under S. ",audio_44_14.mp3 +251 cr pc dated 06.04.2021 was framed accordingly to which the accused pleaded not guilty and claimed trial. The blank signed cheques used to be,audio_44_15.mp3 +kept in my office for daily use and the same were taken from the said office and misused. 3. The complainant relied upon the following,audio_44_16.mp3 +"documents: a) acknowledgment of settlement and settlement dated 30.11.2017 and copy of supplementary partnership deed are mark a, mark b and mark c b) original",audio_44_17.mp3 +cheque in question is ex.cw1/a. C) original returning memo is ex.cw1/b. D) copy of legal notice is ex.cw1/c. E) original receipts of postal Dept. are,audio_44_18.mp3 +ex.cw1/d to ex.cw1/f. F) copy of delivery report is ex.cw1/g to ex.cw1/i. 4. The complainant adopted his pre-summoning evidence as post summoning evidence and was,audio_44_19.mp3 +cross examined on 24.06.2022. The complainant also relied on additional document which is ex.cw1/j(osr) (running into 03 pages) which included his proof of employment and,audio_44_20.mp3 +id card with the accused Co. (being the proof of appointment) (objected by the counsel for accused as the same is not filed at the,audio_44_21.mp3 +time of pse). (court observation: the objection is decided in the favour of the complainant as he is filing the original document at the time,audio_44_22.mp3 +of post summoning evidence). 5. In his cross examination the complainant stated that alkarma is a firm. He affirmed that ex.cw1/j was not issued by,audio_44_23.mp3 +any partner/accused. He voluntarily stated that the same was issued by the manager of the firm. He denied the suggestion that the manager was not,audio_44_24.mp3 +authorised to issue the above said documents. He also affirmed that in ex.cw1/j nothing with respect to due amount has been mentioned. He denied the,audio_44_25.mp3 +suggestion that the documents ex.cw1/j has intentionally and deliberately been issued by vijay thakur in order to settle his personal score and to extort money,audio_44_26.mp3 +from the accused despite having no authorisation in his favour to issue the said documents. He also denied the suggestion that the aforementioned documents are,audio_44_27.mp3 +forged and fabricated. That he have been working in the firm since november 1994 to 30.11.2017.pyara singh vs. . M/s alkarma page 1 of 24,audio_44_28.mp3 +"on 14 july, 2023",audio_44_29.mp3 +Chaudhary. He voluntarily stated that the above said documents were issued by the firm. He also affirmed that he have not filed any document showing,audio_44_30.mp3 +that the accused has given any undertaking regarding the dues pertaining to the present matter. That he was working as store keeper in the accused,audio_44_31.mp3 +firm as the same is reflecting in above said document. That the accused never entered into any written settlement with him. He voluntarily stated that,audio_44_32.mp3 +"the accused has verbally assured in the presence of other employees and also directed one mr. Vijay thakur, sr. Manager accounts to draft a settlement",audio_44_33.mp3 +with him. He voluntarily stated that he had been supplied a photocopy of the documents which is framed by mr. Vijay thakur at the behest,audio_44_34.mp3 +of the accused which is mark-a and mark-b. That he have not mentioned the above said details in his complaint and evidence by way of,audio_44_35.mp3 +Aff. . 7. That he have not filed any document which shows that vijay thakur was authorised. He denied the suggestion that vijay thakur was never,audio_44_36.mp3 +authorised by the accused. He voluntarily stated that vijay thakur was working in the capacity of sr. Manager accounts and he used to work on,audio_44_37.mp3 +the directions of the accused who was the partner of the accused firm. He denied the suggestion that mr. Vijay thakur was never authorised to,audio_44_38.mp3 +enter into settlement on behalf of the firm with any employee of the firm. He voluntarily stated that vijay thakur not entered into settlement and,audio_44_39.mp3 +accused only directed the vijay thakur to formulate the settlement. That he used to go to the office of the firm whenever was called by,audio_44_40.mp3 +the firm. He denied the suggestion that he entered with the conspiracy with vijay thakur. He also denied the suggestion that he illegally took the,audio_44_41.mp3 +blank signed cheque in question in connivance with vijay thakur. That since he was the employee of the firm it is quite natural that he,audio_44_42.mp3 +used to work in the premises of the firm for his employment. 8. He affirmed that apart from the cheque in question the remaining documents,audio_44_43.mp3 +which have been filed by him till now does not bear the signature of the accused. He denied the suggestion that he have filled the,audio_44_44.mp3 +particulars of the cheque in question. He voluntarily stated that the particulars of the cheque apart from the signature filled by mr. Vijay thakur in,audio_44_45.mp3 +the presence of the accused. That there was no written document entered between him and accused where it is written that accused has issued the,audio_44_46.mp3 +cheque in question to him. He voluntarily stated that the accused assured him the cheques which he has issued will be duly honoured when the,audio_44_47.mp3 +meeting took place for the purpose of settling the accounts of the employees as it came to his information that accused is closing the firm.,audio_44_48.mp3 +That he have not mentioned the above said either in his complaint or in evidence by way of Aff. . That he is not aware whether,audio_44_49.mp3 +any Cas. is pending between mr vijay thakur and accused. That as on date he is not aware that firm is still in existence or,audio_44_50.mp3 +whether the firm has been closed by the accused. He voluntarily stated that since it is his firm he might be aware of the same.,audio_44_51.mp3 +That he do not know when the firm was closed. He denied the suggestion that he have intentionally sent the legal notice to the address,audio_44_52.mp3 +of the firm despite knowing that firm was closed in 2017. He also denied the suggestion that there is no liability against him when he,audio_44_53.mp3 +left the job. He denied the suggestion that there is no legally and enforceable debt of the accused. He further denied the suggestion that the,audio_44_54.mp3 +multiple cases have been filed by him to put pressure upon accused and to extort money. 9. He affirmed that accused used to visit outside,audio_44_55.mp3 +the firm premises/office for his work. That he cannot say whether he used to visit the office in the absence of the accused. He voluntarily,audio_44_56.mp3 +"statedpyara singh vs. . M/s alkarma page 1 of 24 on 14 july, 2023",audio_44_57.mp3 +Accused has objected to the documents mark a and mark b as they are not originals and photocopies). (court observation: the objection is decided in,audio_44_58.mp3 +favour of the accused as they are not originals and will not be read in evidence till the originals are filed). He denied the suggestion,audio_44_59.mp3 +that nothing was due against the accused/firm and he have already received his entire due from the accused when he left the firm. 10. The,audio_44_60.mp3 +"complainant, thereafter, examined cw 2 i.e., vijay thakur. Cw 2 adopted his evidence by way of Aff. on 26.09.2022 and relied on mark a i.e.,",audio_44_61.mp3 +"appointment letter, ex cw2/a i.e., authorization letter to sign identity cards, cw 2/b i.e., Auth. letter, cw2/c i.e., emails and ex cw2/d. 11. In his",audio_44_62.mp3 +cross-examination cw 2 stated that he has been working with the accused Co. since 16.02.1993 till february 2018. That initially he joined as an accountant,audio_44_63.mp3 +and left the services as Sr. manager accounts and administration. That he have not filed any appointment and designation letter on record. That he do,audio_44_64.mp3 +not remember his starting salary when he joined the accused Co. since its long time back. That at the time when he left the services,audio_44_65.mp3 +"of the accused Co. he was earning Rs. 1,30,000/-. That he is residing in his own house. That he brought the same in 1996 from",audio_44_66.mp3 +his earnings. That he cannot remember his salary in the year 1996. He denied the suggestion that he was not honest in his work with,audio_44_67.mp3 +the accused firm. He denied the suggestion that he have duped amount from the accused firm. He also denied the suggestion that he used to,audio_44_68.mp3 +manipulate the records of the accused firm. That he have brought the id card issued by the accused firm which is ex. Cw-2/e (osr). He,audio_44_69.mp3 +affirmed that the signature at point a reflecting issuing Auth. are his signature. He voluntarily stated that he have been authorized by the accused to,audio_44_70.mp3 +sign the identity cards on behalf of the accused firm which is ex. Cw2/a. He denied the suggestion that he used to issue and misuse,audio_44_71.mp3 +"his Auth. to sign without prior knowledge and consent of the accused. At this stage, the counsel for the accused confronted mark a & b",audio_44_72.mp3 +of cw1. He affirmed the suggestion that mark a & b does not bear the signature of any partner of alkarma. He voluntarily stated that,audio_44_73.mp3 +he had sought the Auth. letter from the accused with respect to signing on mark a & b which was given to him on 08.01.2018,audio_44_74.mp3 +which is ex. Cw2/b. 12. He further affirmed that the signature at point a in mark a & b of cw1 belongs to him. He,audio_44_75.mp3 +further affirmed that he was not having any written authorization in his favour to sign in mark a & b on behalf of the accused,audio_44_76.mp3 +Co. . He voluntarily stated that he was having oral directions and approval of the accused. He voluntarily stated that since he was working in continuity,audio_44_77.mp3 +with the accused firm he was under direction from the accused to sign mark a & b whereas the accused in writing had issued the,audio_44_78.mp3 +Auth. letter to him on 08.01.2018 with respect to entering into mark a & b of cw1 on behalf of the accused firm. He further,audio_44_79.mp3 +affirmed that the ex. Cw2/b does not mention that the same would be having retrospective effect pertaining to mark a & b. He voluntarily stated,audio_44_80.mp3 +that since the talks of full and final settlement were running in continuity he was authorized under directions to sign mark a and b although,audio_44_81.mp3 +the Auth. in writing was given to him on 08.01.2018. 13. He denied the suggestion that he was not authorized by any partner of the,audio_44_82.mp3 +"accused firm to enter into the settlement on behalf of accused firm on 30.11.2017. At this stage, the counsel for thepyara singh vs. . M/s",audio_44_83.mp3 +"alkarma page 1 of 24 on 14 july, 2023",audio_44_84.mp3 +Year 2017. He voluntarily stated that emails which are ex. Cw2/c are the communications made by him with the accused only with respect to his,audio_44_85.mp3 +full and final settlement. He also voluntarily stated that the accused in this email ex. Cw2/c has stated that he will settle his payment also,audio_44_86.mp3 +as he has done with Ors. too. That there was around 40 staff members approx of the accused firm in the year 2017. That there,audio_44_87.mp3 +were about 160 approx workers of the accused firm in the year 2017. He affirmed that the name of the complainant does not find any,audio_44_88.mp3 +mention in ex. Cw2/c. He denied the suggestion that he was not having Auth. to enter into full and final settlement with the complainant on,audio_44_89.mp3 +behalf of the accused and his firm. 14. He denied the suggestion that the ex cw2/b is forged and fabricated. He also denied the suggestion,audio_44_90.mp3 +that ex. Cw2/b is forged and fabricated by typing on blank paper. He also denied the suggestion that he had entered into mark a and,audio_44_91.mp3 +mark b of cw1 behind the back of the accused and without his knowledge on commission basis. He denied the suggestion that he had been,audio_44_92.mp3 +indulging in creating forged and fabricated documents. He denied the suggestion that the accused has no liability whatsoever against the accused. He also denied the,audio_44_93.mp3 +suggestion that he was in possession of blank signed cheque book of the accused. He denied the suggestion that he have misused the cheque in,audio_44_94.mp3 +question in connivance with the complainant. He further denied the suggestion that he have created various kinds of letters documents without the permission of the,audio_44_95.mp3 +accused. He also denied the suggestion that he have misused his power and position in the accused firm and have acted in utter violations in,audio_44_96.mp3 +his responsibility. He affirmed that there is a cheque bounce Cas. pending between him and the accused. He affirmed that settlement which has been placed,audio_44_97.mp3 +by him in his Cas. is not signed by any partner of the accused firm. That he cannot answer who has signed the settlement which,audio_44_98.mp3 +has been placed by him in his Cas. . 15. The complainant thereafter closed his evidence. 16. The statement of the accused under S. 313 crpc,audio_44_99.mp3 +was then recorded on 09.12.2022. He stated that the documents which have been furnished by cw2 were never authorized by him. That they are forged,audio_44_100.mp3 +and fabricated. That the e-mail which have been furnished has no relevance to the present matter. That there exists no due on him with respect,audio_44_101.mp3 +to the complainant. That whatever due which he had has already been paid by him to the complainant. That the cheque in question were in,audio_44_102.mp3 +possession of the vijay thakur for business purposes since he used to travel abroad and he had issued instructions that the cheque would not be,audio_44_103.mp3 +"issued without his knowledge. However, the cheques in question have been misused by vijay thakur. That he have never given any authorization to anyone. 17.",audio_44_104.mp3 +"The accused opted to lead his defence evidence, however, on 27.02.2023 he closed his de. 18. Evidences and documents on record perused carefully. Arguments heard.",audio_44_105.mp3 +"Law pointpyara singh vs. . M/s alkarma page 1 of 24 on 14 july, 2023",audio_44_106.mp3 +Governs the adjudication of cases under S. 138 ni act. A bare reading of S. 138 ni act reveals that in addition to the cheque,audio_44_107.mp3 +"being issued for the discharge, in whole or in part, of any debt or other liability; following are the ingredients which constitute an offence:- a.",audio_44_108.mp3 +That a person drew a cheque on an account maintained by him with the banker; a. That such a cheque when presented to the bank,audio_44_109.mp3 +is returned by the bank unpaid; b. That such a cheque was presented to the bank within a period of six months from the date,audio_44_110.mp3 +it was drawn or within the period of its validity whichever is earlier; c. That the payee demanded in writing from the drawer of the,audio_44_111.mp3 +cheque the payment of the amount of money due under the cheque to payee; and d. Such a notice of payment is made within a,audio_44_112.mp3 +period of 30 days from the date of the receipt of the information by the payee from the bank regarding the return of the cheque,audio_44_113.mp3 +"as unpaid. (para 26, n. Harihara krishnan vs. j. Thomas, (2018) 13 scc 663, referred to in himanshu vs. b. Shivamurthy (2019) 3 scc 797)",audio_44_114.mp3 +"20. S. 138 is to be r/w the presumption, being a rebuttable presumption, as contained in S. 139. S. 139 provides that: ""presumption in",audio_44_115.mp3 +"favour of holder - it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature",audio_44_116.mp3 +"referred to in S. 138 for the discharge, in whole or in part, of any debt or other liability."" 21. Thus, in cheque bouncing cases,",audio_44_117.mp3 +"the judicial scrutiny revolves around the satisfaction of ingredients enumerated under S. 138 ni act and if so, whether the accused was able to rebut",audio_44_118.mp3 +the statutory presumption contemplated by S. 139 ni act. S. 139 is an example of reverse onus Cl. which usually imposes an evidentiary burden and,audio_44_119.mp3 +"not a persuasive burden. In other words, evidence of a character, not to prove a fact affirmatively, but to lead evidence to show non- existence",audio_44_120.mp3 +"of a liability. Further the law is well settled that when an accused has to rebut the presumption under S. 139, the standard of proof",audio_44_121.mp3 +"of doing so is that of ""preponderance of probability"" (rangappa vs. sri mohan (2010) 11 scc 441). Once execution of cheque is admitted, it is",audio_44_122.mp3 +"a legal presumption under S. 139 of negotiable instrument act, the cheque was issued for discharging legally enforceable debt. 22. Attention is also invited to",audio_44_123.mp3 +"S. 118(a) wherein a presumption of the cheque having been issued in discharge of a legally sustainable liability and drawn for good consideration, arises. S. ",audio_44_124.mp3 +"118 of the n.i act provides:- ""presumptions as to negotiable instruments: until the contrary is proved, the following presumptions shall be made: (a) of consideration",audio_44_125.mp3 +"- that every negotiable instrument was made or drawn for consideration, and that every such instrument,pyara singh vs. . M/s alkarma page 1 of 24",audio_44_126.mp3 +"on 14 july, 2023",audio_44_127.mp3 +"Indorsed, negotiated or transferred for consideration;"" 23. Hence, it can be seen that from its very inception a presumption that the cheque was issued in",audio_44_128.mp3 +discharge of a debt or other liability subsists in favour of the complainant and onus rests upon the accused to rebut the existing presumption on,audio_44_129.mp3 +"the touchstone of preponderance of probability. 24. Further, the accused in a trial under S. 138 has two options. He can either show that consideration",audio_44_130.mp3 +and debt did not exist or that under the particular circumstances of the Cas. the non-existence of consideration and debt is so probable that a,audio_44_131.mp3 +"prudent man ought to suppose that no consideration and debt existed (para 20, kumar exports vs. sharma carpets (2009) 2 scc 513). The accused can",audio_44_132.mp3 +"also show that he has already returned the amount taken by him. Analysis & conclusion 25. Now, the law is also well settled that ""once",audio_44_133.mp3 +"the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated",audio_44_134.mp3 +"under S. 139 of the NI Act has to be raised by the court in favor of the complainant."" (rangappa vs. mohan, air 2010",audio_44_135.mp3 +"SC 1898). Reference can also be made to k. Bhaskaran vs. . Sankaran vaidhyan balan 1999 (4) rcr (Crl. ) 309, wherein it has been",audio_44_136.mp3 +"held by the Hon'ble SC as under: ""as the signature in the cheque is admitted to be that of the accused, the presumption envisaged",audio_44_137.mp3 +in S. 118 of the act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque,audio_44_138.mp3 +bears. S. 139 of the act enjoins on the court to presume that the holder of the cheque received it for the discharge of any,audio_44_139.mp3 +"debt or liability."" 26. In this matter, the accused has admitted his signature. Therefore, the presumption under S. 139 ni act does get raised in",audio_44_140.mp3 +"favor of the complainant and against the accused. Thus, the accused now has to rebut the presumption on the touchstone of preponderance of probabilities. Further,",audio_44_141.mp3 +"the accused has not lead his defence evidence. However, the law is also well settled that the accused in order to rebut the presumption need",audio_44_142.mp3 +not to step into the witness box or lead his defence evidence. The accused can through the material brought on record by the complainant can,audio_44_143.mp3 +"also rebut the presumption existing against him. 27. At the outset, on the close scrutiny and appraisal of the original cheque in question marked as",audio_44_144.mp3 +"ex cw1/a it clearly transpires that the same had been issued as per the above details. Further, the cheque in question got dishonored vide returning",audio_44_145.mp3 +"memo dated 11.03.2019 with remarks ""kindly contact drawer"" marked as ex cw 1/b. Thus, one of the essential ingredients of S. 138 i.e., that a",audio_44_146.mp3 +person drew a cheque on an account maintained by him with the banker; and that such a cheque when presented to the bank is returned,audio_44_147.mp3 +"by the bank unpaid, stands fulfilled. Further, on a co-joint reading of the cheque in question ex cw 1/a and return memo ex cw 1/b,",audio_44_148.mp3 +"it also standspyara singh vs. . M/s alkarma page 1 of 24 on 14 july, 2023",audio_44_149.mp3 +"Drawn"". 28. The legal notice dated 13.03.2019 ex cw 1/c further proves that the same was issued on 13.03.2019 and dispatched vide postal receipts ex",audio_44_150.mp3 +"cw1/d to ex cw1/f. Now, the accused has denied the receipt of legal notice. 29. The Hon'ble SC in k bhaskaran vs. sankaran vaidhyan",audio_44_151.mp3 +"balan (1999) 7 scc 510 in para 18 observed thus: ""......'giving notice' in the context is not the same as 'receipt of notice'. Giving is",audio_44_152.mp3 +"a process of which receipt is the accomplishment. It is for the payee to perform the former process i.e. Giving, by sending the notice to",audio_44_153.mp3 +"the drawer at the correct address....."" 30. Further, in para 24 of the above said judgment the Hon'ble SC held that where the sender",audio_44_154.mp3 +"has dispatched the notice by post with correct address written on it, the principle Inc. in S. 27 of general clauses act could profitably be",audio_44_155.mp3 +imported in such a Cas. . It was further held that in this situation service of notice is deemed to have been effected on the sendee.,audio_44_156.mp3 +31. Law with respect to the delivery of legal notice by post and the presumption with respect to the same has been succinctly put forth,audio_44_157.mp3 +by the Hon'ble SC in c c alavi haji vs. palapetty muhammed (2007) 6 scc 555. Para 13 & 14 of the judgment is,audio_44_158.mp3 +"worth mentioning as under: ""13. According to S. 114 of the act, r/w illustration (f) thereunder, when it appears to the court that the",audio_44_159.mp3 +"common course of business renders it probable that a thing would happen, the court may draw presumption that the thing would have happened, unless there",audio_44_160.mp3 +"are circumstances in a particular Cas. to show that the common course of business was not followed. Thus, S. 114 enables the court to presume",audio_44_161.mp3 +"the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and",audio_44_162.mp3 +"public and Pvt. business in their relation to the facts of the particular Cas. . Consequently, the court can presume that the common course of business",audio_44_163.mp3 +"has been followed in particular cases. When applied to communications sent by post, S. 114 enables the court to presume that in the common course",audio_44_164.mp3 +"of natural events, the communication would have been delivered at the address of the addressee. But the presumption i.e. raised under S. 27 of",audio_44_165.mp3 +"the g.c. Act is a far stronger presumption. Further, while S. 114 of evidence act refers to a general presumption, S. 27 refers to a",audio_44_166.mp3 +specific presumption 14. S. 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address,audio_44_167.mp3 +"by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the",audio_44_168.mp3 +"drawer, it is unnecessary to further aver in the complaint that in spitepyara singh vs. . M/s alkarma page 1 of 24 on 14 july,",audio_44_169.mp3 +2023,audio_44_170.mp3 +"Addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to",audio_44_171.mp3 +"have been effected at the time at which the letter would have been delivered in the ordinary course of business. 32. Thus, in view of",audio_44_172.mp3 +the law as above said and the fact that the address given by accused in his notice under S. 251 crpc being the same address,audio_44_173.mp3 +"which finds mention in the legal notice and that the legal notice was duly dispatched through postal receipt, the mandatory statutory legal notice marked as",audio_44_174.mp3 +"ex cw 1/c is deemed to have been served on the accused in the present Cas. . Thus, the factum of issuance and receipt of mandatory",audio_44_175.mp3 +"statutory legal notice also stands proved based on the documentary evidence of legal notice, postal receipts. It has been also proved that despite issuance of",audio_44_176.mp3 +"legal notice, the accused had failed to make the payment of the cheque amount. 33. Before noting the line of defence of the accused that",audio_44_177.mp3 +"can be deduced through the cross examination of the complainant witnesses, it is apposite to note the admitted facts in the present matter: a) the",audio_44_178.mp3 +"accused is a partnership firm. This has been established in view of the consistent position of cw 1 as well as cw 2. Furthermore, nowhere",audio_44_179.mp3 +during the course of the trial the accused has disputed that alkarna is not a partnership firm. Not a single suggestion disputing alkarma not being,audio_44_180.mp3 +a partnership firm has been put forth by the accused. B) accused sandeep chaudhary is the partner and authorized signatory of accused alkarma firm. The,audio_44_181.mp3 +same stands proved on a co-joint reading and perusal of the cheque in question and notice under S. 251 crpc. The accused sandeep chaudhary has,audio_44_182.mp3 +"admitted his signatures on the cheque in question and perusal of the cheque reflects that the same is belong to ""alkarma"" of which sandeep chaudhary",audio_44_183.mp3 +"is the authorized signatory. Furthermore, it is also not the Cas. of the accused that he is not the authorized signatory/partner of accused alkarma. C)",audio_44_184.mp3 +complainant used to work for the accused alkarma. This has also not been disputed by the accused. Not a single suggestion or question has been,audio_44_185.mp3 +put by the accused which could directly or indirectly goes on to establish that it is the Cas. of the accused that the complainant has,audio_44_186.mp3 +"no connection whatsoever with the accused alkarma firm or that complainant was never an employee of the accused firm. As a matter of fact, ex",audio_44_187.mp3 +"cw1/j i.e., proof of appointment and id card brought on record by the complaint further cements the position that the complainant indeed was the employee",audio_44_188.mp3 +"of accused alkarma firm. 34. In order to rebut the presumption existing in favor of the complainant, the accused through the cross examination and notice",audio_44_189.mp3 +under S. 251 crpc attempted to create following line of defence: (a)the cheque in question was never issued to the complainant.pyara singh vs. . M/s,audio_44_190.mp3 +"alkarma page 1 of 24 on 14 july, 2023",audio_44_191.mp3 +Outstanding amount claimed by the complainant. (c)the blank signed cheques were used to be kept in his office for daily use and the same were,audio_44_192.mp3 +taken from the said office and misused. (notice under S. 251 crpc.) (d)the cheque in question were in possession of cw2 vijay thakur and the,audio_44_193.mp3 +same has been misused by vijay thakur and never gave authorization to anyone regarding the issuance of cheque in question. (statement under S. 313 crpc.),audio_44_194.mp3 +(e)whatever documents that have been brought on record by the complainant and his witness are forged and fabricated and were never created by him. (f),audio_44_195.mp3 +"whatever due, if any, is there against him has already been paid by him to the complainant. (statement under S. 313 crpc.) 35. The line",audio_44_196.mp3 +of defence raised by the accused appears to be incredible. In his notice under S. 251 crpc he only stated that blank signed cheques used,audio_44_197.mp3 +"to be kept in his office for daily use and the same were taken from the said office and misused. Here, the accused never even",audio_44_198.mp3 +"mentioned as to who took the said cheques or when the said cheques were taken. However, only when the complainant examined cw 2 i.e., vijay",audio_44_199.mp3 +"thakur, the accused in his statement under S. 313 crpc modified and changed his position and stated that the cheque in question were in possession",audio_44_200.mp3 +of vijay thakur and the same have been misused by vijay thakur. 36. During the course of the trial objection was raised with respect to,audio_44_201.mp3 +"full and final settlement brought on record since the same was not original. The objection was also decided in favor of the accused. However, mere",audio_44_202.mp3 +"absence of settlement agreement by itself does not in any manner create probable defence in favor of the accused, viewed specifically in the light of",audio_44_203.mp3 +"the fact that the complainant was the employee of the accused firm and further cw1 i.e., the complainant and cw 2 i.e., vijay thakur through",audio_44_204.mp3 +"their testimony has been able to establish that a settlement was arrived between the accused firm and the complainant. 37. Furthermore, the accused never initiated",audio_44_205.mp3 +"any complaint or legal proceedings with respect to the misuse of the cheque. As a matter of fact, there exists a total of 3 cheques",audio_44_206.mp3 +bounce cases pending between the accused and the complainant in the same court. A total of 33 cases are pending against the accused with respect,audio_44_207.mp3 +to multiple cheques in the same court. It is highly unnatural and improbable that where close to three dozen cheque bounce cases have been filed,audio_44_208.mp3 +"against the accused and he takes a stand that all the cheques have been misused, not a single complaint or legal proceedings or even a",audio_44_209.mp3 +stop payment instruction has been initiated by the accused. This conduct of the accused further weakens his line of defence. 38. Anr. point which is,audio_44_210.mp3 +"noticeable is that during the cross examination of the complainant as well as cw 2 i.e., vijay thakur, the counsel of the accused took a",audio_44_211.mp3 +"line of defence that the documents which has been filed on record i.e., settlement, does not bear the signature of the accused and onlypyara singh",audio_44_212.mp3 +"vs. . M/s alkarma page 1 of 24 on 14 july, 2023",audio_44_213.mp3 +His witness attempted to establish that cw 2 was never authorized by the accused to enter into any settlement with the complainant. This line of,audio_44_214.mp3 +"defence also does not hold much water. It stands proved through the testimony of cw 2 i.e., vijay thakur that he was also the employee",audio_44_215.mp3 +of accused firm and was working in the position of Sr. manager. The same also stands proved through the documents which has been brought on,audio_44_216.mp3 +record by cw 2 which are on the letter head of the accused firm. 39. Cw 2 further brought on record authorization letter dated 08.01.2018,audio_44_217.mp3 +ex cw2/b which does establish that he was duly authorized. Although the accused did attempt to show that since the settlement was dated 30.11.2017 and,audio_44_218.mp3 +"whereas the authorization letter ex cw2/b is of 08.01.2018, cw 2 was never authorized to enter into any settlement agreement on behalf of the accused.",audio_44_219.mp3 +"However, a plausible explanation to this effect was given by cw 2 in his cross examination that since he was working in continuity with the",audio_44_220.mp3 +accused firm he was under directions form the accused to sign mark a and mark b whereas the accused in writing had issued the Auth. ,audio_44_221.mp3 +letter to him on 08.01.2018. It is proved that cw 2 has been working in the position of Sr. manager with accused alkarma and was,audio_44_222.mp3 +"also authorized to issue identity cards to the employees of the accused alkarma. Further, cw 2 has been working in the accused firm since 1993.",audio_44_223.mp3 +"In view the abovesaid long tenure and responsible position, the delay of merely a month in the issuance of the authorization letter does not create",audio_44_224.mp3 +"any reasonable doubt that cw 2 was never authorized by accused sandeep chaudhary to enter into settlement on behalf of accused firm. 40. Furthermore, a",audio_44_225.mp3 +"suggestion was put during the cross examination of cw 2 that ex cw2/b i.e., the authorization letter is forged and fabricated. However, mere suggestion by",audio_44_226.mp3 +itself does not prove that the document is forged and fabricated. Something more ought to be brought on record to establish the same. It is,audio_44_227.mp3 +not the Cas. of the accused that he has initiated any Crl. proceedings with respect to the forging and fabrication of ex cw2/b. No material,audio_44_228.mp3 +"whatsoever has been brought on record by accused to even suggest the same. Thus, it stands proved that cw 2 was authorized to enter into",audio_44_229.mp3 +settlement agreement on behalf of accused firm with the complainant. 41. The accused had an option to examine himself as a witness which the accused,audio_44_230.mp3 +"opted not to avail. Where the accused does not examine himself as a witness, his statement under S. 281 cr. P.c. Or 313 cr. P.c.",audio_44_231.mp3 +Cannot be read as evidence of the accused and it has to be looked into only as an explanation of the incriminating circumstance and not,audio_44_232.mp3 +as evidence. There is no presumption of law that explanation given by the accused was truthful (v.S. yadav vs. reena 2010 scc online del 3294).,audio_44_233.mp3 +"In the present matter, in his statement under S. 313 crpc the accused stated that the documents brought by cw 2 were never authorized by",audio_44_234.mp3 +"him and they are forged and fabricated. If the accused wanted to prove this, he was supposed to appear in the witness box and testify",audio_44_235.mp3 +"and get himself subjected to cross examination. Furthermore, nothing came in the cross examination of cw 2 so as to cast any doubt on the",audio_44_236.mp3 +"documents brought on record by him. 42. During the cross examination of the complainant, a suggestion was put to the complainant that there is nothing",audio_44_237.mp3 +"due against the accused/firm and that the complainant has already received his entire due from the accused when he left the firm. In other words,",audio_44_238.mp3 +"it is the stand of the accused thatpyara singh vs. . M/s alkarma page 1 of 24 on 14 july, 2023",audio_44_239.mp3 +"Accused/firm. The same was, however, denied by the complainant. The abovesaid position of the accused further stands corroborated through the statement of the accused under",audio_44_240.mp3 +S. 313 crpc wherein the accused stated that whatever due which he had has already been paid by him to the complainant. 43. At this,audio_44_241.mp3 +"juncture it is pertinent to note that in terms of S. 1 sub-S. (4) of payment of wages act, the act is applicable to a",audio_44_242.mp3 +"factory. Now, the accused firm alkarma is a factory. The same is proved on perusal of form no 3a i.e., notice of change of manager",audio_44_243.mp3 +brought on record by cw 2. 44. S. 13 a of payment of wages act is as follows: [13a. Maintenance of registers and records.--(1) every,audio_44_244.mp3 +"employer shall maintain such registers and records giving such particulars of persons employed by him, the work performed by them, the wages paid to them,",audio_44_245.mp3 +"the deductions made from their wages, the receipts given by them and such other particulars and in such form as may be prescribed. (2) every",audio_44_246.mp3 +"register and record required to be maintained under this S. shall, for the purposes of this act, be preserved for a period of three years",audio_44_247.mp3 +"after the date of the last entry made therein.] 45. Thus, as can be seen S. 13a mandates that an employer shall maintain registers and",audio_44_248.mp3 +"records of person employed by him, work performed, wages paid, deductions made, and receipts given. Alkarma being a factory was therefore required to maintain the",audio_44_249.mp3 +registers as per the labor legislations. The accused brought no registers maintained by him in this regard. If the stand of the accused is that,audio_44_250.mp3 +"he had already paid all the dues to the complainant, he ought to have brought the registers which were maintained by him reflecting the same,",audio_44_251.mp3 +"however, the accused brought nothing on record. Thus, adverse inference needs to be drawn against the accused firm and further the defence raised by the",audio_44_252.mp3 +"accused regarding due payment already been made to the complainant stands rejected. 46. The present matter, as per the memo of parties has been filed",audio_44_253.mp3 +against m/s alkarma through its partner sandeep chaudhary. In the complaint there exists a separate averment that accused sandeep chaudhary is partner of m/s alkarma,audio_44_254.mp3 +"and was/is looking after day-to-day affairs and is the authorized signatory of the Co. . Further, accused sandeep chaudhary signed on the cheque in question as",audio_44_255.mp3 +the authorized signatory of alkarma. Notice under S. 251 crpc was also framed against accused sandeep chaudhary as partner of accused alkarma. It is also,audio_44_256.mp3 +not the Cas. of the accused sandeep chaudhary that he is not the partner or authorized signatory of accused alkarma. In fact the entire defence,audio_44_257.mp3 +"of accused sandeep chaudhary was raised on the premise that accused sandeep chaudhary is the partner of accused alkarma. Hence, in the present matter the",audio_44_258.mp3 +"accused sandeep chaudhary was separately arraigned as an accused along with m/s alkarma. Thus, accused sandeep chaudhary is also vicariously liable in terms of S. ",audio_44_259.mp3 +"141 ni act being the partner of accused firm.pyara singh vs. . M/s alkarma page 1 of 24 on 14 july, 2023",audio_44_260.mp3 +"Statement of the accused under S. 313 cr.p.c, the accused has failed to create a dent/doubt in the Cas. of the complainant and it is",audio_44_261.mp3 +"clear that the accused had committed an offence under S. 138 of the NI Act . Further, the complainant has also been able to establish",audio_44_262.mp3 +"his Cas. . 48. On the basis of the above said analysis and conclusions arrived, the accused viz. i) m/s alkarma and ii) sh sandeep chaudhary",audio_44_263.mp3 +s/o shri subhash chaudhary is convicted for the commission of the offence punishable under S. 138 of the act. This judgment contains 24 pages. Every,audio_44_264.mp3 +page of this judgment has been signed by me. Digitally signed by harshal harshal negi announced in the open court negi date: 2023.07.14 on this,audio_44_265.mp3 +"day of 14th july, 2023 16:46:31 +0530 (harshal negi) mm(ni act)-05/south-west district dwarka courts/new delhpyara singh vs. . M/s alkarma page 1 of 24 on",audio_44_266.mp3 +"14 july, 2023",audio_44_267.mp3 +"M/S. baba steels suppliers vs. sri. Krishna shelters pvt. Ltd on 24 january, 2022 in the court of xx addl.chief MM at bengaluru city",audio_45_1.mp3 +"present: bhola pandit, b.com.,ll.m., xx addl. C.m.m. Bengaluru. Dated this the 24th day of january 2022 c.c.no.1899 of 2019 complainant : m/s. Baba steels suppliers,",audio_45_2.mp3 +"sy.no.201/2, village & post marsur, chandapura, anekal road, bengaluru- 560 106. Also at: adminstrative office no.m-04, premier presidency, 35/7, langford road, longford town, bengaluru- 560",audio_45_3.mp3 +"025. Represented by its proprietor, sri.vijay kumar chaudhary. { by sri.janeker.c.krishana - Adv. } vs. Accused : 1.sri. Krishna shelters pvt. Ltd., no.59, ""sri krishna",audio_45_4.mp3 +"sudha"", west anjaneya temple street, 2 c.c.1899/2019 off.basavanagudi main road, gandhi bazar, bengaluru- 560 004. Represented by its managing director, Mr. raghavendra kendalli ashwath. 2.",audio_45_5.mp3 +"Mr. raghavendra kendalli ashwath,m/S. baba steels suppliers vs. sri. Krishna shelters pvt. Ltd on 24 january, 2022",audio_45_6.mp3 +"sri. Krishna shelters pvt. Ltd., no.59, ""sri krishna sudha"", west anjaneya temple street, off.basavanagudi main road, gandhi bazar, bengaluru- 560 004. 3. Mr. kendalli ashwathnarayana",audio_45_7.mp3 +"rao anil kumar, managing director, sri. Krishna shelters pvt. Ltd., no.59, ""sri krishna sudha"", west anjaneya temple street, off.basavanagudi main road, gandhi bazar, bengaluru- 560",audio_45_8.mp3 +"004. { by sri.praveen hegde - Adv. } offence complained : u/S. 138 of n.i. Act., plea of accused : pleaded not guilty 3 c.c.1899/2019",audio_45_9.mp3 +final order : accused no.1 to 3 are convicted date of order : 24-01-2022 judgment the present complaint is filed under S. 2(d) r/w ,audio_45_10.mp3 +S. 200 of Cr.P.C. against the accused persons seeking to punish them for the offence punishable under S. 138 of the negotiable,audio_45_11.mp3 +"instruments act ( in short referred as ""n.i. Act""). 02. The factual matrix of the complaint is summarized as under; it is alleged in the",audio_45_12.mp3 +"complaint that, the complainant is a dealer in iron and steel products, registered with commercial tax Dept. . Accused no.1 is a Pvt. Ltd. Co. and",audio_45_13.mp3 +accused no.2 & 3 are its managing director and director respectively. Accused no.2 & 3 involved in day to day business of accused no.1 Co. .,audio_45_14.mp3 +"It is further alleged that, from 2015-2016, 2016-2017 & 2017-2018, the accused no.1 firm purchased iron and steels (tmt rebars) from the complainant by placing",audio_45_15.mp3 +an order and the complainant has supplied the materials based on the purchase order and the invoices were raised in the name of accused no.1,audio_45_16.mp3 +"and in this regard, a running account is maintained in the name of accused no.1 firm. Similarly, 5 purchase orders, 26 invoices andm/S. baba steels",audio_45_17.mp3 +"suppliers vs. sri. Krishna shelters pvt. Ltd on 24 january, 2022",audio_45_18.mp3 +"It is contended that, after receipt of materials from the complainant, the accused started postponing the payments and also keep an issuing fresh cheques one",audio_45_19.mp3 +"after Anr. with a request not to present the cheques as the accused was in financial problem. Finally, the accused has issued one cheque, which",audio_45_20.mp3 +"was dishonored. Therefore, a complaint in cc.no.20578/2016 has been filed before the small causes judge (scch-8) and acmm at bengaluru. During the pendency of the",audio_45_21.mp3 +"said Cas. mostly in the month of january 2018, the accused has offered to discharge their liability in 15 installments and given acknowledgement along with",audio_45_22.mp3 +"15 cheques for rs.42,46,000/- to the complainant as a fully and final settlement of the above said invoices and interest on delayed payments. The details",audio_45_23.mp3 +"of the post dated cheques are shown as under; sl. Cheque dated amount bank name and No. nos. Branch 1. 879831 25.01.2018 Rs. 2,00,000/- state",audio_45_24.mp3 +"bank of india, smc jayanagar, bengaluru. 2. 879832 25.02.2018 Rs. 2,00,000/- state bank of india, smc jayanagar, bengaluru. 3. 879833 25.03.2018 Rs. 2,00,000/- state bank",audio_45_25.mp3 +"of india, smc jayanagar, bengaluru. 4. 879834 25.04.2018 Rs. 2,00,000/- state bank of india, smc jayanagar, bengaluru. 5. 879835 25.05.2018 Rs. 3,00,000/- state bank of",audio_45_26.mp3 +"india, smc jayanagar, bengaluru. 6. 879836 25.06.2018 Rs. 3,00,000/- state bank of india, smc jayanagar, bengaluru. 7. 879837 25.07.2018 Rs. 3,00,000/- state bank of india,",audio_45_27.mp3 +"smc jayanagar, bengaluru. 8. 879838 25.08.2018 Rs. 3,00,000/- state bank of india, smc jayanagar, bengaluru. 9. 879846 25.09.2018 Rs. 4,00,000/- state bank of india, smc",audio_45_28.mp3 +"jayanagar, bengaluru. 10. 879840 25.10.2018 Rs. 4,00,000/- state bank of india, smc jayanagar, bengaluru. 11. 879841 25.11.2018 Rs. 4,00,000/- state bank of india, smc jayanagar,",audio_45_29.mp3 +"bengaluru.m/S. baba steels suppliers vs. sri. Krishna shelters pvt. Ltd on 24 january, 2022",audio_45_30.mp3 +"13. 879843 25.01.2019 Rs. 3,00,000/- state bank of india, smc jayanagar, bengaluru. 14. 879844 25.02.2019 Rs. 3,00,000/- state bank of india, smc jayanagar, bengaluru. 15.",audio_45_31.mp3 +"879845 25.03.2019 Rs. 3,00,000/- state bank of india, smc jayanagar, bengaluru. A copy of the acknowledgement dated 19.01.2018 was also executed. As per the said",audio_45_32.mp3 +"acknowledgement, the cheque at sl no.1 was presented , it has dishonored due to ""funds insufficient"" & ""payment stopped by the drawer"" and when the",audio_45_33.mp3 +"said fact has been informed to the accused no.2, he has paid rs.2,01,000/- through neft and the 2nd cheque was honoured for rs.2,00,000/-. However, on",audio_45_34.mp3 +"presentation of the cheques at sl.No. 3 to 5 were not honoured by the accused as per the promise to their agreed terms. Hence, the",audio_45_35.mp3 +"complainant filed cheque bounce Cas. against accused before this court in cc.no.21887/2018. Again on the dishonour of cheques at sl.no.6 to 8, the complainant has",audio_45_36.mp3 +"filed cheque bounce Cas. against the accused before this court in cc.no.28099/2018. That the cheques at sl.no.9 to 11 having matured and being riped, the",audio_45_37.mp3 +"complainant presented the below mentioned cheques for encashment, but they returned unpaid as "" payment stopped by drawer"". The details of the dishonoured cheques are",audio_45_38.mp3 +"as under; 1. Cheque bearing no.879846 dated 25.09.2018 for rs.4,00,000/-, 2. Cheque beraring no.879840 dated 25.10.2018 for Rs. 4,00,000/- & 3. Cheque bearing no.879841 dated",audio_45_39.mp3 +"25.11.2018 for rs.4,00,000/-. The above all the cheques were drawn on state bank of india, smc jayanagara branch, bengaluru. As per the banker's endorsements dated",audio_45_40.mp3 +"11.12.2018 & 28.11.2018 as "" payment stopped by drawer"". Therefore, on 21.12.2018, the complainant has issued demand notice to the accused demanding for the payment",audio_45_41.mp3 +"of dishonored above said three cheques and the said notice was served on 24.12.2018. Inspite of service of statutory notice, the accused neither has paid",audio_45_42.mp3 +"the cheques amount of rs.12,00,000/- nor has given any reply to the said notice. On these grounds, it is sought to punish the accused persons",audio_45_43.mp3 +"under S. 138 of ni act and award the compensation as per S. 357 of Cr.P.C. . 03. On presentation of complaint, this",audio_45_44.mp3 +court has verified the averments of complaint and annexed documents produced and thereby had taken cognizance for the offence punishable under S. 138 of ni,audio_45_45.mp3 +"act. Thereby, as per the verdict of the Hon'ble apex court in the Cas. of indian bank Assn. and Ors. v/s UOI and",audio_45_46.mp3 +"Anr. , reported in 2014 (5) scc 590, the sworn statement of the complainant has been recorded by Aff. as pw.1 and in all got marked",audio_45_47.mp3 +sixty seven documents at ex.p.01 to 67. After hearing the learned counsel for the complainant and also on perusal of the materials on record having,audio_45_48.mp3 +"been made out the prima-facie Cas. , the complaint has been registered in register No. iii and issued summons to the accused.m/S. baba steels suppliers vs. ",audio_45_49.mp3 +"sri. Krishna shelters pvt. Ltd on 24 january, 2022",audio_45_50.mp3 +"Through their counsel and filed bail applications under S. 436 of Cr.P.C. , the accused no.2 & 3 have been enlarged on bail.",audio_45_51.mp3 +The substance of accusation has been prepared and read over and explained to both of them and they pleaded not guilty and also not stated,audio_45_52.mp3 +"their defense. On the basis of Appl. filed under under S. 145(2) of ni act, the accused persons have been permitted to cross examine pw.1.",audio_45_53.mp3 +"On concluding the trial of the complainant's side, the statement of accused under S. 313 of Cr.P.C. has been recorded and read",audio_45_54.mp3 +"over to both the accused persons, the incriminating material found in the trial of the Cas. of the complainant. The accused persons have denied the",audio_45_55.mp3 +"same in toto and gave explanation stating that, they have given reply notice to the legal notice issued by the complainant and further stated that,",audio_45_56.mp3 +"since a false Cas. is filed against them, they are not obliged to discharge the alleged transaction. Similarly, the accused no.2 has entered in the",audio_45_57.mp3 +witness box and adduced the defense as dw.1 and got marked one document as per ex.d.1. 05. Heard the oral argument of both the learned,audio_45_58.mp3 +"counsels. So also, heard the reply argument of counsel of complainant. Perused the materials on record. 06. The following points that arise for my consideration",audio_45_59.mp3 +"are as under; points 1. Does the complainant proves beyond reasonable doubts that, the accused persons have issued three following cheques; 1. Cheque bearing no.879846",audio_45_60.mp3 +"dated 25.09.2018 for rs.4,00,000/-, 2. Cheque bearing no.879840 dated 25.10.2018 for Rs. 4,00,000/- & 3. Cheque bearing no.879841 dated 25.11.2018 for rs.4,00,000/-. Towards the discharge",audio_45_61.mp3 +"of their lawful liability of the complainant and when the said cheques were presented for encashment, the above said cheques were returned unpaid due to",audio_45_62.mp3 +"""payment stopped by the drawer"". In the account of the drawer as per banker's memo and inspite of issuance of demand notice , the accused",audio_45_63.mp3 +"have failed to pay the cheque amount, thereby has committed the offence punishable under S. 138 of ni act? 2. What order or sentence ?",audio_45_64.mp3 +07. My findings to the above points is as follows; 1. Point no.1: in the affirmativem/S. baba steels suppliers vs. sri. Krishna shelters pvt. Ltd,audio_45_65.mp3 +"on 24 january, 2022",audio_45_66.mp3 +"Reasons 08. Point no.1: it is the specific Cas. of the complainant that, towards discharge of the their liability, the accused have issued the three",audio_45_67.mp3 +"disputed cheques and when the said cheques were presented for encashment, they returned unpaid due to ""payment stopped by the drawer"" in the account of",audio_45_68.mp3 +"the drawer and inspite of receipt of demand notice, the accused have failed to make the payment of the cheques amount. 09. Before to appreciate",audio_45_69.mp3 +"the oral arguments advanced by the learned counsels for both the parties, i would like to discuss the documentary evidence produced by the complaint and",audio_45_70.mp3 +"the accused. Ex.p.1 to 3 are the cheques dated 25.09.2018, 25.10.2018 and 25.11.2018 drawn in the name of ""m/s.baba steel suppliers"" signed by the managing",audio_45_71.mp3 +"director of accused no.1 firm for total amount of rs.12,00,000/-. Ex.p.4 to 6 are the return memos dated 11.12.2018 and 28.11.2018, shows the reasons for",audio_45_72.mp3 +"the dishonour of the cheques at ex.p.1 to 3 are as "" payment stopped by the drawer"". Ex.p.7 is the legal notice issued by the",audio_45_73.mp3 +"complainant through his counsel and demanding for the payment of amount of cheques at ex.p.1 to 3 and in the said notice, the averments of",audio_45_74.mp3 +"complaint has been replicated. Ex.p.8 to 16 are the postal receipts and acknowledgements about sending the legal notice at ex.p.7, by accused no.1 firm by",audio_45_75.mp3 +"way of putting its seal. Ex.p.17 is the vat registration certificate, registered in the name of proprietor sri. Vijaya kumar chaudhary under the name and",audio_45_76.mp3 +"style of ""m/s.baba steel suppliers"". Ex.p.18 is the GST registration certificate in the name of proprietor sri. Vijaya kumar chaudhary under the",audio_45_77.mp3 +"name and style of ""m/s.baba steel suppliers"". Ex.p.19 to 23 are 5 purchase orders placed by accused no.1 firm on 09.02.2015 in the name of",audio_45_78.mp3 +"complainant proprietorship of ""m/s.baba steel suppliers"" for the supply of 100, 15.4, 35.5, 37 & 23.5 tons of steels. Ex. P.24 is the statement showing",audio_45_79.mp3 +total materials supplied and its cost. Ex.p.25 to 50 are the 26 tax invoices in respect of supply of materials to the construction sites of,audio_45_80.mp3 +"""sri krishna shelters Pvt. ltd.,"" at suratkal in mangalore and these materials were supplied on various dates in the month of february 2015, on all",audio_45_81.mp3 +"of these invoices the signature of buyer is appearing i.e., the representative of ""sri krishna shelters Pvt. ltd.,"" all these bills are standing in the",audio_45_82.mp3 +name of accused no.1 firm. Ex.p.51 is the statement showing the total materials supplied and its total cost. Ex.p.52 to 56 are the ledger account,audio_45_83.mp3 +"statements of ""m/s.baba steel suppliers"" pertaining to the amount due from accused n0.1 for the supply of materials in the month of february to march",audio_45_84.mp3 +"2015, april 2015 to march 2016, april 2017 to march 2018. Ex.p.57 is the acknowledgement dated 19.01.2018. The contents of this ex.p.57 reveals that, the",audio_45_85.mp3 +"accused no.1 Co. and its managing director have acknowledged their purchase orders issued and also the tax invoices raised at ex.p.25 to ex.p.50. Further, acknowledged",audio_45_86.mp3 +"about their due amount of rs.98,43,486/- towards ""m/s.baba steel suppliers"". They further acknowledged about their making payment of sum of rs.64,97,530/- by rtgs and also",audio_45_87.mp3 +"acknowledged the balance amount of rs.33,45,956/- with interest of amount of rs.9,00,000/-. They further acknowledged about getting settlement of Cas. inm/S. baba steels suppliers vs. ",audio_45_88.mp3 +"sri. Krishna shelters pvt. Ltd on 24 january, 2022",audio_45_89.mp3 +"Acknowledged about the issuance of the 15 cheques as per the settlement. They further acknowledged that, in all they are due of an amount of",audio_45_90.mp3 +"rs.42,45,956/- towards the complainant and towards the discharge of the said amount, they have issued these 15 cheques. On this ex.p.57 the signatures of accused",audio_45_91.mp3 +no.2 & 3 and also the seal of accused no.1 firm appears. Much has been argued by the learned counsel for the accused in respect,audio_45_92.mp3 +"of this ex.p.57 and it is contended that, with the aid of rowdies and police, the complainant got executed this acknowledgment by putting force on",audio_45_93.mp3 +"the accused persons. In order to substantiate and prove this allegation, the accused persons except the self serving testimony of accused no.2 as dw.1, they",audio_45_94.mp3 +"have not produced any documentary evidence and they have not produced the oral evidence of any witness. On the other hand, the accused persons not",audio_45_95.mp3 +"at all denied their signatures on ex.p.57. As per S. 91 of evidence act, "" when the terms of a contract, or of a grant",audio_45_96.mp3 +"has been reduced in the form of a document, no evidence is permissible to disprove the contents of the said documents or to prove the",audio_45_97.mp3 +"said documents, except the production of the said documents"". This document can be reliable in evidence in support of the Cas. of the complainant. As",audio_45_98.mp3 +"per the version of the accused, when it has been running a big firm by undertaking various construction works from the Govt. as well as",audio_45_99.mp3 +"the non-Govt. organizations, then a question would arise as to why accused no.2 & 3 were silence without lodging complaint before the police when this",audio_45_100.mp3 +"acknowledgement at ex.p.57 was obtained by force and duress. The counsel of accused relied ex.d.1 stating that, this was the covering letter dated 19.01.2018 sent",audio_45_101.mp3 +"along with ex.p.57 and as per this ex.d.1 there was a condition that, only on furnishing the original invoices for the supply of material, the",audio_45_102.mp3 +"15 cheques issued will be honoured. During cross examination of pw.1, a suggestion was made about this ex.d.1, pw.1 has denied about sending ex.d.1 along",audio_45_103.mp3 +"with ex.p.57. On perusal of this ex.d.1, wherein also the issuance of 15 cheques towards supply of steel material as per purchase orders is admitted",audio_45_104.mp3 +"and in ex.d.1 no where it is stated that, the said 15 cheques were issued as security before the supply of steel materials. Further, as",audio_45_105.mp3 +per the document at ex.p.51 wherein the representative of accused no.1 firm on 27.02.2015 had received the original bills received and put his signature. Under,audio_45_106.mp3 +"such circumstances, when the original bills are with accused no.1 firm, the question of producing those original bills before the court by the complainant does",audio_45_107.mp3 +"not arise. Therefore, i do not find any force in the contention of the learned counsel for the accused that the document produced at ex.p.57",audio_45_108.mp3 +has been obtained by using force. Ex.p.58 is a mail copy of accused no.1 firm sent to complainant agreeing to pay vat charges. Ex.p.59 &,audio_45_109.mp3 +"60 are the statements of vat payments made by ""baba steel suppliers"" in respect of steel materials to the accused no.1 firm. Ex.p.61 is the",audio_45_110.mp3 +invoice statements and payment of tax on such sale for the period of february 2015. Ex.p.62 is the copy of Anr. mail dated 23.02.2015 sent,audio_45_111.mp3 +"by accused no.1 firm to the complainant along with attachment copy, but the attachment copy is not produced before the court. Ex.p.63 is the Anr. ",audio_45_112.mp3 +"copy of mail sent from accused no.1 to ""m/s.baba steel suppliers"" about making payment sum through rtgs. Ex.p.64 is the copy of mail dated 22.06.2017",audio_45_113.mp3 +from complainant to accused no.1 firm requesting for the early payment of amount with interest. Ex.p.65 is the trading and profit and loss account of,audio_45_114.mp3 +"""baba steel suppliers"" and the annexed Sch. discloses about debt of rs.98,43,486/- of ""sri krishna shelters Pvt. Ltd. "", ex.p.66 is the copy of text message",audio_45_115.mp3 +"itm/S. baba steels suppliers vs. sri. Krishna shelters pvt. Ltd on 24 january, 2022",audio_45_116.mp3 +"Please sent today"" and ex.p.67 is the copy of e-filing system of commercial tax Dept. , which discloses about black listing accused no.1 firm by the",audio_45_117.mp3 +"commercial tax Dept. . On the other hand, the accused have produced before the court one attested copy of a corresponding letter dated 19.01.2018, which is",audio_45_118.mp3 +"marked as ex.d.1. The contents of this letter reveals that, the 15 post dated cheques handed over to the ""m/s.baba steel suppliers"" will be honoured",audio_45_119.mp3 +"subject to furnish the copy of original invoices for the supply made duly acknowledged with proper seal and signature of the authorized person of ""sri",audio_45_120.mp3 +"krishna shelters Pvt. ltd.,"" by the ""m/s.baba steel suppliers"". If ""m/s.baba steel suppliers"" fails to do so, then the agreement will not be enforceable and",audio_45_121.mp3 +"all the cheques returned within 30 days from the date of this agreement. In this letter at ex.d.1, the acknowledgement produced at ex.p.57 dated 19.01.2018,",audio_45_122.mp3 +"is referred contending that, the said acknowledgement dated 19.01.2018 is a agreement between the complainant and the accused. But, on perusal of ex.p.57, it do",audio_45_123.mp3 +"not bears the signature of proprietor of ""m/s.baba steel suppliers"" and also it does not reveals any words about entering any agreement between proprietor of",audio_45_124.mp3 +"""m/s.baba steel suppliers"" and the accused no.1 firm. The document at ex.p.57 reflects that, it is an acknowledgement executed by the accused firm and its",audio_45_125.mp3 +"managing director as well as the director acknowledging the supply of steel material and its due amount. Therefore, the document at ex.d.1 do not help",audio_45_126.mp3 +the accused to disprove the Cas. of the complainant. When the accused persons have not seriously disputed the tax invoices as well as the purchase,audio_45_127.mp3 +"orders at ex.p.19 to 23 either during cross examination of pw.1 or in the evidence of dw.1, but the contention of the accused persons that,",audio_45_128.mp3 +"these documents are fake or created, is not acceptable. 10. To disprove the Cas. of the complainant and also to rebut the mandatory presumptions which",audio_45_129.mp3 +"could be drawn under S. 139 of ni act, the accused no.2 by name Mr. raghavendra kendalli ashwath entered in the witness box and adduced",audio_45_130.mp3 +"his evidence as dw.1. He deposed that, he is the managing director of ' sri krishna Pvt. Ltd. ' as their firm under takes the construction",audio_45_131.mp3 +"work from the goverment, ngos and societies. They were undertaken to construct 20 apartments. In the year 2014-2015, they took the project at the cost",audio_45_132.mp3 +"of Rs. 850 to 900 crores from the central as well as the state Govt. and also Pvt. parties and in respect of construction, they",audio_45_133.mp3 +"were in need of steel, cement and rmc concretes and at that time, many dealers of steel materials have met them. The complainant also met",audio_45_134.mp3 +their Co. and thereafter they have issued purchase orders to many steel dealers. Their firm used to make the payment of only after making inspection,audio_45_135.mp3 +of their employee in respect of supplied materials at the working places and also putting signature by their employees on the invoices bills as per,audio_45_136.mp3 +"the memorandum of understandings. He further deposed that, as per the records of their firm, in the year 2014-2015, the steel for the worth of",audio_45_137.mp3 +"rs.63,00,000/- were supplied by the complainant's firm. Accordingly, the said amount of rs.63,00,000/- had been paid to the complainant firm by rtgs and letter of",audio_45_138.mp3 +"credit. He further deposed that, prior tom/S. baba steels suppliers vs. sri. Krishna shelters pvt. Ltd on 24 january, 2022",audio_45_139.mp3 +"Worth of rs.6,00,000/- each as a security with the complainant, thereafter due to technical reasons, they could not completed their projects in time and the",audio_45_140.mp3 +"period had been extended to 4-5 months. Only because of this reason, no more steel material has been purchased from the complainant and subsequently when",audio_45_141.mp3 +"their firm requested the complainant for the return of security cheques, but the complainant postponed to return the said cheques and thereby by misutilizing those",audio_45_142.mp3 +"two cheques, the complainant has filed cheque bounce Cas. before the court. He stated that, the complainant intending the police to sent them to his",audio_45_143.mp3 +"office many times and forced him to making payment at that time on 19.01.2018, there was a memorandum of acknowledgement between complainant and the accused",audio_45_144.mp3 +"as per ex.p.57 and Anr. receipt regarding the said memorandum of acknowledgement, the complainant firm itself has purchased the stamp paper and prepared the same",audio_45_145.mp3 +and sent to the office of the accused and they simply put their signature on the said documents and returned back to the complainant. The,audio_45_146.mp3 +"covering letter of the said acknowledgement is marked at ex.d.1, he stated that, deliberately the complainant not produced the similar document at ex.d.1 before the",audio_45_147.mp3 +"court. He stated that, the complainant firm is in possession of the cheque for the worth rs.1,50,00,000/- belongs to the accused firm. Even after return",audio_45_148.mp3 +"of ex.d.1, the accused firm has made payment of rs.2,00,000/- twicely to the complainant's firm through rtgs, even then the complainant firm did not return",audio_45_149.mp3 +"their cheques. Therefore, they have stopped further payment and requested for the payment of rs.4,00,000/-. He stated that, the accused firm do not owes any",audio_45_150.mp3 +"legally dischargeable debt towards the complainant. Hence, he has sought to dismiss the complaint and acquit them from this Cas. . The learned counsel for the",audio_45_151.mp3 +"complainant has substantially cross examined dw.1 at length. 11. The learned counsel for the complainant vehemently argued that, for the supply of steel 26 tax",audio_45_152.mp3 +"invoices were raised, which are marked at ex.p.25 to 50 and as per these records, the accused firm was to pay rs.96,43,486/- and out of",audio_45_153.mp3 +"which, rs.63,19,000/- amount has been paid and remaining of balance of rs.42,46,000/- requires to be paid by the accused firm. He further argued that, as",audio_45_154.mp3 +"per the compromise arrived in c.c.no.20578/16 before the small causes court, the accused firm has issued 12 cheques. The purchase orders placed by the accused",audio_45_155.mp3 +"firm at ex.p.19 to 23 coupled with the tax invoices prices at ex.p.25 to 50, the accused firm is required to pay the outstanding amount",audio_45_156.mp3 +"of rs.42,46,000/- to the complainant. He further argued that, as per the acknowledgement executed by the accused firm, the accused persons are liable to discharge",audio_45_157.mp3 +"the legal debt of the complainant. The learned counsel further argued that, the commercial tax Dept. now has kept accused no.1 firm in the black",audio_45_158.mp3 +"list. Accordingly, he has sought to convict the accused persons. 12. Inter alia, the learned counsel for the accused firm strenuously contended that, as per",audio_45_159.mp3 +"5 purchase orders, the accused firm has made payment more than rs.63,00,000/-. He further argued that, the transaction of the year 2015 and tillm/S. baba",audio_45_160.mp3 +"steels suppliers vs. sri. Krishna shelters pvt. Ltd on 24 january, 2022",audio_45_161.mp3 +"The payment of alleged out standing amount. The learned counsel further argued that, false tax invoices were raised just to grab money from the accused.",audio_45_162.mp3 +"It is contended that, the complainant not produced any records to show that, he has supplied some loads of steel from gsw steel industry, toranagal",audio_45_163.mp3 +"in bellary district and accused firm not at all put forth any order before the said industry. He further argued that, the 4 tax invoices",audio_45_164.mp3 +appears one date 15.02.2014 is shown one and the same lorry No. and questioned how could same lorry travel four times from toranagal to suratkal,audio_45_165.mp3 +"in a day. It is further argued that, the complainant not produced e-sugama invoices. Further contended that, ex.d.1 is the sufficient document to rebut the",audio_45_166.mp3 +"statutory presumption under S. 139 of ni act. Ex.d.1 is the sufficient document to rebut the statutory presumption 139 of ni act. Therefore, the learned",audio_45_167.mp3 +counsel has sought to dismiss the complaint and thereby to acquit the accused persons from the cases. 13. Before to consider and to appreciate the,audio_45_168.mp3 +"arguments advanced by the learned counsels, it necessary to find out as to whether the present complaint has been filed as per the provisions of",audio_45_169.mp3 +S. 138 of ni act. On perusal of the averments of the complaint and date of filing the complaint dated 14.01.2019 the cheques at ex.p.1,audio_45_170.mp3 +"to 3, bankers memo at ex.p.4 to 6, demand notice at ex.p.7, postal receipts and acknowledgements at ex.p.8 to 16, it appears that, the present",audio_45_171.mp3 +"complaint has been filed in the compliance of S. 138 of ni act. 14. That apart, while recording substance of accusation and statement under S. ",audio_45_172.mp3 +"313 of Cr.P.C. , the accused has admitted the receipt of legal notice at ex.p.7 and submitted that, he has given sufficient",audio_45_173.mp3 +"reply, but not produced copy of the said reply. 15. S. 118 & 139 of ni act are two important provisions and they provides for",audio_45_174.mp3 +raising mandatory presumptions in favour of the complainant once the issuance of cheque and signature thereon is admitted until the contrary is proved by the,audio_45_175.mp3 +"accused. Even in the catena of decisions i.e., in the Cas. of rangappa vs. Mohan reported in 2010(11) scc 441, in the Cas. of bir",audio_45_176.mp3 +"singh vs. Mukesh kumar reported in 2019(4) scc 197, in the Cas. of aps forex services (p) ltd., vs.shakthi international fashion linkers reported in 2020(12)",audio_45_177.mp3 +"scc 724, in the Cas. of rajeshbai muljibhai patel vs. State of gujarat, reported in 2020(3) scc 794, in the Cas. of triyambak S. hegde",audio_45_178.mp3 +"vs. Sripad reported in live law 2021 SC 492 and in the relied judgments of the complainant, a precedent is laid down that, """,audio_45_179.mp3 +"once the issuance of cheque and the signature thereon is admitted by the accused, the court is required to raise presumption in favour of the",audio_45_180.mp3 +"the complainant stating that, the accused has issued the cheque for some consideration towards discharge of his legal debt or liability of the complainant and",audio_45_181.mp3 +that the complainant is the due holder of the said cheque. The burden or reverse onus shifts on the accused to rebut the statutory presumptions,audio_45_182.mp3 +"under Ss. 118(a) & 139 of ni act."" now, it is well established law that, the presumption mandated by S. 139 of ni act, thus",audio_45_183.mp3 +"indeed includes the existencem/S. baba steels suppliers vs. sri. Krishna shelters pvt. Ltd on 24 january, 2022",audio_45_184.mp3 +"Probable defense wherein the existence of legally enforceable debt or liability can be contested and he shall prove before the court on preponderance of probabilities,",audio_45_185.mp3 +"only thereupon a statutory presumption raised in favour of the complainant stands rebutted. 16. During cross examination of pw.1 on page no.10, the accused side",audio_45_186.mp3 +"has suggested that, after getting compromise before the court of small causes that since the accused has issued 15 cheques out of the court, they",audio_45_187.mp3 +"could not file joint memo before that court. It is further suggested that, with the assistance of rowdies and police, the accused were pressurized took",audio_45_188.mp3 +"cheque from them, therefore, they could not file joint memo before the said court. Though, the witness denied the above suggestion, but by the said",audio_45_189.mp3 +"suggestion, the accused persons are admitting the issuance of the disputed cheques. Dw.1 deposed in his evidence that, before supply of material for the worth",audio_45_190.mp3 +"of rs.63,00,000/- in the year 2014-2015, the complainant forcefully took two cheques of rs.6,00,000/- each as security documents. But, later, did not return those cheques",audio_45_191.mp3 +"assigning reasons that, they were lost and thereafter by misutilizing the said cheques, the present complaint is filed. By considering these material evidence elicited during",audio_45_192.mp3 +"cross examination of pw.1 as well as dw.1, it appears that, the accused firm is admitting the issuance of cheques at ex.p.1 to 3 along",audio_45_193.mp3 +"with other cheques and the signature of accused no.2 on the said cheques. Therefore, the statutory presumptions under Ss. 118(a) & 139 of ni act",audio_45_194.mp3 +requires to be drawn in favour of the complainant that the accused firm has issued the cheques at ex.p.1 to 3 for some consideration towards,audio_45_195.mp3 +"the discharge of the legal debt of complainant and that the complainant being a proprietor of ""m/s.baba steel suppliers "" is the due holder of",audio_45_196.mp3 +"the said cheques at ex.p.1 to 3. 17. Now, the burden shifts on the accused to rebut the statutory presumption under S. 139 of ni",audio_45_197.mp3 +"act. In order to rebut the statutory presumption, the accused can very well make use of the material evidence of complainant or he can produce",audio_45_198.mp3 +"his own evidence. If the accused raised probable defense, he shall prove the same before the court on preponderance of probabilities. It is the defense",audio_45_199.mp3 +"of the accused firm that, the invoice bills at ex.p.25 to ex.p.50 are false and created. It is further defense that, in view of the",audio_45_200.mp3 +"document at ex.d.1, they are not liable to discharge the amount of cheques under ex.p.1, 2 & 3. So for as ex.d.1 is concerned in",audio_45_201.mp3 +"the aforesaid discussions a finding is given and as per the said findings, the document at ex.d.1 do not help the accused persons. Though, during",audio_45_202.mp3 +"the cross examination of pw.1 on page no.8 in para no.1, pw.1 has admitted that he has not issued legal notice seeking for the payment",audio_45_203.mp3 +of amount for the tax invoice bills at ex.p.25 to 50. But the said contention about not giving any notice to the accused and do,audio_45_204.mp3 +not raise any doubt on the document produced by the complainant at ex.p.25 to 50. The document at ex.p.25 to 50 are the second copies.,audio_45_205.mp3 +"Further, the accused has not filed any Appl. before the court seeking for production of documents from e-sugamam/S. baba steels suppliers vs. sri. Krishna shelters",audio_45_206.mp3 +"pvt. Ltd on 24 january, 2022",audio_45_207.mp3 +"Accused no.1 firm has put signature and affixed seal of the firm stating that, the original bill copies were received on 27.02.2015 and this ex.p.51",audio_45_208.mp3 +"is neither disputed nor denied by the accused. It is trite law that, when a party to the proceedings raises any defense it is for",audio_45_209.mp3 +him to establish the said defense and the version shall not be shifted on the other party. When the accused firm is confirming its purchase,audio_45_210.mp3 +"orders under ex.p.19 to 23 and document at ex.p.51, they cannot dispute the invoice bills at ex.p.25 to ex.p.50. That apart, the counsel of accused",audio_45_211.mp3 +"argued that, the complainant has not produced any documents to show that, the steel materials have been directly supplied from jsw Co. from thoranagal of",audio_45_212.mp3 +"bellary district, when it is not disputed that, the complainant is dealers in iron and steel suppliers, he can supply the steel materials either from",audio_45_213.mp3 +"his godown or from the steel Co. directly. When it is the Anr. defense of the accused that, whatever the materials purchased, they have paid",audio_45_214.mp3 +"entire amount to the complainant, then it is for the accused to produce before the court when and how much amount they have paid to",audio_45_215.mp3 +"the complainant towards the invoice bills under ex.p.25 to 50. Absolutely, the accused have not produced any documents before the court to show that how",audio_45_216.mp3 +"much amount they paid towards the supply of iron and steel by the complainant. Again contended that, a doubt would arise with reference to the",audio_45_217.mp3 +"tax invoices at ex.p.25 to 50 contending that, as per these documents only one truck vehicle bearing No. ka35-b- 3544 had runned four times in",audio_45_218.mp3 +"a day on 15/2/2015 and the materials have been supplied from jsw thorangal to surathkal, mangalore, how is it possible? to this contention, the learned",audio_45_219.mp3 +"counsel for the complainant submits that tax invoices bills at sl.no.623, 624 & 625 are three loads separately dumped in one truck and carried to",audio_45_220.mp3 +"surathkal. On perusal of these documents at ex.p.25 to 27, the contention of learned counsel for the complainant seems to be correct about carrying three",audio_45_221.mp3 +"loads in one truck. The learned counsel for the complainant has produced the gazette notification of Govt. of karnataka, dated 05.03.2014 and in part-g of",audio_45_222.mp3 +"the said notification rule 3 permits about consignment of multiple goods by raising multiple invoices in the same goods vehicle. Therefore, i do not find",audio_45_223.mp3 +"any force in the contention of the learned counsel for the defense side. During the cross examination of pw1 it is elicited that, at the",audio_45_224.mp3 +"time of consignment of the materials at surathkal, no official of complainant was present. The said evidence do not appears to be a probable defense.",audio_45_225.mp3 +"Pw.1 has admitted in further cross examination on page no.14 stating that, the amount of rs.12,00,000/- involved in this Cas. filed in the month of",audio_45_226.mp3 +"january 2018 is the same amount involved in the present Cas. and in the total amount shown in ex.p.57, the amount of rs.12,00,000/- is not",audio_45_227.mp3 +"deducted. The present Cas. is pertaining to only 3 cheques for rs.12,00,000/-. Therefore, the said evidence do not raise doubt in the Cas. put forth",audio_45_228.mp3 +"by the complainant. On one side during the cross examination of pw.1, it is suggested that, the acknowledgement at ex.p.57 has been falsely created and",audio_45_229.mp3 +"thereby has filed the false Cas. against the accused. On the other hand, on page no.2 in his oral evidence dw.1 deposed that, on 19.01.2018",audio_45_230.mp3 +an acknowledgement amount was reduced in writing in between accused firm and the complainant and though the complainant got drafted the said acknowledgement as per,audio_45_231.mp3 +"his convenient, they putm/S. baba steels suppliers vs. sri. Krishna shelters pvt. Ltd on 24 january, 2022",audio_45_232.mp3 +"Evidence of the accused, it clearly appears that, one side he admits the acknowledgement at ex.p.57 and on the other side he disputes the said",audio_45_233.mp3 +"document. Therefore, the defense taken by the accused in respect of document at ex.p.57 is inconsistent, do not appears to be probable and it do",audio_45_234.mp3 +"not inspires my confidence to believe the version of the accused. Therefore, by the oral evidence of the accused and his document at ex.d.1, i",audio_45_235.mp3 +"am of the considered opinion that, the accused has failed to brought on record the probable evidence to rebut the statutory presumptions under S. 118(a)",audio_45_236.mp3 +"& 139 of ni act. Further, the learned counsel for the complainant has produced the notification no.27/2017- central tax dated 30.08.2017 by the ministry of",audio_45_237.mp3 +"finance and Dept. of revenue, in rule 138 (11) it is stated that, the details of e-way bill generated under sub rule (1) shall be",audio_45_238.mp3 +"made available to the recipient, if registered on the common portal, who shall communicate his acceptance or rejection of the consignment covered by the e-way",audio_45_239.mp3 +"bill. Further, rule 138 (12) it is said that, where the recipient referred to in sub rule (11) does not communicate his acceptance or rejection",audio_45_240.mp3 +"within 72 hours of the details being made available to him on the common portal, it shall be deemed that, he has accepted the said",audio_45_241.mp3 +"details. In view of these provisions, when the accused firm not communicated about rejection or not receiving consignments from the complainant within 72 hours on",audio_45_242.mp3 +"uploading e-way bills, the accused firm is precluded to raise such a defense in this Cas. . Therefore, i answered point no.1 in the affirmative. 18.",audio_45_243.mp3 +"Point no.2: in view of the reasons stated and discussed above, the complainant has proved the guilt of the accused punishable under S. 138 of",audio_45_244.mp3 +"n.i. Act it is worth to note that, the offence is of the nature of Civ. wrong. Hence, it is proper to award sentence of",audio_45_245.mp3 +"fine, instead of awarding sentence of imprisonment. It is argued by the accused side that, pw.1 has admitted in his cross examination that, he has",audio_45_246.mp3 +"not supplied materials to accused no.3, therefore accused no.3 shall be acquitted. But, on perusal of the acknowledgement dated 19.01.2018, the said document has been",audio_45_247.mp3 +"signed by accused no.2 & 3. Therefore, even though, accused no.2 is the managing director & accused no.3 is only a director , it cannot",audio_45_248.mp3 +"be ruled out that, accused no.3 has not participated in the affairs of the Co. . The contention of the learned defense counsel is not acceptable.",audio_45_249.mp3 +"Accordingly, this court proceed to pass the following; order acting under S. 255 (2) of Crl. procedure code, accused no.1 to 3 are hereby convicted",audio_45_250.mp3 +"for the offence punishable under S. 138 of negotiable instrument act and sentenced to pay fine of rs.12,60,000/-(Rs. twelve lakhs sixty thousand only). In default,",audio_45_251.mp3 +"accused no.2 & 3 shall undergo simple imprisonment for 3 (three) months. Acting under S. 357(1) of Cr.P.C. , it is ordered that",audio_45_252.mp3 +"an amount of rs.12,50,000/- ( Rs. twelve lakhs fifty thousand only), there from shall be paid to the complainant as a compensation, remaining fine amount",audio_45_253.mp3 +"of rs.10,000/- (Rs. ten thousandm/S. baba steels suppliers vs. sri. Krishna shelters pvt. Ltd on 24 january, 2022",audio_45_254.mp3 +the bail bond of accused persons stands canceled subject to appeal period. Supply free copy of judgment to the accused. {dictated to the stenographer directly,audio_45_255.mp3 +"on computer, corrected and then signed by me and then pronounced in the open court on this 24 th day of january 2022}. (bhola pandit)",audio_45_256.mp3 +"xx acmm, bengaluru. Annexure list of witnesses examined on behalf of complainant: p.w.1 m/s. Baba steels suppliers, represented by its proprietor, sri.vijay kumar chaudhary. List",audio_45_257.mp3 +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 bank endorsements,audio_45_258.mp3 +"ex.p. 7 copy of the legal notice ex.p. 8 to 16 postal receipts & acknowledgements ex.p. 17 & 18 vat registration certificate, & goods and",audio_45_259.mp3 +services tax registration certificate. Ex.p.19 to 23 5 purchase orders ex. P.24 statement showing total materials supplied and its cost. Ex.p.25 to 50 26 tax,audio_45_260.mp3 +"invoicesm/S. baba steels suppliers vs. sri. Krishna shelters pvt. Ltd on 24 january, 2022",audio_45_261.mp3 +materials supplied and its total cost. Ex.p.52 to 56 ledger account statements ex.p.57 acknowledgement dated 19.01.2018. Ex.p.58 mail copy of accused no.1 firm sent to,audio_45_262.mp3 +complainant agreeing to pay vat charges. Ex.p.59 & 60 statements of vat payments. Ex.p.61 invoice statements and payment of tax. Ex.p.62 copy of Anr. mail,audio_45_263.mp3 +"dated 23.02.2015. Ex.p.63 Anr. copy of mail sent from accused no.1 to ""m/s.baba steel suppliers"" about making payment sum through rtgs. Ex.p.64 copy of mail",audio_45_264.mp3 +"dated 22.06.2017. Ex.p.65 trading and profit and loss account of ""baba steel suppliers"". Ex.p.66 copy of text message. Ex.p.67 copy of e-filing system of commercial",audio_45_265.mp3 +"tax Dept. , list of witnesses examined on behalf of accused: d.w.1 Mr. raghavendra kendalli ashwathm/S. baba steels suppliers vs. sri. Krishna shelters pvt. Ltd on",audio_45_266.mp3 +"24 january, 2022",audio_45_267.mp3 +"Ex.d.1 attested copy of a corresponding letter dated 19.01.2018. Xx a.c.m.m., bengaluru.m/S. baba steels suppliers vs. sri. Krishna shelters pvt. Ltd on 24 january, 2022",audio_45_268.mp3 +"Mansa ram vs. pratap ram & anr on 16 april, 2018 author: p.k. Lohra bench: p.k. Lohra HC of judicature for rajasthan at jodhpur",audio_46_1.mp3 +"s.b. Crl. revision No. 417 / 2018 mansa ram s/o shri lasa ji, by caste suyara, resident of kailash nagar, tehsil- sheoganj, district- sirohi (rajasthan).",audio_46_2.mp3 +"(presently lodged in district jail, sirohi). ----petitioner vs. 1. Pratap ram s/o shri chataraji, by caste purohit, resident of kailash nagar, tehsil shivganj, district sirohi",audio_46_3.mp3 +"(rajasthan). 2. State of rajasthan ----respondents _____________________________________________________ for Petitioner(s) : mr. Sambhoo singh for Respondent(s) : mr. O.p. Rathi, pp. For",audio_46_4.mp3 +respondent no.2 : mr. Parwat singh rathore. _____________________________________________________ hon'ble mr. J. p.k. Lohra order 16/04/2018 accused-petitioner has preferred this revision petition under S. 397/401 code,audio_46_5.mp3 +"of Crl. procedure to challenge judgment dated 22.03.2018 passed by special court, SC /st (prevention of atrocities) cases, sirohi (for short, 'learned appellate court'),",audio_46_6.mp3 +"whereby learned appellate court has confirmed judgment dated 10.09.2015, rendered by addl. Chief judicial magistrate, sheoganj, district sirohi (for short, 'learned trial court'). The learned",audio_46_7.mp3 +"trial court, by its verdict dated 10.09.2015, indicted accused-petitioner for offence under S. 138 of the NI Act , 1881 (for short, 'act') and handed",audio_46_8.mp3 +"down sentence of six months' simple imprisonment with fine of rs.10,000/- and in default of payment of fine to undergo fifteen days' simple imprisonment. (2",audio_46_9.mp3 +"of 10) [crlr-417/2018] being aggrieved by the same, petitioner approached learned appellate court but his that effort did not fructify to his advantage and the",audio_46_10.mp3 +learned appellate court dismissed his appeal. This sort of situation has necessitated filing of this revision petition. Learned counsel for the petitioner submits that now,audio_46_11.mp3 +"rival parties have sorted out their dispute and compromise has been arrived at. With this positive assertion, learned counsel has urged that both the impugned",audio_46_12.mp3 +judgments be annulled and sentence handed down by learned trial court and confirmed by learned appellate court be set aside. Learned public prosecutor on the,audio_46_13.mp3 +"other hand submits that although offence under S. 138 of the act is compoundable but after verdict of learned appellate court, it may not be",audio_46_14.mp3 +"appropriate to grant indulgence to the petitioner.mansa ram vs. pratap ram & anr on 16 april, 2018",audio_46_15.mp3 +"Between the parties, would urge that looking to the nature of offence and in the wake of settlement of dispute between the rival parties, the",audio_46_16.mp3 +"conviction recorded by the learned trial court and upheld by the learned appellate court merits annulment. I have heard learned counsel for the accused-petitioner, learned",audio_46_17.mp3 +public prosecutor as well as learned counsel for the complainant and perused the materials available on record. Chapter xvii of the act deals with penalties,audio_46_18.mp3 +in Cas. of dishonor of certain cheques for insufficiency of funds in the accounts. A complete procedure in this behalf is provided under S. 138,audio_46_19.mp3 +to 147 of the act. S. 142 deal with cognizance of (3 of 10) [crlr-417/2018] offence and S. 143 empowers a court to try cases,audio_46_20.mp3 +"under S. 138 of the act summarily. As per S. 147 of the act, every offence punishable under the act is compoundable notwithstanding anything contained",audio_46_21.mp3 +"in the Cr.P.C. while it is true that the offence is compoundable but a pivotal question, which has emerged for consideration, is",audio_46_22.mp3 +whether revisional powers can be exercised by this court to compound the offence under S. 138 of the act after conviction of the petitioner by,audio_46_23.mp3 +appellate court. The legal position in this behalf was fluid until the judgment rendered in damodar S. prabhu vs. Sayed babalal h. [(2010) 5 scc,audio_46_24.mp3 +"663] by the SC . In the said verdict, SC has examined the provisions of S. 138 and 147 of the act threadbare and",audio_46_25.mp3 +"observed that compensatory aspect of the remedy should be given priority over the punitive aspect. While discussing object of S. 138 of the act, the",audio_46_26.mp3 +"court held: ""however, there are some larger issues which can be appropriately addressed in the context of the present Cas. . It may be recalled that",audio_46_27.mp3 +"chapter xvii comprising S. 138 to 142 was inserted into the act by the banking, public financial institutions and negotiable instruments laws (amendment) act, 1988",audio_46_28.mp3 +(66 of 1988). The object of bringing S. 138 into the statute was to inculcate faith in the efficacy of banking operations and credibility in,audio_46_29.mp3 +transacting business on negotiable instruments. It was to enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for penalties in,audio_46_30.mp3 +"Cas. of bouncing of cheques due to insufficient arrangements made by the drawer, with adequate safeguards to prevent harassment of honest drawers. If the cheque",audio_46_31.mp3 +"is dishonoured for insufficiency of funds in the drawer's account or if it exceeds the amount arranged to be paid from that account, the drawer",audio_46_32.mp3 +"is to be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount",audio_46_33.mp3 +"of the cheque, or with both. (4 of 10) [crlr-417/2018] it may be noted that when the offence was inserted in the statute in 1988,",audio_46_34.mp3 +"it carried the provision for imprisonment up to one year, which was revised to two years following the amendment to the act in 2002. It",audio_46_35.mp3 +is quite evident that the legislative intent was to provide a strong Crl. remedy in order to deter the worryingly high incidence of dishonour of,audio_46_36.mp3 +"cheques. While the possibility of imprisonment up to two years provides a remedy of a punitive nature, the provision for imposing a `fine which may",audio_46_37.mp3 +extent to twice the amount of the cheque' serves a compensatory purpose. What must be remembered is that the dishonour of a chequemansa ram vs. ,audio_46_38.mp3 +"pratap ram & anr on 16 april, 2018",audio_46_39.mp3 +"Interest in ensuring the reliability of these instruments. The impact of this offence is usually confined to the Pvt. parties involved in commercial transactions."" while",audio_46_40.mp3 +"switching on to examine S. 147 of the act, SC has observed that this being an enabling provision, it can serve as exception to",audio_46_41.mp3 +"the general rule Inc. in subsec.(9) of S. 320 Cr.P.C. the court, while laying emphasis on non-abstante Cl. under the aforesaid S. ,",audio_46_42.mp3 +further held that S. 147 inserted by way of amendment to special law will override the effect of S. 320(9) Cr.P.C. placing,audio_46_43.mp3 +"reliance on some earlier judgments, the court, has approved compounding of offences at later stage of litigation in cheque bouncing cases, and held: the compounding",audio_46_44.mp3 +of the offence at later stages of litigation in cheque bouncing cases has also been held to be permissible in a recent decision of this,audio_46_45.mp3 +"court, reported as k.m. Ibrahim vs. k.p. Mohammed & anr., wherein kabir, j. Has noted (at scc p. 802, paras 13- 14): ""13. As far",audio_46_46.mp3 +"as the non-obstante Cl. included in S. 147 of the 1881 act is concerned, the 1881 act being a special statute, the provisions of S. ",audio_46_47.mp3 +147 will have an overriding effect over the provisions of the code relating to compounding of offences. ... (5 of 10) [crlr-417/2018] 14. It is,audio_46_48.mp3 +true that the Appl. under S. 147 of the NI Act was made by the parties after the proceedings had been concluded before the,audio_46_49.mp3 +"appellate forum. However, S. 147 of the aforesaid act does not bar the parties from compounding an offence under S. 138 even at the appellate",audio_46_50.mp3 +"stage of the proceedings. Accordingly, we find no reason to reject the Appl. under S. 147 of the aforesaid act even in a proceeding under",audio_46_51.mp3 +"Art. 136 of the constitution."" it is evident that the permissibility of the compounding of an offence is linked to the perceived seriousness of the",audio_46_52.mp3 +offence and the nature of the remedy provided. On this point we can refer to the following extracts from an academic commentary [cited from: k.n.c.,audio_46_53.mp3 +"Pillai, r.v. Kelkar's Crl. procedure, fifth edn. (lucknow: eastern book Co. , 2008) at p. 444]: ""17.2 compounding of offences,- a crime is essentially a wrong",audio_46_54.mp3 +"against the society and the state. Therefore, any compromise between the accused person and the individual victim of the crime should not absolve the accused",audio_46_55.mp3 +"from Crl. responsibility. However, where the offences are essentially of a Pvt. nature and relatively not quite serious, the code considers it expedient to recognize",audio_46_56.mp3 +"some of them as compoundable offences and some Ors. as compoundable only with the permission of the court. ...""mansa ram vs. pratap ram & anr",audio_46_57.mp3 +"on 16 april, 2018",audio_46_58.mp3 +"Offence punishable under S. 138 of the act [cited from: arun mohan, some thoughts towards law reforms on the topic of S. 138, negotiable instruments",audio_46_59.mp3 +"act -tackling an avalanche of cases (new delhi: universal law publishing co. Pvt. Ltd., 2009) at p. 5] ""... Unlike that for other forms of",audio_46_60.mp3 +"crime, the punishment here (in so far as the complainant is concerned) is not a means of seeking retribution, but is more a means to",audio_46_61.mp3 +ensure payment of money. The complainant's interest lies primarily in recovering the money rather than seeing the drawer of the cheque in jail. The threat,audio_46_62.mp3 +"of jail is only a mode to ensure recovery. As against the accused who is willing to (6 of 10) [crlr-417/2018] undergo a jail term,",audio_46_63.mp3 +there is little available as remedy for the holder of the cheque. If we were to examine the No. of complaints filed which were `compromised',audio_46_64.mp3 +"or `settled' before the final judgment on one side and the cases which proceeded to judgment and conviction on the other, we will find that",audio_46_65.mp3 +"the bulk was settled and only a miniscule No. Conti. ."" finally, the court has framed certain guidelines for a graded scheme of imposing costs on",audio_46_66.mp3 +"parties who unduly delay compounding of the offences. Framing the guidelines, the court held: with regard to the progression of litigation in cheque bouncing cases,",audio_46_67.mp3 +the learned AG has urged this court to frame guidelines for a graded scheme of imposing costs on parties who unduly delay compounding of,audio_46_68.mp3 +"the offence. It was submitted that the requirement of deposit of the costs will act as a deterrent for delayed composition, since at present, free",audio_46_69.mp3 +"and easy compounding of offences at any stage, however belated, gives an incentive to the drawer of the cheque to delay settling the cases for",audio_46_70.mp3 +years. An Appl. for compounding made after several years not only results in the system being burdened but the complainant is also deprived of effective,audio_46_71.mp3 +"J. . In view of this submission, we direct that the following guidelines be followed:- (i) in the circumstances, it is proposed as follows: (a) that",audio_46_72.mp3 +directions can be given that the writ of summons be suitably modified making it clear to the accused that he could make an Appl. for,audio_46_73.mp3 +"compounding of the offences at the first or second hearing of the Cas. and that if such an Appl. is made, compounding may be allowed",audio_46_74.mp3 +"by the court without imposing any costs on the accused. (b) if the accused does not make an Appl. for compounding as aforesaid, then if",audio_46_75.mp3 +"an Appl. for compounding is made before the magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will",audio_46_76.mp3 +"be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the legal services Auth. , or such Auth. ",audio_46_77.mp3 +"as the court deems fit.mansa ram vs. pratap ram & anr on 16 april, 2018",audio_46_78.mp3 +"A HC in (7 of 10) [crlr-417/2018] revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of",audio_46_79.mp3 +"the cheque amount by way of costs. (d) finally, if the Appl. for compounding is made before the SC , the Fig. would increase to",audio_46_80.mp3 +20% of the cheque amount. It is relevant that both the parties have entered into compromise and same has been verified by the counsels appearing,audio_46_81.mp3 +"on behalf of rival parties before the deputy registrar (judl.) in pursuance of direction issued by this court today itself. The complete text of compromise,",audio_46_82.mp3 +"in vernacular, reads as under: ""vkilh jkthukek egksn;th] mijksdr vuoku esa ifjoknh izrkijke us vfhk;qdr eankjke ds f[kykq ,d ifjokn varxzr /kkjk 138 ,u-vkbz-,dv ds",audio_46_83.mp3 +rgr vij eq[; u;kf;d eftlv€sv f'koxat esa is'k fd;k ftlesa vfhk;qdr eankjke dks v/khulfk u;k;ky; }kjk fnukad 10-09- 2015 dks 6 ekg dh ltk dk,audio_46_84.mp3 +"vkns'k ikfjr fd;k x;k fkk a ftlds fo:) vfhk;qdr eankjke }kjk ftyk ,oa l= u;k;k/kh'k fljksgh ds le{k ,d vihy la[;k 03@2017 □106@2015‚ is'k dh",audio_46_85.mp3 +"fkh tks vihy ftyk ,oa l= u;k;ky; fljksgh }kjk fof'k""b u;k;ky; vuqlwfpr tkfr ,oa tu tkfr izdj.k fljksgh dks varfjr dj nh fkh ftlesa fnukad",audio_46_86.mp3 +"22-3-2018 dks vihy [kkfjt djrs gq, fnukad 10-9-2015 izdj.k la[;k 740@2013 dh iqf""v dj nh fkh a ftlds fo:) vfhk;qdr eankjke }kjk ekuuh; jktlfkku mpp",audio_46_87.mp3 +"u;k;ky;] tks/kiqj esa ,d fuxjkuh ;kfpdk la[;k 417@2018 is'k dh xbz a bl njfe;ku vfhk;qdr o ifjoknh ds chp es vkilh jkthukek gks x;k rfkk",audio_46_88.mp3 +vfhk;qdr us ifjoknh ls yh xbz leiw.kz jde ifjoknh dks okfil yksvk nh a ;g fd bl izdj.k esa vc vfhk;qdr }kjk ifjoknh dh leiw.kz,audio_46_89.mp3 +jkf'k yksvk nh xbz gs bl dkj.k ifjoknh vc bl ekeys dks vkxs ugh pykuk pkgrk gs rfkk yksd vnkyr dh hkkouk ls nksuksa i{kdkjksa,audio_46_90.mp3 +ds e/; vkil esa jkthukek gks pqdk gs a ;g fd bl izdj.k esa vfhk;qdr eankjke tks fd orzeku esa ftyk dkjkx`g fljksgh esa cun,audio_46_91.mp3 +gs rfkk ;g jkthukek vfhk;qdr o ifjoknh ds chp gks pqdk gs a (8 of 10) [crlr-417/2018] vr% jheku th ls fuosnu gs fd vfhk;qdr,audio_46_92.mp3 +}kjk is'k dh xbz fuxjkuh ;kfpdk la[;k 417@2018 dks tfj;s jkthukek lohdkj fd;s tkus ds vkns'k iznku djkosa rfkk vfhk;qdr dks ftyk dkjkx`g fljksgh ls,audio_46_93.mp3 +"fjgk fd;s tkus ds vkns'k iznku djkos a tfj;s vfhk;qdr vf/kodrkk tfj;s ifjoknh vf/kodrkk"" SC in a recent judgment m/s. Meters and instruments pvt.",audio_46_94.mp3 +Ltd. & anr. V/s. Kanchan mehta [(2018) 1 scc 560] has reiterated the compensatory aspect of remedy to be given priority over the punitive aspect,audio_46_95.mp3 +"vis-a-vis offence under S. 138 of the n.i. Act. The court held:- ""18. From the above discussion following aspects emerge: i) offence under S. 138",audio_46_96.mp3 +of the act is primarily a Civ. wrong. Burden of proof is on accused in view presumption under S. 139 but the standard of such,audio_46_97.mp3 +"proof is ""preponderance of probabilities"". The same has to be normally tried summarily as per provisions of summary trial under the Cr.P.C. ",audio_46_98.mp3 +"but with such variation as may bemansa ram vs. pratap ram & anr on 16 april, 2018",audio_46_99.mp3 +"Thus read, principle of S. 258 Cr.P.C. will apply and the court can close the proceedings and discharge the accused on satisfaction",audio_46_100.mp3 +that the cheque amount with assessed costs and interest is paid and if there is no reason to proceed with the punitive aspect. Ii) the,audio_46_101.mp3 +"object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has",audio_46_102.mp3 +to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found acceptable to the parties or the court.,audio_46_103.mp3 +"Iii) though compounding requires consent of both parties, even in absence of such consent, the court, in the interests of J. , on being satisfied that",audio_46_104.mp3 +"the (9 of 10) [crlr-417/2018] complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused. Iv) procedure for trial",audio_46_105.mp3 +"of cases under chapter xvii of the act has normally to be summary. The discretion of the magistrate under second proviso to S. 143, to",audio_46_106.mp3 +"hold that it was undesirable to try the Cas. summarily as sentence of more than one year may have to be passed, is to be",audio_46_107.mp3 +"exercised after considering the further fact that apart from the sentence of imprisonment, the court has jurisdiction under S. 357(3) Cr.P.C. to",audio_46_108.mp3 +award suitable compensation with default sentence under S. 64 ipc and with further powers of recovery under S. 431 Cr.P.C. with this,audio_46_109.mp3 +"approach, prison sentence of more than one year may not be required in all cases. V) since evidence of the complaint can be given on",audio_46_110.mp3 +"Aff. , subject to the court summoning the person giving Aff. and examining him and the bank's slip being prima facie evidence of the dishonor of",audio_46_111.mp3 +"cheque, it is unnecessary for the magistrate to record any further preliminary evidence. Such Aff. evidence can be read as evidence at all stages of",audio_46_112.mp3 +trial or other proceedings. The manner of examination of the person giving Aff. can be as per S. 264 Cr.P.C. the scheme,audio_46_113.mp3 +"is to follow summary procedure except where exercise of power under second proviso to S. 143 becomes necessary, where sentence of one year may have",audio_46_114.mp3 +"to be awarded and compensation under S. 357(3) is considered inadequate, having regard to the amount of the cheque, the financial capacity and the conduct",audio_46_115.mp3 +"of the accused or any other circumstances."" applying the ratio decidendi of damodar s.prabhu & m/s. Meters and instruments pvt. Ltd. (supra) and the guidelines",audio_46_116.mp3 +"framed therein, on the strength of compromise being arrived at between petitioner and the complainant, i feel persuaded to exercise revisional jurisdiction for doing real",audio_46_117.mp3 +"and substantial J. in the matter for the administration of which alone the courts exist. (10 of 10) [crlr-417/2018] accordingly, i prefer to give priority",audio_46_118.mp3 +to the compensatory aspect of remedy over the punitive aspect in the matter in the wake of settlement of dispute and compromise being arrived at,audio_46_119.mp3 +"between the rival parties. In view of foregoing discussion, the instant revision petition is allowed, impugned judgment dated 22.03.2018 passed by learned appellate court as",audio_46_120.mp3 +"well as judgment dated 10.09.2015 passed by themansa ram vs. pratap ram & anr on 16 april, 2018",audio_46_121.mp3 +Between the rival parties and while acknowledging their compromise offence under S. 138 of the act is hereby compounded by resorting to S. 147 of,audio_46_122.mp3 +"the act. Compounding of offence under S. 138 of the act obviously entails acquittal of petitioner. However, taking into account the fact that petitioner has",audio_46_123.mp3 +caused undue delay in making endeavour for compounding of offence in terms of guidelines framed by the SC in damodar S. prabhu & m/s.,audio_46_124.mp3 +"Meters and instruments pvt. Ltd. (supra), accused-petitioner is ordered to be released, if not required in any other Cas. , subject to condition that he deposits",audio_46_125.mp3 +"10% of the cheque amount i.e. Rs.30,000/- with the district legal services Auth. , sirohi in the backdrop of peculiar facts of the Cas. . (p.k. Lohra)j.",audio_46_126.mp3 +"A.asopa/-22mansa ram vs. pratap ram & anr on 16 april, 2018",audio_46_127.mp3 +"Dr. V. Bala raju vs. pashak feeds pvt. Ltd. And anr. On 1 october, 2004 equivalent citations: 2005(1)ald(cri)651, iv(2005)bc240, 2005crilj1129 order c.y. Somayajulu, j. 1.",audio_47_1.mp3 +The point for consideration in this petition is whether a person who manages the affairs of proprietary concern can be made liable along with the,audio_47_2.mp3 +"proprietor of the sole proprietary concern, for the offence under S. 138 of the NI Act , 1881 (the act), by invoking the aid of",audio_47_3.mp3 +"S. 141 of the act. 2. Pvt. complainant filed by the first respondent against the mother of the petitioner (a1), who is the proprietrix of",audio_47_4.mp3 +"kousalya enterprises, and the petitioner (a2), alleging that kousalya enterprises, which was appointed as the distributor of the poultry feed products being manufactured by it,",audio_47_5.mp3 +"became indebted to it to a tune of more than Rs. 21,00,000/- while it was being managed by the petitioner and that the cheques for",audio_47_6.mp3 +"Rs. 18,00,000/- got drawn by the petitioner through his mother on behalf of kousalya enterprises towards part payment of that debt, were dishonoured on presentation",audio_47_7.mp3 +"for payment, and that the petitioner and his mother (a1) in spite of statutory notice being issued to them failed to pay the amounts covered",audio_47_8.mp3 +"by the dishonoured cheques, and hence, are liable for punishment under S. 138 r/w S. 141 of the act r/w S. 420, ipc",audio_47_9.mp3 +was taken cognizance of the learned magistrate after recording the sworn statement of the representative of the first respondent under S. 138 of the act,audio_47_10.mp3 +"only but not under S. 420, ipc against the petitioner (a2) and his mother. This petition is filed to quash the proceedings against the petitioner",audio_47_11.mp3 +"(a2). 3. The contention of sri c. Padmanabha reddy, learned Sr. counsel for the petitioner, is that since the dishonoured cheques were issued by a1,",audio_47_12.mp3 +"mother of the petitioner who is the proprietrix of kousalya enterprises, a sole proprietary concern, and since theory of vicarious liability does not apply to",audio_47_13.mp3 +"Crl. proceedings except as provided by a statute and since vicarious liability envisaged by S. 141 of the act applies to companies, firms and Assn. ",audio_47_14.mp3 +"of individuals but not to proprietary concerns, question of the petitioner being made vicariously liable for the bouncing of the cheques issued by the mother",audio_47_15.mp3 +"of the petitioner on the ground that he was managing the affairs of the proprietary concern of his mother does not arise, and so the",audio_47_16.mp3 +"proceedings against the petitioner are liable to be quashed. The contention of the learned counsel for the first respondent, is that, petitioner being a Govt. ",audio_47_17.mp3 +"servant and a veterinary Dr. , is carrying on business in poultry feed in the name of his mother, who is an old aged woman, and",audio_47_18.mp3 +"had entered into all the transactions with the first respondent as the de facto-owner of the kousalya enterprises, and that the petitioner with a view",audio_47_19.mp3 +"to cheat the first respondent, got the cheques signed by his mother (a1) and in the factsdr. V. Bala raju vs. pashak feeds pvt. Ltd.",audio_47_20.mp3 +"And anr. On 1 october, 2004",audio_47_21.mp3 +"Liable for the offence under S. 138 of the act committed by al, who never even stepped into the shop and with whom first respondent",audio_47_22.mp3 +did not deal personally. It is his contention that petitioner has been taking time in the trial court for production of his mother (a1) on,audio_47_23.mp3 +"the ground that she, who is aged 76 years, is bed ridden and since the trial court is refusing to grant, adjournments petitioner came up",audio_47_24.mp3 +with this petition with a mala fide intention and so there are no grounds to quash the proceedings against the petitioner. 4. Documents produced by,audio_47_25.mp3 +"the first respondent along with the complaint, no doubt, disclose that petitioner is actually looking after the affairs of kousalya enterprises, which admittedly is the",audio_47_26.mp3 +"proprietary concern of his mother i.e. A1. But since the offence alleged is under S. 138 of the act, which makes the drawer of the",audio_47_27.mp3 +"dishonoured cheque only liable for punishment prescribed therein, it is clear that for an offence under S. 138 only the drawer of the dishonoured cheque",audio_47_28.mp3 +"but nobody else can be made liable. If the bounced cheque is drawn on behalf of a Co. , in view of S. 141 of the",audio_47_29.mp3 +"act the person who drew the cheque on behalf of the Co. , along with the Co. and the directors and the other persons, who are",audio_47_30.mp3 +in charge of the day to day affairs and business of that Co. can be made vicariously liable for punishment for the offence under S. ,audio_47_31.mp3 +138 of the act committed by the drawer of the cheque on behalf of the Co. . 5. Though the heading of S. 141 of the,audio_47_32.mp3 +"act reads 'offences by companies', as per the explanation to that S. ""Co. "" means ""any body corporate and includes a firm or other Assn. of",audio_47_33.mp3 +"individuals; and ""director"" in relation to a firm, means a partner in the firm."" therefore, by virtue of the explanation, to S. 141 of the",audio_47_34.mp3 +act theory of vicarious liability is also extended to bodies corporate firms and associations of individuals only but not to sole proprietary concerns. Since kousalya,audio_47_35.mp3 +"enterprises, admittedly, is a proprietary concern, it cannot be said to be a Co. , or a firm or a body corporate or an Assn. of",audio_47_36.mp3 +"individuals, for to first respondent to invoke S. 141 of the act to make the petitioner also liable on the ground that he is managing",audio_47_37.mp3 +"its affairs. It is well known that penal statute has to be strictly construed, and it is also well known while construing a S. no",audio_47_38.mp3 +word can be added to or deleted from that S. . So by invoking S. 141 of the act a person who is not either the,audio_47_39.mp3 +"drawer of the dishonoured cheque, or the proprietor but is in charge of the day to day affairs of a sole proprietary concern, cannot be",audio_47_40.mp3 +made liable for an offence under S. 138 of the act. 6. The other contention of the learned counsel for the first respondent is that,audio_47_41.mp3 +"since the complaint was filed under S. 420, ipc also, and since the allegations in the complaint prima facie disclose the fraud committed by the",audio_47_42.mp3 +"petitioner, the learned magistrate ought to have taken cognizance of the complaint under S. 420. Ipc against the petitioner and so a direction may be",audio_47_43.mp3 +"given to the learned magistrate to take cognizance of the Cas. under S. 420, ipc against the petitioner. No such direction can be given in",audio_47_44.mp3 +"a petition filed by an accused under S. 482, cr. P.c. The remedy of the first respondent, who failed to question the order of the",audio_47_45.mp3 +"learned magistrate not taking cognizance of the Cas. under S. 420, ipc against the petitioner, is to file a fresh complaint against the petitioner for",audio_47_46.mp3 +"an offence S. 420, ipc, if so advised.dr. V. Bala raju vs. pashak feeds pvt. Ltd. And anr. On 1 october, 2004",audio_47_47.mp3 +"Are quashed.dr. V. Bala raju vs. pashak feeds pvt. Ltd. And anr. On 1 october, 2004",audio_47_48.mp3 +"S.minz vs. madhu bala gupta on 18 may, 2012 author: m.l. Mehta bench: m.l. Mehta * the HC of delhi at new delhi +",audio_48_1.mp3 +"crl.rev.p. No.573/2011 date of decision: 18.05.2012 s.minz .... Petitioner through: mr. O.p. Gehlaut, Adv. . vs. madhu bala gupta ......respondent through: mr. Prashant sharma, Adv. along",audio_48_2.mp3 +"with respondent in person. Coram: hon'ble mr. J. m.l. Mehta m.l. Mehta, j. (oral) 1. This is a revision petition filed against the order of",audio_48_3.mp3 +"the learned mm dated 11.11.2011, in the complaint Cas. No. 44/2008 under S. 138 of the NI Act (hereinafter referred to as the ""act"")",audio_48_4.mp3 +whereby the learned mm dismissed the Appl. of the petitioner under S. 45 of the evidence act praying for examination of the signatures on the,audio_48_5.mp3 +dishonored cheque by the fsl. 2. The facts necessary for the disposal of the present petition are that the petitioner issued two cheques bearing cheque,audio_48_6.mp3 +no. 549103 dated 17.12.2007 and 549104 dated 26.12.2007 of the amount of Rs. 2.5 lacs each to the complainant/ respondent. The cheques were dishonored on,audio_48_7.mp3 +"presentation to the bank of the complainant/ respondent citing ""insufficient funds"". Thereafter, a legal notice was issued and due to non- payment of the cheque",audio_48_8.mp3 +"amount, a complaint was filed in the court of learned mm under S. 138 of the act. The prosecution evidence was recorded and the prosecution",audio_48_9.mp3 +"witnesses cross-examined by the petitioner's counsel. Thereafter, the petitioner, in his defense, moved an Appl. under S. 45 of the evidence act for verification of",audio_48_10.mp3 +"the signatures on the dishonored cheque by the fsl. This Appl. came to be dismissed by the learned mm vide order dated 11.11.2011. Hence, the",audio_48_11.mp3 +present petition. 3. The learned counsel for the petitioner submitted that the learned mm erred in dismissing the Appl. of the petitioner on the ground,audio_48_12.mp3 +"that the cheque was dishonored not for the reason,s.minz vs. madhu bala gupta on 18 may, 2012",audio_48_13.mp3 +The dishonored cheques were forged and ought to have been verified by an expert as the bank was not an expert to verify the signatures,audio_48_14.mp3 +"and nowadays, the documents are forged with great accuracy and it is very difficult to distinguish without formal examination by an expert. The petitioner relies",audio_48_15.mp3 +"upon mrs. Kalyani bhaskar vs. mrs. M.S. sampornam, (2008) 2 scc 258 and p.r. Ramakrishnan vs. p. Govindarajan, 2007 crilj 1997 in support of his",audio_48_16.mp3 +"submissions. 4. Per contra, the learned counsel for the complainant/ respondent submitted that the Appl. of the petitioner before the trial court under S. 45",audio_48_17.mp3 +"of the evidence act, nowhere states that the dishonored cheques were stolen from the petitioner and thus the question of forgery does not arise at",audio_48_18.mp3 +"all. It was submitted that the cheques were not dishonored by the bank due to falsity of signature, but due to insufficient funds. Hence, the",audio_48_19.mp3 +"Appl. of the petitioner for verification of the signatures on the cheque by an expert is a delaying tactic, as observed by the learned mm.",audio_48_20.mp3 +He relies upon kanshi ram bansal vs. suman malhotra crl. M.c. 3876/ 2011 and l.c. Goyal vs. mrs. Suresh joshi & ors air 1999 supreme,audio_48_21.mp3 +"court 2222. It was further submitted that the order of the learned mm, being an interlocutory order is not amenable to the revisionary jurisdiction of",audio_48_22.mp3 +"this court, hence not maintainable. 5. I have heard the counsel for the parties and perused the evidence and the Cas. laws cited by the",audio_48_23.mp3 +"parties. 6. In view of the facts and circumstances of the present Cas. , i am in agreement with the observations of the learned mm. The",audio_48_24.mp3 +bank had not disputed the signatures of the petitioner on the cheque. The cheques were dishonored due to insufficiency of funds in the account of,audio_48_25.mp3 +"petitioner. The judgment of kalyani bhaskar (supra) is clearly distinguishable from the present Cas. , as in that Cas. the bank manager, during cross-examination had clearly",audio_48_26.mp3 +stated that the signatures on the cheque had not been verified by the bank at the time of dishonor of the cheque. No such statement,audio_48_27.mp3 +"has been made by the bank official in his examination before the learned mm. Further in the Cas. of p.r. Ramakrishnan (supra), the madras high",audio_48_28.mp3 +"court had allowed the petition for verification of signatures on cheque on the facts of that Cas. , as the reasons given by the trial court",audio_48_29.mp3 +"for dismissing the Appl. of the petitioner for verification of the signature, was delay in filing of the Appl. , which was not considered justified. The",audio_48_30.mp3 +learned mm in the present Cas. has given sufficient and cogent reasons for dismissing the Appl. of the petitioner. 7. In the Cas. of l.c.,audio_48_31.mp3 +"Goyal (supra) the SC observed in para (8) of its judgment observed as under : ""the complainant alleged that when the appellant realized that",audio_48_32.mp3 +"the complainant has come to know that he has misappropriated a sum of Rs. 25,491, he gave a cheque for a sum of Rs. 38,000",audio_48_33.mp3 +which is ext.c-4. The said cheque was drawn on uco bank and the same was deposited in the central bank of india in the account,audio_48_34.mp3 +"of union, viz., siemens' employees union, new delhi. But the said cheque was dishonored due to insufficient funds. The appellant denied his signature on ext.",audio_48_35.mp3 +C-4 and contended that his signature was forged by the complainant. It is in this context that it was urgeds.minz vs. madhu bala gupta on,audio_48_36.mp3 +"18 may, 2012",audio_48_37.mp3 +"Find out the genuineness of the signature on ext. C-4. As stated above, the cheque bounced not on account of the fact that the signature",audio_48_38.mp3 +"on ext. C-4 was not tallying with the specimen signature of the appellant kept with the bank, but on account of insufficient funds. Had the",audio_48_39.mp3 +"signature on ext. C-4 been different, the bank would have returned the same with the remark that the signature on ext. C- 4 was not",audio_48_40.mp3 +tallying with the appellant's specimen signature kept with the bank. The memos ext. C-6 and ext. C-8 issued by the bank clearly show that signature,audio_48_41.mp3 +"of the appellant on ext, c-4 was not objected to by the bank, but the same was returned with the remark ""insufficient fund"". This circumstance",audio_48_42.mp3 +"shows that the signature on ext. C-4 was that of the appellant."" 8. In the Cas. of manda syamsundra vs. Kurella anjaneyachari & Ors. 2009(1)",audio_48_43.mp3 +"dcr 726, the andhra pradesh HC relied upon the Cas. of hm satish vs. B.n. Ashok 2007(3) crimes 502 and l.c. Goyal (supra) and",audio_48_44.mp3 +"held thus; ""in the light of the above decisions and in the light of the return of the cheque not on the ground of signature",audio_48_45.mp3 +"not tallying, no purpose will be served in sending the document to the handwriting expert and there are no grounds to interfere with the order",audio_48_46.mp3 +"of the LC ."" 9. This court recently in the Cas. of kashi ram bansal (supra) also relied upon the decision of l.c. Goyal (supra)",audio_48_47.mp3 +"and held that in the Cas. of denial of signature by the drawer of a cheque, the best witness would be the concerned bank manager",audio_48_48.mp3 +"and not a handwriting expert. 10. In view of the above observations, i find no infirmity with the order of the learned mm. Hence the",audio_48_49.mp3 +"petition is dismissed. M.l. Mehta, j. May 18, 2012 hgs.minz vs. madhu bala gupta on 18 may, 2012",audio_48_50.mp3 +"Sri.t.puttaswamy vs. sri.g.seenaswamy on 7 january, 2022 1 Crl. a.no.2322/2018 kabc010318812018 in the court of the lix addl.city Civ. & sessions judge (cch-60) at bengaluru",audio_49_1.mp3 +"dated this the 07th day of january, 2022 -: p r e s e n t :- sri.sadananda nagappa naik b.a., l.l.b., lix addl.city Civ. ",audio_49_2.mp3 +"& sessions judge, cch-60, bengaluru city. Crl. appeal no.2322/2018 between:- appellant : sri.t.puttaswamy s/o late thimmegowda (accused - in aged about 58 years trial court)",audio_49_3.mp3 +": no.3724/23, 2nd main road, govindarajanagar (thimmenahalli), bengaluru 560 04. (by sri.nagesh.v.r, adv.) v/s. Respondent/ : sri.g.seenaswamy, s/o late gundappa, (complainant - aged about 62",audio_49_4.mp3 +"years in trial court) : r/at no.792, 20th main jnanabharathi 2nd stage (nagadevapalya) bengaluru 560 050 (by. Sri. K.m.ravi. Adv. ) 2 Crl. a.no.2322/2018 judg ment",audio_49_5.mp3 +"appellant has filed this appeal u/s.374(3) of Cr.P.C. , being aggrieved by the judgment of conviction and order ofsri.t.puttaswamy vs. sri.g.seenaswamy on",audio_49_6.mp3 +"7 january, 2022",audio_49_7.mp3 +The file of xxii-addl. Chief MM (hereinafter referred as impugned judgment and order). 2. Parties to this appeal shall be referred as per their,audio_49_8.mp3 +"ranking before the trial court for the purpose of convenience and for better appreciation of their contentions. 3. In the memorandum of appeal, appellant submitted",audio_49_9.mp3 +"that, trial court has not properly appreciated the materials available on record. He has not at all issued the cheque in question to the respondent",audio_49_10.mp3 +and therefore the dishonour of the cheque does not attract any penalty under S. 138 of n.i.act. No sufficient opportunity was given to the appellant,audio_49_11.mp3 +to establish his defence. No sufficient opportunity was given for cross-examination of complainant. The statement of accused as required under S. 313 of cr.p.c was,audio_49_12.mp3 +"not recorded. Respondent has filed the suit in 3 Crl. a.no.2322/2018 o.s.no.7656/2012 before the city Civ. court, bengaluru against the respondent and the respondent also",audio_49_13.mp3 +"filed the written statement contending that he was due only rs.2,50,000/- and as per the direction of the city Civ. court, he has deposited rs.2,50,000/-",audio_49_14.mp3 +on 26.3.2013 by way of demand draft. The respondent received the said amount and thereafter filed the rejoinder denying the averments made in the written,audio_49_15.mp3 +"statement. Since the appellant has not appeared before the trial court, the said suit was decreed and directedsri.t.puttaswamy vs. sri.g.seenaswamy on 7 january, 2022",audio_49_16.mp3 +"Paid rs.7,00,000/- to the respondent and he produced the valid receipts before the court and the same also reflected in the order sheet. The appellant",audio_49_17.mp3 +"also filed R.P. no.78/2010 before the city Civ. court which is pending for consideration. He thought that the Crl. Cas. also closed, but these",audio_49_18.mp3 +"facts suppressed before the magistrate. The impugned judgment of conviction and order of sentence is perverse. For the aforesaid reasons, appellant has prayed to interfere",audio_49_19.mp3 +"into the impugned judgment and order and set aside the same. 4 Crl. a.no.2322/2018 4. Along with memorandum of appeal, appellant produced certified copy of",audio_49_20.mp3 +"impugned judgment and order of conviction passed by the trial court in c.c.no.19506/2012, cerified copy of the order sheet in o.s.no.7656/2012, plaint in o.s.no.7656/2012. He",audio_49_21.mp3 +has also filed i.a. Under S. 5 of the limitation act with a prayer to condone the delay of 600 days in preferring the appeal.,audio_49_22.mp3 +"5. Respondent appeared through counsel. Heard arguments. T.c.r. Were called for reference in this appeal. 6. Now, following are the points arising for determination: 1.",audio_49_23.mp3 +"Whether appellant had sufficient cause for not preferring this appeal within the period of limitation?sri.t.puttaswamy vs. sri.g.seenaswamy on 7 january, 2022",audio_49_24.mp3 +"material brought before the court, trial court is justified in convicting accused/appellant for the offence punishable u/s.138 of n.i.act and sentencing accused for the said",audio_49_25.mp3 +offence? 3. Whether interference of this court is necessitated? 4. What order? 5 Crl. a.no.2322/2018 9. It is answered for the aforesaid points as under:-,audio_49_26.mp3 +"point no.1: in the affirmative point no.2: in the negative point no.3: in the affirmative point no.4: as per final order below, for the following:-",audio_49_27.mp3 +"reasons 10. Point no. 1:- perused the Appl. filed u/s.5 of limitation act, contents of Aff. filed in support of said i.a. In the Aff. ,",audio_49_28.mp3 +"appellant has submitted that, he was under financial crisis apart from suffering from viral fever and he was unable to contact his counsel to prefer",audio_49_29.mp3 +the appeal before the court. Learned counsel for the appellant submits that the respondent also filed a suit in o.s.no.7656/2012 against the appellant and in,audio_49_30.mp3 +"the said suit, the appellant admitted the payment of rs.2,50,000/- and as per the directions of the city Civ. court he deposited the said amount",audio_49_31.mp3 +"before the city Civ. court by way of demand draft and the respondent receivedsri.t.puttaswamy vs. sri.g.seenaswamy on 7 january, 2022",audio_49_32.mp3 +"Before the court, the said suit was decreed and directed the 6 Crl. a.no.2322/2018 appellant to pay rs.7,00,000/- to the respondent and accordingly he paid",audio_49_33.mp3 +"rs.7,00,000/- to the respondent. Therefore, the appellant thought that the entire Cas. including the Crl. Cas. was closed. When he received flw from the court,",audio_49_34.mp3 +"he came to know that the impugned judgment and order of conviction was passed. Immediately, he contacted the counsel and filed the present appeal. Hence",audio_49_35.mp3 +there is a delay of 600 days caused in preferring the appeal. Delay was not intentional but due to bonafide reason. 10.1) i have perused,audio_49_36.mp3 +the materials produced by the appellant and the reasons assigned by the appellant to condone delay of 600 days in preferring this appeal is genuine.,audio_49_37.mp3 +"This court is of the opinion that to provide an opportunity to prosecute the appeal, i.a. Deserves to be allowed. Hence, point no.1 is answered",audio_49_38.mp3 +in the affirmative. 8. Points no.2 & 3:- these points are taken together to avoid repeated discussions. 8.1) brief facts of the complaint is as,audio_49_39.mp3 +"follows; 7 Crl. a.no.2322/2018 complainant and the accused were employed at the printers mysore ltd., m.g. Road, bengaluru and in view of the close friendship,",audio_49_40.mp3 +"the accused availed loan of rs.10,50,000/-sri.t.puttaswamy vs. sri.g.seenaswamy on 7 january, 2022",audio_49_41.mp3 +"Towards the payment of money to a site at telecom employees co-operative housing society ltd., bengaluru. The accused agreed to return the said amount within",audio_49_42.mp3 +"short time along with reasonable interest. The accused has failed to repay the amount. On demand, the accused agreed to return the amount and issued",audio_49_43.mp3 +"a cheque bearing no.200787 of state bank of mysore, vijayanagar, bengaluru duly signed and authorising the complainant to fill up the same with regard to",audio_49_44.mp3 +"the amount and interest. The complainant after calculation of interest informed the accused and got filled the cheque to the tune of rs.13,82,000/-. Later, presented",audio_49_45.mp3 +"the said cheque through his banker viz., bank of india, jnanjyothi nagar, ullal main road, bengaluru. But same returned unpaid vide endorsement dated 01.07.2012 ""insufficient",audio_49_46.mp3 +"funds"". Thereafter complainant issued legal notice dated 14.06.2012 to the accused calling upon him to pay the cheque amount. Despite issuance of legal notice, accused",audio_49_47.mp3 +"neither paid the 8 Crl. a.no.2322/2018 cheque amount nor replied the legal notice issued by the complainant. Therefore, complainant filed the complaint against the accused/appellant",audio_49_48.mp3 +"u/s.200 of Cr.P.C. for the offence punishable u/s.138 of n.i.act. 9. Perused entire order sheets, complaint filed u/s.200 of code of Crl. ",audio_49_49.mp3 +"procedure , for the offence punishable u/s.138 of n.i.act, examination in chief Aff. of the complainant, pleasri.t.puttaswamy vs. sri.g.seenaswamy on 7 january, 2022",audio_49_50.mp3 +Ex.p.10. There is no procedural defect of any nature while conducting trial relating to Pvt. complaint registered for the offence punishable u/s.138 of n.i.act. 13.,audio_49_51.mp3 +"So far as appreciation of evidence is concerned, complainant sri.g.seenaswamy is examined as p.w.1. P.w.1 has reiterated averments of his complaint in his examination in",audio_49_52.mp3 +chief. Ex.p.1 is the xerox copy of cheque. Ex.p.2 is the bank endorsement made it clear that cheque issued by the accused came to be,audio_49_53.mp3 +"dishonoured by his banker for funds insufficient. Ex.p.3 is the legal notice, ex.p.4 is the postal receipt, ex.p.5 is the postal acknowledgment made it clear",audio_49_54.mp3 +that notice issued by 9 Crl. a.no.2322/2018 the complainant demanding payment under bounced cheque amount by the accused is served on the accused. Ex.p6 is,audio_49_55.mp3 +the reply notice issued by the accused to the complainant denying the loan transaction. Ex.p.7 is the loan agreement. Ex p8 is the xerox copy,audio_49_56.mp3 +"of the passbook details , ex p9 is the accounts extract reveals that the complainant has sufficient amount in his credit during january 2008 and",audio_49_57.mp3 +"therefore, this ex p7 proves that the complainant had sufficient amount to lend the amount to the accused. With the help of the evidence of",audio_49_58.mp3 +"p.w.1 and contents of ex.p.1 to ex.p10, complainant successfully discharged initial burden of proof casts under S. 138 of n.i act. Thereafter, burden shifts on",audio_49_59.mp3 +"the accused as persri.t.puttaswamy vs. sri.g.seenaswamy on 7 january, 2022",audio_49_60.mp3 +Of reverse onus on the accused to rebut presumptions. 14. Accused appeared before the court and enlarged on bail. He has specifically contended that no,audio_49_61.mp3 +opportunity was given to him to cross examine complainant/pw1. Statement of accused as required under S. 313 of cr.p.c was dispensed with. He has contended,audio_49_62.mp3 +that the trial court has observed in para 4 of its judgment that there were no incriminating evidence appeared against the accused. 10 Crl. a.no.2322/2018,audio_49_63.mp3 +15. Learned counsel for the appellant has filed his written arguments contending that the trial court has not conducted the trial as contemplated under code,audio_49_64.mp3 +of Crl. procedure. The trial court has not recorded the statement of the accused as required under S. 313 of Cr.P.C. the,audio_49_65.mp3 +reasons assigned by the trial court for not recording the statement of the accused itself establish that there were no incriminating evidence available against the,audio_49_66.mp3 +"accused and hence the trial court ought to have acquitted the accused instead of convicting the accused. In this regard, he has relied on the",audio_49_67.mp3 +judgment of our Hon'ble HC of karnataka rendered in Crl.P. no.2170/2021 and crl. Revision petition no.1111/2018. The trial court has afforded any opportunity,audio_49_68.mp3 +"to adduce his defence evidence. He further argued that in respect of the said transaction, the complainant also filed a suit in o.s.no.7656/2012 before xiv",audio_49_69.mp3 +"additional city Civ. judge, bengaluru. The appellant appeared in the said suitsri.t.puttaswamy vs. sri.g.seenaswamy on 7 january, 2022",audio_49_70.mp3 +"To a sum of rs.2,50,000/- and accordingly, as per the court direction he remitted rs.2,50,000/- to the court. Later, he remained absent and the said",audio_49_71.mp3 +"suit was decreed. He further 11 Crl. a.no.2322/2018 contended that he also paid rs.7,00,000/- to the complainant and complainant received the said amount. At this",audio_49_72.mp3 +"stage, he specifically contended that upon receipt of the said amount, the appellant thought that the Crl. Cas. was also closed. He has got valid",audio_49_73.mp3 +defence and hence he prays to allow the appeal. 15. Before considering the point whether accused succeeded to rebut presumptions and to establish his defence,audio_49_74.mp3 +"to the extent of probabilities, it is just and necessary to accumulate undisputed facts in this Cas. . 16. It is not in dispute that bounced",audio_49_75.mp3 +"cheque belongs to the bank account of the accused. It is also not in dispute that, signature appearing on the bounced cheque is the signature",audio_49_76.mp3 +"of the accused. It is also not in dispute that, cheque presented by the complainant came to be dishonoured by the banker of the accused",audio_49_77.mp3 +for the reason stated in the dishonour memo. 17. I have perused the order dated 21.09.2021 made in Crl.P. no.2170/2021 by the Hon'ble high,audio_49_78.mp3 +"court of karnataka. In the said decision, the Hon'ble HC of karnataka has given the following guidelines: 12 Crl. a.no.2322/2018sri.t.puttaswamy vs. sri.g.seenaswamy on 7",audio_49_79.mp3 +"january, 2022",audio_49_80.mp3 +"Oral and documentary evidence. Ii) the questions must be framed in a simple language, as far as possible in short sentences. Iii) the attention of",audio_49_81.mp3 +"each accused must be drawn to the evidence adverse or against him/her. Iv) sometimes, a witness may give evidence as regards the collective overt act",audio_49_82.mp3 +"of two or more accused and in that event a single question may be framed, but each accused must be questioned individually and their answers",audio_49_83.mp3 +must be recorded separately. V) it is also possible that two or more witnesses may speak identically regarding the overt act of an accused. In,audio_49_84.mp3 +"that event, the substance of their evidence may be put in a single question. Vi) the attention of the accused must be drawn to the",audio_49_85.mp3 +marked documents and material objects if they are incriminatory. Vii) the accused must be questioned regarding various types of mahazars or panchanamas only if they,audio_49_86.mp3 +"contain incriminatory evidence. Viii) accused need not be questioned in regard to evidence given by the formal witnesses, e.g. , an engineer who has drawn",audio_49_87.mp3 +"the sketch of scene of occurrence, a police constable submitting the FIR to the magistrate, a police 13 Crl. a.no.2322/2018 constable carrying seized",audio_49_88.mp3 +"articles to fsl, a police officer who has only submitted the charge sheet without conducting investigation, etc., unless anything incriminatory is found in such evidence.",audio_49_89.mp3 +"Ix) if there are two or more accused, it is not necessary to prepare as many sets of questionnaires as the No. of accused are.",audio_49_90.mp3 +"It is enough to prepare a single questionnaires as the No. of accused are. It is enough to prepare questionnaire, but the question must be",audio_49_91.mp3 +directed towards a particular accused individually or two or more accused collectively. When a question is framed pointing out collective overt act of two or,audio_49_92.mp3 +"more accused, the answer of each accused must be recorded separately one after Anr. . X) by virtue of amendment brought to cr.p.c the trial court",audio_49_93.mp3 +"judges may take the assistance of the public prosecutors and the defence counsel for framing the questions.sri.t.puttaswamy vs. sri.g.seenaswamy on 7 january, 2022",audio_49_94.mp3 +"Submits a set of questions, the trial court judges must scrutinize and adopt them with or without modification. Xii) the court should record the answer",audio_49_95.mp3 +"or explanation given by the accused and should not insist upon the accused to give answer in one word, 'false' or 'true'. In the present",audio_49_96.mp3 +"Cas. , the defence set up by the accused is that the judgment and order of conviction passed by the 14 Crl. a.no.2322/2018 trial court is",audio_49_97.mp3 +perverse and no opportunity provided to the accused to adduce evidence on his side and statement of accused under S. 313 of cr.p.c was not,audio_49_98.mp3 +"recorded. I have perused the order sheet maintained by the trial court. From the perusal of it, it is clear that the statement of accused",audio_49_99.mp3 +under S. 313 of cr.p.c has not been recorded. Even the trial court has not tried to set the questions to be put-forth to the,audio_49_100.mp3 +accused which are incriminating. The trial court in its judgment has observed that 313 statement is dispensed with as there is no incriminating evidence appeared,audio_49_101.mp3 +against the accused and proceeded to convict the accused. When the complainant has filed a complaint and clearly deposed that cheque issued by the accused,audio_49_102.mp3 +"is bounced and accused has not paid the cheque amount even after receipt of statutory notice, it cannot be said that there is no incriminating",audio_49_103.mp3 +"evidence against the accused. Therefore, from the materials placed on record, it establishes that the trial court ought to have given sufficient opportunity to the",audio_49_104.mp3 +"appellant to cross examine pw 1 and to adduce the evidence on his side and also ought to havesri.t.puttaswamy vs. sri.g.seenaswamy on 7 january, 2022",audio_49_105.mp3 +"Cr.P.C. hence, from this point of view, the judgment and order 15 Crl. a.no.2322/2018 of conviction passed by the trial court is",audio_49_106.mp3 +required to be interfered and to direct the trial court to provide an opportunity to the accused to cross examine pw 1 and to adduce,audio_49_107.mp3 +"his defence so also to record the statement of accused by following the guidelines mentioned supra. Accordingly, point no.2 is answered in the negative and",audio_49_108.mp3 +"point no.3 is answered in the affirmative. 18. Point no.4 :- in view of findings on the above point nos.1 to 3, this Crl. appeal",audio_49_109.mp3 +"is liable to be allowed by setting aside impugned judgment of conviction and order of sentence. Hence, following order is made: order invoking provisions under",audio_49_110.mp3 +"S. 386 of Cr.P.C. , this Crl. appeal filed u/s.374(3) of Cr.P.C. is allowed. Consequently, impugned judgment of conviction",audio_49_111.mp3 +"and order of sentence dated 18.11.2016 passed in c.c.no.19506/2012 on the file of xxii additional chief MM , bengaluru is hereby set aside. Acting under",audio_49_112.mp3 +"S. 386(b)(i) of Cr.P.C. , the matter is remanded to the trial court for trial in accordance with law afresh, in the",audio_49_113.mp3 +light of the observations made in the judgment. Both parties are directed to appear before the court below on 11.02.2022 without waiting for notice. The,audio_49_114.mp3 +court below shall take the matter on 11.02.2022 and to proceed with the matter in accordance with law. Send the copy of the judgment along,audio_49_115.mp3 +"with the records to the LC . (dictated to the judgment writer, transcribed and typed by him, corrected, signed and then pronounced by me in",audio_49_116.mp3 +"the open court on this 07th day of january, 2022.) sd/-07.01.2022 (sadananda nagappa naik) lix addl.city Civ. & sessions judge, cch-60, bengalurusri.t.puttaswamy vs. sri.g.seenaswamy on",audio_49_117.mp3 +"7 january, 2022",audio_49_118.mp3 +"M/S. mannapuram chits (k) vs. mr. D. Umapathi on 2 march, 2023 kabc030523702020 presented on : 28-10-2020 registered on : 28-10-2020 decided on : 02-03-2023",audio_50_1.mp3 +"duration : 2 years, 4 months, 5 days in the court of xxvii addl. Chief MM , bengaluru present: sri. H. Satish b.a.l, ll.b., ll.m.,",audio_50_2.mp3 +"xxvii a.c.m.m bengaluru. Dated: this the 2 nd day of march 2023. C.c. No.14007/2020 complainant m/s. Mannapuram chits (k) pvt ltd. No.881/f, 1st floor, v.S. ",audio_50_3.mp3 +"arcade, ii stage, sankarmutt bus stop, basaveshwarnagar, bengaluru - 560079. Branch: basaveshwarnagar, represented by its Sr. assistant, sri. Subhani shaik s/o. Moulali aged about 34",audio_50_4.mp3 +"years. (rep by sri. Sam george, adv.) v/s. Accused mr. D. Umapathi s/o. Mr. D. Chengamma naidu, no.2bc, 324, 2nd b cross, east of ngef,",audio_50_5.mp3 +"kasturi nagar, rammurthynagar, bengaluru 560016. (reptd by sri. P.p. Jayakumara adv.,) u/s.138 of negotiable offence instruments act. 2 c.c. No. 14007/2020m/S. mannapuram chits (k) vs. ",audio_50_6.mp3 +"mr. D. Umapathi on 2 march, 2023",audio_50_7.mp3 +Final order convicted judgment date 01/03/2023 **** judgment the complainant Co. has filed complaint u/sec.200 of Cr.P.C. against the accused for the,audio_50_8.mp3 +offence punishable u/sec.138 of negotiable instrument act. 2. The facts germane for disposal of the instant complaint can be summarized as per following:- it is,audio_50_9.mp3 +the Cas. of the complainant chit Co. that it is engaged in the business of promoting and conducting chit as per the provisions of chit,audio_50_10.mp3 +"funds act of 1982 and the accused is the subscriber to the chit group bearing No. bsn001fg ticket no.6 for a chit value of rs.10,00,000/-",audio_50_11.mp3 +"and an amount of rs.25,000/- was to be paid for a period of 40 months. It is stated that the accused participated in the chit",audio_50_12.mp3 +"auction held on 12/01/2019 and was declared as prize bidder and received prize money of rs.7,00,000/- on 20/07/2019. 3. It is also stated that accused",audio_50_13.mp3 +"along with other guarantor executed on demand promissory note, surety form, guarantee bond and other relevant documents in favour of the complainant Co. for the",audio_50_14.mp3 +"amount received by the accused and the accused has paid only 26 installments and became defaulter in repayment of monthly chit installments, which constrained, the",audio_50_15.mp3 +"complainant Co. to issue legal notice to the accused. After receipt of the same, the accused approached the officials of the complainant Co. and towards",audio_50_16.mp3 +"discharge of liability, due and payable, issued cheque bearing No. 669803, for a sum of rs.3,27,578/- dated : 19/05/2020 in the name of complainant Co. ,",audio_50_17.mp3 +"drawn on state bank of india, J. c. Road branch, bengaluru 560002. 4. It is stated that, on 19/05/2020 the complainant Co. presented the said",audio_50_18.mp3 +"cheque for encashment through its banker i.e., the karur vysya bank ltd., rajajinagar branch, bengaluru and the same got dishonoured and returned with memo dated:20/05/2020",audio_50_19.mp3 +"stating "" exceeds arrangements "" . Thereafter, the complainant Co. got issued legal notice dated: 02/06/2020 to the accused through rpad calling upon him to",audio_50_20.mp3 +repay the amount covered under the aforesaid cheque within 15 days from the date of receipt of notice and the same was served upon the,audio_50_21.mp3 +"accused on 08/06/2020. After receipt of notice, the accused has neither repaid the amount covered under the aforesaid cheque nor replied to the said notice.",audio_50_22.mp3 +"Hence, this complaint. 5. The sworn statement of the assistant branch manager of the complainant Co. by name anand kumar. S was recorded and as",audio_50_23.mp3 +"the complainant had complied the mandatory requirements of S. 138 of negotiable instrument act, this court took cognizance of the offence and issuedm/S. mannapuram chits",audio_50_24.mp3 +"(k) vs. mr. D. Umapathi on 2 march, 2023",audio_50_25.mp3 +On bail. 6. The plea of the accused was recorded and the substance of the accusation was read over to the accused in the language,audio_50_26.mp3 +"known to him and the same was explained, to which, accused pleaded not guilty and submitted he has defense to make. 7. In order to",audio_50_27.mp3 +"prove the Cas. , the Sr. assistant of complainant Co. by name subhani shaik got himself examined as pw.2 and he adopted the very same documents",audio_50_28.mp3 +"i.e., ex.p1 to p11 marked through pw1 and also got marked ex.p12 & 13 documents. 8. The statement of accused under S. 313 code of",audio_50_29.mp3 +Crl. procedure was recorded. The accused denied the incriminating evidence appearing against him. The accused has not let in oral evidence and no documents are,audio_50_30.mp3 +marked on his behalf. 9. Heard complainant arguments. The accused has not addressed his side arguments. I have perused materials on record. 10. The following,audio_50_31.mp3 +points arise for my determination: (1) whether the complainant Co. proves that the accused is the subscriber of the chit group bearing No. bsn001fg ticket,audio_50_32.mp3 +"no.6 for a chit value of rs.10,00,000/- and an amount of rs.25,000/- was to be paid for a period of 40 months. And the accused",audio_50_33.mp3 +"bid the chit amount and towards discharge of liability accused issued cheque bearing No. 669803, for a sum of rs.3,27,578/- dated : 19/05/2020 in the",audio_50_34.mp3 +"name of complainant Co. , drawn on state bank of india, J. c. Road branch, bengaluru 560002.? (2) whether the complainant Co. proves that accused has",audio_50_35.mp3 +committed offence punishable u/sec.138 of negotiable instrument act? (3) what order? 11. My answer to the above points is as per following:- point no.1 &,audio_50_36.mp3 +"2 : in the affirmative point no.3 : as per the final order, for the following:- r eas o n sm/S. mannapuram chits (k) vs. ",audio_50_37.mp3 +"mr. D. Umapathi on 2 march, 2023",audio_50_38.mp3 +Name subhani shaik got himself examined as pw.2 and he filed Aff. in lieu of examination in chief and reiterated the complaint averments and he,audio_50_39.mp3 +adopted ex.p1 to p11 documents marked through pw1 and also got marked ex.p12 & 13 documents. 13. The complainant Co. has exhibited the following ex.p1,audio_50_40.mp3 +"to p13 documents. Ex.p1 is the extract of minutes of meeting of the board of directors of the complainant Co. dated: 10/06/2020, ex.p2 is the",audio_50_41.mp3 +"authorization letter, ex.p3 is the chit agreement, ex.p4 is the on demand promissory note, ex.p5 is the cash voucher, ex.p6 is the account ledger extract,",audio_50_42.mp3 +"ex.p7 is the cheque dated: 19/05/2020, ex.p8 is the bank endorsement dated: 20/05/2020, ex.p9 is the office copy of notice dated: 01/06/2020, ex.p10 is the",audio_50_43.mp3 +"postal receipt, ex.p11 is the postal acknowledgement, ex.p12 is the minutes of meeting dated: 14/02/2022, and ex.p13 is the authorization letter dated: 14/02/2022. 14. On",audio_50_44.mp3 +"careful scrutiny of the documents produced by the complainant Co. which are marked as ex.p7 to p11, without touching upon the defence set up by",audio_50_45.mp3 +"the accused, prima-facie it goes to show that the complainant Co. has discharged initial burden of proving issuance and presentation of ex.p7 cheque, bouncing of",audio_50_46.mp3 +"cheque, issuance of notice and its service. At this juncture, i find it relevant to quote ruling reported in 2010(11) scc 441, decided between rangappa",audio_50_47.mp3 +"vs. Sri. Mohan wherein the Hon'ble apex court held that: presumption under S. 139 of negotiable instrument act, 1881 includes the presumption of the existence",audio_50_48.mp3 +"of legally enforceable debt or liability. That presumption is required to be honoured and if it is not so done, the entire basis of making",audio_50_49.mp3 +"these provision will be lost. Therefore, it has been held that, it is for the accused to explain his Cas. and defend it once the",audio_50_50.mp3 +fact of cheque bouncing is prima- facie established. The brain is on him to disprove the allegations once a prima-facie Cas. is made out by,audio_50_51.mp3 +"the complainant "". 15. In the aforesaid ruling the Hon'ble apex court has held that once the complainant establishes the bouncing of cheque, then it",audio_50_52.mp3 +is for the accused to disprove the allegations and also it is for him to rebut the presumption as contemplated under S. 139 of negotiable,audio_50_53.mp3 +instrument act by placing acceptable evidence. In the ruling decided in Crl. appeal No. 1233 - 1235 of 2022 decided on 12/08/2022 by the Hon'ble ,audio_50_54.mp3 +"apex court between rasiya v/s abdul nazar. At Para. 7 it is held that as per sec.139 of the NI Act , it shall be",audio_50_55.mp3 +"presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in sec.138 of the negotiable",audio_50_56.mp3 +"instruments act for discharge, in whole or in part, of any debt or other liability. Therefore, once the initial burden is discharged by the complainant",audio_50_57.mp3 +"that the cheque was issued by the accused and the signature and the issuance of cheque is not disputed by the accused, in that Cas. ,",audio_50_58.mp3 +the onus will shift on the accused to prove the contrary that the cheque was not for any debt or other liability. The presumption u/sec.,audio_50_59.mp3 +"139 of the NI Act is a statutory presumption and thereafter, once it is presumed that the cheque is issued in whole or in",audio_50_60.mp3 +"part of any debt or other liability which is in favour of the complainant / holder of cheque, in thatm/S. mannapuram chits (k) vs. mr.",audio_50_61.mp3 +"D. Umapathi on 2 march, 2023",audio_50_62.mp3 +"16. In the light of the principle laid down above, it is worth to note that, during the course of cross-examination dated: 28/12/2022 of pw1,",audio_50_63.mp3 +"at Para. 1, the accused has suggested to pw1 that the complainant Co. had obtained signed blank cheque from the accused at the time of",audio_50_64.mp3 +"he becoming chit member and by misusing the same and by filling up of the contents of the cheque, the complainant Co. has filed a",audio_50_65.mp3 +"false Cas. against the accused and the same is denied by pw1. The said suggestion put-forth by the accused to pw1, makes it amply clear",audio_50_66.mp3 +that the accused is admitting that the ex.p7 cheque belongs to him and signature appearing thereon also belongs to him and the accused also admits,audio_50_67.mp3 +"issuance of ex.p7 cheque in favour of the complainant Co. . Therefore, by taking note of the same, without discussing much about the stand taken by",audio_50_68.mp3 +"the accused in respect of the issuance of cheque or the transaction in question, this court will have to raise presumption as contemplated u/sec. 139",audio_50_69.mp3 +of the NI Act that the subject cheque was issued by the accused to the complainant towards discharge of liability. 17. It is to,audio_50_70.mp3 +"be noted that, accused has not stepped into the witness box to disprove the Cas. of the complainant. The Hon'ble apex court in the ruling",audio_50_71.mp3 +"reported in: 2019 scc online SC 491 decided between basalingappa v/s mudibasappa at para 25(3) (4) and (5) has categorically held that, to rebut",audio_50_72.mp3 +"the presentation, it is open for the accused to rely on evidence led by him or the accused can rely on the material submitted by",audio_50_73.mp3 +the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the material brought on record,audio_50_74.mp3 +"by the parties, but also by reference to the circumstances which they rely and also held, it is not necessary for the accused to come",audio_50_75.mp3 +"in the witness box in support of defence, S. 139 imposes an evidenciary burden and not a persuasive burden. In the light of the principle",audio_50_76.mp3 +"laid down above, it is not necessary for the accused to step in to the witness box to disprove the Cas. of the complainant. 18.",audio_50_77.mp3 +"It is to be noted that, in ruling reported in (2009) 2 scc 513 decided between kumar exports v/s. Sharma carpets, the Hon'ble apex court",audio_50_78.mp3 +has laid down principle in respect of the course to be adopted by the accused to disprove the Cas. of the complainant. At Para. 20,audio_50_79.mp3 +& 21 held that: the accused in a trial u/sec. 138 of the NI Act has two options. He can either show that consideration,audio_50_80.mp3 +"and debt did not exist or that under the particular circumstances of the Cas. , the non-existence of consideration and debt is so probable that a",audio_50_81.mp3 +"prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumption, an accused is not expected to prove his defence",audio_50_82.mp3 +beyond reasonable doubt as his expected of the complainant in a Crl. trial. The accused may adduce direct evidence to prove that the note in,audio_50_83.mp3 +"question was not supported by consideration and there was no debt or liability to be discharged by him. However, the court need not insist in",audio_50_84.mp3 +"every Cas. , that the accused should disprove the non- existence of consideration and debt by leading direct evidencem/S. mannapuram chits (k) vs. mr. D. Umapathi",audio_50_85.mp3 +"on 2 march, 2023",audio_50_86.mp3 +"The same time, it is clear that, bare denial of the passing of the consideration and the existence of debt, apparently would not serve the",audio_50_87.mp3 +purpose of the accused. Something which is probable has to be brought on record for getting the burden of prove shifted to the complainant. To,audio_50_88.mp3 +"disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration which, the court may either believe that the consideration and",audio_50_89.mp3 +"debt did not exist or there non-existence was so probable that a prudent man would under the circumstances of the Cas. , act upon the plea",audio_50_90.mp3 +that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by the consideration or that,audio_50_91.mp3 +"he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances, so relied upon or compelling,",audio_50_92.mp3 +"the burden may like wise, shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in",audio_50_93.mp3 +"sec.114 of the evidence act, to rebut the presumption u/sec. 118 & 139 of the NI Act . Para. 21: the accused has also an",audio_50_94.mp3 +option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases from the,audio_50_95.mp3 +"Cas. set out by the complainant, i.e. the averments in the complaint, the Cas. set out in the statutory notice and evidence adduced by",audio_50_96.mp3 +"the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the Cas. ",audio_50_97.mp3 +"and the preponderance of probabilities, the evidential burden shift back to the complainant and, therefore, the presumption u/sec. 118 and 139 of the negotiable instruments",audio_50_98.mp3 +"act will not again come to the complainant's rescue. In this backdrop, now i enter in to the domain of defense set up by the",audio_50_99.mp3 +"accused, to ascertain whether accused has been able to rebut the presumption as contemplated u/sec. 139 of the NI Act , for which i find",audio_50_100.mp3 +"it appropriate to examine each and every aspect in detail. I. Transaction: 19. It is required to be noted that, in order to establish the",audio_50_101.mp3 +"transaction in question, the complainant Co. has produced ex.p3 chit agreement, ex.p4 on demand promissory note, ex.p5 cash voucher, ex.p6 ledger account extract. On careful",audio_50_102.mp3 +"scrutiny of the same, it depicts that accused was the chit subscriber under the complainant Co. for the value of rs.10,00,000/- and that he bid",audio_50_103.mp3 +"the chit amount and received rs.7,00,000/-. During cross-examination, dated: 08/12/2022, at Para. 2, pw1 deposed that the complainant Co. has obtained necessary permission from the",audio_50_104.mp3 +competent Auth. for conducting chit business and admitted that he has not produced the said document and also deposed that he can produce the same.m/S. ,audio_50_105.mp3 +"mannapuram chits (k) vs. mr. D. Umapathi on 2 march, 2023",audio_50_106.mp3 +"The complainant Co. has not produced the said document, the accused has not disputed that he was not the chit subscriber under the complainant Co. ",audio_50_107.mp3 +"for the value of rs.10,00,000/-. Even otherwise, if the accused had any apprehension that the complainant Co. has conducted chit business without obtaining necessary permission",audio_50_108.mp3 +"as contemplated under karnataka chit fund act, the accused could have summon the necessary documents from the complainant Co. to establish that the complainant Co. ",audio_50_109.mp3 +"conducted the chit business violating the provisions of the karnataka chit fund act and notably, no such attempt is made by the accused. As such,",audio_50_110.mp3 +non-production of necessary documents pertaining to obtaining necessary permission for conducting chit business from the competent Auth. is not fatal to the Cas. of the,audio_50_111.mp3 +"complainant Co. . 21. That apart, at Para. 3, pw1 deposed that accused bid the chit amount for a sum of rs.7,00,000/- on 12/01/2019 and they",audio_50_112.mp3 +"have deducted sum of rs.1,45,387/- towards balance payment and also deducted rs.6,000/- towards GST and paid sum of rs.5,54,000/- to the bank",audio_50_113.mp3 +"account of the accused. It is to be noted that, the accused has not disputed receipt of rs.5,54,613/-. Ex.p5 document produced by the complainant Co. ",audio_50_114.mp3 +"also confirms the said payments made by the complainant Co. in favour of the accused. 22. That apart, as discussed it is worth to note",audio_50_115.mp3 +"that, the accused has not disputed the chit transaction in question. During cross-examination dated: 28/12/2022 at Para. 1, the accused has taken a defence that",audio_50_116.mp3 +"he had issued the subject cheque to the complainant Co. towards security and that when he issued the same, it was a signed blank cheque",audio_50_117.mp3 +"and that the complainant Co. has filled up the contents of the cheque and filed a false complaint against him, pw1 has denied the said",audio_50_118.mp3 +"suggestion. It is worth to note that, pw1 has deposed that the accused has issued the subject cheque on the date mentioned in the ex.p7",audio_50_119.mp3 +"cheque and notably, the same has not been denied by the accused. At Para. 2, the accused has suggested to pw1 between march 2019 to",audio_50_120.mp3 +"may 2020 the accused has made payment of rs.2,50,000/- to the complainant Co. in cash and the same is not shown in the ex.p6 account",audio_50_121.mp3 +"ledger extract, for which pw1 deposed that the accused has not paid any amount by way of cash. It is to be noted that, on",audio_50_122.mp3 +"careful scrutiny of ex.p6 account ledger extract, nothing is forthcoming as to the payments made by accused in cash, if at all the accused had",audio_50_123.mp3 +"made payment of rs.2,50,000/- by way of cash during the said period, the accused ought to have produced receipts for having made such payments. 23.",audio_50_124.mp3 +"That apart, pw1 has deposed that the complainant Co. had issued notice to the accused demanding payment of 14 chit installments amount and pw1 has",audio_50_125.mp3 +"admitted that he has not produced the said notice. The pw1 has also admitted that, except ex.p6 document, there is no any other document to",audio_50_126.mp3 +show that accused has to pay amount mentioned in the ex.p7 cheque. Though the complainant Co. has not produced notice demanding the balance 14 chit,audio_50_127.mp3 +installments from the accused and though pw1 admitted that except ex.p6 document there is no any other document to show that accused is liable to,audio_50_128.mp3 +"pay amount covered under the ex.p7 cheque, a careful scrutiny of ex.p7 cheque the balance amount claimed by the complainant Co. from the accused tallies",audio_50_129.mp3 +with the amount mentioned in the ex.p7 cheque and the accused has not placed any credible evidence before the court to establish that he had,audio_50_130.mp3 +"paid sum of rs.2,50,000/- to them/S. mannapuram chits (k) vs. mr. D. Umapathi on 2 march, 2023",audio_50_131.mp3 +Record to show that the accused had issued a subject cheque to the complainant Co. as a security towards the transaction in question and that,audio_50_132.mp3 +"the complainant Co. has filled up the contents of the cheque and has filed a false Cas. against the accused. 24. That apart, the complainant",audio_50_133.mp3 +"Co. has produced ex.p11 postal acknowledgement to establish that ex.p9 notice sent through rpad as per ex.p10 was served upon the accused and notably, the",audio_50_134.mp3 +"accused has not disputed issuance and service of notice and when the accused had received ex.p9 notice, the accused ought to have issued reply notice",audio_50_135.mp3 +"denying the averments made in the ex.p9 notice. As such, by taking note of the testimony of pw1 and the suggestions put-forth by the accused",audio_50_136.mp3 +"to pw1 and the answers elicited from pw1 coupled with the documents produced by the complainant Co. it could be concluded that, the complainant Co. ",audio_50_137.mp3 +has ably established the chit transaction in question and also issuance of ex.p7 cheque by the accused towards discharge of liability payable by him to,audio_50_138.mp3 +"the complainant Co. . Ii. Auth. of pw1:- 25. It is to be noted that, the accused has taken a defence that pw2 mr. Subhani shaik",audio_50_139.mp3 +"is not a competent authorized person to appear and depose on behalf of the complainant Co. . It is required to be noted that, initially, the",audio_50_140.mp3 +instant complaint was filed by the representative of the complainant Co. by name anand kumar. S. and he has filed Aff. in lieu of sworn,audio_50_141.mp3 +"statement and thereafter, in his place, pw2 mr. Subhani shaik was substituted and he has filed Aff. in lieu of his examination in chief and",audio_50_142.mp3 +he has produced ex.p12 & p13 documents to establish that he is the AR of the complainant Co. . Ex.p12 is the resolution dated: 14/02/2022,audio_50_143.mp3 +and ex.p13 is the authorization letter dated: 14/02/2022. On perusal of ex.p12 it reveals that the managing director of the complainant Co. by name k.g.,audio_50_144.mp3 +Ravy was authorized to take any action and to file suits and Crl. complaints against any person on behalf of the complainant Co. and he,audio_50_145.mp3 +"was also authorized to delegate the powers in favour of any of the employee of the Co. . 26. During cross-examination dated: 08/12/2022, pw1 deposed at",audio_50_146.mp3 +ex.p12 & 13 there is a reference about to the resolution dated: 25/08/2016 and the complainant Co. has not produced the same and deposed he,audio_50_147.mp3 +"can produce the said document. Notably, the complainant Co. has not produced the resolution dated: 25/08/2016 to establish that k.g. Ravy had powers to sub",audio_50_148.mp3 +delegate the powers conferred on him by the complainant Co. in favour of any other employee of the complainant Co. . It is also suggested by,audio_50_149.mp3 +"the accused that as the complainant Co. has not produced resolution dated: 25/08/2016, the said mr. K.g. Ravy had no Auth. to issue ex.p13 document",audio_50_150.mp3 +"in the name and that pw2 is not having Auth. to depose before the court on behalf of the complainant Co. and notably, the said",audio_50_151.mp3 +"suggestion have been denied by pw1. 27. It is to be noted that, if at all the accused had any apprehension with respect to ex.p12",audio_50_152.mp3 +& 13 documents and that the complainant Co. has not produced resolution dated: 25/08/2016 to establish that mr. K.g. Ravy had Auth. to sub delegate,audio_50_153.mp3 +"the power or to execute ex.p12 & 13m/S. mannapuram chits (k) vs. mr. D. Umapathi on 2 march, 2023",audio_50_154.mp3 +"Complainant Auth. to disprove the testimony of pw2 and no such attempt is made by the accused. In the absence of the same, it cannot",audio_50_155.mp3 +be said that pw2 was not a competent / authorized person to appear and depose on behalf of the complainant Co. . By taking note of,audio_50_156.mp3 +the entire materials placed on record by the complainant Co. and the accused it could be concluded that the accused has failed to rebut the,audio_50_157.mp3 +"presumption as contemplated u/sec 139 of negotiable instrument act by placing acceptable evidence. Accordingly, i answer the point no.1 and 2 in the affirmative. 28.",audio_50_158.mp3 +"Point no.3 :- in view of my findings to the points no.1 and 2, i proceed to pass the following:- o r de r in",audio_50_159.mp3 +"exercise of power conferred u/sec. 255(2) of Cr.P.C. , the accused is convicted for the offence punishable u/s.138 of n.i. Act and sentenced",audio_50_160.mp3 +"to pay fine of rs.3,55,000/-. In default of payment of the said fine amount, the accused shall undergo simple imprisonment for a period of six",audio_50_161.mp3 +"months. Out of the said fine amount, an amount of rs.3,50,000/- shall be paid to the complainant as compensation as contemplated u/sec. 357(1) of code",audio_50_162.mp3 +"of Crl. procedure,and the remaining amount of rs.5,000/- shall be remitted to the state. Office to provide free copy of the judgment to the accused.",audio_50_163.mp3 +"(dictated to the stenographer directly on computer, corrected and then pronounced in open court by me on this the 2 nd day of march, 2023)",audio_50_164.mp3 +"(h. Satish) xxvii a.c.m.m., bengaluru. Annexure witnesses examined on behalf of the complainant: pw1 : sri. Anand kumar pw2 : sri. Subhani shaik documents marked",audio_50_165.mp3 +on behalf of the complainant ex. P1 extract of minutes of meeting of the board of directors of the complainant Co. held on 25- 08-2016.,audio_50_166.mp3 +Ex. P2 authorization letter. Ex. P3 chit agreement. Ex. P4 on demand promissory note. Ex. P5 cash voucher. Ex. P6 chit account extract. Ex. P7,audio_50_167.mp3 +cheque. Ex.p7(a) signature of the accused. Ex. P8 bank endorsement. Ex. P9 copy of notice dt:01-06-2020. Ex. P10 postal receipt. Ex. P11 postal acknowledgement.m/S. mannapuram,audio_50_168.mp3 +"chits (k) vs. mr. D. Umapathi on 2 march, 2023",audio_50_169.mp3 +ex.p13 authorization letter witnesses examined on behalf of the accused: -nil- documents marked on behalf of the accused: -nil- xxvii a.c.m.m bengaluru. 02/03/2022 comp: sri.,audio_50_170.mp3 +"Sam adv., accd: sri. Ppj adv., for judgment. Complainant counsel present. Accused and counsel absent. By virtue of provision contained in sec.353(6) of code of",audio_50_171.mp3 +"Crl. procedure , judgment can be pronounced in the absence of accused if it is of acquittal or fine. (order typed vide separate sheet) or",audio_50_172.mp3 +"de r in exercise of power conferred u/sec. 255(2) of Cr.P.C. , the accused is convicted for the offence punishable u/s.138 of n.i.",audio_50_173.mp3 +"Act and sentenced to pay fine of rs.3,55,000/-. In default of payment of the said fine amount, the accused shall undergo simple imprisonment for a",audio_50_174.mp3 +"period of six months. Out of the said fine amount, an amount of rs.3,50,000/- shall be paid to the complainant as compensation as contemplated u/sec.",audio_50_175.mp3 +"357(1) of Cr.P.C. ,and the remaining amount of rs.5,000/- shall be remitted to the state. (h. Satish) xxvii a.c.m.m., bengaluru.m/S. mannapuram chits (k)",audio_50_176.mp3 +"vs. mr. D. Umapathi on 2 march, 2023",audio_50_177.mp3 +"P.s.a. Thamotharan vs. dalmia cements (b) ltd., rep. By its ... On 27 september, 2004 equivalent citations: ii(2005)bc306, 2004(5)ctc84 judgment m. Thanikachalam, j. 1. By",audio_51_1.mp3 +"consent of both sides, the revision itself is taken for hearing. 2. The petitioner is facing trial in c.c.No. 151/2000 before the trial court for",audio_51_2.mp3 +"the alleged offence said to have been committed by him under S. 138, NI Act , (in short, n.i. Act). It seems the accused/petitioner had",audio_51_3.mp3 +"issued a cheque for Rs. 3,95,000. When the cheque was tendered by the respondent for collection through his bank where he is having account, the",audio_51_4.mp3 +"cheque bounced on the ground 'insufficient funds'. Thereafter, notice has been issued which was acknowledged but not replied. Though time is given, within the time",audio_51_5.mp3 +"stipulated, amount also has not been paid. In the above said circumstances, the holder of the cheque viz. the respondent herein, preferred a complaint before",audio_51_6.mp3 +"the concerned magistrate, complaining of the offence under S. 138, n.i. Act. After appearance of parties the trial court also completed the prosecution side examination",audio_51_7.mp3 +"of witnesses, thereafter questioning the accused under S. 313, Cr.P.C. as represented by the learned counsel for the petitioner, two witnesses have",audio_51_8.mp3 +"also been examined on the defence side. At this stage, the accused had filed petition before the trial court, seeking the permission of the court",audio_51_9.mp3 +"to examine ex.p-2 and ex.r-4 by handwriting expert, in order to ascertain the genuineness of the documents. The learned judicial magistrate after considering the facts",audio_51_10.mp3 +"and circumstances of the Cas. , supported by legal position, held that the petition is not maintainable since, there is no need to compare the above",audio_51_11.mp3 +"exhibits by a hand writing expert, and in this view, dismissed the petition, in view of the admitted fact that the petitioner had not disputed",audio_51_12.mp3 +"his signature in ex.p-2/cheque, which order is under challenge in this revision. 3. The learned counsel for the petitioner submits that the trial court ought",audio_51_13.mp3 +"to have given, sufficient opportunity for the petitioner to make out a Cas. , proving that the body of the cheque was not written by him,",audio_51_14.mp3 +"which could be done only by the examination of the disputed document with some admitted document, having the to hand writing of the accused. 4.",audio_51_15.mp3 +"On the other hand, the learned counsel for the respondent submits that the evidence on record are sufficient to decide the Cas. one way or",audio_51_16.mp3 +"the other and the opinion of the hand writing expert is not necessary to decide the Cas. , in view of the fact, that accused had",audio_51_17.mp3 +"admitted his signature in the cheque.p.s.a. Thamotharan vs. dalmia cements (b) ltd., rep. By its ... On 27 september, 2004",audio_51_18.mp3 +"Learned counsel for the petitioner, ex.p-2/cheque does contain the signature of the petitioner, thereby admitting that the cheque leaf belongs to the petitioner, and he",audio_51_19.mp3 +had subscribed his signature in the cheque. The only contention appears to be that the body of the cheque was not written by the petitioner/accused.,audio_51_20.mp3 +"To have validity for the negotiable instruments, such as cheque, it is not mandatory and no law prescribes that the body of the cheque should",audio_51_21.mp3 +also be written by the signatory to the cheque. A cheque could be filled up by anybody and if it is signed by the account,audio_51_22.mp3 +"holder of the cheque, accepting the amount mentioned therein. In this Cas. , the signature of the cheque ex.p-2 is admitted by the petitioner. Therefore, by",audio_51_23.mp3 +"comparing the handwritings, viz. the body of the cheque as well as admitted hand writing of the petitioner, it is not going to tilt the",audio_51_24.mp3 +balance of the Cas. in anybody's favour. It all depend upon the liability and under what circumstance the cheque was issued. In this Cas. the,audio_51_25.mp3 +"complaint does contain all the requirements warranting a proceedings under S. 138, n.i. Act. By the examination of the witnesses, if the petitioner/accused feels that",audio_51_26.mp3 +"the cheque does not contain his handwriting, he can prove the same, whether it will affect the Cas. of the respondent/complainant or not. Therefore, considering",audio_51_27.mp3 +"the admitted position as well as the conduct of the parties, and the stage of the trial. I do not find any reason to interfere",audio_51_28.mp3 +"with the finding of the trial court made in Crl. m.p.No. 685 of 2004, since the magistrate has considered all the points, relevant to decide",audio_51_29.mp3 +"the petition, coupled with law. The learned counsel for the petitioner also failed to persuade me, by pointing out how the trial court has committed",audio_51_30.mp3 +"error and how by comparing the handwriting in the cheque with the admitted and writing of the petitioner; the Cas. would be changed or improved,",audio_51_31.mp3 +"etc. In this view of the matter, i find no reason to interfere with the finding of the magistrate and the petition is devoid of",audio_51_32.mp3 +"merits and the same is dismissed. Consequently, Crl. m.p.No. 19 of 2004 is also dismissed.p.s.a. Thamotharan vs. dalmia cements (b) ltd., rep. By its ...",audio_51_33.mp3 +"On 27 september, 2004",audio_51_34.mp3 +"C.keshavamurthy vs. h.k.abdul zabbar on 23 july, 2013 equivalent citations: aironline 2013 SC 152, (2013) 115 corla 520, (2013) 2 madlw(cri) 414, (2013) 2",audio_52_1.mp3 +"nij 226, (2013) 3 allcrir 2858, (2013) 3 chandcric 301, (2013) 3 curcrir 540, (2013) 3 raj lw 2612, (2013) 3 reccrir 944, (2013) 4",audio_52_2.mp3 +"allcrilr 644, (2013) 4 bankcas 183, (2013) 4 crimes 393, (2013) 4 mad lw 640, (2013) 4 reccrir 15, (2013) 56 ocr 496, (2013) 9",audio_52_3.mp3 +"scale 676 author: h.l. Gokhale bench: J. chelameswar, h.l. Gokhale reportable in the SC of india Crl. appellate jurisdiction Crl. appeal no. 1026 of",audio_52_4.mp3 +2013 [@ SLP (crl) no(s)4628 of 2009 c.keshavamurthy Appellant(s) vs. h.k.abdul zabbar Respondent(s) j u d g m e n,audio_52_5.mp3 +"t h.l. Gokhale,j. 1 heard mr. R.S. hegde, learned counsel in support of this petition and mr. G.v. Chandrashekhar, learned counsel appearing for the respondent.",audio_52_6.mp3 +"2 leave granted.c.keshavamurthy vs. h.k.abdul zabbar on 23 july, 2013",audio_52_7.mp3 +"Follows _ the respondent had issued four cheques to the appellant, which had bounced. Out of the five cheques, a cheque dated 31st july, 2003,",audio_52_8.mp3 +"was issued for an amount of ` 1,36,000/-, and three other cheques dated 10th august, 2003, 15th august, 2003 and 18th august, 2003, respectively were",audio_52_9.mp3 +"for a sum of ` one lakh each. Since those cheques got bounced, the appellant filed a complaint bearing no.2857 of 2003, in the court",audio_52_10.mp3 +"of judicial magistrate, first class-ii, davangere, in the state of karnataka, under S. 138 of the NI Act , 1881. The Cas. of the appellant",audio_52_11.mp3 +"is that since these cheques were dishonoured, an appropriate order under the law was necessary. 5 the defence of the respondent was that there was",audio_52_12.mp3 +"an agreement of sale between the parties, and that the complainant was a businessman dealing in lands, and it was in that transaction that the",audio_52_13.mp3 +"respondent had issued some cheques earlier, but since transaction did not fructify, he had issued a notice dated 28th july, 2003, not to clear those",audio_52_14.mp3 +"cheques. However, this defence could not be accepted for the simple reason that all the cheques, which had bounced were issued subsequent to the said",audio_52_15.mp3 +"notice dated 28th july, 2003. Therefore, no more justification was required for allowing the complaint. The defence raised by the respondent could not be accepted",audio_52_16.mp3 +"and, therefore, the learned magistrate considered the factual, as well as legal position and allowed the complaint filed by the appellant herein. 6 the respondent",audio_52_17.mp3 +"being aggrieved therefrom filed a Crl. appeal bearing no.51 of 2005, before the additional sessions judge, fast track court-ii, davangere. The learned judge framed necessary",audio_52_18.mp3 +"points for consideration, viz. , whether the impugned judgment of conviction recorded by jmfc-ii, davangere, could not be sustained under law and whether the punishment was",audio_52_19.mp3 +"in any way disproportionate. The learned judge decided both those points in the negative, but passed an order whereby he partly allowed the appeal. The",audio_52_20.mp3 +"conviction recorded by the learned jmfc-ii court, davangere, was confirmed, but the sentence was modified by him as follows: €the accused/appellant for the offence punishable",audio_52_21.mp3 +"under S. 138 of the negotiable instrument act shall undergo simple imprisonment three months and pay fine of rs.5,000/-. In default to pay such fine",audio_52_22.mp3 +"he shall undergo simple imprisonment for a further period of three months. The accused/appellant shall pay to the complainant/respondent a sum of rs.4,50,000/-(four lakhs fifty",audio_52_23.mp3 +thousand) as compensation to the complainant/respondent. In default to pay such compensation he shall undergo simple imprisonment for a further period of six months. It,audio_52_24.mp3 +was further directed that the accused/appellant shall pay the fine amount and also the compensation amount within 45 (forty five) days from this date and,audio_52_25.mp3 +"surrender before the J. m.f.c.-ii court, davangere, to undergo the sentence. In Cas. of failure to do so, the learned magistrate shall take steps to",audio_52_26.mp3 +"enforce the sentence.□ 7 this judgment and order rendered by the addl. Sessions judge on 4th may, 2006, was carried by the respondent further in",audio_52_27.mp3 +"Crl. revision petition no.1295 of 2006. This time, however, the respondent was successful, and the plea raised by the respondent based on the notice dated",audio_52_28.mp3 +"28thc.keshavamurthy vs. h.k.abdul zabbar on 23 july, 2013",audio_52_29.mp3 +"Single judge referred to the judgment of a bench of two judges of this court in krishna janardhan bhat vs. Dattatraya g.hegde, reported in [2008(4)scc",audio_52_30.mp3 +"54], and stated that the burden is always on the complainant to establish not only issuance of cheque, but existence of debt or legal liability.",audio_52_31.mp3 +"In the facts of this Cas. , the learned judge took the view that the respondent had raised an acceptable defence. He therefore, allowed the revision",audio_52_32.mp3 +and set aside the judgment rendered by the courts below. The accused respondent was acquitted of the offence under S. 138 of the negotiable instruments,audio_52_33.mp3 +"act, 1888, and the amount deposited in court was directed to be refunded. 8 being aggrieved by the judgment of the HC dated 8th",audio_52_34.mp3 +"december, 2008, the present Crl. appeal has been filed. Mr. R.S. hegde, learned counsel for the appellant, submitted that the approach of the learned judge",audio_52_35.mp3 +"was erroneous on facts, as well as on law. As noted above, though, the respondent had given some cheques earlier, and had issued a notice",audio_52_36.mp3 +"dated 28th july, 2003 not to encash those cheques, the respondent had issued the disputed cheques thereafter. Therefore, the defence taken by the respondent that",audio_52_37.mp3 +"he had issued a notice not to clear those cheques was not tenable on facts, and there was no defence as to why those cheques",audio_52_38.mp3 +"should not have been put into bank and cleared. 9 secondly, as far as the proposition canvased on the basis of the judgment in krishna",audio_52_39.mp3 +"janardhan bhat (supra) is concerned, it must be noted that the same has been specifically held to be not a correct one in Para. 26",audio_52_40.mp3 +"of the judgment rendered by a three- judge bench in rangappa vs. . Sri mohan, reported in [2010(11)scc 441]. The judgment clearly held that the",audio_52_41.mp3 +"presumption under S. 139 of the NI Act , 1881, includes the presumption of the existence at a legally enforceable debt or liability. That presumption",audio_52_42.mp3 +"is required to be honoured, and if it is not so done, the entire basis of making these provisions will be lost. Therefore, it has",audio_52_43.mp3 +been held that it is for the accused to explain his Cas. and defend it once the fact of cheque bouncing is prima facie established.,audio_52_44.mp3 +"The burden is on him to disprove the allegations once a prima facie Cas. is made out by the complainant. 10 mr. G.v. Chandrashekar, learned",audio_52_45.mp3 +"counsel for the respondent, on the other hand, submitted that in the facts of this Cas. , there was an agreement between the parties. He contended",audio_52_46.mp3 +"that although it is true that the agreement was not produced, but the fact of it was not disputed by the appellant himself. That being",audio_52_47.mp3 +"so, since the agreement was not being acted upon, the cheques were not expected to be cleared. He, therefore, submitted that the order of the",audio_52_48.mp3 +"HC was justified on the facts of the particular Cas. . 11 we have noted the submissions of both the counsel. As noted earlier, it",audio_52_49.mp3 +has clearly come on record that disputed cheques were given subsequent to the notice not to clear the earlier cheques. There was no explanation as,audio_52_50.mp3 +to why the subsequent cheques could not have been cleared. The agreement on the basis of which the submission was made was not produced in,audio_52_51.mp3 +"the courts below. That being so, on facts there was no error on the part of the learned magistrate, as well as the learned addl.",audio_52_52.mp3 +"Sessions judge, in the view that they have taken. As far as the legal position is concerned, in our view, that has been settled adequately",audio_52_53.mp3 +"in rangappa's Cas. (supra), which has specifically explained the observations in krishna janardhan bhat (supra).c.keshavamurthy vs. h.k.abdul zabbar on 23 july, 2013",audio_52_54.mp3 +Karnataka HC and restore the order passed by the additional sessions judge. The parties will bear their own costs. .....................j (h.l. Gokhale) .....................j (J. ,audio_52_55.mp3 +"chelameswar) new delhi; july 23, 2013.c.keshavamurthy vs. h.k.abdul zabbar on 23 july, 2013",audio_52_56.mp3 +"Mrs nagaveni W/O sanjeev naik vs. sooraj finanace Ltd. on 8 august, 2023 author: m.nagaprasanna bench: m.nagaprasanna -1- nc: 2023:khc-d:8577 crl.p No. 100318 of",audio_53_1.mp3 +"2023 in the HC of karnataka, dharwad bench dated this the 8th day of august, 2023 before the hon'ble mr J. m.nagaprasanna Crl.P. ",audio_53_2.mp3 +"no. 100318 of 2023 (482) between: mrs. Nagaveni W/O sanjeev naik, age. 36 years, occ. Service, c/o. Bank of baroda, r/at. Bazaar road ,honavar,",audio_53_3.mp3 +"uttara kannada dist.-581334. ... Petitioner (by sri. Suresh s bhat, Adv. ) and: sooraj finanace Ltd. , r/by its manager, aravind b. Mahale, prorietor, vishal a/about major,",audio_53_4.mp3 +"r/at mahale complex, uttara kannada dist.-581334. Ningappa ... Respondent pattihal (respondnet served) digitally signed by vishal ningappa this Crl.P. is filed u/sec. 482 of",audio_53_5.mp3 +cr.p.c. Pattihal seeking to quash the entire proceeding in c.c.no. 915/2020 date: 2023.08.11 (arising out of p.c.no. 308/2020) pending on the file of prl. 11:21:34,audio_53_6.mp3 +"+0530 Civ. judge and J. m.f.c. Honavar, for an offencesmrs nagaveni W/O sanjeev naik vs. sooraj finanace Ltd. on 8 august, 2023",audio_53_7.mp3 +"this petition, coming on for admission, this day, the court made the following: -2- nc: 2023:khc-d:8577 crl.p No. 100318 of 2023 order the petitioner is",audio_53_8.mp3 +before this court calling in question the proceedings in c.c. No.915/2020 for the offence punishable under S. 138 of the NI Act . 2. The,audio_53_9.mp3 +"facts in brief, germane, are as follows: the husband of the petitioner by name sanjeev naik is said to have entered into a transaction with",audio_53_10.mp3 +"the complainant. In furtherance of the said transaction, is said to have issued certain cheques which on being presented are dishonoured. The dishonouring of the",audio_53_11.mp3 +cheques leads the complainant to the concerned court invoking under S. 200 of Cr.P.C. for offence punishable under S. 138 of the,audio_53_12.mp3 +"NI Act . Even prior to registration of the crime, the signatory to the cheque, the husband of the petitioner dies. The proceedings are taken",audio_53_13.mp3 +up against the wife for an act committed by the husband. The issue whether the wife could be proceeded against for an act of the,audio_53_14.mp3 +husband particularly for an nc: 2023:khc-d:8577 offence under S. 138 of the NI Act need not detain this court for long or delve deep,audio_53_15.mp3 +into the matter. 3. The co-ordinate bench of this court in a judgment in the Cas. of g.varadaraju vs. . UOI and Ors. ,audio_53_16.mp3 +"reported in (2022) 4 akr 4, considering the very issue has held as follows: ""3. Brief facts of the Cas. : (a) petitioner was the complainant",audio_53_17.mp3 +"in a cheque bounce Cas. in c.c.no.13156/2016 for an offence punishable u/s 138 of the NI Act , 1881. After the trial, the same came",audio_53_18.mp3 +to be dismissed by the learned xix acmm court at bangalore vide acquittal order dated 2.8.2017. Petitioner had filed Crl. appeal no.1453/2017 against the said,audio_53_19.mp3 +"order. A co- ordinate bench of this court disposed off the said appeal as having abated, the respondent-accused having died pendente lite. (b) petitioner submits",audio_53_20.mp3 +that the provisions of S. 394 of Cr.P.C. which provide for abatement ofmrs nagaveni W/O sanjeev naik vs. sooraj finanace Ltd. ,audio_53_21.mp3 +"on 8 august, 2023",audio_53_22.mp3 +"Governed by the NI Act , 1881 (for short 'ni act' hereafterwards) which is as a nc: 2023:khc-d:8577 complete code in itself; secondly, if the",audio_53_23.mp3 +"said provisions are held to be applicable, the same are liable to be voided on the ground of being discriminatory & arbitrary. Petitioner argues that",audio_53_24.mp3 +"to the extent the parliament has not enacted an appropriate provision for continuing the Crl. proceedings in general and Crl. appeals in particular, despite the",audio_53_25.mp3 +"death of accused, who has left the persons representing his estate, court should step in and provide a remedy to the aggrieved. 4. Having heard",audio_53_26.mp3 +"the petitioner-party-in-person and the learned advocates appearing for the respondents, this court declines indulgence in the matter for the following reasons: (a) the grievance of",audio_53_27.mp3 +the petitioner is essentially against the provisions of S. 394 of Cr.P.C. which cause the final abatement of Crl. proceedings on the,audio_53_28.mp3 +"death of accused, subject to certain exceptions into which his Cas. does not fit. Therefore, for ease of understanding, the text of said S. is",audio_53_29.mp3 +"reproduced: ""394. Abatement of appeals. (1) every appeal under S. 377 or S. 378 shall finally abate on the death of the accused. (2) every",audio_53_30.mp3 +other appeal under this chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant: provided that where,audio_53_31.mp3 +"the appeal is against a conviction and sentence of death nc: 2023:khc-d:8577 or of imprisonment, and the appellant dies during the pendency of the appeal,",audio_53_32.mp3 +"any of his near relatives may, within thirty days of the death of the appellant, apply to the appellate court for leave to continue the",audio_53_33.mp3 +"appeal; and if leave is granted, the appeal shall not abate. Explanation.- in this S. ,"" near relative"" means a parent, spouse, lineal descendant, brother or",audio_53_34.mp3 +"sister."" this court hastens to add that a pari materia provision had been there even in the Cr.P.C. , 1898, which had the",audio_53_35.mp3 +"following text: ""431. Every appeal under S. 411-a, sub- S. (2), or S. 417 shall finally abate on the death of the accused, and every",audio_53_36.mp3 +"other appeal under this chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant."" (b) the focal",audio_53_37.mp3 +"point of all actions at Crl. law is the person offending so that as long as he is alive, he avails for trial & punishment,",audio_53_38.mp3 +"if found guilty. Ordinarily, this punishment concerns life, liberty or status of the convict. Legislature if it chooses, may provide for levy of fine or",audio_53_39.mp3 +"forfeiture of property of the deceased, is beside the point. The proceedings for Crl. prosecution of offenders involve personal elements such as mens rea which",audio_53_40.mp3 +"pertain to the domain of mind; if commission of offence is proved, nc: 2023:khc-d:8577 the person of the offender as such, is required for undergoing",audio_53_41.mp3 +"the punishment for purging the guilt. Therefore, ordinarily, the Crl. proceedings abate on the death of accused. On the death of the complainant, the legal",audio_53_42.mp3 +"heirs of the deceased complainant can movemrs nagaveni W/O sanjeev naik vs. sooraj finanace Ltd. on 8 august, 2023",audio_53_43.mp3 +"Devi daga vs. manju k.humatani1, does not come to the aid of the petitioner inasmuch as, the prosecution is of the offender and therefore, it",audio_53_44.mp3 +can continue despite the death of the complainant. (c) legal systems in most civilized jurisdictions operate with a premise that personality of an individual Crl. ,audio_53_45.mp3 +"appeal No. 1860 of 2017 disposed off on 03.11.2017 begins with birth and ends with death. In certain systems, personality may be assumed even for",audio_53_46.mp3 +"a 'child in the womb', is not much relevant. ""if birth is necessary to create rights, so death in general ends rights. In english law,",audio_53_47.mp3 +"to libel the dead is not an offence... The dead have no rights and can suffer no wrongs..."" writes g.w.paton22. [in roman law, an heir",audio_53_48.mp3 +"could sue for injuria if an insult was offered to the body of deceased at the funeral and similarly, an action for injuria lied if",audio_53_49.mp3 +"the statue of one's deceased father was stoned]. It is relevant to advert to the observations of Hon'ble J. hidayatullah: nc: 2023:khc-d:8577 ""...one would expect",audio_53_50.mp3 +that an appeal of this character would normally abate on the death of the appellant because a Crl. prosecution is concerned primarily with the punishment,audio_53_51.mp3 +of an offender and not with the trial of an abstract issue about the truth or falsity of a prosecution Cas. . The maxim actio personalis,audio_53_52.mp3 +moritur cum persona is often invoked in this behalf...'. (d) it is pertinent to refer to a decision of us SC in durham vs. ,audio_53_53.mp3 +. United states4 which recognizes the doctrine of abatement ab initio on the death of accused or convict pendente Crl. proceedings including appeals. The court,audio_53_54.mp3 +"observed as under: ""the status of abatement caused by death on direct review has recently been discussed by the court of appeals for the eighth",audio_53_55.mp3 +"circuit in crooker vs. united states, 325 f.2d 318. In reviewing the cases, that court concluded that the lower federal courts were unanimous on the",audio_53_56.mp3 +"rule to be applied: death pending direct review of a Crl. conviction abates not only the appeal, but also all proceedings had in the prosecution",audio_53_57.mp3 +"from its inception."" similarly, the SC of queensland in r vs. . Chardo5 at Para. 13 observed as under: ""13. The provisions concerning appeals",audio_53_58.mp3 +"against sentence seem consistent with the same conclusion. Upon the death of an appellant who was sentenced nc: 2023:khc-d:8577 to imprisonment (as in this Cas. ),",audio_53_59.mp3 +the statutory remedy of quashing the sentence and passing a different sentence in substitution therefor would be meaningless; the right of appeal against a sentence,audio_53_60.mp3 +of imprisonment and the court's 401 u.S. 481 (1971) (2022) qca 277 power to make orders in such a Cas. could not survive the appellant's,audio_53_61.mp3 +"death."" thus, the provisions of law such as S. 394 of Cr.P.C. , 1973 providing for abatement of proceedings are universal and time",audio_53_62.mp3 +tested. The policy of the state as enacted in statutes which provide for the final abatement of appeals on the death of accused are animated,audio_53_63.mp3 +"withmrs nagaveni W/O sanjeev naik vs. sooraj finanace Ltd. on 8 august, 2023",audio_53_64.mp3 +"Put an end to Crl. proceedings. Therefore, the said provision cannot be voided. (e) the second contention that the impugned provisions are discriminatory inasmuch as,",audio_53_65.mp3 +"the abatement of appeal happens in select circumstances, is again bit difficult to countenance. As already observed above, it is a matter of legislative policy",audio_53_66.mp3 +"that in certain circumstances, the Crl. proceeding should abate on the death of the accused. In what circumstances, abatement should happen, is left to the",audio_53_67.mp3 +"legislative wisdom gained through the experience of ages. It is not that in the recent past, such a provision has been enacted and nc: 2023:khc-d:8577",audio_53_68.mp3 +to a scrupulous complainant it is proving to be a bolt from the blue. The argument that appeal against conviction and sentence of death or,audio_53_69.mp3 +"of imprisonment, does not abate if the near relatives obtain leave to continue the same and therefore, similar facility not being provided for, there is",audio_53_70.mp3 +"discrimination offending Art. 14 of the constitution, is too farfetched an argument. A conviction resulting in the sentence of death or imprisonment stands on a",audio_53_71.mp3 +"different footing and such cases constitute a separate class from the rest, in the view of law maker. That per se does not render the",audio_53_72.mp3 +law falling foul of the equality Cl. . It is pertinent to refer to an english decision in r vs. . Rowe6: a prisoner who was,audio_53_73.mp3 +convicted and sentenced to a term of imprisonment died during the pendency of appeal. His widow applied for leave to continue the appeal arguing that,audio_53_74.mp3 +she had an interest being the widow of an honest man and not of a man who had been convicted and that [1955] 1 q.b.,audio_53_75.mp3 +573 husband's conviction would affect her chances of employment and prejudice her position among her friends and relatives. A three judge bench court of Crl. ,audio_53_76.mp3 +appeal declined leave holding that the sentimental interest of the widow in having her deceased husband's name cleared from stigma was insufficient. If that be,audio_53_77.mp3 +"the Cas. , it is un- understandable as to how the petitioner can find fault with the regime of law concerned. - 10 - nc: 2023:khc-d:8577",audio_53_78.mp3 +"(f) the petitioner's Crl. appeal no.1453/2017 having already been disposed off as having abated on 29.03.2022, what benefit would accrue to him should relief as",audio_53_79.mp3 +"sought for in this petition be granted, remains inscrutable, as rightly contended by learned cgc who is also justified in pointing out the defect in",audio_53_80.mp3 +"the petition which has not arrayed l.rs of the deceased accused, against whom petitioner intends to proceed. No explanation is offered by him as to",audio_53_81.mp3 +"why the said l.rs have not been made respondents to the petition, though they answer the description of proper parties in the light of decision",audio_53_82.mp3 +"of apex court in razia begum vs. Sahebzadi anwar begum7, if not necessary parties to the adjudication of lis at hands. (g) the vehement submission",audio_53_83.mp3 +"of petitioner that the provisions of 1973 code do not apply to the trial of cheque bounce cases and therefore, the appeal against the acquittal",audio_53_84.mp3 +"entered therein, could not have been disposed off as having abated on the death of the accused, does not merit acceptance. S. 4 of the",audio_53_85.mp3 +"code r/w S. 143 of ni act makes its provisions applicable to the trial of offences punishable under law other than ipc, 1862 as",audio_53_86.mp3 +well. Some of the provisions of the code are excluded from Appl. does not mean other relevant provisions do not govern the Crl. proceedingsmrs nagaveni,audio_53_87.mp3 +"W/O sanjeev naik vs. sooraj finanace Ltd. on 8 august, 2023",audio_53_88.mp3 +"- 11 - nc: 2023:khc-d:8577 4. In the light of the issue standing covered on all its fours, to the afore-quoted judgment, the petition deserves",audio_53_89.mp3 +"to succeed. 5. For the aforesaid reasons, the following: order (i) petition is allowed. (ii) the entire proceedings in c.c. No.915/2020, on the file of",audio_53_90.mp3 +"the court of principal Civ. judge and jmfc, honnavar insofar as the petitioner - accused stands quashed. Sd/- judge rsh/ct:bckmrs nagaveni W/O sanjeev naik",audio_53_91.mp3 +"vs. sooraj finanace Ltd. on 8 august, 2023",audio_53_92.mp3 +"K.p.v. Textiles and anr. vs. malook chand naresh chand on 16 july, 1992 equivalent citations: [1994]79compcas125(p&h) judgment s.S. grewal, j. 1. This petition under S. ",audio_54_1.mp3 +"482 of the Cr.P.C. , 1973 (hereinafter referred to as ""the code""), relates to quashment of complaint, annexure p-1, under S. 138 read",audio_54_2.mp3 +"with S. 141 of the NI Act , 1881, as amended by act No. 66 of 1988 (hereinafter referred to as ""the act""), and consequential",audio_54_3.mp3 +"proceedings taken thereunder pending in the court of the chief judicial magistrate, sirsa. 2. In brief, the facts relevant for the disposal of this petition",audio_54_4.mp3 +"as emerge from the complaint, are that the complainant-Co. is engaged in its legitimate and lawful activities at sirsa and at other places within india,",audio_54_5.mp3 +"and enjoys great goodwill and high reputation amongst men of similar trade and other persons. The accused-Co. through its partner, accused No. 2, purchased goods",audio_54_6.mp3 +from the complainant-Co. on credit basis and in this regard huge sums accumulated towards the price and the other expenses concerning the goods which the,audio_54_7.mp3 +accused are liable to pay to the complainant-Co. factually and legally. It was further alleged that a No. of cheques were issued by the accused-Co. ,audio_54_8.mp3 +"in favour of the complainant-Co. as payment of the price of goods supplied and one such cheque bearing No. qlk 374956, dated july 20, 1990,",audio_54_9.mp3 +in the sum of Rs. one lakh was issued by accused No. 2 on behalf of the accused-Co. . The said cheque was drawn on the,audio_54_10.mp3 +"punjab national bank, coimbatore. The cheque was submitted by the complainant-Co. for encashing the same through its banker at sirsa, but this cheque could not",audio_54_11.mp3 +be cleared and encashed and was returned unpaid and unsatisfied. The matter was brought to the notice of the accused telegraphically and it was followed,audio_54_12.mp3 +"by a legal notice dated september 11, 1990, sent by shri rajesh sethi, Adv. , sirsa, on behalf of the complainant-concern. The accused-Co. in its reply",audio_54_13.mp3 +"dated september 30, 1990, through its counsel informed about the bouncing of the cheque and also its non-encashment due to non-availability of accused No. 2",audio_54_14.mp3 +"in the town and consequent non-arrangement of the funds in the bank account. Thereafter, long discussions commenced between the complainant and the accused-Co. and the",audio_54_15.mp3 +latter unequivocally promised and agreed to the complainant-concern for sending the aforesaid cheque again for clearance through their banker at sirsa in the second week,audio_54_16.mp3 +"of january, 1991, at any time. The complainant-firm re-submitted the said cheque to their banker at sirsa, i.e., the state bank of india, sirsa, on",audio_54_17.mp3 +"february 9, 1991, but the same was again returned uncashed by the banker of the accused-Co. with a letter dated january 12, 1991, wherein the",audio_54_18.mp3 +"reason for uncashing of the cheque was given as ""exceeds arrangements"". The banker of the complainant-concern forwarded the bounced cheque along with the cheque-return memo",audio_54_19.mp3 +"dated february 1, 1991. Then, thek.p.v. Textiles and anr. vs. malook chand naresh chand on 16 july, 1992",audio_54_20.mp3 +"The act through shri s.S. goyal, Adv. , sirsa. The accused-firm did not make the payment as demanded under the legal notice. It is further alleged",audio_54_21.mp3 +"that the aforesaid cheque bounced on january 12, 1991, on account of gross negligence on the part of the accused-firm, who had not cared to",audio_54_22.mp3 +rectify their defect despite full knowledge. It was next pleaded that the period for making the payment under S. 138(c) of the act had also,audio_54_23.mp3 +"expired and the accused in their reply dated february 23, 1991, to the aforesaid legal notice pleaded that they are trying to get rid of",audio_54_24.mp3 +their Crl. liability which otherwise may be fastened upon them on account of bouncing and dishonouring of the cheques. It was next pleaded that the,audio_54_25.mp3 +accused who were in charge of and responsible for the functioning of the Co. have made themselves liable for punishment under S. 138 r/w ,audio_54_26.mp3 +S. 141 of the act. 3. Learned counsel for the parties were heard. 4. The objection raised on behalf of the complainant-Co. that alternative remedy,audio_54_27.mp3 +"by way of revision is available, or that the accused moved an Appl. before the chief judicial magistrate that the complaint be dismissed and on",audio_54_28.mp3 +"this score no petition under S. 482 of the code is maintainable is without any merit, in view of the Auth. of the apex court",audio_54_29.mp3 +"in state of bihar vs. murad ali khan, air 1989 SC 1, wherein it was held that when the HC is called upon",audio_54_30.mp3 +to exercise this jurisdiction to quash a proceeding at the stage of the magistrate taking cognizance of an offence the HC is guided by,audio_54_31.mp3 +"the allegations, whether those allegations, set out in the complaint or the charge-sheet, do not in law constitute or spell out any offence and that",audio_54_32.mp3 +"resort to Crl. proceedings, would, in the circumstances, amount to an abuse of the process of the court or not. 5. The cheque dated july",audio_54_33.mp3 +"20, 1990, issued by accused-petitioner No. 2 on behalf of the accused-Co. could not be encashed when the same was presented for encashment by the",audio_54_34.mp3 +"complainant-Co. through its banker, the state bank of india. Sirsa branch and the same was returned with the remarks ""exceeds arrangements"" by the banker of",audio_54_35.mp3 +"the accused. Intimation in respect thereof was sent to the complainant-Co. from its own banker. Admittedly, no complaint was filed by the complainant-Co. after it",audio_54_36.mp3 +received intimation about the bouncing of the aforesaid cheque. The allegation that the accused committed an offence under S. 138 r/w S. 141 of,audio_54_37.mp3 +the act relates only to the bouncing of the cheque when it was presented by the complainant-Co. for the second time for encashment on february,audio_54_38.mp3 +"9, 1991, to its banker at sirsa and the same could not be got cleared and instead was dishonoured and bounced again. On this basis,",audio_54_39.mp3 +"it was rightly contended on behalf of the accused-petitioners that"" the complainant-Co. cannot have a second cause of action on the same cheque as no",audio_54_40.mp3 +complaint was filed when the cheque in question bounced for the first time constituting the first cause of action. 6. Reliance on behalf of the,audio_54_41.mp3 +"accused-petitioners was rightly placed on a division bench Auth. of the kerala HC in n.c. Kumaresan vs. ameerappa [1992] 74 comp cas 848, wherein",audio_54_42.mp3 +"it was observed as follows (at page 851) :k.p.v. Textiles and anr. vs. malook chand naresh chand on 16 july, 1992",audio_54_43.mp3 +"Large : the first is that more than one cause of action on the same cheque is not contemplated or envisaged. The second is, institution",audio_54_44.mp3 +of prosecution cannot be made after one month of the cause of action. If more than one cause of action on the same cheque can,audio_54_45.mp3 +"be created, the consequence would be that the same drawer of the cheque can be prosecuted and even convicted again and again on the strength",audio_54_46.mp3 +of the same cheque. The legislature cannot be imputed with the intention to subject a drawer of a cheque to repeated prosecutions and convictions on,audio_54_47.mp3 +"the strength of one cheque."" 7. The contrary view expressed by balakrishnan j. In mahadevan sunil kumar vs. bhadran [1992] 74 comp cas 805 (ker),",audio_54_48.mp3 +was not regarded as the correct view by the division bench in n.c. Kumaresan's Cas. [1992] 74 comp cas 848 (ker) with the following observations,audio_54_49.mp3 +"(at p. 852) ; ""even if such a view is possible, it is one of the settled principles of interpretation of statutes that when two",audio_54_50.mp3 +"interpretations are possible of a penal provision, only that which is less onerous to the accused should be preferred (vide maxwell on the interpretation of",audio_54_51.mp3 +"statutes, 12th edition, page 239) : ""the principle applied in construing a penal act is that if, in construing the relevant provisions, there appears any",audio_54_52.mp3 +"reasonable doubt or ambiguity, it will be resolved in favour of the person who would be liable to the penalty. The learned author quoted lord",audio_54_53.mp3 +"esher mr. From the decision in tuck and sons vs. priester [1887] 19 qb 629, 638 thus : ""if there are two reasonable constructions we",audio_54_54.mp3 +"must give the more lenient one. i.e. the settled rule for the construction of a penal S. ."" the SC had adopted the same",audio_54_55.mp3 +"principle for interpretation on penal statutes (vide m. V. Joshi vs. m. U. Shimpi, air 1961 SC 1494). Departure from this principle is permitted",audio_54_56.mp3 +"if the object and scheme of the statute would be defeated otherwise (vide chief inspector of mines vs. karam chand thaper, air 1961 SC ",audio_54_57.mp3 +"838 and maharaja booh depot vs. state of gujarat, air 1979 SC 180)."" 8. While dealing with this aspect of the Cas. , it was",audio_54_58.mp3 +further observed in n. C. Kumaresan's Cas. [1992] 74 comp cas 848 (ker) that the words in the relevant provisions of the act are not,audio_54_59.mp3 +so ambiguous as to afford scope for an interpretation which leads to the disastrous consequences cited above. We have already indicated the possibility of such,audio_54_60.mp3 +consequences ensuing if more causes of action than one are permitted to arise in respect of the same cheque. 9. In the Auth. of the,audio_54_61.mp3 +"andhra pradesh HC in p.t.v. Ramanujachari vs. giridharilal rathi [1992] 73 comp cas 421 (ap), relied upon by the complainant-Co. , the main question involved",audio_54_62.mp3 +was whether the accused had to pay the money to the complainant and whether hehad issued the cheque as well as all other questions of,audio_54_63.mp3 +"fact had to be established on evidence. In view of the peculiar circumstances of the aforecited Auth. , it was observed that it was for the",audio_54_64.mp3 +complainant to establish the various allegations through evidence. The facts of the Cas. in hand are entirely different where admittedly the accused had issued the,audio_54_65.mp3 +cheque in favour of the complainant which could not be encashed even though the same was pfesented twice for encashment by the complainant-Co. . The aforecited,audio_54_66.mp3 +"Auth. in ramanujachari's Cas. [1992] 73 comp cas 421k.p.v. Textiles and anr. vs. malook chand naresh chand on 16 july, 1992",audio_54_67.mp3 +"10. The argument advanced on behalf of the complainant-Co. that the accused in their reply dated september 30, 1990, mentioned that the aforesaid cheque could",audio_54_68.mp3 +not be encashed because of non-availability of accused no. 2 in the town and consequent non-arrangement of funds in the bank account would not help,audio_54_69.mp3 +"the Cas. of the complainant. There is no specific mention in the aforesaid reply dated september 30, 1990, that the cheque was dishonoured because of",audio_54_70.mp3 +"non-arrangement of funds. Rather, it is specifically mentioned in the reply dated september 30, 1990, that the complainant-Co. was asked to retain the cheque for",audio_54_71.mp3 +some time but the said Co. presented the cheque for collection all of a sudden. It is thus quite apparent that at no stage before,audio_54_72.mp3 +"the institution of the present complaint, the accused-petitioners had in writing requested the complainant-Co. to represent the cheque which had already been dishonoured, or gave",audio_54_73.mp3 +"any assurance that in Cas. any such cheque is represented the same would be encashed. 11. From the above discussion, it is quite obvious that",audio_54_74.mp3 +the allegations set out in the complaint do not in law constitute or spell out any offence in respect of which the present complaint has,audio_54_75.mp3 +"been filed. Thus, continuation of the proceedings on the aforesaid complaint would amount to abuse of the process of the court. 12. For the foregoing",audio_54_76.mp3 +"reasons, the complaint as well as the consequent proceedings taken thereunder against the accused-petitioners are hereby quashed and this petition is accordingly allowed.k.p.v. Textiles and",audio_54_77.mp3 +"anr. vs. malook chand naresh chand on 16 july, 1992",audio_54_78.mp3 +"M/S. geberit plumbing vs. m/S. rahul enterprises on 11 january, 2023 1 c.c. No.23012/2021 kabc030633312021 presented on : 07-09-2021 registered on : 07-09-2021 decided on",audio_55_1.mp3 +": 11-01-2023 duration : 1 years, 4 months, 4 days in the court of xxvii addl. Chief MM , bengaluru present: sri. H. Satish b.a.l.",audio_55_2.mp3 +"Ll.b., ll.m., xxvii a.c.m.m bengaluru. Dated: this the 11 th day of january 2023. C.c. No. 23012/2021 complainant m/S. geberit plumbing technology india Pvt. ltd.,",audio_55_3.mp3 +"office at no.77, 103, at lalit ashok, kumara krupa, high grounds, bengaluru 560001. Represented by its finance and controller sri. Dinesh S. bhalkikar, (by sri.",audio_55_4.mp3 +"L.t. Gopal, Adv. ) v/s. 2 c.c. No.23012/2021 accused m/s. Rahul enterprises h.no.1-8-303/48/16-a, plot No. 16, ground floor, devi sharma apartments,m/S. geberit plumbing vs. m/S. rahul",audio_55_5.mp3 +"enterprises on 11 january, 2023",audio_55_6.mp3 +"p.g. Road, secunderabad 500 003, telangana, offence represented by its proprietrix, aarthi samat @ aarthi s samat (by sri. Chander kumar adv.,) u/s.138 of negotiable",audio_55_7.mp3 +instruments act. Plea of the accused claims to be tried final order convicted judgment date 11/01/2023 **** judgment the complainant Co. has filed complaint u/sec.200,audio_55_8.mp3 +of Cr.P.C. against the accused for the offence punishable u/sec.138 of negotiable instrument act. 2. The facts germane for disposal of the,audio_55_9.mp3 +"instant complaint can be summarized as per following:- it is the Cas. of the complainant Co. that, it is engaged in the business of sanitary",audio_55_10.mp3 +and piping materials and the accused is the regular customer of the complainant Co. since 2014 and has placed purchase orders on various dates for,audio_55_11.mp3 +"purchasing sanitary and piping materials and the complainant Co. has raised tax invoices for having supplied materials to the accused. 3. It is stated that,",audio_55_12.mp3 +"accused was liable to pay outstanding amount of rs.7,05,662/- for the period between 01/04/2019 and 28/02/2021 and the said amount is due and payable by",audio_55_13.mp3 +"the accused after deducting the value of unused, unsold, goods/ materials and the accused was liable to pay the aforesaid amount and stated that towards",audio_55_14.mp3 +"discharge of the liability due and payable, the accused issued cheque bearing no.000010 dated 24/02/2021 drawn on hdfc bank, hyderbad branch, andhra pradesh for a",audio_55_15.mp3 +"sum of rs.7,05,622/- in favour of the complainant Co. . 4. It is stated that the complainant Co. presented the said cheque for encashment through its",audio_55_16.mp3 +"banker i.e., icici bank, vyalikaval branch, bengaluru and the same got dishonoured and returned with an endorsement stating "" funds insufficient "". Thereafter, the complainant",audio_55_17.mp3 +"Co. got issued demand notice dated: 17/03/2021 to the accused through rpad calling upon her to make the payment covered under the aforesaid cheque, within",audio_55_18.mp3 +"15 days from the date of receipt of notice and the said notice was served upon the accused on 20/03/2021. After receipt of notice, the",audio_55_19.mp3 +"accused hasm/S. geberit plumbing vs. m/S. rahul enterprises on 11 january, 2023",audio_55_20.mp3 +This complaint. 5. The sworn statement of the AR of the complainant Co. by name Mr. dinesh s bhalkikar was recorded. As the complainant,audio_55_21.mp3 +"Co. had complied the mandatory requirements of S. 138 of negotiable instrument act, the court issued summons to the accused. After service of summons, accused",audio_55_22.mp3 +entered appearance and was enlarged on bail. 6. The plea of the accused was recorded and the substance of the accusation was read over to,audio_55_23.mp3 +"the accused in the language known to her and the same was explained, to which, accused pleaded not guilty and submitted she has defence to",audio_55_24.mp3 +"make. 7. In order to prove the Cas. , the AR of the complainant Co. by name mr. Dinesh s bhalkikar got himself examined as",audio_55_25.mp3 +pw.1 and got marked ex.p1 to ex.p28 documents. 8. The statement of accused under S. 313 Cr.P.C. was recorded and the accused,audio_55_26.mp3 +denied the incriminating evidence appearing against her. The accused got herself examined as dw.1 and got marked ex.d.1 to d.4 documents. 9. Heard arguments on,audio_55_27.mp3 +both sides. I have perused the materials on record. 10. The following points arise for my determination: (i) whether the complainant Co. proves that towards,audio_55_28.mp3 +"discharge of liability due and payable, the accused issued cheque bearing no.000010 dated: 24/02/2021 for a sum of rs.7,05,622/- drawn on hdfc bank, hyderabad branch,",audio_55_29.mp3 +andhrapradesh ? (ii) whether the complainant Co. proves that accused has committed an offence punishable u/sec.138 of negotiable instrument act? (iii) what order? 11. My,audio_55_30.mp3 +"answer to the above points is as per following:- point no.1& 2 : in the affirmative point no.3 : as per the final order, for",audio_55_31.mp3 +"the following:- r eas o n s 12. Point nos.1 & 2 : in order to prove the Cas. , the authorized signatory of the complainant",audio_55_32.mp3 +by name mr. Dinesh s bhalkikar got himself examined as pw.1 and the Aff. filed by him in lieu of sworn statement was treated as,audio_55_33.mp3 +"examination in chief as per the dictum laid down in the ruling of the Hon'ble apex court of india, reported in (2014) 5m/S. geberit plumbing",audio_55_34.mp3 +"vs. m/S. rahul enterprises on 11 january, 2023",audio_55_35.mp3 +"Ex-p28 documents. 13. The complainant Co. has exhibited the following ex.p-1 to ex.p-28 documents. Ex.p-1 is the board resolution dated: 07/05/2021, ex.p-2 is the cheque",audio_55_36.mp3 +"dated 24/02/2021, ex.p-2(a) is the signature of the accused. Ex.p-3 is the bank endorsement dt:26/02/2021, ex.p-4 is the office copy of legal notice dated 17/03/2021,",audio_55_37.mp3 +"ex.p-5 is the postal receipt, ex.p-6 is the postal acknowledgment. Ex.p-7 is the true copy of registration certificate, ex.p8 & 9 true copy of the",audio_55_38.mp3 +"account statements, ex.p10 is the true copy of the tax invoice, ex.p11 is the true copy of the sales returns, ex.p12 is the true copy",audio_55_39.mp3 +"of credit note, ex.p13 to 27 are the invoices, ex.p28 is the certificate u/sec. 65-b of the indian evidence act. 14. The learned counsel for",audio_55_40.mp3 +the complainant Co. vehemently argued that the accused has admitted the transaction in question and she has also admitted that ex.p-2 cheque and signature thereon,audio_55_41.mp3 +belongs to her and argued the notice issued by the complainant Co. was served upon the accused and the accused has not replied to the,audio_55_42.mp3 +"said notice and argued the accused claims that the ex.p2 cheque was issued by her towards security and to establish the same, the accused has",audio_55_43.mp3 +not placed positive evidence before the court and argued the complainant Co. by examining pw1 and by producing ex.p1 to 28 documents and also by,audio_55_44.mp3 +"eliciting material answers from dw1, has ably proved that the ex.p2 cheque in question was issued by the accused towards discharge of liability and argued",audio_55_45.mp3 +"the accused has failed to rebut the presumption as contemplated u/sec. 139 of the NI Act . In support of his Cas. , the complainant counsel",audio_55_46.mp3 +has relied on the following rulings; 1. (2010) 11 scc 441 decided between rangappa vs mohan 2. 2019 (18) scc 106 decided between rohitbhai jeevanlal,audio_55_47.mp3 +patel vs state of gujarath and Anr. 3. Crl. appeal no.123/2021 decided by the Hon'ble SC 4. Cra.no.685/2018 decided by Hon'ble HC of,audio_55_48.mp3 +kolkatta 5. Crl. revision. Petition No. 244/2020 decided by the Hon'ble HC of kerala. 15. Per contra the learned counsel for the accused stoutly,audio_55_49.mp3 +argued that the complainant Co. has failed to prove that the subject cheque was issued by the accused towards discharge of liability and argued the,audio_55_50.mp3 +cheque in question issued by the accused towards security has been misused by the complainant Co. and a false Cas. has been filed against the,audio_55_51.mp3 +accused and argued the accused has elicited materials answers from complainant / pw1 with respect to the signed blank cheque issued by the accused and,audio_55_52.mp3 +that the same is filled up by the complainant Co. itself and argued the accused has produced ex.d1 and d2 e-mails to disprove the transaction,audio_55_53.mp3 +in question and argued the complainant Co. has failed to prove that the accused was liable to pay the amount covered under ex.p2 cheque and,audio_55_54.mp3 +"sought to acquit the accused.m/S. geberit plumbing vs. m/S. rahul enterprises on 11 january, 2023",audio_55_55.mp3 +"Principles laid down in the aforesaid rulings and i have also adopted the same while deciding the instant Cas. . That apart, on considering the arguments",audio_55_56.mp3 +"addressed by the learned counsel for the complainant and accused, before adverting to the oral evidence let in by the complainant and accused and also",audio_55_57.mp3 +"without touching upon the defence set up by the accused, the documents produced by the complainant Co. which are at ex.p2 to 6 prima-facie discloses",audio_55_58.mp3 +"that the complainant Co. has discharged initial burden of proving issuance and presentation of ex.p2 cheque, bouncing of cheque, issuance of notice and its service.",audio_55_59.mp3 +"At this juncture, i find it relevant to quote ruling reported in 2010(11) scc 441, decided between rangappa vs. Sri. Mohan wherein the Hon'ble apex",audio_55_60.mp3 +"court held that: "" presumption under S. 139 of negotiable instrument act, 1881 includes the presumption of the existence of legally enforceable debt or liability.",audio_55_61.mp3 +"That presumption is required to be honoured and if it is not so done, the entire basis of making these provision will be lost. Therefore,",audio_55_62.mp3 +"it has been held that, it is for the accused to explain his Cas. and defend it once the fact of cheque bouncing is prima-facie",audio_55_63.mp3 +"established. The brain is on him to disprove the allegations once a prima- facie Cas. is made out by the complainant "". 17. In the",audio_55_64.mp3 +"aforesaid ruling the Hon'ble apex court has held that, once the complainant establishes bouncing of cheque, then it is for the accused to disprove the",audio_55_65.mp3 +allegations and also it is for him/her to rebut the presumption as contemplated under S. 139 of negotiable instrument act by placing acceptable evidence .,audio_55_66.mp3 +In the ruling decided by the Hon'ble apex court in Crl. appeal No. 1233 - 1235 of 2022 decided on 12/08/2022 between rasiya v/s abdul,audio_55_67.mp3 +"nazar the Hon'ble apex court at Para. 7 held that as per sec.139 of the NI Act , it shall be presumed, unless the contrary",audio_55_68.mp3 +"is proved, that the holder of a cheque received the cheque of the nature referred to in sec.138 of the NI Act for discharge,",audio_55_69.mp3 +"in whole or in part, of any debt or other liability. Therefore, once the initial burden is discharged by the complainant that the cheque was",audio_55_70.mp3 +"issued by the accused and the signature and the issuance of cheque is not disputed by the accused, in that Cas. , the onus will shift",audio_55_71.mp3 +on the accused to prove the contrary that the cheque was not for any debt or other liability. The presumption u/sec. 139 of the negotiable,audio_55_72.mp3 +"instruments act is a statutory presumption and thereafter, once it is presumed that the cheque is issued in whole or in part of any debt",audio_55_73.mp3 +"or other liability which is in favour of the complainant / holder of cheque, in that Cas. , it is for the accused to prove the",audio_55_74.mp3 +"contrary. 18. In the light of the principle laid down above, it is worth to note that, the accused in her examination in chief at",audio_55_75.mp3 +"Para. 2, deposed that ex.p2 cheque belongs to her and signature appearing thereon belongs to her and deposed she had issued ex.p.2 and other signed",audio_55_76.mp3 +"blank cheques to the complainant Co. about 10 years ago towards security. Be that as it may, as the accused has admitted that ex.p.2 cheque",audio_55_77.mp3 +"belongs to her and the signature appearing at ex.p2 cheque belongs to her and also she has admitted issuance of cheque, this court will have",audio_55_78.mp3 +to raise presumption as contemplated u/sec. 139 of the NI Act that ex.p2 cheque was issued by the accused towards discharge of debt.m/S. geberit,audio_55_79.mp3 +"plumbing vs. m/S. rahul enterprises on 11 january, 2023",audio_55_80.mp3 +"Between kumar exports v/s. Sharma carpets, the Hon'ble apex court at Para. 20 & 21 has explained the course to be adopted by the accused",audio_55_81.mp3 +"to disprove the Cas. of the complainant and to rebut the presumption as envisaged u/sec. 139 of the NI Act . At Para. 20, it",audio_55_82.mp3 +"is held that, the accused in a trial u/sec. 138 of the NI Act has two options. He can either show that consideration and",audio_55_83.mp3 +"debt did not exist or that under the particulars circumstances of the Cas. , the non-existence of consideration and debt is so probable that a prudent",audio_55_84.mp3 +"man ought to suppose that no consideration and debt exist. To rebut the statutory presumption, an accused is not expected to prove his defence beyond",audio_55_85.mp3 +reasonable doubt as his expected of the complainant in a Crl. trial. The accused may adduce direct evidence to prove that the note in question,audio_55_86.mp3 +"was not supported by consideration and there was no debt or liability to be discharged by him. However, the court need not insist in every",audio_55_87.mp3 +"Cas. , that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible",audio_55_88.mp3 +"nor contemplated. At the same time, it is clear that, bare denial of the passing of the consideration and the existence of debt, apparently would",audio_55_89.mp3 +not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of prove shifted to,audio_55_90.mp3 +"the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration which, the court may either believe that",audio_55_91.mp3 +"the consideration and debt did not exist or there non-existence was so probable that a prudent man would under the circumstances of the Cas. , act",audio_55_92.mp3 +upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by the,audio_55_93.mp3 +"consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances, so relied",audio_55_94.mp3 +"upon or compelling, the burden may like wise, shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance,",audio_55_95.mp3 +"those mentioned in sec.114 of the evidence act, to rebut the presumption u/sec. 118 & 139 of the NI Act . At Para. 21, the",audio_55_96.mp3 +Hon'ble apex court held that the accused has also an option to prove the non- existence of consideration and debt or liability either by letting,audio_55_97.mp3 +"in evidence or in some clear and exceptional cases from the Cas. set out by the complainant, i.e. the averments in the complaint, the",audio_55_98.mp3 +Cas. set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by,audio_55_99.mp3 +"the court, having regard to all the circumstances of the Cas. and the preponderance of probabilities, the evidential burden shift back to the complainant and,",audio_55_100.mp3 +"therefore, the presumption u/sec. 118 and 139 of the NI Act will not again come to the complainant's rescue. 20. In this backdrop, now",audio_55_101.mp3 +"i enter in to the domain of defense set up by the accused, to ascertain whether accused has been able to rebut the presumption as",audio_55_102.mp3 +"contemplated u/sec. 139 of the NI Act , for which i find it appropriate to examine each and every aspect in detail. I. Transaction and",audio_55_103.mp3 +"statement of account: 21. It is to be noted that, it is the Cas. of the complainant Co. that it had supplied sanitary and piping",audio_55_104.mp3 +"materials to the accused on various dates, as per the purchase order issued by the accused and that the complainant Co. had raised invoices for",audio_55_105.mp3 +"the same. In order to establish the samem/S. geberit plumbing vs. m/S. rahul enterprises on 11 january, 2023",audio_55_106.mp3 +Invoices. The accused / dw1 in her examination in chief has deposed that complainant is known to her and she is transacting with the complainant,audio_55_107.mp3 +for the past 10 years and deposed in the year 2020 she has not asked complainant Co. to supply materials and that she has not,audio_55_108.mp3 +issued any purchase order and even then the complainant Co. supplied many materials and her husband sent an e-mail to the complainant Co. to take,audio_55_109.mp3 +"back the materials. In order to establish the same, the accused/dw.1 has produced two e-mails dated: 24/03/2020 and 26/03/2020 along with certificate u/sec. 65-b (4)",audio_55_110.mp3 +of indian evidence act and the said documents are marked as ex.d1 to 3. Dw1 also deposed that the complainant Co. took back the said,audio_55_111.mp3 +"materials and deposed that there is a dispute between her and the complainant Co. in respect of finance. 22. During cross-examination, at Para. 1, dw1",audio_55_112.mp3 +admitted that she is the owner of the accused concern and deposed € □ □‚ƒ„… †††‡ƒ† …ˆˆ‚‚ 01/04/2019 ƒˆ… 28/02/2021 ƒ †ƒ‰ ˆš…… ‹ˆ…ƒ œƒ.,audio_55_113.mp3 +□ƒƒžƒ†ƒ‰ ˆˆˆ ‚□ˆ‡œˆ□□…… purchase order ‘žƒ… ˆ œƒ’ƒ“ˆ ”šˆ□□……ƒˆ ‹ˆ…ƒ œƒ. ””• ˆˆ‰ ”•ˆ‰□ˆˆ the said admission of dw1 makes it clear that she has,audio_55_114.mp3 +"transacted with the complainant Co. in respect of the instant transaction during 01/04/2019 and 28/02/2021. It is worth to note that, dw1 in her examination",audio_55_115.mp3 +in chief has deposed that she has not placed any purchase order with the complainant Co. for supply of materials in the year 2020. Be,audio_55_116.mp3 +"that as it may, at Para. 3, the complainant Co. has suggested to dw1 that ex.d1 & 2 documents are created documents and the same",audio_55_117.mp3 +"is denied by dw1. 23. On careful scrutiny of ex.d1, it reveals that one suresh samanth had sent the said e-mail to raghukanth stating that",audio_55_118.mp3 +"certain materials have been dumped on them without orders. It is to be noted that, the accused has not examined the said suresh samanth before",audio_55_119.mp3 +"the court and notably, though dw1 in her examination in chief deposed that pursuant to the said e-mail, the complainant Co. took back the materials,",audio_55_120.mp3 +"to establish the same, the accused has not placed positive evidence before the court. That apart, dw1 in her cross-examination at Para. 6 admitted that",audio_55_121.mp3 +ex.d2 e-mail was sent by the complainant Co. and deposed she do not remember whether she had replied to the said e-mail. On careful scrutiny,audio_55_122.mp3 +"of ex.d2, it reveals that the representative of the complainant Co. by name gorika shayam had requested mr. Suresh to make the payments as much",audio_55_123.mp3 +"as possible. Therefore, ex.d2 document makes it clear that accused was due to the complainant Co. . 24. That apart, during cross-examination dated: 11/07/2022, at Para. ",audio_55_124.mp3 +"1, the accused has suggested to pw.1 that accused was transacting with raghukantha, sriram and gorika of the complainant Co. for which pw1 deposed that",audio_55_125.mp3 +"they are working in the sales Dept. of the complainant Co. . At Para. 3, pw1 deposed that accused will send purchase order for supply of",audio_55_126.mp3 +materials and admitted in the said purchase order there will be details about the materials required and its costs and deposed they will send materials,audio_55_127.mp3 +along with invoice to the accused by mentioning the purchase order and also deposed after delivery of materials they will receive delivery note and lorrym/S. ,audio_55_128.mp3 +"geberit plumbing vs. m/S. rahul enterprises on 11 january, 2023",audio_55_129.mp3 +"Para. 4, pw1 deposed that in the ledger maintained by the complainant Co. there will be details as to payments to be received by the",audio_55_130.mp3 +"accused under different invoice. At Para. 5, pw1 deposed ‘ƒƒ”□□□ˆ □ƒƒž œˆœœ–ˆ… ”•ˆ‰□ˆˆ ˆ —ƒ”…œ ’”ƒ ‰□‡‚ƒ‰ ”ƒ˜ ”šˆ□□ƒ ‹ˆ…ƒ œƒ. □ƒƒž ‚ˆ□ˆ–†ƒˆ ‘ƒƒ”□□□‰ œƒ’ƒ“ˆ",audio_55_131.mp3 +"”š… ”•ˆ‰□• □ƒˆ…ƒ ‚ˆšˆ’ˆ…• ‘ ’‰‰ ‘ƒƒ”□□□ˆ □ƒƒž ‚ˆ□ˆ– ƒ™ˆ‚ˆ□, š□”ƒ”›”□ˆ□ ‰ƒ‚ƒ†ƒ‰ □□œˆ□□ƒ ‹ˆ…ƒ œƒ. ˆˆ□ƒ ‘ □ƒˆ…ƒ œ…… ”•ˆ‰□ˆˆ ˆ □ƒƒž ‚ˆ□ˆ–†ƒˆ œ □š…",audio_55_132.mp3 +"ˆˆ□ƒ ‘ ”•ˆ‰□ □˜ˆ †□œˆ ˜ ”□□†ˆˆ ˆ ˆ”” ledger □˜ˆ ˜ ”□□…• ‚š” ”šˆ□□”†ˆ…ƒ œƒ. 25. It is to be noted that, the aforesaid",audio_55_133.mp3 +"suggestion made by the accused to pw1 and the answers elicited by pw1 coupled with the testimony of dw.1 goes to show that, the accused",audio_55_134.mp3 +"is admitting that she had business transaction with the complainant Co. . That apart, at Para. 6, the accused has suggested to pw1 that in the",audio_55_135.mp3 +month of february - march 2020 the complainant Co. has supplied materials even without purchase order being placed by the accused and the same is,audio_55_136.mp3 +"denied by pw1 and when questioned on what basis he deposes the same, pw1 has answered that there is no documents in the complainant Co. ",audio_55_137.mp3 +in respect of supply of materials without purchase order being sent by the accused. Pw1 pleaded ignorance that between 23/03/2020 to 26/03/2020 the accused has,audio_55_138.mp3 +"sent e-mail to raghukanth, sriram and gorika to take back the materials which has been sent without purchase order. Pw1 also pleaded ignorance that gorika",audio_55_139.mp3 +"had sent e- mail on 26/03/2020 to the accused stating that they will take back the materials. It is to be noted that, the accused",audio_55_140.mp3 +has produced ex.d2 e-mail dated: 26/03/2020 sent by gorika and notably in the said e- mail there is no mention about taking back the materials,audio_55_141.mp3 +"supplied to the accused. That apart, at para no.7 pw1 admitted that he has not produced invoices, delivery receipt and purchase order to establish the",audio_55_142.mp3 +"amount mentioned at ex.p2. Pw1 voluntarily deposed that he can produce the same. 26. At Para. 9, the accused has suggested to pw1 that in",audio_55_143.mp3 +the year 2019 the accused was requesting the complainant to take back the materials and to verify the accounts and the same is denied by,audio_55_144.mp3 +"pw1. That apart, pw1 pleaded ignorance that accused was transacting with one amzed working at the complainant Co. and also pleaded ignorance that accused had",audio_55_145.mp3 +"sent e-mails to the complainant Co. between 23/12/2019 to 23/09/2020 and notably except ex.d.1 and d.2, the accused has not produced other e-mails. At Para. ",audio_55_146.mp3 +"10, pw1 pleaded ignorance about sending materials to the accused without purchase order. At Para. 10, it is suggested by the accused to pw1 that",audio_55_147.mp3 +"the complainant Co. has sent materials worth of rs.8,00,000/- and if the said materials is taken back by the complainant Co. , the accused is not",audio_55_148.mp3 +"liable to pay any amount and also suggested that since march 2020 as the complainant Co. has not taken back the materials, it has become",audio_55_149.mp3 +"old stock and the said suggestion has been denied by pw1. 27. It is to be noted that, pw1 was further examined in chief and",audio_55_150.mp3 +he has produced ex.p9 to 28 documents to establish the transaction in question and also to establish that the accused is liable to pay the,audio_55_151.mp3 +"amount covered under ex.p2 cheque. During cross- examination dated: 13/10/2022 atm/S. geberit plumbing vs. m/S. rahul enterprises on 11 january, 2023",audio_55_152.mp3 +Accused and its date is mentioned. Pw1 admitted that the purchase order No. at ex.p13 & 17 is the same and admitted he has not,audio_55_153.mp3 +produced the purchase order. Pw1 also admitted that the dates in the said documents is different and admitted at ex.p18 to 22 the purchase order,audio_55_154.mp3 +No. is mentioned as 8 and the dates in the said documents are different. Pw1 admitted that he has not produced purchase orders mentioned in,audio_55_155.mp3 +"the ex.p18 to 22 documents. 28. That apart, pw1 deposed that at ex.p23 & 24 the purchase order No. is mentioned as 9 and admitted",audio_55_156.mp3 +that the dates in the said documents is different and admitted he has not produced the said purchase order. Pw1 admitted at ex.p27 there is,audio_55_157.mp3 +no mention about purchase order No. and the date and denied that ex.p13 to 27 documents are created documents. Pw1 admitted that the total value,audio_55_158.mp3 +"is mentioned at ex.p9, p13 to 27 documents and also admitted there is a reference at ex.p10 document about return of goods by the accused",audio_55_159.mp3 +"and admitted ex.p10 document was issued by the accused and as per ex.p8 the accused has returned goods worth of rs.8,00,000/- and he voluntarily deposed",audio_55_160.mp3 +"that as per ex.p11 they have supplied materials worth of rs.3,00,000/- and also deposed the accused has taken the said materials and deposed that they",audio_55_161.mp3 +"have taken materials worth of rs.5,00,000/-. 29. At Para. 5, pw1 admitted that ex.p12 document pertains to the transaction made by the accused with respect",audio_55_162.mp3 +"to secundarabad and admitted as per ex.p12 the accused has returned goods worth of rs.21,382/- and denied that ex.p9 to 28 documents does not contain",audio_55_163.mp3 +"the details of transaction made by the accused. Pw1 admitted that even today raghukantha, sriram and gorika are working in the complainant Co. . It is",audio_55_164.mp3 +"to be noted that, on careful scrutiny of the testimony of pw.1, it reveals that, the complainant Co. has not produced purchase orders mentioned at",audio_55_165.mp3 +"ex.p.13 to p.24. That apart, during cross examination dated: 11/07/2022 at Para. 10 pw.1 pleaded ignorance whether the complainant Co. has supplied materials to the",audio_55_166.mp3 +"accused without purchase order. Even otherwise, if at all, the accused had any dispute in respect of ex.p9 to p27 documents or that the accused",audio_55_167.mp3 +had returned goods to the complainant Co. as claimed by her and if the complainant Co. had supplied materials without purchase order the accused ought,audio_55_168.mp3 +"to have taken necessary legal action against the complainant Co. and no such steps is taken by the accused. That apart, if the accused had",audio_55_169.mp3 +"transacted only with raghukantha, sriram, gorika and amzad, the accused could have summon them and examined before the court to establish the actual transaction made",audio_55_170.mp3 +"by the a; with the complainant Co. and no such steps is taken by the accused. 30. Be that as it may, during cross-examination, at",audio_55_171.mp3 +"Para. 5, dw1 deposed □ƒƒž–†ƒˆ ˆˆ‰ ‚□ˆ‡œ… ”•ˆ‰□ □□‚ ”ƒ˜†‰… ”•ˆ‰□ˆˆ ˆ ‡ˆ□š…ˆ ˆˆ‰ ‚□š˜›ˆƒ”˜› ‚□ˆ‡œ……ƒˆ ‹ˆ…ƒ œ‚ œƒ’‡ˆ…ˆ ‹ˆ…ˆ ˆˆš–ˆ□□ƒ. □ƒƒž–†ƒˆ ‚”□ˆ□□ƒˆ† ’‚ ‡„",audio_55_172.mp3 +"ƒƒ.7,05,622/- ’‚ ”□□ ž…ˆ ‚ ‚”’……†‰••†ˆ…ˆ ‡”□ □ƒƒž‰ ˆƒ”˜œˆ ‚ƒ˜˜ƒˆ†ƒ ‹ˆ’ □ □šˆ‰ œ‚ ž…ˆ ‘ƒƒ”□ œˆœœ– ž‚ˆ˜œ œ•—‰ ‰ƒ□□ƒˆ□□…ˆ…ˆ ÿ□□ƒœƒˆ□□ƒ. The said testimony of",audio_55_173.mp3 +"dw1 goes to show that, the complainant Co. had sent credit note to the accused as per ex.p11 and as admitted by dw1 she is",audio_55_174.mp3 +not aware whether she had issued any notice to the complainant Co. stating that amount claimed by the complainant Co. is not legally valid. That,audio_55_175.mp3 +"apart, the complainant Co. has produced ex.p9 document to establish the outstanding amount payable by the accused and notably, though them/S. geberit plumbing vs. m/S. ",audio_55_176.mp3 +"rahul enterprises on 11 january, 2023",audio_55_177.mp3 +"Cross-examination that the complainant Co. might have issued credit note and notably, no positive evidence is placed on record to establish that the materials supplied",audio_55_178.mp3 +"by the complainant Co. without purchase order is laying with the accused. Therefore, taking note of the entire materials placed on the complainant Co. and",audio_55_179.mp3 +the accused it could be concluded that accused had business transaction with the complainant Co. and that she was due to the complainant Co. the,audio_55_180.mp3 +"amount mentioned in the ex.p2 cheque. Ii.cheque issued towards security and contents of cheque: 31. It is to be noted that, the accused has taken",audio_55_181.mp3 +a defence that she had issued 8 signed blank cheques to the complainant Co. about 10 years ago towards security in respect of the transaction,audio_55_182.mp3 +"and by misusing the same the complainant Co. has filed a false Cas. against her. During cross-examination, at Para. 10, the accused has suggested to",audio_55_183.mp3 +pw1 that the signed blank cheque given by the accused to the complainant Co. in the year 2017 towards security has been misused and a,audio_55_184.mp3 +"false Cas. has been filed against the accused and the same is denied by pw.1. At Para. 7, the accused has suggested to pw1 that",audio_55_185.mp3 +"the accused had issued ex.p2 cheque towards security and the said suggestion has been denied by pw1. In the very same paragarph, pw1 deposed ˆ□2",audio_55_186.mp3 +ƒ• ‚□□ œˆ‚›ˆ•ƒˆ† □ƒƒž ‚ˆ□ˆ– ‡œƒˆˆ ˆ ˆ”” ‚ˆ□ˆ– ‡„‚œˆ œ•—– ˜””› œ…œ†ƒˆ ’ƒ…ƒˆ□□ƒ. ‘ œˆ‰□–ˆˆ ˆ ’ˆ‰□ƒƒˆ ˆ”” ‚ ”ƒ–• †ˆ–›‹ˆ’ˆ††ƒˆ ’ƒ…ƒˆ□□ƒ. 32. At,audio_55_187.mp3 +"Para. 8, pw1 deposed that at ex.p2 cheque he do not know who has written the contents in blue ink and deposed ex.p2 cheque was",audio_55_188.mp3 +given to him by raghukantha and deposed raghukantha is working in hyderabad branch. Pw1 denied that accused had given ex.p2 cheque and Anr. signed cheque,audio_55_189.mp3 +"towards security in the year 2017 and the same is denied by pw1. It is to be noted that, as per the complaint averments towards",audio_55_190.mp3 +"discharge of liability the accused had issued subject cheque and notably the date of issuance of cheque is not mentioned. During cross- examination, at Para. ",audio_55_191.mp3 +"1, the complainant has suggested to accused/dw.1 that ex.p2 cheque was issued by the accused on 24/02/2021 and the same is denied by dw1. 33.",audio_55_192.mp3 +"Be that as it may, ex.p4 notice issued by the complainant Co. was served upon the accused as per ex.p6. During cross-examination, at Para. 2,",audio_55_193.mp3 +dw1 admitted that the address mentioned at ex.p4 & 6 belongs to her and admitted that the seal forthcoming at ex.p6 belongs to the accused,audio_55_194.mp3 +no.1 concern. Pw1 deposed she will have to verify records whether she has sent reply notice to the ex.p4 notice. It is worth to note,audio_55_195.mp3 +that the accused has produced ex.d4 document to establish that she had filed suit against the complainant Co. for perpetual injunction restraining the complainant Co. ,audio_55_196.mp3 +"from depositing the cheques issued by her. At Para. 13 of ex.d.4, it is mentioned that the complainant Co. has misused the subject cheque. It",audio_55_197.mp3 +"is to be noted that, the said suit was filed on 29/01/2022. Whereas, ex.p.4 notice was issued by the complainant Co. on 17/03/2021 and the",audio_55_198.mp3 +"same was served upon the accused on 20/03/2021 and notably, the accused has not issued reply to the said notice. 34. That apart, at Para. ",audio_55_199.mp3 +"3, dw1 deposed that she will have to verify records to show that ex.p2 cheque and other cheques were issued by her to the complainant",audio_55_200.mp3 +"Co. to establish that the same were issued towards security. That apart, pw1 also deposed that there is a contract between her andm/S. geberit plumbing",audio_55_201.mp3 +"vs. m/S. rahul enterprises on 11 january, 2023",audio_55_202.mp3 +"Can produce the said document and notably, she has not produced the said records or agreement and at Para. 4, dw1 deposed that she can",audio_55_203.mp3 +"produce documents to show that she has issued other cheques to the complainant Co. as a security and notably, no documents are produced by the",audio_55_204.mp3 +"accused. That apart, dw1 deposed that she will have to verify records to show whether she had lodged any police complaint against the complainant Co. ",audio_55_205.mp3 +for misusing ex.p2 cheque and notably no documents are produced by the accused. Dw1 has deposed that she has issued notice to the complainant Co. ,audio_55_206.mp3 +"not to present ex.p2 cheque and that she can produce the said letter and notably, the accused has not produced the said letter. Dw1 deposed",audio_55_207.mp3 +that she do not remember whether she had issued stop payment instructions to her bank not to honour ex.p2 cheque. 35. It is to be,audio_55_208.mp3 +"noted that, no positive evidence is placed on record by the accused to establish that she had issued ex.p2 cheque towards security in respect of",audio_55_209.mp3 +the transaction as claimed by her. In the ruling reported in air 1968 SC 143 decided between gopal krishna g. Ketkar vs. Mohammed haji,audio_55_210.mp3 +"lathif and Ors. ., the Hon'ble apex court while considering the concept of onus of proof, held that ""a party in possession of best evidence which",audio_55_211.mp3 +"would throw light on the issue in controversy withholding it, court ought to draw adverse inference against him. Notwithstanding that onus of proof does not",audio_55_212.mp3 +lie on him. Party can rely on abstract doctrine of onus of proof or on the fact that he was not called upon to produce,audio_55_213.mp3 +"it"" . In the light of the principle laid down above, when dw.1 claims that, she can produce certain documents to discredit the Cas. of",audio_55_214.mp3 +"the complainant Co. , the accused ought to have produced the same. 36. It is to be noted in the ruling reported in (2019) 4 scc",audio_55_215.mp3 +"197 decided between birsingh vs. Mukesh kumar., the Hon'ble apex court held that "" even a blank cheque leaf, voluntarily signed and handed over by",audio_55_216.mp3 +"the accused, which is towards some payment, would attract presumption u/sec.139 of NI Act , in the absence of any cogent evidence to show that,",audio_55_217.mp3 +"the cheque was not issued in discharge of a debt"". In the light of the principles laid down above the stand taken by the accused",audio_55_218.mp3 +that the subject cheque was issued by the accused towards security cannot be accepted by this court and the same does not hold water. 37.,audio_55_219.mp3 +"Be that as it may, even if the admission made by pw1 is taken into account that the contents of ex.p2 cheque was written by",audio_55_220.mp3 +"one vinay of the complainant Co. and that the same was given to him by raghukantha working at hyderabad branch, the same is of no",audio_55_221.mp3 +"consequence. It is to be noted that, as per sec.20 of the negotiable instrument act as, when one person signs and delivers to Anr. a",audio_55_222.mp3 +stamped in accordance with the law relating to the negotiable instruments either wholly blank or having written there on an in-complete the negotiable instruments he,audio_55_223.mp3 +thereby gives prima-facie Auth. to the holder there of to make or complete. In the ruling relied reported in 2006 scc online kar 123 decided,audio_55_224.mp3 +"between shreyas agro services pvt ltd., v/s. Chandrakumar s.b at Para. 6 the Hon'ble HC of karnataka held that sec.20 of the negotiable instruments",audio_55_225.mp3 +"act declares that inchoate instruments are also valid and legally enforceable. In the Cas. of a signed blank cheque, the drawer gives Auth. to the",audio_55_226.mp3 +drawee to fill up the agreed liability. If the drawee were to dis honestly fill up any excess liability and the extent of liability if,audio_55_227.mp3 +"it becomes bonafidem/S. geberit plumbing vs. m/S. rahul enterprises on 11 january, 2023",audio_55_228.mp3 +Cheque. 38. In the ruling reported in air 2000 kar 169 h maregowda v/s thippamma the Hon'ble HC of karnataka at Para. 14 held,audio_55_229.mp3 +"that a reading of sec.20 of the NI Act will reveal that the words used are ""either wholly blank or having written thereon an",audio_55_230.mp3 +"incomplete negotiable instruments"". Thus, even if a blank promissory note is given, it cannot be taken as a defence to avoid a decree based on",audio_55_231.mp3 +"such instrument, once it is found that the document produced before the court satisfies the requirements of a promissory note within the meaning of the",audio_55_232.mp3 +"NI Act . The instrument may be wholly blank or incomplete in particular in either Cas. , the holder has the Auth. to make or complete",audio_55_233.mp3 +the instrument as a negotiable one. The Auth. implied by a signature to a blank instrument if so wide that the party so signing is,audio_55_234.mp3 +bound to be a holder in due course. Even though the holder was authorized to fill a certain amount and he infact inserts a greater,audio_55_235.mp3 +"amount, it is necessary that the sum ought not to exceed the amount covered by the same. In the light of the aforesaid provision and",audio_55_236.mp3 +principle laid down in the aforesaid ruling the holder of the cheque can fill up the contents of the cheque and present it to the,audio_55_237.mp3 +"bank for encashment. Therefore, the stand taken by the accused that she had issued subject signed blank cheque towards security in respect of transaction in",audio_55_238.mp3 +question and that the complainant Co. has filled up the contents and misused the same does not appeal to this court and the same does,audio_55_239.mp3 +"not hold water. 39. Therefore, taking note of the entire materials placed on record by the complainant and accused, it could be concluded that the",audio_55_240.mp3 +accused has failed to raise a probable defence that the subject cheque was not issued to the complainant Co. towards discharge of legally enforceable debt.,audio_55_241.mp3 +"As such, this court is of the view that the accused has failed to rebut the presumption as contemplated u/sec. 139 of the negotiable instruments",audio_55_242.mp3 +"act by placing acceptable evidence. Accordingly, i answer point no.1 & 2 in the affirmative. 40. Point no.3 :- in view of my findings to",audio_55_243.mp3 +"the points no.1 and 2, i proceed to pass the following:- ord er in exercise of power conferred u/sec. 255(2) of cr.pc, the accused is",audio_55_244.mp3 +"convicted for the offence punishable u/s.138 of n.i. Act and sentenced to pay fine of rs.8,10,000/-. In default of payment of the said fine amount,",audio_55_245.mp3 +"the accused shall undergo simple imprisonment for a period of six months. Out of the said fine amount, an amount of rs.8,00,000/- shall be paid",audio_55_246.mp3 +"to the complainant as compensation as contemplated u/sec. 357(1) of Cr.P.C. and the remaining amount of rs.10,000/- shall be remitted to the",audio_55_247.mp3 +"state. Office to furnish free copy of the judgment to the accused.m/S. geberit plumbing vs. m/S. rahul enterprises on 11 january, 2023",audio_55_248.mp3 +"Pronounced in the open court by me on this the 11th day of january, 2023). (h. Satish) xxvii a.c.m.m., bengaluru. Annexure witnesses examined on behalf",audio_55_249.mp3 +of the complainant: pw1 : sri.dinesh.s.bhalikikar documents marked on behalf of the complainant ex.p-1 : authorization letter dated: 07/05/2021 ex.p.2 : cheque dated: 24/02/2021 ex.p-2(a),audio_55_250.mp3 +: signature of the accused ex.p-3 : bank endorsement 26/02/2021 ex.p-4 : office copy of legal notice dated 17/03/2021 ex.p-5 : postal receipt ex.p-6 :,audio_55_251.mp3 +postal acknowledgment ex.p-7 : true copy of registration certificate ex.p8 & 9: true copy of the account statements ex.p10 : true copy of the tax,audio_55_252.mp3 +invoice ex.p11 : true copy of the sales returns ex.p12 : true copy of credit note ex.p13 to 27: invoices ex.p28 :certificate u/sec. 65-b of,audio_55_253.mp3 +the indian evidence act. Witnesses examined on behalf of the accused: dw.1 : aarthi samanth documents marked on behalf of the accused: ex.d1& d.2: e-mails,audio_55_254.mp3 +"ex.d3 : certificate u/sec. 65-b of the indian evidence act. Ex.d.4 ; suit in o.s.75/2022 (h. Satish) xxvii a.c.m.m., bengaluru. 11/01/2022 comp: sri.ltg adv., accd:",audio_55_255.mp3 +"sri. Lss adv., for judgment. Complainant and counsel absent. Accused and counsel present. (order typed vide separate sheet)m/S. geberit plumbing vs. m/S. rahul enterprises on",audio_55_256.mp3 +"11 january, 2023",audio_55_257.mp3 +"In exercise of power conferred u/sec. 255(2) of cr.pc, the accused is convicted for the offence punishable u/s.138 of n.i. Act and sentenced to pay",audio_55_258.mp3 +"fine of rs.8,10,000/-. In default of payment of the said fine amount, the accused shall undergo simple imprisonment for a period of six months. Out",audio_55_259.mp3 +"of the said fine amount, an amount of rs.8,00,000/- shall be paid to the complainant as compensation as contemplated u/sec. 357(1) of code of Crl. ",audio_55_260.mp3 +"procedure and the remaining amount of rs.10,000/- shall be remitted to the state. Office to furnish free copy of the judgment to the accused. (h.",audio_55_261.mp3 +"Satish) xxvii a.c.m.m., bengaluru. Adv. for accused files Appl. u/sec. 389(3) of Cr.P.C. , and prays to suspend the sentence passed against",audio_55_262.mp3 +the accused and submits accused intends to prefer appeal against the conviction judgment passed against her. Heard and perused. The accused is convicted for the,audio_55_263.mp3 +offence u/sec. 138 of the NI Act and the same is bailable and the accused was on bail during trial. As the accused intends,audio_55_264.mp3 +"to prefer appeal, it is just and necessary to suspend the sentence passed against the accused. Accordingly, Appl. filed by the accused u/sec. 389(3) of",audio_55_265.mp3 +"Cr.P.C. , is allowed and them/S. geberit plumbing vs. m/S. rahul enterprises on 11 january, 2023",audio_55_266.mp3 +"accused is suspended till appeal period subject to execution of personal bond for a sum of rs.8,10,000/-. Office is to take bond. (h. Satish) xxvii",audio_55_267.mp3 +"a.c.m.m., bengaluru.m/S. geberit plumbing vs. m/S. rahul enterprises on 11 january, 2023",audio_55_268.mp3 +"Sri.venkateshvara tyre Co. vs. smt. Shruthi sampath on 4 january, 2023 kabc030704602021 presented on : 28-09-2021 registered on : 28-09-2021 decided on : 04-01-2023 duration",audio_56_1.mp3 +": 1 years, 3 months, 6 days in the court of xxvii addl. Chief MM , bengaluru present: sri. H. Satish b.a.l. Ll.b., ll.m., xxvii",audio_56_2.mp3 +"a.c.m.m bengaluru. Dated: this the 4 th day of january 2022. C.c. No.25942/2021 complainant sri.venkateshvara tyre Co. represented by Mr. s.kungumraj s/o subramanyam, aged about",audio_56_3.mp3 +"31 years, partner of sri.venkateshvara tyres Co. at no.24/72, aruna building, J. c. Road, bangalore-560002. (by sri.narayanaswamy .m Adv. ) v/s. Accused smt. Shruthi sampath w/o",audio_56_4.mp3 +"sampath, aged about 35 years. Residing at no.40/5, 1 st floor, bheemanahalli, ramanagara district and taluk, bidai post, pin 562109. (by sri.hariprasad m.b. Adv.,) u/s.138",audio_56_5.mp3 +of negotiable offence instruments act. 2 c.c. No. 25942/2021 plea of the accused claims to be triedsri.venkateshvara tyre Co. vs. smt. Shruthi sampath on 4,audio_56_6.mp3 +"january, 2023",audio_56_7.mp3 +Judgment date 04/01/2022 **** judgment the complainant firm has filed complaint u/sec.200 of Cr.P.C. against the accused for the offence punishable u/sec.138,audio_56_8.mp3 +of negotiable instrument act. 2. The facts germane for disposal of the instant complaint can be summarized as per following:- it is the Cas. of,audio_56_9.mp3 +"the complainant firm that, it is dealing in all kinds of tyres, tubes and wheel alignment and balancing business and the accused is known to",audio_56_10.mp3 +"the complainant and was customer of the complainant firm and stated that during the course of business, the accused was purchasing the products from the",audio_56_11.mp3 +complainant firm and was placing order in the name of sri.veenayaka enterprises and the complainant firm sold and delivered tyres to the accused as per,audio_56_12.mp3 +"invoice dated: 24/06/2017 bearing No. 008133 for a sum of rs.9,03,000/- and the accused was in due to the complainant firm to the tune of",audio_56_13.mp3 +"rs.9,03,000/- and towards discharge of part liability due and payable, the accused issued cheque bearing no.002060 dated 03/12/2019 for a sum of rs.2,00,000/- drawn on",audio_56_14.mp3 +"south indian bank, bidadi branch, bengaluru in favour of the complainant firm and assured that the same would be honoured on its presentation. 3. It",audio_56_15.mp3 +"is stated that, and the complainant firm presented the said cheque for encashment through its banker i.e., dena bank, J. c. Road branch, bengaluru and",audio_56_16.mp3 +"the same got dishonoured and returned with an endorsement dated: 05/12/2019 stating "" funds insufficient "" . Thereafter, the complainant firm got issued demand notice",audio_56_17.mp3 +"dated: 16/12/2019 to the accused through rpad calling upon her to make the payment covered under the aforesaid cheque, within 15 days from the date",audio_56_18.mp3 +"of receipt of notice and the said notice was served upon the accused on 21/12/2019. Thereafter, the accused has neither made the payment covered under",audio_56_19.mp3 +"the aforesaid cheque nor replied to the said notice. Hence, this complaint. 4. It is to be noted that, the complainant firm has filed the",audio_56_20.mp3 +"instant complaint against accused no.2 mr. Sampath along with the accused no.1. As per memo dated: 27/09/2021, filed by the complainant firm, Cas. against accused",audio_56_21.mp3 +"no.2 was deleted. Thereafter, the sworn statement of the partner of the complainant firm by name S. kungumraj was recorded. As the complainant firm had",audio_56_22.mp3 +"complied the mandatory requirements of S. 138 of negotiable instrument act, the court issued summons to the accused. After service of summons, accused entered appearance",audio_56_23.mp3 +"and was enlarged on bail.sri.venkateshvara tyre Co. vs. smt. Shruthi sampath on 4 january, 2023",audio_56_24.mp3 +"Accused in the language known to her and the same was explained, to which, accused pleaded not guilty and submitted she has defence to make.",audio_56_25.mp3 +"6. In order to prove the Cas. , the partner of the complainant Co. by name S. kungumraj got himself examined as pw.1 and got marked",audio_56_26.mp3 +ex.p1 to ex.p10 documents. 7. The statement of accused under S. 313 Cr.P.C. was recorded and the accused denied the incriminating evidence,audio_56_27.mp3 +appearing against her. The accused has not let in her side oral evidence and no documents are marked on her behalf. 8. Heard arguments on,audio_56_28.mp3 +both sides and i have perused the materials on record. 9. The following points arise for my determination: (i) whether the complainant firm proves that,audio_56_29.mp3 +"towards discharge of liability due and payable, the accused issued cheque bearing No. 002060 dated: 03/12/2019 for rs.2,00,000/- drawn on south indian bank, bidadi branch,",audio_56_30.mp3 +bengaluru ? (ii) whether the complainant firm proves that accused has committed an offence punishable u/sec.138 of negotiable instrument act? (iii) what order? 10. My,audio_56_31.mp3 +"answer to the above points is as per following:- point no.1& 2 : in the negative point no.3 : as per the final order, for",audio_56_32.mp3 +"the following:- rea s on s 11. Point nos.1 & 2 : in order to prove the Cas. , the partner of the complainant by name",audio_56_33.mp3 +sri. S. kungumraj got himself examined as pw.1 and the Aff. filed by him in lieu of sworn statement was treated as examination in chief,audio_56_34.mp3 +"as per the dictum laid down in the ruling of the Hon'ble apex court of india, reported in (2014) 5 scc 590 (indian bank Assn. ",audio_56_35.mp3 +& ors v/s. UOI & ors). Pw1 got marked ex.p1 to p10 documents. 12. The complainant firm has exhibited the following ex.p1 to,audio_56_36.mp3 +"p10 documents. Ex.p1 is the cheque dated: 03/12/2019, ex.p1(a) is the signature of accused, ex.p2 is the bank endorsementsri.venkateshvara tyre Co. vs. smt. Shruthi sampath",audio_56_37.mp3 +"on 4 january, 2023",audio_56_38.mp3 +"Receipts, ex.p5 is the postal acknowledgments, ex.p6 is the copy of the invoice dated: 24/06/2017, ex.p7 is the reconstitution of partnership deed dated: 19/07/2021, ex.p8",audio_56_39.mp3 +"is the authorization letter, ex.p9 is the cheque dated: 24/07/2017 and ex.p10 is the bank endorsement dated: 05/09/2017. 13. The learned counsel for the complainant",audio_56_40.mp3 +vehemently argued that the complainant has proved the transaction in question by producing ex.p6 tax invoice and argued that the accused has not disputed that,audio_56_41.mp3 +ex.p1 cheque does not belongs to her and argued the accused has not stepped in to the witness box to disprove the Cas. of the,audio_56_42.mp3 +complainant firm and argued the complainant firm has produced all relevant documents to establish the transaction in question and sought to convict the accused. In,audio_56_43.mp3 +support of his arguments the learned counsel for the complainant relied on the following rulings:- 1. Suresh thomas v/s. Mod enterprises decided by the Hon'ble ,audio_56_44.mp3 +delhi HC in Crl. revision petition No. 512/2016 decided on 19/10/2016 2.Crl. revision petition No. 726/2015 decided by Hon'ble HC of karnataka between,audio_56_45.mp3 +a.S. prasad and srihari 3. (2021) 5 scc 283 decided between kalamani tex and Anr. v/s p. Balasubramanyam 4. Crl.P. No. 774/2018 decided by,audio_56_46.mp3 +"the Hon'ble HC of delhi decided between g.d. Katariya v/s a.v.l leasing and finance ltd., 5. Air 2018 SC 3601 decided between t.p.",audio_56_47.mp3 +"Murugan (dead) through lrs v/s bojan posa nandi. 14. Per-contra, the learned counsel for the accused has filed written arguments and stoutly argued that the",audio_56_48.mp3 +complainant firm has failed to prove that the tyres were sold to the accused and that it was delivered to the accused or to the,audio_56_49.mp3 +enterprise mentioned in the invoice and argued at ex.p6 invoice the signature of accused and seal of the firm is not forthcoming and argued pw1,audio_56_50.mp3 +has admitted that there is no agreement between the complainant firm and accused in respect of the transaction in question and argued pw1 himself is,audio_56_51.mp3 +not aware about the complete transaction and argued pw1 has deposed that the tyres in question were sold by his father and he has deposed,audio_56_52.mp3 +that he do not remember how many tyres has been sold to the accused and argued pw1 has given different answers as to the issuance,audio_56_53.mp3 +of cheque and argued ex.p1 cheque is in the name of champaka distributors and there was no transaction between the complainant firm and champaka distributors,audio_56_54.mp3 +and argued pw1 has argued that complainant firm is possessing delivery receipt for having supplied tyres to the accused and no such receipt is produced,audio_56_55.mp3 +by the accused and argued the accused has elicited materials answers from the pw1 to disprove the Cas. and thereby rebutted the presumption as contemplated,audio_56_56.mp3 +"u/sec. 139 of the NI Act and sought to acquit the accused. Insri.venkateshvara tyre Co. vs. smt. Shruthi sampath on 4 january, 2023",audio_56_57.mp3 +1. Rangappa v mohan (2011) 1 scc (cri) 184 air 2010 SC 1898 2. Narayana menon v state of kerala (2006) scc 39 (2006),audio_56_58.mp3 +"3 scc (cri) 30 3. John k john v tom varghese 2008, cri.lj 434 (SC ) 4. Jugesh v shamsher singh gogi (2009) 14",audio_56_59.mp3 +"scc 683 5. Deepa finance Corp. v a k mohammed ilr 2001 kar 4310, 2001 (2) kccr 918, 2001 crk.lj 3582 (kar), 2001 (4) rec",audio_56_60.mp3 +"cr 206 (kar) 6. Harshendra kumar v rebatilata koley, alr 2011 SC 1090, 2011 cri.lj 1626 7. Sathish kumar v/s state nct of delhi",audio_56_61.mp3 +"& anr. 8. A.c. Narayanan & anr v/s state of maharastra & anr (2015) 12 scc 203, air 2015 nsc 1198 9. Sunil kumar v/s",audio_56_62.mp3 +"ram das, 2014 (8) lrc 417 (p&h) 10. Pushpa devi v sushila 2018 (3) lrc 466 (del) 11. Raj kumari jawa v parmod kumar (2016)",audio_56_63.mp3 +"2 dcr 410, (2016) 2 bc 169 12. Dasan v sulaikha 2018 (2) dcr 233 (ker) 13. Shanteri jema jewelry vtk bhaskaran (2014) 2 dcr",audio_56_64.mp3 +"108, (2015) 3 kccr 2690 14. Basalingappa v/s. Mudibasappa, Crl. appeal no.636/2019 15. Deshpande publicity v/s. A.d. Chitralekha 15. I have gone through the rulings",audio_56_65.mp3 +relied on by the complainant and accused and i have taken note of the principles laid down in the aforesaid rulings and i have also,audio_56_66.mp3 +"adopted the same while deciding the instant Cas. . That apart, on considering the arguments addressed by the learned counsel for the complainant and accused, before",audio_56_67.mp3 +"adverting to the oral evidence let in by the complainant and accused and also without touching upon the defence set up by the accused, the",audio_56_68.mp3 +documents produced by the complainant Co. which are at ex.p1 to 5 prima-facie discloses that the complainant firm has discharged initial burden of proving presentation,audio_56_69.mp3 +"of ex.p1 cheque, bouncing of cheque, issuance of notice and its service. At this juncture, i find it relevant to quote ruling reported in 2010(11)",audio_56_70.mp3 +"scc 441, decided between rangappa vs. Sri. Mohan wherein the Hon'ble apex court held that:sri.venkateshvara tyre Co. vs. smt. Shruthi sampath on 4 january, 2023",audio_56_71.mp3 +"The existence of legally enforceable debt or liability. That presumption is required to be honoured and if it is not so done, the entire basis",audio_56_72.mp3 +"of making these provision will be lost. Therefore, it has been held that, it is for the accused to explain his Cas. and defend it",audio_56_73.mp3 +once the fact of cheque bouncing is prima-facie established. The brain is on him to disprove the allegations once a prima-facie Cas. is made out,audio_56_74.mp3 +"by the complainant "". 16. In the aforesaid ruling the Hon'ble apex court has held that, once the complainant establishes bouncing of cheque, then it",audio_56_75.mp3 +is for the accused to disprove the allegations and also it is for him/her to rebut the presumption as contemplated under S. 139 of negotiable,audio_56_76.mp3 +instrument act by placing acceptable evidence . In the ruling decided by the Hon'ble apex court in: Crl. appeal No. 1233 - 1235 of 2022,audio_56_77.mp3 +decided on 12/08/2022 by the hon'ble apex court between rasiya v/s abdul nazar the Hon'ble apex court at Para. 7 held that as per sec.139,audio_56_78.mp3 +"of the NI Act , it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the",audio_56_79.mp3 +"nature referred to in sec.138 of the NI Act for discharge, in whole or in part, of any debt or other liability. Therefore, once",audio_56_80.mp3 +the initial burden is discharged by the complainant that the cheque was issued by the accused and the signature and the issuance of cheque is,audio_56_81.mp3 +"not disputed by the accused, in that Cas. , the onus will shift on the accused to prove the contrary that the cheque was not for",audio_56_82.mp3 +"any debt or other liability. The presumption u/sec. 139 of the NI Act is a statutory presumption and thereafter, once it is presumed that",audio_56_83.mp3 +the cheque is issued in whole or in part of any debt or other liability which is in favour of the complainant / holder of,audio_56_84.mp3 +"cheque, in that Cas. , it is for the accused to prove the contrary. In the ruling relied on by the complainant Co. (2020) 12 scc",audio_56_85.mp3 +"724 decided between aps forex service Pvt. Ltd. v/s shakthi international fashion linkers and Ors. . The Hon'ble apex court at Para. 9, held that :",audio_56_86.mp3 +"sec.139 of the NI Act is an example of reverse onus Cl. and therefore, once the issuance of the cheque has been admitted and",audio_56_87.mp3 +"even the signature on the cheque has been admitted, there is always presumption in favour of the complainant that their exists legally enforceable debt or",audio_56_88.mp3 +"liability and thereafter, it is for the accused to rebut such presumption by leading evidence. 17. At this juncture, i find it appropriate to quote",audio_56_89.mp3 +"the ruling reported in: (2009) 2 scc 513 decided between kumar exports v/s. Sharma carpets, the Hon'ble apex court at Para. 20 & 21 has",audio_56_90.mp3 +explained the course to be adopted by the accused to disprove the Cas. of the complainant and to rebut the presumption as envisaged u/sec. 139,audio_56_91.mp3 +"of the NI Act . At Para. 20, it is held that, the accused in a trial u/sec.sri.venkateshvara tyre Co. vs. smt. Shruthi sampath on",audio_56_92.mp3 +"4 january, 2023",audio_56_93.mp3 +"Debt did not exist or that under the particulars circumstances of the Cas. , the non-existence of consideration and debt is so probable that a prudent",audio_56_94.mp3 +"man ought to suppose that no consideration and debt exist. To rebut the statutory presumption, an accused is not expected to prove his defence beyond",audio_56_95.mp3 +reasonable doubt as his expected of the complainant in a Crl. trial. The accused may adduce direct evidence to prove that the note in question,audio_56_96.mp3 +"was not supported by consideration and there was no debt or liability to be discharged by him. However, the court need not insist in every",audio_56_97.mp3 +"Cas. , that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible",audio_56_98.mp3 +"nor contemplated. At the same time, it is clear that, bare denial of the passing of the consideration and the existence of debt, apparently would",audio_56_99.mp3 +not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to,audio_56_100.mp3 +"the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration which, the court may either believe that",audio_56_101.mp3 +"the consideration and debt did not exist or there non-existence was so probable that a prudent man would under the circumstances of the Cas. , act",audio_56_102.mp3 +upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by the,audio_56_103.mp3 +"consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances, so relied",audio_56_104.mp3 +"upon or compelling, the burden may like wise, shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance,",audio_56_105.mp3 +"those mentioned in sec.114 of the evidence act, to rebut the presumption u/sec. 118 & 139 of the NI Act . At Para. 21, the",audio_56_106.mp3 +Hon'ble apex court held that the accused has also an option to prove the non-existence of consideration and debt or liability either by letting in,audio_56_107.mp3 +"evidence or in some clear and exceptional cases from the Cas. set out by the complainant, i.e. the averments in the complaint, the Cas. ",audio_56_108.mp3 +set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the,audio_56_109.mp3 +"court, having regard to all the circumstances of the Cas. and the preponderance of probabilities, the evidential burden shift back to the complainant and, therefore,",audio_56_110.mp3 +the presumption u/sec. 118 and 139 of the NI Act will not again come to the complainant's rescue. 18. It is to be noted,audio_56_111.mp3 +"that, accused has not stepped into the witness box to disprove the Cas. of the complainant. The Hon'ble apex court in the ruling reported in",audio_56_112.mp3 +"2019 scc online SC 491 decided between basalingappa v/s mudibasappa at para 25(3)(4) and (5) has categorically held that, to rebut the presentation, it",audio_56_113.mp3 +is open for the accused to rely on evidence led by him or the accused can rely on the material submitted by the complainant in,audio_56_114.mp3 +"order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the material brought on record by the parties,",audio_56_115.mp3 +"but also by reference to the circumstances which they rely and also held, it is not necessary for the accused to come in the witness",audio_56_116.mp3 +"box in support of defence, S. 139 imposes an evidenciary burden and not a persuasive burden. In the light of the principle laid down above,",audio_56_117.mp3 +"it is not necessary for the accused to step into the witness box to disprove the Cas. of the complainant. In this backdrop, now i",audio_56_118.mp3 +"enter in to the domain of defense set up by the accused, to ascertain whethersri.venkateshvara tyre Co. vs. smt. Shruthi sampath on 4 january, 2023",audio_56_119.mp3 +"Instruments act, for which i find it appropriate to examine each and every aspect in detail. I) transaction: 19. It is to be noted that,",audio_56_120.mp3 +it is the Cas. of the complainant firm that the accused is known to the complainant firm and was purchasing materials from the complainant firm,audio_56_121.mp3 +and that the accused had placed order for purchase of tyres and the complainant firm has supplied tyres to the accused under invoice dated: 24/06/2017,audio_56_122.mp3 +"bearing No. 118133 for the value of rs.9,03,000/- and to establish the same, the complainant firm has produced the said invoice dated: 24/06/2017 and the",audio_56_123.mp3 +"same is marked as ex.p6. During cross-examination dated: 16/09/2022 at Para. 1, pw1 deposed €€€ □□‚ € ƒ„ ……†€‡ ˆ‚□ ˆ‰š€…š€ €€†‹‹. ‡Œ€€ ‚‚‚†‡ Ž€",audio_56_124.mp3 + € ˆ‚□ ˆ‰‹‡š ž…š€ €€€ š„…‡□ □…šƒ„‚‡ ‡‚□€□. □□‚ ‡œ€€ ‘… ˆ€…š€„‚š€ □‚‚‚†‡ ž□€ □ □□‚ ‡œ€€ € ˆ‚□ ˆ‰‹‡š ž…š€ €€‡ €€†‹‹ ž…š€,audio_56_125.mp3 +"€€‰ƒ€□□‚. … □‚‚‚†□œ€ …‚□□‚€□□œ. €†1 ’…€ □‚‚‚†‡ □□‚ ‡œ€€ € €€€ □…šƒ„‚€ ˆ‚□ ˆ‰‚€□□‚ ž€€ € „ € €†3 €‚‚□‘€‹, š‚‚€‹ ˆ□€□ €€€ ˆ€““ „’‚”",audio_56_126.mp3 +"† †ˆ” „’‚„€€ †□ □š‹ □œ‘‹‹ ž…š‚ ‘‚. □ „’‚„€€ € ˆš‹ •‚‡ €“ƒ‹ƒš‹ □œ‘€□□š€…š‚ ‘‚. 20. At Para. 2, when it is suggested by",audio_56_127.mp3 +"the accused to pw1, that as his deceased father has sold the tyres to the accused, he is not having complete information about the transaction",audio_56_128.mp3 +"in question, pw1 has answered as the complainant firm is a partnership firm and also as he is a partner of the complainant firm he",audio_56_129.mp3 +"is having complete information about the instant Cas. . It is to be noted that, pw1 has deposed, that his deceased father knows about how many",audio_56_130.mp3 +tyres have been sold to the accused. Pw1 has deposed that he do not remember to which Co. he has sold tyres. As admitted by,audio_56_131.mp3 +"pw1, it is not mentioned in the ex.p3 notice, complaint and the Aff. filed by pw1 in lieu of examination in chief, i.e. late",audio_56_132.mp3 +"father has sold tyres to the accused. 21. That apart, during cross-examination dated: 29/07/2022, at Para. 4, pw1 deposed €†6 š“‹ „€ƒ… ž…□‚ †††‘‘– …‚‰‹‡š.",audio_56_133.mp3 +1 €‚ □‚‚‚† ‘š‚ „€ƒ… ž…□‚ †††‘‘–€ ˆ‹‚…‚‡‚€□□‚. 1 €‚ □‚‚‚† ‘š‚ „€ƒ… ž…□‚ †††‘‘– € ˆ‹‚…‚‡‚€��□‚ ž…š€ □‚‚‚‘‹€ €“ƒ–ƒ‹ƒš‹ ƒ„š‚ š“‹‡œ€€ € —˜‚‘‹‹ ž…š‚,audio_56_134.mp3 +‘… €†3 ’……€€ € —˜‚‘‚€□□‚€…š€ €€‰ƒ€□□‚. €†3 ’……€€ € €€‡ 1 €‚ □‚‚‚†□œ€ …‚□□‚€□□œ. €†3 ’…€ … □‡‚€□□š. … „€ƒ… ž…□‚ †††‘‘–‡ ‘‚‚š ’…€ €†3,audio_56_135.mp3 +"’……€‹ ’…†… ‰‘□†•“ ‚□‘‚ ž…• —‘‚€ ™š ž…š‚ ‘‚. ‘… ˆ€…š€„‚š€ €†3 ‚‹ š†□ ‘…†□– ‘— ˆ‰‚€□□‚…š€ €€‰ƒ€□□‚. During cross-examination dated: 16/09/2022 at paragraph1, pw1",audio_56_136.mp3 +"has also deposed that accused has issued ex.p1 cheque. At Para. 4, pw1 deposed that ex.p1 chequesri.venkateshvara tyre Co. vs. smt. Shruthi sampath on 4",audio_56_137.mp3 +"january, 2023",audio_56_138.mp3 +"Deposed that accused is the proprietor of vinayaka enterprises and also deposed that ex.p1 cheque belongs to vinayaka enterprises, on careful scrutiny of ex.p1 cheque,",audio_56_139.mp3 +"it reveals that the cheque is in the name of champaka distributors and the signature of accused by name shruthi sampath is forthcoming and notably,",audio_56_140.mp3 +"at Para. 4, the accused has suggested to pw1 that the signature forthcoming in the ex.p1 cheque does not belongs to shruthi sampath and the",audio_56_141.mp3 +"same is denied by pw1. 22. Be that as it may, in order to establish that shruthi sampath is the proprietor of vinayaka enterprises, the",audio_56_142.mp3 +complainant has produced ex.p9 cheque and in the said cheque the name of vinayaka enterprises is forthcoming and the signature of the accused / shruthi,audio_56_143.mp3 +"sampath is forthcoming. It is worth to note that, the accused has not at all disputed her signature at ex.p9 cheque and no question has",audio_56_144.mp3 +"been posed by the accused to pw1 about ex.p9 cheque. That apart, the accused has not even denied that she is not the proprietor of",audio_56_145.mp3 +"champaka distributors. At Para. 2, pw1 deposed €†6 ‚‹ „€ƒ… ž…□‚ †††‘‘– € ‰‹„‚ ˆ‰š •‡‡ □ ‘…‘‘ƒ ˆ—‚€ ˆ□€□ □ ‚„‚‡ □□‚ ‡œ€€ ‘…‘‘ƒ",audio_56_146.mp3 +"†‚„‡ ƒ‚€ ‘— ˆ‰‹‹ ž…š‚ ‘‚. ‘… ˆ€…š€„‚š€ „€ƒ… ž…□‚ †††‘‘– ‚„‚‡ □□‚ ‡œ€€ € ˜.…. □□‚ ……†€ƒ„‚€ š , ›„‚ •œ ‰‹„‚ ‚š‚š ™š",audio_56_147.mp3 +ž…š€ €‚‚„‡ ‰‹„‚ ˆ‰š€ €€‰ƒ€□□‚ □ ‰‹„‚ ‚š‚šƒ † †□ œƒ‚□ ‘…‘‘ƒ‹‚€□□š. ‰‹„‚ ‚š‚šƒ † †□ƒ€€ € €“ƒ‹ƒš‹ —˜‚‘‹‹ ž…š‚ ‘‚. ‰‹„‚ ‚š‚šƒ † †□ƒ€€,audio_56_148.mp3 +"€ €“ƒ‹ƒš‹ —˜‚‘‚€„‚ ž…• † †š€‡ ‘… ›š€ œƒ‚□ ‘…‘‘ƒ‹šš‚ —˜‚‘€□□‚€ ž…š€ €€‰ƒ€□□‚. 23. At Para. 3, pw1 admitted that, he has not mentioned in",audio_56_149.mp3 +"the ex.p3 notice, complaint and Aff. filed by him in lieu of examination in chief about sale of tyres by the J. k. Tyres either",audio_56_150.mp3 +"to accused or to the vinayaka enterprises. Pw1 deposed, that accused has given the cheque belonging to the vinayaka enterprises and admitted that at ex.p1",audio_56_151.mp3 +"cheque, it is mentioned as chamaka distributors, pw1 voluntarily deposed that, initially the accused had given ex.p9 cheque and the same is in the name",audio_56_152.mp3 +of vinayaka enterprises and the said ex.p9 cheque was presented to the bank and the same got dishonoured and the same was intimated to the,audio_56_153.mp3 +"accused and later, towards discharge of part liability, the accused has issued ex.p1 cheque. Pw1 has also deposed that the accused has changed the name",audio_56_154.mp3 +"of vinayaka enterprises to champaka distributors. At Para. 4, pw1 deposed that complainant firm has to received rs.9,03,000/- from the accused and admitted that there",audio_56_155.mp3 +is no written contract between the complainant firm and the accused regarding purchase of tyres and also denied that contents of ex.p1 cheque is written,audio_56_156.mp3 +by himself. Pw1 admitted that ex.p3 notice has not been issued either in the name of vinayaka enterprises or champaka distributors. 24. It is to,audio_56_157.mp3 +"be noted that, on careful scrutiny of ex.p6 document either the signature of the accused or the seal of vinayaka enterprises is not forthcoming. Though,",audio_56_158.mp3 +pw1 deposed that J. k. Tyres has directly delivered tyres to the vinayaka enterprises and though pw1 deposed that the delivery receipt is with J. ,audio_56_159.mp3 +"k. Tyres and also though pw1 voluntarily deposed that the copy of the delivery receipt is with the complainant firm, no such delivery receipt is",audio_56_160.mp3 +"produced by the complainant firm. Notably, the delivery of tyres directly by J. k. Tyre to the vinayaka enterprises has not been mentioned by the",audio_56_161.mp3 +"complainant firm either in the ex.p3 notice, complaint and also in the affidavitsri.venkateshvara tyre Co. vs. smt. Shruthi sampath on 4 january, 2023",audio_56_162.mp3 +"Copy of delivery receipt, the complainant firm ought to have produced to establish that the description of tyres mentioned at ex.p6 invoice was delivered to",audio_56_163.mp3 +"the vinayaka enterprises by the said J. k. Tyre Co. . 25. That apart, pw1 in his cross-examination dated: 29/07/2022 at Para. 3 & 4, deposed",audio_56_164.mp3 +□‚‚‚†ƒ…š‡ œƒ‚š ‘…‘‘ ˆ‰š „“„—‚š •‡‡ …‚‚€ □‡‚€„š‹‹. Œƒ‚□ ‘…‘‘ „‚ˆ€ □‚‡ƒ€€ € † †□ „□‚ ‘‹‘€□□‚€. □‚‚‚†ƒ…š‡ ˆ‰š € œƒ‚□ ‘…‘‘ƒ „‚ˆ€ □‚ƒ š“‹ƒ‹,audio_56_165.mp3 +"…”‘‹‡š. „“„—‚„€€ □ š“‹‡œ€€ € €“ƒ‹ƒš‹ ‘‹‘ •‹. It is to be noted that, though, pw1 deposed that he can produce the documents pertaining to",audio_56_166.mp3 +IT returns in respect of transaction that took place between complainant firm and accused and also though he deposed that he is having delivery,audio_56_167.mp3 +"receipt to establish that materials mentioned in the ex.p6 was delivered to the accused, no such documents are produced by the complainant firm. 26. At",audio_56_168.mp3 +"this juncture, i find it relevant to quote the ruling reported in air 1968 SC 143 decided between gopal krishna g ketkar v/s mohammed",audio_56_169.mp3 +"aji lathif and Ors. , the Hon'ble apex court while considering the concept of onus of proof, held that, "" a party in possession of best",audio_56_170.mp3 +"evidence which would throw light on the issue in controversy with holding it, court ought to draw adverse inference against him. Notwithstanding that onus of",audio_56_171.mp3 +proof does not lie on him. Party can rely on abstract doctrine of onus of proof or on the fact that he was not called,audio_56_172.mp3 +"upon to produce it"". In the light of the principle laid down, when pw1 claims that the complainant firm is possessing the delivery receipt and",audio_56_173.mp3 +"that it had shown in its IT returns documents about the due payable by the accused, the complainant firm ought to have produced such",audio_56_174.mp3 +"materials before the court. 27. That apart, when pw1 has deposed that J. k. Tyre Co. is having delivery receipt to establish delivery of materials",audio_56_175.mp3 +"to the vinayaka enterprises, the complainant firm ought to have summon the document from the J. k. Tyre Co. and ought to have summon the",audio_56_176.mp3 +authorities of J. k. Tyre Co. to establish that it had sold materials directly to the accused and no such positive steps is taken by,audio_56_177.mp3 +"the complainant firm. That apart, as admitted by pw1, nothing has been mentioned in the ex.p3 notice, complaint and in the Aff. filed by pw1",audio_56_178.mp3 +"that the J. k. Tyre had sold tyres directly to the accused. More so, there is no whisper in the ex.p3 notice, complaint and in",audio_56_179.mp3 +the Aff. filed by pw1 in lieu of examination in chief that earlier the accused had issued ex.p9 cheque and the same got dishonoured and,audio_56_180.mp3 +"later, after intimating about the same, towards discharge of the liability the accused had issued subject cheque in the name of the complainant firm. 28.",audio_56_181.mp3 +"That apart, though pw1, in his cross-examination dated: 29/07/2022 at Para. 3, deposed that he is having complete information about the instant transaction, quite contrary",audio_56_182.mp3 +"to that in his cross-examination dated: 16/09/2022 at Para. 1, he has deposed that he do not know to which Co. he has sold tyres",audio_56_183.mp3 +and he has deposed that his deceased father has sold the tyres to the accused and also deposed that he do not remember how many,audio_56_184.mp3 +"tyres have been sold to accused and he has also categorically admitted that it is not mentioned in the ex.p3 notice, complaint and in his",audio_56_185.mp3 +Aff. filed in lieu of examination in chief about his father had sold tyres to the accused.sri.venkateshvara tyre Co. vs. smt. Shruthi sampath on 4,audio_56_186.mp3 +"january, 2023",audio_56_187.mp3 +"29. That apart, admittedly, no separate notice is issued either to the vinayaka enterprises or champaka distributors and at ex.p1 cheque ""for champaka distributors"" is",audio_56_188.mp3 +"mentioned. Admittedly there was no transaction between the complainant firm and accused firm. It is to be noted that, pw1 in his cross-examination has deposed",audio_56_189.mp3 +"that the accused had issued ex.p9 cheque dated: 24/06/2017 for a sum of rs.9,03,000/- and the same got dishonoured as per ex.p10 and notably, the",audio_56_190.mp3 +complainant firm has not initiated action against the accused in respect of ex.p9 cheque and he voluntarily deposed that dishonour of ex.p9 cheque was brought,audio_56_191.mp3 +"to the notice of the accused and the accused issued ex.p1 cheque towards discharge of part liability. It is worth to note that, pw1 has",audio_56_192.mp3 +"deposed that it is the accused who has issued ex.p1 cheque and later, he has deposed that husband of the accused has issued ex.p1 cheque",audio_56_193.mp3 +"and notably, the said aspect has not been stated either in the ex.p3 legal notice, complaint or in the Aff. filed by pw1 in lieu",audio_56_194.mp3 +"of examination in chief, which also goes to show that pw1 is also not aware that who has issued the subject cheque. 30. That apart,",audio_56_195.mp3 +"though accused has suggested to pw1 that signature on ex.p1 does not belongs to the accused, no positive steps is taken by the accused to",audio_56_196.mp3 +"prove the same and notably, ex.p3 notice was served upon the accused as per ex.p5 and no reply was issued by the accused. Notably, the",audio_56_197.mp3 +"accused has not even explained in her statement recorded u/sec. 313 of Cr.P.C. , that how the subject cheque came in to",audio_56_198.mp3 +the possession of the complainant firm and she has also not explained in what capacity she had issued ex.p1 cheque to the complainant firm and,audio_56_199.mp3 +"whether the same was issued by her or by her husband. Even otherwise, as the pw1 himself is not having complete information about the instant",audio_56_200.mp3 +"transaction, it could be concluded that the accused has raised a probable defence that the subject cheque was not issued towards discharge of legally enforceable",audio_56_201.mp3 +"debt. (ii) contents of cheque and signature: 31. It is to be noted that, the accused has taken a defence that the signature appearing at",audio_56_202.mp3 +ex.p1 cheque does not belongs to the accused and she has also taken defence that the contents of cheque has been filled up by the,audio_56_203.mp3 +"complainant firm. During cross-examination, at Para. 4, the accused has suggested to pw1, that the contents of cheque is written by the complainant firm itself",audio_56_204.mp3 +"and also it is suggested that the signature at ex.p1 cheque does not belongs to the accused. It is worth to note that, the accused",audio_56_205.mp3 +has not denied her signature at ex.p9 cheque and ex.p5 postal acknowledgment. On careful scrutiny of signature appearing at plea form of the accused and,audio_56_206.mp3 +"the statement of accused recorded u/sec. 313 of Cr.P.C. , and when the same is compared with the signature appearing at ex.p1",audio_56_207.mp3 +"cheque it appears to be one and the same. That apart, except suggesting that the signature appearing at ex.p1 cheque does not belongs to the",audio_56_208.mp3 +"accused, the accused has not placed positive evidence before the court to establish the same. 32. That apart, on careful scrutiny of ex.p1 cheque, the",audio_56_209.mp3 +signature and the name of the payee and also the date and the words and also the figures are written in different ink. It is,audio_56_210.mp3 +"required to be noted that, as per sec.20 of the NI Act when one person signs and delivers to Anr. a stamped in accordance",audio_56_211.mp3 +with the law relating to the negotiable instruments either wholly blank or having written there on an in-complete the negotiable instruments he thereby gives prima-faciesri.venkateshvara,audio_56_212.mp3 +"tyre Co. vs. smt. Shruthi sampath on 4 january, 2023",audio_56_213.mp3 +"Kar 123 decided between shreyas agro services pvt ltd., v/s. Chandrakumar s.b at Para. 6 the Hon'ble HC of karnataka held that sec.20 of",audio_56_214.mp3 +"the NI Act declares that inchoate instruments are also valid and legally enforceable. In the Cas. of a signed blank cheque, the drawer gives",audio_56_215.mp3 +Auth. to the drawee to fill up the agreed liability. If the drawee were to dis honoestly fill up any excess liability and the extent,audio_56_216.mp3 +"of liability if it becomes bonafied matter of Civ. dispute in such Cas. , the drawer has no obligation to facilitate the encashment of cheque. 33.",audio_56_217.mp3 +In the ruling reported in air 2000 kar 169 h maregowda v/s thippamma the Hon'ble HC of karnataka at Para. 14 held that a,audio_56_218.mp3 +"reading of sec.20 of the NI Act will reveal that the words used are ""either wholly blank or having written thereon an incomplete negotiable",audio_56_219.mp3 +"instruments"". Thus, even if a blank promissory note is given, it cannot be taken as a defence to avoid a decree based on such instrument,",audio_56_220.mp3 +once it is found that the document produced before the court satisfies the requirements of a promissory note within the meaning of the negotiable instruments,audio_56_221.mp3 +"act. The instrument may be wholly blank or incomplete in particular in either Cas. , the holder has the Auth. to make or complete the instrument",audio_56_222.mp3 +as a negotiable one. The Auth. implied by a signature to a blank instrument if so wide that the party so signing is bound to,audio_56_223.mp3 +"be a holder in due course. Even though the holder was authorized to fill a certain amount and he infact inserts a greater amount, it",audio_56_224.mp3 +"is necessary that the sum ought not to exceed the amount covered by the same. In the light of the above, the holder of the",audio_56_225.mp3 +"cheque can fill up the contents of the cheque and present it to the bank for encashment. But, whether the accused had authorized complainant /",audio_56_226.mp3 +"holder of the cheque to fill up the contents of the cheque is to be looked into. 34. At this juncture, i find it relevant",audio_56_227.mp3 +"to quote the ruling decided by the Hon'ble HC of madras decided on 21/03/2018 between e. Dhanus kodi v/s d. Sreedhar wherein, the Hon'ble ",audio_56_228.mp3 +HC held that the complainant cannot be justified in doing material alteration beyond the knowledge of the accused and held it would be certainly,audio_56_229.mp3 +"unlawful if the complainant is allowed to fill up the details of the cheque beyond the knowledge of the accused, such that filling date and",audio_56_230.mp3 +"the amount in a blank cheque. In the light of the principle laid down above, though the accused has not explained either during the cross-examination",audio_56_231.mp3 +"of pw1 or in her statement recorded u/sec. 313 of Cr.P.C. , that how the subject cheque came in to the possession",audio_56_232.mp3 +of the complainant firm and and also as pw1 himself has given contradictory evidence in respect of issuance of cheque and also as there is,audio_56_233.mp3 +"a difference in the handwriting of the contents of the cheque and signature, it could be concluded that the accused had not authorized the complainant",audio_56_234.mp3 +"to fill up the contents of the cheque and the same was also not within the knowledge of the accused. That apart, as discussed the",audio_56_235.mp3 +material placed on record by the accused also discloses that the amount covered under ex.p1 cheque is also less that was actually due to be,audio_56_236.mp3 +paid by the accused to the complainant firm and the accused has proved that there is a bonafied dispute with regard to the extent of,audio_56_237.mp3 +"liability and also issuance of cheque and its contents. Therefore, this court is of the view that, the dishonour of cheque under such circumstances, does",audio_56_238.mp3 +"not attract prosecution u/sec. 138 of the NI Act . Iii. Auth. of pw1:sri.venkateshvara tyre Co. vs. smt. Shruthi sampath on 4 january, 2023",audio_56_239.mp3 +"Institute the complaint and having proper Auth. to depose on behalf of the complainant firm. During cross- examination, dated: 29/07/2022 at Para. 1 pw1 deposed",audio_56_240.mp3 +"that, ex.p8 document has been issued to him by the complainant firm on the last date of hearing i.e., on 20/07/2022. Pw1 denied that, as",audio_56_241.mp3 +"on the date of filing the instant complaint he had no proper Auth. . Pw1 voluntarily deposed since, 2007 he is one of the partner of",audio_56_242.mp3 +the complainant firm. Pw1 admitted that he has not produced any documents to show that he is partner of the complainant firm since 2007. At,audio_56_243.mp3 +"Para. 2, pw1 deposed that there are 4 partners to the complainant firm as on 2021 and admitted that ex.p8 document is a written document",audio_56_244.mp3 +"by hand and admitted at ex.p8 it is mentioned that one mahalakshmi and parandam, partners fo the complainant firm have been authorized to appear on",audio_56_245.mp3 +behalf of the complainant firm and deposed the contents of ex.p8 is drafted by his Adv. and deposed he know the contents of ex.p8. At,audio_56_246.mp3 +"Para. 3, pw1 deposed that his brother S. jayaram has signed at ex.p8, pw1 denied that there is a difference in the signature of S. ",audio_56_247.mp3 +jayaram and S. parandam when compared with ex.p7 & 8. Pw1 voluntarily deposed that he can examine jayaram and parandam before the court and denied,audio_56_248.mp3 +"that ex.p8 is a created document. Pw1 deposed that, he is having complete information about the transaction in question. 36. It is to be noted",audio_56_249.mp3 +"that, the complainant/ pw1 has produced ex.p8 authorization letter to establish that he has been authorized by the other partners of the complainant firm to",audio_56_250.mp3 +"institute the complaint and to adduce evidence on behalf of the complainant firm. The said document is signed by S. mahalakshmi, parandam & jayaram and",audio_56_251.mp3 +the same is also signed by pw1. Ex.p8 does not bear any date and the same is typed on the letterhead of the complainant firm.,audio_56_252.mp3 +"That apart, though pw1 deposed that he has not produced any document to establish that complainant firm is a partnership firm, when pw1 got himself",audio_56_253.mp3 +"further examined in chief on 20/07/2022, pw1 has produced partnership deed dated: 19/07/2021 and the same is marked as ex.p7. It is to be noted",audio_56_254.mp3 +"that, instant complaint is filed on 13/01/2020. Whereas, ex.p7 document is executed on 19/07/0021 and the nomenclature of the said document is mentioned as ""reconstitution",audio_56_255.mp3 +"of partnership deed"". 37. On careful scrutiny of ex.p7, there is mentioned about reconstitution of partnership deed dated: 01/04/2017 and notably, the said document has",audio_56_256.mp3 +"not been produced by the complainant firm. Be that as it may, ex.p7 document discloses that, pw1 is one of the partner of the firm.",audio_56_257.mp3 +"That apart, the complainant has not produced any document to show that whether the complainant firm is a registered firm or not. Though, the accused",audio_56_258.mp3 +has posed certain questions pw1 in respect of his Auth. to institute the complaint and to depose on behalf of complainant firm and though pw1,audio_56_259.mp3 +"admitted that ex.p8 document was produced by him only on 20/07/2022, the accused cannot take advantage of such stray admission. That apart the complainant firm",audio_56_260.mp3 +has produced ex.p7 reconstitution of partnership deed and ex.p8 Auth. letter to establish that pw1 is one of the partner of the complainant firm and,audio_56_261.mp3 +"that he is authorized to institute the complaint and to depose on behalf of the complainantsri.venkateshvara tyre Co. vs. smt. Shruthi sampath on 4 january,",audio_56_262.mp3 +2023,audio_56_263.mp3 +Auth. to institute the instant complaint against the accused and also ex.p1 document empowers pw1 not only to institute the instant complaint against accused but,audio_56_264.mp3 +"also it empowers pw1 to adduce evidence on behalf of the complainant firm. 38. It is to be noted that, in the ruling relied on",audio_56_265.mp3 +"by the accused reported in (2022) air (SC ) 1315 decided between m/s. Trl krosaki refractories ltd., v/s m/s. Sms asia Pvt. ltd., and",audio_56_266.mp3 +"Anr. , the Hon'ble apex court at Para. 17, held that ""the position that would emerge is that when a Co. is the payee of the",audio_56_267.mp3 +"cheque based on which a complaint is filed u/sec. 138 of the NI Act , the complainant necessarily should be the Co. which would be",audio_56_268.mp3 +"represented by an employee who is authorized. Prima-facie, in such a situation the indication in the complaint and the sworn statement (either orally or by",audio_56_269.mp3 +"a Aff. ) to the effect that the complainant (Co. ) is represented by an authorized person who has knowledge, would be sufficient. The employment of the",audio_56_270.mp3 +"terms ""specific assertion as to the knowledge of the power of attorney holder"" and such assertion about knowledge should be ""said explicitly"" as stated in",audio_56_271.mp3 +a.c. Narayanan v/s state of maharastra and Anr. (2014) 11 scc 790 cannot be understood to mean that the asertion should be in any particular,audio_56_272.mp3 +"manner, much less only in the manner understood by the accused in the Cas. . All i.e. necessary is to demonstrate before the learned magistrate",audio_56_273.mp3 +"that the complaint filed is in the name of the ""payee"" and if the person who is prosecuting the complaint is different from the payee,",audio_56_274.mp3 +"the authorization there for and that the contents of the complaint or within his knowledge. When the complainant / payee his Co. , an authorized employee",audio_56_275.mp3 +"can represent the Co. . Such averment and prima-facie averment is sufficient for the learned magistrate to take cognizance and issue process. If at all, there",audio_56_276.mp3 +is any serious dispute with regard to the person prosecuting the complaint not being authorized or if it is to be demonstrated that the person,audio_56_277.mp3 +"who filed the complaint has no knowledge of the transaction and, as such that person could not have instituted and prosecuted the complaint, it would",audio_56_278.mp3 +"be open for the accused to dispute the position and establish the same during the course of the trial"". In the light of the principle",audio_56_279.mp3 +"laid down above, it is required to be noted that, in the Aff. filed by pw1 at Para. 2, it is stated that pw1 is",audio_56_280.mp3 +knowing the facts and circumstances of the Cas. . In the complaint nothing is stated as to the knowledge of the complainant /pw1 in respect of,audio_56_281.mp3 +the transaction in question. Even at ex.p8 authorization letter nothing is stated or there is no specific assertion that pw1 is having knowledge about the,audio_56_282.mp3 +"transaction in question. In the complaint and also Aff. filed by pw1 at the bottom, it is mentioned that what is stated is true and",audio_56_283.mp3 +correct to the best of his knowledge. 39. In the ruling reported in a.c. Narayanan v/s state of maharastra and Anr. reported in (2014) 11,audio_56_284.mp3 +"scc 790, the Hon'ble apex court has held that there is no mention in the complaint or Aff. as to when and what manner the",audio_56_285.mp3 +"Co. had authorized its general manager (accounting) to represent the Co. to file the complaint. It is further held that, there is no averment in",audio_56_286.mp3 +the complaint as to whether the general manager (accounting) had knowledge about the transaction or he was a witness to the transaction. It was also,audio_56_287.mp3 +"held that, neither any resolution of the board of the directors of the complainant Co. nor any authorization of the Co. in favour of the",audio_56_288.mp3 +"person representing it in the complaint was filed for perusal of the magistrate. In thesri.venkateshvara tyre Co. vs. smt. Shruthi sampath on 4 january, 2023",audio_56_289.mp3 +To make specific assertion as to the knowledge of power of attorney holder in the said transaction explicitly in the complaint and the power of,audio_56_290.mp3 +attorney holder who has no knowledge regarding the transaction cannot be examined as a witness in the Cas. . In the light of the principle laid,audio_56_291.mp3 +"down above, as discussed either in the Aff. filed by pw1 in lieu of examination in chief, also in the complaint and at ex.p8 there",audio_56_292.mp3 +"is no specific assertion as to the knowledge of pw1 about the transaction in question or that he had witnessed the transaction. As discussed, though",audio_56_293.mp3 +"pw1 in his cross-examination, dated: 29/07/2022 at Para. 3, deposed that he is having complete information about the instant transaction, the answers elicited by the",audio_56_294.mp3 +accused clearly discloses that pw1 is not having sufficient information about the transaction in question and he has also given contradictory evidence. 40. As such,audio_56_295.mp3 +"it could be concluded that, pw.1 had no personal knowledge about the transaction in question and also as there is no specific assertion in his",audio_56_296.mp3 +Aff. filed in lieu of sworn statement / examination in chief and also in the ex.p8 Auth. letter about his knowledge in respect of the,audio_56_297.mp3 +transaction in question. It could be concluded that the accused has raised a probable defence that the subject cheque was not issued by her to,audio_56_298.mp3 +"the complainant firm, towards discharge of legally enforceable debt and thereby she has successfully rebutted the presumption as contemplated u/sec. 139 of the negotiable instruments",audio_56_299.mp3 +"act by placing acceptable evidence. Accordingly, i answer point no.1 & 2 in the negative. 41. Point no.3 :- in view of my findings to",audio_56_300.mp3 +"the points no.1 and 2, i proceed to pass the following:- or d e r in exercise of power conferred u/sec. 255(1) of cr.pc, the",audio_56_301.mp3 +accused is acquitted for the offence punishable u/s.138 of n.i. Act. Bail bond of accused shall be in force for a period of six months.,audio_56_302.mp3 +"(dictated to the stenographer, directly on computer, corrected and then pronounced in open court by me on this the 4 h day of january 2023).",audio_56_303.mp3 +"(h. Satish) xxvii a.c.m.m., bengaluru. Annexure witnesses examined on behalf of the complainant: pw1 : mr. S.kungumraj documents marked on behalf of the complainant ex.p1",audio_56_304.mp3 +: cheque dated:03.12.2019 ex.p1(a) : signature of accused ex.p2 : bank endorsement dt:05.12.2019 ex.p3 : copy of legal notice dated 16.12.2019 ex.p4 : postal receipts,audio_56_305.mp3 +ex.p5 : postal acknowledgments ex.p6 : tax invoice ex.p7 : re-constitution of partnership deed ex.p8 : authorization letter ex.p9 : cheque dated:24.06.2017 ex.p10 : bank,audio_56_306.mp3 +"endorsement dt:05.09.2017 witnesses examined on behalf of the accused: -nil-sri.venkateshvara tyre Co. vs. smt. Shruthi sampath on 4 january, 2023",audio_56_307.mp3 +"-nil- xxvii a.c.m.m bengaluru.sri.venkateshvara tyre Co. vs. smt. Shruthi sampath on 4 january, 2023",audio_56_308.mp3 +"Sri bharath kumar vs. smt. Girijamma on 13 october, 2016 in the court of the xix addl.chief MM at bangalore city dated this the",audio_57_1.mp3 +"13th day october 2016 present: smt. Ishrath jahan ara, b.a.l., l.l.b., xix addl.c.m.m.bangalore. Cas. no: cc No. 21673/2015 complainant: sri bharath kumar s/o. Late bojanna,",audio_57_2.mp3 +"aged about 28 years, r/at no.12, 13th cross, 5th main, near sharadambha school, jawaregowda nagar, r.r. Nagar, bengaluru -560 098. Accused: smt. Girijamma w/o. Manjunath,",audio_57_3.mp3 +"aged about 42 years, r/at 404, 1st main road, jagajyothinagar, jnanabharathi post, bengaluru -560 056. Offence complained of: u/s.138 of n.i. Act plea of accused:",audio_57_4.mp3 +pleaded not guilty opinion of the judge accused not found guilty date of order: 13th october 2016 judgment the complainant has filed this complaint u/s.200,audio_57_5.mp3 +of Cr.P.C. against the accused for the offence punishable u/s. 138 of n.i. Act. 2. The brief facts of the complaint is,audio_57_6.mp3 +"as hereunder: the complainant stated that the complainant and accused are well acquainted to each other from past few years and out of acquaintance, the",audio_57_7.mp3 +"accused approached this complainant on 5.5.2015 for the hand loan of rs.8,00,000/- for educational expenses and towards payment of fee of her children and other",audio_57_8.mp3 +"family and legal necessity. The complainant by considering the request of the accused, on 7.5.2015 had advanced a hand loan of rs.8,00,000/- to this accused",audio_57_9.mp3 +and the same was acknowledged by the accused and she agreed to repay the loan amount within 2sri bharath kumar vs. smt. Girijamma on 13,audio_57_10.mp3 +"october, 2016",audio_57_11.mp3 +"Dtd.9.7.2015 for a sum of rs.8,00,000/- drawn on canara bank, kengeri satellite town, bengaluru in favour of this complainant. 3. It is further submitted by",audio_57_12.mp3 +"the complainant that after lapse of two months, the complainant approached the accused and demanded for repayment of the loan amount, wherein the accused instructed",audio_57_13.mp3 +"him to present the cheque and draw the amount from her bank account on its due date and accordingly, on the assurance of the accused,",audio_57_14.mp3 +"the complainant presented the said cheque before his banker canara bank, mahalakshmi layout, bengaluru for encashment, but the said cheque returned dishonoured with an endorsement",audio_57_15.mp3 +"""insufficient funds"" on 10.7.2015 and the same was informed to this accused. As the accused has failed to make payment of the cheque amount, the",audio_57_16.mp3 +"complainant got issued the legal notice on 22.7.2015 by rpad, calling upon the accused to make payment of the cheque amount within 15 days from",audio_57_17.mp3 +"the date of receipt of the notice and the said notice was duly served on 23.7.2015. The accused even inspite of receipt of legal notice,",audio_57_18.mp3 +has neither chosen to make payment of the cheque amount nor she has replied the notice by denying the transaction. The accused knowing fully well,audio_57_19.mp3 +"that she has no sufficient funds in her bank account, with a dishonest intention to cheat the complainant, had issued a bogus cheque and thereby,",audio_57_20.mp3 +"she has committed an offence punishable u/S. 138 of n.i. Act. 4. After recording sworn statement of the complainant, the Pvt. complaint lodged by the",audio_57_21.mp3 +"complainant was registered as a Crl. Cas. , summons was issued as against the accused. The accused appeared through her counsel and she was enlarged on",audio_57_22.mp3 +bail. Plea of accusation was read over to the accused. The accused pleaded not guilty and claims to be tried 5. The complainant got himself,audio_57_23.mp3 +examined as pw1 and he got produced 5 documents marked as ex.p1 to ex.p5 and closed his side of evidence. 6. After closure of the,audio_57_24.mp3 +"complainant side evidence, the accused statement u/S. 313 Cr.P.C. recorded and read over to the accused in her language. Accused denied the",audio_57_25.mp3 +entire incriminating evidence in toto and she intended to lead her evidence. The accused got herself examined as dw1 and she got produced 3 documents,audio_57_26.mp3 +marked as ex.d.1 to ex.d3 and closed her side of evidence. 7. I have heard the arguments on both sides and i have also perused,audio_57_27.mp3 +the entire records. 8. The only point arise for my consideration is: 1. Whether the complainant has proved the guilt of the accused u/s 138,audio_57_28.mp3 +of n.i. Act beyond all reasonable doubts? 2. What order? 9. My findings to the above point are as under: point No. 1 in the,audio_57_29.mp3 +"negative point No. 2 as per final order for the following reasonssri bharath kumar vs. smt. Girijamma on 13 october, 2016",audio_57_30.mp3 +"Point. In order to prove the same, the complainant stepped into the witness box and got examined as pw1 and he filed his Aff. in",audio_57_31.mp3 +"lieu of the oral evidence by reiterating the complaint averments. 11. Pw1 deposed that the accused is well acquainted to him and out of acquaintance,",audio_57_32.mp3 +"the accused approached him on 5.5.2015 for the hand loan of rs.8,00,000/- for her legal necessity and on 7.5.2015 he had advanced a hand loan",audio_57_33.mp3 +"of rs.8,00,000/- to this accused and the same was acknowledged by the accused and she agreed to repay the loan amount within 2 months and",audio_57_34.mp3 +"issued her post-dated cheque on the very same day bearing no.793754, dtd.9.7.2015 for a sum of rs.8,00,000/- drawn on canara bank, kengeri satellite town, bengaluru",audio_57_35.mp3 +"in his favour. 12. He further deposed that after lapse of two months, he approached by demanding for repayment of the loan amount, wherein the",audio_57_36.mp3 +"accused instructed him to present the cheque and draw the amount from her bank account on its due date and accordingly, on the assurance of",audio_57_37.mp3 +"the accused, he presented the said cheque before his banker for encashment, but the said cheque returned dishonoured with an endorsement ""insufficient funds"" on 10.7.2015",audio_57_38.mp3 +"and the same was informed to this accused. He deposed that as the accused has failed to make payment of the cheque amount, he got",audio_57_39.mp3 +"issued the legal notice on 22.7.2015 by rpad, calling upon the accused to make payment of the cheque amount and the said notice was duly",audio_57_40.mp3 +"served on 23.7.2015. He deposed that the accused even inspite of receipt of legal notice, has neither chosen to make payment of the cheque amount",audio_57_41.mp3 +nor she has replied the notice by denying the transaction. He deposed that the accused knowing fully well that she has no sufficient funds in,audio_57_42.mp3 +"her bank account, with a dishonest intention to cheat him, had issued her bogus cheque and thereby, she has committed an offence. 13. Pw1 in",audio_57_43.mp3 +"order to prove his Cas. , got produced the cheque issued by this accused marked as ex.p1. He deposed that the signature found on ex.p1 is",audio_57_44.mp3 +that of this accused. He got identified the signature of this accused marked as ex.p1(a). He got produced the bank endorsement marked as ex.p2. He,audio_57_45.mp3 +got produced copy of the legal notice along with a postal receipt marked ex.p3 and ex.p3(a) respectively. He got produced the postal acknowledgement due card,audio_57_46.mp3 +for having served the notice to the accused marked as ex.p.4. He got produced the copy of the complaint lodged by this accused before jnanabharathi,audio_57_47.mp3 +police station against this complainant marked as ex.p.5 through confrontation to dw1 during her cross-examination. 14. The accused has denied the entire Cas. of the,audio_57_48.mp3 +"complainant and denied the very fact that she had borrowed a hand loan of rs.8,00,000/- from this complainant and she in order to repay the",audio_57_49.mp3 +"said loan amount, had issued her ex.p.1 cheque and the same was bounced. The learned counsel for the accused subjected pw1 for cross-examination and he",audio_57_50.mp3 +extensively cross-examined the pw1 by denying his testimony. 15. Though pw1 in his cross-examination stated that the accused is acquainted to him through his mother,audio_57_51.mp3 +"as this accused and his mother are friends. He further stated that the accused was frequently visiting his house to meet his mother and therefore,",audio_57_52.mp3 +he was acquainted to this accused. He further stated his mother is working at ncc Dept. as a clerk and now she is working at,audio_57_53.mp3 +"mysore road satellite bus stand. However, he has categorically denied the suggestion that his mother is alsosri bharath kumar vs. smt. Girijamma on 13 october,",audio_57_54.mp3 +2016,audio_57_55.mp3 +Educational qualification of the children of this accused and even he is not aware how many children are there to this accused. Pw1 stated that,audio_57_56.mp3 +"he without any enquiry and even without ascertaining the actual reason for the loan, had advanced a sum of rs.8,00,000/- to this accused by way",audio_57_57.mp3 +"of cash and the entire amount of rs.8,00,000/- was advanced by him by way of rs.1,000/- currency notes. 16. Pw1 stated that he has arranged",audio_57_58.mp3 +"a sum of rs.6,00,000/- after his mother sold one of her site property for a sum of rs.6,00,000/- and he arranged remaining rs.2,00,000/- from his",audio_57_59.mp3 +"savings and accordingly, he advanced a sum of rs.8,00,000/- to this accused on her request. He admitted the suggestion that neither in his complaint averments",audio_57_60.mp3 +"nor in his Aff. evidence, he has disclosed the how he arranged a huge sum of rs.8,00,000/- to advance the same in favour of this",audio_57_61.mp3 +"accused. Moreover, pw1 has stated that he is not an IT assessee and even he has not paid tds to the sale consideration amount",audio_57_62.mp3 +"of rs.6,00,000/-. Though he denied the suggestion that he has no financial capacity to advance the huge loan amount of rs.8,00,000/- and even he was",audio_57_63.mp3 +"unable to arrange rs.8,00,000/- fund to advance the same in favour of this accused. 17. The accused has taken up the specific defence that the",audio_57_64.mp3 +"mother of this complainant was doing chit transaction business in which, the accused was also one of the members and she has taken chit from",audio_57_65.mp3 +"his mother and towards security of the chit transaction, she had given her duly signed ex.p1 blank cheque and even after completion of the chit",audio_57_66.mp3 +"transaction, the mother of this complainant failed to return her cheque and she requested to take one more chit from her and accordingly, she Conti. ",audio_57_67.mp3 +"the chit business with the mother of this complainant and subsequently, the complainant colluding with his mother, misused her duly signed blank cheque and created",audio_57_68.mp3 +"the same for his convenience as ex.p1 for rs.8,00,000/- and filed this false complaint. Pw1 in his cross-examination has categorically denied the entire suggestions put",audio_57_69.mp3 +"to him and denied that he himself for his convenience, written all the contents of the cheque and presented the same before his banker for",audio_57_70.mp3 +"encashment even though the accused has not issued her ex.p1 cheque towards repayment of the loan amount. 18. Admittedly, the accused not only denied the",audio_57_71.mp3 +loan transaction with this complainant but she has also denied the very fact that this complainant had the financial capacity to advance the huge loan,audio_57_72.mp3 +"amount of rs.8,00,000/- to her. 19. It is her specific defence of the accused that the complainant had no financial capacity to advance the huge",audio_57_73.mp3 +"loan amount of rs.8,00,000/- and as such he has not at all advanced any kind of loan in her favour. Though the said suggestion was",audio_57_74.mp3 +"put to pw1 during his cross-examination by suggesting that he has no financial capacity to advance the huge loan amount of rs.8,00,000/- to this accused.",audio_57_75.mp3 +"Even though the said suggestion was categorically denied by pw1 in his cross-examination on the contrary, pw1 in order to prove this fact and to",audio_57_76.mp3 +"prove that he had the financial capacity to advance the huge loan amount of rs.8,00,000/- and he had with him a sum of rs.8,00,000/- as",audio_57_77.mp3 +"on date of loan transaction, has not chosen to produce any piece of evidence before this court.sri bharath kumar vs. smt. Girijamma on 13 october,",audio_57_78.mp3 +2016,audio_57_79.mp3 +"Sum of rs.6,00,000/- and after adding rs.2,00,000/- saved by him from his savings, advanced the loan amount of rs.8,00,000/- to this accused, has not chosen",audio_57_80.mp3 +to produce either the copy of the sale deed before this court or his bank account extract to prove his financial capacity to advance the,audio_57_81.mp3 +"huge loan amount of rs.8,00,000/- to this accused. 21. Admittedly, the pw1 except adducing the oral evidence that he had with him a sum of",audio_57_82.mp3 +"rs.8,00,000/- to advance the same in favour of this accused and he had advanced the said amount to this accused on her request, has not",audio_57_83.mp3 +"chosen to prove the same that as on date of loan transaction, he had with him a sum of rs.8,00,000/- to advance the same in",audio_57_84.mp3 +"favour of this accused. This clearly proves that pw1 has no financial capacity to advance the huge loan amount of rs.8,00,000/- to this accused. 22.",audio_57_85.mp3 +Though he denied the suggestion that he himself has written all the contents of ex.p1 cheque for his convenience by misusing the duly signed blank,audio_57_86.mp3 +cheque of this accused issued by her in favour of his mother for the security of the chit transaction business and filed this false complaint,audio_57_87.mp3 +with an intention to make a wrongful gain for himself and to cause monetary loss to this accused. 23. Pw1 in his cross-examination denied the,audio_57_88.mp3 +"suggestion that this accused was doing chit transaction business with his mother and towards the security of the chit transaction business, she had given her",audio_57_89.mp3 +"duly signed blank cheque and even after conclusion of the chit, his mother failed to return her duly signed blank cheque and subsequently he colluding",audio_57_90.mp3 +"with his mother, misused her duly signed blank cheque, created the same as ex.p.1 for rs.8,00,000/- and filed this false complaint, even though this accused",audio_57_91.mp3 +"is not liable to pay the cheque amount. 24. Admittedly, the pw1 except adducing the oral evidence that he had advanced the huge loan amount",audio_57_92.mp3 +"of rs.8,00,000/- to this accused on her request, which has been categorically denied by this accused, nothing has been placed before this court to prove",audio_57_93.mp3 +"the loan transaction and also to prove that as on date of ex.p.1 cheque, there existing a legally recoverable debt or other liability on this",audio_57_94.mp3 +"accused and this accused by admitting her liability, had issued her ex.p.1 cheque and the same was bounced. 25. The evidence of pw1 is surrounded",audio_57_95.mp3 +"with a lot of suspicion, which creates a doubt in the mind of court about the loan transaction and also about the issuance of ex.p.1",audio_57_96.mp3 +"cheque by this accused towards repayment of the loan amount of rs.8,00,000/-. The pw1 except adducing the oral evidence that he had with him a",audio_57_97.mp3 +"sum of rs.8,00,000/- to advance the same in favour of this accused and on the request of this accused, he advanced the loan amount of",audio_57_98.mp3 +"rs.8,00,000/- to this accused, has not chosen to prove the same by adducing documentary evidence before this court. 26. Admittedly, the burden is heavily on",audio_57_99.mp3 +"this pw1 to prove that as on date of ex.p.1 cheque, there existing a legally recoverable debt or other liability on this accused and this",audio_57_100.mp3 +"accused by admitting her liability and also by agreeing to repay the loan amount of rs.8,00,000/-, had issued her ex.p.1 cheque and the same was",audio_57_101.mp3 +"bounced.sri bharath kumar vs. smt. Girijamma on 13 october, 2016",audio_57_102.mp3 +"Evidence, which has been categorically denied by this accused, nothing has been placed before this court to believe his testimony and to believe his Cas. .",audio_57_103.mp3 +"28. In such situation, without any proper evidence before this court, it is not possible to believe the testimony of pw1 that he advanced the",audio_57_104.mp3 +"huge loan amount of rs.8,00,000/- to this accused and as on date of ex.p.1 cheque, there existing a legally recoverable debt or other liability on",audio_57_105.mp3 +"this accused and this accused by admitting her liability and in order to discharge her liability, had issued ex.p.1 cheque and the same was bounced.",audio_57_106.mp3 +"29. Admittedly, the pw1 has not chosen to produce any piece of document before this court to prove the loan transaction and also to prove",audio_57_107.mp3 +"that he advanced the huge loan amount of rs.8,00,000/- to this accused. This fact creates a serious doubt in the mind of court about the",audio_57_108.mp3 +loan transaction and also about the issuance of cheque towards repayment of the loan amount. The complainant has not cleared all the doubts aroused in,audio_57_109.mp3 +"the mind of court by adducing cogent and convincing evidence before this court. 30. Per contra, the accused in order to prove her defence and",audio_57_110.mp3 +"also to rebut the Cas. of the complainant and to rebut the presumption available to this complainant u/sec.139 of n.i. Act, got herself examined as",audio_57_111.mp3 +"dw1. She has categorically deposed before this court that she is residing in a house bearing no.9, 9th cross, nagadevanahalli, annapoorneshwari layout, bengaluru since from",audio_57_112.mp3 +7-8 years and it is her correct address and all the letters and other corresponding notices were served on her to this address. She deposed,audio_57_113.mp3 +"that this complainant is a stranger to her and moreover, there was no any loan transaction in between her with this complainant and even she",audio_57_114.mp3 +"has not issued ex.p1 cheque in favour of this complainant. 31. She deposed that one smt. Savithramma was running the chit business, for which she",audio_57_115.mp3 +"was also one of the members and for the security of the chit transaction amount, she had given her duly signed blank cheque in the",audio_57_116.mp3 +"year 2010. She deposed that she had taken a chit for rs.55,000/- on monthly subscription amount of rs.2,50,000/- and after completion of the chit, the",audio_57_117.mp3 +"said smt. Savithramma requested her to take one more new chit and she by considering the request of the said smt. Savithramma, Conti. chit business",audio_57_118.mp3 +with her and left her duly signed blank cheque with smt. Savithramma as she Conti. chit business with her. She deposed that she has taken,audio_57_119.mp3 +"two chits totally amounting to rs.1,00,000/- and apart from the chit business, the said smt. Savithramma was also doing share business for which, she has",audio_57_120.mp3 +"also invested amount of rs.1,000/- per month towards the shares. 32. She deposed that after completion of the chits, smt. Savithramma has neither retuned the",audio_57_121.mp3 +"chit amount nor she has paid the share amount and when she demanded her amount, the smt. Savithramma made galata with her. She got produced",audio_57_122.mp3 +"the bank extract of her canara bank marked as ex.d.1. She in order to prove her address, got produced the aadhaar card along with voters'",audio_57_123.mp3 +identity card issued by election commission of india marked as ex.d2 and ex.d3 respectively. She has categorically deposed that she has not issued ex.p.1 cheque,audio_57_124.mp3 +in favour of this complainant towards repayment of the loan amount. Dw1 deposed that the complainant by misusing her dulysri bharath kumar vs. smt. Girijamma,audio_57_125.mp3 +"on 13 october, 2016",audio_57_126.mp3 +"Himself and to cause monetary loss to her, filed this false complaint. Dw1 prays to dismiss the complaint. 33. The complainant has denied the testimony",audio_57_127.mp3 +of dw1 and his learned counsel subjected dw1 for cross-examination. Though dw1 in her cross-examination admitted that she has lodged a complaint before jnanabharathi police,audio_57_128.mp3 +"station as per ex.p5 and in the said complaint, she has given the very same address disclosed in this complaint. However, dw1 stated that she",audio_57_129.mp3 +"has given address of her friend in ex.p5 document as the police have refused to take her correct address. No doubt, the dw1 has not",audio_57_130.mp3 +produced any document before this court to prove that the address disclosed in ex.p5 is that of her friend and she has given the address,audio_57_131.mp3 +"of her friend in ex.p5 on the direction of the police personnel. On the contrary, the ex.p5 document clearly proves that the dw1 by furnishing",audio_57_132.mp3 +"the address as ""no.404, 1st main road, jagajyothinagar, jnanabharathi post, bengaluru"" stated that the said address is belonged to her and she is residing in",audio_57_133.mp3 +"the said address. No doubt, in ex.p5, the dw1 lodged the first information against the mother of this complainant by alleging that she is the",audio_57_134.mp3 +"member to the chit transaction and even inspite of completion of chit, the mother of this complainant smt. Savithramma instead of paying the chit amount",audio_57_135.mp3 +"threatening her to do away with her life if, she demands for chit amount. 34. Admittedly, the ex.p5 does not prove that the address disclosed",audio_57_136.mp3 +in the said document is relating to the friend of dw1 and she has given her friend's address. The ex.p5 document clearly proves that the,audio_57_137.mp3 +dw1 only with an intention to depose false before this court that she is not residing in the address disclosed in ex.p3 and once she,audio_57_138.mp3 +"admits the receipt of ex.p3 notice she will be held liable for the chit amount, has deposed false before this court that ex.p3 notice is",audio_57_139.mp3 +not served on her and even the signature found on ex.p4 document is not related to her husband sri manjunath and no notice is served,audio_57_140.mp3 +"on her by this complainant earlier to filing of this complaint. 35. On the contrary, the complainant except putting some suggestions to dw1 regarding availment",audio_57_141.mp3 +"of loan by dw1 from this complainant amounting to rs.8,00,000/- which has been categorically denied by dw1, nothing has been elicited from the mouth of",audio_57_142.mp3 +dw1 to prove his Cas. and also to prove the loan transaction. 36. The complainant has not the denied the ex.d1 document nor he has,audio_57_143.mp3 +"denied the contents of ex.d1. The complainant except putting suggestions to dw1 that the address disclosed in ex.d1 to ex.d3 are all different addresses, has",audio_57_144.mp3 +"not chosen to deny the contents of ex.d1 document. Moreover, dw1 has stated that she has produced ex.d1 document to prove that she has given",audio_57_145.mp3 +her ex.p1 cheque in favour of the mother of this complainant towards chit transaction. The contents of ex.d1 document clearly proves that the previous and,audio_57_146.mp3 +subsequently cheque numbers related to ex.p1 cheque are all used by this dw1 in the year 2009-10. The contents of ex.d1 discloses that the cheque,audio_57_147.mp3 +bearing no.793741 to 793753 were used from 28.3.2009 to 18.2.2010 and even the subsequently cheque bearing No. 793755 to 793757 were used by this dw1,audio_57_148.mp3 +"from 24.5.2010 to 24.1.2011.sri bharath kumar vs. smt. Girijamma on 13 october, 2016",audio_57_149.mp3 +That she only with an intention to cheat the complainant has issued ex.p1 cheque on 7.5.2015 of late by retaining the cheque bearing no.793754. In,audio_57_150.mp3 +"such situation, the defence taken by the dw1 that she has issued her ex.p1 duly signed blank cheque in favour of smt. Savithramma in the",audio_57_151.mp3 +year 2010 towards the security of the chit amount is so probable and believable that a prudent man can believe her defence and can believe,audio_57_152.mp3 +her testimony. 38. The contents of ex.d1 document is fully corroborated with the testimony of dw1 and clearly proves that the accused during the year,audio_57_153.mp3 +2010 had issued her ex.p1 duly signed blank cheque in favour of smt. Savithramma towards the chit transaction. The ex.d1 document falsify the Cas. of,audio_57_154.mp3 +"the complainant and also falsify the testimony of pw1. 39. As i have discussed supra, the initial burden is on this complainant to prove his",audio_57_155.mp3 +"Cas. and to prove his financial capacity to advance the huge loan amount of rs.8,00,000/- to this accused and also to prove the existence of",audio_57_156.mp3 +"legally recoverable debt or other liability on this accused as on date of ex.p.1 cheque. Here in this Cas. , the complainant has utterly failed to",audio_57_157.mp3 +"discharge his initial burden by adducing cogent before this court. When the complainant has utterly failed to prove his Cas. , then the burden will not",audio_57_158.mp3 +"shift on this accused to disprove the Cas. of the complainant and to discard his testimony. 40. As i have discussed supra, the complainant during",audio_57_159.mp3 +"the cross-examination of dw1, except putting some suggestions to her that she had issued ex.p.1 cheque after receipt of the loan amount of rs.8,00,000/- towards",audio_57_160.mp3 +"repayment of the loan amount, which has been categorically denied by dw1, nothing has been elicited from her mouth to disbelieve her testimony or to",audio_57_161.mp3 +"discard her evidence. 41. As i have discussed supra, the initial burden is always on this complainant to prove his Cas. on the strength of",audio_57_162.mp3 +"his own evidence. As i have discussed supra, the complainant has utterly failed to prove his Cas. by adducing cogent and convincing evidence before this",audio_57_163.mp3 +"court. The complainant has utterly failed to prove that he had advanced the huge loan amount of rs.8,00,000/- to this accused and after receipt of",audio_57_164.mp3 +"the loan amount, the accused in order to pay the loan amount, had issued her ex.p.1 cheque, to the satisfaction of the court. 42. Likewise,",audio_57_165.mp3 +"the pw1 has utterly failed to convince this court that he had the financial capacity to advance the huge loan amount of rs.8,00,000/- to this",audio_57_166.mp3 +"accused. It is also pertinent to note that the complainant claimed that he advanced the huge loan amount of rs.8,00,000/- to this accused, even without",audio_57_167.mp3 +insisting this accused to pay interest on the loan amount and even he has not demanded any interest on the loan amount. Even this fact,audio_57_168.mp3 +creates a very serious doubt in the mind of court about the Cas. of the complainant and also about the conduct of pw1. The complainant,audio_57_169.mp3 +has not chosen to clear all the doubts aroused in the mind of court by adducing cogent and convincing evidence before this court. 43. It,audio_57_170.mp3 +"is well settled principle of law that presumption u/sec.139 of n.i. Act is available to this complainant, only with respect to issuance of cheque for",audio_57_171.mp3 +"repayment of debt or other liability by thissri bharath kumar vs. smt. Girijamma on 13 october, 2016",audio_57_172.mp3 +"As on date of ex.p.1 cheque and also to prove that he had the financial capacity to advance the huge loan amount of rs.8,00,000/- to",audio_57_173.mp3 +"this accused. Here in this Cas. , the complainant has utterly failed to prove his Cas. to the satisfaction of the court. The complainant has failed",audio_57_174.mp3 +"to prove that the accused is liable to pay the cheque amount disclosed in ex.p.1. In such situation, the very complaint filed by the this",audio_57_175.mp3 +"complainant against this accused for the offence punishable u/S. 138 of n.i. Act, is not maintainable and it holds no merit. 44. The learned counsel",audio_57_176.mp3 +for the complainant has vehemently argued before this court that the accused has not chosen to prove her defence to the satisfaction of the court,audio_57_177.mp3 +that she had given her duly signed blank cheque in favour of the mother of the complainant towards the security of the chit transaction and,audio_57_178.mp3 +"after the completion of the chit, the mother of this complainant instead of retuning the cheque, misused her cheque colluding with her son and created",audio_57_179.mp3 +"the same as ex.p.1 for rs.8,00,000/-. He has argued that the entire burden is on this accused to rebut the presumption available to this complainant",audio_57_180.mp3 +u/sec.139 of n.i. Act and this accused has utterly failed to rebut the presumption available to this complainant by adducing cogent evidence before this court.,audio_57_181.mp3 +"45. He further argued that the accused except adducing the oral evidence that her cheque was misused by the complainant, has not chosen to prove",audio_57_182.mp3 +the same. He has argued that the accused neither lodged a complaint against this complainant nor she has initiated any legal action against this complainant,audio_57_183.mp3 +"for misusing her cheque and creating the same for rs.800,000/-. He has stated that the accused only with an intention to ran away from her",audio_57_184.mp3 +"liability to pay the cheque amount, has taken up false defence before this court and therefore, the defence of the accused has to be discarded.",audio_57_185.mp3 +He further argued that the complainant has filed this complaint after complying all the provisions of S. 138 of n.i. Act and well within the,audio_57_186.mp3 +statutory period of limitation against this accused. 46. He has stated that the ex.p.1 cheque is belong to this accused and even the accused has,audio_57_187.mp3 +"admitted her signature on the cheque and therefore, by drawing presumption in favour of this complainant u/sec.139 of n.i. Act and also by holding that",audio_57_188.mp3 +"the accused has not successfully rebutted the presumption available to this complainant u/sec.139 of n.i. Act, the accused has to be convicted for the offence",audio_57_189.mp3 +punishable u/S. 138 of n.i. Act and she has to be sentenced for imprisonment and also sentenced to pay fine. The arguments canvassed by the,audio_57_190.mp3 +"learned counsel for the complainant, is not convinced this court and it holds no merit. 47. As i have discussed supra, the complainant in order",audio_57_191.mp3 +"to prove his financial capacity to advance the huge loan amount of rs.8,00,000/- and also to prove the loan transaction with this accused, has not",audio_57_192.mp3 +"chosen to produce any piece of evidence before this court. As i have discussed supra, the pw1 except adducing the oral evidence that he after",audio_57_193.mp3 +"sold the site property of his mother for a sum of rs.6,00,000/- and after adding rs.2,00,000/- saved by him, had advanced a sum of rs.8,00,000/-",audio_57_194.mp3 +"to this accused, has not chosen to produce the alleged sale deed copy before this court nor he has chosen to examine any of the",audio_57_195.mp3 +"witnesses related to the said sale deed to prove his financial capacity to advance the huge loan amount of rs.8,00,000/-. In such situation, the arguments",audio_57_196.mp3 +"canvassed by the learned counsel for the complainant cannot be acceptable and it holds no merit.sri bharath kumar vs. smt. Girijamma on 13 october, 2016",audio_57_197.mp3 +"Arguments reported in (1999) 7 SC cases 510 between k.bhaskaran vs. Sankaran vaidhyan balan & Anr. wherein it is held that; ""(b) notice to",audio_57_198.mp3 +"drawer returned as ""unclaimed"" - context of s.138, held, invites a liberal interpretation favouring the person who has the statutory obligation to give notice, because",audio_57_199.mp3 +he is presumed to be the loser in the transaction and the provision itself has been made in his interest - thrust in the Cl. ,audio_57_200.mp3 +"is on the need to ""make a demand"" - strict interpretation would give a handle to a trickster cheque drawer - further held, the principle",audio_57_201.mp3 +"Inc. in sec.27 of the general clauses act, 1897 can be imported into a Cas. where sender has dispatched the notice by post with correct",audio_57_202.mp3 +address written thereon - such notice can be deemed to have been served on sendee unless he proves that it was never actually served and,audio_57_203.mp3 +that he was not responsible for the non-service - thus when a notice is returned as unclaimed by the sendee - drawer such date would,audio_57_204.mp3 +"be the date to start reckoning the period of 15 days contemplated in Cl. (c) - held, HC in appeal rightly found the appellant",audio_57_205.mp3 +"guilty of the offence under s.138 of the NI Act - words and phrases ""giving of notice"", ""receiving of the notice"" - general clauses",audio_57_206.mp3 +"act, 1897, s.27 - evidence act, 1872, s.114 iii (e) - interpretation of statutes - basic rules - liberal interpretation - notice to drawer of",audio_57_207.mp3 +"bounced cheque - basic rules - mischief rules, applied"" ilr 2001 kar 4127 between s.r. Muralidhar vs. Ashok g.y. Wherein it is held that; ""negotiable",audio_57_208.mp3 +"instrument act, 1881 (cental act no.26 of 1881) - S. 138 - in a cheque bounce Cas. complainant has challenged the order of acquittal accepting",audio_57_209.mp3 +the defence of the drawer of the cheque that the complainant who is his business associate and was allowed to deal with the accounts and,audio_57_210.mp3 +bank transactions has mis-used a cheque signed by him and the same is misutilized to fasten the false liability. HC set aside the acquittal,audio_57_211.mp3 +on the ground that there is no positive version of defence and the accused has not examined himself and from pleas taken up by picking,audio_57_212.mp3 +"out of context the statements made in the cross-examination and from the statements made in reply of the accused, a hazy defence theory is sought",audio_57_213.mp3 +"to be built up "" 2002 scc (cri) 14) between k.n. Beena vs. Muniyappan and Anr. wherein it is held that; ""in view of the",audio_57_214.mp3 +"provisions contained in ss.118 and 139, the court has to presume that the cheque had been issued for discharging a debt or liability - however,",audio_57_215.mp3 +the said presumption could be rebutted by the accused by proving the contrary - mere denial or rebuttal by accused in the reply to the,audio_57_216.mp3 +legal notice sent by the complainant nor enough - accused had to prove by cogent evidence that there was no debt or liability -sri bharath,audio_57_217.mp3 +"kumar vs. smt. Girijamma on 13 october, 2016",audio_57_218.mp3 +"That; ""when once issue of cheque and signature of it is admitted, the court has to presume that the cheque has been issued for discharging",audio_57_219.mp3 +the debt or other liability. The burden of proof shifts on the accused to prove that there was no liability or debt or that the,audio_57_220.mp3 +"cheque was issued a different person."" 2008 air scw 7702 between p. Venugopal vs. Madan p. Sarathi wherein it is held that; ""(a) negotaible instrumetns",audio_57_221.mp3 +"act (26 of 1881), ss.118, 139 - presumption that cheque was issued in discharge of debt - scope - does not absolve complainant of burden",audio_57_222.mp3 +"to prove existence of debt or liability"" (b) NI Act (26 of 1881), s.138 - dishonour of cheque - cheque issued by drawer in",audio_57_223.mp3 +discahge of liability - complainant alleging that cheque was issued in discharge of hand loan given by him - plea raised by accused that there,audio_57_224.mp3 +was no debtor creditor relationship between parties - concurrent finding that complainant has been able to prove his Cas. of grant of a loan -,audio_57_225.mp3 +"not liable to be interfered with in appeal. (c) NI Act (26 of 1881), s.138, proviso (c) - dishonour of cheque - service of",audio_57_226.mp3 +notice on drawer - is question of fact - concurrent finding that notice was served on drawer - not liable to be interfered with an,audio_57_227.mp3 +"appeal. 2007 crl.l.j. 3214 (SC ) (b) between c.c. Alavi haji vs. Palapetty muhammed & Anr. wherein it is held that; ""NI Act ",audio_57_228.mp3 +"(26 of 1881), s.138, proviso (b)(c) - dishonour of cheque - complaint - averments that notice sent under sec..138(b) was evaded by the accused or",audio_57_229.mp3 +"that the accused had played role in return of notice unserved - not necessary in view of presumption u/sec.27 of g,.c. Act 2010 Crl. l.J. ",audio_57_230.mp3 +"2871 (SC ) between rangappa vs. Mohan wherein it is held that; (a) NI Act ,(26 of 1881), -S. 138- dishonour of cheque-on account",audio_57_231.mp3 +"of 'stop payment' instruction sent by accused to bank in respect of post dated cheque-S. 138 is attracted-insufficiency of funds in account, irrespective. (b) negotiable",audio_57_232.mp3 +"instruments act(26 of 1881), s.138-existence of legally recoverable debt or liability-is matter of presumption u/s 139. The law laid down in these judgments is not",audio_57_233.mp3 +applicable to the facts of the present Cas. on hand and it will not helpful to the Cas. of the complainant.sri bharath kumar vs. smt.,audio_57_234.mp3 +"Girijamma on 13 october, 2016",audio_57_235.mp3 +"The chit transaction with the mother of this complainant smt. Savithramma and during the year 2010 the accused towards the security of the chit transaction,",audio_57_236.mp3 +"had given her ex.p1 cheque in favour of said smt. Savithramma and this accused by adducing oral and documentary evidence before this court, proved that",audio_57_237.mp3 +she had given her ex.p1 duly signed blank cheque in favour of smt. Savithramma during the year 2010 and this complainant has not chosen to,audio_57_238.mp3 +"disprove the defence taken by the accused. He has argued that the mother of this complainant by colluding with this complainant, misused the duly signed",audio_57_239.mp3 +blank cheque of this accused issued towards security of the chit amount and filed this false complaint. He further argued that the accused by adducing,audio_57_240.mp3 +"oral and documentary evidence before this court, has proved her defence. His arguments is fully convinced this court. 50. After this accused adduced her evidence",audio_57_241.mp3 +"before this court, the burden shift on this complainant to prove that apart from the chit transaction, the complainant had also advanced the loan amount",audio_57_242.mp3 +"amounting to rs.8,00,000/- to this accused and this accused in order to repay the said loan amount, had issued her ex.p1 cheque in his favour",audio_57_243.mp3 +"and the same was bounced. Admittedly, the ex.p1 cheque is related to the year 2010 and moreover, earlier serial No. of the ex.p1 cheque and",audio_57_244.mp3 +subsequent serial numbers of cheque are all used by this accused during the year 2009-10 and this fact was proved by this accused by producing,audio_57_245.mp3 +ex.d1 document. 51. The complainant has not led any rebuttal evidence after this accused has led her evidence before this court and by considering all,audio_57_246.mp3 +"these facts, the accused has to be acquitted. The arguments canvassed by the learned counsel for the accused is fully convinced this court. The accused",audio_57_247.mp3 +"by adducing oral and documentary evidence before this court, has successfully rebutted the presumption available to this complainant u/sec.138 of n.i. Act. 52. He further",audio_57_248.mp3 +"argued that the complainant except adducing the oral evidence that he had the financial capacity to advance the huge loan amount of rs.8,00,000/- to this",audio_57_249.mp3 +"accused, has not chosen to prove the same by adducing documentary evidence before this court. He has stated that the pw1 has failed to prove",audio_57_250.mp3 +"the loan transaction and also failed to prove that as on date of ex.p.1 cheque, there existing a legally recoverable debt or other liability on",audio_57_251.mp3 +"this accused and this accused by admitting her liability, had issued her ex.p.1 cheque. The arguments canvassed by the learned counsel for the accused, is",audio_57_252.mp3 +"fully convinced this court. 53. Likewise, the arguments canvassed by the learned counsel for the accused that there is no burden on this accused to",audio_57_253.mp3 +prove her defence beyond all reasonable doubts and she can very well discharge her burden by preponderance of probabilities and even by cross- examining pw1.,audio_57_254.mp3 +"He has argued that the accused has successfully rebutted the presumption available to this complainant u/sec.139 of n.i. Act, by adducing her evidence before this",audio_57_255.mp3 +"court and even by cross- examining pw1, is also convinced this court. 54. Admittedly, there is no burden on this accused to prove her defence",audio_57_256.mp3 +beyond all reasonable doubts. The accused can very well discharge her burden by preponderance of probabilities and this accused has successfully rebutted the presumption available,audio_57_257.mp3 +to this complainant u/sec.139 of n.i. Act. The complainant has utterly failed to prove the Cas. and failed to prove that this accused hassri bharath,audio_57_258.mp3 +"kumar vs. smt. Girijamma on 13 october, 2016",audio_57_259.mp3 +55. The oral and documentary evidence adduced before this court by this complainant is not sufficient and convincing to bring home the guilt of the,audio_57_260.mp3 +accused beyond all reasonable doubts to the satisfaction of the court. The entire burden is on this complainant to bring home the guilt of the,audio_57_261.mp3 +"accused beyond all reasonable doubts to the satisfaction of the court. Unless the complainant is discharge his burden, no burden will shift on the accused",audio_57_262.mp3 +to rebut the presumption available to this complainant u/sec.139 of n.i. Act. The complainant has utterly failed to prove that this accused that this accused,audio_57_263.mp3 +"has committed an offence punishable u/S. 138 of n.i. Act and therefore, she is liable for punishment. In such situation, the benefit of doubt goes",audio_57_264.mp3 +"in favour of this accused. Hence, by taking into consideration the facts and circumstances and evidence available on record, i answer point no.1 in the",audio_57_265.mp3 +"negative. 56. Point no.2: in view of my findings on the above point and the reasons stated therein, i proceed to pass the following: order",audio_57_266.mp3 +"acting u/sec.255(1) of Cr.P.C. , the accused is hereby acquitted for the offence punishable u/sec.138 of n.i. Act. The bail bond and",audio_57_267.mp3 +"surety bond of the accused stands cancelled. (dictated to the stenographer, transcript thereof is computerized and print out taken by him is verified and then",audio_57_268.mp3 +"pronounced by me in the open court on this the 13th day of october, 2016) (ishrath jahan ara) xix addl.cmm., bengaluru. Annexure: witnesses examined on",audio_57_269.mp3 +behalf of the complainant: pw.1 mr. Bharath kumar witnesses examined on behalf of the accused: d.w.1 mrs. Girijamma documents marked on behalf of the complainant:,audio_57_270.mp3 +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.3(a) rpad receipt ex.p.4 postal acknowledgement due card ex.p.5,audio_57_271.mp3 +copy of the complaint lodged by the accused documents marked on behalf of the accused: ex.d1 bank extract ex.d2 aadhaar card ex.d3 voters' identity card,audio_57_272.mp3 +"xix acmm, b'lore.sri bharath kumar vs. smt. Girijamma on 13 october, 2016",audio_57_273.mp3 +"K. Seetharam reddy vs. smt. K. Radhika rani and ors. And smt. Ch. ... On 21 november, 2000 equivalent citations: 2001(1)alt(cri)175, [2002]112compcas204(ap) judgment t. Ch.",audio_58_1.mp3 +"Surya rao, j. 1. Since the parties are the same and as common questions of law and fact are involved both the Crl. petitions can",audio_58_2.mp3 +be disposed of together. 2. The petitioner is the second accused in c. C. No. 563 of 2000 and c. C. No. 506 of 2000.,audio_58_3.mp3 +The first accused in both the cases is one mr. C. J. Reddy. The complainant in both the cases is common. 3. The petitioner seeks,audio_58_4.mp3 +"to quash both the cases filed against him under S. 138 of the NI Act , 1881 (for short ""the act""), on the premise that",audio_58_5.mp3 +"he is arrayed in the complaint neither as a partner nor as a director of any firm or the Co. , as the Cas. may be,",audio_58_6.mp3 +and inasmuch as he has been arrayed as an individual and since the act does not envisage any vicarious liability except under S. 141 of,audio_58_7.mp3 +"the said act, the proceedings against him in both the Crl. cases cannot be maintained. 4. In the complaint, filed against the petitioner, inter alia,",audio_58_8.mp3 +it has been averred that al is the working director and a2 is the managing director of S. r. L. L. Firm and the first,audio_58_9.mp3 +"managing director of the Co. by name dr. K. V. Surendranath entered into a MOU on august 27, 1999, with the petitioner wherein",audio_58_10.mp3 +"it was agreed, inter alia, to participate in the equity capital and management of the Co. from august 27, 1999, onwards by paying an amount",audio_58_11.mp3 +"of Rs. 69 lakhs to dr. K. V. Surendranath towards net value of 50 per cent. Total equity, and despite the same, the petitioner had",audio_58_12.mp3 +been postponing the payment even after the said dr. K. V. Surendranath fulfilled his part of promise. The averments made in the complaint further show,audio_58_13.mp3 +"that the petitioner-a2 failed to make the payment as per the MOU dated august 27, 1999, despite several rounds of discussions initiated by",audio_58_14.mp3 +"the said dr. K. V. Surendranath. Subsequently, the petitioner-a2 along with al executed an agreement dated april 11, 2000, in favour of dr. K. V.",audio_58_15.mp3 +"Surendranath and issued post-dated cheques, pursuant to the terms of the agreement, bearing nos. 374993, dated may 15, 2000, for an amount of Rs. 4",audio_58_16.mp3 +"lakhs and 374996 dated april 30, 2000, for an amount of Rs. 3,32,000 drawn on andhra bank, sananthnagar branch in favour of the complainant towards",audio_58_17.mp3 +"the discharge of liability to the extent of the value of 62,500 and 50,000 equity shares held by her in terms of the said agreement.",audio_58_18.mp3 +"When those cheques were presented, they bounced for insufficiency of funds. Thereafter the complainant after having issued a legal notice dated may 29, 2000, filed",audio_58_19.mp3 +"thek. Seetharam reddy vs. smt. K. Radhika rani and ors. And smt. Ch. ... On 21 november, 2000",audio_58_20.mp3 +5. With these averments when both the complaints have been filed they were taken on file under S. 138 of the act and the court,audio_58_21.mp3 +"after taking cognizance directed summonses to be issued. Pursuant to the summonses, the petitioner-a2 in both the cases appeared before that court and then filed",audio_58_22.mp3 +"these two petitions seeking to quash the same. 6. Sri c. Padmanabha reddy, learned Sr. counsel contends that the petitioner in both the cases is",audio_58_23.mp3 +neither managing director or director of a Co. nor managing partner or partner of a firm and when the cheque was issued by al on,audio_58_24.mp3 +"behalf of columbus and brothers as proprietor thereof, the petitioner cannot be impleaded as an accused so as to fasten vicarious liability. Learned counsel further",audio_58_25.mp3 +"contends that the act envisages a personal liability on the drawer of the cheque, which cheque bounced later and except under S. 141 of the",audio_58_26.mp3 +"act, when the offence is said to have been committed by a Co. , no Crl. liability can be fastened on Ors. either as abettors or",audio_58_27.mp3 +"imputing vicarious liability. 7. Sri b. Adinarayana rao, learned counsel appearing for the first respondent in both the petitions on the other hand contends that",audio_58_28.mp3 +"although in view of the language employed under S. 138 of the act, it cannot be said that the person who is other than the",audio_58_29.mp3 +"drawer of the cheque can be made liable for the offence under S. 138 of the act, but on a perusal of Cl. (a) of",audio_58_30.mp3 +the explanation appended under sub-S. (2) of S. 141 of the act that Co. means Assn. of individuals and inasmuch as a1 in this Cas. ,audio_58_31.mp3 +issued the cheque pursuant to the terms of an agreement entered into between a1 and a2 on the one hand and the g. P. A.,audio_58_32.mp3 +"Of the first respondent-complainant on the other hand, a2 can consequently be brought within the definition of the Co. as embodied in S. 141 of",audio_58_33.mp3 +"the act. 8. In view of the contentions raised on either side, the short question that falls for determination in these cases is whether the",audio_58_34.mp3 +"petitioner, who has been arrayed as a2 in both the cases, can be vicariously made liable along with a1 for the offence punishable under S. ",audio_58_35.mp3 +"138 of the act. 9. For brevity and better understanding of the matter, it is expedient at the outset to consider S. 138 of the",audio_58_36.mp3 +"act, which may be extracted hereunder in so far as it is relevant to the present purpose, thus : ""138. Dishonour of cheque for insufficiency,",audio_58_37.mp3 +"etc., of funds in the account.--where any cheque drawn by a person on an account maintained by him with a banker for payment of any",audio_58_38.mp3 +"amount of money to Anr. person from out of that account for the discharge, in whole or in part, of any debt or other liability,",audio_58_39.mp3 +"is returned by the bank unpaid, either because the amount of money standing to the credit of that account is insufficient to honour the cheque",audio_58_40.mp3 +"or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed",audio_58_41.mp3 +"to have committed an offence and shall, without prejudice to any other provision of this act, be punished with imprisonment for a term which may",audio_58_42.mp3 +"extend to one year, or with fine which may extend to twice the amount of the cheque, or withk. Seetharam reddy vs. smt. K. Radhika",audio_58_43.mp3 +"rani and ors. And smt. Ch. ... On 21 november, 2000",audio_58_44.mp3 +10. It is also necessary in this context to consider the other S. 141 of the act which makes the partners or the directors also,audio_58_45.mp3 +"liable for the acts of the Co. or the firm, as the Cas. may be. S. 141 may be extracted hereunder, thus : ""141. Offences",audio_58_46.mp3 +"by companies.--(1) if the person committing an offence under S. 138 is a Co. , every person who, at the time the offence was committed, was",audio_58_47.mp3 +"in charge of, and was responsible to the Co. for the conduct of the business of the Co. , as well as the Co. , shall be",audio_58_48.mp3 +deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly : provided that nothing contained in this,audio_58_49.mp3 +"sub-S. shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all",audio_58_50.mp3 +"due diligence to prevent the commission of such offence. (2) notwithstanding anything contained in sub-S. (1), where any offence under this act has been committed",audio_58_51.mp3 +"by a Co. and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect",audio_58_52.mp3 +"on the part of, any director, manager, secretary or other officer of the Co. , such director, manager, secretary or other officer shall also be deemed",audio_58_53.mp3 +"to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.--for the purposes of this S. ,-- (a) 'Co. '",audio_58_54.mp3 +"means any body corporate and includes a firm or other Assn. of individuals ; and (b) 'director', in relation to a firm, means a partner",audio_58_55.mp3 +"in the firm."" 11. A plain reading of S. 138 of the act makes it manifest that if a cheque is drawn by a person",audio_58_56.mp3 +on an account maintained by him and issued for the discharge of an existing debt and the cheque bounces either on account of insufficiency of,audio_58_57.mp3 +"the funds in the account or on account of a fact that it exceeds the amount arranged to be paid from that account, that person",audio_58_58.mp3 +is deemed to have committed an offence. The S. leaves no doubt and makes it manifest that the person who has drawn the cheque on,audio_58_59.mp3 +his account is alone liable in the event of that cheque drawn by him having bounced. 12. The act has not envisaged any penal consequences,audio_58_60.mp3 +"for the conspiracy, abetment and attempt to commit the said offence. The expressions used in S. 138, viz., ""by a person"", ""on an account maintained",audio_58_61.mp3 +"by him"", and ""such person"" make it manifest that the person who has drawn the cheque on an account maintained by him alone is liable.",audio_58_62.mp3 +"However, S. 141 of the act envisages a situation where if the person who has drawn the cheque is a juristic person, like a Co. ,",audio_58_63.mp3 +firm or other Assn. of individuals. It makes it clear that if the person who has drawn the cheque is thek. Seetharam reddy vs. smt.,audio_58_64.mp3 +"K. Radhika rani and ors. And smt. Ch. ... On 21 november, 2000",audio_58_65.mp3 +"Was in charge of, and was responsible to the Co. for the conduct of the business of the Co. is liable. On a perusal of",audio_58_66.mp3 +"S. 141 of the act in its entirety, three categories of persons are discernible who are liable for the penal consequences through legal fiction envisaged",audio_58_67.mp3 +"in the S. . They are (1) the Co. which committed the offence, (2) every one who was in charge of and was responsible for the",audio_58_68.mp3 +business of the Co. and (3) any other person who is a director or a manager or secretary or an officer of the Co. with,audio_58_69.mp3 +whose connivance or due to whose neglect the Co. had committed the offence. I am fortified in my above view by a judgment of the,audio_58_70.mp3 +apex court in anil hada vs. indian acrylic ltd. [1999] 7 scale 209 ; [2000] 99 comp cas 36. It is apposite here to profitably,audio_58_71.mp3 +"extract the relevant observation of the apex court in para. 9 of the said judgment thus (page 38) : ""it must be pointed out at",audio_58_72.mp3 +the outset that the offender in S. 138 of the act is the drawer of the cheque. He alone would have been the offender thereunder,audio_58_73.mp3 +if the act did not contain other provisions. It is because of S. 141 of the act that penal liability under S. 138 is cast,audio_58_74.mp3 +"on other persons connected with the Co. ."" 13. Even looking at the background in which the chapter contained Ss. 138 and 141 came to be",audio_58_75.mp3 +"Inc. , it is obvious that so as to allow the banking transactions to run smoothly penal consequences have been envisaged. Learned counsel for the petitioner",audio_58_76.mp3 +in this regard seeks to rely upon the judgment of this court in g. Surya prabhavathi vs. nekkanti subrahmanyeswara rao [1997] 2 ald (crl.) 908,audio_58_77.mp3 +; [1998] 91 comp cas 223. It has been held in the said judgment that the prosecution can be launched only against the person who,audio_58_78.mp3 +is the drawer of the cheque and none else can be prosecuted except the persons envisaged in S. 141 of the act. The invariable conclusion,audio_58_79.mp3 +that emerges from the above discussion is that the act has not envisaged any vicarious liability. In the event of the drawer of the cheque,audio_58_80.mp3 +being a juristic person the juristic person as well as the persons in charge of and responsible to the juristic person for the conduct of,audio_58_81.mp3 +"the business are liable. 14. Sri b. Adinarayana rao, learned counsel also fairly concedes the above legal position. Learned counsel however contends that since a1",audio_58_82.mp3 +and a2 as joint promissors entered into an agreement with the general power of attorney holder of the complainant and pursuant to the terms mentioned,audio_58_83.mp3 +"therein both of them are obliged to pay the amount to the promisee viz. the general power of attorney of the complainant and, therefore, for",audio_58_84.mp3 +the purpose of S. 141 while construing the definition of Co. these two associates shall be considered as a Co. . S. 141 of the act,audio_58_85.mp3 +"seeks to define the expression ""Co. "" by adding an explanation to that S. . Cl. (a) of the explanation appended under S. 141 is germane for",audio_58_86.mp3 +"consideration in this context. According to this Cl. the Co. means any body corporate and includes a firm, or other Assn. of individuals. Laying emphasis",audio_58_87.mp3 +"on the words ""other Assn. of individuals"" it is the contention of learned counsel for the respondent that a1 and a2 having together entered into",audio_58_88.mp3 +"an agreement they come ""within the ambit of the expression"" ""other Assn. of individuals"". It is no doubt true that the definition of Co. as",audio_58_89.mp3 +given in Cl. (a) of the explanation under S. 141 is an inclusive definition. On a perusal of Cl. (a) it is obvious that the,audio_58_90.mp3 +"specific words ""body corporate"" and ""a firm"" are followed up by a general expression ""other Assn. of individuals"". The expression ""other Assn. of individuals"" shall",audio_58_91.mp3 +have to be construed in the context in which it has come to bek. Seetharam reddy vs. smt. K. Radhika rani and ors. And smt.,audio_58_92.mp3 +"Ch. ... On 21 november, 2000",audio_58_93.mp3 +"Juristic person as afore discussed, such a juristic person may be either a Co. or a firm or other Assn. of individuals. The expression ""other",audio_58_94.mp3 +"Assn. of individuals"" shall have to be understood in my considered view in the context along with the other expressions like ""Co. "" or ""firm"", which",audio_58_95.mp3 +"are juristic persons. When particular words pertaining to a class, category or genus are followed by general words the general words are to be construed",audio_58_96.mp3 +"as Ltd. to things of the same kind as specified. Therefore, the expression other Assn. of individuals shall be construed ejusdem generis along with other",audio_58_97.mp3 +"expressions ""Co. "" or ""firm"" in the context in which they have come to be Inc. in Cl. (a) of the explanation under S. 141. It",audio_58_98.mp3 +"is obvious that the expression ""other Assn. of individuals"" must also be a juristic person like that of the Co. or a firm. 15. Turning",audio_58_99.mp3 +"to the instant Cas. , a1 and a2 together entered into an agreement with the general power of attorney holder of the complainant. Therefore there is",audio_58_100.mp3 +"no Assn. of individuals, which can be called a juristic person. At best they are only the joint promissors. Therefore, in my considered view, they",audio_58_101.mp3 +"cannot come within the expression ""other Assn. of individuals"". The contention of learned counsel in this regard cannot be countenanced. 16. Since a2 in this",audio_58_102.mp3 +Cas. is obviously not the drawer of the cheque and as the cheque has been drawn by a1 in the capacity of the proprietor of,audio_58_103.mp3 +"columbus and brothers on the account maintained in regard thereto, a fortiori, the contention cannot be accepted for the simple reason that the account has",audio_58_104.mp3 +"not been maintained by the group of individuals. In any view of the matter, no Crl. liability as enjoined under S. 138 of the act",audio_58_105.mp3 +"can be fastened on a person who is not the drawer of the cheque, except in accordance with S. 141 of the act. 17. For",audio_58_106.mp3 +"the foregoing reasons, the complaint against the petitioner, who is a2, cannot legally be sustained and, therefore, is liable to be quashed. The petitions are",audio_58_107.mp3 +"allowed accordingly.k. Seetharam reddy vs. smt. K. Radhika rani and ors. And smt. Ch. ... On 21 november, 2000",audio_58_108.mp3 +"Raghavendra vs. c. Mahesh on 23 october, 2020 in the court of the judge court of small causes and a.c.m.m, at bengaluru present: abdul khadar,",audio_59_1.mp3 +"b.a., ll.b., judge, court of small causes, bengaluru. Dated this the 23rd day of october 2020 c.c. No:1364/2010 complainant: raghavendra proprietor m/s. Raghavendra marketing, no.42,",audio_59_2.mp3 +"""shivabaala nilaya"", near mahesh memorial, kendriya vidhyalaya, byrappa garden, raja rajeshwari high school, dodda bommasandra, vidyaranyapura post, bangalore-560097. (by S. murali, Adv. ) -vs- accused :",audio_59_3.mp3 +"c. Mahesh proprietor m/s. Slv communications, r/at No. 160-e, reddy building, thayappa garden, bilekahalli, 2nd main road, bannerghatta post, banglore-560079. (by sri.p.p.jayakumar-Adv. ) sch-9 2 c:1364/2010",audio_59_4.mp3 +"judgment the complainant filed the Pvt. complaint under sec.200 of Cr.P.C. , against the accused for having committed an offence punishable under",audio_59_5.mp3 +sec.138 of NI Act . 2. According to the complainant that the complainant was a tenant under father of the accused and during the tenure,audio_59_6.mp3 +of his tenancy the accused doing business of the same nature of the complainant with spice telecom in the different name and style. The accused,audio_59_7.mp3 +approached the complainant for hand loan for his business purpose ever since 2006. In lieu of the aforesaid transaction the accused obtained hand loan from,audio_59_8.mp3 +"time to time amounting of rs.38,00,000/- and issued 3 chequesraghavendra vs. c. Mahesh on 23 october, 2020",audio_59_9.mp3 +"6 months and issued cheques bearing no.940611 dated 27.05.2009 for rs.9,00,000/-, no.940612 dated 28.05.2009 for rs.9,00,000/- and no.940613 dated 29.05.2009 rs.5,00,000/- all cheques were drawn",audio_59_10.mp3 +"on state bank of mysore, bilekahalli branch, bangalore. The complainant when presented the said cheques for encashment through his banker m/s. Janatha seva co- operative",audio_59_11.mp3 +"bank ltd., branch, bengaluru, which was dishonored with an endorsement as 'funds insufficient' on 29.05.2009. Immediately after dishonour of cheques were intimated to the sch-9",audio_59_12.mp3 +"3 c:1364/2010 accused, but the accused not bothered to pay the dishonoured cheques amount. Therefore, the complainant has issued a legal notice dated 27-06-2009 through",audio_59_13.mp3 +rpad calling upon the accused to pay the dishonoured cheques amount within a period of 15 days from the date of receipt of the said,audio_59_14.mp3 +"notice. The notice sent to the accused was duly served on 30.06.2009, the accused instead of comply the demand made by the complainant he gave",audio_59_15.mp3 +"untenable reply. Accordingly, the complainant has filed the present complaint to take action against the accused in accordance with law. 3. Being satisfied with the",audio_59_16.mp3 +"complaint averments, this court has taken cognizance and after recording sworn statement being satisfied with the prima-facie Cas. , issued summons to the accused compelling his",audio_59_17.mp3 +appearance. Accused appeared through his counsel before this court and got enlarged on bail. Substance of accusation was read over to the accused. Accused pleaded,audio_59_18.mp3 +"not guilty for the offence punishable u/s.138 of ni act. Hence, this court called upon the complainant to prove his Cas. . 4. In support of",audio_59_19.mp3 +"the Cas. , the complainant himself examined as p.w.1 and got marked 17 documents as per ex.p1 to p17. After closure of evidence of complainant, the",audio_59_20.mp3 +"accused was examined as contemplated u/s.313 cr.p.c and his statement was recorded. The accused, totally denied the Cas. sch-9 4 c:1364/2010 of the complainant. The",audio_59_21.mp3 +"accused examined himself as dw.1 and got marked 12 documents as per ex.d1 to d12 on his behalf, bank manager, sbi, vijaya bank layout branch,",audio_59_22.mp3 +by name smt. Deepa examined as dw-2 and got marked 02 documents as per ex.d13 and d14. Handwriting expert by name c. Rajesh examined through,audio_59_23.mp3 +"court commissioner as dw-3 and marked one document as per ex.d15 on his behalf. 5. I have heard the arguments, canvassed by the both counsels.",audio_59_24.mp3 +Perused written arguments along with citations produced by the both counsels and the materials available on record. 6. The points that would arise for my,audio_59_25.mp3 +"determinations are: 1. Whether the complainant proves that the ex.p1 to 3 cheques bearing No. 940611 dated 27.05.2009 for rs.9,00,000/-, No. 940612 dated 28.05.2009 for",audio_59_26.mp3 +"rs.9,00,000/- and No. 940613 dated 29.05.2009 rs.5,00,000/- all cheques were drawn on state bank of mysore, bilekahalli branch, bangalore have been issued by the accused",audio_59_27.mp3 +"towards discharge of his legal liability and failed to make payment to the complainant after its dishonor and even after issuance of notice, within theraghavendra",audio_59_28.mp3 +"vs. c. Mahesh on 23 october, 2020",audio_59_29.mp3 +138 of the ni act? 2. What order? 7. My findings to the above points is as under: sch-9 5 c:1364/2010 point no.1 : in,audio_59_30.mp3 +"the negative point no.2 : as per final order below for the following: reasons point no.1 : 8. It is pertinent to note that, whenever",audio_59_31.mp3 +"a Pvt. complainant is filed seeking prosecution of the accused for an offence punishable under S. 138 of negotiable instrument act, if the issuance of",audio_59_32.mp3 +"cheque and the signature on the cheque is accepted and admitted by the accused, an initial presumption has to be raised by the court in",audio_59_33.mp3 +"favour of the complainant, that the cheque in question was issued towards legally recoverable debt or liability. Of course, this presumption is rebuttable presumption. Such",audio_59_34.mp3 +"rebuttable evidence has to be placed before the court by the accused. It is well known that, the accused can rebut the said legal presumption",audio_59_35.mp3 +either by cross-examination of complainant or by leading evidence. The complainant himself examined as pw.1 filed Aff. by way of chief examination has reiterated the,audio_59_36.mp3 +versions of complaint. I would not like to reproduce the same to avoid repetition of facts since the complainant has explained the details of complaint,audio_59_37.mp3 +averments in chief examination. The complainant produced 17 documents at ex.p1 to p.17. Sch-9 6 c:1364/2010 9. So far as the document is concerned ex.p1,audio_59_38.mp3 +"to 3 are the cheques bearing No. 940611 dated 27.05.2009 for rs.9,00,000/-, no.940612 dated 28.05.2009 for rs.9,00,000/- and no.940613 dated 29.05.2009 rs.5,00,000/- all cheques were",audio_59_39.mp3 +"drawn on state bank of mysore, bilekahalli branch, bangalore. Ex.p1(a) to p3(a) is the signature of accused. Ex.p4 and 5 are the bank endorsement issued",audio_59_40.mp3 +"by the sbi, bilekahalli branch, bengaluru on 29.05.2009 with a shara as ""funds insufficient"". Ex.p6 is the office copy of legal notice dated 27.06.2009, wherein",audio_59_41.mp3 +the complainant demanded for repayment of money from the accused within 15 days from the date of receipt of legal notice. Ex.p7 is the postal,audio_59_42.mp3 +"receipt, wherein, the complainant sent notice to the accused by rpad. Ex.p8 is the settled reply issued by postal Dept. . Ex.p9 is the reply notice",audio_59_43.mp3 +"dated 13.07.2009. Ex.p10 is the c/c of judgment in cc no.15433/2009 filed by the accused against complainant for a sum of rs.4,00,000/-. Ex.p11 is the",audio_59_44.mp3 +"c/c of judgment in cc no.15434/2009 filed by the accused against complainant for a sum of rs.4,00,000/-. Ex.p12 is the c/c of judgment in cc",audio_59_45.mp3 +"no.15435/2009 filed by the accused against complainant for a sum of rs.4,00,000/-. Ex.p13 is the c/c of evidence of accused deposed in cc no.15433/2009. Wherein",audio_59_46.mp3 +"in page no.7, 7th line the accused deposed that the recital of rs.51,94,410/- was credited to slv communication, but notraghavendra vs. c. Mahesh on 23",audio_59_47.mp3 +"october, 2020",audio_59_48.mp3 +C/c of judgment in cc no.261/2010. Ex.p15 is the c/c of deposition of accused in cc no.261/2010 wherein he admits that the complainant has filed,audio_59_49.mp3 +cheque bounce Cas. against him. Ex.p15(a) is the signature of accused. Ex.p16 is the letter addressed to manager sbi requesting conformation letter on 0.1.12.2018. Ex.p17,audio_59_50.mp3 +is the certificate issued by the branch manager on 18.12.2018 based on ex.p16 stating that cheques were issued to slv communications by the complainant. According,audio_59_51.mp3 +"to the learned counsel for the complainant, when the issuance of cheque and his signature are admitted, then the presumption as required under S. 139",audio_59_52.mp3 +of n.i. Act comes to the aid of the complainant and it is the turn of the accused to explain or rebut the said presumption,audio_59_53.mp3 +"by raising a probable defence. 10. According to the evidence of p.w.1, he was a tenant under the father the accused and during the tenure",audio_59_54.mp3 +of his tenancy the accused doing spice telecoms. During the course of business he was in habit of taking hand loan from him for his,audio_59_55.mp3 +"business purpose ever since 2006-2008 by way of cheques for a sum of rs.51,94,410/-. In the aforesaid transaction the accused obtained hand loan from time",audio_59_56.mp3 +"to time amounting to rs.38,00,000/- towards discharge of part of his liability he issued 3 cheques for rs.23,00,000/- and assured to pay sch-9 8 c:1364/2010",audio_59_57.mp3 +"balance of rs.15,00,000/- within 6 months and the aforesaid cheques were made use of in the present Cas. . Therefore there shall be initial burden on",audio_59_58.mp3 +"the complainant to prove that, the accused had due of rs.23,00,000/- and the complainant having financial capacity to lend loan of rs.38,00,000/- to the accused",audio_59_59.mp3 +"without taking documents except cheques. Further he drew attention of the court to sec.139 of n.i. Act, which reads thus:- presumption in favour of holder:",audio_59_60.mp3 +"it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in sec.138",audio_59_61.mp3 +"for the discharge, in whole or in part, of any debt or other liability. 11. So when the cross examination of p.w.1 indicates that, the",audio_59_62.mp3 +"complainant having office in mariyappa building, his office boy ready to go for sbm belekalli branch, to bring the cheque book at the time the",audio_59_63.mp3 +"accused told him that he had also some work with same bank, and he was also going to same bank, as the complainant received letter",audio_59_64.mp3 +from accused and given to his office boy told him to bring the cheque book in the name of accused. The complainant office boy was,audio_59_65.mp3 +received the cheque book bearing no.940601 to 940700 of 100 leaves and without returning the same to accused the complainant issued to so many persons,audio_59_66.mp3 +"and also used the same for his personal and out of that, 3 cheques have been sch-9 9 c:1364/2010 misused to file this complaint. Therefore",audio_59_67.mp3 +"the accused had gave stop payment letter to his banker on 22.04.2009 and requested conformation letter, wherein the bank official issued letter to accused conforming",audio_59_68.mp3 +"that one pradeep working for complainant was received the cheque book, then the accused gave complaint against complainant before the central police, they registered first",audio_59_69.mp3 +information report in their cr. No. 77/2009 and recorded the statement of complainant and also the accused filed a Cas. against bank manager and complainant,audio_59_70.mp3 +"in consumer forum for their deficiency of service i.e., much prior to presenting of disputed cheques to the banker. It is for the complainant to",audio_59_71.mp3 +"prove that, he had legally recoverable debt under ex.p1 to 3 cheques and he had source of income to lend rs.38,00,000/- to the accused as",audio_59_72.mp3 +"on the date of issuance of cheques. 12. As per decision reported in 2019 scc on line SC 389, in a Cas. between rohith",audio_59_73.mp3 +"bai jeevan ltd., v/s state of gujarath. Wherein, the division bench of Hon'ble apex court pleased to observed that,raghavendra vs. c. Mahesh on 23 october,",audio_59_74.mp3 +2020,audio_59_75.mp3 +"Presumption. Wherein, it was also pleased to observed that, presumption it was needed to be drawn by the court under S. 118 of negotiable instruments",audio_59_76.mp3 +"act, would oblige the court to presume that cheque had been issued for consideration and only contrary is prove, such presumption sch-9 10 c:1364/2010 would",audio_59_77.mp3 +"hold the ground. Wherein, it was also pleased to observed that, the test of proportionality should guide the construction and interpretation reverse onus clauses and",audio_59_78.mp3 +"the accused cannot be expected to discharge an unduly high standard of proof. In the absence of compelling justification, reverse onus clauses usually impose evidentiary",audio_59_79.mp3 +"burden and not a persuasive burden. It is settled position that, when accused has to rebut the presumption under S. 139 of NI Act ,",audio_59_80.mp3 +"the standard of proof doing so is that of ""preponderance of probabilities"". Therefore, if the accused is able to raise the probable defence, which creates",audio_59_81.mp3 +"a doubt or liability, the prosecution can fail. As clarified in the citation, the accused can rely on the materials submitted by the complainant in",audio_59_82.mp3 +"order to raise such a defence and it is conceivable that, in some cases the accused may not need to adduce evidence of his own.",audio_59_83.mp3 +"In the said dictum, it also observed that, the accused also may rely upon presumption of fact, for instance, those mentioned in section114 of the",audio_59_84.mp3 +"evidence act, to rebut the presumption arising under Ss. 118 and 139 of NI Act . 13. Accordingly, it made clear that, it is the",audio_59_85.mp3 +initial burden on the accused needs to prove his probable defence under the principal of preponderance of probabilities. It is capable to raise doubts as,audio_59_86.mp3 +"to the existence of legally recoverable debt or sch-9 11 c:1364/2010 liability, then whatever the statutory presumption supports the Cas. of complainant would fail. Therefore,",audio_59_87.mp3 +it is just and proper to appreciate the evidence of accused on priority coupled with appreciation of the defence taken during the course of cross,audio_59_88.mp3 +"of pw.1. Accordingly, the defence placed by the accused by way of cross-examining the pw.1 is to be appreciate to give effect to the probable",audio_59_89.mp3 +"defence, whether it goes to root of Cas. of complainant or it is not enough to rebut the statutory presumption enumerated under Ss. 118 and",audio_59_90.mp3 +139 of NI Act . In the cross-examination of pw.1 so many factors were extracted by the Adv. for accused during the cross of pw.1.,audio_59_91.mp3 +"14. No doubt, as discussed earlier from the begin itself the accused has attack on the claim of complainant by way of cause reply as",audio_59_92.mp3 +"per ex.p9. Wherein, he categorically denied the notice averments and he had transactions ever since 2006 and borrowed hand loan for the purpose of improve",audio_59_93.mp3 +"the business. In the reply, he has specifically contended that, wherein the accused taken defence that complainant was a tenant under his father and was",audio_59_94.mp3 +carrying on business in the name of m/s. Raghavendra marketing. During may 2008 he was requested the accused to obtain a cheque book from sbm,audio_59_95.mp3 +"bilekahalli branch, where the complainant also had an account he took that opportunity and misused the said cheque sch-9 12 c:1364/2010 book. Later during april",audio_59_96.mp3 +"2009 one Mr. premadas thakur dolumal, cloth merchants, residing at mamulpet, bengaluru approached him and stated that complainant had taken a loan of rs.10,00,000/- by",audio_59_97.mp3 +"giving 10 cheques belonging to m/s. Slv communication, since he was proprietor of that communication and he demanded to make the said payment of rs.10,00,000/-.",audio_59_98.mp3 +"There after he enquired with his banker as to whether any cheque book was issued to his account during the month of may 2008, it",audio_59_99.mp3 +was informed by the banker that cheque book bearing no.940601- 940700 was issued to his account on 22.05.2008 and the same was received by one,audio_59_100.mp3 +"sri.pradeep who was working for m/s. Raghavendra marketing.raghavendra vs. c. Mahesh on 23 october, 2020",audio_59_101.mp3 +"Investigation police filed charge-sheet in cr. No.77/2009 dated 02.05.2009 against complainant for the offences punishable u/S. 420, 468 and 471 of ipc. Before the police",audio_59_102.mp3 +the complainant had agreed that he had misused the cheques and he had obtained huge loan from accused and he is ready to settle the,audio_59_103.mp3 +same. Inspite of that the complainant has presented the cheques for encashment and obtained endorsement. He denied the signature and seal on cheques belongs to,audio_59_104.mp3 +him and he denied entire notice averments and not due of any legally recoverable debt to the complainant. On perusal of ex.p10 to sch-9 13,audio_59_105.mp3 +"c:1364/2010 12 it appears that against complainant cheque bounces are filed by the accused father and mother, where the complainant was faced the trail and",audio_59_106.mp3 +"on merits who acquitted for the offence punishable u/S. 138 of n.i. Act, on the ground that the accused has not produced any documentary evidence",audio_59_107.mp3 +to show that he is the sole owner of the slv communications. Admittedly the cheque was issued in favour of slv communications which could not,audio_59_108.mp3 +be encashed by some unknown person for want of funds. He has no locus-stand to file this complaint. In ex.p14 produced by the complainant it,audio_59_109.mp3 +"appears that Crl. Cas. was filed against complainant on the complaint of accused in central police bengaluru for the offence punishable u/sec.420 of ipc, where",audio_59_110.mp3 +the said Cas. is disposed on acquittal on the ground that the investigation officer was not seized the cheques in question from pradeepkumar guptha since,audio_59_111.mp3 +the said pradeep kumar guptha deposed that he had lost the cheque along with his car. Hence this court disbelieved the Cas. of prosecution that,audio_59_112.mp3 +the accused by retaining the entire cheque book has misused one of the cheques by issuing the same to pw-4 towards repayment of loan for,audio_59_113.mp3 +"rs.1,00,000/- as alleged. 15. The accused has also contended that, he taken initiation to lodge complaint against complainant in respect of falsified creation of cheques",audio_59_114.mp3 +"under consideration. More sch-9 14 c:1364/2010 categorically he contended, he not executed and issued questioned cheques in favour of complainant. The said defence could have",audio_59_115.mp3 +"been seen in the part cross-examination done by his Adv. to the pw.1. In the cross-examination of pw.1, he deposed that, he knows the accused",audio_59_116.mp3 +"through his father since 2000. He supplying materials for transport business of accused father, but the same was not pleaded in his complaint, notice and",audio_59_117.mp3 +"chief Aff. . He claiming rs.23,00,000/- due from the accused as the accused had issued 3 cheques during the month of may-2009, but he do not",audio_59_118.mp3 +"the exact date. Since from 2006-2008 the accused having a habit of borrowing loan from him and he paid rs.51,94,410/- through his account to accused",audio_59_119.mp3 +account. But he do not know exact date of lending of loan to the accused. 16. He admits that the accused lodged cheating Cas. against,audio_59_120.mp3 +"him at chamrajpet police station. In the said complaint the accused stated that, himself and accused having account in same bank as he gave letter",audio_59_121.mp3 +to bring cheque book to him. He received the cheque book from bank and not handed over the same to the accused. The police have,audio_59_122.mp3 +recorded his statement. In the said Cas. the bank manager and pradeep were gave their evidence before the court. He further admits that prior to,audio_59_123.mp3 +"issue legal notice to the accused by him, the accused had issued notice for bouncing sch-9 15 c:1364/2010 of 3 cheques for sum of rs.12,00,000/-",audio_59_124.mp3 +against him. He admits that the father and mother of accused also gave notice to him prior to ex.p6. He denied that he misused the,audio_59_125.mp3 +cheques of accused by forging the signature and seal on ex.p1 to 3 cheques. He denied that the signatures foumd on ex.p1 to p3 not,audio_59_126.mp3 +of accused and he himself filled the contents of cheues and presented into the bank. He has no objection to send ex.p1(a) to p3(a) to,audio_59_127.mp3 +"the handwriting experts.raghavendra vs. c. Mahesh on 23 october, 2020",audio_59_128.mp3 +Spice telecom and philips bulbs. At the time he having monthly income of rs.2 to 2.50 lakhs. To that effect he filed IT returns.,audio_59_129.mp3 +He was not disclosed the advanced loan amount to the accused in the said IT returns. He advanced loan for the first time in,audio_59_130.mp3 +the month of december 2006 to the accused. At the time he has not obtained any documents from the accused as security and after bouncing,audio_59_131.mp3 +of cheque or before issuance of notice he has not approached the accused. He has not taken any legal action against accused for balance amount,audio_59_132.mp3 +"of rs.15,00,000/- he admits ex.p1 to 3 pertains to same cheque book. He denied that by colluding bank manager even issuance of stop payment instruction",audio_59_133.mp3 +"he got endorsement ""funds insufficient"". He admits for deficiency of service of bank the accused was filed petition before consumer forum where the said sch-9",audio_59_134.mp3 +"16 c:1364/2010 Appl. is allowed and also imposed fine of rs.10,000/- to bank manager. He also appeared in the said Cas. and filed objection, he",audio_59_135.mp3 +admits that the bank manager challenged the said order by filing appeal before the state consumer forum and the said appeal was dismissed. 18. Further,audio_59_136.mp3 +"deposed that, he knows pradeep kumar guptha. He denied that, the said gupta deposed as a witness in Crl. Cas. filed by the accused against",audio_59_137.mp3 +"him. He denied that he issued cheque belong to accused bearing no.940601 to pradeep kumar guptha and borrowed rs.1,00,000/- hand loan as he approached the",audio_59_138.mp3 +"accused in the month of april 2009 and told the above said fact, at the time the accused had got knowledge about the misuse of",audio_59_139.mp3 +cheque by the complainant. He admits his deposition recorded in cc no.15434/2009 the same has been marked at ex.d1. Wherein he admits that he do,audio_59_140.mp3 +not know mahesh and he had no money transaction with mahesh. He admits reply notice it was issued by him the same is marked at,audio_59_141.mp3 +ex.d2. He admits that he has not produced documents to show that on which date through which cheque he paid amount to the accused. He,audio_59_142.mp3 +was a tenant under the father of accused from december 2005 till 2008. He had office at ground floor of accused father house. Accused borrowed,audio_59_143.mp3 +loan for the purpose of spice business. He denied that there is no necessity to accused to borrow loan in the sch-9 17 c:1364/2010 year,audio_59_144.mp3 +2006 to 2009 from him. He denied that he has no financial capacity to pay huge amount to the accused. He denied that he borrowed,audio_59_145.mp3 +"rs.12,00,000/- from the accused, rs.13,00,000/- from the mother of accused and also obtained loan from the father of accused. He admits that he obtained loan",audio_59_146.mp3 +from bull finance and he denied that he was defaulter and denied that he obtained loan from k.r. Paramahamsa and barkless bank and they filed,audio_59_147.mp3 +"Cas. against him. 19. In the further cross examination, he admits that, ex.p17 is issued based on ex.p16 by the bank. He prepared ex.p16 by",audio_59_148.mp3 +"looking his bank statement, but he has not produced bank statement. He denied that ex.p17 issued based on ex.p16 but not based on account statement.",audio_59_149.mp3 +"He admits at the time of issue of ex.p16, sbm merged with sbi. He denied that he created ex.p16 and 17 for the purpose of",audio_59_150.mp3 +"this Cas. . 20. On going through the testimony of pw.1, contrary to his pleading the pw.1 has deposed, on the day when he lent year",audio_59_151.mp3 +"to the accused, he got obtained the ex.p1to p3-cheques from the accused. Even he deposes, the accused by affixed his signature and by mention the",audio_59_152.mp3 +"date given the said cheques to the complainant. Thereby, the pw.1 has deposed that, the amount and signature only inserted by the accused, he was",audio_59_153.mp3 +"very much silent to the other writings made in the cheque. If sch-9 18 c:1364/2010 at all, the accused got executed and issued the cheques",audio_59_154.mp3 +"at ex.p1 to p3 in his favour,raghavendra vs. c. Mahesh on 23 october, 2020",audio_59_155.mp3 +"Pw.1 as to the alleged issuance and execution of cheques itself create doubt. The pw.1 does not remember, when he lent loan to the accused",audio_59_156.mp3 +"and when the accused got issued the cheques. 21. On perusal of admission of pw.1, it clearly demonstrates that the story of the complainant is",audio_59_157.mp3 +doubtful and he has not paid the amount as stated by him to the accused. The complainant has not produced any cogent or documentary evidence,audio_59_158.mp3 +"to show that he had sufficient income to lend a sum of rs.38,00,000/- from 2006 till 2008, since the complainant himself admits that he had",audio_59_159.mp3 +"income of rs.2 to 2.5 lakhs per month in the aforesaid year. On the basis of chief examination as well as cross-examination of pw.1, the",audio_59_160.mp3 +"Cas. of complainant creates doubt, whether the complainant lent rs.38,00,000/- to the accused during the year 2006 to 2008 in installments. On perusal of cross",audio_59_161.mp3 +"examination, it is unbelievable that pw.1 has given so much of amount by taking cheque, unless proving his capacity to lend rs.38,00,000/-, then Cas. of",audio_59_162.mp3 +"the complainant cannot be accepted. Further, he has not produced his personal bank account statement and pass book before the court. The sch-9 19 c:1364/2010",audio_59_163.mp3 +"evidence also discloses that, there is no legally recoverable debt of rs.23,00,000/- as claimed by the complainant under ex.p1 to p3 from the accused. The",audio_59_164.mp3 +"evidence also discloses that the complainant had no money transaction with the accused. It is the defence of the accused that, the complainant was a",audio_59_165.mp3 +"tenant of his father house and was carrying business himself and complainant had current account at sbm, belekalli branch. Hence he requested the complainant to",audio_59_166.mp3 +"obtain a cheque book for himself, in the month of may 2008. Later during the 2nd week on april 2009 premadas thakur dolumal (pradeep kumar",audio_59_167.mp3 +guptha) approached him and stated that the complainant has taken a loan giving the cheques belongs to m/S. slv communications as security. Later he enquired,audio_59_168.mp3 +with his bank as to whether any cheque book was issued to his account during the month of may 2008 the banker was informed him,audio_59_169.mp3 +that cheque book bearing No. 940601-940700 was issued to his account on 22.05.2008 and same was received by pradeep was working for m/s. Raghavendra marketing,audio_59_170.mp3 +and he misused the said cheque by creating the seal of m/s. Slv communication and also forged the signature of accused on ex.p1 to 3,audio_59_171.mp3 +and presented the bank for encashment. Before presenting the alleged cheque in question to bank of the complainant the accused on 22.04.2009 itself he gave,audio_59_172.mp3 +stop payment instruction with sch-9 20 c:1364/2010 respect to cheque book bearing no.940601-940700 and also filed police complaint against the complainant before the central police,audio_59_173.mp3 +"station, chamrajpet. After the inquiry the police have filed charge sheet for the offence punishable u/s 420 of ipc against the complainant. Subsequently the complainant",audio_59_174.mp3 +issued notice by presenting the cheques to the bank. The accused filed Appl. u/S. 293 of Cr.P.C. r/w S. 45 of,audio_59_175.mp3 +"indian evidence act to refer the cheque for handwriting expert, hyderabad, wherein the handwriting expert after verifying, conformed that disputed signature are not signed by",audio_59_176.mp3 +the accused. The same has been categorically admitted by the pw-1 during the course of cross examination. 22. The statutory presumption under sec.139 of n.i.,audio_59_177.mp3 +Act explains initial presumption infavour of the producer of an instrument. It says court shall presume that one instrument is handed over infavour of Anr. ,audio_59_178.mp3 +"person only for the purpose of recovery of existed debt. Therefore, the statutory presumption explained under sec.139 of n.i. Act always provides presumption infavour of",audio_59_179.mp3 +"the complainant. But, it does not mean that the statutory presumption cannot be rebutted. The said presumption can be rebutted at the strength of strong",audio_59_180.mp3 +"oral and documentary evidence. Let us see theraghavendra vs. c. Mahesh on 23 october, 2020",audio_59_181.mp3 +"sch-9 21 c:1364/2010 23. The counsel for the accused argued that the complainant who has lent rs.38,00,000/- to the accused without obtaining any documents except",audio_59_182.mp3 +"cheques in question without proving his source of income. The accused counsel further argued that the complainant not proved that he paid rs.38,00,000/- to the",audio_59_183.mp3 +"accused in his personal capacity. Hence, it is highly impossible in such a situation and burden is cast on the complainant to show the source",audio_59_184.mp3 +"of income. Hence, the accused rebutted the presumption lies in favour of complainant. The oral and documentary evidence of complainant is not corroborated and the",audio_59_185.mp3 +"same is consisting of No. of variations, which shows that the Cas. of complainant is false one. It is turn of the accused to raise",audio_59_186.mp3 +"probable defence. 24. To defeat the Cas. of the complainant, accused himself examined as d.w.1, he deposed that, he knows the complainant he was working",audio_59_187.mp3 +under his father client as dispatch clerk. Thereafter he left the job and started tata salt distributor at 9th block jayanagar and asked loan from,audio_59_188.mp3 +his father. Since his father working as distributor of tata indicom Co. after construction of new house the complainant taken lease of parking gowdown in,audio_59_189.mp3 +in ground floor and one bhk house in 4th floor from his father. Whenever the complainant borrowed loan from his father he used to issue,audio_59_190.mp3 +"sch-9 22 c:1364/2010 post dated cheque as security. He had current account at sbm, belekenahalli and complainant having account same branch on 22.04.2009 he was",audio_59_191.mp3 +facing 8 th semester final engineering exam he went to his father office to receive requisition letter for cheque at that time the complainant was,audio_59_192.mp3 +present he told that you attend the exam i will obtain the cheque book from the bank and taken the requisition letter from him. There,audio_59_193.mp3 +after he told him that no stock of cheque book as bank official told him to collect the same after 10 days. Thereafter the complainant,audio_59_194.mp3 +have not come to house of accused and for the due of his father the searching the complainant at the time in the year 2009,audio_59_195.mp3 +"pradeep kumar guptha came and told him that by issuing cheque as security the complainant borrowed rs.1,00,000/- him, a he lodged complaint against complainant before",audio_59_196.mp3 +central police station and an inquiry the bank official conformed that the worker of ragahavandra marketing by name pradeep received the cheque book belong to,audio_59_197.mp3 +slv communication as he gave stop instruction to his banker. There after accused complainant was issued ex.p6 notice. Prior to that his father and mother,audio_59_198.mp3 +"and himself filed 15 cheque bounce cases against complainant for due of rs.1,13,86,000/- the said cases are dismissed for technical grounds, they also prepared the",audio_59_199.mp3 +"appeal before Hon'ble HC , even stop payment sch-9 23 c:1364/2010 instruction the bank officials issued endorsement ""insufficient funds"" as he filed a petition before",audio_59_200.mp3 +"district consumer forum where the president after enquiry was allowed and ordered cost of rs.10,000/- to pay the accused by the bank manager. The manager",audio_59_201.mp3 +filed appeal before the state consumer forum the same was dismissed. He has not issued the alleged cheques in questions to complainant nor borrowed loan,audio_59_202.mp3 +from him. Ex.p1(a) to 3(a) signatures not belongs to him. He produced 12 documents at ex.d1 to d12. Ex.d1 is the c/c of deposition of,audio_59_203.mp3 +"complainant in cc no.15434/2009 filed by the father of accused, wherein he deposed that, he never had anyraghavendra vs. c. Mahesh on 23 october, 2020",audio_59_204.mp3 +Ƒ€‚ €□€€„□€… †‡€‡ˆ‰□€€ €€…□ 38 □‚‚ ‡€…š€€€ ƒƒˆ‡€…‹œ□€‚€…□€□□ ‹ˆ‡ƒžˆ œ€œ€□ †‡€‡ˆ €€…□ □□€ 9 □‚‚ ‡€ □€□ œ□□□‰ 2 ‘□‚€‚…š€€€ ƒ €…€ 5 □‚‚ˆ 1,audio_59_205.mp3 +‘□‚‚€€€ ’‹‹“ ’□‹“ ” ‚□□€‚□€•€‹“ ƒ□‹‡…□ ‹□€‡ˆ ‘□‚€‚…š€€€ ‚□€––ˆˆ‡€ ‹ˆ‡ ‘□‚€‚ —□€€□…□€ƒ„ ‚€‡ž €€€€ †‡€‡ˆ ”‡€ˆˆ ‹‹ €ƒ. 1364-2010‡□□ ††‚‡ž ˆ€□□‹‡€□□□€€□. €€€€ ’ƒˆ€ †‡€‡ˆ‰ □…,audio_59_206.mp3 +"□ƒ□€˜€ ™□€□□‡€…□ —š”€ □□□□€˜˜‡”‡ ™□□‡€…□ ‰””ˆ□€ ”□”ƒ€‡ □€„□□. Ex.d2 reply notice dated 04.05.2009 given by the complainant in respect of cheques bearing no.388535, 824157 and",audio_59_207.mp3 +"388534. Ex.d3 request letter given by accused to his banker. Ex.d4 is the conformation letter given by bank sbi, belekalli, where the certified that cheque",audio_59_208.mp3 +book from 940601 sch-9 24 c:1364/2010 to 940700 is issued to your account on 22.05.2008 the cheque book is received by sri. Pradeep was working,audio_59_209.mp3 +"for m/s raghavendra marketing. Ex.d5 is the complaint dated 01.05.2009. Ex.d6 is the requisition letter psi, central police station to include name of pradeepkumar guptha",audio_59_210.mp3 +in cr. No.77/09 as witness. Ex.d7 is the of FIR . Ex.d8 is the charge sheet. Ex.d9 is the c/c deposition of pradeep,audio_59_211.mp3 +in in cc No. 261/10 wherein he deposed that he was working with the accused in the year 2007 and 2008. On 25.02.2008 accused gave,audio_59_212.mp3 +him cheque leave to bring a cheque book from sbi belonging to the slv communication hold by mahesh. He received the cheque book containing 100,audio_59_213.mp3 +"leaves and endorsed same for having received the cheque book in the bank, the same was handed over to complainant. Ex.d10 is the deposition of",audio_59_214.mp3 +"pradeep kumar guptha no.261/10, he deposed that the accused gave a cheque to him for rs.1,00,000 towards the repayment of loan the said cheque was",audio_59_215.mp3 +belonging to sbm. He had kept to the said cheque in his car. Unfortunate one day the said car was missing which was parked in,audio_59_216.mp3 +"front of his house in the year 2009. Ex.d11 is the deposition of d.v. Hegede in cc no.261/10, he deposed that, who is the bank",audio_59_217.mp3 +"manager of sbm belekalli, where he deposed that c. Mahesh had sent Appl. seeking cheque book to operate his account through on pradeep who was",audio_59_218.mp3 +working in sch-9 25 c:1364/2010 a firm called raghavendra marketing belonging one raghavendra. After verifying signature he will issue cheque book. Ex.d12 is the order,audio_59_219.mp3 +"in appeal no.627/10 and.1520/2010 of the karnataka state consumer disputes redressal commission, bangalore, wherein the manager prepared appeal against the order of district consumer forum,",audio_59_220.mp3 +wherein there is a finding that there is a carelessness and negligence on the part of the op-1 when complainant has specifically instructed op-1 not,audio_59_221.mp3 +to honour those cheques what made op-1 to considered the 3 cheques issued in the month of may 2009 by op-2 is not unknown. Even,audio_59_222.mp3 +"if there is some dispute in between complainant and op 2 to 4 i.e., nothing to do with the op-1. Op-1 has to discharge its",audio_59_223.mp3 +obligation in our view it failed. The df throughly considered each and every aspect of the matter and rightly come to the conclusion that there,audio_59_224.mp3 +is a deficiency in service on the part of the op-1 the conclusion appears to the judicious on this grounds appeal is dismissed. 25. This,audio_59_225.mp3 +witness cross examined by the complainant nothing has been elicited from the mouth of dw-1 except the complainant was tenant under the father of the,audio_59_226.mp3 +"accused himself and complainant were selling spice Co. sim cards. From raghavendra marketing to slv communication rs.51,94,410/- amount was transferred through cheque has sch-9 26",audio_59_227.mp3 +c:1364/2010 been denied. He admits he is the proprietor of slv communications he filed Cas. against complainant as per ex.p13. The complainant working under the,audio_59_228.mp3 +"father of accused client. He admits the deposition as per ex.p15. He admits that, he knows the complainant since 2003. He denied that there was",audio_59_229.mp3 +"no money transaction after 2004-2005 between complainant and his father.raghavendra vs. c. Mahesh on 23 october, 2020",audio_59_230.mp3 +Morning 10.30 a.m. He went to his father office. He denied that he himself bring the cheque book through pradeep kumar. He admits after 2009,audio_59_231.mp3 +there is no transaction with himself and complainant . He admits his father and mother also filed cheque bounce against complainant. He denied that he,audio_59_232.mp3 +himself received the cheque book from pradeep kumar to escape from the liability deposing false evidence. He was not lodged complainant against pradeep kumar and,audio_59_233.mp3 +police was not seized the cheques based on ex.d5. He admits signature found in ex.d7 wherein he deposed that there is a recital that the,audio_59_234.mp3 +"complainant borrowed rs.10,00,000/- from pramedas thukur dolamal by issuing the 10 cheques belong to the accused. Thereafter, he knew that pradeep kumar guptha and dolamal",audio_59_235.mp3 +are one and the same. He has not examined dolamal as witness. He admits ex.p1 to 3 cheques belongs to his sch-9 27 c:1364/2010 account.,audio_59_236.mp3 +"He denied that the seal and signature found on ex.p1 to 3 belongs to him. 27. One witness by name deepa examined dw-2, she deposed",audio_59_237.mp3 +"that he is working sbi, vijaya bank layout, as manager, she produced stop payment entry and specimen signature computerized screen shot at ex.d16 and 17.",audio_59_238.mp3 +On the consent of counsels appearing for parties the same was marked at ex.d13 and 14 instead of ex.d16 and 17. There is a differs,audio_59_239.mp3 +"of signature and seal on ex.p1(a) and ex.p14. Based on ex.p16, p17 was issued from their bank. On perusal of ex.d13 there is a entry",audio_59_240.mp3 +"of stop payment. 28. On the Appl. of accused ex.p1 to 3 cheques were sent to the handwriting expert central forensic lab hyderbad, where the",audio_59_241.mp3 +"expert gave opinion that the person who wrote the blue enclosed signatures, stamped and marked s1 to s80 and a1 to a13 did not write",audio_59_242.mp3 +"the red enclosed signatures similarly stamped and marked q1, q2 and q3. This witness examined through court commissioner as dw-3 and marked fsl report at",audio_59_243.mp3 +ex.d15 instead of ex.d18. He deposed that he received this Cas. documents on 18.06.2019 containing questioned and admitted signatures which were enclosed by him with,audio_59_244.mp3 +"red pencil and marked q1, q2 and q3 as well as specimen and admitted signatures of one sri mahesh, chandrshekhar reddy which were enclosed by",audio_59_245.mp3 +him with blue sch-9 28 c:1364/2010 pencil and given markings s1 to s80 and a1 to a13. He examined these documents by comparing the writing,audio_59_246.mp3 +habit observed in the specimens and admitted with that of the questioned based on the well established principle to like material with like comparison using,audio_59_247.mp3 +necessary scientific aids available in his laboratory and arrived at the opinion. 29. This witness cross examined but nothing has been elicited from the mouth,audio_59_248.mp3 +"of dw-3 that the q1 to q3 and a1 to a13 , s1 to s80 belong to one person, witness voluntaries that there are natural",audio_59_249.mp3 +variations in a1 to a3 and s1to s80 which is indication of genuine handwriting and further questioned q1 to q3 are fundamental different. On perusal,audio_59_250.mp3 +of evidence of expert reveals that his opinion is based on cumulative consideration on various similarities as well as differences occurring between the questioned and,audio_59_251.mp3 +standards. And expert considered all parameters and used scientific tool available in their lab along with his 21 years of experience. He deposed that the,audio_59_252.mp3 +"questioned co-respond among each other to the extent of superimposition, revealing a complete lack of natural variations.raghavendra vs. c. Mahesh on 23 october, 2020",audio_59_253.mp3 +"At ex.p1(a) to p3(a), other writing in the cheque are in different hand writing and ink, he volunteers that, there is differences in sch-9 29",audio_59_254.mp3 +"c:1364/2010 hand writing. Thereby, he categorically admitted the signature and hand writing in the cheque are in different; therefore, it is him to explain. If",audio_59_255.mp3 +"at all, accused himself got executed and issued the cheque in favour of him definitely, it should be in his hand writing. It is not",audio_59_256.mp3 +"his oral say that, it is post date cheque was given by the accused on one day and later fillings are made by him on",audio_59_257.mp3 +"the different date. Therefore, it is require to him to explain the due execution and issuance of cheques. In his cross-examination he also admitted, the",audio_59_258.mp3 +"said ex.p1to p3-cheques it also made mentioned that, account pay and the said cheques are pertaining to current account of the slv communications. If at",audio_59_259.mp3 +"all, the cheques pertaining to the current account of the accused, it can be use for the purpose of business and though there is insufficient",audio_59_260.mp3 +"fund in the such account, there may be chance of credit will made on such cheques. But the pw.1 has denied the said suggestion. It",audio_59_261.mp3 +"is equally important to verity the ex.p1 to p3 cheques. On close perusal of ex.p1 to p3-cheques, apart form the clear cut admission made by",audio_59_262.mp3 +"the pw.1 as to difference of hand writing in the signature of the accused as well as other writings, he failed to explain, why the",audio_59_263.mp3 +"different signature in different hand writing is found in the cheques. The ex.p1 to p3-cheques, complainant has contended, it is of the accused. Likewise, in",audio_59_264.mp3 +the cheques it is mentioned as m/s ragavendra marketing in sch-9 30 c:1364/2010 different hand writing and ink. Unmarked alleged name in the style of,audio_59_265.mp3 +"signature is altogether different from the signature at ex.p1(a) to p3(a). The complainant has not explained, who put the signature altogether different from the signature",audio_59_266.mp3 +"of the accused as found in plea as well as 313 of cr,p.c. Statement. Therefore, there is some sound reason in making suggestion from the",audio_59_267.mp3 +"side of accused. Pw.1 has raised in his reply contention at ex.p9 that, there was strong doubt as to misuse of cheques of the accused.",audio_59_268.mp3 +But the different signature and two different ink and style are also one of the strong circumstances as to misuse of cheques of the accused.,audio_59_269.mp3 +"In that regard, the complainant has not placed his satisfactory explanation with regard to due execution and issuance of cheques. Pw.1 has utterly failed to",audio_59_270.mp3 +"prove that, the accused got issued the cheques on due execution for repayment of loan of rs.23 lakhs. Thereby, the accused has successfully proved through",audio_59_271.mp3 +"the mouth of pw.1 and accused has not issued the questioned cheques to the complainant, therefore, the hand writing and different signature are found therein.",audio_59_272.mp3 +"In that regard, no satisfactory explanation is forth coming from the side of complainant. 31. It is well settled law that the act raises two",audio_59_273.mp3 +"presumptions. Firstly, with regard to the passing of consideration as contained in sec.118(a) of the act, therein sch-9 31 c:1364/2010 and secondly a presumption that",audio_59_274.mp3 +the holder of the cheque receiving the same nature referred to the sec.139 discharged in whole or in part any debt or other liability. Both,audio_59_275.mp3 +"presumptions are rebuttal in nature. Having regard to the definition of terms proved and disproved as contained in sec.3 of the evidence act, the burden",audio_59_276.mp3 +upon the prosecution visa- versa an accused was only expected to rebut the presumption of law on the scale of preponderance of probabilities and was,audio_59_277.mp3 +"not required to prove his defence beyond reasonable doubt. The chief Aff. as well as cross-examination of pw-1, there are No. of discrepancies. Hence, the",audio_59_278.mp3 +Cas. of complainant creates doubt with regard to the existence of liability of the accused to the complainant. When once such evidence is placed by,audio_59_279.mp3 +"way of cross-examination of pw-1, then, complainant must be in a position to show the existence of legally recoverable debt as on the date issuance",audio_59_280.mp3 +"of cheque. Therefore, i am of the view that the complainant has utterly failed to prove that ex.p1 cheque has been issued towards legally recoverable",audio_59_281.mp3 +"debt. Onraghavendra vs. c. Mahesh on 23 october, 2020",audio_59_282.mp3 +That ex.p1 cheque was not issued by the accused to clear his debt owed to the complainant. 32. The learned counsel for the accused in,audio_59_283.mp3 +support of his defence has relied the following citations reported in: sch-9 32 c:1364/2010 1. (2013)3 SC cases 86 in between vijay v/s laxman,audio_59_284.mp3 +"and Anr. , presumption in favour of holder of cheque as to consideration having been paid by holder and cheque having been received for discharge of",audio_59_285.mp3 +"debt owed to holder - scope and rebuttability of presumption. 2.laws (ker)2000 9 21 in the Cas. of sasseriyil joseph v/s. Devassia, wherein it is",audio_59_286.mp3 +"held that, S. 138 is attracted only if the cheque is issued for the discharge of legally enforceable debt or other liability. 3. Scc 2015(1)",audio_59_287.mp3 +"99, k. Subramani vs. k. Damodara naidu, wherein (2015) 1 SC cases 99 held that, debt, financial and monetary laws - NI Act ,",audio_59_288.mp3 +"1881 - ss.138, 118 and 139 - dishonour of cheque - legally recoverable debt not proved as complainant could not prove source of income from",audio_59_289.mp3 +"which alleged loan was made to appellant-accused-presumption in favour of holder of cheque, hence held, stood rebutted-acquittal restored. Trial court rightly came to conclusion that",audio_59_290.mp3 +complainant had no source of income to elnd a sum of rs.14 lakhs to accused and he failed to prove that there was any legally,audio_59_291.mp3 +"recoverable debt payable by accused to him. 4. 2014 (3) dcr 760 in the Cas. of vijaya kundanlal sharma v/s satyawan bhikaji jadhav & Ors. ,",audio_59_292.mp3 +wherein it is held that un accounted cash amount - liability to repay - sch-9 33 c:1364/2010 held - liability to repay unaccounted cash amount,audio_59_293.mp3 +is not legally enforceable liability within the meaning of explanation to S. 139 of n.i. Act. 5. Air 2008 SC 1325 in between krishna,audio_59_294.mp3 +"janardhan bhat v/s dattatraya g. Hegde, wherein, it is held that, (a) ""NI Act (26 of 1881), S. 139 - presumption under - s.139",audio_59_295.mp3 +merely raises presumption in favour of holder of cheque that same has been issued for discharge of any debt or other liability - existence of,audio_59_296.mp3 +"legally recoverable debt - is not a matter of presumption u/s.139. (b) NI Act (26 of 1881), s.138, s.139 - dishonour of cheque -",audio_59_297.mp3 +defence - proof - accused not required to step into witness-box - he may discharge his burden on basis of materialsraghavendra vs. c. Mahesh on,audio_59_298.mp3 +"23 october, 2020",audio_59_299.mp3 +"Determined in view of other evidences on record. 6. Appeal (crl.) 1748/1996 c.antony -vs. - k.g.raghavan nair, wherein it is held that where the trial",audio_59_300.mp3 +"court passed the acquittal order under s.138 of n.6i.act on the basis of its findings on a No. of points , held, the HC ",audio_59_301.mp3 +erred in not applying its mind to the said points and sch-9 34 c:1364/2010 reserving the acquittal order on totally different grounds- and reversing the,audio_59_302.mp3 +"acquittal order on totally different grounds. 7. 2009 cri.l.J. 3777 in the Cas. of sanjay mishra vs. Ms. kanishka kapoor @ nikki and anr, wherein",audio_59_303.mp3 +it is held that the amount advanced by complainant to accused was unaccounted cash-it was not disclosed in IT return- liability to repay unaccounted,audio_59_304.mp3 +cash amount cannot be aid to be legally enforceable liability without meaning of explanation to s.138-acquittal fo accused proper. 33. The rulings relied by the,audio_59_305.mp3 +"learned counsel for the accused coupled with the oral and documentary evidence, the accused has given rebuttal evidence to the Cas. of the complainant. There",audio_59_306.mp3 +"are No. of discrepancies in his pleading as well as evidence of pw.1. In the pleading as well as cross of pw.1, there is no",audio_59_307.mp3 +"mentioning of alleged request of pay the loan as well as the particulars of mobilization of fund including alleged lent with its better particulars, as",audio_59_308.mp3 +"to time, date and place is not been satisfactorily explained by the complainant. Though, he tendered for cross, it is not enough to demonstrate his",audio_59_309.mp3 +"Cas. , but his evidence contradicts. The evidence of pw.1 is contradicts as to alleged issuance of cheque from the point of his own pleading. If",audio_59_310.mp3 +"at all, the post dated cheques were issued in the year 2009 i.e., the transactions held ever since 2006 after lapse of three years sch-9",audio_59_311.mp3 +"35 c:1364/2010 from the date of borrowal of loan, i.e., during the year 2009. But the very alleged issuance of post dated: 27 to 29.05.2009",audio_59_312.mp3 +cheques after lapse of 3 years from the alleged date of borrowal of loan itself creates doubt. The very pleading as well as the evidence,audio_59_313.mp3 +"of pw.1 is the mixture of contradictory statement omission and development. Therefore, the very evidence of pw.1 rather support his Cas. , it creates doubt, as",audio_59_314.mp3 +to the bonafidness and genuineness of alleged transaction held between complainant and accused. The accused from the inception by way of caused reply as per,audio_59_315.mp3 +"ex.p9 as well as the ex.d12, got attack on the claim of complainant, that the cheques were dishonoured for insuffocent funds instead of stop payment",audio_59_316.mp3 +"instruction from the accused much earlier to presenting of cheques to the bank. Despite that, the complainant has not vigilant in prove his Cas. by",audio_59_317.mp3 +making necessary pleading as well as prove the Cas. with corroborative evidence. The accused has successfully proved his probable defence by way of cross-examining the,audio_59_318.mp3 +"pw.1 and adducing the evidence of bank manager as well as hand writing experts and destroyed the very Cas. of complainant. Hence, the accused is",audio_59_319.mp3 +"entitled for benefit of doubt for acquittal. 34. At this stage, this court also relies upon Anr. decision reported in air 2007 noc 2612 a.p.",audio_59_320.mp3 +"Sch-9 36 c:1364/2010 (g.veeresham v/s. Shivashankar and Anr. ). Wherein, the Hon'ble court has held as under: ""NI Act (26 of 1881). S. 138 dishonour",audio_59_321.mp3 +"of cheque - presumptions available to complainant unders118 and s139 of act -raghavendra vs. c. Mahesh on 23 october, 2020",audio_59_322.mp3 +"Loan taken from complainant. However, no material placed on record by complainant to prove alleged lending of hand loan said fact is sufficient to infer",audio_59_323.mp3 +"that, accused is liable to rebut presumptions available in favour of complainant under Ss. 118 and 139 of act, order acquitting accused for offence under",audio_59_324.mp3 +"s.138 proper"". 35. The principle of law laid down in the above decisions is applicable to the facts of this Cas. . In the Cas. on",audio_59_325.mp3 +"hand also, as discussed above, the complainant has failed to prove with cogent evidence as to the lending of loan of rs.23 lakhs to the",audio_59_326.mp3 +"accused. Thus, that fact itself is sufficient to infer that, accused is able to rebut presumptions available in favour of complainant under Ss. 118 and",audio_59_327.mp3 +"139 of the NI Act . 36. In this Cas. on hand also, on the lack of the complaint failed to prove the alleged loan",audio_59_328.mp3 +"transaction, it can gather the probability that, he is not liable to pay ex.p1 to p3 cheques amount of rs.23 lakhs and it is not",audio_59_329.mp3 +"legally recoverable debt. So, the burden is on the complainant to prove strictly with sch-9 37 c:1364/2010 cogent and believable evidence that, the accused has",audio_59_330.mp3 +"borrowed the cheque amount and he is legally liable to pay the same. Just because, there is a presumption under section139 of NI Act ,",audio_59_331.mp3 +"that, will not create any special right to the complainant so as to initiate a proceeding against the drawer of the cheque, who is not",audio_59_332.mp3 +"at all liable to pay the cheques amount. The accused has taken his defence at the earliest point of time, while record accusation and statement",audio_59_333.mp3 +"under sec313 of Cr.P.C. by way of denial. The evidence placed on record clearly probablize that, complainant has failed to prove that,",audio_59_334.mp3 +"accused issued the cheques for discharge of liability of rs.23 lakhs. Hence, complainant has failed to prove the guilt of accused for the offence punishable",audio_59_335.mp3 +"under section138 of NI Act . 37. Apart from that, in a decision reported in (2015) 1 SC cases 99 in this Cas. of",audio_59_336.mp3 +"k.subramani /vs/ k.damodara naidu, the Hon'ble apex court held that: ""the Hon'ble apex court confirmed the judgment of trial court acquitting the accused on the",audio_59_337.mp3 +ground of capacity to pay the amount of cheque. In the above said ruling the trial court acquitted the accused on the ground that the,audio_59_338.mp3 +"complainant had no source of income to lend sum of rs.14,00,000/-. In the appeal the 1st appellate court set aside the order and remanded the",audio_59_339.mp3 +matter to the trial court to give an opportunity sch-9 38 c:1364/2010 to complainant to prove the same. The accused went in appeal before the,audio_59_340.mp3 +Hon'ble apex court and the Hon'ble apex court has set aside the order of the 1st appellate court and upheld the acquittal order passed by,audio_59_341.mp3 +"the trial court"". 38. In the Cas. on hand, accused has questioned the financial capacity of complainant. Complainant has not produced any document to show",audio_59_342.mp3 +"his financial capacity to lend an amount of rs.23lakhs to accused. When complainant has failed to prove the transaction alleged in the complaint, then the",audio_59_343.mp3 +"question of issuing the cheques for discharge of rs.23 lakhs does not arise. The evidence placed on record clearly probablize that, complainant has failed to",audio_59_344.mp3 +"prove that, accused issued the cheque for discharge of liability of rs.23lakhs. Hence, complainant has failed to prove the guilt of accused forraghavendra vs. c.",audio_59_345.mp3 +"Mahesh on 23 october, 2020",audio_59_346.mp3 +"39. From the above elaborate discussions, it very much clear that, the complainant has failed to adduce cogent and corroborative evidence to show that, accused",audio_59_347.mp3 +"has issued cheques ex.p1to p3 in discharge of his legally payable debt for valid consideration. Hence, rebutted the legal presumptions under sections139 and 118 of",audio_59_348.mp3 +NI Act in favour of the accused. Sch-9 39 c:1364/2010 40. The sum and substances of principles laid down in the rulings referred above,audio_59_349.mp3 +"are that, once it is proved that, cheque pertaining to the account of the accused is dishonoured and the requirements envisaged under Ss. 138 of",audio_59_350.mp3 +"(a) to (c) of NI Act is complied, then it has to be presumed that, cheques in question was issued in discharge of legally",audio_59_351.mp3 +recoverable debt. The presumption envisaged under S. 138 of NI Act is mandatory presumption and it has to be raised in every cheque bounce,audio_59_352.mp3 +"cases. Now, it is settled principles that, to rebut the presumption, accused has to set up a probable defence and he need not prove the",audio_59_353.mp3 +"defence beyond reasonable doubt. 41. Thus, on appreciation of evidence on record, i hold that, the complainant has failed to prove the Cas. by rebutting",audio_59_354.mp3 +the presumption envisaged under Ss. 118 and 139 of NI Act . The complainant has failed to discharge the initial burden to prove his contention,audio_59_355.mp3 +"as alleged in the complaint. Hence, the complainant has not produced needed evidence to prove that, amount of rs.23lakhs legally recoverable debt. Therefore, since the",audio_59_356.mp3 +"complainant has failed to discharge the reverse burden, question of appreciating other things and weakness of the accused is not a ground to accept the",audio_59_357.mp3 +claim of the complainant in its entirety without the sch-9 40 c:1364/2010 support of the substantial documentary evidence pertaining to the said transaction. The complainant,audio_59_358.mp3 +"fails to prove his Cas. beyond all reasonable doubt. As discussed above, the complainant has utterly failed to prove the guilt of the accused for",audio_59_359.mp3 +"the offence punishable under S. 138 of NI Act . 42. Therefore, on the basis of aforesaid decisions coupled with the defense taken by the",audio_59_360.mp3 +"accused, those decisions are squarely applicable to the present Cas. on hand. The accused has given rebuttal evidence to the Cas. of the complainant. The",audio_59_361.mp3 +"complainant failed to give corroborative evidence. Hence, the Cas. of the complainant creates doubtful. It is burden on the complainant to washout all these doubts,",audio_59_362.mp3 +but complainant failed to do so. When such being the Cas. based on the presumption and assumption this court cannot hold that accused has committed,audio_59_363.mp3 +"the offence as alleged by the complainant. In view of the above fact, i am of the view that complainant has failed to prove that",audio_59_364.mp3 +"the cheque has been issued for legally recoverable debt. Hence, i answer point no.1 in the negative. Point no.2: 43. In view of the above",audio_59_365.mp3 +"findings on point no1, i proceed to pass the following: sch-9 41 c:1364/2010raghavendra vs. c. Mahesh on 23 october, 2020",audio_59_366.mp3 +acting under S. 255(1) Cr.P.C. the accused is hereby acquitted for the offence punishable under S. 138 of NI Act . The,audio_59_367.mp3 +bail bond and surety bond of the accused is hereby stand canceled. The cash security amount is ordered to be returned to the accused after,audio_59_368.mp3 +"appeal period is over. (dictated to the stenographer directly over computer, typed by her, corrected and then pronounced by me in the open court on",audio_59_369.mp3 +"this the 23rd day of october 2020.) (abdul khadar) judge , court of small causes, & acmm, bengaluru. Annexure list of witnesses examined on behalf",audio_59_370.mp3 +of complainant: pw.1 : s.n. Raghavendra list of documents marked on behalf of complainant: ex.p1 to 3 : cheques ex.p1(a) &3(a) : signature of accused,audio_59_371.mp3 +ex.p4 to 5 : endorsements ex.p6 : legal notice ex.p7 : postal receipt ex.p8 : postal Dept. issued settled reply ex.p9 : reply notice ex.p10,audio_59_372.mp3 +: c/c of judgment in cc no.15433/2009 ex.p11 : c/c of judgment in cc no.15434/2009 ex.p12 : c/c of judgment in cc no.15435/2009 sch-9 42,audio_59_373.mp3 +c:1364/2010 ex.p13 : c/c of deposition in cc no.5433/2009 ex.p14 : c/c of judgment in cc no.261/2016 ex.p15 : document ex.p15(a) : signature of accused,audio_59_374.mp3 +ex.p16 : confirmation letter ex.p17 : whomsoever it may concern list of witnesses examined on behalf of accused: dw.1 : c mahesh dw.2 : deepa,audio_59_375.mp3 +"dw.3 : c. Rajesh list of documents marked on behalf of accused:raghavendra vs. c. Mahesh on 23 october, 2020",audio_59_376.mp3 +Letter dated 22.04.2009 ex.d4 : c/c of letter dated 25.04.2009 ex.d5 : c/c of complaint dated 01.05.2009 ex.d6 : c/c of letter dated 05.05.2009 ex.d7,audio_59_377.mp3 +: c/c of FIR ex.d8 : c/c charge sheet ex.d9 : c/c of deposition in cc No. 261/10 ex.d10 : c/c of deposition,audio_59_378.mp3 +in cc no.261/10 ex.d11 : c/c of deposition in cc no.261/10 ex.d12 : c/c of judgment in appeal no.627/10 and appeal no.1520/2010 ex.d13 : stop,audio_59_379.mp3 +"payment entry ex.d14 : specimen signature computerized copy ex.d15 : fsl report (abdul khadar) judge , court of small causes, & acmm bengaluru.raghavendra vs. c.",audio_59_380.mp3 +"Mahesh on 23 october, 2020",audio_59_381.mp3 +"H marutheesh vs. m krishnappa on 27 june, 2023 author: ravi v. Hosmani bench: ravi v. Hosmani 1 in the HC of karnataka at",audio_60_1.mp3 +"bengaluru dated this the 27th day of june, 2023 before the hon'ble mr. J. ravi v. Hosmani m.f.a.no.6126 of 2022 (mpa) c/w m.f.a.no.6685 of 2022",audio_60_2.mp3 +"(mpa) in m.f.a.no.6126/2022: between: k. Ravishankar, S/O kenchappa, aged about 48 years, r/of saptagiri badavane, ward no.31, sira town, sira - 572 137, tumkur",audio_60_3.mp3 +"district. ...appellant [by sri. D.n.nanjunda reddy, sr. Counsel for Ms. . Sruti c. Chaganti, Adv. (ph)] and: 1. M. Krishnappa, S/O mudlagiriyappa, aged about 54",audio_60_4.mp3 +"years, r/at no.404, bhovi colony, ranganathanagar, behind durga iti college, sira town, sira-572 137, tumkur district. 2. H. Marutheesh, S/O hanumaiah, aged about 48",audio_60_5.mp3 +"years, 2h marutheesh vs. m krishnappa on 27 june, 2023",audio_60_6.mp3 +"soppinahatti sira town sira-572137 tumkur district. 3. Adil pasha, S/O abdul jabeel, aged about 38 years, r/at ladpur, sira town, sira-572 137, tumkur district.",audio_60_7.mp3 +"4. S praveenkumar, S/O srinivas, aged about 30 years, r/of jyothi nagar, sira town, sira-572 137, tumkur district. 5. Geetha m W/O ramesh",audio_60_8.mp3 +"b., aged about 32 years, r/of ladpur, sira town, sira-572 137, tumkur district. 6. K babu, S/O late krishnappa, aged about 41 years, r/of",audio_60_9.mp3 +"ladpur, sira town, sira-572 137, tumkur district. 7. Mohammad hanif, S/O mohammad, wajid sab, aged about 34 years, r/of ward no.9, spooinahatti sira town,",audio_60_10.mp3 +"3 sira-572 137, tumkur district. 8. S r lakshminarayan, respondent nos.2 to 8 are S/O n ramaraju, deleted v/o dt. 05.09.2022 aged about 40",audio_60_11.mp3 +"years, r/of jyothi nagar sira town, sira-572 137,h marutheesh vs. m krishnappa on 27 june, 2023",audio_60_12.mp3 +"9. The Govt. karnataka, urban development Dept. , m s building, bengaluru-560 001, rep. By its principal secretary. 10 . Deputy commissioner, tumkur-572 101, tumkur district.",audio_60_13.mp3 +"11 . The tahsildar, mini vidhana soudha, sira taluk office, sira-572 137, tumkur district. 12 . City municipal council, sira, sira town main road, sira-572",audio_60_14.mp3 +"137, rep. By its commissioner. 13 . The karnataka state, election commission, no.8, 1st floor, cunningham road, bangalore-560 052, rep. By its commissioner. 14 .",audio_60_15.mp3 +"The chief election officer, returning officer, sira, sira-572 137, 4 tumkuru district, rep. By tahsildar, sira. ...respondents (by sri. Prabhugoud b. Tumbigi, Adv. for r1",audio_60_16.mp3 +"(ph); sri. Vivek S. reddy, sr. Counsel for sri. K.n.subba reddy, Adv. for r2 (ph); sri. Ramesh gowda a., aga for r9 to r11 (ph);",audio_60_17.mp3 +"sri. S. raju, Adv. for r12 (ph); smt. Vaishali hegde, Adv. for r13 & r14 (ph); r3 to r8 are deleted v/o dated 05.09.2022] in",audio_60_18.mp3 +"m.f.a.no.6685/2022: between: h.marutheesh, S/O hanumaiah, aged about 48 years,h marutheesh vs. m krishnappa on 27 june, 2023",audio_60_19.mp3 +"Soppunahatti, sira town, sira-572 137, tumkuru district. ...appellant [by sri. Vivek S. reddy, sr. Counsel for sri. K.n.subba reddy, Adv. (ph)] and: m. Krishnappa, 1.",audio_60_20.mp3 +"S/O mudlagiriyappa, aged about 54 years, r/at no.404, bhovi colony, ranganathanagar, behind durga iti college, sira town, sira-572137, tumkur district. 5 2. K ravishankar,",audio_60_21.mp3 +"S/O kenchappa, aged about 48 years, r/o saptagiri badavane, ward no.31, sira town, sira-572137, tumkur district. 3. Adil pasha, S/O abdul jabeel, aged",audio_60_22.mp3 +"about 38 years, r/at ladpur, sira town, sira-572137, tumkur district. 4. S. praveenkumar, S/O srinivas, aged about 30 years, r/of jyothi nagar, sira town,",audio_60_23.mp3 +"sira-572 137, tumkur district. 5. Geetha m., W/O ramesh b., aged about 32 years, 6. K babu,h marutheesh vs. m krishnappa on 27 june,",audio_60_24.mp3 +2023,audio_60_25.mp3 +"aged about 41 years, respondents no.5 & 6 are r/a ladpur, sira town, sira-572 137, tumkur district. 6 7. Mohammad hanif, S/O mohammad, wajid",audio_60_26.mp3 +"sab, aged about 34 years, r/of ward no.9, soppinahatti sira town, sira-572 137, tumkur district. 8. S r lakshminarayan, S/O n ramaraju, aged about",audio_60_27.mp3 +"40 years, r/of jyothi nagar, sira town, sira-572 137, tumkur district. 9. The Govt. karnataka, urban development Dept. , m s building, bengaluru-560 001, rep. By",audio_60_28.mp3 +"its principal secretary. 10 . Deputy commissioner, tumkur-572 101, tumkur district. 11 . The tahsildar, mini vidhana soudha, sira taluk office, sira-572 137, tumkur district.",audio_60_29.mp3 +"12 . City municipal council, sira, sira town main road, sira-572 137, rep. By its commissioner. 13 . The karnataka state election commission, no.8, 1st",audio_60_30.mp3 +"floor, cunningham road, 7h marutheesh vs. m krishnappa on 27 june, 2023",audio_60_31.mp3 +"rep. By its commissioner. 14 . The chief election officer, returning officer, sira, sira-572 137, tumkuru district, rep. By tahsildar. ...respondents (by sri. Prabhugoud b.",audio_60_32.mp3 +"Tumbigi, Adv. for r1 (ph); sri. D.n.nanjunda reddy, sr. Counsel for Ms. . Sruti c. Chaganti, Adv. for r2 (ph); sri. Ramesh gowda a., aga for",audio_60_33.mp3 +"r9 to r11 & r14 (ph); sri. S. raju, Adv. for r12 (ph); smt. Vaishali hegde, Adv. for r13 (ph)] this m.f.a no.6126/2022 is filed",audio_60_34.mp3 +"under S. 27 of the karnataka municipalities act, 1964, against the judgment dated 26.08.2022 passed in e.p.no.1/2022 on the file of the Sr. Civ. judge,",audio_60_35.mp3 +"jmfc., sira, partly allowing the petition filed u/s 21 and 23 of karnataka municipalities act, 1964 r/w rule 69 of the karnataka municipalities act, 1977.",audio_60_36.mp3 +"This m.f.a no.6685/2022 is filed under S. 27 of the karnataka municipalities act, 1964, against the judgment dated 26.08.2022 passed in e.p.no.1/2022 on the file",audio_60_37.mp3 +"of the Sr. Civ. judge, jmfc., sira, partly allowing the petition filed u/s 21 and 23 of karnataka municipalities act, 1964 r/w rule 69 of",audio_60_38.mp3 +"the karnataka municipalities act, 1977. These appeals having been heard and reserved for judgment on 16.11.2022, this day, the court pronounced the following: 8 judgment",audio_60_39.mp3 +"challenging impugned order dated 26.08.2022 passed by Sr. Civ. judge, jmfc., sira, in e.p.no.1/2022, these appeals are filed. 2. Appellant in mfa no.6126/2022 was respondent",audio_60_40.mp3 +"no.1, while appellant in mfa no.6685/2022 was respondent no.2 in e.p.no.1/2022. Respondent no.1 in both appeals herein was petitioner and respondents no.2 to 14 herein",audio_60_41.mp3 +"were respondents no.2 to 14 in e.p.no.1/2022 respectively. For sake of convenience, they will hereinafter be referred to as per their ranks in election petition.h",audio_60_42.mp3 +"marutheesh vs. m krishnappa on 27 june, 2023",audio_60_43.mp3 +"Municipalities act, 1964 (hereinafter referred to as 'km act'), r/w rule 69 of karnataka municipalities rules, 1977 (for short 'km rules'), for following reliefs:",audio_60_44.mp3 +"a) declare candidature of respondent no.1 (sri k. Ravishankar) in respect of ward no.9 of city municipal council, sira, as null and void and not",audio_60_45.mp3 +in accordance with km act and rules; and b) direct respondent authorities to hold election to ward no.9 of city muncipal council afresh etc. 4.,audio_60_46.mp3 +"In petition, it was stated that as per directions of respondent no.9 - Govt. of karnataka, respondent no.13 - karnataka state election commission ('state e.c.'",audio_60_47.mp3 +"for short) issued calendar of events dated 29.11.2021 for conduct of elections to council of respondent no.12 - city municipal council (""cmc"" for short). And",audio_60_48.mp3 +"that ward no.9 was notified for contest from general category candidates, on 27.12.2021. It was further stated that being registered voter in cmc and eligible,",audio_60_49.mp3 +filed nomination along with declaration to contest election for post of councilor from ward no.9. It was stated that respondents no.1 to 8 had also,audio_60_50.mp3 +"filed nominations/declarations in respect of same ward. 5. It was stated that as per circular issued by state e.c., every candidate was required to file",audio_60_51.mp3 +"declaration declaring his source of income, Crl. Cas. history, assets and liabilities etc., upto date at time of filing nomination, in compliance with S. 15",audio_60_52.mp3 +"of km act r/w rule 15 of km rules. It was stated that respondent no.1 had suppressed true facts and filed false declaration, knowingly",audio_60_53.mp3 +"concealing true facts. It was stated though respondent no.1 was involved in many Crl. cases and convicted in few, was holding 500 kgs of gold",audio_60_54.mp3 +"disproportionate to his rental income of only rs.3,60,000/- and therefore false. It was stated that authorities failed to verify correctness of information/declaration and illegally accepted",audio_60_55.mp3 +his nomination and permitted ineligible candidate to contest election. 6. Petitioner also alleged that respondent no.1 had used undue influence in collusion with block level,audio_60_56.mp3 +"officers and returning officer, cmc and got deleted some voters in ward no.9 and got inserted names of Ors. , who were not in it without",audio_60_57.mp3 +"address proof etc., which amounted to corrupt practice. 7. It was stated that petitioner had secured 381 votes as against 401 votes secured by respondent",audio_60_58.mp3 +"no.1 - candidate returned as winner of election. Aggrieved thereby, election petition was filed. 8. Upon service of notice, respondent no.1 filed objections denying petition",audio_60_59.mp3 +"averments as false. Insofar as Crl. cases, it was stated that respondent no.1 was acquitted long back and due to lack of information and memory,",audio_60_60.mp3 +"they were not stated in declaration, but omission was bonafide. It was stated that he had not declared holding 500 kgs of gold, but value",audio_60_61.mp3 +"stated at rs.45,00,000/- comprised of 499.5 kgs of silver worth rs.37,46,250/- and 500 gms of gold worth rs.7,53,750/-. It was also stated that he was",audio_60_62.mp3 +"having other sources of income, such as rs.3,60,000/- as rent fromh marutheesh vs. m krishnappa on 27 june, 2023",audio_60_63.mp3 +"Concealment of any material particular with malafide intention so as to attract S. 21 and 23 of km act. 9. Respondent no.11 - tahsildar, respondent",audio_60_64.mp3 +"no.12 - cmc filed separate, but formal objections. 10. Based on pleadings, tribunal framed following issues: 1. Whether the petitioner proves that, the respondent no.1",audio_60_65.mp3 +"who contested the election as candidature of ward no.9 of the city municipal council, sira held on 02.12.2021 as per the election notification dated 29.11.2021",audio_60_66.mp3 +"and intentionally has suppressed the Crl. history and made false declaration with respect to the rental income by mentioning as ""nil"" in the column no.5",audio_60_67.mp3 +"of his declaration Aff. , thus violated sec.15 rule 15 of karnataka municipality act and rules 1964? 2. Whether petitioner proves that, the candidature of respondent",audio_60_68.mp3 +"no.1 in respect of ward no.9 of the city municipal council, sira is null and void is not in accordance with the karnataka municipality act",audio_60_69.mp3 +"and rules-1964? 3. Whether the respondent no.1 proves that, he has not concealed any material particulars in declaration Aff. which attracts ingredients u/s 21 and",audio_60_70.mp3 +"23 of karnataka municipalities act and rules 1964? 4. Whether the petitioner is entitled to the relief? 5. What order or decree? 11. Thereafter, it",audio_60_71.mp3 +"recorded evidence of petitioner as pw.1, marked exhibits p.1 to p.21 on his behalf. It also marked exhibits r1 to r.8 during cross-examination of pw.1.",audio_60_72.mp3 +"Thereafter, tribunal answered points no.1 to 4 partly in affirmative and point no.5 by allowing petition, declaring election of respondent no.1 on 30.12.2021 as councilor",audio_60_73.mp3 +"from ward no.9 of cmc, as null and void. 12. Aggrieved thereby, respondent no.1 filed mfa no.6126/2022. While respondent no.2 filed mfa no.6685/2022 seeking for",audio_60_74.mp3 +"modification of order of tribunal, by declaring him, who had secured second highest votes, as elected candidate. An alternative prayer for remand of matter for",audio_60_75.mp3 +"providing opportunity was also sought. 13. Sri. P.n. Nanjunda reddy, learned Sr. counsel for miss. Sruti chaganti, Adv. for appellant submitted that order passed by",audio_60_76.mp3 +"tribunal was contrary to law and liable for interference. There was failure to appreciate true scope and meaning of provisions of km act, which were",audio_60_77.mp3 +"read in isolation from those of representation of people act, 1950 ('rop act' for brevity). 14. It was submitted that election petition was filed on",audio_60_78.mp3 +"10.01.2022. After recording of evidence was completed and respondent no.1 had addressed final arguments, petitioner filed applications forh marutheesh vs. m krishnappa on 27 june,",audio_60_79.mp3 +2023,audio_60_80.mp3 +"And same were allowed on 28.07.2022. Immediately thereafter i.e., on 26.08.2022, election petition was disposed of. 15. It was submitted that election petition was allowed",audio_60_81.mp3 +"on three grounds viz. , failure to disclose Crl. antecedents, pending cheque bounce Cas. and improper disclosure of income and assets. 16. At outset, attention was",audio_60_82.mp3 +"drawn to ex.p1 - Aff. declaration filed along with nomination Appl. . It was submitted that in Para. no.8, respondent no.1 had stated total quantity of",audio_60_83.mp3 +"jewelry as 500 kgs along with it's value as rs.45,00,000/- in table containing details of movable properties. He had also mentioned a building standing in",audio_60_84.mp3 +"name of his wife worth rs.50,00,000/- fetching rental income of rs.3,60,000/-. 17. Insofar as offences mentioned in charge-sheets at exs.p2, p3 and p8, it was",audio_60_85.mp3 +"submitted that except in one motor vehicle accident Cas. , where he was imposed fine of rs.1,850/- without sentence of imprisonment, he was acquitted and same",audio_60_86.mp3 +was admitted in cross-examination by petitioner. Details of same were as follows: Exh. no. C.c.no. Date of result order p.2 - charge sheet 106/2015 07.01.2019,audio_60_87.mp3 +acquitted p.3 - FIR 243/2015 02.02.2019 acquitted p.8 - extract of 61/1993 19.03.1998 acquitted crl. Register p.4 - order sheet; 578/2017 27.11.2017 convicted,audio_60_88.mp3 +"with p.5 - FIR ; imposition of fine of p.6- charge sheet. Rs.1850/-without sentence of imprisonment. 18. Further, referring to ex.p15 - notification",audio_60_89.mp3 +"issued by state e.c., it was submitted that sum and substance of preamble of notification was to inform voter about material particulars of candidate as",audio_60_90.mp3 +"would be necessary for making informed choice while casting vote and same did not require disclosure of all particulars. Even annexure to notification, prescribing form",audio_60_91.mp3 +for filing Aff. in para (1) required details of cases of only conviction; and in para (3) of pending cases six months prior to date,audio_60_92.mp3 +"of filing nomination for offences punishable with imprisonment two or more years, in which charge-sheet was filed or cognizance taken by court. It was submitted",audio_60_93.mp3 +"that ex.p16 - order sheet in cc.no.5730/2017, clearly revealed that cognizance was not yet taken and respondent no.1 not yet served with summons prior to",audio_60_94.mp3 +"filing nomination. Ex.p17 - Pvt. complaint revealed that document no.5 produced along with complaint was un-served rpad cover, which tribunal mistook for summons issued by",audio_60_95.mp3 +"court. Ex.p20 was legal notice got issued through Adv. to respondent no.1 accompanied with un-served postal cover and postal acknowledgment. And ex.p21, was rpadh marutheesh",audio_60_96.mp3 +"vs. m krishnappa on 27 june, 2023",audio_60_97.mp3 +"Issued by court. 19. It was submitted that S. 23 of km act, which provides grounds on which election could be declared void, did not",audio_60_98.mp3 +"include grounds as contained in S. 33-a of rop act, which were inserted in terms of decisions of Hon'ble SC in people's union for",audio_60_99.mp3 +"Civ. liberties (pucl) & anr. Vs. UOI & Anr. 1, and UOI vs. Assn. for democratic reforms & Anr. 2. Therefore,",audio_60_100.mp3 +"reading of provisions of rop act into municipalities act would not be justified, especially when there is substantial compliance even with requirements under rop act.",audio_60_101.mp3 +"20. It was submitted that sub-Cl. (i) of S. 33-a (1) of rop act required declaration of any pending Cas. only where charge-sheet was filed,",audio_60_102.mp3 +sub-Cl. (ii) would require compliance only in Cas. of conviction and sentence of imprisonment for one year or more. And though tribunal referred to ratio,audio_60_103.mp3 +"of decision of Hon'ble SC in pucl's Cas. (supra), that non-disclosure (2003) 4 scc 399 (2002) 5 scc 294 of conviction forthcoming from exs.p.4",audio_60_104.mp3 +"to 6 would not amount to corrupt practice, it failed to follow same while considering non- disclosure of Crl. Cas. antecedents. On other hand, referring",audio_60_105.mp3 +"to decision in krishnamoorthy vs. Sivakumar & Ors. 3, Hon'ble SC observed that non-disclosure of Crl. antecedents would amount to undue influence and suppression",audio_60_106.mp3 +"of material facts in violation of notification issued by Govt. , and justify election being declared as null and void under S. 100(1)(b) of rop act,",audio_60_107.mp3 +"which was not justified. 21. It was submitted that tribunal referred to entries in clauses no.5 and 6 of Aff. -declaration - ex.p.1. While, Cl. no.5",audio_60_108.mp3 +"pertained to information regarding Crl. offences in which candidate was convicted and sentenced, Cl. no.6 pertained to information regarding past Crl. offences in which candidate",audio_60_109.mp3 +was discharged or acquitted. It was submitted that ex.p.15 - notification was issued by state e.c. On 14.07.2003 in pursuance of decision of Hon'ble apex,audio_60_110.mp3 +"court in assn. Of people for democratic rights (2015) 3 scc 476 Cas. (supra), wherein it quoted operative portion of judgment as follows: (1) whether",audio_60_111.mp3 +"candidate is convicted/acquitted/ discharged of any Crl. offence in past, if any, whether he is punished with imprisonment or fine; and (2) prior to six",audio_60_112.mp3 +"months of filing nomination, whether candidate was accused in any pending Cas. of any offence punishable with imprisonment for two years or more and in",audio_60_113.mp3 +"which charge was framed or cognizance taken note of by court of law. 22. It was submitted that in pursuance of said directions, provisions of",audio_60_114.mp3 +"ropa came to be amended by ropa (3rd amendment) act, 2022, with retrospective effect from 24.08.2002 inserting S. 33a as follows: ""sec.33a. Right to information",audio_60_115.mp3 +"-h marutheesh vs. m krishnappa on 27 june, 2023",audio_60_116.mp3 +"Under this act or the rules made thereunder, in his nomination paper delivered under sub-S. (1) of S. 33, also furnish the information as to",audio_60_117.mp3 +whether-- (i) he is accused of any offence punishable with imprisonment for two years or more in a pending Cas. in which a charge has,audio_60_118.mp3 +been framed by the court of competent jurisdiction; (ii) he has been convicted of an offence [other than any offence referred to in sub-S. (1),audio_60_119.mp3 +"or sub-S. (2), or covered in sub-S. (3), of S. 8 and sentenced to imprisonment for one year or more."" 23. It was submitted that",audio_60_120.mp3 +"while considering constitutionality of said amendment, Hon'ble SC in pucl's Cas. (supra) held as follows: "" 115. As regards the first aspect, viz. , Crl. ",audio_60_121.mp3 +"record, the directives in assn. For democratic reforms Cas. : ""(1) whether the candidate is convicted / acquitted / discharged of any Crl. offence in",audio_60_122.mp3 +"the past -- if any, whether he is punished with imprisonment or fine. Prior to six months of filing of nomination, whether the candidate is",audio_60_123.mp3 +"an accused in any pending Cas. , of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance",audio_60_124.mp3 +"is taken by the court of law."" as regards the second directive, parliament has substantially proceeded on the same lines and made it obligatory for",audio_60_125.mp3 +the candidate to furnish information as to whether he is accused of any offence punishable with imprisonment for two years or more in a pending,audio_60_126.mp3 +"Cas. in which a charge has been framed by the competent court. However, the Cas. in which cognizance has been taken but charge has not",audio_60_127.mp3 +been framed is not covered by Cl. (i) of S. 33-a(i). Parliament having taken the right step of compelling disclosure of the pendency of cases,audio_60_128.mp3 +"relating to major offences, there is no good reason why it failed to provide for the disclosure of the cases of the same nature of",audio_60_129.mp3 +which cognizance has been taken by the court. It is common knowledge that on account of a variety of reasons such as the delaying tactics,audio_60_130.mp3 +"of one or the other accused and inadequacies of the prosecuting machinery, framing of formal charges gets delayed considerably, especially in serious cases where committal",audio_60_131.mp3 +"procedure has to be gone through. On that account, the voter/citizen shall not be denied information regarding cognizance taken by the court of an offence",audio_60_132.mp3 +"punishable with imprisonment for two years or more. The citizen's right to information, when once it is recognized to be part of the fundamental right",audio_60_133.mp3 +"under Art. 19(1)(a), cannot be truncated in theh marutheesh vs. m krishnappa on 27 june, 2023",audio_60_134.mp3 +Goal to effectuate the right of information on a vital aspect. Cases in which cognizance has been taken should therefore be comprehended within the area,audio_60_135.mp3 +"of information accessible to the voters/citizens, in addition to what is provided for in Cl. (i) of S. 33-a. 116. Coming to Cl. (ii) of",audio_60_136.mp3 +"S. 33-a(i), parliament broadly followed the pattern shown by the court itself. This court thought it fit to draw a line between major/serious offences and",audio_60_137.mp3 +"minor/non-serious offences while giving direction 2 (vide para 48). If so, the legislative thinking that this distinction should also hold good in regard to past",audio_60_138.mp3 +cases cannot be faulted on the ground that the said Cl. fails to provide adequate information about the candidate. If parliament felt that the convictions,audio_60_139.mp3 +"and sentences of the long past relating to petty/non-serious offences need not be made available to the electorate, it cannot be definitely said that the",audio_60_140.mp3 +"valuable right to information becomes a casualty. Very often, such offences by and large may not involve moral turpitude. It is not uncommon, as one",audio_60_141.mp3 +of the learned Sr. counsel pointed out that the political personalities are prosecuted for politically related activities such as holding demonstrations and visited with the,audio_60_142.mp3 +punishment of fine or short imprisonment. Information regarding such instances may not be of real importance to the electorate in judging the worth of the,audio_60_143.mp3 +"relative merits of the candidates. At any rate, it is a matter of perception and balancing of various factors, as observed supra. The legislative judgment",audio_60_144.mp3 +"cannot be faulted merely for the reason that the pro tempore directions of this court have not been scrupulously followed. As regards acquittals, it is",audio_60_145.mp3 +reasonable to take the view that such information will not be of much relevance inasmuch as acquittal prima facie implies that the accused is not,audio_60_146.mp3 +connected with the crime or the prosecution has no legs to stand. It is not reasonable to expect that from the factum of prosecution resulting,audio_60_147.mp3 +"in acquittal, the voters/citizens would be able to judge the candidate better. On the other hand, such information in general has the potential to send",audio_60_148.mp3 +"misleading signals about the honesty and integrity of the candidate. 117. I am therefore of the view that as regards past Crl. record, what parliament",audio_60_149.mp3 +"has provided for is fairly adequate."" 24. But, referring to krishnamoorthy's Cas. (supra), tribunal held that non-disclosure of Crl. antecedents amounted to corrupt practice. In",audio_60_150.mp3 +"said judgment, Hon'ble SC found nexus between undue influence defined in sec.123(2) and sec.33-a of rop act. Sec.29(2) of km act refers to definition",audio_60_151.mp3 +"of undue influence among corrupt practices as defined in sec.123(1) of rop act. Said reference would invite interpretation of S. 33-a of rop act, which",audio_60_152.mp3 +restricts disclosure to such Crl. Cas. antecedents wherein candidate was sentenced to imprisonment for period of one year or more and validity of said amendment,audio_60_153.mp3 +"was upheld in pucl's Cas. (supra). It was submitted that when petitioner himself admitted during cross-examination, that respondent no.1 had not suffered sentence of imprisonment",audio_60_154.mp3 +"at any time, therefore sec.29 of km act regarding non-disclosure of Crl. Cas. antecedents would not be attracted and hence finding of tribunal about non-disclosure",audio_60_155.mp3 +amounting to corrupt practice or undue influence would travel beyond scope of statutory provisions and Appl. of law by reliance on notification at ex.p.15 would,audio_60_156.mp3 +"be contrary to interpretation of sec.33-a of rop act by Hon'ble SC .h marutheesh vs. m krishnappa on 27 june, 2023",audio_60_157.mp3 +"Supported by pleading or assertion in examination-in-chief. Therefore, reliance upon exs. P.16 to p.21 on their mere production was illegal and conclusion of tribunal referring",audio_60_158.mp3 +"to them was perverse. 26. It was submitted that when knowledge of pending Cas. was an erroneous assumption based on ex.p.21, tribunal misapplied observations in",audio_60_159.mp3 +"krishnamoorthy's Cas. (supra) that only candidate would have special knowledge of stage of pending cases. 27. Insofar as irreconcilable difference between disclosed assets and income,",audio_60_160.mp3 +it was submitted that while ex.p.12 - bpl ration card and ex.p.14 - income certificate of respondent no.1 indicated humble source of income or financial,audio_60_161.mp3 +"status, declaration of assets including jewelry was with reference to rental income of his wife. It was submitted that without specific and separate enquiry regarding",audio_60_162.mp3 +"manner of acquisition of assets, which would be outside scope of election petition, setting aside election on said ground would be highly irregular calling for",audio_60_163.mp3 +"interference. 28. It was further submitted that as mandated by S. 21(4) of km act, pleadings in election petition were required to be precise in",audio_60_164.mp3 +"respect of all material aspects. However, election petition which lacked in material particulars was sought to be infused with them in cross-examination. It was submitted",audio_60_165.mp3 +"that insofar as present Cas. , material facts would be, whether appellant was having special knowledge of cases wherein FIR /charge sheet was filed",audio_60_166.mp3 +for offences carrying imprisonment for more than two years and past cases of more than one year. 29. It was lastly submitted that while dealing,audio_60_167.mp3 +"with election petition, tribunals cannot lightly interfere with election as that would amount to upsetting mandate of ballot and which required adoption of higher standards",audio_60_168.mp3 +"of proof. Learned counsel relied upon decision in veerendar nath goutham vs. Satpal singh & Ors. 4 and markio tado vs. Takkam sorang5, for proposition",audio_60_169.mp3 +"that all material facts must be specifically proved and established. And on decisions in mercy kutty amma vs. Kadavoor sivadasan & Anr. 6, and jeet",audio_60_170.mp3 +"mohindar singh vs. Harminder singh jassy7, and decision of HC of bombay in satyajeet vs. Rajesh vinayak kshirsagar8. 30. On other hand sri.prabhugoud b.",audio_60_171.mp3 +"Tumbigi, learned counsel for petitioner, learned additional Govt. Adv. for respondents no.9 to 11, sri.s.raju, learned counsel for respondent no.12 and smt.vaishali hegde, learned counsel",audio_60_172.mp3 +"for respondents no.13 and 14 sought to support impugned order. (2007) 3 scc 617 (2012) 3 scc 236, (2004) 2 scc 217 (1999) 9 scc",audio_60_173.mp3 +"386 (2019) scc online bom. 619 31. It was submitted by learned counsel for petitioner that at outset, there was neither bonafide nor merit in",audio_60_174.mp3 +appeal. It was submitted that respondent no.1 though fully aware about his Crl. antecedents had deliberately suppressed same in violation of provisions of km act,audio_60_175.mp3 +as well as notifications issued by state e.c. It was submitted that petitioner led oral and documentary evidence to establish that respondent no.1 was guilty,audio_60_176.mp3 +"of corrupt practices, whereas respondent no.1 did not even step into witness box. Hence declaration nullifying his election was justified.h marutheesh vs. m krishnappa on",audio_60_177.mp3 +"27 june, 2023",audio_60_178.mp3 +"Circular/notification issued by state e.c. On 14.07.2003 and also guidelines issued by Hon'ble SC in Cas. of Assn. for democratic reforms (supra), which clearly",audio_60_179.mp3 +"mandated declaration of all Crl. antecedents whether convicted, acquitted or discharged or imposing punishment of fine. Therefore, candidates were required to mention any pending Cas. ",audio_60_180.mp3 +for any offence punishable with imprisonment of two years or more and in which cognizance was taken by court of law or charge-sheet filed. 33.,audio_60_181.mp3 +"It was submitted that exs.p2, p3, p5, p6 and p16 to p21 r/w exs.r1 to r4 and r8, clearly showed that respondent no.1 was",audio_60_182.mp3 +"involved in several Crl. cases and as per ex.p4, he was convicted in one of them and directed to pay fine of rs.1850/-. It was",audio_60_183.mp3 +"pointed out that as per exs.p17 to p21 and exs.r1 to r4, trial court therein had taken cognizance and issued non-bailable warrant. 34. Learned counsel",audio_60_184.mp3 +"further submitted that exs.p10 to p15 indicated that when eligibility for issuance of bpl ration card, annual income should less than rs.18,000/- per annum; while",audio_60_185.mp3 +"respondent no.1 was possessing bpl card, declared assets included 500 kgs of gold and silver articles and rental income at rs.3,60,000/- per annum. Though in",audio_60_186.mp3 +written statement he tried to improvise by stating that it was 499.5kkgs of silver and 500 gms of gold. It was submitted that as on,audio_60_187.mp3 +"date of filing nomination, value for 499.5 kgs of silver would be rs.2,99,70,000/- and 500 gms of gold would be rs.22,50,000/-. Hence declaration of total",audio_60_188.mp3 +"value as rs.45,00,000/- would amount not only to suppression, but also misrepresentation of facts by respondent no.1 amounting to undue influence and a corrupt practice.",audio_60_189.mp3 +"It was submitted that while issuing directions, Hon'ble SC emphasized on conduct of free and fair election, which was essential part of democratic society,",audio_60_190.mp3 +"wherein electorate had right to know about all Crl. antecedents, source of income and assets held by candidate to enable election of candidates of high",audio_60_191.mp3 +"moral and ethical value. As failure to give proper declaration would be corrupt practice, declaration of election of respondent no.1 as null and void was",audio_60_192.mp3 +"justified. It was submitted that with emphasis on said purpose, state e.c had issued notifications on 14.07.2003 and 19.06.2018 requiring candidates to file Aff. declaration",audio_60_193.mp3 +"disclosing assets, liabilities, antecedents etc., in pursuance of directions of Hon'ble SC and for achieving said purpose. 35. It was submitted that in pucl's",audio_60_194.mp3 +"Cas. , it was observed that for democracy to survive, best available man should be chosen as representative for proper governance of country. In krishnamoorthy's Cas. ,",audio_60_195.mp3 +"it was held that voter had elementary right to know full particulars of candidates, who represent them and same was integral part of their right",audio_60_196.mp3 +"under Art. 19(1) (a) of constitution of india, 1950 (hereinafter 'coi' for short). It was also observed that withholding material particulars amounted to wielding undue",audio_60_197.mp3 +"influence on voters and corrupt practice. It was further submitted that Hon'ble SC in Cas. of lok prahari v/s union of india9, had applied",audio_60_198.mp3 +above ratio to municipal elections also. 36. It was submitted that when respondent no.1 accepted notifications issued by state e.c without demure and filed Aff. ,audio_60_199.mp3 +"declaration, he was estopped from contending against notifications after being held guilty of willful non-disclosure. Reference was also made to recent reiteration of law byh",audio_60_200.mp3 +"marutheesh vs. m krishnappa on 27 june, 2023",audio_60_201.mp3 +"37. Insofar as prayer for remand of matter for granting opportunity, it was submitted that tribunal had granted full opportunity to all parties and after",audio_60_202.mp3 +"recording evidence and hearing, passed well-reasoned order, which could not be faulted. (2018) 4 scc 699 2022 scc online SC 1218 38. It was",audio_60_203.mp3 +"lastly submitted that respondent no.2 - appellant in connected appeal, had not even filed written statement or raised counter claim before tribunal and had also",audio_60_204.mp3 +"not entered witness box or in any manner contested proceedings. Moreover, he was presently holding office of profit being president of sira planning Auth. and",audio_60_205.mp3 +"filed appeal only to drag on matter and help respondent no.1. And submitted that for aforesaid reasons, both appeals were liable to be dismissed. 39.",audio_60_206.mp3 +"Sri vivek S. reddy, learned Sr. counsel appearing for sri k.n. Subba reddy, Adv. for respondent no.2, at outset submitted that as per provisions of",audio_60_207.mp3 +"km act, in Cas. of declaration of election of returned candidate as null and void, candidate who had secured next highest votes would be entitled",audio_60_208.mp3 +"to seek declaration as returned candidate and for enforcement of said right, respondent no.2 had filed appeal. 40. Insofar as appeal filed by respondent no.1,",audio_60_209.mp3 +"it was submitted that as per Art. - 243za, state e.c. Was vested with power under Art. - 243k and was under duty to ensure",audio_60_210.mp3 +"free and fair election, therefore notifications issued by it in performance of said function virtually to give effect to observations/directions issued by apex court did",audio_60_211.mp3 +"not call for any interference. And since legality of notifications was not questioned, all contentions to contrary were liable to be rejected. 41. It was",audio_60_212.mp3 +"submitted that for ensuring free and fair elections, state e.c. Was not bound by provisions of statute and would be justified in mandating additional compliances.",audio_60_213.mp3 +"Therefore, requirement of disclosure of 'all Crl. cases', when issued in tune with judicial pronouncements referred to in notifications was fully justified. And in view",audio_60_214.mp3 +"of admitted non-compliance, declaration granted by tribunal did not call for interference. Hence, sought for dismissal of appeal filed by respondent no.1 and for allowing",audio_60_215.mp3 +"appeal filed by respondent no.2. 42. In reply, learned Sr. counsel for respondent no.1 referred to decision of Hon'ble SC in satish ukey vs. ",audio_60_216.mp3 +"devendra gangadharrao fadnavis11, wherein after referring to it's earlier decisions in Assn. for democratic reforms & ors. And pucl cases (supra), had clarified meaning of",audio_60_217.mp3 +word (2019) 9 scc 1 'information' contained in sec.33-a of rop act to include information mentioned in clauses - (i) and (ii) of sec.33-a(1) of,audio_60_218.mp3 +"rop act and to be furnished in form no.26, which includes information concerning cases in which a competent court has taken cognizance. This would be",audio_60_219.mp3 +apart from and in addition to cases in which charges have been framed for offences punishable with imprisonment for two years or more or cases,audio_60_220.mp3 +"in which conviction was recorded and sentence of imprisonment for one year or more was imposed. 43. However, Hon'ble SC had clarified that proof",audio_60_221.mp3 +of knowledge of such cases was required to be established and had remanded matter back for re-examination. It was submitted that in an election petition,audio_60_222.mp3 +"filed under S. 21, tribunal was required to consider only thoseh marutheesh vs. m krishnappa on 27 june, 2023",audio_60_223.mp3 +"Transgressed, impugned order was liable for being set-aside. On above grounds sought for allowing appeal filed by respondent no.1. 44. Heard learned counsel, perused impugned",audio_60_224.mp3 +"order passed by tribunal and record. 45. From above submission, it is not in dispute that petitioner and respondents no.1 to 8 had contested for",audio_60_225.mp3 +election to council of cmc from ward no.12. It is not in dispute that they are on electoral rolls of cmc. It is also not,audio_60_226.mp3 +"in dispute that in election held on 27.12.2021, respondent no.1 was declared as returned candidate on 30.12.2021. 46. While petitioner contends that acceptance of nomination",audio_60_227.mp3 +of respondent no.1 by respondent no.14 - returning officer was illegal on account of violation of mandatory disclosure clauses amounting to undue influence a form,audio_60_228.mp3 +of corrupt practice justifying declaration of election as null and void; respondent no.1 contends that there was sufficient compliance with requirements of statute and strict,audio_60_229.mp3 +compliance with all conditions in notifications was not mandatory; respondent no.2 claims that he being candidate who had secured next highest votes was entitled for,audio_60_230.mp3 +"being declared as returned candidate in place of respondent no.1. 47. To establish his contentions, petitioner examined himself as pw.1 and got marked exhibits p.1",audio_60_231.mp3 +"to p.21, while respondent did not step into witness box but got marked exhibits r1 to r.8 during cross-examination of pw.1. 48. Main allegation against",audio_60_232.mp3 +respondent no.1 is that he failed to disclose his Crl. Cas. antecedents as required and disclosure of his assets and source of income was grossly,audio_60_233.mp3 +"inconsistent/incorrect and therefore amounted to corrupt practice. 49. Insofar as declaration of assets, Hon'ble SC in s.rukmini madegowda's, Cas. (supra) has held : 63.",audio_60_234.mp3 +"The question of whether the election commission had power to issue directions to the candidates to file affidavits disclosing the assets of their spouses, in",audio_60_235.mp3 +the absence of any specific provision under the kmc act or the rules framed thereunder is no longer res integra. The question is squarely covered,audio_60_236.mp3 +"by the law laid down by this court in UOI vs. Assn. for democratic reforms (supra), where this court had directed the election",audio_60_237.mp3 +"commission to secure to voters, inter alia, information pertaining to assets not only of the candidates but also of their spouse and dependents. 64. The",audio_60_238.mp3 +"election commission has to act within the four corners of law made by the parliament and/or the concerned state legislature, as the Cas. may be,",audio_60_239.mp3 +"as argued by mr. Diwan.h marutheesh vs. m krishnappa on 27 june, 2023",audio_60_240.mp3 +"Court in Assn. for democratic reforms (supra), where this court held that ""the constitution has made comprehensive provision under Art. 324 to take care of",audio_60_241.mp3 +"surprise situations and it operates in areas left unoccupied by legislation."" the interpretation given by this court of Art. 324 of the constitution of india",audio_60_242.mp3 +is binding on all courts. 66. It would be pertinent to note that the language and tenor of Art. 243-za(1) is in pari materia with,audio_60_243.mp3 +Art. 324(1) of the constitution. The language and tenor of S. 243-za(1) is identical to that of Art. 324(1). Articles 243-za(1) and Art. 324(1) are,audio_60_244.mp3 +"set out hereinbelow for convenience:-- ""243-za. Elections to the municipalities.--(1) the superintendence, direction and control of the preparation of electoral rolls for, and the conduct",audio_60_245.mp3 +"of, all elections to the municipalities shall be vested in the state election commission referred to in Art. 243-k. Xxxxxxxxx 324. Superintendence, direction and control",audio_60_246.mp3 +"of elections to be vested in an election commission.--(1) the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct",audio_60_247.mp3 +"of, all elections to parliament and to the legislature of every state and of elections to the offices of president and vice-president held under this",audio_60_248.mp3 +"constitution shall be vested in a commission (referred to in this constitution as the election commission)."" 67. This court has interpreted Art. 324(1) to confer",audio_60_249.mp3 +"wide powers on the election commission relating to superintendence, direction and control of preparation of electoral roles and/or the conduct of elections to parliament and",audio_60_250.mp3 +"to the legislature of every state provided, of course, that the directions are not contrary to law. The interpretation of Art. 324(1) to confer wide",audio_60_251.mp3 +powers on the election commission to issue directions in respect of elections to parliament and state legislatures would apply to Art. 243- za(1). Art. 243-za(1),audio_60_252.mp3 +"has to be construed to confer powers on the state election commission to issue directions related to superintendence, direction and control of the preparation of",audio_60_253.mp3 +electoral roles or for conduct of elections to municipalities. 68. The election commission has wide powers under Art. 324(1) of the constitution of india to,audio_60_254.mp3 +"issue directions necessary for conducting free and fair elections, subject to the contours of law. The power of the election commission includes the power to",audio_60_255.mp3 +issue directions where the law is silent. The state election commission has the same powers under Art. 243-k and 243-za(1) as the election commission of,audio_60_256.mp3 +"india has under Art. 324(1) of the constitution of india. 69. In Assn. for democratic reforms (supra) and in lok prahari (supra), this court held",audio_60_257.mp3 +"that for effective exercise of his fundamental right under Art. 19(1)((a), the voter is entitled to have all relevant information about candidates at an election",audio_60_258.mp3 +"which would include Crl. antecedents, if any, of the candidate, his/her assets and liabilities, educational qualifications, etc. It may be true that amendment of the",audio_60_259.mp3 +"1951 rp act is within the exclusive domain of the union parliament ash marutheesh vs. m krishnappa on 27 june, 2023",audio_60_260.mp3 +"The karnataka state legislature. 70. However, in light of the law declared by this court in Assn. for democratic reforms (supra), we do not see",audio_60_261.mp3 +"any legal or normative impediment for the state election commission to issue directions requiring disclosure of assets of the candidate, his/her spouse and dependent associates",audio_60_262.mp3 +"by way of Aff. . In issuing the notification dated 14th july 2003, the election commission has not encroached into the legislative domain of the karnataka",audio_60_263.mp3 +"state legislature. The direction, as contained in the notification dated 14th july 2003 had been accepted by the appellant. Having affirmed a false Aff. , it",audio_60_264.mp3 +does not lie in the mouth of the appellant to contend that her election should not be set aside on the ground of corrupt practice,audio_60_265.mp3 +"under S. 35(1) of the kmc act. 71. India is a quasi-federal state. Art. 1 of the constitution describes india as a ""union of states"".",audio_60_266.mp3 +Every state is an integral and inseverable part of india. The indian polity combines the features of a federal Govt. with certain features of a,audio_60_267.mp3 +"unitary constitution. While the division of powers between the union Govt. and the state governments is an essential feature of federalism, in matters of national",audio_60_268.mp3 +"importance, a uniform policy is essential in the interest of all the states, without disturbing the clear division of powers, so that the union and",audio_60_269.mp3 +the states legislate within their respective spheres. The constitution is the supreme law for the union and for the states supported by an independent judiciary,audio_60_270.mp3 +which acts as the guardian of the constitution. 72. There can be no doubt that the parliament and the respective state legislatures are supreme and,audio_60_271.mp3 +not bound by any advice of the election commission. It is equally true that the election commission has to act within the four corners of,audio_60_272.mp3 +"law made by the parliament and/or the concerned state legislature, as the Cas. may be. However, in our considered opinion, the election commission has issued",audio_60_273.mp3 +"the notification dated 14th july 2003 within the contours of law. 73. In state bank of india vs. santosh gupta10, rohinton fali nariman, j. Speaking",audio_60_274.mp3 +"for the bench relied upon decision of this court in state of west bengal vs. union of india11 and, inter-alia, reiterated the following characteristic of",audio_60_275.mp3 +"indian federalism-- ""... (c) distribution of powers between the union and the regional units each in its sphere coordinate and independent of the other. The",audio_60_276.mp3 +basis of such distribution of power is that in matters of national importance in which a uniform policy is desirable in the interest of the,audio_60_277.mp3 +"units, Auth. is entrusted to the union, and matters of local concern remain with the state. ..."" 74. Purity of election at all levels, be",audio_60_278.mp3 +it election to the union parliament or a state legislature or a municipal Corp. or a panchayat is a matter of national importance in which,audio_60_279.mp3 +a uniform policy is desirable in the interest of all the states. A hypertechnical view of the omission to incorporate any specific provision in the,audio_60_280.mp3 +"kmc election rules, similar to the 1961 rules, expressly requiringh marutheesh vs. m krishnappa on 27 june, 2023",audio_60_281.mp3 +Constitution and public interest. 50. Above declaration of law by Hon'ble SC is that election of a candidate could be declared as null and,audio_60_282.mp3 +"void even for failure to declare assets and liabilities with material particulars. While examining propriety of declaration, tribunal is not required to examine propriety of",audio_60_283.mp3 +"declaration, but only to verify whether declaration is complete with all material particulars so as to enable voter to make informed choice. Therefore, submission of",audio_60_284.mp3 +"learned Sr. counsel for respondent no.1 would be justified. 51. Indeed notification dated 14.07.2003 was issued following ratio in ADR 's Cas. (supra),",audio_60_285.mp3 +kanhiya lal omar's Cas. (supra) and common cause Cas. (supra). In para no.4a of appendix requires declaration with details of movable properties and para no.4b,audio_60_286.mp3 +"of immovable properties and para no.5 about liabilities. But, as election in question was held in year 2021, said notification was modified by notification dated",audio_60_287.mp3 +"01.06.2018, which required details of pan numbers, year of payment of IT and gross income declared apart from occupation and source of income. Declaration",audio_60_288.mp3 +also required furnishing of said particulars in respect of candidate/spouse and dependents. 52. To answer whether information provided by respondent no.1 - candidate was compliant,audio_60_289.mp3 +"with above requirements, perusal of ex.p.1 - Aff. /declaration would reveal that in part-a - Aff. , respondent no.1 has declared that himself, spouse and dependants were",audio_60_290.mp3 +"not assessed to IT and their taxable income was 'nil'. But, in para no.8a there is declaration of possession of 500 kgs of jewelry",audio_60_291.mp3 +"by spouse valued at rs.45,00,000/-; and income of rs.5,00,000/- from business of respondent no.1. In para no.8b, there is declaration of residential property worth rs.50,00,000/-",audio_60_292.mp3 +"having rental income of rs.3,60,000/- held by W/O respondent no.1. In para no.9 outstanding loan of rs.10,00,000/- is mentioned. But in column no.7 of",audio_60_293.mp3 +"part-b - declaration, none of above are mentioned. Hence violation of requirement is established from records. 53. Hon'ble SC in Assn. for democratic reforms",audio_60_294.mp3 +"Cas. (supra) has held : ""48. The election commission is directed to call for information on Aff. by issuing necessary order in exercise of its",audio_60_295.mp3 +power under Art. 324 of the constitution of india from each candidate seeking election to parliament or a state legislature as a necessary part of,audio_60_296.mp3 +"his nomination paper, furnishing therein, information on the following aspects in relation to his/her candidature: (1) whether the candidate is convicted / acquitted / discharged",audio_60_297.mp3 +"of any Crl. offence in the past -- if any, whether he is punished with imprisonment or fine. (2) prior to six months of filing",audio_60_298.mp3 +"of nomination, whether the candidate is accused in any pending Cas. , of any offence punishable with imprisonment for two years or more, and in which",audio_60_299.mp3 +"charge is framed or cognizance is taken by the court of law. If so, the details thereof.h marutheesh vs. m krishnappa on 27 june, 2023",audio_60_300.mp3 +"Spouse and that of dependants. (4) liabilities, if any, particularly whether there are any overdues of any public financial institution or Govt. dues. (5) the",audio_60_301.mp3 +"educational qualifications of the candidate."" (emphasis supplied) 54. Insofar as Crl. Cas. antecedents, annexure to notification dated 14.07.2003, requires furnishing details of Crl. cases not",audio_60_302.mp3 +"only of cases in which candidate has been convicted, but also of cases wherein he has been discharged/acquitted. In addition, candidate is required to furnish",audio_60_303.mp3 +"details about whether in six months preceding date of filing nomination, candidate has been accused of offences punishable with imprisonment of two or more years",audio_60_304.mp3 +"and in which charge-sheet was filed or cognizance was taken by court. 55. Said requirements are reiterated in annexure to notification dated 01.06.2018. But, column",audio_60_305.mp3 +no.5(a) of part-b - declaration requires candidate to mention particulars of cases in which punishment in excess of two years is imposed; column no.5(b) of,audio_60_306.mp3 +all pending cases and column no.6 of cases wherein candidate is convicted for offences other than those mentioned in sub-Ss. (1) and (2) of S. ,audio_60_307.mp3 +"8 of representation of the people act, 1951 or imposed with sentence of more than 1 or 2 years. 56. In para no.5 of ex.p1,",audio_60_308.mp3 +respondent no.1 has declared that he was not convicted in any cases earlier. He also declared cases in which he was acquitted/discharged and did not,audio_60_309.mp3 +"suffers sentence, as 'nil'. Even details of cases for offences carrying sentence of more than 2 years, in preceding six months prior to date of",audio_60_310.mp3 +"filing nomination as 'nil'. Part-b declaration i.e. In para no.5(a) and (b) and para no.6 is 'nil'. Admittedly, respondent no.1 was convicted in c.c.no.578/2017 as",audio_60_311.mp3 +"indicated in ex.p4 to ex.p6 and ex.r1. Though, respondent no.1 claims that he did not suffer sentence of imprisonment and was imposed only fine amount,",audio_60_312.mp3 +"same would not exempt mentioning in declaration, especially, when column no.6 of part-b of annexure to notification dated 01.06.2018 specifically mandates same. In any Cas. ,",audio_60_313.mp3 +there is clear violation of para no.6 of part-a of annexure to said notification which mandates declaration of all cases in which candidate was acquitted,audio_60_314.mp3 +"etc. 57. While passing impugned order, tribunal has arrived at clear finding about failure to declare past Crl. cases and also about conviction in one",audio_60_315.mp3 +"of them. 58. Though, tribunal has assumed that ex.p21 as summons returned as refused in c.c.no.5730/2017, even though ex.p21 was in fact notice issued by",audio_60_316.mp3 +"Adv. prior to filing Pvt. complaint in cheque bounces Cas. , said assumption and consequential finding of violation would not dilute non-compliance with requirement of declaration",audio_60_317.mp3 +"about Crl. Cas. antecedents.h marutheesh vs. m krishnappa on 27 june, 2023",audio_60_318.mp3 +Candidates contesting election to provide details of their assets/liabilities and Crl. Cas. antecedents to enable voter to make informed decision while casting ballot as indefeasible,audio_60_319.mp3 +"part of freedom of speech and expression under art.19(1)(a) of coi in various decisions referred to above. 60. In light of above, contention based on",audio_60_320.mp3 +"explanation about assets held, acquittal in Crl. cases and not suffering sentence in Cas. where he was convicted or for that matter about not being",audio_60_321.mp3 +"aware of cheque bounces Cas. as per exs.p16 to p21 would be of no consequence. 61. Likewise, since infraction with mandatory requirement regarding declaration being",audio_60_322.mp3 +"established based on records, admissions elicited during cross-examination of pw.1 would also pale into insignificance. As rightly contended it would not be within jurisdiction of",audio_60_323.mp3 +tribunal to give finding about candidate/s possessing disproportionate assets and scope of election petition would only be to examine whether all declarations/disclosures as required are,audio_60_324.mp3 +"complied so as to enable voter to make an informed decision while casting his vote. Therefore, it would not be within jurisdiction of this court",audio_60_325.mp3 +"to examine, in absence of specific challenge whether requirements mandated were material or irrelevant and also to decide whether violation was insignificant. Especially, in view",audio_60_326.mp3 +of observations in rukmini s madegowda's Cas. (supra) that state e.c. Was within it's powers while issuing notification dated 14.07.2003. 62. As violation of requirement,audio_60_327.mp3 +"regarding declaration is held established, declaration by tribunal would be fully justified even applying strict proof as held in satish ukey's Cas. (supra) etc. Consequentially,",audio_60_328.mp3 +"appeal filed by respondent no.1 deserves to be dismissed. 63. Insofar as appeal filed by respondent no.2, admittedly no written statement was filed nor counter",audio_60_329.mp3 +claim raised before tribunal. Moreover said respondent did not enter witness box to establish that he had secured next highest votes than respondent no.1 herein,audio_60_330.mp3 +"and was therefore entitled for declaration as sought for. It is seen from records that he has not contested proceedings in any manner whatsoever. Hence,",audio_60_331.mp3 +"his appeal for reliefs sought for would not be tenable. Consequently, following: order mfa.no.6126/2022 and mfa.no.6685/2022 are dismissed. In facts and circumstances of this Cas. ,",audio_60_332.mp3 +"there shall be no order as to costs. Sd/- judge psg/grdh marutheesh vs. m krishnappa on 27 june, 2023",audio_60_333.mp3 +"M/S. chivaro technologies pvt vs. ltd on 23 december, 2021 1 kabc010271332018 in the court of the lix addl.city Civ. & sessions judge (cch-60) at",audio_61_1.mp3 +"bengaluru) dated this 23rd day of december 2021 -: p r e s e n t :- sri. Rajeshwara, b.a., l.l.m., lxiv addl.city Civ. &",audio_61_2.mp3 +"sessions judge, cch-65, c/c lix addl.city Civ. & sessions judge, cch-60 bengaluru city. Crl. Appeal no.1949/2018 appellant:/ 1. M/s. Chivaro technologies pvt. Accused ltd., 2nd",audio_61_3.mp3 +"floor, janardhan towers, residency road, bengaluru - 560 025. 2. Dataram mishra, md & ceo, m/s. Chivaro technologies pvt. Ltd., 2nd floor, janardhan towers, residency",audio_61_4.mp3 +"road, bengaluru - 560 025. 3. Mrs. Uma mishra, m/s. Chivaro technologies pvt. Ltd., 2nd floor, janardhan towers, residency road, bengaluru - 560 025. (by",audio_61_5.mp3 +"sri r.p. Somashekaraiah, Adv. ) -v/s.- 2 Crl. appeal no.1949/2018 respondent:/ sri p. Rama murthy, complainant s/o late p.S. sathyanarayana rao, aged about 51 years, r/at",audio_61_6.mp3 +"no.785,m/S. chivaro technologies pvt vs. ltd on 23 december, 2021",audio_61_7.mp3 +"hmt layout, vidyaranyapura, bengaluru - 560 097. (by sri s.s., Adv. ) judgment appellant has filed this appeal u/s.374(3) of Cr.P.C. 1908",audio_61_8.mp3 +"(cr.p.c) being aggrieved by the judgment of conviction and order of sentence passed in c.c. No.6332/2017 dated 05.09.2018 on the file of xviii acmm, bengaluru.",audio_61_9.mp3 +2. Parties to this appeal shall be referred to as per their ranking before the trial court for the purpose of convenience and for better,audio_61_10.mp3 +"appreciation of their contentions. 3. In the memorandum of appeal, appellant / accused has submitted that, trial court has not properly appreciated the evidence available",audio_61_11.mp3 +on record. The complainant was appointed as Sr. vice president of the accused Co. and he was not managed the affairs of the Co. in,audio_61_12.mp3 +a profitable manner. Crl. appeal no.1949/2018 Co. suffered huge loss and ultimately all the assets and personal assets of the accused Co. has been sold,audio_61_13.mp3 +in public auction which resulted in loosing the house of the complainant and ultimately the Co. get closed. During the period of working as vice,audio_61_14.mp3 +"president, the complainant had given with cheques and after closure of the Co. , the complainant did not returned the cheques and misused the same. There",audio_61_15.mp3 +"is no amount payable to the accused nor any balance amount payable to the accused. Hence, there is no legally dischargeable debt under the dishonoured",audio_61_16.mp3 +cheque. Legal notice has not been issued to them. The complainant has not complied the provisions of S. 138 of n.i.act. Trial court has not,audio_61_17.mp3 +properly appreciated the evidence of complainant. No sufficient opportunity was given to the appellant to establish his defence. 313 statement of the accused was not,audio_61_18.mp3 +recorded. There is no legally enforceable debt to the extent of cheque amount. No sufficient opportunity was given for cross- examination of complainant. Impugned judgment,audio_61_19.mp3 +"of conviction and order of sentence is perverse. For the aforesaid reasons, appellant has prayed to interfere into the impugned judgment and order and set",audio_61_20.mp3 +"aside the same. Crl. appeal no.1949/2018 4. Along with memorandum of appeal, appellant produced certified copy of impugned judgment of conviction and order of sentence.",audio_61_21.mp3 +"5. Respondent appeared through counsel. Heard arguments. Perused the records. T.c.rs were called for reference in this appeal. Now, following are points arising for determination",audio_61_22.mp3 +": 1. Whether in the light of evidence and material brought before the court, trial court is justified in convicting accused/ appellant for the offence",audio_61_23.mp3 +"punishable under sectionm/S. chivaro technologies pvt vs. ltd on 23 december, 2021",audio_61_24.mp3 +Offence ? 2. Whether interference of this court is necessitated ? 3. What order ? 6. It is answered for the aforesaid points as under,audio_61_25.mp3 +":- point no.1: in the affirmative. Point no.2: in the negative point no.3: as per final order below, for the following:- reasons 7. Point nos.",audio_61_26.mp3 +1 and 2 :- these points are taken together to avoid repeated discussions. Crl. appeal no.1949/2018 8. The Cas. of the complainant in brief is,audio_61_27.mp3 +"that, appellant / accused no.1 is a Pvt. Ltd. Co. and accused no.2 and 3 are the managing directors of the Co. . The complainant was",audio_61_28.mp3 +"working as a Sr. vice president - engineering in chivaro technologies pvt. Ltd., his date of appointment was 01.04.2010 and annual gross salary package was",audio_61_29.mp3 +"rs.25,00,000/-. From 2012 m/s. Chivaro technologies pvt. Ltd., was not proper in paying the salary to the complainant and the accused is due to pay",audio_61_30.mp3 +"an amount of rs.32,57,412/-. When the complainant demanded for the same, accused issues two cheques bearing no.227959 and 227960 both dated 31.01.2015 each for rs.5,00,000/-",audio_61_31.mp3 +"drawn on hsbc bank, m.g.road branch, bengaluru. When the complainant presented the said cheques to the bank for encashment, they were dishonoured with an endorsement",audio_61_32.mp3 +"""funds insufficient"" on 06.04.2015. Thereafter complainant got issued legal notice on 15.04.2015 to the accused calling upon him to pay the cheques amount. Inspite of",audio_61_33.mp3 +"service of notice, the accused has failed to pay the bounced cheques amount to him. To take action against the accused for offence punishable under",audio_61_34.mp3 +"S. 138 of ni act, complainant has filed complaint under S. 200 of Cr.P.C. Crl. appeal no.1949/2018 9. Perused entire order sheets,",audio_61_35.mp3 +"complaint filed under S. 200 of Cr.P.C. , for the offence punishable under S. 138 of n.i act, sworn statement Aff. of",audio_61_36.mp3 +"the complainant, plea of accusation, examination-in-chief evidence of p.w.1 by way of Aff. , ingredients of documents at ex.p.1 to ex.p6. As 20% of the cheque",audio_61_37.mp3 +"amount as ordered under S. 143a of n.i.act was not deposited by the accused within sixty days, trial court has taken cross-examination of pw.1 as",audio_61_38.mp3 +nil. Statement under S. 313 of Cr.P.C. was dispensed with. Accused did not filed any Appl. under S. 145(2) of n.i.act to,audio_61_39.mp3 +adduce his defence evidence. There is no procedural defect of any nature while conducting trial relating to Pvt. complaint registered for the offence punishable under,audio_61_40.mp3 +"section138 of n.i act.m/S. chivaro technologies pvt vs. ltd on 23 december, 2021",audio_61_41.mp3 +"Reiterated averments of his complaint in his examination in chief. Ex.p.1 and ex.p.2 are the original cheques, which shows that the accused had issued the",audio_61_42.mp3 +"cheques to the complainant. Ex.p.3 is the bank endorsement, which made it clear that the cheques issued by the accused came to be dishonoured by",audio_61_43.mp3 +"his banker for the Crl. appeal no.1949/2018 reason ""insufficient funds"". Ex.p.4 is the print out copy of demand notice, ex.p.5 postal receipts, ex.p.6 two postal",audio_61_44.mp3 +tracking made it clear that notice issued by the complainant demanding payment under bounced cheques by the accused is served on the accused. With the,audio_61_45.mp3 +"help of the evidence of p.w.1 and contents of ex.p.1 to ex.p.6, complainant successfully discharged initial burden of proof casts under S. 138 of n.i",audio_61_46.mp3 +"act. Thereafter, burden shifts on the accused as per presumptions under S. 118 and 139 of n.i act in the form of reverse onus on",audio_61_47.mp3 +the accused to rebut presumptions. 11. Accused appeared before the court and enlarged on bail. There is no specific plea of defence filed by the,audio_61_48.mp3 +"accused. To rebut presumptions available on behalf of the complainant, accused made no effort to cross-examine pw.1. Accused didn't filed Appl. u/s.145(2) of n.i.act to",audio_61_49.mp3 +summon pw.1 for examination. Accused not even examined himself as defence witnesses. No witnesses are examined on behalf of the accused. 12. Before considering the,audio_61_50.mp3 +"point whether accused succeeded to rebut the presumptions and established any defence to the extent of probabilities, it is just and necessary to Crl. appeal",audio_61_51.mp3 +"no.1949/2018 accumulate undisputed facts in this Cas. . It is pertinent to note that, accused didn't filed any ""plea of defence"" as soon as he appeared",audio_61_52.mp3 +"before the trial court with bail Appl. to show his intention to defend himself. Accused has not denied the fact that, bounced cheques belong to",audio_61_53.mp3 +his bank account. It is also not disputed by the accused in respect of his signature appeared on the bounced cheque. Accused didn't raised any,audio_61_54.mp3 +"dispute on bank endorsement issued for dishonour of cheques. 13. After recording plea, accused remained absent. Accused did not make any attempt to cross-examine pw.1.",audio_61_55.mp3 +Accused didn't even appeared before trial court to answer for statement u/s.313 of Cr.P.C. accused didn't examined himself as defence witness or,audio_61_56.mp3 +examined any witnesses on his behalf or produced any documents to put forward any probable defence to show that he is not liable to make,audio_61_57.mp3 +"payment under bounced cheques. On the whole, accused made no attempt to establish any defence to the extent of probabilities. 14. Accused not even produced",audio_61_58.mp3 +"any documents to show that, he lodged any complaint against the complainant for misuse of his cheque and for filing false complaint against him. Crl. ",audio_61_59.mp3 +"appeal no.1949/2018 15. In the absence of any probable defence on behalf of the accused, it is difficult to accept the contention raised by the",audio_61_60.mp3 +"appellant in the appeal that, he is not liable to make payment under the bounced cheque. So far as opportunity to defend is concerned, trial",audio_61_61.mp3 +"court had given sufficient opportunity to the accused/ appellant, but accused was not diligent enough to exhaust such opportunity. Accused didn't even submitted any specific",audio_61_62.mp3 +"plea of defence when appeared before them/S. chivaro technologies pvt vs. ltd on 23 december, 2021",audio_61_63.mp3 +Court is of the opinion that appellant failed to establish any Cas. to interfere into the impugned judgment of conviction and order of sentence. Complainant,audio_61_64.mp3 +"has proved beyond 'reasonable doubt' that, the accused has committed an offence punishable u/s.138 of n.i.act. 16. Grounds set up by the appellant/accused in the",audio_61_65.mp3 +"appeal is that he didn't provided with sufficient opportunity to cross examine the pw.1. There is no legally recoverable debt from the accused. Further, it",audio_61_66.mp3 +is his defence that he has not issued the cheques and the respondent has taken signed blank cheques. Crl. appeal no.1949/2018 17. It is settled,audio_61_67.mp3 +"position of law that in the Cas. of cheque bounce, accused shall file his plea of defence when he/she appeared before the court to answer",audio_61_68.mp3 +for summons. No such attempt is made by the accused to show that he has got defence in this Cas. . Further as per amended provision,audio_61_69.mp3 +"u/s.143- a of n.i.act, accused has to deposit 20% of the cheque amount as interim compensation within 60 days from the date of recording plea",audio_61_70.mp3 +if ordered by the trial court. Accused made no attempt to get opportunity to cross-examine the complainant who examined as pw.1. 18. Perused the trial,audio_61_71.mp3 +court judgment. Perused order sheet maintained by the trial court. It is specifically mentioned about opportunity given to the accused to cross-examine pw.1. Despite sufficient,audio_61_72.mp3 +"opportunity, without any justifiable cause, accused/ appellant remained absent before the trial court when the matter was posted for cross-examination of pw1. 19. In the",audio_61_73.mp3 +"judgment reported in air 2014 SC 2528, indian bank Assn. and Ors. v/s. UOI , Hon'ble SC of india had given direction",audio_61_74.mp3 +"to deal with the matters when the accused remained absent. To avoid Crl. appeal no.1949/2018 tactics to delay the proceedings, it is permitted the trial",audio_61_75.mp3 +court to proceed with pronouncing judgment by dispensing with recording statement of accused u/s.313 of Cr.P.C. there is no error in passing,audio_61_76.mp3 +impugned judgment by the trial court. 20. Compared reasons assigned by the trial court in the impugned judgment of conviction as discussed above with the,audio_61_77.mp3 +allegations made in the memorandum of appeal. No grounds are made out in the memorandum of appeal to interfere into the impugned judgment of conviction.,audio_61_78.mp3 +This is not a fit Cas. to remand the matter to trial court for fresh disposal. 21. The trial court has relied upon the decisions,audio_61_79.mp3 +"reported in 2014(5) scc 590 in the Cas. of indian bank Assn. vs. UOI , 2003(1) scc 240 in the Cas. of sarwan singh",audio_61_80.mp3 +"vs. State of punjab. 22. So far as quantum of punishment is concerned, fine of rs.12,60,000/- (twelve lakhs and sixty thousand only) was imposed for",audio_61_81.mp3 +"dishonour of cheque for rs.10,00,000/- (ten lakhs). In default of payment of fine, accused shall undergo simple imprisonment for a period of one year. Out",audio_61_82.mp3 +"of fine amount of rs.12,60,000/- (twelve lakhs and sixty thousand only).m/S. chivaro technologies pvt vs. ltd on 23 december, 2021",audio_61_83.mp3 +"Paid to the complainant by way of compensation and rs.10,000/-(ten thousand) amount shall be payable to the state exchequer. Fine amount imposed is within the",audio_61_84.mp3 +purview of S. 138 of n.i.act. Appellant failed to show that sentence imposed is exhorbitant. Accused/appellant failed to show that quantum of fine imposed is,audio_61_85.mp3 +"excessive. There is no merit in the appeal. Order under appeal is sustainable in law. Hence, interference of this court is not necessary. Accordingly, point",audio_61_86.mp3 +no.1 is answered in the affirmative and point no.2 in the negative. 23. Point no.3 :- in view of findings on the above points no.1,audio_61_87.mp3 +"to 3, this Crl. appeal is devoid of merits and same is liable to be dismissed by confirming impugned judgment of conviction and order of",audio_61_88.mp3 +"sentence. Hence, following order is made: order invoking provisions of S. 386 of Cr.P.C. , this Crl. appeal filed u/s. 374(3) is",audio_61_89.mp3 +"dismissed. Consequently, impugned judgment of conviction and order of sentence dated Crl. appeal no.1949/2018 05.09.2018 passed in c.c.no.6332/2017 on the file of court of xviii-",audio_61_90.mp3 +"addl.chief MM , bengaluru is hereby confirmed. Appellant/accused is hereby directed to appear before trial court to deposit the fine amount or to serve the",audio_61_91.mp3 +"sentence. Office is hereby directed to send back t.c.r. Along with certified copy of judgment to the trial court, forthwith. (dictated to the judgment writer,",audio_61_92.mp3 +"script typed by him and corrected, signed and then pronounced by me in the open court on this the 23rd day of december, 2021.) (rajeshwara)",audio_61_93.mp3 +"lxiv addl.city Civ. & sessions judge, cch-65, c/c lix addl.city Civ. & sessions judge, cch-60, bengaluru city. Crl. appeal no.1949/2018 23.12.2021 order pronounced in open",audio_61_94.mp3 +"court, vide separate; order invoking provisions of S. 386 of Cr.P.C. , this Crl. appeal filed u/s. 374(3) is dismissed. 15 Crl. ",audio_61_95.mp3 +"appeal no.1949/2018m/S. chivaro technologies pvt vs. ltd on 23 december, 2021",audio_61_96.mp3 +"Of conviction and order of sentence dated 05.09.2018 passed in c.c.no.6332/2017 on the file of court of xviii- addl.chief MM , bengaluru is hereby confirmed.",audio_61_97.mp3 +Appellant/accused is hereby directed to appear before trial court to deposit the fine amount or to serve the sentence. Office is hereby directed to send,audio_61_98.mp3 +"back t.c.r. Along with certified copy of judgment to the trial court, forthwith. (rajeshwara) lxiv addl.city Civ. & sessions judge, cch-65, c/c lix addl.city Civ. ",audio_61_99.mp3 +"& sessions judge, cch-60, bengaluru city.m/S. chivaro technologies pvt vs. ltd on 23 december, 2021",audio_61_100.mp3 +"Manan vs. . M/s alkarma page 1 of 24 on 8 june, 2023 in the court of shri harshal negi:mm-05(ni act): south-west district:dwarka courts:new delhi",audio_62_1.mp3 +"ct cases no.27932/2018 cnr no.dlsw02-030856-2018 manan s/o sh. Ram dhar prasad r/o h.no.r-3a2/73, block r3a2, mohan garden, uttam nagar new delhi -110059 ...complainant vs. m/s",audio_62_2.mp3 +"alkarma 57, rama road, najafgarh road, moti nagar, new delhi -110015 through its partners shri sandeep chaudhary and Ms. . Anjaly chaudhary 57, rama road, najafgarh",audio_62_3.mp3 +"road, moti nagar, new delhi -110015 also at: sandeep chaudhary s/o sh. Subhash chaudhary r/o soverign house, house no.c-2/102, vatika city, sector-49, gurugram, haryana ...accused",audio_62_4.mp3 +"offence complained of : u/s 138, ni act, 1881 date on which the complaint : 09.08.2018 was instituted plea of the accused : pleaded not",audio_62_5.mp3 +"guilty date of pronouncement of judgment : 08.06.2023 judgment 1. Tersely put, the Cas. of the complainant is that accused sandeep chaudhary is the partner",audio_62_6.mp3 +of Co. viz. m/s alkarma and was/is looking after the day-to-day affairs of the Co. . It is also the Cas. of the complainant that the,audio_62_7.mp3 +complainant was working in the accused Co. . That the payment of salary of the complainant was overdue for a long time. That on 30.11.2017 alkarma,audio_62_8.mp3 +"made settlement with the complainant for a sum of rs 3,01,485/-. That to discharge the legal liability the accused issued a total of five cheques",audio_62_9.mp3 +"one of the cheques being the cheque in question i.e., cheque bearing no 037352 dated 01.06.2018 of rs 64,000/- and drawn on canara bank, connaught",audio_62_10.mp3 +"place branch, new delhi to the complainant with an assurance of its encashment. The complainant presented the cheque in his account which were returned with",audio_62_11.mp3 +"the remarks ""funds insufficient"" dated 28.06.2018. Thereafter, complainant served a legal notice dated 10.07.2018 uponmanan vs. . M/s alkarma page 1 of 24 on 8",audio_62_12.mp3 +"june, 2023",audio_62_13.mp3 +"Money was not repaid by the accused. Thereafter, complainant has filed the present complaint Cas. . Material on record 2. The accused entered appearance through counsel",audio_62_14.mp3 +on 17.12.2018. Notice under S. 251 cr pc dated 07.03.2020 was framed accordingly to which the accused pleaded not guilty and claimed trial. The accused,audio_62_15.mp3 +stated that the blank signed cheques were used to be kept in his office for daily use and the same were taken from the said,audio_62_16.mp3 +office and misused. 3. The complainant relied upon the following documents: a) acknowledgement of settled and receipts dated 30.11.2017 is mark a & mark b.,audio_62_17.mp3 +B) original cheque in question is ex.cw1/a. C) original returning memo is ex.cw1/b. D) copy of legal notice is ex.cw1/c. E) original receipts of postal,audio_62_18.mp3 +Dept. is ex.cw1/d to ex.cw1/f. F) copy of delivery report is ex.cw1/g to ex.cw1/i. 4. During the course of the trial the complainant examined himself,audio_62_19.mp3 +as cw 1 and one vijay thakur as cw 2. The complainant adopted his pre-summoning evidence as post summoning evidence and was cross examined on,audio_62_20.mp3 +"26.04.2022. In his post summoning evidence, the complainant also relied on original document ex.cw1/j (being the proof of appointment) (this was objected by the counsel",audio_62_21.mp3 +for accused as the same was not filed at the time of pse). (court observation: the objection is decided in the favour of the complainant,audio_62_22.mp3 +as he is filing the original document at the time of post summoning evidence). The complainant further relied on ex.cw1/k which is the proof of,audio_62_23.mp3 +my salary in the firm. I further reply upon id proof ex.cw1/l(osr). 5. In his cross examination the complainant stated that alkarma is a firm.,audio_62_24.mp3 +"He affirmed that ex.cw1/j, ex.cw1/k and ex.cw1/l were not issued by any partner/accused. He voluntarily stated that the same was issued by the manager of",audio_62_25.mp3 +the firm. He denied the suggestion that the manager was not authorised to issue the above said documents. He also affirmed that in all the,audio_62_26.mp3 +"documents ex.cw1/j, ex.cw1/k and ex.cw1/l nothing with respect to due amount has been mentioned. He denied the suggestion that documents ex.cw1/j and ex.cw1/k has intentionally",audio_62_27.mp3 +and deliberately been issued by vijay thakur in order to settle his personal score and to extort money from the accused despite having no authorisation,audio_62_28.mp3 +in his favour to issue the said documents. He also denied the suggestion that the aforementioned documents are forged and fabricated. That he have beenmanan,audio_62_29.mp3 +"vs. . M/s alkarma page 1 of 24 on 8 june, 2023",audio_62_30.mp3 +6. He further affirmed that aforesaid documents do not bear the signature of sandeep chaudhary. He voluntarily stated that the above said documents were issued,audio_62_31.mp3 +by the firm. That he was working as supervisor in the accused firm as the same is reflecting in above said document. That the accused,audio_62_32.mp3 +never entered into any written settlement with him. He voluntarily stated that the accused has verbally assured in the presence of other employees and also,audio_62_33.mp3 +"directed one mr. Vijay thakur, sr. Manager accounts to draft a settlement with him. He further voluntarily stated that he had been supplied a photocopy",audio_62_34.mp3 +of the documents which is framed by mr. Vijay thakur at the behest of the accused which is mark-a and mark-b. That he have not,audio_62_35.mp3 +mentioned the above said details in his complaint and evidence by way of Aff. . That he have not filed any document which shows that vijay,audio_62_36.mp3 +thakur was authorised. He denied the suggestion that vijay thakur was never authorised by the accused. He voluntarily stated that vijay thakur was working in,audio_62_37.mp3 +the capacity of sr. Manager accounts and he used to work on the directions of the accused who was the partner of the accused firm.,audio_62_38.mp3 +7. He further denied the suggestion that mr. Vijay thakur was never authorised to enter into settlement on behalf of the firm with any employee,audio_62_39.mp3 +of the firm. He voluntarily stated that vijay thakur not entered into settlement and accused only directed the vijay thakur to formulate the settlement. That,audio_62_40.mp3 +he used to go to the office of the firm whenever was called by the firm. He denied the suggestion that he entered with the,audio_62_41.mp3 +conspiracy with vijay thakur. He further denied the suggestion that he illegally took the blank signed cheque in question in connivance with vijay thakur. That,audio_62_42.mp3 +since he was the employee of the firm it is quite natural that he used to work in the premises of the firm for his,audio_62_43.mp3 +employment. He affirmed that apart from the cheque in question the remaining documents which have been filed by him till now does not bear the,audio_62_44.mp3 +signature of the accused. He denied the suggestion that he have filled the particulars of the cheque in question. He voluntarily stated that the particulars,audio_62_45.mp3 +of the cheque apart from the signature filled by mr. Vijay thakur in the presence of the accused. That there was no written document entered,audio_62_46.mp3 +between him and accused it is written that accused has issued the cheque in question to him. He voluntarily stated that the accused assured him,audio_62_47.mp3 +the cheques which he has issued will be duly honoured when the meeting took place for the purpose of settling the accounts of the employees,audio_62_48.mp3 +as it came to their information that accused is closing the firm. That he have not mentioned the above said either in his complaint or,audio_62_49.mp3 +in evidence by way of Aff. . That he is not aware whether any Cas. is pending between mr vijay thakur and accused. That as on,audio_62_50.mp3 +date he is not aware that firm is still in existence or whether the firm has been closed by the accused. He voluntarily stated that,audio_62_51.mp3 +since it is accused firm he might be aware of the same. That he do not know when the firm was closed. He denied the,audio_62_52.mp3 +suggestion that he have intentionally sent the legal notice to the address of the firm despite knowing that firm was closed in 2017. He denied,audio_62_53.mp3 +the suggestion that there is no liability against him when he left the job. He further denied the suggestion that there is no legally and,audio_62_54.mp3 +enforceable debt of the accused. He also denied the suggestion that multiple cases have been filed by him to put pressure upon accused and to,audio_62_55.mp3 +extort money. 8. He affirmed that accused used to visit outside the firm premises/office for his work. That he cannot say whether he used to,audio_62_56.mp3 +"visit the office in the absence of the accused. He voluntarily statedmanan vs. . M/s alkarma page 1 of 24 on 8 june, 2023",audio_62_57.mp3 +Accused has objected to the documents mark a and mark b as they are not originals and photocopies).(court observation: the objection is decided in favour,audio_62_58.mp3 +of the accused as they are not originals and will not be read in evidence till the originals are filed). He denied the suggestion that,audio_62_59.mp3 +"nothing was due against the accused/firm and he have already received his entire due from the accused when he left the firm. 9. The complainant,",audio_62_60.mp3 +"thereafter, examined cw 2 i.e., vijay thakur. Cw 2 adopted his evidence by way of Aff. on 26.09.2022 and relied on mark a i.e., appointment",audio_62_61.mp3 +"letter, ex cw2/a i.e., authorization letter to sign identity cards, cw 2/b i.e., Auth. letter, cw2/c i.e., emails and ex cw2/d. 10. In his cross-examination",audio_62_62.mp3 +cw 2 stated that he has been working with the accused Co. since 16.02.1993 till february 2018. That initially he joined as an accountant and,audio_62_63.mp3 +left the services as Sr. manager accounts and administration. That he have not filed any appointment and designation letter on record. That he do not,audio_62_64.mp3 +remember his starting salary when he joined the accused Co. since its long time back. That at the time when he left the services of,audio_62_65.mp3 +"the accused Co. he was earning Rs. 1,30,000/-. That he is residing in his own house. That he brought the same in 1996 from his",audio_62_66.mp3 +earnings. That he cannot remember his salary in the year 1996. He denied the suggestion that he was not honest in his work with the,audio_62_67.mp3 +accused firm. He denied the suggestion that he have duped amount from the accused firm. He also denied the suggestion that he used to manipulate,audio_62_68.mp3 +the records of the accused firm. That he have brought the id card issued by the accused firm which is ex. Cw-2/e (osr). He affirmed,audio_62_69.mp3 +that the signature at point a reflecting issuing Auth. are his signature. He voluntarily stated that he have been authorized by the accused to sign,audio_62_70.mp3 +the identity cards on behalf of the accused firm which is ex. Cw2/a. He denied the suggestion that he used to issue and misuse his,audio_62_71.mp3 +"Auth. to sign without prior knowledge and consent of the accused. At this stage, the counsel for the accused confronted mark a & b of",audio_62_72.mp3 +cw1. He affirmed the suggestion that mark a & b does not bear the signature of any partner of alkarma. He voluntarily stated that he,audio_62_73.mp3 +had sought the Auth. letter from the accused with respect to signing on mark a & b which was given to him on 08.01.2018 which,audio_62_74.mp3 +is ex. Cw2/b. He further affirmed that the signature at point a in mark a & b of cw1 belongs to him. He further affirmed,audio_62_75.mp3 +that he was not having any written authorization in his favour to sign in mark a & b on behalf of the accused Co. . He,audio_62_76.mp3 +voluntarily stated that he was having oral directions and approval of the accused. He voluntarily stated that since he was working in continuity with the,audio_62_77.mp3 +accused firm he was under direction from the accused to sign mark a & b whereas the accused in writing had issued the Auth. letter,audio_62_78.mp3 +to him on 08.01.2018 with respect to entering into mark a & b of cw1 on behalf of the accused firm. He further affirmed that,audio_62_79.mp3 +the ex. Cw2/b does not mention that the same would be having retrospective effect pertaining to mark a & b. He voluntarily stated that since,audio_62_80.mp3 +the talks of full and final settlement were running in continuity he was authorized under directions to sign mark a and b although the Auth. ,audio_62_81.mp3 +in writing was given to him on 08.01.2018. He denied the suggestion that he was not authorized by any partner of the accused firm to,audio_62_82.mp3 +"enter into the settlement on behalf of accused firm on 30.11.2017. At this stage, themanan vs. . M/s alkarma page 1 of 24 on 8",audio_62_83.mp3 +"june, 2023",audio_62_84.mp3 +Are not of the year 2017. He voluntarily stated that emails which are ex. Cw2/c are the communications made by him with the accused only,audio_62_85.mp3 +with respect to his full and final settlement. He also voluntarily stated that the accused in this email ex. Cw2/c has stated that he will,audio_62_86.mp3 +settle his payment also as he has done with Ors. too. That there was around 40 staff members approx of the accused firm in the,audio_62_87.mp3 +year 2017. That there were about 160 approx workers of the accused firm in the year 2017. He affirmed that the name of the complainant,audio_62_88.mp3 +does not find any mention in ex. Cw2/c. He denied the suggestion that he was not having Auth. to enter into full and final settlement,audio_62_89.mp3 +with the complainant on behalf of the accused and his firm. He denied the suggestion that the ex cw2/b is forged and fabricated. He also,audio_62_90.mp3 +denied the suggestion that ex. Cw2/b is forged and fabricated by typing on blank paper. He also denied the suggestion that he had entered into,audio_62_91.mp3 +mark a and mark b of cw1 behind the back of the accused and without his knowledge on commission basis. He denied the suggestion that,audio_62_92.mp3 +he had been indulging in creating forged and fabricated documents. He denied the suggestion that the accused has no liability whatsoever against the accused. He,audio_62_93.mp3 +also denied the suggestion that he was in possession of blank signed cheque book of the accused. He denied the suggestion that he have misused,audio_62_94.mp3 +the cheque in question in connivance with the complainant. He further denied the suggestion that he have created various kinds of letters documents without the,audio_62_95.mp3 +permission of the accused. He also denied the suggestion that he have misused his power and position in the accused firm and have acted in,audio_62_96.mp3 +utter violations in his responsibility. He affirmed that there is a cheque bounce Cas. pending between him and the accused. He affirmed that settlement which,audio_62_97.mp3 +has been placed by him in his Cas. is not signed by any partner of the accused firm. That he cannot answer who has signed,audio_62_98.mp3 +the settlement which has been placed by him in his Cas. . 11. The complainant thereafter closed his evidence. 12. The statement of the accused under,audio_62_99.mp3 +S. 313 crpc was then recorded on 03.01.2023. He stated that the documents which have been furnished by cw2 were never authorized by him. That,audio_62_100.mp3 +they are forged and fabricated. That the e-mail which have been furnished has no relevance to the present matter. That there exists no due on,audio_62_101.mp3 +him with respect to the complainant. That whatever due which he had has already been paid by him to the complainant. That the cheque in,audio_62_102.mp3 +question were in possession of the vijay thakur for business purposes since he used to travel abroad and he had issued instructions that the cheque,audio_62_103.mp3 +"would not be issued without his knowledge. However, the cheques in question have been misused by vijay thakur. That he have never given any authorization",audio_62_104.mp3 +"to anyone. 13. The accused opted to lead his defence evidence, however, on 27.02.2023 he closed his de. 14. Evidences and documents on record perused",audio_62_105.mp3 +"carefully. Arguments heard. Law pointmanan vs. . M/s alkarma page 1 of 24 on 8 june, 2023",audio_62_106.mp3 +Governs the adjudication of cases under S. 138 ni act. A bare reading of S. 138 ni act reveals that in addition to the cheque,audio_62_107.mp3 +"being issued for the discharge, in whole or in part, of any debt or other liability; following are the ingredients which constitute an offence:- a.",audio_62_108.mp3 +That a person drew a cheque on an account maintained by him with the banker; a. That such a cheque when presented to the bank,audio_62_109.mp3 +is returned by the bank unpaid; b. That such a cheque was presented to the bank within a period of six months from the date,audio_62_110.mp3 +it was drawn or within the period of its validity whichever is earlier; c. That the payee demanded in writing from the drawer of the,audio_62_111.mp3 +cheque the payment of the amount of money due under the cheque to payee; and d. Such a notice of payment is made within a,audio_62_112.mp3 +period of 30 days from the date of the receipt of the information by the payee from the bank regarding the return of the cheque,audio_62_113.mp3 +"as unpaid. (para 26, n. Harihara krishnan vs. j. Thomas, (2018) 13 scc 663, referred to in himanshu vs. b. Shivamurthy (2019) 3 scc 797)",audio_62_114.mp3 +"16. S. 138 is to be r/w the presumption, being a rebuttable presumption, as contained in S. 139. S. 139 provides that: ""presumption in",audio_62_115.mp3 +"favour of holder - it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature",audio_62_116.mp3 +"referred to in S. 138 for the discharge, in whole or in part, of any debt or other liability."" 17. Thus, in cheque bouncing cases,",audio_62_117.mp3 +"the judicial scrutiny revolves around the satisfaction of ingredients enumerated under S. 138 ni act and if so, whether the accused was able to rebut",audio_62_118.mp3 +the statutory presumption contemplated by S. 139 ni act. S. 139 is an example of reverse onus Cl. which usually imposes an evidentiary burden and,audio_62_119.mp3 +"not a persuasive burden. In other words, evidence of a character, not to prove a fact affirmatively, but to lead evidence to show non- existence",audio_62_120.mp3 +"of a liability. Further the law is well settled that when an accused has to rebut the presumption under S. 139, the standard of proof",audio_62_121.mp3 +"of doing so is that of ""preponderance of probability"" (rangappa vs. sri mohan (2010) 11 scc 441). Once execution of cheque is admitted, it is",audio_62_122.mp3 +"a legal presumption under S. 139 of negotiable instrument act, the cheque was issued for discharging legally enforceable debt. 18. Attention is also invited to",audio_62_123.mp3 +"S. 118(a) wherein a presumption of the cheque having been issued in discharge of a legally sustainable liability and drawn for good consideration, arises. S. ",audio_62_124.mp3 +"118 of the n.i act provides:- ""presumptions as to negotiable instruments: until the contrary is proved, the following presumptions shall be made: (a) of consideration",audio_62_125.mp3 +"- that every negotiable instrument was made or drawn for consideration, and that every such instrument,manan vs. . M/s alkarma page 1 of 24 on",audio_62_126.mp3 +"8 june, 2023",audio_62_127.mp3 +"Indorsed, negotiated or transferred for consideration;"" 19. Hence, it can be seen that from its very inception a presumption that the cheque was issued in",audio_62_128.mp3 +discharge of a debt or other liability subsists in favour of the complainant and onus rests upon the accused to rebut the existing presumption on,audio_62_129.mp3 +"the touchstone of preponderance of probability. 20. Further, the accused in a trial under S. 138 has two options. He can either show that consideration",audio_62_130.mp3 +and debt did not exist or that under the particular circumstances of the Cas. the non-existence of consideration and debt is so probable that a,audio_62_131.mp3 +"prudent man ought to suppose that no consideration and debt existed (para 20, kumar exports vs. sharma carpets (2009) 2 scc 513). The accused can",audio_62_132.mp3 +"also show that he has already returned the amount taken by him. Analysis & conclusion 21. Now, the law is also well settled that ""once",audio_62_133.mp3 +"the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated",audio_62_134.mp3 +"under S. 139 of the NI Act has to be raised by the court in favor of the complainant."" (rangappa vs. mohan, air 2010",audio_62_135.mp3 +"SC 1898). Reference can also be made to k. Bhaskaran vs. . Sankaran vaidhyan balan 1999 (4) rcr (Crl. ) 309, wherein it has been",audio_62_136.mp3 +"held by the Hon'ble SC as under: ""as the signature in the cheque is admitted to be that of the accused, the presumption envisaged",audio_62_137.mp3 +in S. 118 of the act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque,audio_62_138.mp3 +bears. S. 139 of the act enjoins on the court to presume that the holder of the cheque received it for the discharge of any,audio_62_139.mp3 +"debt or liability."" 22. Now,in this matter, the accused has admitted his signature. Therefore, the presumption under S. 139 ni act does get raised in",audio_62_140.mp3 +"favor of the complainant and against the accused. Thus, the accused now has to rebut the presumption on the touchstone of preponderance of probabilities. Further,",audio_62_141.mp3 +"the accused has not lead his defence evidence. However, the law is also well settled that the accused in order to rebut the presumption need",audio_62_142.mp3 +not to step into the witness box or lead his defence evidence. The accused can through the material brought on record by the complainant can,audio_62_143.mp3 +"also rebut the presumption existing against him. 23. At the outset, on the close scrutiny and appraisal of the original cheque in question marked as",audio_62_144.mp3 +"ex cw1/a it clearly transpires that the same had been issued as per the above details. Further, the cheque in question got dishonored vide returning",audio_62_145.mp3 +"memos dated 28.06.2018 with remarks ""funds insufficient"" marked as ex cw 1/b. Thus, one of the essential ingredients of S. 138 i.e., that a person",audio_62_146.mp3 +drew a cheque on an account maintained by him with the banker; and that such a cheque when presented to the bank is returned by,audio_62_147.mp3 +"the bank unpaid, stands fulfilled. Further, on a co-joint reading of the cheque in question ex cw 1/a, return memo ex cw 1/b, it also",audio_62_148.mp3 +"stands proved thatmanan vs. . M/s alkarma page 1 of 24 on 8 june, 2023",audio_62_149.mp3 +24. The legal notice dated 10.07.2018 ex cw-1/c further proves that the same was issued on 10.07.2018 and dispatched vide postal receipts ex cw1/d to,audio_62_150.mp3 +"ex cw1/f. Now, the accused has denied the receipt of legal notice. 25. The Hon'ble SC in k bhaskaran vs. sankaran vaidhyan balan (1999)",audio_62_151.mp3 +"7 scc 510 in para 18 observed thus: ""......'giving notice' in the context is not the same as 'receipt of notice'. Giving is a process",audio_62_152.mp3 +"of which receipt is the accomplishment. It is for the payee to perform the former process i.e. Giving, by sending the notice to the drawer",audio_62_153.mp3 +"at the correct address....."" 26. Further, in para 24 of the above said judgment the Hon'ble SC held that where the sender has dispatched",audio_62_154.mp3 +"the notice by post with correct address written on it, the principle Inc. in S. 27 of general clauses act could profitably be imported in",audio_62_155.mp3 +such a Cas. . It was further held that in this situation service of notice is deemed to have been effected on the sendee. 27. Law,audio_62_156.mp3 +with respect to the delivery of legal notice by post and the presumption with respect to the same has been succinctly put forth by the,audio_62_157.mp3 +Hon'ble SC in c c alavi haji vs. palapetty muhammed (2007) 6 scc 555. Para 13 & 14 of the judgment is worth mentioning,audio_62_158.mp3 +"as under: ""13. According to S. 114 of the act, r/w illustration (f) thereunder, when it appears to the court that the common course",audio_62_159.mp3 +"of business renders it probable that a thing would happen, the court may draw presumption that the thing would have happened, unless there are circumstances",audio_62_160.mp3 +"in a particular Cas. to show that the common course of business was not followed. Thus, S. 114 enables the court to presume the existence",audio_62_161.mp3 +"of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and",audio_62_162.mp3 +"Pvt. business in their relation to the facts of the particular Cas. . Consequently, the court can presume that the common course of business has been",audio_62_163.mp3 +"followed in particular cases. When applied to communications sent by post, S. 114 enables the court to presume that in the common course of natural",audio_62_164.mp3 +"events, the communication would have been delivered at the address of the addressee. But the presumption i.e. raised under S. 27 of the g.c.",audio_62_165.mp3 +"Act is a far stronger presumption. Further, while S. 114 of evidence act refers to a general presumption, S. 27 refers to a specific presumption",audio_62_166.mp3 +14. S. 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered,audio_62_167.mp3 +"post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it",audio_62_168.mp3 +"is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served",audio_62_169.mp3 +"or that themanan vs. . M/s alkarma page 1 of 24 on 8 june, 2023",audio_62_170.mp3 +"Proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in",audio_62_171.mp3 +"the ordinary course of business. 28. Thus, in view of the law as above said and the fact that the address given by accused in",audio_62_172.mp3 +his notice under S. 251 crpc being the same address which finds mention in the legal notice and that the legal notice was duly dispatched,audio_62_173.mp3 +"through postal receipt, the mandatory statutory legal notice marked as ex cw 1/c is deemed to have been served on the accused in the present",audio_62_174.mp3 +"Cas. . Thus, the factum of issuance and receipt of mandatory statutory legal notice also stands proved based on the documentary evidence of legal notice, postal",audio_62_175.mp3 +"receipts. It has been also proved that despite issuance of legal notice, the accused had failed to make the payment of the cheque amount. 29.",audio_62_176.mp3 +"Before noting the line of defence of the accused that can be deduced through the cross examination of the complainant witnesses, it is apposite to",audio_62_177.mp3 +note the admitted facts in the present matter: a) the accused is a partnership firm. This has been established in view of the consistent position,audio_62_178.mp3 +"of cw 1 as well as cw 2. Furthermore, nowhere during the course of the trial the accused has disputed that alkarna is not a",audio_62_179.mp3 +partnership firm. Not a single suggestion disputing alkarma not being a partnership firm has been put forth by the accused. B) accused sandeep chaudhary is,audio_62_180.mp3 +the partner and authorized signatory of accused alkarma firm. The same stands proved on a co-joint reading and perusal of the cheque in question and,audio_62_181.mp3 +notice under S. 251 crpc. The accused sandeep chaudhary has admitted his signatures on the cheque in question and perusal of the cheque reflects that,audio_62_182.mp3 +"the same is belong to ""alkarma"" of which sandeep chaudhary is the authorized signatory. Furthermore, it is also not the Cas. of the accused that",audio_62_183.mp3 +he is not the authorized signatory/partner of accused alkarma. C) complainant used to work for the accused alkarma. This has also not been disputed by,audio_62_184.mp3 +the accused. Not a single suggestion or question has been put by the accused which could directly or indirectly goes on to establish that it,audio_62_185.mp3 +is the Cas. of the accused that the complainant has no connection whatsoever with the accused alkarma firm or that complainant was never an employee,audio_62_186.mp3 +"of the accused firm. As a matter of fact, ex cw1/j i.e., proof of appointment and ex cw1/k i.e., proof of salary brought on record",audio_62_187.mp3 +by the complaint further cements the position that the complainant indeed was the employee of accused alkarma firm. 30. In order to rebut the presumption,audio_62_188.mp3 +"existing in favor of the complainant, the accused through the cross examination and notice under S. 251 crpc attempted to create following line of defence:",audio_62_189.mp3 +"a) the cheque in question was never issued to the complainant.manan vs. . M/s alkarma page 1 of 24 on 8 june, 2023",audio_62_190.mp3 +Outstanding amount claimed by the complainant. C) the blank signed cheques were used to be kept in his office for daily use and the same,audio_62_191.mp3 +were taken from the said office and misused. (notice under S. 251 crpc.) d) the cheque in question were in possession of cw2 vijay thakur,audio_62_192.mp3 +and the same has been misused by vijay thakur and never gave authorization to anyone regarding the issuance of cheque in question. (statement under S. ,audio_62_193.mp3 +313 crpc.) e) whatever documents that have been brought on record by the complainant and his witness are forged and fabricated and were never created,audio_62_194.mp3 +"by him. F) whatever due, if any, is there against him has already been paid by him to the complainant. (statement under S. 313 crpc.)",audio_62_195.mp3 +31. The line of defence raised by the accused appears to be incredible. In his notice under S. 251 crpc he only stated that blank,audio_62_196.mp3 +"signed cheques used to be kept in his office for daily use and the same were taken from the said office and misused. Here, the",audio_62_197.mp3 +"accused never even mentioned as to who took the said cheques or when the said cheques were taken. However, only when the complainant examined cw",audio_62_198.mp3 +"2 i.e., vijay thakur, the accused in his statement under S. 313 crpc modified and changed his position and stated that the cheque in question",audio_62_199.mp3 +were in possession of vijay thakur and the same have been misused by vijay thakur. 32. During the course of the trial objection was raised,audio_62_200.mp3 +with respect to full and final settlement brought on record since the same was not original. The objection was also decided in favor of the,audio_62_201.mp3 +"accused. However, mere absence of settlement agreement by itself does not in any manner create probable defence in favor of the accused, viewed specifically in",audio_62_202.mp3 +"the light of the fact that the complainant was the employee of the accused firm and further cw1 i.e., the complainant and cw 2 i.e.,",audio_62_203.mp3 +"vijay thakur through their testimony has been able to establish that a settlement was arrived between the accused firm and the complainant. 33. Furthermore, the",audio_62_204.mp3 +"accused never initiated any complaint or legal proceedings with respect to the misuse of the cheque. As a matter of fact, there exists a total",audio_62_205.mp3 +of 5 cheques bounce cases pending between the accused and the complainant in the same court. A total of 33 cases are pending against the,audio_62_206.mp3 +accused with respect to multiple cheques in the same court. It is highly unnatural and improbable that where close to three dozen cheque bounce cases,audio_62_207.mp3 +"have been filed against the accused and he takes a stand that all the cheques have been misused, not a single complaint or legal proceedings",audio_62_208.mp3 +or even a stop payment instruction has been initiated by the accused. This conduct of the accused further weakens his line of defence.manan vs. .,audio_62_209.mp3 +"M/s alkarma page 1 of 24 on 8 june, 2023",audio_62_210.mp3 +"Well as cw 2 i.e., vijay thakur, the counsel of the accused took a line of defence that the documents which has been filed on",audio_62_211.mp3 +"record i.e., settlement, does not bear the signature of the accused and only of vijay kumar cw 2. He has further through the cross examination",audio_62_212.mp3 +of the complainant as well as his witness attempted to establish that cw 2 was never authorized by the accused to enter into any settlement,audio_62_213.mp3 +"with the complainant. This line of defence also does not hold much water. It stands proved through the testimony of cw 2 i.e., vijay thakur",audio_62_214.mp3 +that he was also the employee of accused firm and was working in the position of Sr. manager. The same also stands proved through the,audio_62_215.mp3 +documents which has been brought on record by cw 2 which are on the letter head of the accused firm. 35. Cw 2 further brought,audio_62_216.mp3 +on record authorization letter dated 08.01.2018 ex cw2/b which does establish that he was duly authorized. Although the accused did attempt to show that since,audio_62_217.mp3 +"the settlement was dated 30.11.2017 and whereas the authorization letter ex cw2/b is of 08.01.2017, cw 2 was never authorized to enter into any settlement",audio_62_218.mp3 +"agreement on behalf of the accused. However, a plausible explanation to this effect was given by cw 2 in his cross examination that since he",audio_62_219.mp3 +was working in continuity with the accused firm he was under directions form the accused to sign mark a and mark b whereas the accused,audio_62_220.mp3 +in writing had issued the Auth. letter to him on 08.01.2018. It is proved that cw 2 has been working in the position of Sr. ,audio_62_221.mp3 +"manager with accused alkarma and was also authorized to issue identity cards to the employees of the accused alkarma. Further, cw 2 has been working",audio_62_222.mp3 +"in the accused firm since 1993. In view the abovesaid long tenure and responsible position, the delay of merely a month in the issuance of",audio_62_223.mp3 +the authorization letter does not create any reasonable doubt that cw 2 was never authorized by accused sandeep chaudhary to enter into settlement on behalf,audio_62_224.mp3 +"of accused firm. 36. Furthermore, a suggestion was put during the cross examination of cw 2 that ex cw2/b i.e., the authorization letter is forged",audio_62_225.mp3 +"and fabricated. However, mere suggestion by itself does not prove that the document is forged and fabricated. Something more ought to be brought on record",audio_62_226.mp3 +to establish the same. It is not the Cas. of the accused that he has initiated any Crl. proceedings with respect to the forging and,audio_62_227.mp3 +"fabrication of ex cw2/b. No material whatsoever has been brought on record by accused to even suggest the same. Thus, it stands proved that cw",audio_62_228.mp3 +2 was authorized to enter into settlement agreement on behalf of accused firm with the complainant. 37. The accused had an option to examine himself,audio_62_229.mp3 +"as a witness which the accused opted not to avail. Where the accused does not examine himself as a witness, his statement under S. 281",audio_62_230.mp3 +cr. P.c. Or 313 cr. P.c. Cannot be read as evidence of the accused and it has to be looked into only as an explanation,audio_62_231.mp3 +of the incriminating circumstance and not as evidence. There is no presumption of law that explanation given by the accused was truthful (v.S. yadav vs. ,audio_62_232.mp3 +"reena 2010 scc online del 3294). In the present matter, in his statement under S. 313 crpc the accused stated that the documents brought by",audio_62_233.mp3 +"cw 2 were never authorized by him and they are forged and fabricated. If the accused wanted to prove this, he was supposed to appear",audio_62_234.mp3 +"in the witness box and testify and get himself subjected to cross examination. Furthermore, nothing came in the cross examination of cw 2 so as",audio_62_235.mp3 +"to cast any doubt on the documents brought on record by him.manan vs. . M/s alkarma page 1 of 24 on 8 june, 2023",audio_62_236.mp3 +There is nothing due against the accused/firm and that the complainant has already received his entire due from the accused when he left the firm.,audio_62_237.mp3 +"In other words, it is the stand of the accused that he has already paid the entire due when the complainant left the firm and",audio_62_238.mp3 +"no due is left against the accused/firm. The same was, however, denied by the complainant. The abovesaid position of the accused further stands corroborated through",audio_62_239.mp3 +the statement of the accused under S. 313 crpc wherein the accused stated that whatever due which he had has already been paid by him,audio_62_240.mp3 +"to the complainant. 39. At this juncture it is pertinent to note that in terms of S. 1 sub-S. (4) of payment of wages act,",audio_62_241.mp3 +"the act is applicable to a factory. Now, the accused firm alkarma is a factory. The same is proved on perusal of form no 3a",audio_62_242.mp3 +"i.e., notice of change of manager brought on record by cw 2. 40. S. 13 a of payment of wages act is as follows: [13a.",audio_62_243.mp3 +"Maintenance of registers and records.--(1) every employer shall maintain such registers and records giving such particulars of persons employed by him, the work performed by",audio_62_244.mp3 +"them, the wages paid to them, the deductions made from their wages, the receipts given by them and such other particulars and in such form",audio_62_245.mp3 +"as may be prescribed. (2) every register and record required to be maintained under this S. shall, for the purposes of this act, be preserved",audio_62_246.mp3 +"for a period of three years after the date of the last entry made therein.] 41. Thus, as can be seen S. 13a mandates that",audio_62_247.mp3 +"an employer shall maintain registers and records of person employed by him, work performed, wages paid, deductions made, and receipts given. Alkarma being a factory",audio_62_248.mp3 +was therefore required to maintain the registers as per the labor legislations. The accused brought no registers maintained by him in this regard. If the,audio_62_249.mp3 +"stand of the accused is that he had already paid all the dues to the complainant, he ought to have brought the registers which were",audio_62_250.mp3 +"maintained by him reflecting the same, however, the accused brought nothing on record. Thus, adverse inference needs to be drawn against the accused firm and",audio_62_251.mp3 +"further the defence raised by the accused regarding due payment already been made to the complainant stands rejected. 42. The present matter, as per the",audio_62_252.mp3 +memo of parties has been filed against m/s alkarma through its partner sandeep chaudhary. In the complaint there exists a separate averment that accused sandeep,audio_62_253.mp3 +"chaudhary is partner of m/s alkarma and was/is looking after day-to-day affairs and is the authorized signatory of the Co. . Further, accused sandeep chaudhary signed",audio_62_254.mp3 +on the cheque in question as the authorized signatory of alkarma. Notice under S. 251 crpc was also framed against accused sandeep chaudhary as partner,audio_62_255.mp3 +of accused alkarma. It is also not the Cas. of the accused sandeep chaudhary that he is not the partner or authorized signatory of accused,audio_62_256.mp3 +alkarma. In fact the entire defence of accused sandeep chaudhary was raised on the premise that accused sandeep chaudhary is the partner of accused alkarma.,audio_62_257.mp3 +"Hence, in the present matter the accusedmanan vs. . M/s alkarma page 1 of 24 on 8 june, 2023",audio_62_258.mp3 +"Sandeep chaudhary is also vicariously liable in terms of S. 141 ni act being the partner of accused firm. 43. Thus, in view of the",audio_62_259.mp3 +"oral and documentary evidence brought on record by the complainant, statement of the accused under S. 313 cr.p.c, the accused has failed to create a",audio_62_260.mp3 +dent/doubt in the Cas. of the complainant and it is clear that the accused had committed an offence under S. 138 of the negotiable instruments,audio_62_261.mp3 +"act. Further, the complainant has also been able to establish his Cas. . 44. On the basis of the above said analysis and conclusions arrived, the",audio_62_262.mp3 +accused viz. i) m/s alkarma and ii) sh sandeep chaudhary s/o shri subhash chaudhary is convicted for the commission of the offence punishable under S. ,audio_62_263.mp3 +138 of the act. This judgment contains 24 pages. Every page of this judgment has been signed by me. Announced in the open court harshal,audio_62_264.mp3 +"by harshal negi negi on this day of 08th june, 2023 date: 2023.06.08 16:31:35 +0530 (harshal negi) mm(ni act)-05/south-west district dwarka courts/new delhimanan vs. .",audio_62_265.mp3 +"M/s alkarma page 1 of 24 on 8 june, 2023",audio_62_266.mp3 +"M.kempaiah vs. g.t.muralidhar on 4 december, 2020 in the court of the xxiii addl.chief metropoliton magistrate, nrupathunga road, bengaluru city dated this the 4th day",audio_63_1.mp3 +"of december - 2020 present: sri. Shridhara.m, b.a., ll.m., xxiii addl.c.m.m., bengaluru city. C.c.no. 21082/2017 judgment under S. 355 of Cr.P.C. complainant",audio_63_2.mp3 +": m.kempaiah, s/o.mayanna, aged about 49 years, r/at no.22, 5th main road, kandayana badavane, annapurneshwari nagar, nagarabhavi 2nd stage, bengaluru-91. (rep. By sri.d.m.kumar, adv.) v/s",audio_63_3.mp3 +"accused : g.t.muralidhar, s/o.thirumalagiriyappa, r/at. No.4, kalabyraveshwara nilaya, behind aroghya badavane, 3b- 1st main road, 11th cross, srigandadakaval, bengaluru-91. (rep.by sri.d.raghu prakash babu, adv.) offence",audio_63_4.mp3 +complained of : u/S. 138 of NI Act . Plead of the accused : not guilty. Final order : accused is acquitted. Date of order,audio_63_5.mp3 +": 04.12.2020. (shridhara.m) xxiii addl.cmm., bengaluru. Judgment 2 c.c.no.21082/2017 judgment the complainant has presented the instant complaint against the accused on 19.07.2017 under S. 200",audio_63_6.mp3 +"of Cr.P.C. for the offence punishable under S. 138 of NI Act , for dishonour of cheque of rs.3 lakhs.m.kempaiah vs. g.t.muralidhar",audio_63_7.mp3 +"on 4 december, 2020",audio_63_8.mp3 +The accused was friend of complainant and he was tenant under the complainant. The accused was doing flower decoration in kalyana mantapa. The accused for,audio_63_9.mp3 +"the purpose of purchasing flower decoration materials and develop his flower decoration business, during the 1st week of june, 2016 approached the complainant and seeking",audio_63_10.mp3 +"for hand loan of rs.6 lakhs. The complainant on trusted the accused agreed to help him. Accordingly, on 21.06.2016 the complainant gave rs.6 lakhs to",audio_63_11.mp3 +"the accused. The accused on the said day itself, got executed loan agreement to the complainant and undertakes to repay the same within six months.",audio_63_12.mp3 +"The complainant has averred that, after lapse of agreed period of 6 months, the complainant went to the accused and requested and demanded for repayment",audio_63_13.mp3 +"of the said loan amount of rs.6 lakhs, the accused told him that, since rs.500/- and judgment 3 c.c.no.21082/2017 rs.1,000/- denomination notes were not circulated",audio_63_14.mp3 +"on account of demonetization and there were ups and down in his business, therefore, took time and assured to repay today or tomorrow. Finally, on",audio_63_15.mp3 +"01.05.2017, the accused gave cheque bearing no.024458 dated:08.05.2017 for sum of rs.3 lakhs and Anr. cheque bearing no.628262 dated:03.06.2017 for sum of rs.3 lakhs, both",audio_63_16.mp3 +"the cheques are drawn on axis bank and karnataka bank ltd., of rajarajeshwarinagar branch, bengaluru and handed over the said 2 cheques and assured the",audio_63_17.mp3 +"complainant to present them on the date made mentioned therein. The complainant has further alleged that, as per the instructions of accused, when the complainant",audio_63_18.mp3 +"has presented the cheque bearing no.024458 dated:08.05.2017 for encashment through his banker viz., the then state bank of mysore, cotton pet branch, bengaluru. After seeing",audio_63_19.mp3 +"the bank endorsement dated:09.05.2017, the said cheque came to be dishonoured for the reasons ""account closed"". Thereafter, he try to brought the said fact to",audio_63_20.mp3 +"the notice of accused and whenever he try to contact the accused, the accused avoided the complainant. Finally, on 07.06.2017 the complainant gave cheque bounce",audio_63_21.mp3 +"notice demanding the accused to pay the amount covered under the cheque. The accused after receipt of legal notice, caused judgment 4 c.c.no.21082/2017 untenable reply,",audio_63_22.mp3 +"but not paid the amount covered under the cheque. Thereby, he committed the offence punishable under S. 138 of NI Act . Hence, filed the",audio_63_23.mp3 +"present complaint. 3. After receipt of the Pvt. complaint, my predecessor in office took the cognizance and got registered the pcr and recorded the sworn",audio_63_24.mp3 +"statement. Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process. 4. In response to the summons, the",audio_63_25.mp3 +"accused appeared through his counsel and obtained bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to",audio_63_26.mp3 +"him, wherein, he denied the same and claimed to have the defence.m.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_63_27.mp3 +Exs.p1 to p6. The pw.1 is also choosen to examine one witness to the said transaction by name mr. P.kannan as pw.2. The pw.1 and,audio_63_28.mp3 +"pw.2 were subjected for cross-examination by the Adv. for the accused. In the cross-examination of pw.1, accused counsel got judgment 5 c.c.no.21082/2017 confronted three documents",audio_63_29.mp3 +"and same are marked as exs.d1 to d3. 6. Thereafter, incriminating evidence made against the accused was recorded under S. 313 of cr.p.c, wherein the",audio_63_30.mp3 +"accused denied the same and answer given by him was recorded. In support of the defence, the accused himself was examined as dw.1 and got",audio_63_31.mp3 +"marked ex.d4 and also subjected for cross- examination by the Adv. for the complainant. In the cross- examination of dw.1, complainant counsel got confronted two",audio_63_32.mp3 +documents and same are marked as exs.p7 and p8. 7. Accused counsel has addressed his side arguments through video conference. Complainant counsel has not addressed,audio_63_33.mp3 +"his side arguments. Inspite of given liberty to file his written arguments, but complainant counsel has not submitted his written arguments. 8. On going through",audio_63_34.mp3 +"the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination: 1) whether the complainant proves beyond",audio_63_35.mp3 +"the reasonable doubt that, he paid sum of rs.6,00,000/- on 21.06.2016 as hand loan to the accused, and in turn, for partial discharge of legal",audio_63_36.mp3 +"recoverable debt, the accused issued the ex.p1 judgment 6 c.c.no.21082/2017 cheque bearing no.024458, dated:08.05.2017 for sum of rs.3 lakhs drawn on axis bank, rajarajeshwarinagar branch,",audio_63_37.mp3 +bengaluru? 2) whether the complainant proves the guilt of the accused for the offence punishable under S. 138 of NI Act ? 3) what order?,audio_63_38.mp3 +"9. On appreciation of materials available on record, my findings on the above points are as under: point no.1 : in the negative point no.2",audio_63_39.mp3 +": in the negative point no.3 : as per final order, for the following: reasons : undisputed facts:- 10. The fact that, the complainant and",audio_63_40.mp3 +"accused are known to each other is not in dispute. The fact that, as per the rental agreement produced at ex.d1, the accused was tenant",audio_63_41.mp3 +"under the complainant is not in dispute. The fact that, as per ex.d1 at the time of accused was inducted as a tenant, he made",audio_63_42.mp3 +"security deposit of rs.1,50,000/- returnable after lapse of 11 months is not in dispute. The fact that, the accused got vacated the said rented premises",audio_63_43.mp3 +"of the complainant is not in dispute.m.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_63_44.mp3 +"Agreement as found in ex.d3 with jas e techno services pvt. Ltd., dated:21.12.2015 is not in dispute. The fact that, the said document, the accused",audio_63_45.mp3 +"was also signatory as per ex.d3(b) is not in dispute. The fact that, as per ex.d3 the complainant needs to supply electrical goods for carrying",audio_63_46.mp3 +"out the distribution process as per guidelines of Govt. of india is not in dispute. The fact that, the terms and conditions made mentioned in",audio_63_47.mp3 +"ex.d3 is not in dispute. The fact that, one a.manjunath, who filed cheque bounce Cas. against the sister-in-law of accused by name smt.h.J. mamatha in",audio_63_48.mp3 +"c.c.no.17828/2018 as found in exs.p7 and p8 is the friend of complainant since 10 years is not in dispute. The fact that, questioned cheque at",audio_63_49.mp3 +"ex.p1 and signature found therein belongs to the accused is not in dispute. The fact that, the bouncing of cheque and cheque as per memo",audio_63_50.mp3 +"at ex.p2 is not in dispute. The fact that, exchange of legal notices between complainant and accused as found in exs.p3 and p5 are not",audio_63_51.mp3 +"in dispute. Judgment 8 c.c.no.21082/2017 11. Point nos.1 and 2: since both the points are connected with each other, they have taken together for common",audio_63_52.mp3 +discussion in order to avoid repetition of facts. The pw.1 to prove his Cas. choosen to examined himself and filed Aff. by reiterating the complaint,audio_63_53.mp3 +"averments in toto, and produced the documents at exs.p1 to p8, they are: a) ex.p1 is the cheque bearing no.024458 issued by the accused for",audio_63_54.mp3 +"sum of rs.3 lakhs dated:08.05.2017, drawn on axis bank, rajarajeshwarinagar branch, bengaluru. B) ex.p1(a) is the alleged signature of accused. C) ex.p2 is the bank",audio_63_55.mp3 +memo dated:09.05.2017. D) ex.p3 is the legal notice dated:07.06.2017. E) ex.p4 is the postal acknowledgment card. F) ex.p5 is the reply notice dated:23.06.2017 issued by,audio_63_56.mp3 +accused through his counsel to the complainant counsel. G) ex.p6 is the loan agreement dated:21.06.2016 executed by accused in favour of complainant regarding availment of,audio_63_57.mp3 +"loan of rs.6 lakhs. H) ex.p6(a) and p6(b) are the signatures of accused and pw.2.m.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_63_58.mp3 +"A.manjunath against one smt.h.J. mamatha and j) ex.p8 is the certified copy of Pvt. complaint in c.c.no.17828/2018 on the file of learned xxii acmm, bengaluru.",audio_63_59.mp3 +"Judgment 9 c.c.no.21082/2017 12. That apart, to prove his Cas. , the complainant got choosen to examined one Mr. sri.p.kannan as witness and who filed Aff. ",audio_63_60.mp3 +"evidence and examined as pw.2 on oath. He in his Aff. evidence has contended that, he knew the complainant and accused. On 21.06.2016 the accused",audio_63_61.mp3 +"borrowed sum of rs.6 lakhs from the complainant and on the day itself, the accused got executed loan agreement in favour of the complainant in",audio_63_62.mp3 +"his presence. The pw.2 has affixed his signature as a witness to the said loan agreement. He also stated that, the accused undertakes to repay",audio_63_63.mp3 +"the said loan within 6 months. Since, the pw.2 has identified his signature, it was marked at ex.p6(b). The pw.1 and pw.2 were subjected to",audio_63_64.mp3 +"the cross-examination by the Adv. for the accused. 13. After detailed cross-examination done by the Adv. for accused to the pw.1 and pw.2, the complainant",audio_63_65.mp3 +"got closed his side. Thereafter, whatever the incriminating evidence made against the accused was read over and explained to him as required under S. 313",audio_63_66.mp3 +"of Cr.P.C. , wherein, the accused denied the same and gave his statement that, he not borrowed loan from the complainant nor",audio_63_67.mp3 +issued the cheque to him and he is having his own defence evidence. Judgment 10 c.c.no.21082/2017 14. In order to prove the defence of the,audio_63_68.mp3 +"accused, the accused himself choosen to entered into witness box and examined as dw.1 on oath and filed Aff. evidence. 15. No doubt, in this",audio_63_69.mp3 +"Cas. , the accused was entered into witness box and filed Aff. evidence. The filing of Aff. by the accused in lieu of his probable defence",audio_63_70.mp3 +"is not opposed by the complainant. Mere because of he not sought permission under Ss. 315 and 316 of Cr.P.C. , it",audio_63_71.mp3 +does not a ground to out-rate reject the probable defence set out by the accused. Mere because S. 145(1) of NI Act does not,audio_63_72.mp3 +"expressly permit the accused to filed Aff. evidence, it does not mean that, the court cannot allow the accused to give his evidence on Aff. .",audio_63_73.mp3 +"By applying the same analogy, unless there is just and reasonable ground to refuse such permission, there is no express bar on accused to give",audio_63_74.mp3 +"evidence on Aff. either in the accused or in the court. In a decision reported in 2006 scc online, bombay 703, in a Cas. between",audio_63_75.mp3 +"peacock industries Ltd. vidhyadhar and Ors. v/s. Dudhrani finance Ltd. bombay and Anr. . Ratio layoutm.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_63_76.mp3 +"Co-operative society ltd., v/s. Nimesh b judgment 11 c.c.no.21082/2017 takore. Wherein, by citing the decisions reported in ksl and industries ltd., Cas. , it was pleased",audio_63_77.mp3 +"to observed that, the observation made by the division bench in ksl and industries ltd., Cas. , clearly indicate that, even the accused should be given",audio_63_78.mp3 +option to lead her evidence on Aff. . But such request should be made in writing as providing for S. 315(1) of Cr.P.C. ,audio_63_79.mp3 +"wherein, lordship was pleased observed that, find no justified reason to refuse permission to the accused to give his evidence on Aff. subject to the",audio_63_80.mp3 +"provisions contained in Ss. 315 and 316 of Cr.P.C. 16. That apart, in a judgment passed by the Hon'ble HC of",audio_63_81.mp3 +karnataka dated 13 th day of february 2020 in a Cas. between jagadeesh hiremath and r. Venkatesh in Crl. appeal no.907 of 2017 a/w Crl. ,audio_63_82.mp3 +"appeal no.908 of 2017 is pleased to observed that, in view of the orders of this court in Crl.P. No. 9331/2017 c/w Crl.P. ",audio_63_83.mp3 +"No. 9332/2017 dated 02.07.2019, wherein following the law laid down by the Hon'ble SC in indo international ltd., & Anr. vs. State of maharashtra",audio_63_84.mp3 +"& Anr. , 2005 Crl. l.j. 208, it is held that, ""the court dealing with a complaint under S. 138 of the said act of 1881",audio_63_85.mp3 +had an option to take evidence of the judgment 12 c.c.no.21082/2017 witnesses on the side of the prosecution as well as evidence of the accused,audio_63_86.mp3 +"and the defence witnesses, if any on Aff. "" 17. The accused in his Aff. evidence has contended that, he was a tenant in the house",audio_63_87.mp3 +of complainant. He never have any loan transaction with the complainant and he had no necessity to borrow the loan as alleged by the complainant.,audio_63_88.mp3 +The complainant has not paid any loan of rs.6 lakhs by way of cash as he alleged on 21.06.2016 and he not executed any loan,audio_63_89.mp3 +"agreement in his favour. He also contended that, he never issued any cheque much or less produced in the present Cas. as well as in",audio_63_90.mp3 +"Anr. cheque produced in c.c.no.21084/2017. 18. The accused has placed his defence in his Aff. evidence that, the complainant is well aware that, he is",audio_63_91.mp3 +"a mediator and an agent for getting a Govt. contract in respect of led bulb supplies in the rural areas. In the said transaction, the",audio_63_92.mp3 +"complainant had approached one kumar, who happened to be in the acquaintance of accused and proposed the accused to venture into the said business, which",audio_63_93.mp3 +"requires huge deposit of money. Accused had clearly expressed his inability to pay huge sum of money as deposit, however the complainant had persuaded the",audio_63_94.mp3 +"accused to do the business by guaranteeing huge judgment 13 c.c.no.21082/2017 profits and also offered unsolicited help stating that, he would pay the deposit on",audio_63_95.mp3 +"behalf of accused, in pursuance of which, the complainant took signed blank cheques and insisted to give cheque of Anr. person, would would stand as",audio_63_96.mp3 +a guaranteer. The complainant took 3 cheques from the accused and 2 cheques from his sister-in-law by name smt.h.J. mamatha. He also detailed his Anr. ,audio_63_97.mp3 +"cheque bearing no.024457 drawn on axis bank, belongs to accused and Anr. cheque bearing no.055818 drawn on state bank of india, belongs to smt.h.J. mamatha.",audio_63_98.mp3 +"The accused has further alleged that, out of the 5 cheques, 3 cheques belongs to the accused and 2 cheques were of smt.h.J. mamatha taken",audio_63_99.mp3 +"by the complainant and thereafter, he not procured the promised led bulb contract. The accused believing the complainant representations, he handed over the above mentioned",audio_63_100.mp3 +"cheques and a blank stamp paper to secure the led bulb contract in hism.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_63_101.mp3 +"Produced at exs.p1 to p6 by the complainant. The accused has further contended that, the complainant being his landlord, forced him to vacate the premises",audio_63_102.mp3 +"citing that, judgment 14 c.c.no.21082/2017 he needs same for his personal use. Accordingly, he vacated the premises on 10.03.2017, but complainant did not returned his",audio_63_103.mp3 +"security deposit till the date. When accused started repeatedly requests to him to refund the security deposit, the complainant had misused the said cheques and",audio_63_104.mp3 +"issued legal notice alleging all falsities for his illegal gain through unlawful means. There was a specific understanding between complainant and accused that, the said",audio_63_105.mp3 +stamp paper or cheques are only meant to be used for securing Govt. led bulb contract not for any other purpose. But the complainant got,audio_63_106.mp3 +"misused the stamp paper and cheque by alleging, accused executed the loan agreement. The said contention of the complainant absolutely false and it was created",audio_63_107.mp3 +"fictitious witnesses i.e., p.kannan and e.s.diwakar, those persons are not known to him at any point of time. The accused has further contended that, infact",audio_63_108.mp3 +"not 2 cheques, but 3 cheques are belonging to the accused and 2 blank cheques of his sister-in-law by name smt.h.J. mamatha was taken by",audio_63_109.mp3 +"the complainant. His sister-in-law already gave stop payment instruction to her banker, since the complainant could not returned her cheques and smt.h.J. mamatha has never",audio_63_110.mp3 +"given those cheques, which was in the possession of the accused and it was given by the accused to the complainant. Now, it is learnt",audio_63_111.mp3 +"judgment 15 c.c.no.21082/2017 that, the complainant had misused the said cheques and has filed complaint against his sister-in-law through his friend. The act of the",audio_63_112.mp3 +"complainant clearly establishes that, he committed fraud, cheating and abused the process of law. The complainant was not entitled to deposit the said cheque for",audio_63_113.mp3 +collection as no point of time consideration was ever passed to the accused in any manner. He is not liable to pay the amount covered,audio_63_114.mp3 +"under the cheque, as the same is not legally enforceable debt or liability. 19. Apart from the accused also choosen to produced the document at",audio_63_115.mp3 +"ex.d4, and also at the time of cross of pw.1, his counsel got confronted 3 documents and same are marked as exs.d1 to d3. They",audio_63_116.mp3 +are: a) ex.d1 is the house rental agreement dated: 18.06.2015 entered in to between complainant and accused. B) ex.d1(a) is the signature of accused. C),audio_63_117.mp3 +"ex.d2 is the endorsement issued by vidyaranyapura police station, bengaluru. D) ex.d3 is the copy of service provider agreement dated:21.12.2015 entered into between complainant and",audio_63_118.mp3 +"jas e techno services pvt. Ltd. E) ex.d3(a) and d3(b) are the signatures of complainant and accused.m.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_63_119.mp3 +"Gave the foundation that, its original was with the complainant and produced at ex.p6, subject to the objection from judgment 16 c.c.no.21082/2017 the Adv. for",audio_63_120.mp3 +"complainant, the said document were marked. 20. The dw.1 was subjected to the cross-examination by the Adv. for the complainant. The Adv. for complainant choosen",audio_63_121.mp3 +"to cross-examine the dw.1 and by way of confrontation since, accused has admitted the document and signatures exs.p6 to p8 were marked. The signatures of",audio_63_122.mp3 +"accused was marked at ex.d3(b) during his cross-examination. With that, the accused got closed his side. 21. On going through the rival contentions of the",audio_63_123.mp3 +"parties, it made clear that, the accused in this Cas. has seriously attack on the claim put forth by the complainant. On going through the",audio_63_124.mp3 +"materials it discloses, the complainant has brought the present Cas. against the accused based on the questioned cheque at ex.p1. Therefore, it needs to draw",audio_63_125.mp3 +"the presumption as per Ss. 118 and 139 of NI Act . As per S. 118(g), it shall be presume that, unless the contrary is",audio_63_126.mp3 +"prove, the holder of the cheque, the complainant received the cheque for discharge of legal liability. This presumption is rebuttable. Accordingly, Ss. 139 and 118",audio_63_127.mp3 +"of NI Act , it also requires to presume that, cheque was drawn for discharge of liability of drawer, it is presumption under judgment 17",audio_63_128.mp3 +"c.c.no.21082/2017 law. Therefore, it made clear that, by virtue of the above said Ss. stated, it made clear that, it requires to draw statutory presumption",audio_63_129.mp3 +"in favour of complainant that, in respect of discharge of existence of legally recoverable debt, the accused got issued the ex.p1-cheque unless and until contrary",audio_63_130.mp3 +"prove. Therefore, as per those Ss. , it made clear that, it is the initial onus on the accused to prove his Cas. based on the",audio_63_131.mp3 +"principles of 'preponderance of probabilities'. It is require to cite the decision reported in air 2010 scc 1898, in a Cas. between rangappa v/s mohan.",audio_63_132.mp3 +"Wherein, the Hon'ble apex court pleased to observe that, the obligation on the prosecution may be discharged with the help of presumption of law or",audio_63_133.mp3 +"facts, unless the accused adduce evidence showing the reasonable probability of non-existence or presumed fact. Wherein also, it was pleased to observed that, the accused",audio_63_134.mp3 +"can prove the non-existence of consideration by raising probable defence. If accused is able to discharge the initial onus of proof of showing that, the",audio_63_135.mp3 +"existing of consideration was improbably or adverse or the same was illegal, the onus would shift to the complainant, who will be obliged to prove",audio_63_136.mp3 +"it as a matter of fact, and upon its failure to prove would dis-entitle his to grant the relief on the basis of negotiable instruments",audio_63_137.mp3 +act. The burden on the judgment 18 c.c.no.21082/2017 accused of proving the non-existence of consideration can either direct or by bringing on record the preponderance,audio_63_138.mp3 +"of probabilities by referring to the circumstances upon which, he relies could bare denial of passing consideration apparently does not appears to be any defence.",audio_63_139.mp3 +Something which is probable has to be brought on record for getting benefit of shifting the onus of proving to the complainant. To disprove the,audio_63_140.mp3 +"presumption, the accused has to bring on record such facts and circumstances upon the consideration of which the court may either believe that, consideration did",audio_63_141.mp3 +"not exist or its non-existence was so probable that, a prudent man would, under the circumstances of the Cas. , act upon that, it did not",audio_63_142.mp3 +"exist. Therefore, it made clear that, the accused need to take the probable defence mere denial is not enough.m.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_63_143.mp3 +"Khan. Wherein, it was pleased to observed that, mere denial of issuing cheque, whether is sufficient to discharge the initial burden is to be looked",audio_63_144.mp3 +"into. In that dictum, it was pleased to held that, mere denial of issuing cheques would not be sufficient as it is time and again",audio_63_145.mp3 +"noted that, once the cheque issued duly signed by the accused, the judgment 19 c.c.no.21082/2017 presumption goes against him as per S. 139 of negotiable",audio_63_146.mp3 +"instruments act. 22. On going through the provisions referred supra, it made clear that, whereas the presumption must prove that, guilt of accused beyond the",audio_63_147.mp3 +reasonable doubt. The standard or proof so as to prove a defence on the part of the accused is 'preponderance of probabilities'. Inference of 'preponderance,audio_63_148.mp3 +"of probabilities' can be drawn, not only from the materials brought on record by parties, but also by reference to the circumstances upon which he",audio_63_149.mp3 +"relies. 23. On going through the above authorities as well as dictums, it made clear that, it is the initial burden on the accused to",audio_63_150.mp3 +"prove his probable defence, in order to rebut the statutory presumption as well as the Cas. put forth by the complainant. In that backdrop, it",audio_63_151.mp3 +"requires to appreciate the materials available on record. No doubt, in this Cas. , the accused from the inception by way of caused reply notice as",audio_63_152.mp3 +"per ex.p5 has contested the claim put forth by the complainant till the fag end of the Cas. . In that backdrop, the accused also subjected",audio_63_153.mp3 +the pw.1 and 2 cross- examination and gave his statement coupled with entered into witness box and led his evidence as dw.1. On going through,audio_63_154.mp3 +"the judgment 20 c.c.no.21082/2017 defence set out by the accused, it made clear that, he has denied each and every averments and allegations made in",audio_63_155.mp3 +"the complaint as to alleged request of loan and its borrowal and got issuance of questioned cheque at ex.p1 for discharge of repayment of loan,",audio_63_156.mp3 +"which covers at ex.p1 cheque in the present Cas. as well as cheque involved in c.c.no.21084/2017. 24. That apart, the accused has placed his specific",audio_63_157.mp3 +"defence in the present Cas. that, complainant is well aware that, he is a mediator and an agent for getting Govt. contract in respect of",audio_63_158.mp3 +"led bulb supplies in the rural areas. In that transaction, he approached one Mr. kumar, who happened to be acquainted to accused and proposed the",audio_63_159.mp3 +"accused to venture in to the said business, which requires huge deposit of money. Since, accused had no money, he expressed his inability. However, persuaded",audio_63_160.mp3 +"the accused to do business by assuring to get huge profit and offered unsolicited help stating that, he would pay the deposit money on behalf",audio_63_161.mp3 +"of accused in pursuance of the same, complainant took signed blank 3 cheques of the accused and 2 blank cheques of his sister-in-law by name",audio_63_162.mp3 +"mrs.h.J. mamatha as security. It was specific understanding between complainant and accused that, the blank stamp paper and signed blank cheques are only meant to",audio_63_163.mp3 +be used for securing Govt. led bulb contract and not for any other purpose. As judgment 21 c.c.no.21082/2017 assured by the complainant and undertaken by,audio_63_164.mp3 +"the complainant, he not procured the led bulb contract. Meanwhile, the complainant being a landlord, forced the accused to vacate the rented premises citing, he",audio_63_165.mp3 +"was in need of same for his personal use and accordingly, on 10.03.2017, he vacated the said house. But he did not returned the security",audio_63_166.mp3 +"deposit amount till the date, when he asked for refund, he got misused his signed blank cheques and issued legal notice and filed false Cas. .m.kempaiah",audio_63_167.mp3 +"vs. g.t.muralidhar on 4 december, 2020",audio_63_168.mp3 +"Procuring led bulb contract, he was the tenant under the complainant in respect of his house by paying advance of rs.1,50,000/- to the complainant. In",audio_63_169.mp3 +"that regard, the accused has produced the rental agreement at ex.d1, which got marked through pw.1. The complainant has admitted, the landlord and tenant relationship",audio_63_170.mp3 +"as found in ex.d1. Even the complainant endorsing the same got marked the signature of accused at ex.d1(a). On going through the said ex.d1, it",audio_63_171.mp3 +"discloses, the rent agreement was entered into between complainant and accused on 18.06.2015 for the period of 11 months and wherein also stated, his advance",audio_63_172.mp3 +"amount of rs.1,50,000/- were paid by the accused to the complainant and monthly rent was fixed at rs.10,000/- p.m. Coupled with bare other expenses. The",audio_63_173.mp3 +"complainant has not disputed, the judgment 22 c.c.no.21082/2017 said document at ex.d1 entered into between them. As per ex.d1 on 18.06.2015, the accused was inducted",audio_63_174.mp3 +"as tenant by paying advance of rs.1,50,000/-. The complainant has not stated, when the said landlord and tenant relationship was emerged and came to be",audio_63_175.mp3 +"an ended between them. The accused has specifically stated that, when he was a tenant under the complainant, complainant persuaded the accused to obtain led",audio_63_176.mp3 +"bulb contract under his assurance, as he had no money, the complainant took his 3 signed blank cheques and 2 signed blank cheques of his",audio_63_177.mp3 +"sister-in-law by name h.J. mamatha as security, but as promised not procured. On the other hand, he forcefully evicted the accused from the rented premises",audio_63_178.mp3 +"on 10.03.2017 without refund security deposit amount. 26. On going through the said testimony of accused, the factum of accused, quit from the rented premises",audio_63_179.mp3 +"under the instance of complainant very particularly on 10.03.2017 is been denied by the complainant. The accused specifically alleged against the complainant that, the complainant",audio_63_180.mp3 +"forcefully without refund his security deposit amount of rs.1,50,000/- quit in from premises. When he demanded for refund of cash security, then the complainant got",audio_63_181.mp3 +"misused his signed blank cheques and signed blank stamp paper which gave in pursuance of procure led bulb contract. Judgment 23 c.c.no.21082/2017 in that line,",audio_63_182.mp3 +"the accused has subjected the pw.1 for cross- examination. ""€□ €€‚‚ ƒƒƒ„ƒ…†„ƒ ‡‚ˆ ƒƒƒ‰š…ˆƒ ˆ ƒ†‹€„ œ‹□ ‡‚ □ ‚†…‰□‹€„†ƒ„ƒ ˆƒšžƒ‚‚†."" ˆˆ‰ □□ □□□ƒ 27.",audio_63_183.mp3 +"The pw.1 voluntarily deposed that, after return the advance amount to the accused, then only he handed over the key to the complainant. Thereby, the",audio_63_184.mp3 +"complainant has projected, he refund his advance amount to the accused, then only he quit from his premises. Taken into consideration, as per the accused",audio_63_185.mp3 +"on 10.03.2017 he quit from rented premises by alleging the complainant has not refund cash security. When he asked for refund, the complainant misused his",audio_63_186.mp3 +"signed blank cheques and e-stamp paper and filed the false Cas. . The pw.1 has denied the suggestion not refund the advance, but stated, he was",audio_63_187.mp3 +"refund then only accused quit the Sch. premises. In that regard, during the course of cross of pw.1 suggested by the Adv. for complainant that,",audio_63_188.mp3 +"the accused after got received the advance money from the complainant quit the rented premises. But pw.1 has volunteers that, the complainant by cause threat",audio_63_189.mp3 +"forcefully quit him from the rented premises. Since,m.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_63_190.mp3 +"Ventured for lodge police complaint. He asserted, asked the complainant for judgment 24 c.c.no.21082/2017 refund the advance money, no legal notice were issued. The complainant",audio_63_191.mp3 +"has denied the said answer given by the dw.1. 28. On the other hand, it made clear that, the complainant projected after refund the advance,",audio_63_192.mp3 +"the accused quit from rented premises. On the other hand, the accused has seriously attack on the complainant that, without refund his advance, the complainant",audio_63_193.mp3 +"forcefully quit him from rented premises, when he asked for refund, he got misused the signed blank cheques and signed blank e-stamp paper coupled with",audio_63_194.mp3 +"misusing security cheques of his sister-in-law and complainant filed the false Cas. through one manjunath. No doubt, the complainant has admitted, manjunath was his friend",audio_63_195.mp3 +"and through the same Adv. , they have filed cheque bounce cases against the accused herein and sister-in-law of accused. From which, only one inference can",audio_63_196.mp3 +"draw that, through the said manjunath and complainant herein same Adv. has appeared, therefore, complainant must know the proceedings and transaction held in separate cases",audio_63_197.mp3 +"initiated by them. No doubt, Cas. filed by manjunath against the sister-in-law of accused is not subject matter of the present Cas. , but it only",audio_63_198.mp3 +"draw the inference that, through the same Adv. , complainant and manjunath have prosecuted against the accused as well as sister-in-law of accused, therefore, the some",audio_63_199.mp3 +"nexus in transaction between complainant and manjunath. Judgment 25 c.c.no.21082/2017 29. In order to show that, the complainant has deposed in the witness box to",audio_63_200.mp3 +"show that, he got refund the advance amount of rs.1,50,000/- received from the accused and he quit from rented premises on 10.03.2017. To substantiate the",audio_63_201.mp3 +"said contention, complainant has not produced any document before this court. Therefore, the say of accused has to be accepted. If at all, any loan",audio_63_202.mp3 +"lent by the complainant to the accused as alleged in the complaint on 21.06.2016 itself, that too, for the tune of rs.6 lakhs definitely, question",audio_63_203.mp3 +"of complainant without deducting the portion of the said loan amount, got refund the entire advance amount of rs.1,50,000/- to the accused does not arise.",audio_63_204.mp3 +"Hence, the said rival contentions and sequences placed by both the parties, it would leads for draw only one inference that, complainant has not refund",audio_63_205.mp3 +"the advance amount of rs.1,50,000/-, which got received by him as per ex.d1 on 18.06.2015. 30. That apart, the complainant throughout his pleading not whispered",audio_63_206.mp3 +about the procurement of led bulb contract either he was authorized to do or he got entered into contract with the authorized dealer which excite,audio_63_207.mp3 +"him to entered into contract with either the accused or any other as alleged by the accused, nothing has been contended by the complainant. In",audio_63_208.mp3 +"that regard, to prove the probable defence of the accused, as the complainant forcefully judgment 26 c.c.no.21082/2017 brought the accused though, he expressed his inability",audio_63_209.mp3 +"to funding to procure led bulb contract, on the assurance of complainant as he assured to get the highest profit, he got issued 3 signed",audio_63_210.mp3 +blank cheques and one signed blank stamp paper coupled with security of 2 signed blank cheques of his sister-in-law. The same got misused by th,audio_63_211.mp3 +"complainant, when he demanding for refund of advance amount. In that regard, it was the suggestion made to pw.1, wherein he deposed that: ""€†††„ƒ„ ‘Š",audio_63_212.mp3 +"†ƒ ‹ Œ‰‰ ˆˆ‰ ‚‚‚.m.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_63_213.mp3 +’„□□ €ƒœƒ“”□□ƒ‚ ˆˆˆ ƒ‚ƒ‚ ‘‚†† ˆšƒ… ž…„□ †□‚žž □††ƒ ‡‰□□. €□‰ „ˆƒ□‚21.12.2015 †ƒ„ƒ •€ž‘ □□□ˆ□ €†□†€€ž ‘ƒšž ”□”.□ƒ□šž –‰□ ”ž†„ž ˆšƒ… □ ”□‚ €□‰ ˆš„„,audio_63_214.mp3 +"□ˆˆ□„ €††€ ”□……š† ’‰□ƒƒ□ž•†□ ‚□□†€□‰, €□ ’„†□ ‚ˆˆ €– ˆ□□š ‰ƒ†ƒ‚€†ƒ‚‚†. □ ”□‚ □ƒ„ƒ ‰ƒ†ƒ‚€□ƒ ‡†□□” ”† …□□□†ƒ ’„ƒ •†□ ‡□”€†ƒ‚‚†. €„† □††ˆ ƒ□□ ”□‚",audio_63_215.mp3 +"‚ˆˆ œ‹ ‘□□ □ƒœƒ„‰ €□ ˆƒš„ ƒ□†‰, ”ž†„ …□□□† ‡□”— ‚‹‹ –□ ˆš-3 □ƒœƒ„‰ ‰ƒ†ƒ‚€□ž‚ƒ. ˆš-3 †□†ƒ… €□ž €–žˆƒ ˆ ˆš-3(□) □ƒ„ƒ ‰ƒ†ƒ‚€□ž‚ƒ."" 31. On",audio_63_216.mp3 +"going through the testimony of pw.1, suggestion made to pw.1 as to knowingness of securing led bulb contract from the Govt. were made to pw.1,",audio_63_217.mp3 +"then he deposed, he does not know. More particularly, it was asked to him that, in that regard, judgment 27 c.c.no.21082/2017 was there any contract",audio_63_218.mp3 +"was entered into between accused and Ors. , he categorically deposed, no such agreement was entered into. Then, the Adv. for accused has tendered him a",audio_63_219.mp3 +"xerox copy of agreement dated:21.12.2015 entered into between jos e techno services pvt. Ltd., through its managing partners by names Mr. kumar and Mr. deen",audio_63_220.mp3 +"kumar, then complainant has identified his signature at ex.d3(a). Though his Adv. has opposed the marking of the said document as the said document pertaining",audio_63_221.mp3 +"to the complainant and the said concern, except the accused secure the secondary evidence, question of expect to produce unconcern document, the objection raised by",audio_63_222.mp3 +the complainant was rejected and got marked the said document at ex.d3 as the accused already laid foundation under which circumstance questioned cheque was came,audio_63_223.mp3 +"to the custody of the complainant. The complainant has admitted his signature at ex.d3, but denied no such agreement was entered into. But the subsequent",audio_63_224.mp3 +"cross-examination when questioned based on ex.d3 he deposed that: ""€††† □□‘š œ□□ˆ †‚†—‰ €ƒœƒ“”□□ƒ‚ –□€œ‹□ƒ □ƒœ ž•ˆžšž□ ˆˆƒ □ƒƒ† □ˆƒ ˆ ……†ˆƒ ˆ ˜□□ ƒš",audio_63_225.mp3 +"ˆš-3 ’‰□…ƒƒ□ˆƒ ˆ ƒš□□ƒš„ˆ □ƒ„† €†."" 32. The pw.1 has categorically admitted, under the said agreement at ex.d3, he entered into contract with for supply",audio_63_226.mp3 +"of led judgment 28 c.c.no.21082/2017 bulb from Govt. . Thereby, though he earlier denied the entered into such agreement between the said concern and complainant, subsequently,",audio_63_227.mp3 +"he categorically admitted his role in supplying led bulb contract. No doubt, as per ex.d2 the complainant only entered into contract with jos e techno",audio_63_228.mp3 +"services pvt. Ltd. It is significant fact to note that, if at all, the defence suggested by the accused were not to be true, then",audio_63_229.mp3 +"why complainant brought the signature of the accused at ex.d3 as witness to the said transaction is also not been narrated by the complainant. Since,",audio_63_230.mp3 +"the role of complainant appears to be true as he assured the accused to do the said business for getting higher profit, he indulged the",audio_63_231.mp3 +"accused as witness to the ex.d3 has to be presume. On going through the ex.d3, wherein not mentioned about any monetary transaction, but discloses, terms",audio_63_232.mp3 +and conditions binding on the complainant as to supply of led bulbs and its distribution. The signature of the accused brought under ex.d3 leads the,audio_63_233.mp3 +"presumption that, the complainant has assured the accused to get the said business. From the say of pw.1, though earlier he denied his role in",audio_63_234.mp3 +"entered into contract as per ex.d3 subsequently, on seeing document he categorically admitted.m.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_63_235.mp3 +"Sub-inspector of judgment 29 c.c.no.21082/2017 vidyaranyapura police station, was tendered, then he on seeing the name and address pertaining to him, as he admitted, the",audio_63_236.mp3 +"said document got marked at ex.d2. Subsequently, he volunteers that, it was not the complaint lodged by him and he does not know, who lodged",audio_63_237.mp3 +"the same. When he categorically admitted the address of him subsequently, he got twisted his evidence by stating, he does not know, in his name",audio_63_238.mp3 +"to lodged complaint. Then it requires to focus on ex.d2. 34. On meticulous perusal of ex.d2 it discloses, the admitted name and address of complainant.",audio_63_239.mp3 +"Wherein, it was define the purpose of lodge of complaint, one kumar residing at vinayakanagar, vidyaranyapuram of receiving rs.5 lakhs from the complainant for supply",audio_63_240.mp3 +"of led bulbs, not returned the money, as troubled the complainant. On going through the ex.d2 it reveal that, the complainant by alleging paid rs.5",audio_63_241.mp3 +"lakhs to kumar, who is none other than one of the partner in jos e techno services pvt. Ltd., as found in ex.d3. If at",audio_63_242.mp3 +"all, the complainant paid rs.5 lakhs to the said kumar, why the complainant has denied that, he not lodged complaint to the jurisdictional police station.",audio_63_243.mp3 +"Then it is him to explain, who lodged complaint in his name, if it was false, definitely, could have initiate necessary action, but he did",audio_63_244.mp3 +"not explain anything on the same. Therefore, from the say of pw.1, in view of he denied judgment 30 c.c.no.21082/2017 the lodging of complaint in",audio_63_245.mp3 +"his name as per ex.d2. Only one inference could be drawn against the complainant that, he not approached this court with clean hands. Though he",audio_63_246.mp3 +"already entered into agreement as per ex.d3 and lodged complaint as per ex.d2 for the reasons better known to him, he deposed contrary to his",audio_63_247.mp3 +"own document. Thereby, it creates doubt as to the bonafidness and approach of the complainant, as to the genuineness of transaction. The complainant clearly admitted",audio_63_248.mp3 +"the documents at exs.d1 to d3. Thereby, the accused has proved the role of complainant in doing led bulb contract service pvt. Ltd., as per",audio_63_249.mp3 +"ex.d3. 35. Based on the defence taken by the accused, it was suggested to pw.1 that: ""ˆš-3 † €††€ ”□……š† ’‰□ƒƒ□žˆ ” □†† □□‘š œ□□ˆ",audio_63_250.mp3 +‰ƒ‚‚‰žˆƒ ˆ ‚‰€□□šƒ…„‰ –□‹ ‡†□□”žƒ„ €– ƒš„ ™□ ‘-€□□ƒ”ž ”□”†ˆƒ ˆ –‰□ €.€.ˆƒ.21084/2017 ƒ‚ƒ‚ €.€.ˆƒ.21082/2017 † ”□□†—‰‹□ –•†ƒ”š€†ƒ… €– ƒš„ 2 š□ƒ □ ‰‹ˆƒ ˆ,audio_63_251.mp3 +"”š„„ □ƒ„† €†ž□□. ‡ †□‚ □††ˆƒ ˆ ‚‰€□□š„, ‡†□□”žƒ„ ˆš-1 † ”□†† ‡†□□”žƒ„ ”š„ƒ‚– ƒƒƒ‰š †□‚1,50,000/- ‡‚ˆ‰ ƒ†‹€„ ‡‚ˆ ƒ□□ „•†ˆ□ □€‰ ƒˆžƒ„ œš€„ □ƒ„†",audio_63_252.mp3 +"€†žž□□."" 36. The accused specifically placed his defence by way of suggestion made to pw.1 that, as per ex.d3 - service provider judgment 31 c.c.no.21082/2017",audio_63_253.mp3 +"agreement, the complainant assured the accused to procure led bulb contract and got obtained signed blank cheques and singed blank e-stamp paper from him and",audio_63_254.mp3 +"not procured the said business, but misused his 2 signed blank cheques which subjected in the present Cas. as well as in c.c.no.21084/2017. That apart,",audio_63_255.mp3 +"it was also suggested, even the cash security of rs.1,50,000/- were also not refund to the accused and by cause threat on accused forcefully quit",audio_63_256.mp3 +"from rented premises. The said evidence clearly manifest the defence of the accused that, complainant was obtained the ex.d3 - service provider agreement, but as",audio_63_257.mp3 +"assured not returned the document obtained as security as suggested by the accused. Even, in them.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_63_258.mp3 +"Business as security the complainant took signed blank cheques of his sister-in-law and by misusing the same got filed the Cas. through manjunath, but the",audio_63_259.mp3 +"complainant has denied the same. 37. It was also suggested to pw.1 that, as assured and promise made by the complainant, the complainant has not",audio_63_260.mp3 +"procured led bulb contract business to the accused, though he got obtained his 2 signed blank cheques and signed blank e-stamp paper and by misusing",audio_63_261.mp3 +"the same got filed the false Cas. , hence, accused is not liable to pay money to the complainant. But the pw.1 has denied judgment 32",audio_63_262.mp3 +c.c.no.21082/2017 the same. Though serious allegations were made against the complainant as to misuse of questioned cheque at ex.p1 and e- stamp paper coupled with,audio_63_263.mp3 +"misusing of guarantee cheque of his sister-in-law, when tendered for cross-examination by the dw.1, no worthy suggestion is made and failed to extract any admission",audio_63_264.mp3 +"from the accused has to be alleged loan transaction. Even during the course of cross of dw.1, whatever the averments and allegations made mentioned by",audio_63_265.mp3 +"the complainant, as to alleged request made by the accused seeking for loan with its purpose and alleged receipt of loan and questioned cheque issued",audio_63_266.mp3 +"by the accused for discharge is also not been specifically suggested, but made general suggestion by stating for repayment of loan of rs.6 lakhs obtained",audio_63_267.mp3 +"by the accused for the development of his business, accused gave questioned cheque involved in the present Cas. as well as in c.c.no.21084/2017 and deposed",audio_63_268.mp3 +"falsely. The accused has denied the suggestion made by the complainant and withstood his contention by deposing that: ""œ□□ˆ …□…–†□□ □ ”ž†„žƒ„‰ ƒš„ …□…–†□□ □",audio_63_269.mp3 +"€ƒœƒ“†□□ □ƒ„† €†žž□□. ˆˆƒ €„† …□…–† ƒšƒ‚‚„ˆ □ƒœƒ„‰ ‚□□†€□ƒ, ˆš-3 †□ €□ž‰ €– ƒš†ƒ‚‚□ˆ."" 38. On meticulous perusal of the evidence of dw.1, the suggestion",audio_63_270.mp3 +"made by the Adv. for complainant stating that, with judgment 33 c.c.no.21082/2017 regard to led bulb business as well as transaction held with complainant are",audio_63_271.mp3 +"not interlinked, but the dw.1 has deposed to show that, he did the said business to establish the same he put his signature to the",audio_63_272.mp3 +"ex.d3 as witness and produced before this court. Though complainant has suggested both the business are altogether different, but the said suggestion leads to draw",audio_63_273.mp3 +"the inference that, their was talks held with regard to procure led bulb contract as projected by the accused. Now the complainant cannot bifurcated both",audio_63_274.mp3 +"the business as altogether different. If at all, the complainant had paid the loan of rs.6 lakhs to the accused, it is him to suggest",audio_63_275.mp3 +"the dw.1, when accused was requested for the same and what was the compelling circumstances in made such approach and how the complainant had mobilized",audio_63_276.mp3 +the fund and exactly on whose presence he paid the money to the accused. Nothing has suggested whether led bulb procurement transaction was concluded between,audio_63_277.mp3 +"the complainant and accused or not?. Even no exact suggestion made, exactly on which date the accused got issued and executed the ex.p1 cheque in",audio_63_278.mp3 +favour of complainant. The dw.1 withstood his contention successfully and thereby rebutted the statutory presumption and facts and circumstances narrated by the complainant. Judgment 34,audio_63_279.mp3 +"c.c.no.21082/2017m.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_63_280.mp3 +The accused and same were marked subject to the objection to the Adv. for complainant at ex.d4 and signature at ex.d4(a). The complainant Adv. has,audio_63_281.mp3 +"objected to mark the said document, but the accused has projected his defence that, in order to procure led bulb contract business from the complainant,",audio_63_282.mp3 +"he got issued signed e-stamp paper and signed blank cheques coupled with signed blank cheques of his sister-in-law, the same got misused by the complainant.",audio_63_283.mp3 +"The complainant by way of creating ex.p6 the alleged loan agreement. Since, the accused has placed the foundation, under which circumstance he gave signed blank",audio_63_284.mp3 +"e-stamp paper at ex.d4 and its original placed by the complainant as per ex.p6, the said xerox copy got marked as secondary evidence as per",audio_63_285.mp3 +"ex.d4. 40. On going through the ex.d4 coupled with ex.p6 it discloses , the front side blank sheet without type, the accused has affixed his",audio_63_286.mp3 +"signature as found in ex.d4(a). Contrary to the said ex.d4, in the ex.p6 the same signature at ex.p6(a) is found. But the interesting thing is",audio_63_287.mp3 +"that, in ex.p6 three lines typed matter is found. In ex.d4 the backside e-stamp paper kept blank. But in ex.p6 backside it was contra print",audio_63_288.mp3 +"out is been seen, wherein also found the alleged signatures of complainant and accused and 2 witnesses. But those judgment 35 c.c.no.21082/2017 recitals and signatures",audio_63_289.mp3 +"and particulars of witnesses were not been seen in ex.d4. 41. On meticulous perusal of the ex.p6 as well as ex.d4 which discloses, before handed",audio_63_290.mp3 +"over the ex.p6 original e-stamp paper, the accused got xeroxed including his signature on blank stamp paper on the front page. The accused has denied",audio_63_291.mp3 +his signature found at backside of ex.p6. On close perusal of the same to the bare eyes the signature at front and backside appears to,audio_63_292.mp3 +"be different. If at all, the accusef got executed the said document at ex.p6 definitely, the signature of accused must be in similar on both",audio_63_293.mp3 +"sides. When the front page the admitted signature of the accused is been seen, how without his knowledge, the said document got executed as ex.p6",audio_63_294.mp3 +"itself created doubt. 42. By way of production of ex.d1, the accused has successfully established that, he gave signed blank cheque at ex.p1 to the",audio_63_295.mp3 +"complainant in connection to the procure led bulb contract business. Therefore, the accused by way of producing convincing, corroborative evidence has successfully rebutted the Cas. ",audio_63_296.mp3 +"of complainant as well as statutory presumption. Therefore, it goes reverse burden on the complainant as per Ss. 118 and 139 of NI Act ",audio_63_297.mp3 +"to prove the guilt of the accused, as he alleged. Judgment 36 c.c.no.21082/2017 it is well worthy to cite the decision reported in ilr 2009",audio_63_298.mp3 +"kar 1633 (kumar exports v/s. Sharma carpets). Wherein, it was pleased to held by the Hon'ble apex court that: (d) NI Act , 1881, Ss. ",audio_63_299.mp3 +"118, 139 and 138 - presumption under Ss. 118 and 139 - how to be rebutted - standard of proof required rebuttal - held, rebuttal",audio_63_300.mp3 +"does not require proof beyond reasonable doubt - something probable has to be brought record -m.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_63_301.mp3 +Evidence - thereafter the said presumption arising under S. 118 and 139 Cas. to operate - to rebut said presumption accused can also rely upon,audio_63_302.mp3 +"presumptions under evidence act, 1872 S. 114 (common course of natural even human conduct and public and Pvt. business) - evidence act, 1872 - S. ",audio_63_303.mp3 +"114 - presumptions of fact under"". Added to that, in a decision of air 2008 SC 278 between john k john v/s. Tom verghees,",audio_63_304.mp3 +"the Hon'ble apex court it is held that: ""the presumption under S. 139 could be raised in respect of some consideration and burden is on",audio_63_305.mp3 +"the complainant to show that he had paid amount shown in the cheque. Whenever there is huge amount shown in the cheque, though the initial",audio_63_306.mp3 +"burden is on the accused, it is equally judgment 37 c.c.no.21082/2017 necessary to know how the complainant advanced such a huge amount"". 43. From the",audio_63_307.mp3 +"point of above dictums also, it was the reverse burden casted upon the complainant to establish the very Cas. beyond the reasonable doubt in order",audio_63_308.mp3 +"to convict the accused. 44. On going through the contention of the complainant, he was alleged that, the accused during 1 st week of june,",audio_63_309.mp3 +"2016 approached the complainant being a tenant seeking for loan of rs.6 lakhs, to meet out expenses in developing his flower decoration business and purchase",audio_63_310.mp3 +"materials. Was it necessary for doing the said business, the need of rs.6 lakhs is created doubt and it is the complainant needs to explain",audio_63_311.mp3 +"by utilizing rs.6 lakhs, what kind of development were done in doing flower decoration business is not been satisfactorily pleaded and explained. That apart, on",audio_63_312.mp3 +"which date, the accused exactly approached the complainant, when he was tenant under him is also not been satisfactorily explained. However, the complainant has pleaded",audio_63_313.mp3 +"that, on 21.06.2016 he gave rs.6 lakhs to the accused and he undertakes to repay the same within 6 months and got executed the ex.p6",audio_63_314.mp3 +"loan agreement on the same day itself. If at all, the complainant was possessed ex.p6 as on the date of made pleading definitely, what was",audio_63_315.mp3 +"the recitals in the agreement, who were the witnesses present as eye witnesses to the said judgment 38 c.c.no.21082/2017 transaction could have pleaded, but the",audio_63_316.mp3 +"said ex.p6 were placed by him during his evidence only. In that regard, it requires to appreciate the evidence of pw.1. 45. During the course",audio_63_317.mp3 +"of cross of pw.1, he deposed, he had bar and restaurant and it was leased out and hence, he had no other income. In his",audio_63_318.mp3 +"cross-examination it does not disclose, to whom for what amount he leased out his business is not been explained. During the course of cross-examination, the",audio_63_319.mp3 +"pw.1 categorically admitted that: ""‡†□□” 2016 † •□ˆž ƒ„□ˆ□ …†„□ œƒ„ƒ €□…ˆƒ ˆ □□‹„„†ƒ. ‡ „ˆ ˆˆˆ œ‹ ’›ƒ □ –— ‘□□„ ††— ‡†□□” □□‹„",audio_63_320.mp3 +"□□š□□ –— □□š□□□ □ƒ„† €†. ’„□ †□‚ „ˆƒ□‚21.06.2016 †ƒ„ƒ □□š ˆˆˆ œ‹ †□‚6 □□ ˆ‰„ƒ ‘†□□□ □ƒ„† €†ž□□.""m.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_63_321.mp3 +"Accused asked for the loan. He more categorically admitted, on the day he made request, since he had no such amount in his hand, therefore,",audio_63_322.mp3 +"he was not paid money to the accused. By deposing so, the complainant had clearly admitted, on the date of request made by the accused,",audio_63_323.mp3 +"he had no requisite fund in order to pay loan to the accused. Thereby, it is judgment 39 c.c.no.21082/2017 made clear that, as on the",audio_63_324.mp3 +"request made by the accused, the complainant had no financial capacity. Though he deposes as such, the complainant has not explained, how he mobilized rs.6",audio_63_325.mp3 +"lakhs in order to enable to be paid to the accused. When he admitted, as on the date of request made by the accused, he",audio_63_326.mp3 +"had no money, then how he mobilized the fund, he needs to explain. 47. On going through the previous portion of cross-examination, the pw.1 has",audio_63_327.mp3 +"deposed that: ""œ ”□□†— –‰□ €.€.ˆƒ.21084/2017 †□ †—€†ƒ… □□ƒ □ †□‚6 □□ –— ‡†□□”‰ €□ ˆ□š□ƒ, ˆƒƒ œ†ˆƒ ˆ †ž□ž □ˆƒ „ , ’„†ƒ„ œƒ„",audio_63_328.mp3 +–— ˆ□š†ƒ‚‚□ˆ. ˆ ……†‰ ˜□□‰□□□ ˆ□š„ƒ ˆ œ ”□□†—„□ –•†ƒ”š€□□. ‡ ’„□□ €ƒœƒ“”□□ „™□žˆƒ †□‚ ˜□□‰□…ˆƒ ˆ □‹„ 3 …›†‰‹ –ƒ„ ’ƒ„† 2015 †□ –□„ˆ.,audio_63_329.mp3 +"„ˆƒ□, ‚ƒ‰‹ƒ ˆˆ”□□. 6 □□ –— ˆˆˆ □…žž□‚ƒ‚. "" 48. The pw.1 has deposed that, the alleged loan lent to the accused for the tune",audio_63_330.mp3 +"of rs.6 lakhs which he asserted in this Cas. as well as in c.c.no.21084/2017, he leased out his bar and restaurant to one Mr. vishal",audio_63_331.mp3 +"and got obtained the leased amount of rs.6 lakhs. He categorically deposed, he not produced any document with regard to receipt of lease amount as",audio_63_332.mp3 +"he alleged. But he deposed, he gave lease to the same in the year 2015, but he does not remember the date and month. By",audio_63_333.mp3 +"deposing so, the complainant has projected judgment 40 c.c.no.21082/2017 that, the leased amount received from Mr. vishal in the year 2015 was with him, and",audio_63_334.mp3 +"claimed to be paid the same to accused, complainant though he not explained, it conveys meaning as such. If at all, he got received leased",audio_63_335.mp3 +"amount of rs.6 lakhs in the year 2015, he must depose, as on the date of request made by the accused during 1st week of",audio_63_336.mp3 +"june, 2016, he had leased money. 49. As discussed earlier, the cross-examination of pw.1, though he stated, he had leased amount which received in the",audio_63_337.mp3 +"year 2015 and very particularly deposed, rs.6 lakhs was with him. But in the cross-examination he categorically deposed, since he had no requisite fund of",audio_63_338.mp3 +"rs.6 lakhs on the date of alleged request made by the accused, he had not paid to the accused. Therefore, the above said contradictory statement",audio_63_339.mp3 +"of the pw.1 clearly manifest that, though he had leased out his bar and restaurant in the year 2015, to show that, he had requisite",audio_63_340.mp3 +"fund of rs.6 lakhs during 1 st week of june, 2016 or as on the alleged date on 21.06.2016, he needs to produce some document",audio_63_341.mp3 +"or explanation, in that regard, no effort is forthcoming from the side of complainant. However, the Adv. for complainant try to demonstrate the financial capacity",audio_63_342.mp3 +"of the complainant during the course of cross of dw.1. Wherein, he suggested to dw.1 that, the complainant was leased out his bar and restaurant",audio_63_343.mp3 +"for monthly rent of rs.2,50,000/- and got obtained the judgment 41 c.c.no.21082/2017 advance of rs.35 lakhs, but the accused has denied the same. If at",audio_63_344.mp3 +"all, the complainant got received the advance money of rs.35 lakhs and monthly rent of rs.2,50,000/- definitely, he had every opportunity to produce necessary document,",audio_63_345.mp3 +"at least the lease agreement orm.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_63_346.mp3 +"Not suffice to establish the financial capacity of the complainant. Thereby, the complainant has failed to demonstrate the financial capacity of rs.6 lakhs as on",audio_63_347.mp3 +"21.06.2016. 50. The complainant has alleged that, on 21.06.2016 he gave loan of rs.6 lakhs to the accused in turn, he got executed the ex.p6",audio_63_348.mp3 +"agreement. It is pertinent to note that, there is no pleading from the part of complainant, as to the due execution and issuance of loan",audio_63_349.mp3 +"agreement at ex.p6. Even not stated about who were the attested witnesses to the said document. All of sudden, the complainant without gave necessary description",audio_63_350.mp3 +"with regard to due execution and the names of the participants to the said document, got produced at ex.p6. In that regard, he was questioned",audio_63_351.mp3 +"in the witness box. Wherein, he deposed that: ""‡†”‰ € ˆŠ„ „ˆ €„ ”‚ ‚ ˆƒ ˆ ‡‚ˆƒ„ œ†ž€□□ƒš„ˆƒ. €□„ ”‚ ‚ „ˆƒ□‚21.06.2016 †ƒ„ƒ ‡†□□”",audio_63_352.mp3 +"judgment 42 c.c.no.21082/2017 œ†„ƒ□□□□„„ ƒ, ’„ˆƒ ˆ ˆ”-6 □ƒœƒ„‰ œ ”□□†—„□ ‰ƒ†ƒ‚€□‰†ƒ‚‚„. ’„† ÿ” †‰„…ˆƒ ˆ ‡†□□” „ˆƒ□‚21.06.2016 †ƒ„□ ‚ƒ„„„†ƒ. ’„ˆƒ š ˆ ‡†□□”ž□ œ†‹šƒ",audio_63_353.mp3 +ƒš€ ‚ƒ„„„†ƒ. Ž… †›ž…ˆƒ ˆ □□□— ƒšœ□□ƒ □ƒ„ƒ ‡†□□”‰ ‚‹€†□□□. ‡‚ˆ ƒ□□ ˆƒœ□ ‘‚ƒ‚. Œ†‹šš„ ˆƒ‚† ˆˆƒ ƒ‚ƒ‚ ‡†□□” ”†€€†† €ƒ□ƒ ‡ □††‰ €–‰‹ˆƒ ˆ,audio_63_354.mp3 +ƒš„…. ˆƒƒœ□† ˆ ƒš□□. –□†‚ƒ œ□†ž…†ƒ €–‰‹ˆƒ ‡†□□”‰ €□ □□□□ ˆƒ‚† –‰ œ†„ƒ□□□□ □††ˆƒ ˆ ˆˆƒ ‚‰„ƒ□□ƒšƒ ˆˆˆ ƒˆ‰ –□□„ˆƒ. ‡ †□‚ □††ˆƒ ˆ ‡†□□”,audio_63_355.mp3 +"ˆˆ‰ œ†„ƒ□□□□□□, □□…□ ‡†□□”žƒ„ ”š„ƒ‚– ™□ ÿ” †‰„…ˆƒ ˆ ˆˆƒ □□□— ƒš□□ƒš„ˆƒ„† €†ž□□. €□‰ „ˆƒ□‚21.06.2016 † ƒ‚□‚ƒ„ƒ ™□ ‘-ÿ” †‰„…ˆƒ ˆ ‚□□†€ ’„ˆƒ ˆ ‡†□□”",audio_63_356.mp3 +"ˆˆˆ –€†ˆ□ ‚ƒ„„ˆƒ„ƒ, ‡†□□”ž €– ‘†ƒ… □ ÿ” †‰„ ‚□□†€□‰, ”ž†„ …□□□†ƒ ™□ •†□ ˆ …□□‚”š€†ƒ‚‚†. ‡”—Žˆƒ  ”‚Žˆƒ € ‡ •† ˆ ˆŠ ˆ",audio_63_357.mp3 +"ˆˆ‰ ˆŠ ƒ„ƒ ˆƒŠŽƒ‚‚†. ™ Ÿ” †‰„ ˆƒ ˆ”-6 ††ˆ ‘†ƒ €–Žˆƒ ˆ € ˆŠ ‰ƒ†ƒ‚€„ ƒ†‰ ˆ”-6() □ƒœƒ„‰ ‰ƒ†ƒ‚€□ž‚ƒ. ˆ”-6(□) €–‰□, ’„† 2 ˆ□",audio_63_358.mp3 +”□„□ ‘†ƒ… ‡†□□”ž„ƒ„ƒ €–‰□ €□›ƒ □ …□‚□€ ‘„ □ƒ„† €□ ˆ ‡†□□”ž□ œ†„ƒ□□□□„†ƒ„ƒ ˆƒš„†ƒ‚‚†. ˆ”-1(□) ’„ˆƒ €–‰□ ˆ”-6 † 2 ˆ□ ”□„□□□†ƒ… ‡†□□”ž €– €□›ƒ,audio_63_359.mp3 +"□ …□‚□€ ‘„ □ƒ„† ’„□ †□‚ ƒš□□□□„†ƒ„ƒ ˆƒšžƒ‚‚†. ˆ”-6 † 2 ˆ□ ”□„□□†ƒ… €– ‡†□□”ž„„□ □ , ’„ˆƒ ˆ ˆˆ□ €”›□€□□ƒšƒ –•†ƒ”š€„ˆ □ƒ„† €†ž□□."" judgment",audio_63_360.mp3 +"43 c.c.no.21082/2017m.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_63_361.mp3 +"He got executed loan agreement from the accused on the day itself at ex.p6. He deposed that, the accused brought e-stamp paper on the said",audio_63_362.mp3 +"day itself. Even he deposed, accused himself got typed and brought the same and he was not instructed about the recitals of the said agreement.",audio_63_363.mp3 +"As per say of pw.1, he deposes, accused himself got purchased the e-stamp paper and got typed the recitals. From which, it made clear that,",audio_63_364.mp3 +"before the complainant alleged to be handed over the alleged loan to the accused, the accused himself got typed the recitals. Therefore, it made clear",audio_63_365.mp3 +"that, the complainant is not instructed the recitals of the ex.p6. Then, how the accused has anticipated that, the complainant is going to pay the",audio_63_366.mp3 +huge loan of rs.6 lakhs to him and what was the terms and conditions as to the payment of interest and time bond for its,audio_63_367.mp3 +"repayment. Therefore, as per say of complainant, he not dictated the terms. Therefore, the person who is going to get the loan without got received",audio_63_368.mp3 +"the loan amount, himself got typed the terms and conditions itself is unilateral document and unknown to law. After the receipt of money, then got",audio_63_369.mp3 +"executed and issued the loan document, then it could have been accepted, but before doing so, the accused shown his extraordinary interest to got judgment",audio_63_370.mp3 +"44 c.c.no.21082/2017 prepare the ex.p6 recitals itself creates doubt and hence, it is not fit Cas. to accept the contention of complainant. 52. That apart,",audio_63_371.mp3 +"the said evidence of pw.1 it also discloses that, after got typed the agreement in the presence of complainant and accused, themselves have singed the",audio_63_372.mp3 +"same and no other persons were singed. No doubt, in the deposition on close reading of the sentence, it prima-facie appears accept the word as",audio_63_373.mp3 +"left, therefore, the complainant has deposed accept the complainant and accused none were present. Even he deposed, after he gave money to the accused got",audio_63_374.mp3 +"received the ex.p6, he went back to home. The accused has denied the very execution and issuance of ex.p6 loan agreement in favour of complainant,",audio_63_375.mp3 +"but strongly alleged that, on obtaining signed blank e-stamp paper as tendered at ex.d4. Pw.1, he took the blank document from the accused and later",audio_63_376.mp3 +"it was got created by the complainant. 53. On going through the ex.p6 it prima-facie discloses, two witnesses are singed as e.n.divakara and p.kannan, other",audio_63_377.mp3 +"than the signature of the complainant and accused. The pw.1 has deposed, except the complainant and accused none were singed, then it is the complainant",audio_63_378.mp3 +"needs to explain, how their signatures came on ex.p6 as witnesses is not been explained, therefore, the participation of the judgment 45 c.c.no.21082/2017 said witnesses",audio_63_379.mp3 +"itself creates doubt as to due execution and issuance of ex.p6 loan agreement. There was suggestion made to pw.1 that, the admitted signature of ex.p6",audio_63_380.mp3 +"in front page and the alleged signature found in backside of the said document appears to be altogether different is been suggested to pw.1, but",audio_63_381.mp3 +"he not denied the same and deposed, the accused wrote the same. By way of suggesting so, the accused was taken up the contention that,",audio_63_382.mp3 +whatever the signature found backside in ex.p6 is not of him and it was got created by the complainant. The very evidence of pw.1 rather,audio_63_383.mp3 +"convinced his claim as to the alleged lent of loan by him to the accused and in turn, accused got executed ex.p6 in favour of",audio_63_384.mp3 +"the complainant. 54. On going through the said ex.p6, it discloses, the complainant and accused was friends and accused was tenant under the complainant. If",audio_63_385.mp3 +"at all, the accused was friend rather tenant under the complainant, was it permissible to make recital as such itself created doubt. It also stated",audio_63_386.mp3 +"for the purpose of development of flower decoration business and prepare iron frames and for purchase ofm.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_63_387.mp3 +"Document, the accused alleged to be received rs.6 lakhs and undertakes to repay the same within 6 months with monthly interest at 18% p.a. On",audio_63_388.mp3 +"going through judgment 46 c.c.no.21082/2017 the said recitals, if at all, the accused himself borrowed loan for the reasons urged therein, definitely, it is the",audio_63_389.mp3 +"complainant needs to furnish necessary explanation. For the said requirement was it need of rs.6 lakhs, it also created doubt. That apart, if at all,",audio_63_390.mp3 +the witnesses were signed and ex.p6 was already in the hands of complainant as on the date of alleged issuance of legal notice or prepare,audio_63_391.mp3 +"the complaint definitely, the presence of witnesses with their particulars might have been mentioned, but the same lacks. That apart, pw.1 has deposed, except the",audio_63_392.mp3 +"complainant and accused, none other were signed which indicates the signature of the alleged witnesses are came on ex.p6, subsequently has projected by the accused",audio_63_393.mp3 +"as it was created for the convenience of complainant. 55. That apart, the ex.p6 also discloses, accused himself undertakes to pay the interest at 18%",audio_63_394.mp3 +"p.m. Amounting to 216% p.a., which is unknown to the law and against the banking rules and regulations. No prudent man for the huge amount",audio_63_395.mp3 +of rs.6 lakhs would not agreed to pay the monthly interest at 18% p.m. Amount to 216% p.a. Taken in to consideration of the said,audio_63_396.mp3 +"recitals, if the accused undertakes to pay the interest at 18% p.m., he needs to pay 18% interest per rs.1 lakh and accordingly, for rs.6",audio_63_397.mp3 +"lakhs, he needs to pay rs.1,08,000/- per month. Was it permissible to pay the interest of rs.1,08,000/- p.m. For the loan of rs.6 lakhs is",audio_63_398.mp3 +"judgment 47 c.c.no.21082/2017 created doubt. If accused agreed to borrow loan for the said huge amount, within for the agreed period of 6 months taken",audio_63_399.mp3 +"in to interest of rs.1,08,000/- p.m. Amounting to rs.6,48,000/- it will be behind the alleged loan of rs.6 lakhs. The very contention of the complainant",audio_63_400.mp3 +"is reckless and not safe to relied upon. No prudent man for the huge interest of 18% p.m. Would not borrow loan that being, the",audio_63_401.mp3 +"flower seller. Therefore, on going through the ex.p6 rather it support the claim of complainant, it created doubt as to the alleged claim of complainant.",audio_63_402.mp3 +"56. On going through the recitals it discloses, as on the date of alleged execution of ex.p6 dated:21.06.2016, the accused was tenant under the complainant.",audio_63_403.mp3 +"As stated earlier, the accused was forcefully quit by the complainant on 10.03.2017. From which, it made clear that, whatever the advance amount paid by",audio_63_404.mp3 +"the accused was with held by the complainant and if at all, he lent loan of rs.6 lakhs to the accused, as he deposed, when",audio_63_405.mp3 +"accused quit on 10.03.2017 no need to refund the said money, the same could have been adjusted against the alleged loan of rs.6 lakhs. No",audio_63_406.mp3 +"prudent man would do so, therefore, the say of complainant rather support his contention, it creates strong doubtful circumstances as to the genuineness of the",audio_63_407.mp3 +"transaction. Judgment 48 c.c.no.21082/2017 57. No doubt, the complainant without citing the witnesses name in the ex.p6 in his pleading as well as he deposed,",audio_63_408.mp3 +"except the complainant and accused none were signed. Then how, all of sudden, the pw.2 came into witness box and deposed, complainant gave rs.6 lakhs",audio_63_409.mp3 +"to accused and on that day, ex.p6 came into force, he got singed as witness. In his cross-examination he deposed as to the alleged transaction",audio_63_410.mp3 +"that:m.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_63_411.mp3 +"‰□□…□ ’ƒ‰šž ”□□„□„ƒ ˆ ˆ□□š„ˆ. ”ž†„ ’ „ˆ –—„ …□…–†„ €□ƒ…‰ ’□‰ œƒ„„„†ƒ. ‡ †□‚ ž…„□ –—„ …□…–† ‡‰□□, ˆˆƒ €ƒ‹ƒ ‹ €□□ ˆƒšžƒ‚‚„ˆ □ƒ„†",audio_63_412.mp3 +"€†ž□□."" 58. On going through the evidence of pw.2, though he is unnecessary witness as his name was not cited earlier, either in the pleading",audio_63_413.mp3 +"or as deposed by the pw.1, all of sudden he came in to witness box and deposed. In his cross-examination , he deposed, on 21.06.2016",audio_63_414.mp3 +"his venkateshwara engraves shop, the shop of rajanna were situated abutting. Wherein, he saw the accused. The complainant and accused for doing monetary business came",audio_63_415.mp3 +"there. It was suggested to him that, in that manner no monetary transaction were happened and pw.2 has deposed falsely. Taken in to the evidence",audio_63_416.mp3 +"of pw.2, he disclosed the alleged loan transaction not judgment 49 c.c.no.21082/2017 taken place in the house of complainant or accused. But he was stated,",audio_63_417.mp3 +"it was alleged to be happened somewhere near the shops. Therefore, the very say of pw.2 also created doubt, as to his presence on the",audio_63_418.mp3 +"alleged date of execution of loan agreement. The evidence of pw.2 is not clarificatory from the point of evidence led by the complainant. Therefore, the",audio_63_419.mp3 +"evidence of pw.1 and pw.2 is not safe to relied upon to prove the guilt of the accused. 59. The complainant has pleaded, as agreed",audio_63_420.mp3 +"within 6 months, the accused has not repaid money, whenever he requested by stating there were ups and downs in his business on account of",audio_63_421.mp3 +"demonetarization of money and finally on 01.05.2017, he got issued the questioned cheque in his favour, and accused has denied the same by contending that,",audio_63_422.mp3 +"he was not borrowed any loan nor issued questioned cheque for payment of alleged loan amount. But strongly taken up the defence that, in order",audio_63_423.mp3 +"to procure led bulb contract the complainant took his signed 3 blank cheques and 2 signed blank cheques of his sister-in-law without procuring the business,",audio_63_424.mp3 +"forcefully quit the accused from the tenant under the rented premises, when he demanded for repayment of advance amount, then got misused his cheque and",audio_63_425.mp3 +"e-stamp paper. Thereby, contended questioned cheque was given by him as a security for procure led bulb contract. The complainant not stated that, he was",audio_63_426.mp3 +"judgment 50 c.c.no.21082/2017 procure led bulb contract to the accused. The ex.d2 clearly manifest the role of complainant, in doing the said business. Unless the",audio_63_427.mp3 +"accused was not assured by the complainant, definitely, no need to accused to affix his signature as witness to the service provider agreement entered in",audio_63_428.mp3 +"to between complainant with concern. The pw.1 in his cross-examination has discloses, on 01.05.2017 itself the cheque involved in the present Cas. as well as",audio_63_429.mp3 +"cheque involved in c.c.no.21084/2017 given by the accused by himself filled. Later, he also deposed, the accused earlier got filled the cheque and not written",audio_63_430.mp3 +"in his presence. Even he deposed, in his presence accused was not signed the same. More categorically the pw.1 has deposed that: ""‡ 2 š□ƒ",audio_63_431.mp3 +"□ ‰‹□ ‡†□□”ž €– –‰□ ‹„ œ†–‰‹ƒ œ□† œ□† ‘ƒ□ˆƒ„ □□š„ □ƒ„† €†."" 60. The pw.1 categorically admitted, the hand writing in both the cheques",audio_63_432.mp3 +"as well as the signature are made in different hand writing and ink. Thereby, it made clear that, whatever the fillings are made in the",audio_63_433.mp3 +"cheque are not of the accused. On meticulous perusal of the ex.p1-cheque, it clearly discloses, the admitted signature of the accused and other writings are",audio_63_434.mp3 +"made in different handm.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_63_435.mp3 +Respect of the alleged loan transaction. When the judgment 51 c.c.no.21082/2017 complainant utterly failed to prove the due execution and issuance of cheque in respect,audio_63_436.mp3 +"of repayment of portion of loan of rs.3 lakhs. The accused being an educated, no impediment to get fill the cheque in his own hand",audio_63_437.mp3 +"writing. If he liable to pay the amount covered under the cheque. Therefore, it made clear that, the accused only gave signed blank cheque to",audio_63_438.mp3 +"the complainant as the defence placed by him in connection to procure led bulb contract, but the same got misused by the complainant and projected",audio_63_439.mp3 +"the present Cas. , as he lent loan to accused for rs.6 lakhs. When the complainant himself not able to refund the cash security of rs.1,50,000/-",audio_63_440.mp3 +"to accused, as the legal debt payable to him, once again he came forward to pay huge amount loan of rs.6 lakhs as alleged in",audio_63_441.mp3 +"the complaint itself created doubt. 61. On going through the ex.d3 the acknowledgment given by the police, it also creates doubt on Anr. corner that,",audio_63_442.mp3 +"the complainant as alleged against one kumar, who is one of the partner in ex.d2 agreement, despite, he took rs.5 lakhs, not supplied led bulbs",audio_63_443.mp3 +"to him. From which, it has to be gather that, the complainant try to brought the dispute with kumar by misusing the questioned cheque of",audio_63_444.mp3 +"the accused in filing the present Cas. . The very Cas. placed by the complainant, no where corroborates his own documents. No doubt, the complainant got",audio_63_445.mp3 +"produced exs.p7 and p8 documents judgment 52 c.c.no.21082/2017 pertaining to the Cas. filed by manjunath against smt.h.J. mamatha. The production of documents discloses, their advocates",audio_63_446.mp3 +"are one and the same. No doubt, the dispute involved in the said Cas. is not a subject matter of the present Cas. , but the",audio_63_447.mp3 +"accused has successfully proved his probable defence that, the questioned cheque was not issued by him to the complainant in respect of payment of any",audio_63_448.mp3 +"liability. Despite, it creates reverse burden on the complainant to prove the very transaction beyond the reasonable doubt, he utterly failed to do so. Thereby,",audio_63_449.mp3 +the accused is entitled for acquittal. It is relevant to cite decision reported in 2015 (1) SC cases 99 kccr 1569 (k.subramani v/s. K.damodara,audio_63_450.mp3 +"naidu). Wherein the Hon'ble apex court observed that: ""debt, financial and monetary laws - NI Act , 1881 - Ss. 138, 118 and 139 -",audio_63_451.mp3 +dishonour of cheque - legally recoverable debt not proved as complainant could not prove source of income from which alleged loan was made to appellant-,audio_63_452.mp3 +"accused - presumption in favour of holder of cheque, hence, held, stood rebutted - acquittal restored"". 62. As per the said dictum, it made clear",audio_63_453.mp3 +"that, in view of the accused attack on the claim of complainant, it is the complainant needs to prove the source of income from the",audio_63_454.mp3 +"alleged loan was disbursed to the accused. In that regard, no source or accumulation judgment 53 c.c.no.21082/2017 of fund has been demonstrated by the complainant",audio_63_455.mp3 +"in order to pay the alleged loan to the accused. That apart, whatever the amount of refund of advance payable to the accused was not",audio_63_456.mp3 +"paid by the complainant at the time of he quit from rented premises. If at all, any amount was really payable by the accused as",audio_63_457.mp3 +"alleged in the present Cas. , question of refund as deposed by the pw.1 does not arise and common man after deducting the recoveries then only",audio_63_458.mp3 +"would return balance. Therefore, from that point also it creates doubt as to the bonafidness of the complainant.m.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_63_459.mp3 +"Concern with regard to supply of led bulb contract, the complainant has denied earlier and later on showing document admitted. Though, he lodged complaint against",audio_63_460.mp3 +"one of the partner by name kumar as per ex.d3, for the reasons better known to him, he denied the same. When he made allegation",audio_63_461.mp3 +"against kumar as the payment of rs.5 lakhs and non-supply of led bulb materials, once again how the complainant came forward to pay the huge",audio_63_462.mp3 +"amount of rs.6 lakhs to the accused, itself created doubt. The complainant has utterly failed to prove his Cas. beyond the reasonable doubt in proving",audio_63_463.mp3 +"the guilt of the accused. Hence, the accused is entitled for benefit of doubt for acquittal. Judgment 54 c.c.no.21082/2017 63. On overall appreciation of the",audio_63_464.mp3 +"material facts available on record, it discloses that, despite the accused harping on the very claim of the complainant, he fails to demonstrate his very",audio_63_465.mp3 +"Cas. . While appreciate the materials available on record, this court has humbly gone through the decision relied by both parties apart from the following decisions.",audio_63_466.mp3 +"In the decision reported in ilr 2009 kar 2331 (b.indramma v/s. Sri.eshwar). Wherein, the Hon'ble court held that: ""held, when the very factum of delivery",audio_63_467.mp3 +of the cheque in question by the accused to the complainant and its receipt by complainant from the accused itself is seriously disputed by the,audio_63_468.mp3 +"accused, his admission in his evidence that, the cheque in question bares his signature would not be sufficient proof of the fact that, he delivered",audio_63_469.mp3 +"the said cheque to the complainant and the latter received if from the former"". 64. The principle of law laid down in the above decision",audio_63_470.mp3 +"is applicable to the facts of this Cas. . Merely because, the accused admits that, cheque bares his signature, that, does not mean that, the accused",audio_63_471.mp3 +"issued cheque in discharge of a legally payable debt. At this stage, this court also relies upon Anr. decision reported in air 2007 noc 2612",audio_63_472.mp3 +"a.p. (g.veeresham v/s. Shivashankar and Anr. ). Wherein, the Hon'ble court has held as under: judgment 55 c.c.no.21082/2017 ""NI Act (26 of 1881). S. 138",audio_63_473.mp3 +dishonour of cheque - presumptions available to complainant under S. 118 and S. 139 of act - rebuttal of cheque in question was allegedly issued,audio_63_474.mp3 +"by accused to discharge hand loan taken from complainant. However, no material placed on record by complainant to prove alleged lending of hand loan said",audio_63_475.mp3 +"fact is sufficient to infer that, accused is liable to rebut presumptions available in favour of complainant under Ss. 118 and 139 of act, order",audio_63_476.mp3 +"acquitting accused for offence under S. 138 proper"". 65. The principle of law laid down in the above decisions is applicable to the facts of",audio_63_477.mp3 +"this Cas. . In the Cas. on hand also, as discussed above, the complainant has failed to prove with cogent evidence as to the lending of",audio_63_478.mp3 +"loan of rs.6 lakhs to the accused. Thus, that fact itself is sufficient to infer that, accused is able to rebut presumptions available in favour",audio_63_479.mp3 +"of complainant under Ss. 118 and 139m.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_63_480.mp3 +In a decision reported in air 2006 SC 3366 (m.s.narayana menon alian mani v/s. State of kerala and Anr. ). The Hon'ble apex court held,audio_63_481.mp3 +"that: ""once the accused discharges the initial burden placed on him the burden of proof would revert back to the prosecution"". Judgment 56 c.c.no.21082/2017 66.",audio_63_482.mp3 +"In this Cas. on hand also, on the lack of the complaint failed to prove the alleged loan transaction, it can gather the probability that,",audio_63_483.mp3 +"he is not liable to pay ex.p1 cheque amount of rs.3 lakhs and it is not legally recoverable debt. So, the burden is on the",audio_63_484.mp3 +"complainant to prove strictly with cogent and believable evidence that, the accused has borrowed the amount and he is legally liable to pay the same.",audio_63_485.mp3 +"Just because, there is a presumption under S. 139 of NI Act , that, will not create any special right to the complainant so as",audio_63_486.mp3 +"to initiate a proceeding against the drawer of the cheque, who is not at all liable to pay the cheque amount. The accused has taken",audio_63_487.mp3 +"his defence at the earliest point of time, while record accusation and statement under S. 313 of Cr.P.C. by way of denial.",audio_63_488.mp3 +"The evidence placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheque for discharge of liability of rs.3 lakhs.",audio_63_489.mp3 +"Hence, complainant has failed to prove the guilt of accused for the offence punishable under S. 138 of NI Act . Apart from that, in",audio_63_490.mp3 +"a decision reported in, kccr 12 (3) page 2057, the Hon'ble apex court held that: ""mere issuance of cheque is not sufficient unless it is",audio_63_491.mp3 +"shown that, the said cheque was issued judgment 57 c.c.no.21082/2017 towards discharge of legally recoverable debt. When the financial capacity of complainant is questioned, the",audio_63_492.mp3 +"complainant has to establish his financial capacity"". 67. In the Cas. on hand, accused has questioned the financial capacity of complainant. Complainant has not produced",audio_63_493.mp3 +any document to show his financial capacity to lend an amount of rs.6 lakhs to accused. When complainant has failed to prove the transaction alleged,audio_63_494.mp3 +"in the complaint, then the question of issuing the cheque for partial discharge of rs.3 lakhs does not arise. The evidence placed on record clearly",audio_63_495.mp3 +"probablize that, complainant has failed to prove that, accused issued the cheque for partial discharge of liability of rs.3 lakhs. Hence, complainant has failed to",audio_63_496.mp3 +"prove the guilt of accused for the offence punishable under S. 138 of NI Act . 68. From the above elaborate discussions, it very much",audio_63_497.mp3 +"clear that, the complainant has failed to adduce cogent and corroborative evidence to show that, accused has issued cheque ex.p1 in discharge of his legally",audio_63_498.mp3 +"payable debt for valid consideration. Hence, rebutted the legal presumptionsm.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_63_499.mp3 +"Judgment 58 c.c.no.21082/2017 69. The sum and substances of principles laid down in the rulings referred above are that, once it is proved that, cheque",audio_63_500.mp3 +pertaining to the account of the accused is dishonoured and the requirements envisaged under S. 138 of (a) to (c) of NI Act is,audio_63_501.mp3 +"complied, then it has to be presumed that, cheque in question was issued in discharge of legally recoverable debt. The presumption envisaged under S. 138",audio_63_502.mp3 +"of NI Act is mandatory presumption and it has to be raised in every cheque bounce cases. Now, it is settled principles that, to",audio_63_503.mp3 +"rebut the presumption, accused has to set up a probable defence and he need not prove the defence beyond reasonable doubt. 70. Thus, on appreciation",audio_63_504.mp3 +"of evidence on record, i hold that, the complainant has failed to prove the Cas. by rebutting the presumption envisaged under Ss. 118 and 139",audio_63_505.mp3 +"of NI Act . The complainant has failed to discharge the initial burden to prove his contention as alleged in the complaint. Hence, the complainant",audio_63_506.mp3 +"has not produced needed evidence to prove that, amount of rs.3 lakhs legally recoverable debt. Therefore, since the complainant has failed to discharge the reverse",audio_63_507.mp3 +"burden, question of appreciating other things and weakness of the accused is not a ground to accept the claim of judgment 59 c.c.no.21082/2017 the complainant",audio_63_508.mp3 +in its entirety without the support of the substantial documentary evidence pertaining to the said transaction. The complainant fails to prove his Cas. beyond all,audio_63_509.mp3 +"reasonable doubt. As discussed above, the complainant has utterly failed to prove the guilt of the accused for the offence punishable under S. 138 of",audio_63_510.mp3 +"NI Act . Accordingly, i answered the point nos.1 and 2 are negative. 71. Point no.3: in view of my findings on point nos.1 and",audio_63_511.mp3 +"2, i proceed to pass the following: order acting under S. 255(1) of Cr.P.C. the accused is acquitted for the offence punishable",audio_63_512.mp3 +"under S. 138 of NI Act . The bail bond and cash security/surety bond of the accused stands cancelled. (dictated to stenographer, transcribed and computerized",audio_63_513.mp3 +"by him, corrected and then pronounced by me in the open court on this the 4 th day of december - 2020) (shridhara.m) xxiii addl.",audio_63_514.mp3 +"Chief MM , bengaluru. Judgment 60 c.c.no.21082/2017 annexure list of witnesses examined on behalf of complainant:m.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_63_515.mp3 +Pw.2 : p.kannan list of exhibits marked on behalf of complainant: ex.p1 : original cheque ex.p1(a) : signature of accused ex.p2 : bank endorsement ex.p3,audio_63_516.mp3 +: office copy of legal notice ex.p4 : postal acknowledgment card ex.p5 : reply notice ex.p6 : loan agreement ex.p6(a) & p6(b) : signatures of,audio_63_517.mp3 +accused and pw.2 ex.p7 : cc of order sheet in c.c.no.17828/2018 ex.p8 : cc of Pvt. complaint in c.c.no.17828/2018 list of witnesses examined on behalf,audio_63_518.mp3 +of the defence: dw.1 : g.t.muralidhar list of exhibits marked on behalf of defence: ex.d1 : house rental agreement ex.d1(a) : signature of accused ex.d2,audio_63_519.mp3 +: acknowledgment ex.d3 : xerox copy of service provider agreement ex.d3(a) & d3(b) : signatures of complainant and accused ex.d4 : xerox copy of empty,audio_63_520.mp3 +"e-stamp paper ex.d4(a) : signature of accused xxiii addl. Chief MM , bengaluru. Judgment 61 c.c.no.21082/2017 04.12.2020. Comp - accd - for judgment Cas. called",audio_63_521.mp3 +"out. Complainant and accused are absent. No representation from both side advocates, despite, web-host the Cas. proceedings and intimate the date of pronouncement of judgment.",audio_63_522.mp3 +"Hence, asm.kempaiah vs. g.t.muralidhar on 4 december, 2020",audio_63_523.mp3 +Vide separate order. ***** order acting under S. 255(1) of Cr.P.C. the accused is acquitted for the offence punishable under S. 138,audio_63_524.mp3 +"of NI Act . The bail bond and cash security/surety bond of the accused stands cancelled. Xxiii addl. Chief MM , bengaluru.m.kempaiah vs. g.t.muralidhar on",audio_63_525.mp3 +"4 december, 2020",audio_63_526.mp3 +"Sham S/O sadashiv wagh vs. m/s muley constructions pvt on 15 july, 2008 author: v.r. Kingaonkar bench: v.r. Kingaonkar (1) in the HC ",audio_64_1.mp3 +"of judicature of bombay bench at aurangabad Crl. Appl. no. 3191 of 2006 sham s/o sadashiv wagh, r/o 8, laxmi apartment, lane No. 6, prabhat",audio_64_2.mp3 +"road, pune. Applicant vs. 1. M/s muley constructions pvt. Ltd., registered office at tapdiya terraces, adalat road, aurangabad, through its managing director sudhakarrao haribhau muley,",audio_64_3.mp3 +"r/o as above. 2. Galaxi laboratories Pvt. ltd. 3. Shrikant ramchandra deshmukhsham S/O sadashiv wagh vs. m/s muley constructions pvt on 15 july, 2008",audio_64_4.mp3 +"venture capital division, industrial development bank of india, idbi tower, wtc complex, cuffe parade, mumbai. 5. Shri s.S. walimbe, r/o c/o zen chemi consultech pvt.",audio_64_5.mp3 +"Ltd., hyderabad. Respondents with Crl. Appl. no. 3193 of 2006 sham s/o sadashiv wagh, r/o 8, laxmi apartment, lane No. 6, prabhat road, pune. Applicant",audio_64_6.mp3 +"vs. 1. M/s deogiri finance & consultants pvt. Ltd., aurangabad. 2. Galaxi laboratories pvt. Ltd., aurangabad. 3. Shrikant ramchandra deshmukh 4. Shri S. mohan 5.",audio_64_7.mp3 +"Shri s.S. walimbe, hyderabad. Respondents with Crl. Appl. no. 3252 of 2006 shri S. mohan s/o v. Sundaresan,sham S/O sadashiv wagh vs. m/s muley",audio_64_8.mp3 +"constructions pvt on 15 july, 2008",audio_64_9.mp3 +"(2) r/o row house No. 8, nyati plateau, mohammad wadi, corinthian club, pune. Applicant vs. 1. M/s deogiri finance & consultants pvt. Ltd., aurangabad, through",audio_64_10.mp3 +"its managing director sudhakarrao haribhau muley, r/o as above. 2. Galaxi laboratories pvt. Ltd. Aurangabad. 3. Shrikant ramchandra deshmukh, r/o flat No. 3, gruhakul apartment,",audio_64_11.mp3 +"station road, bansilal nagar, aurangabad. 4. Sham sadashiv wagh, r/o 8, laxmi apartment, lane No. 6, prabhat road, pune. 5. Shri s.S. walimbe, r/o c/o",audio_64_12.mp3 +"zen chemi consultech pvt. Ltd., plot No. 35, shri swami ayyappa co-op. Housing society, beside bharatiya hyderabad. Vidyalaya school, madhapur, respondentssham S/O sadashiv wagh",audio_64_13.mp3 +"vs. m/s muley constructions pvt on 15 july, 2008",audio_64_14.mp3 +"Crl. Appl. no. 3253 of 2006 shri S. mohan s/o v. Sundaresan, r/o row house No. 8, nyati plateau, mohammad wadi, corinthian club, pune. Applicant",audio_64_15.mp3 +"vs. 1. M/s muley construction pvt. Ltd., aurangabad, through its managing director sudhakarrao haribhau muley, r/o as above. 2. Galaxi laboratories pvt. Ltd., aurangabad. 3.",audio_64_16.mp3 +"Shrikant ramchandra deshmukh, r/o flat No. 3, gruhakul apartment, station road, bansilal nagar, aurangabad. 4. Sham sadashiv wagh, r/o 8, laxmi apartment, lane No. 6,",audio_64_17.mp3 +"prabhat road, pune. 5. Shri s.S. walimbe, r/o c/o zen chemi consultech pvt. Ltd., plot No. 35, shri swami ayyappa co-op. Housing society, beside bharatiya",audio_64_18.mp3 +"vidyalaya school, madhapur, hyderabad. Respondents ::: downloaded on - 09/06/2013 13:35:56 ::: (3)sham S/O sadashiv wagh vs. m/s muley constructions pvt on 15 july,",audio_64_19.mp3 +2008,audio_64_20.mp3 +"Crl. Appl. no. 3452 of 2006 1. Sham s/o sadashiv wagh, r/o 8, laxmi apartment, lane No. 6, prabhat road, pune. 2. Shri S. mohan",audio_64_21.mp3 +"s/o v. Sundaresan, r/o row house No. 8, nyati plateau, mohammad wadi, corinthian club, pune. 3. Shri n.S. walimbe, r/o c/o zen chemi consultech pvt.",audio_64_22.mp3 +"Ltd., plot No. 35, shri swami ayyappa co-op. Housing society, beside bharatiya vidyalaya school, madhapur, hyderabad. Applicants vs. 1. M/s deogiri finance & consultants pvt.",audio_64_23.mp3 +"Ltd., aurangabad, through its managing director sudhakarrao haribhau muley, r/o as above. 2. Galaxi laboratories pvt. Ltd., aurangabad. 3. Shrikant ramchandra deshmukh, r/o flat No. ",audio_64_24.mp3 +"3, gruhakul apartment, station road, bansilal nagar, aurangabad. Respondentssham S/O sadashiv wagh vs. m/s muley constructions pvt on 15 july, 2008",audio_64_25.mp3 +"Crl. Appl. no. 3453 of 2006 1. Sham s/o sadashiv wagh, r/o 8, laxmi apartment, lane No. 6, prabhat road, pune. 2. Shri S. mohan",audio_64_26.mp3 +"s/o v. Sundaresan, r/o row house No. 8, nyati plateau, mohammad wadi, corinthian club, pune. 3. Shri n.S. walimbe, r/o c/o zen chemi consultech pvt.",audio_64_27.mp3 +"Ltd., plot No. 35, shri swami ayyappa co-op. Housing society, beside bharatiya vidyalaya school, madhapur, hyderbad. Applicants vs. 1. M/s deogiri finance & consultants pvt.",audio_64_28.mp3 +"Ltd., aurangabad, through its managing director sudhakarrao haribhau muley, r/o as above. ::: downloaded on - 09/06/2013 13:35:56 ::: (4) 2. Galaxi laboratories pvt. Ltd.,",audio_64_29.mp3 +"aurangabad. 3. Shrikant ramchandra deshmukh, r/o flat No. 3, grahakul apartment, station road, bansilal nagar, aurangabad. Respondentssham S/O sadashiv wagh vs. m/s muley constructions",audio_64_30.mp3 +"pvt on 15 july, 2008",audio_64_31.mp3 +"Crl. Appl. no. 3454 of 2006 1. Sham s/o sadashiv wagh, r/o 8, laxmi apartment, lane No. 6, prabhat road, pune. 2. Shri S. mohan",audio_64_32.mp3 +"s/o v. Sundaresan, r/o row house No. 8, nyati plateau, mohammad wadi, corinthian club, pune. 3. Shri n.S. walimbe, r/o c/o zen chemi consultech pvt.",audio_64_33.mp3 +"Ltd., plot No. 35, shri swami ayyaappa co-op. Housing society, beside bharatiya vidyalaya school, madhapur, hyderabad. Applicants vs. 1. M/s deogiri finance & consultants pvt.",audio_64_34.mp3 +"Ltd., aurangabad, through its managing director sudhakarrao haribhau muley, r/o as above. 2. Galaxi laboratories pvt. Ltd., aurangabad. 3. Shrikant ramchandra deshmukh,sham S/O sadashiv",audio_64_35.mp3 +"wagh vs. m/s muley constructions pvt on 15 july, 2008",audio_64_36.mp3 +"station road, bansilal nagar, aurangabad. Respondents ..... Mr. A.S. barlota, Adv. holding for mr. S.k. Barlota, Adv. for the applicants in all Crl. applications. Mr.",audio_64_37.mp3 +"S.r. Deshpande, Adv. for respondent no.1. In all Crl. applications. Crl. Appl. No. 3191/2006 is dismissed as against respondent nos. 2 to 5 by court's",audio_64_38.mp3 +order. Crl. Appl. No. 3193/2006 is dismissed as against respondent nos. 2 to 5 by court's order. None present for respondent nos. 2 to 4,audio_64_39.mp3 +in Crl. Appl. No. 3253/2006. Name of respondent No. 5 is deleted in Crl. Appl. No. 3253/2006. None present for respondent nos. 2 and 3,audio_64_40.mp3 +"in Crl. Appl. nos. 3452/2006, 3453/2006 and 3454/2006. ..... [coram: v.r. Kingaonkar, j.] date : 15th july, 2008 ---------------------------- oral judgement : 1. These are",audio_64_41.mp3 +applications filed by three (3) directors of a Pvt. Co. for quashing of proceedings initiated by way of complaint filed by respondent No. 1 and,audio_64_42.mp3 +registered as s.c.c. No. 3396/2006 (m/s muley construction pvt. Ltd. vs. . Galaxi laboratories pvt. Ltd. And Ors. ) for commission of offence under S. 138,audio_64_43.mp3 +of the negotiable issuance of instruments process act. And the they proceedings are challenging initiated against them. 2. Respondent No. 1 filed a Pvt. complaint,audio_64_44.mp3 +"Cas. in the court of chief judicial magistrate, aurangabad which is registered as s.c.c. No. 3396/2006. The applicants are said to be directors of m/s",audio_64_45.mp3 +galaxi laboratories Pvt. Ltd. i.e. Accused No. 1 Co. . The averments in the complaint would show that the managing director who is accused No. 2,audio_64_46.mp3 +"shrikant, issued the cheque in question dated 31st march, 2006. The cheque bounced. The respondent No. 1 issued demand notices. The demand notices were served.",audio_64_47.mp3 +"Subsequently, since no payment was made within the prescribed period, the complaint for offence under S. 138 of the negotiable instruments actsham S/O sadashiv",audio_64_48.mp3 +"wagh vs. m/s muley constructions pvt on 15 july, 2008",audio_64_49.mp3 +"3. The contentions of the applicants herein stand on different footings. According to applicant sham wagh, he resigned as director of the Co. on 1st",audio_64_50.mp3 +"january, 2006 though subsequently, form No. 32 was accepted belatedly on 28th june, 2006. He was unconcerned with the business of the Co. since 2nd",audio_64_51.mp3 +"january, 2006 and, therefore, cannot be vicariously liable for the financial implications. He alleges that he was not signatory of the cheque nor was concerned",audio_64_52.mp3 +"with the payment in question and, therefore, is not vicariously liable. 4. According to applicant S. mohan, he is only a nominee director. He has",audio_64_53.mp3 +"been nominated by i.d.b.i. To work as director of the Co. i.e. Accused No. 1. So, he is immune from the financial implications and has",audio_64_54.mp3 +"no concern with the financial transactions of the Co. . 5. According to applicant s.S. walimbe, he is only a technical director and, therefore, is not",audio_64_55.mp3 +vicariously liable. 6. Heard learned counsel for the parties. 7. The liability of the directors stems from nature of charge with which they are entrusted,audio_64_56.mp3 +the affairs of the Co. . The nominee director cannot be held vicariously liable in view of second proviso appended to S. 141 of the negotiable,audio_64_57.mp3 +"instruments act, 1881. There is no dispute about the fact that applicant S. mohan is a nominee director. He has been nominated by the i.d.b.i.",audio_64_58.mp3 +"To oversee the affairs of the Co. . Though he is a director, as such, yet, is not directly concerned with the financial affairs of the",audio_64_59.mp3 +"Co. . Obviously, he cannot be held vicariously liable under S. 141 of the NI Act and his Appl. will have to be straightway allowed",audio_64_60.mp3 +"in view of the peculiar facts. 8. So far as the other two (2) applicants are concerned, it is contended by learned Adv. for the",audio_64_61.mp3 +respondent No. 1 that merely they are shown as directors of the Co. by itself is sufficient for the present to proceed against them. The,audio_64_62.mp3 +"learned Adv. for the respondent No. 1 (complainant) referred to various authorities including ""n. N. Rangachari vs. . Bharat sanchar nigam ltd., (2007) 5 s.c.c.",audio_64_63.mp3 +"108"" : 2007 air scw 2591"", ""m/s s.b. And t. International ltd. vs. state of maharashtra and Anr. , 2006 cri.l.j. 1541"", ""s.v. Muzumdar and Ors. ",audio_64_64.mp3 +"vs. gujarat state fertilizer co. Ltd. And Anr. , air 2005 s.c. 2436, ""prafulla maheshwari and Ors. vs. . State of maharashtra and Anr. , 2008 (1)",audio_64_65.mp3 +"mh.l.j. 844"", and ""sahakar maharshi shankarrao mohite patil nagari gramin sahakari pathsanstha and Anr. vs. subhash bhimrao gavsane and Anr. , 2008 (1) mh.l.j. 837"". 837",audio_64_66.mp3 +"he also referred to ""sarav sarav investment and financial consultants pvt. Ltd. And Anr. vs. llyods register of shipping indian office staff provident fund and",audio_64_67.mp3 +"Anr. , 2008 (2) mh.l.j. 787"".sham S/O sadashiv wagh vs. m/s muley constructions pvt on 15 july, 2008",audio_64_68.mp3 +"And responsible to the conduct of the business of the Co. . In fact, unless the charge for offence under S. 138 of the negotiable instruments",audio_64_69.mp3 +"act is proved against a Co. , there is no question of Crl. liability as against the directors. Their vicarious liability would crop up after the",audio_64_70.mp3 +charge is established as against the Co. . The provision of S. 141 of the NI Act may be reproduced for ready reference to the,audio_64_71.mp3 +"extent it is necessary. ""141. 141. Offences by companies - (1) if the person committing an offence under S. 138 is a Co. , every person",audio_64_72.mp3 +"who, at the time the offence was committed, was in charge of, and was responsible to, the Co. for the conduct of the business of",audio_64_73.mp3 +"the Co. , as well as the Co. , shall be deemed to be guilty of the offence and shall be liable to be proceeded against and",audio_64_74.mp3 +punished accordingly. Provided that nothing contained in this sub-S. shall render any person liable to punishment if he proves that the offence was committed without,audio_64_75.mp3 +"his knowledge, or that he had exercised all due diligence to prevent the commission of such offence. [provided provided further that where a person is",audio_64_76.mp3 +nominated as a director of a Co. by virtue of his holding any office or employment in the central Govt. or state Govt. or a,audio_64_77.mp3 +"financial ig Corp. owned or controlled by the central Govt. or the state Govt. , as the Cas. may be, he shall not be liable for",audio_64_78.mp3 +"prosecution under this chapter.]"" 10. A plain reading of S. 141 would make it manifestly clear that the complainant must prima facie indicate that the",audio_64_79.mp3 +"person accused of offence under S. 138, in his capacity as a director, is incharge of the conduct of the business of the Co. and",audio_64_80.mp3 +"was responsible to conduct such business. The expression ""was incharge of and was responsible to the Co. for the conduct of the business of the",audio_64_81.mp3 +"Co. "" does imply that such a person not only must be incharge of as a director, but also must be shown to be responsible in",audio_64_82.mp3 +"respect of the conduct of the business of the Co. . The apex court in ""saroj saroj kumar poddar vs. state (nct of delhi) and Anr. """,audio_64_83.mp3 +"(air 2007 s.c. 912), 912) held that every person connected with the Co. shall not fall within the ambit of the provision. It is only",audio_64_84.mp3 +"those persons who were in charge of and responsible for conduct of business of the Co. at the time of commission of an offence, who",audio_64_85.mp3 +"will be liable for Crl. action. In the given Cas. , the averments in the complaint have been reproduced in Para. 13 of the judgement, which",audio_64_86.mp3 +"are as follows : ""that the accused No. 1 is a public Ltd. Co. Inc. and registered under the are/were its directors at the relevant",audio_64_87.mp3 +time and the said Co. is managed by the board of directors and they are responsible for the incharge of thesham S/O sadashiv wagh,audio_64_88.mp3 +"vs. m/s muley constructions pvt on 15 july, 2008",audio_64_89.mp3 +In the complaint have been signed by the accused nos. 3 and 8 i.e. Shri k.k. Pilania and shri n.k. Munjal for and on behalf,audio_64_90.mp3 +"of the accused Co. No. 1."" 11. The averments in the complaint filed by the respondent No. 1 in the present Cas. are as follows",audio_64_91.mp3 +": ""that accused No. 2 is managing director and signatory of the cheque in question whereas accused nos. 3, 4 and 5 are the directors.",audio_64_92.mp3 +The accused nos. 2 to 5 were incharge of and were responsible to the Co. for the conduct of the business of the Co. at,audio_64_93.mp3 +"all material times and particularly at the time when the offence was committed."" 12. Considering the nature of averments in the complaint filed by the",audio_64_94.mp3 +"respondent No. 1, it will have to be said that the fact situation is much akin to the Cas. of ""saroj saroj kumar poddar vs. ",audio_64_95.mp3 +"state (nct of delhi) and Anr. "" Anr. (supra). There are no specific averments made in the complaint against the present applicants sham wagh and s.S. ",audio_64_96.mp3 +"walimbe. The complainant has not made it clear as to how and in what manner, they are responsible for conduct of business of the Co. .",audio_64_97.mp3 +"Hence, the Appl. of these two (2) applicants will have to be considered on the touchstone of the criterion which is laid down in ""saroj",audio_64_98.mp3 +"saroj kumar poddar's"" poddar' Cas. . It is pertinent to note that in ""n. N. Rangachari vs. bharat sanchar nigam ltd."" ltd. (supra), the Cas. of",audio_64_99.mp3 +"""saroj saroj kumar poddar"" poddar (supra) is considered and appears to have been distinguished. Still, however, it has not been overruled. It is well settled",audio_64_100.mp3 +"that a distinguished Cas. does not lose its force as precedent. Therefore, the dictum in ""saroj saroj kumar poddar"" poddar is still good law. It",audio_64_101.mp3 +"is true that a single bench of this court in ""prafulla prafulla maheshwari and Ors. vs. . State of maharashtra and Anr. "" Anr. (supra) againsham",audio_64_102.mp3 +"S/O sadashiv wagh vs. m/s muley constructions pvt on 15 july, 2008",audio_64_103.mp3 +"""n. N. Rangachari vs. bharat sanchar nigam ltd."" ltd. (supra) and also the Cas. of ""saroj saroj kumar poddar"" poddar (supra). The Cas. of ""saroj",audio_64_104.mp3 +"saroj kumar poddar"" poddar (supra), however, is not discussed threadbare in the said matter. Therefore, the Cas. of ""prafulla prafulla maheshwari and Ors. "" Ors. (supra)",audio_64_105.mp3 +"is inapplicable to the fact situation of the present Cas. . 13. The learned Adv. for the respondent No. 1/complainant, would submit that the internal affairs",audio_64_106.mp3 +of the accused No. 1 Co. could not be gathered by the managing director sudhakarrao mule who resigned prior to issuance of the cheque as,audio_64_107.mp3 +"chairman of thesham S/O sadashiv wagh vs. m/s muley constructions pvt on 15 july, 2008",audio_64_108.mp3 +"overlooked that if evidence is adduced to implicate the present applicants - sham wagh and s.S. walimbe, then the complainant is always at liberty to",audio_64_109.mp3 +"apply for addition of these persons as accused under S. 319 of the Crl. procedure code. However, in the absence of specific averments against them",audio_64_110.mp3 +"in the complaint itself, they cannot be called upon to face the trial. The trial may proceed against the accused nos. 1 and 2 without",audio_64_111.mp3 +"difficulty. 14. For the aforestated reasons, the applications are allowed and the proceedings against the three (3) applicants are quashed. The question of vicarious liability",audio_64_112.mp3 +"of the applicants sham wagh and s.S. walimbe is, however, kept open subject to the further evidence that may be adduced during course of trial.",audio_64_113.mp3 +"No costs. [ v.r. Kingaonkar ] judge npj/criapln3191-06-groupsham S/O sadashiv wagh vs. m/s muley constructions pvt on 15 july, 2008",audio_64_114.mp3 +"Sri.b.t.muniramaiah vs. sri.shantharaju.m on 21 november, 2019 1 c.c.no.5622/2014 j the court of the xvi additional chief MM , bengaluru city dated:- this the 21st",audio_65_1.mp3 +"day of november, 2019 present: sri.s.b.handral, b.sc., l.l.b(spl)., xvi addl.c.m.m., bengaluru city. Judgment u/s 355 of Cr.P.C. , Cas. No. : c.c.no.5622/2014",audio_65_2.mp3 +"complainant : sri.b.t.muniramaiah, s/o. Thimmaiah, aged about 42 years, r/at.no.114, prateeksha nilaya, 5th cross, kaveri nagar, near monotype bus stop, banashankari 2nd stage, bengaluru -",audio_65_3.mp3 +"560 070. (rep. By sri. Niranjan ganig.n, adv.,) - vs - accused : sri.shantharaju.m, s/o. Muniyappa, aged about 38 years, r/at.no.23, vaishnavi layout, uttarahalli, subramanyapura,",audio_65_4.mp3 +"bengaluru - 560 061. (rep. By sri.v.chandra., adv.,) Cas. instituted : 04.02.2014 2 c.c.no.5622/2014 j offence complained : u/s 138 of n.i act of plea",audio_65_5.mp3 +"of accused : pleaded not guilty final order : accused is convictedsri.b.t.muniramaiah vs. sri.shantharaju.m on 21 november, 2019",audio_65_6.mp3 +judgment the complainant has filed this complaint against the accused for the offence punishable u/sec.138 of the NI Act . 2. Briefly stated the Cas. ,audio_65_7.mp3 +"of the complainant is that, accused is his friend and had approached him for financial assistance of rs.10 lakhs in the month of december 2011",audio_65_8.mp3 +and he paid the said amount of rs.10 lakhs to the accused on 27/12/2011 in cash by withdrawing the said amount from his bank account,audio_65_9.mp3 +"i.e, hanumanthnagar co-operative bank, hanumanthanagar branch, bengaluru. The accused in turn has acknowledged the receipt of said amount through on demand pronote dated 27/12/2011. The",audio_65_10.mp3 +"accused towards discharge of the said amount has issued a cheque bearing no.194793 dated 21/11/2013 drawn on the hdfc bank, banashankari 3rd stage branch, bengaluru.",audio_65_11.mp3 +"day of november, 2019 present: sri.s.b.handral, b.sc., l.l.b(spl)., xvi addl.c.m.m., bengaluru city. Judgment u/s 355 of Cr.P.C. , Cas. No. : c.c.no.5622/2014",processed_document_pdf_137874976_1.mp3 +"complainant : sri.b.t.muniramaiah, s/o. Thimmaiah, aged about 42 years, r/at.no.114, prateeksha nilaya, 5th cross, kaveri nagar, near monotype bus stop, banashankari 2nd stage, bengaluru -",processed_document_pdf_137874976_2.mp3 +"560 070. (rep. By sri. Niranjan ganig.n, adv.,) - vs - accused : sri.shantharaju.m, s/o. Muniyappa, aged about 38 years, r/at.no.23, vaishnavi layout, uttarahalli, subramanyapura,",processed_document_pdf_137874976_3.mp3 +"bengaluru - 560 061. (rep. By sri.v.chandra., adv.,) Cas. instituted : 04.02.2014 2 c.c.no.5622/2014 j offence complained : u/s 138 of n.i act of plea",processed_document_pdf_137874976_4.mp3 +"of accused : pleaded not guilty final order : accused is convictedsri.b.t.muniramaiah vs. sri.shantharaju.m on 21 november, 2019",processed_document_pdf_137874976_5.mp3 +judgment the complainant has filed this complaint against the accused for the offence punishable u/sec.138 of the NI Act . 2. Briefly stated the Cas. ,processed_document_pdf_137874976_6.mp3 +"of the complainant is that, accused is his friend and had approached him for financial assistance of rs.10 lakhs in the month of december 2011",processed_document_pdf_137874976_7.mp3 +and he paid the said amount of rs.10 lakhs to the accused on 27/12/2011 in cash by withdrawing the said amount from his bank account,processed_document_pdf_137874976_8.mp3 +"i.e, hanumanthnagar co-operative bank, hanumanthanagar branch, bengaluru. The accused in turn has acknowledged the receipt of said amount through on demand pronote dated 27/12/2011. The",processed_document_pdf_137874976_9.mp3 +"accused towards discharge of the said amount has issued a cheque bearing no.194793 dated 21/11/2013 drawn on the hdfc bank, banashankari 3rd stage branch, bengaluru.",processed_document_pdf_137874976_10.mp3 +"The complainant has presented the said cheque for encashment through his banker but the said cheque was returned dishonoured for the reason ""payment stopped by",processed_document_pdf_137874976_11.mp3 +"the drawer"" on 23.11.2013. Thereafter he got issued legal notice to the accused on 21.12.2013 through rpad and speed post calling upon him to pay",processed_document_pdf_137874976_12.mp3 +"the cheque amount but though the accused has received said notice neither replied nor paid the cheque amount to him, hence the dishonour of cheque",processed_document_pdf_137874976_13.mp3 +"by the accused has been malafide, intentional and deliberate. Hence the complainant has filed this present complainant against the accused for the offence punishable u/s.138",processed_document_pdf_137874976_14.mp3 +"of NI Act . 3. Before issuing process against the accused, the complainant has filed his Aff. -in-lieu of his sworn statement, in which, he has",processed_document_pdf_137874976_15.mp3 +reiterated the averments of the complaint along with original documents. 4. Prima-facie Cas. has been made out against the accused and summons was issued against,processed_document_pdf_137874976_16.mp3 +the accused in turn he has appeared before the court and got enlarged on bail and the substance of the accusation has been read over,processed_document_pdf_137874976_17.mp3 +"to him, to which he pleaded not guilty and claims to be tried. 5. The complainant himself examined as pw.1 and he has filed his",processed_document_pdf_137874976_18.mp3 +"Aff. , in which he has reiterated the complaint averments. The complainant earlier has produced 8 documents which are marked as ex.p.1 to p8 subsequently has",processed_document_pdf_137874976_19.mp3 +produced other documents which are marked as ex.p9 to 14. The original cheque dated 21.11.2013 is as per ex.p1 and signature of the accused on,processed_document_pdf_137874976_20.mp3 +the said cheque identified by the complainant is as per ex.p1(a). Bank memo issued by the accused banker is as per ex.p2. Copy of the,processed_document_pdf_137874976_21.mp3 +legal notice is as per ex.p3. Two postal receipts are as per ex.p4 and 5. Postal acknowledgment is as per ex.p6. Original on demand promissory,processed_document_pdf_137874976_22.mp3 +note and consideration receipt is as per ex.p7 and signatures of the accused on ex.p7 identified by the complainant are at ex.p7(a) and 7(b). Complaint,processed_document_pdf_137874976_23.mp3 +"and signature of the complainant are at ex.p8 and p8(a). Statement of account pertaining to the complainant bank account i.e., hanumanthnagar co-operative bank account statement",processed_document_pdf_137874976_24.mp3 +"for the period from 01.04.2011 to 31.07.2019 is as per ex.p9. IT returns documents for the year 2011-12, 2009-10, 2010-11 and balance sheet are",processed_document_pdf_137874976_25.mp3 +"marked as ex.p10, ex.p12 to 14. Certificate filed by the complainant u/s.65 of indian evidence act is at ex.p11.sri.b.t.muniramaiah vs. sri.shantharaju.m on 21 november, 2019",processed_document_pdf_137874976_26.mp3 +Recorded. He has denied the incriminating evidence appearing against him and has not chosen to lead his rebuttal evidence. 7. Heard and perused the written,processed_document_pdf_137874976_27.mp3 +arguments of both learned counsels for the complainant and the accused and perused materials on record and decisions relied upon by both sides. 8. On,processed_document_pdf_137874976_28.mp3 +"the basis of complaint, evidence of complainant and documents and having heard the arguments of both learned counsels for the complainant and the accused, the",processed_document_pdf_137874976_29.mp3 +"following points that are arise for consideration are:- 1. Whether the complainant proves that the accused has issued a cheque for rs.10,00,000/= bearing no.194793 dated:-",processed_document_pdf_137874976_30.mp3 +"21.11.2013 drawn on hdfc bank, bsk 2nd stage branch, bengaluru to discharge legally recoverable debt to the complainant and when the complainant has presented a",processed_document_pdf_137874976_31.mp3 +"cheque for encashment through his banker but the said cheque has been dishonoured for the reasons ""payment stopped by the drawer"" on 23.11.2013 and the",processed_document_pdf_137874976_32.mp3 +complainant issued legal notice to the accused on 21.12.2013 and inspite of it the accused has not paid the cheque amount within prescribed period there,processed_document_pdf_137874976_33.mp3 +by the accused has committed an offence u/s.138 of the NI Act ? 2. What order? 9. The above points are answered as under: point,processed_document_pdf_137874976_34.mp3 +no.1: in the affirmative point no.2:as per final order for the following: reasons 10. Point no.1 : before appreciation of the facts and oral and,processed_document_pdf_137874976_35.mp3 +"documentary evidence of the present Cas. , it is relevant to mention that under Crl. jurisprudence prosecution is required to establish guilt of the accused beyond",processed_document_pdf_137874976_36.mp3 +"all reasonable doubts however, a proceedings u/s.138 of n.i.act is quasi Crl. in nature. In these proceedings proof beyond all reasonable doubt is subject to",processed_document_pdf_137874976_37.mp3 +"presumptions as envisaged u/s.118, 139 and 136 of n.i.act. An essential ingredient of S. 138 of n.i.act is that, whether a person issues cheque to",processed_document_pdf_137874976_38.mp3 +"be encashed and the cheque so issued is towards payment of debt or liability and if it is returned as unpaid for want of funds,",processed_document_pdf_137874976_39.mp3 +then the person issuing such cheque shall be deemed to have been committed an offence. The offence u/s.138 of n.i. Act pre-supposes three conditions for,processed_document_pdf_137874976_40.mp3 +"prosecution of an offence which are as under: 1. Cheque shall be presented for payment within specified time i.e., from the date of issue or",processed_document_pdf_137874976_41.mp3 +"before expiry of its validity.sri.b.t.muniramaiah vs. sri.shantharaju.m on 21 november, 2019",processed_document_pdf_137874976_42.mp3 +One month from the date of receipt of information of the bounced cheque and 3. The drawer inspite of demand notice fails to make payment,processed_document_pdf_137874976_43.mp3 +within 15 days from the date of receipt of such notice. If the above said three conditions are satisfied by holder in due course gets,processed_document_pdf_137874976_44.mp3 +"cause action to launch prosecution against the drawer of the bounced cheque and as per sec.142(b) of the n.i. Act, the complaint has to be",processed_document_pdf_137874976_45.mp3 +filed within one month from the date on which cause of action arise to file complaint. 11. It is also one of the essential ingredients,processed_document_pdf_137874976_46.mp3 +"of S. 138 of n.i.act that, a cheque in question must have been issued towards legally recoverable debt or liability. S. 118 and 139 of",processed_document_pdf_137874976_47.mp3 +"n.i.act envisages certain presumptions i.e.,u/s.118 a presumption shall be raised regarding 'consideration' 'date' 'transfer' ' endorsement' and holder in course of negotiable instrument. Even sec.139",processed_document_pdf_137874976_48.mp3 +"of the act are rebuttable presumptions shall be raised that, the cheque in question was issued regarding discharge of a legally recoverable or enforceable debt",processed_document_pdf_137874976_49.mp3 +"and these presumptions are mandatory presumptions that are required to be raised in cases of negotiable instrument, but the said presumptions are not conclusive and",processed_document_pdf_137874976_50.mp3 +"or rebuttable one, this proportion of law has been laid down by the Hon'ble apex court of india and Hon'ble HC of karnataka in",processed_document_pdf_137874976_51.mp3 +catena of decisions. 12. In the present Cas. the complainant got examined as pw.1 by filing his Aff. evidence wherein the complainant has reiterated the,processed_document_pdf_137874976_52.mp3 +"entire averments of the complaint. The complainant/pw1 testified that, accused is his friend and in the month of december 2011 has approached for financial assistance",processed_document_pdf_137874976_53.mp3 +"of rs.10,00,000/- towards purchase of property and has paid the said amount of rs.10 lakhs to the accused by way of cash by withdrawing from",processed_document_pdf_137874976_54.mp3 +"his bank account from hanumanthanagara co- operative bank, bengaluru and the accused acknowledged receipt of the said amount and executed on demand promissory note dated",processed_document_pdf_137874976_55.mp3 +"27.12.2011. The complainant/pw1 further testified that, the accused issued a cheque i.e., ex.p1 in his favour for rs.10 lakhs and he has presented the said",processed_document_pdf_137874976_56.mp3 +"cheque for encashment through his banker but the said cheque was dishonoured for the reason of ""payment stopped by drawer"" on 23.11.2013. The complainant/pw1 further",processed_document_pdf_137874976_57.mp3 +"testified that, he got issued legal notice dated 21.12.2013 demanding payment of the cheque amount within 15 days through rpad and speed post and it",processed_document_pdf_137874976_58.mp3 +was served on the accused on 24.12.2013 but he has not paid the amount or replied to the notice. 13. In support of his oral,processed_document_pdf_137874976_59.mp3 +evidence the complainant earlier has produced 8 documents which are marked as ex.p.1 to p8 subsequently has produced other documents which are marked as ex.p9,processed_document_pdf_137874976_60.mp3 +to 14. The original cheque dated 21.11.2013 is as per ex.p1 and signature of the accused on the said cheque identified by the complainant is,processed_document_pdf_137874976_61.mp3 +as per ex.p1(a). Bank memo issued by the accused banker is as per ex.p2. Copy of the legal notice is as per ex.p3. Two postal,processed_document_pdf_137874976_62.mp3 +"receipts are as per ex.p4 and 5. Postal acknowledgment is as per ex.p6, original on demand promissory note and consideration receipt is as per ex.p7",processed_document_pdf_137874976_63.mp3 +"and signatures of the accused on ex.p7 identified by the complainant are at ex.p7(a) and 7(b), complaint and signature of the complainant are at ex.p8",processed_document_pdf_137874976_64.mp3 +"and p8(a). Statement of account pertaining to the complainant's bank account i.e., hanumanthnagar co-operative banksri.b.t.muniramaiah vs. sri.shantharaju.m on 21 november, 2019",processed_document_pdf_137874976_65.mp3 +"Documents for the year 2011-12, 2009-10, 2010-11 and balance sheet are marked as ex.p.10, ex.p12 to 14. Certificate filed by the complainant u/s.65 of indian",processed_document_pdf_137874976_66.mp3 +"evidence act is at ex.p11. 14. In the present Cas. , there is no dispute between the complainant and accused in respect of their acquaintance. It",processed_document_pdf_137874976_67.mp3 +"is also not in dispute by the accused that, the cheque in dispute i.e., ex.p1 belongs to the account of accused and signature appearing on",processed_document_pdf_137874976_68.mp3 +"ex.p1 i.e., ex.p1(a) is also that of the accused and the said cheque has been presented to the bank for encashment and returned as ""payment",processed_document_pdf_137874976_69.mp3 +"stopped by drawer"" is also not in dispute as a matter on record, proved by return memo i.e., ex.p2 issued by the accused banker dated",processed_document_pdf_137874976_70.mp3 +"23.11.2013, thereafter it is a matter on record and has been proved that, cheque in question was presented within its validity period and dishonoured as",processed_document_pdf_137874976_71.mp3 +"per bank memo. In relation to the service of legal notice ex.p3, the accused has not disputed his address as shown by the complainant in",processed_document_pdf_137874976_72.mp3 +"legal notice and on postal receipts, postal acknowledgment i.e., ex.p4 to p6. It is also not in dispute that, even after service of notice the",processed_document_pdf_137874976_73.mp3 +"accused has not paid cheque amount, in dispute, finally the complainant has failed this complaint within the limitation period, hence the only question remaining for",processed_document_pdf_137874976_74.mp3 +"determination is whether the legal, valid and enforceable debt is in existence and the cheque in question was issued towards discharge of the said debt",processed_document_pdf_137874976_75.mp3 +"or liability. Hence from careful perusal of the oral and documentary evidence of the complainant and ex.p1 to 14 makes it clear that, the complainant",processed_document_pdf_137874976_76.mp3 +"has proved that, the cheque in dispute i.e., ex.p1 was issued by the accused and the signature thereon is that of the accused i.e., ex.p1(a),",processed_document_pdf_137874976_77.mp3 +"therefore the cheque was presented to the bank and returned as unpaid for the reason of ""payment stopped by drawer"" as per ex.p2, therefore the",processed_document_pdf_137874976_78.mp3 +"complainant has got issued legal notice to the accused and the said notice was served on him, even after service of the said notice, the",processed_document_pdf_137874976_79.mp3 +accused denied the loan amount advanced by the complainant as contended by him. 15. The accused during the course of cross- examination of complainant/pw1 has,processed_document_pdf_137874976_80.mp3 +"taken specific defence that, the legal notice issued by the complainant has not been served upon him and also taken defence that, he never borrowed",processed_document_pdf_137874976_81.mp3 +rs.10 lakhs from the complainant and issued cheque in question infavour of the complainant towards discharge of said loan. It is also specific defence of,processed_document_pdf_137874976_82.mp3 +"the accused that, he has not executed on demand pronote but the cheque in question was collected by the complainant prior to 2000 and also",processed_document_pdf_137874976_83.mp3 +"collected blank signed stamp papers and on demand pronote and consideration receipts and same have been misused by the complainant and filed this Cas. , therefore",processed_document_pdf_137874976_84.mp3 +"on these back drop the oral and documentary evidence produced by the complainant has to be examined. 16. Since, the accused in his defence denied",processed_document_pdf_137874976_85.mp3 +"the issuance of notice by the complainant and service of the said notice upon him, in order to prove the service of the notice on",processed_document_pdf_137874976_86.mp3 +the accused the complainant relied upon the documents i.e. Copy of the legal notice dated: 21.12.2013 postal receipts and postal acknowledgements i.e. Ex.p.3 to p.6.,processed_document_pdf_137874976_87.mp3 +"According to the complainant, after dishonour of the cheque in question he got issued legal notice to the accused on 21.12.2013 by demanding him to",processed_document_pdf_137874976_88.mp3 +pay the amount covered under the dishonoured cheque within 15 days from the date of receipt of the said notice through rpad and speed post,processed_document_pdf_137874976_89.mp3 +"and the said notice was duly served upon the accused onsri.b.t.muniramaiah vs. sri.shantharaju.m on 21 november, 2019",processed_document_pdf_137874976_90.mp3 +"Complainant/ pw.1 has made a suggestion to the complainant that, the legal notice caused by him was not received by the accused, except the said",processed_document_pdf_137874976_91.mp3 +suggestion the accused has not made any single suggestion or question to the complainant in respect of the postal receipts and acknowledgements which are at,processed_document_pdf_137874976_92.mp3 +ex.p.4 to p.6. The learned counsel for the accused has also not denied the address mentioned by the complainant in the legal notice as the,processed_document_pdf_137874976_93.mp3 +said address is not the correct address of the accused or the accused is not residing in the address shown by the complainant in the,processed_document_pdf_137874976_94.mp3 +legal notice and postal receipt and acknowledgements and even has not disputed the receipt of legal notice through registered post and acknowledgement i.e. As per,processed_document_pdf_137874976_95.mp3 +"ex.p.6, hence in view of the same, the accused is estopped from denying the service of notice upon him. In addition to that, the accused",processed_document_pdf_137874976_96.mp3 +"has not produced any documents to show that, as on the date of issuance of the legal notice through registered post by the complainant he",processed_document_pdf_137874976_97.mp3 +"was not residing in the address given by the complainant in the legal notice, therefore an adverse inference can be drawn against the accused that,",processed_document_pdf_137874976_98.mp3 +as on the date of issuance of the legal notice by the complainant the accused was residing in the address shown by the complainant in,processed_document_pdf_137874976_99.mp3 +the legal notice as well as on the postal acknowledgement and the said notice was received by the accused. Hence for the said reasons it,processed_document_pdf_137874976_100.mp3 +can be held that the legal notice issued by the complainant to the correct address of the accused or otherwise it can be presumed u/s.27,processed_document_pdf_137874976_101.mp3 +"of the general clauses act that, the notice is sent to the correct address, the same shall be presumed to have been duly served. But",processed_document_pdf_137874976_102.mp3 +"in the present Cas. the accused has not disputed the postal acknowledgement i.e. Ex.p.6, in such circumstances it can be held that, the complainant has",processed_document_pdf_137874976_103.mp3 +"proved that, the legal notice caused by the complainant was duly served on the accused. 17. Hence from careful perusal of the oral and documentary",processed_document_pdf_137874976_104.mp3 +"evidence of the complainant i.e., ex.p.1 to p.13 makes it clear that, the complainant has proved that, the cheque in question i.e. Ex.p.1 issued by",processed_document_pdf_137874976_105.mp3 +"the accused and the signature on the ex.p.1 i.e. Cheque is that of the accused, thereafter the complainant got issued legal notice to the accused",processed_document_pdf_137874976_106.mp3 +"and the said notice was served on the accused, has not given any reply or complied with the terms of the notice, therefore the complainant",processed_document_pdf_137874976_107.mp3 +has discharged his initial burden casted upon him and a presumption can be drawn in his favour as available u/s.118 and 139 of n.i act.,processed_document_pdf_137874976_108.mp3 +"Consequently it is for the accused to rebut the said presumptions and to show that, the cheque in question was not issued either to the",processed_document_pdf_137874976_109.mp3 +"complainant or towards any legally recoverable debt or liability, by producing cogent and convincible evidence but not mere suggestions or even plausible explanations. 18. In",processed_document_pdf_137874976_110.mp3 +"the present Cas. , the accused has taken specific defence that, he has not borrowed any loan amount from the complainant and the complainant has no",processed_document_pdf_137874976_111.mp3 +"financial capacity to lend the alleged loan amount to him and has not produced any documents to prove that, the accused has acknowledged the receipt",processed_document_pdf_137874976_112.mp3 +"of alleged loan in question and promised him that, he would repay the alleged amount and also denied the documents produced by the complainant by",processed_document_pdf_137874976_113.mp3 +"contending that, cheque in question was not issued towards repayment of alleged loan. The accused has also taken specific defence that, the complainant along with",processed_document_pdf_137874976_114.mp3 +"one basavaraja, krishnappa and anandappa was running a chit business, in which the complainant has collected his 16 signed blank cheques along with signed blank",processed_document_pdf_137874976_115.mp3 +"stamp papers and signed blank on demand pronote and consideration receipt prior to the year 2000.sri.b.t.muniramaiah vs. sri.shantharaju.m on 21 november, 2019",processed_document_pdf_137874976_116.mp3 +"Capacity, has produced on demand and consideration receipt executed by the accused in his favour in the presence of the witnesses which is at ex.p.7",processed_document_pdf_137874976_117.mp3 +"and statement of accounts pertaining to his bank account of the hanumanthanagar co-operative bank ltd., for the period from 1.4.2011 to 15.4.2014 which is at",processed_document_pdf_137874976_118.mp3 +"ex.p.9 and IT returns documents for the assessment year of 2011-12, 2009-10 and 2010-11 which are at ex.p.10, p.12 and p.13. On careful perusal",processed_document_pdf_137874976_119.mp3 +"of the ex.p.7 i.e., on demand and consideration receipt executed by the accused in favour of the complainant wherein it is mentioned that, the accused",processed_document_pdf_137874976_120.mp3 +on 27.12.2011 has received an amount of rs.10 lakhs as a hand loan by agreeing to pay interest at the rate of 12% p.a. To,processed_document_pdf_137874976_121.mp3 +the complainant in the presence of witnesses. The accused during the course of cross-examination of the complainant though he has denied the contents of the,processed_document_pdf_137874976_122.mp3 +"ex.p.7 i.e. On demand and consideration receipt but has not disputed his signature appearing at ex.p.7(a) and ex.p.7(b), hence in view of admitted fact by",processed_document_pdf_137874976_123.mp3 +"the accused it can be held that, the accused has admitted his signatures found at ex.p.7(a) and p.7(b) i.e., on the on demand and consideration",processed_document_pdf_137874976_124.mp3 +"receipt, hence when the accused has admitted his signature on the on demand and consideration receipt it can be presumed that, he has admitted the",processed_document_pdf_137874976_125.mp3 +"contents of the on demand and consideration receipt, unless the accused proved the contrary that, the said contents of the on demand and consideration receipt",processed_document_pdf_137874976_126.mp3 +"are created by the complainant, but except the denial of the contents of the on demand and consideration receipt, the accused has not produced any",processed_document_pdf_137874976_127.mp3 +"rebuttable evidence to disbelieve or discredit the contents of the ex.p.7 i.e. On demand and consideration receipt. Apart from that, the complainant in his cross-examination",processed_document_pdf_137874976_128.mp3 +"has specifically stated that, he has lent an amount of rs.10 lakhs to the accused on 27.12.2011 for the purpose of purchasing the property by",processed_document_pdf_137874976_129.mp3 +him and the accused in turn has executed on demand promissory note in the presence of one g.r.gopinath and sathish. It is also stated by,processed_document_pdf_137874976_130.mp3 +"the complainant in his cross-examination that, the accused has brought the written on demand and consideration receipt and denied a suggestion made to him that,",processed_document_pdf_137874976_131.mp3 +there is a difference in ink in respect of signature and rest of the contents in ex.p.7 and except the signature on ex.p.7 the rest,processed_document_pdf_137874976_132.mp3 +"of the contents are written by him. The complainant has also denied a suggestion put to him that, he has misused a blank signed on",processed_document_pdf_137874976_133.mp3 +"demand and consideration receipt collected by him from the complainant at the time of advancing the loan prior to the year 2000. Therefore, on careful",processed_document_pdf_137874976_134.mp3 +"perusal of the cross-examination of the complainant by the accused on ex.p.7 i.e. On demand and consideration receipt, nothing has been elicited to believe the",processed_document_pdf_137874976_135.mp3 +"defence of the accused that, ex.p.7 as either it is created by the complainant or blank signed on demand and consideration receipt given by the",processed_document_pdf_137874976_136.mp3 +accused is misused by the complainant as contended by the accused in his defence. 20. In support of documentary evidence i.e. Ex.p.7 the complainant has,processed_document_pdf_137874976_137.mp3 +examined the two witnesses who were signed to ex.p.7 as a witnesses as pw.2 and pw.3. The pw.2 and pw.3 in their Aff. evidence filed,processed_document_pdf_137874976_138.mp3 +"in lieu of examination in chief have specifically stated that, they knows the complainant and accused since several years and the complainant running the business",processed_document_pdf_137874976_139.mp3 +"of dry- cleaning at shastri nagar, thyagarajnagar, bengaluru and accused also running business of share trading. The pw.2 and 3 further stated that, the accused",processed_document_pdf_137874976_140.mp3 +"approached the complainant for financial assistance to the tune of rs.10 lakhs towards purchase of property and accused agreed to repay the said amount, the",processed_document_pdf_137874976_141.mp3 +complainant paid the said amount of rs.10 lakhs to the accused by way of cash and the same was acknowledged by the accused at complainant's,processed_document_pdf_137874976_142.mp3 +"shop. The pw.2 and 3 further stated that, the accused at the time of availing the said amount has executed on demand promissorysri.b.t.muniramaiah vs. sri.shantharaju.m",processed_document_pdf_137874976_143.mp3 +"on 21 november, 2019",processed_document_pdf_137874976_144.mp3 +Been duly signed on the said on demand promissory note and consideration receipt and taken the cash of rs.10 lakhs from the complainant and thereafter,processed_document_pdf_137874976_145.mp3 +they have also signed as a witness on the demand promissory note. 21. The learned counsel for the accused has cross examined the pw.2 and,processed_document_pdf_137874976_146.mp3 +pw.3 in length but during the course of cross-examination has not disputed the signatures of the accused and signatures of the pw.2 and pw.3 on,processed_document_pdf_137874976_147.mp3 +"demand note and consideration receipt. The pw.2 and pw.3 during the course of their cross-examination they have specifically stated that, on 27.12.2011 they visited the",processed_document_pdf_137874976_148.mp3 +"complainant's business hop at that time, the accused was also came there and received an amount of Rs. 10 lakhs infront of them and executed",processed_document_pdf_137874976_149.mp3 +the on demand pronote infavour of the complainant and they have also signed as witness to the on demand promissory note. The pw.2 and pw.3,processed_document_pdf_137874976_150.mp3 +"have specifically stated that, the accused has taken the loan amount from the complainant towards purchase of property by him and at the request of",processed_document_pdf_137874976_151.mp3 +"the complainant and accused they had signed to pronote. The pw.2 in his cross-examination has stated that, the complainant brought the amount from the bank",processed_document_pdf_137874976_152.mp3 +by availing loan on his house property and has given to the said amount to the accused. The pw.2 and pw.3 have specifically stated in,processed_document_pdf_137874976_153.mp3 +"their cross-examination that, the ex.p.7 on demand and consideration receipt was brought by the accused and it was written document at the time of putting",processed_document_pdf_137874976_154.mp3 +"their signature to the said document. The pw.2 and pw.3 have denied a suggestion made to them that, themselves, one krishnappa, basavaraju, anandappa and complainant",processed_document_pdf_137874976_155.mp3 +"together were doing chit transaction and in respect of the chit transaction the accused had given blank signed cheques, on demand pronote and blank signed",processed_document_pdf_137874976_156.mp3 +stamp papers infavour of the complainant towards security and the said documents have been misused by them and filed this Cas. and deposing falsely before,processed_document_pdf_137874976_157.mp3 +"the court. Therefore on entire perusal of the cross-examination of the pw.2 and pw.3, nothing has been elicited to believe the defence of the accused",processed_document_pdf_137874976_158.mp3 +"that, the complainant along with pw.2 and pw.3 and other persons have misused the blank signed on demand promissory note and consideration receipt given by",processed_document_pdf_137874976_159.mp3 +"the accused to the complainant and pw.2 and pw.3 have also colluded with the complainant and created the ex.p.7, in such circumstances, the evidence of",processed_document_pdf_137874976_160.mp3 +"pw.2 and pw.3 sufficient to hold that, in their presence the accused had received a loan amount of rs.10 lakhs from the complainant and in",processed_document_pdf_137874976_161.mp3 +turn has executed the on demand and consideration receipt i.e ex.p.7 in their presence towards acknowledgement of receipt of the said amount and the accused,processed_document_pdf_137874976_162.mp3 +has duly signed to the ex.p.7 in the presence of pw.2 and pw.3. 22. The complainant has also produced his statement of accounts pertaining to,processed_document_pdf_137874976_163.mp3 +"his bank account of hanumanthanagar co-operative bank ltd., bengaluru for the period of 1.4.2011 to 15.4.2014 which is at ex.p.9 and also produced the income",processed_document_pdf_137874976_164.mp3 +tax returns submitted by him for the assessment year of 2009-10 to 2011-12 which are at ex.p.10 and p.12 and p.13. The learned counsel for,processed_document_pdf_137874976_165.mp3 +"the accused during the course of cross-examination of the complainant has not disputed the ex.p.9, 10, 12 and p.13 i.e. The bank statement and i.t.r.records",processed_document_pdf_137874976_166.mp3 +"of the complainant but he is only disputing that, the complainant borrowed a loan of rs.12,75,000/= from the bank is not for the purpose of",processed_document_pdf_137874976_167.mp3 +"advancing the loan amount to the accused but the said loan was borrowed towards to clear his debts, in this regard, the purpose of loan",processed_document_pdf_137874976_168.mp3 +"mentioned in ex.p.9 statement was marked as ex.d.1 on behalf of the accused. It is true that, as per ex.d.1 it appears that, the complainant",processed_document_pdf_137874976_169.mp3 +has borrowed a loan from the concerned bank on 24.12.2011 interest at the rate of 14% for the purpose of clearing the debts. Butsri.b.t.muniramaiah vs. ,processed_document_pdf_137874976_170.mp3 +"sri.shantharaju.m on 21 november, 2019",processed_document_pdf_137874976_171.mp3 +"Rs.12,75,000/= from the concerned bank, therefore it can be held that, as on the date of alleged transaction in this Cas. the complainant was having",processed_document_pdf_137874976_172.mp3 +"sufficient source of funds in his bank account. It may be true that, the complainant has availed a loan from the bank for the purpose",processed_document_pdf_137874976_173.mp3 +"of clearing his debt but only on the basis of the purpose of loan mentioned in ex.p.9 bank statement it can not be held that,",processed_document_pdf_137874976_174.mp3 +the complainant has not paid the loan amount of rs.10 lakhs to the accused by withdrawing the amount from his bank account as stated by,processed_document_pdf_137874976_175.mp3 +accused. Even there are possibilities of amount which was availed by the complainant for the purpose of clearing his debt out of the said amount,processed_document_pdf_137874976_176.mp3 +the complainant may lend the loan amount in question to the accused. The complainant during the course of his cross- examination has specifically denied a,processed_document_pdf_137874976_177.mp3 +"suggestion made to him that, the amount of rs.10 lakhs which has been withdrawn by him has not been paid to the accused but it",processed_document_pdf_137874976_178.mp3 +"has been withdrawn for the purpose of clearing his debt, hence the very suggestion made by the accused goes to show that, the accused has",processed_document_pdf_137874976_179.mp3 +"also admitted withdrawal of an amount of rs.10 lakhs from the bank by the complainant but he denied that, the said amount has not been",processed_document_pdf_137874976_180.mp3 +"advanced to him on the contrary he contends that, the said amount was utilized by the complainant to clear his debt but no such documents",processed_document_pdf_137874976_181.mp3 +"have been produced by the accused to show that, the complainant after withdrawal of rs.10 lakhs from his bank has utilized to clear of his",processed_document_pdf_137874976_182.mp3 +"debt, in such circumstances, when the accused himself admitted that, the complainant had withdrawn an amount of rs.10 lakhs from his bank account, the very",processed_document_pdf_137874976_183.mp3 +"admission corroborates with the claim of the complainant that, he has lent an amount of rs.10 lakhs to the accused by withdrawing the said amount",processed_document_pdf_137874976_184.mp3 +"from his bank account. In addition to that, the perusal of the ex.p.9,. P.10 p.12 and p.13 it appears that, the complainant has produced his",processed_document_pdf_137874976_185.mp3 +"statement of account and IT returns documents for the period of 2009-10 and 2011-12, during the said period the complainant was having sufficient source",processed_document_pdf_137874976_186.mp3 +"of income to lend loan amount in question. It is true that, there is no mentioning of an amount of rs.10 lakhs was paid by",processed_document_pdf_137874976_187.mp3 +"the complainant to the accused in ex.p.9, p.10, p.12 and p.13, but it does not mean that, as on the date of advancing the loan",processed_document_pdf_137874976_188.mp3 +amount to the accused the complainant was not having sufficient source of income. 23. The learned counsel for the accused in the written argument has,processed_document_pdf_137874976_189.mp3 +"contended that, the bank has charged interest of 14% to the complainant for the loan amount, if the complainant extended the alleged loan amount of",processed_document_pdf_137874976_190.mp3 +"rs.10 lakhs to the accused why he has not charged any interest to the accused. It is true that, the bank has charged 14% of",processed_document_pdf_137874976_191.mp3 +interest on the loan amount borrowed by the complainant but the complainant has also charged interest of 12% on the loan amount in question and,processed_document_pdf_137874976_192.mp3 +"same has been mentioned in on demand and consideration receipt i.e. In ex.p.9, the complainant has not claimed any interest from the accused either in",processed_document_pdf_137874976_193.mp3 +"his legal notice or in the complaint but it doesn't mean that, he has waived up his claim with regard to interest charged in ex.p.9",processed_document_pdf_137874976_194.mp3 +"and he nowhere stated that, he has waived up his claim in respect of the interest charged in ex.p.9. However, in his legal notice he",processed_document_pdf_137874976_195.mp3 +has demanded to accused to pay the cheque amount of rs.10 lakhs by way of demand drafts in his favour within 15 days from the,processed_document_pdf_137874976_196.mp3 +"receipt of the notice or otherwise he will be restraining to file a recovery suit as well as having bounced the cheque, hence it goes",processed_document_pdf_137874976_197.mp3 +"to show that, the complainant is intending to file a recovery suit against the accused as per the document executed by the accused i.e. Ex.p.9",processed_document_pdf_137874976_198.mp3 +on demand and consideration receipt. It is true that the complainant in the complaint and legal notice and Aff. evidence has not stated about the,processed_document_pdf_137874976_199.mp3 +"interest charged on the loan transaction in question, but it doesn't mean that, the loan amountsri.b.t.muniramaiah vs. sri.shantharaju.m on 21 november, 2019",processed_document_pdf_137874976_200.mp3 +The loan transaction in question as contended by the accused in his defence. 24. The learned counsel for the accused in his written argument has,processed_document_pdf_137874976_201.mp3 +"specifically contended that, the complainant has failed to produce any documentary proof to show that, he had withdrawn the amount of rs.10 lakhs from his",processed_document_pdf_137874976_202.mp3 +"account and gave it to the accused and also contended that, the complainant has failed to adduce substantial evidence to show that, he had financial",processed_document_pdf_137874976_203.mp3 +"resources or capacity to advance loan amount as he has admitted in his cross-examination that, he is a green card holder i.e. Bpl card holder",processed_document_pdf_137874976_204.mp3 +"and the said bpl card is issued only to the family which are strictly below the poverty line, hence the complainant has failed to establish",processed_document_pdf_137874976_205.mp3 +his financial capacity. But as it is already held in the above that the complainant has successfully established his financial capacity by producing his bank,processed_document_pdf_137874976_206.mp3 +"statement and also IT returns document which are at ex.p.9, p.10, p.12 and p.13 by showing his income in the bank account and also",processed_document_pdf_137874976_207.mp3 +"he is an IT payee as on the date of lending of the loan amount in question, in such circumstances the arguments canvassed by",processed_document_pdf_137874976_208.mp3 +"the learned counsel for the accused cannot be acceptable one. In addition to that, it is already held in the above that, the complainant has",processed_document_pdf_137874976_209.mp3 +"proved that the cheque in question was issued by the accused to him and the signature appearing on the cheque is that of the accused,",processed_document_pdf_137874976_210.mp3 +"in such circumstances, even the presumption can be drawn to the extent of existence of debt or liability against the accused. In this regard it",processed_document_pdf_137874976_211.mp3 +is relevant here to refer the decisions reported in 2001 air karnataka hcr 2154 between 'm/s.devi tyres v/s.navab jan' and in 2011 acd 1521 (kar),processed_document_pdf_137874976_212.mp3 +"between 'smt. Usha suresh v/s. Shashidharn', in 2010 SC 1898 between 'rangappa vs. Mohan' and 2011 acd 1412 (kar) between 'n.hasainar vs. M.hasainar, s/o.",processed_document_pdf_137874976_213.mp3 +"Ibrahim'. The Hon'ble HC of karnataka in the above decision i.e., 2001 air karnataka hcr 2154 at para no.6 was pleased to hold that",processed_document_pdf_137874976_214.mp3 +"issuance of cheque itself was adequate proof of existence of debt or liability. The Hon'ble apex court has also held in the decision referred above,",processed_document_pdf_137874976_215.mp3 +"the Hon'ble apex court in 2010 SC 1898 in Cas. of 'rangappa vs. Mohan' that, presumptions u/sec.118(a) and 139 of n.i. Act indeed does",processed_document_pdf_137874976_216.mp3 +"extend to the existence of legally recoverable debt, of course the said presumption is rebuttable one, the accused has to rebut the presumption by taking",processed_document_pdf_137874976_217.mp3 +probable defence. In Anr. decision of Hon'ble apex court of india reported in Crl. appeal no. 508 of 2018 dt 15-03-2018 between rohitbhai jivanlal patel,processed_document_pdf_137874976_218.mp3 +"vs state of gujarat and anr held that ""NI Act facts like source of funds are not relevant if the accused has not been",processed_document_pdf_137874976_219.mp3 +"able to rebut the presumption. It is further held that ""when such a presumption is drawn, the facts relating to the want of documentary evidence",processed_document_pdf_137874976_220.mp3 +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,processed_document_pdf_137874976_221.mp3 +"accused has been able to rebut the presumption or not"". In Anr. decision of Hon'ble HC of karnataka reported in ilr 2019 kar 493",processed_document_pdf_137874976_222.mp3 +"in the Cas. of sri.yogesh poojary vs. Sri.k.shankara bhat, wherein the Hon'ble HC held that, the presumption mandated by sec.139 of n.i act includes",processed_document_pdf_137874976_223.mp3 +"the presumption that, there existed a legally enforceable debt or liability, however such presumption is rebuttable in nature"". 25. In Anr. decision of Hon'ble high",processed_document_pdf_137874976_224.mp3 +court of karnataka in the Cas. of shri.v.r.shresti vs. Shri. Bhaskara.p. In crl. Appeal No. 2109/2017 dated: 15.10.2019 wherein the Hon'ble HC of karnataka,processed_document_pdf_137874976_225.mp3 +"held that ""the accused has not given any reply to the notice and also in the cross- examination, he categorically admits that, the cheque has",processed_document_pdf_137874976_226.mp3 +"bounced on account of no sufficient fundsri.b.t.muniramaiah vs. sri.shantharaju.m on 21 november, 2019",processed_document_pdf_137874976_227.mp3 +Regard to the source of income to advance a loan is not a ground to dismiss the complaint. The accused ought to have rebutted the,processed_document_pdf_137874976_228.mp3 +"contention of the complainant by producing cogent evidence before the court and mere denial is not enough"". Hence the principles of law laid down by",processed_document_pdf_137874976_229.mp3 +"the Hon'ble apex court of india in the above referred decision are aptly applicable to the Cas. on hand, since in the present Cas. also",processed_document_pdf_137874976_230.mp3 +"the complainant has proved that, he is having sufficient source of income and also lend the loan amount in question to the accused and the",processed_document_pdf_137874976_231.mp3 +"accused in turn issued the cheque in question in favour of the complainant, in such circumstances, this court has drawn a presumption of existence of",processed_document_pdf_137874976_232.mp3 +"legally enforceable debt as per S. 139 of n.i. Act. Therefore under these circumstances the arguments canvassed by the learned counsel for the defence i.e.,",processed_document_pdf_137874976_233.mp3 +the complainant has not produced any documents to show that he had sufficient source of income to lend the amount of rs.10 lakhs to the,processed_document_pdf_137874976_234.mp3 +accused and complainant has failed to produce any document to prove his source of income to lend the loan amount are not sustainable and acceptable,processed_document_pdf_137874976_235.mp3 +"one. 26. It is relevant here to mention that, though the accused during the course of cross-examination of complainant has taken specific defence by making",processed_document_pdf_137874976_236.mp3 +"suggestion that, the complainant along with one basavaraj, krishnappa, andappa was running chit transaction in which he had issued 16 signed blank cheques along with",processed_document_pdf_137874976_237.mp3 +signed blank stamp papers and signed blank on demand pronote and consideration receipts to the complainant prior to the year 2000 but the said defence,processed_document_pdf_137874976_238.mp3 +was denied by the complainant in order to prove the defence of the accused he did not entered into the witness box to lead his,processed_document_pdf_137874976_239.mp3 +"oral evidence or has not produced any documentary proof to show that, the complainant along with the other persons was running chit transaction and in",processed_document_pdf_137874976_240.mp3 +respect of the chit transaction he has collected 16 signed blank cheques along with signed blank stamp papers and demand pronote and consideration receipt from,processed_document_pdf_137874976_241.mp3 +"the accused, except the suggestion by the accused to the complainant has not substantiate or establish his defence, therefore the defence taken by the accused",processed_document_pdf_137874976_242.mp3 +amounts to mere denial of the claim of the complainant but not proved by the accused by producing cogent and convincible evidence. 27. It is,processed_document_pdf_137874976_243.mp3 +"also relevant here to mention that, the accused in his defence has contended that, prior to the year 2000 the complainant had collected his 16",processed_document_pdf_137874976_244.mp3 +signed blank signed cheques along with signed blank papers and signed blank one demand pronote and consideration receipt towards security of the chit transaction but,processed_document_pdf_137874976_245.mp3 +"the accused except the suggestion made to the complainant has not produced documents to show that, complainant and other persons were running chit business and",processed_document_pdf_137874976_246.mp3 +"he was also subscriber of the said chit business and has paid subscription amount to the chit transaction, in such circumstances it is very difficult",processed_document_pdf_137874976_247.mp3 +"to accept the defence of the accused that, the complainant along with other persons was running chit business. In addition to that, if really the",processed_document_pdf_137874976_248.mp3 +"complainant had collected the blank signed cheques, blank signed stamp papers and demand pronote and consideration receipt towards security of the chit transaction prior to",processed_document_pdf_137874976_249.mp3 +"the year 2000, the accused except his oral say has not made any efforts or taken any legal action against the complainant in respect of",processed_document_pdf_137874976_250.mp3 +"non returning of said cheques, stamp papers and demand pronote and consideration receipt and since the year 2000 and till filing of this complaint by",processed_document_pdf_137874976_251.mp3 +"the complainant the accused has not made any efforts in getting return of his blank signed cheques and othersri.b.t.muniramaiah vs. sri.shantharaju.m on 21 november, 2019",processed_document_pdf_137874976_252.mp3 +28. It is necessary here to refer a decision of Hon'ble madras HC reported in air 2009 (noc) 726 mad in the Cas. of,processed_document_pdf_137874976_253.mp3 +"p. Armugam vs. P. Veluswamy, wherein the Hon'ble HC held as under:- "" NI Act (26 of 1881) s.138 - dishonour of cheque",processed_document_pdf_137874976_254.mp3 +- accused admits to have signed cheque and handed it over to complainant - defence raised by accused that said cheque was issued as a,processed_document_pdf_137874976_255.mp3 +"blank cheque intended to be a collateral security for an unregistered chit conducted by complainant - however, no evidence has been adduced by accused to",processed_document_pdf_137874976_256.mp3 +prove that complainant was running an unregistered chit in which accused joined as a subscribing member - there is no evidence to prove amount of,processed_document_pdf_137874976_257.mp3 +chit or that accused was a priced subscriber and the blank cheque had been issued to ensure proper payment of future subscriptions - can be,processed_document_pdf_137874976_258.mp3 +"held that, cheque was issued for payment of loan obtained by accused from complainant - accused guilty of offence. 29. In Anr. decision of Hon'ble ",processed_document_pdf_137874976_259.mp3 +HC of karnataka reported in 2012 (4) kccr 2634 in the Cas. of sri. Prakash @ jnana prakash vs. Ms. . T.S. susheela wherein the,processed_document_pdf_137874976_260.mp3 +"Hon'ble HC held as under:- negotiable isntructmets act, 1881 - S. 138 - complaint under - cheque dishonoured for ""insufficient funds"" - plea of",processed_document_pdf_137874976_261.mp3 +"accused as to non -receipt of demand notice, absence of legal liability, misuse of documents given as security in an independent chit transaction - convicted",processed_document_pdf_137874976_262.mp3 +by trial court- confirmed by appellate court - revision against- the plea as to misuse of documents would not be believed due to in action,processed_document_pdf_137874976_263.mp3 +"of the accused. Hence in view of the principles of law laid down in the above decisions, in the present Cas. also the accused has",processed_document_pdf_137874976_264.mp3 +"not proved that, the complainant has collected his 16 signed blank cheques along with signed blank stamp papers and demand pronote and consideration receipt prior",processed_document_pdf_137874976_265.mp3 +"to the year 2000 in respect of chit transaction as alleged by him, in such circumstances, the cheque in dispute was issued by the accused",processed_document_pdf_137874976_266.mp3 +not in connection with the alleged chit transactions as contended by the accused in his defence. 30. In Anr. decision of Hon'ble HC of,processed_document_pdf_137874976_267.mp3 +"karnataka reported in 2015 (1) kccr 235 in the Cas. of lale patel vs. Sharanabasappa., wherein the Hon'ble HC held as under:- negotiable isntrucemtns",processed_document_pdf_137874976_268.mp3 +"act, 1881- S. 138 - dishonour ofsri.b.t.muniramaiah vs. sri.shantharaju.m on 21 november, 2019",processed_document_pdf_137874976_269.mp3 +Security for a transaction and complainant filled up the contents and denied existence of any debt or loan - conviction by trial court - affirmed,processed_document_pdf_137874976_270.mp3 +"by appellate court - revision against. Hence the Hon'ble HC of karnataka in the above decision clearly held that, if the accused has taken",processed_document_pdf_137874976_271.mp3 +"defence that, the a blank signed cheque has been issued as a security for transaction and the complainant filled up the contents and the accused",processed_document_pdf_137874976_272.mp3 +"denied the existence of debt or loan in such circumstances it is for the accused to prove his defence by producing cogent and convincible evidence,",processed_document_pdf_137874976_273.mp3 +"if the accused has not proved the same in such circumstances, it cannot be held that, the cheque in question was issued for the purpose",processed_document_pdf_137874976_274.mp3 +"of security in connection with the transaction. In the present Cas. also the accused has failed to establish his defence to show that, the cheque",processed_document_pdf_137874976_275.mp3 +"in question was issued toward security of the chit transactions, under such circumstances the cheque so issued cannot be considered as the one issued as",processed_document_pdf_137874976_276.mp3 +"a security and the defence taken by the accused is untenable one. 31. It is relevant here to mention that, admittedly the accused has not",processed_document_pdf_137874976_277.mp3 +"produced any document to show that, the complainant was running chit business and he has paid an amount to the accused towards the chit amount",processed_document_pdf_137874976_278.mp3 +"and collected 16 signed blank cheques and other documents from the accused, in such circumstances, the accused would have made efforts either to issue notice",processed_document_pdf_137874976_279.mp3 +to the complainant or to file complaint against the complainant before the competent Auth. for non returning of the alleged signed blank cheques and other,processed_document_pdf_137874976_280.mp3 +"documents as stated by him in this defence but no such efforts have been made by the accused since the year 2000. In this regard,",processed_document_pdf_137874976_281.mp3 +it is relevant here to refer the decision of Hon'ble apex court of india reported in air 2018 SC 3601 in a Cas. of,processed_document_pdf_137874976_282.mp3 +"t.p.murugan(dead) thr. Lrs.v. Bhojan vs. Posa nandi, rep. Thr. Lrs. Pa holder, t.p. Murugan v. Bhojan, wherein the Hon'ble apex court held as under:- negotiable",processed_document_pdf_137874976_283.mp3 +"instruments act (26 of 1881) ss.118, 138, 139 - dishonour of cheque - presumption as to enforceable debt- cheques allegedly issued by accused towards repayment",processed_document_pdf_137874976_284.mp3 +of debt- defence of accused that 10 cheques issued towards repayment of loan back in 1995 - behavior of accused in allegedly issuing 10 blank,processed_document_pdf_137874976_285.mp3 +"cheques back in 1995 and never asking their return for 7 years, unnatural - accused admitting his signature on cheques and pronote, presumption under s.139",processed_document_pdf_137874976_286.mp3 +"would operate against him - complainant proving existence of legally enforceable debt and issuance of cheques towards discharge of such debt- conviction, proper. Hence by",processed_document_pdf_137874976_287.mp3 +applying the above principles of law to the present facts of the Cas. in the present Cas. also the accused has not made any efforts,processed_document_pdf_137874976_288.mp3 +"to get return of blank signed cheques and blank signed stampsri.b.t.muniramaiah vs. sri.shantharaju.m on 21 november, 2019",processed_document_pdf_137874976_289.mp3 +"Complainant during the year 2000 for security of the amount advanced by the complainant in respect of chit business, under such circumstances, the said unnatural",processed_document_pdf_137874976_290.mp3 +"conduct of the accused in non taking of action, an adverse inference can be drawn against the accused that, the cheque in question issued by",processed_document_pdf_137874976_291.mp3 +"the accused towards discharge of the liability and presumption u/s.139 of n.i. Act would operate against him, as he has admitted the signatures and cheques",processed_document_pdf_137874976_292.mp3 +in question belongs to him. 32. It is a relevant here to refer the decision of Hon'ble apex court of india reported in air 2019,processed_document_pdf_137874976_293.mp3 +"SC 2446 in the Cas. of birsingh vs. Mukesh kumar., wherein the Hon'ble apex court held that, presumption u/s.139 is presumption of law, distinguished",processed_document_pdf_137874976_294.mp3 +"from presumption of facts and also held that, presumptions are rules of evidence and do not conflict with presumption of innocence which requires prosecution to",processed_document_pdf_137874976_295.mp3 +prove Cas. against the accused and also held that obligation on the prosecution may discharged with the help of presumptions of law and presumption of,processed_document_pdf_137874976_296.mp3 +fact unless the accused adduces evidence showing reasonable plausibility of non existence of presumed fact. In the present Cas. the accused did not entered into,processed_document_pdf_137874976_297.mp3 +"witness box to prove his defence or produced any documents or satisfactory evidence to rebut the presumptions as available u/s.139 of the n.i. Act, under",processed_document_pdf_137874976_298.mp3 +"such circumstances in view of the above principles of law, it can be presumed even on fact also that the complainant has proved his Cas. ",processed_document_pdf_137874976_299.mp3 +"by discharging his burden and complying the mandatory provisions. In the said decision the Hon'ble apex court has also held that, presumption as to legally",processed_document_pdf_137874976_300.mp3 +"enforceable debt is rebuttable, the signed blank cheque if voluntarily presented to payee towards payment payee may fill up amount and other particulars and it",processed_document_pdf_137874976_301.mp3 +"in itself would not invalidate cheque and onus would still be on the accused to prove that, cheque was not issued or discharge of debt",processed_document_pdf_137874976_302.mp3 +"or liability by adducing evidence. In the present Cas. though the accused has taken specific defence that, the cheque in question was not issued towards",processed_document_pdf_137874976_303.mp3 +repayment of the loan in question but the same was given to the complainant towards security of chit transaction but as it is already held,processed_document_pdf_137874976_304.mp3 +"in the above that, the accused has not proved the said fact, in such circumstances even for sake of discussion if it is assumed that",processed_document_pdf_137874976_305.mp3 +the contents of cheque in question was filled up by the complainant in view of the principles of law laid down in the above decision,processed_document_pdf_137874976_306.mp3 +"that itself would not invalidates the cheque in question and it can be presumed that, the cheque was filled in by complainant in presence of",processed_document_pdf_137874976_307.mp3 +the accused at his request and the said cheque has been issued towards discharge of legally recoverable debt. 33. In Anr. decision reported in 2015,processed_document_pdf_137874976_308.mp3 +"(4) kccr 2881 (SC ) in the Cas. of t. Vasanthakumar vs. Vijayakumari wherein the Hon'ble apex court held as under;- negotiable isntrucemtns act,",processed_document_pdf_137874976_309.mp3 +1881- S. s138 and 139 - acquittal - if justified- accused not disputing issuance of cheque and his signature eon it- plea that it was,processed_document_pdf_137874976_310.mp3 +"issued long back as security and that loan amount was repaid- not supported by any evidence - fact that date was printed, would not lend",processed_document_pdf_137874976_311.mp3 +any evidence to Cas. of accused- acquittal not proper. Hence in the present Cas. also it is the main defence of the accused that the,processed_document_pdf_137874976_312.mp3 +cheque in dispute alleged to have been issued in the year 2000 for security of the chit transaction infavour of the complainant and the complainant,processed_document_pdf_137874976_313.mp3 +by misusing the said cheque has filed this complaint but the accused has admitted the issuance of cheque and his signature on the said cheque,processed_document_pdf_137874976_314.mp3 +"and also takensri.b.t.muniramaiah vs. sri.shantharaju.m on 21 november, 2019",processed_document_pdf_137874976_315.mp3 +Given by the accused to prove his defence in such circumstances by applying the principles of law laid down in the above decision the defence,processed_document_pdf_137874976_316.mp3 +"of the accused cannot be acceptable one. 34. It is settled law that, the accused can rebut the presumption only on the basis of materials",processed_document_pdf_137874976_317.mp3 +produced by the complainant even without entering into the witness box but in the present Cas. the accused has failed to substantiate his defence version,processed_document_pdf_137874976_318.mp3 +"in order to rebut the presumption available to the complainant and to prove the defense of the accused, under such circumstance, it is for the",processed_document_pdf_137874976_319.mp3 +accused to disprove the Cas. of the complainant or rebut the presumption then only the onus will be shifted on the complainant to prove his,processed_document_pdf_137874976_320.mp3 +"Cas. . Admittedly the accused did not entered in to the witness box, therefore an adverse inference can be drawn against the accused that he has",processed_document_pdf_137874976_321.mp3 +"failed to rebut the presumption available to the complainant. Therefore it is clear that, except having denial of the Cas. of the complainant in the",processed_document_pdf_137874976_322.mp3 +"cross examination of complainant, the accused has not taken any interest so as to prove his defence. In this regard, it is relevant here to",processed_document_pdf_137874976_323.mp3 +"refer a decision of Hon'ble apex court of india reported in ""air 2018 SC 3173 in a Cas. of kishan rao vs. Shankargouda"" wherein",processed_document_pdf_137874976_324.mp3 +"the Hon'ble apex court held as under:- NI Act (26 of 1881), Ss. 138, 139- dishonour of cheque - presumption as to - accused",processed_document_pdf_137874976_325.mp3 +issuing cheque of rs.2 lakhs towards repayment of loan to complainant- said cheque dishonoured on account of insufficiency of funds- complainant proving issuance of cheque,processed_document_pdf_137874976_326.mp3 +having signatures of accused - accused failing to rebut presumption raised against him and no evidence led by him in his support - acquittal of,processed_document_pdf_137874976_327.mp3 +"accused by HC in revisional jurisdiction on ground of doubt in mind of court with regard to existence of loan, improper- accused, liable to",processed_document_pdf_137874976_328.mp3 +be convicted. In Anr. decision decided in Crl. appeal no.1545 of 2019 dt.17/10/2019 by the Hon'ble apex court of india in the Cas. of uttam,processed_document_pdf_137874976_329.mp3 +"ram vs. Devinder singh hudan and anr. Wherein the Hon'ble apex court held that, dishonor of cheque - statutory presumption under - burden to prove",processed_document_pdf_137874976_330.mp3 +- the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability - it,processed_document_pdf_137874976_331.mp3 +"is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the",processed_document_pdf_137874976_332.mp3 +"drawer - even a blank cheque leaf, voluntarily signed and handed over by the accused which is towards some payment, would attract presumption u/s. 139",processed_document_pdf_137874976_333.mp3 +"of ni act - the accused is held guilty of dishonour of cheque for an offence u/s.s.138 of ni act. It is also held that,",processed_document_pdf_137874976_334.mp3 +"the accused has failed to lead any evidence to rebut the statutory presumption, a finding returned by both the trial court and HC . Both",processed_document_pdf_137874976_335.mp3 +courts not only erred in law but also committed perversity when the due amount is said to be disputed only on the account of discrepancy,processed_document_pdf_137874976_336.mp3 +"in the cartons, packing materials or the rate to determine the total liability as if the appellant was proving his debt before the Civ. court.",processed_document_pdf_137874976_337.mp3 +"Therefore it is presumed that, the cheque in question were drawn for consideration and the holder of the cheques received the same in existing debt.sri.b.t.muniramaiah",processed_document_pdf_137874976_338.mp3 +"vs. sri.shantharaju.m on 21 november, 2019",processed_document_pdf_137874976_339.mp3 +And in the absence of any other evidence the trial court or HC could not dismiss the complaint only on account of discrepancies in,processed_document_pdf_137874976_340.mp3 +the determination of amount due or oral evidence in the amount due when the written document crystallizes the amount due for which the cheque was,processed_document_pdf_137874976_341.mp3 +"issued. The principles of law laid down in the above decision are aptly applicable to the Cas. on hand, since in this Cas. also the",processed_document_pdf_137874976_342.mp3 +complainant proved the fact that he has lent an amount of rs.10 lakhs to the accused and the accused in turn issued cheque for discharge,processed_document_pdf_137874976_343.mp3 +of the said amount as per ex.p.1. The accused has also failed to enter into witness box to rebut the statutory presumption in support of,processed_document_pdf_137874976_344.mp3 +his defense in such circumstances the defense taken by the accused counsel during the course of cross examination and argument cannot be acceptable one. 35.,processed_document_pdf_137874976_345.mp3 +"It is also important to note here that, the accused has not denied or disputed that the cheque in question as well as the signature",processed_document_pdf_137874976_346.mp3 +"therein do belong to him and he has failed to explain as to how his cheque has come to the possession of the complainant, this",processed_document_pdf_137874976_347.mp3 +would also give rise to an adverse inference against him. This preposition of law finds support from the decisions of Hon'ble HC of karnataka,processed_document_pdf_137874976_348.mp3 +"reported in 2010(1) kccr 176 in the Cas. of ""siddappa vs. Manjappa"". In Anr. decision of Hon'ble apex court of india decided in Crl. a.no.664",processed_document_pdf_137874976_349.mp3 +"of 2012 dated: 19.9.2019 in the Cas. of ""m.abbas haji vs. T.m.chennakeshava"" held that, "" the accused has to explain how the cheque entered into",processed_document_pdf_137874976_350.mp3 +"the hands of complainant"". Hence in the present Cas. also the accused has failed to explain how the cheque in question was entered into the",processed_document_pdf_137874976_351.mp3 +hands of complainant. Therefore for the above said reasons the defense taken by the accused cannot be acceptable one and accused has miserably failed to,processed_document_pdf_137874976_352.mp3 +rebut the presumption available in favour of the complainant by adducing cogent and convincible evidence. 36. The learned counsel for the accused submitted written argument,processed_document_pdf_137874976_353.mp3 +and on careful perusal of the written argument wherein the learned counsel has argued by referring the oral and documentary evidence of the complainant and,processed_document_pdf_137874976_354.mp3 +"accused. The arguments canvassed by the learned counsel for the defence are not acceptable, in view of the discussions made by this court in the",processed_document_pdf_137874976_355.mp3 +"above while appreciating the oral and documentary evidence and this court come to a conclusion that, the complainant has proved that, he has lent an",processed_document_pdf_137874976_356.mp3 +amount of rs.10 lakhs to the accused and inorder to repay the said amount the accused have issued the cheque in question and the said,processed_document_pdf_137874976_357.mp3 +"cheque was presented by the complainant through his banker and same was dishonoured as ""payment stopped by drawer"" and even after issuance of the notice",processed_document_pdf_137874976_358.mp3 +"by the complainant and after service of the notice, he did not repay the said amount and the accused has miserably failed to prove his",processed_document_pdf_137874976_359.mp3 +"defence, in such circumstances the accused has committed an offence punishable u/s.138 of n.i. Act. The learned counsel for the accused has relied upon the",processed_document_pdf_137874976_360.mp3 +decisions reported in (1) 2011(2) dcr 696; (2) 2012(1) dcr 385; (3) 2003(2) crimer 122; (4) 2014(1) dcr 9 ; (5) 2008 cri.l.j. 434: (6),processed_document_pdf_137874976_361.mp3 +"2014 (1) dcr 547, (7) 2013 (2) dcr 427; (8) 2015 (3) dcr 132, (9) 2015 (3) dcr 787; (10) 2015 (1) dcr 672, (11)",processed_document_pdf_137874976_362.mp3 +"(2014) 2 scc 236; (12) 2015 (1) dcr 642; (13) 2015 (1) dcr 5. On careful reading of the principlessri.b.t.muniramaiah vs. sri.shantharaju.m on 21 november,",processed_document_pdf_137874976_363.mp3 +2019,processed_document_pdf_137874976_364.mp3 +"Relied upon by the accused persons with due respect to the principles of law laid down, the same are not applicable to the Cas. on",processed_document_pdf_137874976_365.mp3 +hand i.e. The defence of the accused in this Cas. as the facts and circumstances of the present Cas. and facts and circumstances of the,processed_document_pdf_137874976_366.mp3 +"decided cases are not one and the same, therefore the arguments canvassed by the learned counsel for the defence are not accepted. 37. Therefore considering",processed_document_pdf_137874976_367.mp3 +all these aspects of the Cas. and totality of the circumstances and on careful and meticulous appreciation of evidence adduced on behalf of the complainant,processed_document_pdf_137874976_368.mp3 +"and accused the complainant has successfully established beyond all reasonable doubt that, he has lent a sum of rs.10 lakhs to the accused as a",processed_document_pdf_137874976_369.mp3 +"hand loan and the accused in turn have issued cheque in question i.e. Ex.p.1 to the complainant towards repayment of the hand loan, thereafter the",processed_document_pdf_137874976_370.mp3 +"complainant has presented the said cheque through his banker and same was returned dishonoured with an endorsement of ""payment stopped by drawer"" and thereafter he",processed_document_pdf_137874976_371.mp3 +"got issued legal notice to the accused and inspite of service of the said notice, the accused did not repaid loan amount borrowed by them,",processed_document_pdf_137874976_372.mp3 +"hence the complainant filed the present complaint against the accused. On the other hand, the accused has failed to rebut the presumption available infavour of",processed_document_pdf_137874976_373.mp3 +"the complainant with regard to the existence of legally recoverable debt under ex.p.1 cheque. Therefore accused has committed an offence punishable u/s.138 of n.i. Act,",processed_document_pdf_137874976_374.mp3 +accordingly for the above said reasons this point is answered in the affirmative. 38. Point no.2: negotiable instrument act was enacted to bring credibility to,processed_document_pdf_137874976_375.mp3 +"the cheque and the very purpose of enactment is to promote the use of negotiable instrument, while to discourage the issuance of cheque without having",processed_document_pdf_137874976_376.mp3 +"sufficient funds in their accounts. Such being the Cas. the intention of the legislature is that, complainant be suitable compensated while accused be punished for",processed_document_pdf_137874976_377.mp3 +his act. Hence while awarding the compensation the said fact is to be kept in mind and suitable compensation is awarded to the complainant certainly,processed_document_pdf_137874976_378.mp3 +"it will not cause injustice to the accused, accordingly the complainant is entitled for the compensation as ordered by the court and for the said",processed_document_pdf_137874976_379.mp3 +"reasons, it is just and proper to pass the following :- order acting u/sec.255(2) of Cr.P.C. the accused is convicted for the",processed_document_pdf_137874976_380.mp3 +"offence punishable u/sec.138 of n.i.act. The accused is sentenced to pay a fine of rs.10,25,000/= (Rs. ten lakhs and twenty five thousand only) within one",processed_document_pdf_137874976_381.mp3 +"month from the date of order, in default he shall under go simple imprisonment for a period of (3) three months for the offence punishable",processed_document_pdf_137874976_382.mp3 +"u/sec.138 of n.i.act. Further acting u/sec.357(1) of Cr.P.C. out of the fine amount on recovery, a sum of rs.10,15,000/= (Rs. ten lakhs",processed_document_pdf_137874976_383.mp3 +and fifteen thousand only) shall be paid as compensation to the complainant. Further acting u/sec.357(1)(a) of Cr.P.C. out of fine amount on,processed_document_pdf_137874976_384.mp3 +"recovery a sum of rs.10,000/= (Rs. ten thousand only) shall be defrayed as prosecution expenses to the state.sri.b.t.muniramaiah vs. sri.shantharaju.m on 21 november, 2019",processed_document_pdf_137874976_385.mp3 +Office is directed to furnish free certified copy of this judgment to the accused incompliance of sec.363(1) of Cr.P.C. (directly dictated to,processed_document_pdf_137874976_386.mp3 +"the stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open court on this the 21st day of november",processed_document_pdf_137874976_387.mp3 +"2019). (sri.s.b. Handral), xvi acmm, bengaluru city. Annexure 1. List of witness/s examined on behalf of the complainant:- p.w.1 : sri. B.t.muniramaiah, 2. List of",processed_document_pdf_137874976_388.mp3 +documents exhibited on behalf of the complainant:- ex.p-1 : original cheque; ex.p-1(a) : signature of the accused; ex.p-2 : bank memo; ex.p-3 : office copy,processed_document_pdf_137874976_389.mp3 +of the legal notice; ex.p-4 & p-5 : postal receipts; ex.p-6 : postal acknowledgement; ex.p-7 : original on demand promissory note and consideration receipt ex.p-7(a),processed_document_pdf_137874976_390.mp3 +& : signatures of the accused 7(b) ex.p-8 & 8(a) : complaint and signature of the complainant; ex.p-9 : statement of account pertaining to the,processed_document_pdf_137874976_391.mp3 +"complainant bank account i.e., hanumanthnagar co-operative bank account statement for the period from 01.04.2011 to 31.07.2019; ex.p.10 & : IT returns documents for the",processed_document_pdf_137874976_392.mp3 +"ex.p.12 to year 2011-12, 2009-10, 2010-11 and p.14 balance sheet; ex.p.11 : certificate filed by the complainant u/s.65 of indian evidence act; 3. List of",processed_document_pdf_137874976_393.mp3 +"witness/s examined on behalf of the accused:- - nil- 4. List of documents exhibited on behalf of the accused:-sri.b.t.muniramaiah vs. sri.shantharaju.m on 21 november, 2019",processed_document_pdf_137874976_394.mp3 +"(sri.s.b.handral), xvi acmm, bengaluru city. 21.11.2019 judgment pronounced in the open court vide separate order. Order acting u/sec.255(2) of Cr.P.C. the accused",processed_document_pdf_137874976_395.mp3 +"is convicted for the offence punishable u/sec.138 of n.i.act. The accused is sentenced to pay a fine of rs.10,25,000/= (Rs. ten lakhs and twenty five",processed_document_pdf_137874976_396.mp3 +"thousand only) within one month from the date of order, in default he shall under go simple imprisonment for a period of (3) three months",processed_document_pdf_137874976_397.mp3 +"for the offence punishable u/sec.138 of n.i.act. Further acting u/sec.357(1) of Cr.P.C. out of the fine amount on recovery, a sum of",processed_document_pdf_137874976_398.mp3 +"rs.10,15,000/= (Rs. ten lakhs and fifteen thousand only) shall be paid as compensation to the complainant. Further acting u/sec.357(1)(a) of Cr.P.C. out",processed_document_pdf_137874976_399.mp3 +"of fine amount on recovery a sum of rs.10,000/= (Rs. ten thousand only) shall be defrayed as prosecution expenses to the state. His bail bond",processed_document_pdf_137874976_400.mp3 +stands cancelled. Office is directed to furnish free certified copy of this judgment to the accused incompliance of sec.363(1) of Cr.P.C. xvi,processed_document_pdf_137874976_401.mp3 +"acmm, b'luru.sri.b.t.muniramaiah vs. sri.shantharaju.m on 21 november, 2019",processed_document_pdf_137874976_402.mp3 +"Manan vs. . M/s alkarma page 1 of 24 on 8 june, 2023 in the court of shri harshal negi:mm-05(ni act): south-west district:dwarka courts:new delhi",processed_document_pdf_39525705_1.mp3 +"ct cases no.13783/2018 cnr no.dlsw02-018577-2018 manan s/o sh. Ram dhar prasad r/o h.no.r-3a2/73, block r3a2, mohan garden, uttam nagar new delhi -110059 ...complainant vs. m/s",processed_document_pdf_39525705_2.mp3 +"alkarma 57, rama road, najafgarh road, moti nagar, new delhi -110015 through its partners shri sandeep chaudhary and Ms. . Anjaly chaudhary 57, rama road, najafgarh",processed_document_pdf_39525705_3.mp3 +"road, moti nagar, new delhi -110015 also at: sandeep chaudhary s/o sh. Subhash chaudhary r/o soverign house, house no.c-2/102, vatika city, sector-49, gurugram, haryana ...accused",processed_document_pdf_39525705_4.mp3 +"offence complained of : u/s 138, ni act, 1881 date on which the complaint : 27.04.2018 was instituted plea of the accused : pleaded not",processed_document_pdf_39525705_5.mp3 +"guilty date of pronouncement of judgment : 08.06.2023 judgment 1. Tersely put, the Cas. of the complainant is that accused sandeep chaudhary is the partner",processed_document_pdf_39525705_6.mp3 +of Co. viz. m/s alkarma and was/is looking after the day-to-day affairs of the Co. . It is also the Cas. of the complainant that the,processed_document_pdf_39525705_7.mp3 +complainant was working in the accused Co. . That the payment of salary of the complainant was overdue for a long time. That on 30.11.2017 alkarma,processed_document_pdf_39525705_8.mp3 +"made settlement with the complainant for a sum of rs 3,39,964/-. That to discharge the legal liability the accused issued a total of five cheques,",processed_document_pdf_39525705_9.mp3 +"one of the cheques being the cheque in question i.e., cheque bearing no 037351 dated 16.02.2018 of rs 47,000/- and drawn on canara bank, connaught",processed_document_pdf_39525705_10.mp3 +"place branch, new delhi to the complainant with an assurance of its encashment. The complainant presented the cheque in his account which were returned with",processed_document_pdf_39525705_11.mp3 +"the remarks ""funds insufficient"" dated 17.03.2018. Thereafter, complainant served a legal notice dated 24.03.2018 uponmanan vs. . M/s alkarma page 1 of 24 on 8",processed_document_pdf_39525705_12.mp3 +"june, 2023",processed_document_pdf_39525705_13.mp3 +"Money was not repaid by the accused. Thereafter, complainant has filed the present complaint Cas. . Material on record 2. The accused entered appearance through counsel",processed_document_pdf_39525705_14.mp3 +on 29.08.2018. Notice under S. 251 cr pc dated 07.03.2020 was framed accordingly to which the accused pleaded not guilty and claimed trial. The accused,processed_document_pdf_39525705_15.mp3 +stated that the blank signed cheques were used to be kept in his office for daily use and the same were taken from the said,processed_document_pdf_39525705_16.mp3 +office and misused. 3. The complainant relied upon the following documents: a) copy of settlement and acknowledgement dated 30.11.2017 is ex.cw1/a.(later marked as mark a,processed_document_pdf_39525705_17.mp3 +& mark b) b) original cheque in question is ex.cw1/b. C) original returning memo is ex.cw1/c. D) copy of legal notice is ex.cw1/d. E) original,processed_document_pdf_39525705_18.mp3 +receipts of postal Dept. is ex.cw1/e to ex.cw1/g. F) copy of delivery report is ex.cw1/h to ex.cw1/j. 4. During the course of the trial the,processed_document_pdf_39525705_19.mp3 +complainant examined himself as cw 1 and one vijay thakur as cw 2. The complainant adopted his pre-summoning evidence as post summoning evidence and was,processed_document_pdf_39525705_20.mp3 +"cross examined on 26.04.2022. In his post summoning evidence, the complainant also relied on original document ex.cw1/j (being the proof of appointment) (this was objected",processed_document_pdf_39525705_21.mp3 +by the counsel for accused as the same was not filed at the time of pse). (court observation: the objection is decided in the favour,processed_document_pdf_39525705_22.mp3 +of the complainant as he is filing the original document at the time of post summoning evidence). The complainant further relied on ex.cw1/k which is,processed_document_pdf_39525705_23.mp3 +the proof of his salary in the firm. He further rely upon id proof ex.cw1/l(osr). 5. In his cross examination the complainant stated that alkarma,processed_document_pdf_39525705_24.mp3 +"is a firm. He affirmed that ex.cw1/j, ex.cw1/k and ex.cw1/l were not issued by any partner/accused. He voluntarily stated that the same was issued by",processed_document_pdf_39525705_25.mp3 +the manager of the firm. He denied the suggestion that the manager was not authorised to issue the above said documents. He also affirmed that,processed_document_pdf_39525705_26.mp3 +"in all the documents ex.cw1/j, ex.cw1/k and ex.cw1/l nothing with respect to due amount has been mentioned. He denied the suggestion that documents ex.cw1/j and",processed_document_pdf_39525705_27.mp3 +ex.cw1/k has intentionally and deliberately been issued by vijay thakur in order to settle his personal score and to extort money from the accused despite,processed_document_pdf_39525705_28.mp3 +"having no authorisation in his favour to issue the said documents. He also deniedmanan vs. . M/s alkarma page 1 of 24 on 8 june,",processed_document_pdf_39525705_29.mp3 +2023,processed_document_pdf_39525705_30.mp3 +Working in the firm since 1995 to 30.11.2017. 6. He further affirmed that aforesaid documents do not bear the signature of sandeep chaudhary. He voluntarily,processed_document_pdf_39525705_31.mp3 +stated that the above said documents were issued by the firm. That he was working as supervisor in the accused firm as the same is,processed_document_pdf_39525705_32.mp3 +reflecting in above said document. That the accused never entered into any written settlement with him. He voluntarily stated that the accused has verbally assured,processed_document_pdf_39525705_33.mp3 +"in the presence of other employees and also directed one mr. Vijay thakur, sr. Manager accounts to draft a settlement with him. He further voluntarily",processed_document_pdf_39525705_34.mp3 +stated that he had been supplied a photocopy of the documents which is framed by mr. Vijay thakur at the behest of the accused which,processed_document_pdf_39525705_35.mp3 +is mark-a and mark-b. That he have not mentioned the above said details in his complaint and evidence by way of Aff. . That he have,processed_document_pdf_39525705_36.mp3 +not filed any document which shows that vijay thakur was authorised. He denied the suggestion that vijay thakur was never authorised by the accused. He,processed_document_pdf_39525705_37.mp3 +voluntarily stated that vijay thakur was working in the capacity of sr. Manager accounts and he used to work on the directions of the accused,processed_document_pdf_39525705_38.mp3 +who was the partner of the accused firm. 7. He further denied the suggestion that mr. Vijay thakur was never authorised to enter into settlement,processed_document_pdf_39525705_39.mp3 +on behalf of the firm with any employee of the firm. He voluntarily stated that vijay thakur not entered into settlement and accused only directed,processed_document_pdf_39525705_40.mp3 +the vijay thakur to formulate the settlement. That he used to go to the office of the firm whenever was called by the firm. He,processed_document_pdf_39525705_41.mp3 +denied the suggestion that he entered with the conspiracy with vijay thakur. He further denied the suggestion that he illegally took the blank signed cheque,processed_document_pdf_39525705_42.mp3 +in question in connivance with vijay thakur. That since he was the employee of the firm it is quite natural that he used to work,processed_document_pdf_39525705_43.mp3 +in the premises of the firm for his employment. He affirmed that apart from the cheque in question the remaining documents which have been filed,processed_document_pdf_39525705_44.mp3 +by him till now does not bear the signature of the accused. He denied the suggestion that he have filled the particulars of the cheque,processed_document_pdf_39525705_45.mp3 +in question. He voluntarily stated that the particulars of the cheque apart from the signature filled by mr. Vijay thakur in the presence of the,processed_document_pdf_39525705_46.mp3 +accused. That there was no written document entered between him and accused it is written that accused has issued the cheque in question to him.,processed_document_pdf_39525705_47.mp3 +He voluntarily stated that the accused assured him the cheques which he has issued will be duly honoured when the meeting took place for the,processed_document_pdf_39525705_48.mp3 +purpose of settling the accounts of the employees as it came to their information that accused is closing the firm. That he have not mentioned,processed_document_pdf_39525705_49.mp3 +the above said either in his complaint or in evidence by way of Aff. . That he is not aware whether any Cas. is pending between,processed_document_pdf_39525705_50.mp3 +mr vijay thakur and accused. That as on date he is not aware that firm is still in existence or whether the firm has been,processed_document_pdf_39525705_51.mp3 +closed by the accused. He voluntarily stated that since it is accused firm he might be aware of the same. That he do not know,processed_document_pdf_39525705_52.mp3 +when the firm was closed. He denied the suggestion that he have intentionally sent the legal notice to the address of the firm despite knowing,processed_document_pdf_39525705_53.mp3 +that firm was closed in 2017. He denied the suggestion that there is no liability against him when he left the job. He further denied,processed_document_pdf_39525705_54.mp3 +the suggestion that there is no legally and enforceable debt of the accused. He also denied the suggestion that multiple cases have been filed by,processed_document_pdf_39525705_55.mp3 +"him to put pressure upon accused and to extort money.manan vs. . M/s alkarma page 1 of 24 on 8 june, 2023",processed_document_pdf_39525705_56.mp3 +Cannot say whether he used to visit the office in the absence of the accused. He voluntarily stated that he used to visit the office,processed_document_pdf_39525705_57.mp3 +whenever he was called by the firm. (at this stage the counsel for accused has objected to the documents mark a and mark b as,processed_document_pdf_39525705_58.mp3 +they are not originals and photocopies).(court observation: the objection is decided in favour of the accused as they are not originals and will not be,processed_document_pdf_39525705_59.mp3 +read in evidence till the originals are filed). He denied the suggestion that nothing was due against the accused/firm and he have already received his,processed_document_pdf_39525705_60.mp3 +"entire due from the accused when he left the firm. 9. The complainant, thereafter, examined cw 2 i.e., vijay thakur. Cw 2 adopted his evidence",processed_document_pdf_39525705_61.mp3 +"by way of Aff. on 26.09.2022 and relied on mark a i.e., appointment letter, ex cw2/a i.e., authorization letter to sign identity cards, cw 2/b",processed_document_pdf_39525705_62.mp3 +"i.e., Auth. letter, cw2/c i.e., emails and ex cw2/d. 10. In his cross-examination cw 2 stated that he has been working with the accused Co. ",processed_document_pdf_39525705_63.mp3 +since 16.02.1993 till february 2018. That initially he joined as an accountant and left the services as Sr. manager accounts and administration. That he have,processed_document_pdf_39525705_64.mp3 +not filed any appointment and designation letter on record. That he do not remember his starting salary when he joined the accused Co. since its,processed_document_pdf_39525705_65.mp3 +"long time back. That at the time when he left the services of the accused Co. he was earning Rs. 1,30,000/-. That he is residing",processed_document_pdf_39525705_66.mp3 +in his own house. That he brought the same in 1996 from his earnings. That he cannot remember his salary in the year 1996. He,processed_document_pdf_39525705_67.mp3 +denied the suggestion that he was not honest in his work with the accused firm. He denied the suggestion that he have duped amount from,processed_document_pdf_39525705_68.mp3 +the accused firm. He also denied the suggestion that he used to manipulate the records of the accused firm. That he have brought the id,processed_document_pdf_39525705_69.mp3 +card issued by the accused firm which is ex. Cw-2/e (osr). He affirmed that the signature at point a reflecting issuing Auth. are his signature.,processed_document_pdf_39525705_70.mp3 +He voluntarily stated that he have been authorized by the accused to sign the identity cards on behalf of the accused firm which is ex.,processed_document_pdf_39525705_71.mp3 +Cw2/a. He denied the suggestion that he used to issue and misuse his Auth. to sign without prior knowledge and consent of the accused. At,processed_document_pdf_39525705_72.mp3 +"this stage, the counsel for the accused confronted mark a & b of cw1. He affirmed the suggestion that mark a & b does not",processed_document_pdf_39525705_73.mp3 +bear the signature of any partner of alkarma. He voluntarily stated that he had sought the Auth. letter from the accused with respect to signing,processed_document_pdf_39525705_74.mp3 +on mark a & b which was given to him on 08.01.2018 which is ex. Cw2/b. He further affirmed that the signature at point a,processed_document_pdf_39525705_75.mp3 +in mark a & b of cw1 belongs to him. He further affirmed that he was not having any written authorization in his favour to,processed_document_pdf_39525705_76.mp3 +sign in mark a & b on behalf of the accused Co. . He voluntarily stated that he was having oral directions and approval of the,processed_document_pdf_39525705_77.mp3 +accused. He voluntarily stated that since he was working in continuity with the accused firm he was under direction from the accused to sign mark,processed_document_pdf_39525705_78.mp3 +a & b whereas the accused in writing had issued the Auth. letter to him on 08.01.2018 with respect to entering into mark a &,processed_document_pdf_39525705_79.mp3 +b of cw1 on behalf of the accused firm. He further affirmed that the ex. Cw2/b does not mention that the same would be having,processed_document_pdf_39525705_80.mp3 +retrospective effect pertaining to mark a & b. He voluntarily stated that since the talks of full and final settlement were running in continuity he,processed_document_pdf_39525705_81.mp3 +was authorized under directions to sign mark a and b although the Auth. in writing was given tomanan vs. . M/s alkarma page 1 of,processed_document_pdf_39525705_82.mp3 +"24 on 8 june, 2023",processed_document_pdf_39525705_83.mp3 +"Accused firm to enter into the settlement on behalf of accused firm on 30.11.2017. At this stage, the counsel for the accused confronted ex. Cw2/c.",processed_document_pdf_39525705_84.mp3 +He affirmed that the emails which are ex. Cw2/c are not of the year 2017. He voluntarily stated that emails which are ex. Cw2/c are,processed_document_pdf_39525705_85.mp3 +the communications made by him with the accused only with respect to his full and final settlement. He also voluntarily stated that the accused in,processed_document_pdf_39525705_86.mp3 +this email ex. Cw2/c has stated that he will settle his payment also as he has done with Ors. too. That there was around 40,processed_document_pdf_39525705_87.mp3 +staff members approx of the accused firm in the year 2017. That there were about 160 approx workers of the accused firm in the year,processed_document_pdf_39525705_88.mp3 +2017. He affirmed that the name of the complainant does not find any mention in ex. Cw2/c. He denied the suggestion that he was not,processed_document_pdf_39525705_89.mp3 +having Auth. to enter into full and final settlement with the complainant on behalf of the accused and his firm. He denied the suggestion that,processed_document_pdf_39525705_90.mp3 +the ex cw2/b is forged and fabricated. He also denied the suggestion that ex. Cw2/b is forged and fabricated by typing on blank paper. He,processed_document_pdf_39525705_91.mp3 +also denied the suggestion that he had entered into mark a and mark b of cw1 behind the back of the accused and without his,processed_document_pdf_39525705_92.mp3 +knowledge on commission basis. He denied the suggestion that he had been indulging in creating forged and fabricated documents. He denied the suggestion that the,processed_document_pdf_39525705_93.mp3 +accused has no liability whatsoever against the accused. He also denied the suggestion that he was in possession of blank signed cheque book of the,processed_document_pdf_39525705_94.mp3 +accused. He denied the suggestion that he have misused the cheque in question in connivance with the complainant. He further denied the suggestion that he,processed_document_pdf_39525705_95.mp3 +have created various kinds of letters documents without the permission of the accused. He also denied the suggestion that he have misused his power and,processed_document_pdf_39525705_96.mp3 +position in the accused firm and have acted in utter violations in his responsibility. He affirmed that there is a cheque bounce Cas. pending between,processed_document_pdf_39525705_97.mp3 +him and the accused. He affirmed that settlement which has been placed by him in his Cas. is not signed by any partner of the,processed_document_pdf_39525705_98.mp3 +accused firm. That he cannot answer who has signed the settlement which has been placed by him in his Cas. . 11. The complainant thereafter closed,processed_document_pdf_39525705_99.mp3 +his evidence. 12. The statement of the accused under S. 313 crpc was then recorded on 03.01.2023. He stated that the documents which have been,processed_document_pdf_39525705_100.mp3 +furnished by cw2 were never authorized by him. That they are forged and fabricated. That the e-mail which have been furnished has no relevance to,processed_document_pdf_39525705_101.mp3 +the present matter. That there exists no due on him with respect to the complainant. That whatever due which he had has already been paid,processed_document_pdf_39525705_102.mp3 +by him to the complainant. That the cheque in question were in possession of the vijay thakur for business purposes since he used to travel,processed_document_pdf_39525705_103.mp3 +"abroad and he had issued instructions that the cheque would not be issued without his knowledge. However, the cheques in question have been misused by",processed_document_pdf_39525705_104.mp3 +"vijay thakur. That he have never given any authorization to anyone. 13. The accused opted to lead his defence evidence, however, on 27.02.2023 he closed",processed_document_pdf_39525705_105.mp3 +"his de. 14. Evidences and documents on record perused carefully. Arguments heard.manan vs. . M/s alkarma page 1 of 24 on 8 june, 2023",processed_document_pdf_39525705_106.mp3 +"15. Before analyzing the material on record, it is imperative to set forth the legal benchmark which governs the adjudication of cases under S. 138",processed_document_pdf_39525705_107.mp3 +"ni act. A bare reading of S. 138 ni act reveals that in addition to the cheque being issued for the discharge, in whole or",processed_document_pdf_39525705_108.mp3 +"in part, of any debt or other liability; following are the ingredients which constitute an offence:- a. That a person drew a cheque on an",processed_document_pdf_39525705_109.mp3 +account maintained by him with the banker; a. That such a cheque when presented to the bank is returned by the bank unpaid; b. That,processed_document_pdf_39525705_110.mp3 +such a cheque was presented to the bank within a period of six months from the date it was drawn or within the period of,processed_document_pdf_39525705_111.mp3 +its validity whichever is earlier; c. That the payee demanded in writing from the drawer of the cheque the payment of the amount of money,processed_document_pdf_39525705_112.mp3 +due under the cheque to payee; and d. Such a notice of payment is made within a period of 30 days from the date of,processed_document_pdf_39525705_113.mp3 +"the receipt of the information by the payee from the bank regarding the return of the cheque as unpaid. (para 26, n. Harihara krishnan vs. ",processed_document_pdf_39525705_114.mp3 +"j. Thomas, (2018) 13 scc 663, referred to in himanshu vs. b. Shivamurthy (2019) 3 scc 797) 16. S. 138 is to be r/w ",processed_document_pdf_39525705_115.mp3 +"the presumption, being a rebuttable presumption, as contained in S. 139. S. 139 provides that: ""presumption in favour of holder - it shall be presumed,",processed_document_pdf_39525705_116.mp3 +"unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in S. 138 for the discharge,",processed_document_pdf_39525705_117.mp3 +"in whole or in part, of any debt or other liability."" 17. Thus, in cheque bouncing cases, the judicial scrutiny revolves around the satisfaction of",processed_document_pdf_39525705_118.mp3 +"ingredients enumerated under S. 138 ni act and if so, whether the accused was able to rebut the statutory presumption contemplated by S. 139 ni",processed_document_pdf_39525705_119.mp3 +"act. S. 139 is an example of reverse onus Cl. which usually imposes an evidentiary burden and not a persuasive burden. In other words, evidence",processed_document_pdf_39525705_120.mp3 +"of a character, not to prove a fact affirmatively, but to lead evidence to show non- existence of a liability. Further the law is well",processed_document_pdf_39525705_121.mp3 +"settled that when an accused has to rebut the presumption under S. 139, the standard of proof of doing so is that of ""preponderance of",processed_document_pdf_39525705_122.mp3 +"probability"" (rangappa vs. sri mohan (2010) 11 scc 441). Once execution of cheque is admitted, it is a legal presumption under S. 139 of negotiable",processed_document_pdf_39525705_123.mp3 +"instrument act, the cheque was issued for discharging legally enforceable debt. 18. Attention is also invited to S. 118(a) wherein a presumption of the cheque",processed_document_pdf_39525705_124.mp3 +"having been issued in discharge of a legally sustainable liability and drawn for good consideration, arises. S. 118 of the n.i act provides:-manan vs. .",processed_document_pdf_39525705_125.mp3 +"M/s alkarma page 1 of 24 on 8 june, 2023",processed_document_pdf_39525705_126.mp3 +"Following presumptions shall be made: (a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when",processed_document_pdf_39525705_127.mp3 +"it has been accepted, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;"" 19. Hence, it can be seen that from its",processed_document_pdf_39525705_128.mp3 +very inception a presumption that the cheque was issued in discharge of a debt or other liability subsists in favour of the complainant and onus,processed_document_pdf_39525705_129.mp3 +"rests upon the accused to rebut the existing presumption on the touchstone of preponderance of probability. 20. Further, the accused in a trial under S. ",processed_document_pdf_39525705_130.mp3 +138 has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the Cas. the,processed_document_pdf_39525705_131.mp3 +"non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed (para 20, kumar exports",processed_document_pdf_39525705_132.mp3 +vs. sharma carpets (2009) 2 scc 513). The accused can also show that he has already returned the amount taken by him. Analysis & conclusion,processed_document_pdf_39525705_133.mp3 +"21. Now, the law is also well settled that ""once the cheque relates to the account of the accused and he accepts and admits the",processed_document_pdf_39525705_134.mp3 +"signatures on the said cheque, then initial presumption as contemplated under S. 139 of the NI Act has to be raised by the court",processed_document_pdf_39525705_135.mp3 +"in favor of the complainant."" (rangappa vs. mohan, air 2010 SC 1898). Reference can also be made to k. Bhaskaran vs. . Sankaran vaidhyan",processed_document_pdf_39525705_136.mp3 +"balan 1999 (4) rcr (Crl. ) 309, wherein it has been held by the Hon'ble SC as under: ""as the signature in the cheque is",processed_document_pdf_39525705_137.mp3 +"admitted to be that of the accused, the presumption envisaged in S. 118 of the act can legally be inferred that the cheque was made",processed_document_pdf_39525705_138.mp3 +or drawn for consideration on the date which the cheque bears. S. 139 of the act enjoins on the court to presume that the holder,processed_document_pdf_39525705_139.mp3 +"of the cheque received it for the discharge of any debt or liability."" 22. In this matter, the accused has admitted his signature. Therefore, the",processed_document_pdf_39525705_140.mp3 +"presumption under S. 139 ni act does get raised in favor of the complainant and against the accused. Thus, the accused now has to rebut",processed_document_pdf_39525705_141.mp3 +"the presumption on the touchstone of preponderance of probabilities. Further, the accused has not lead his defence evidence. However, the law is also well settled",processed_document_pdf_39525705_142.mp3 +that the accused in order to rebut the presumption need not to step into the witness box or lead his defence evidence. The accused can,processed_document_pdf_39525705_143.mp3 +"through the material brought on record by the complainant can also rebut the presumption existing against him. 23. At the outset, on the close scrutiny",processed_document_pdf_39525705_144.mp3 +and appraisal of the original cheque in question marked as ex cw1/b it clearly transpires that the same had been issued as per the above,processed_document_pdf_39525705_145.mp3 +"details. Further, the cheque in question got dishonored vide returning memos dated 03.03.2018 with remarks ""funds insufficient"" marked as ex cw 1/c. Thus, one of",processed_document_pdf_39525705_146.mp3 +"the essential ingredients of S. 138 i.e., that amanan vs. . M/s alkarma page 1 of 24 on 8 june, 2023",processed_document_pdf_39525705_147.mp3 +"When presented to the bank is returned by the bank unpaid, stands fulfilled. Further, on a co-joint reading of the cheque in question ex cw",processed_document_pdf_39525705_148.mp3 +"1/a, return memo ex cw 1/b, it also stands proved that ""cheque was presented to the bank within a period of six months from the",processed_document_pdf_39525705_149.mp3 +"date it was drawn"". 24. The legal notice dated 24.03.2018 ex cw-1/d further proves that the same was issued on 24.03.2018 and dispatched vide postal",processed_document_pdf_39525705_150.mp3 +"receipts ex cw1/e to ex cw1/g. Now, the accused has denied the receipt of legal notice. 25. The Hon'ble SC in k bhaskaran vs. ",processed_document_pdf_39525705_151.mp3 +"sankaran vaidhyan balan (1999) 7 scc 510 in para 18 observed thus: ""......'giving notice' in the context is not the same as 'receipt of notice'.",processed_document_pdf_39525705_152.mp3 +"Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process i.e. Giving, by sending the",processed_document_pdf_39525705_153.mp3 +"notice to the drawer at the correct address....."" 26. Further, in para 24 of the above said judgment the Hon'ble SC held that where",processed_document_pdf_39525705_154.mp3 +"the sender has dispatched the notice by post with correct address written on it, the principle Inc. in S. 27 of general clauses act could",processed_document_pdf_39525705_155.mp3 +profitably be imported in such a Cas. . It was further held that in this situation service of notice is deemed to have been effected on,processed_document_pdf_39525705_156.mp3 +the sendee. 27. Law with respect to the delivery of legal notice by post and the presumption with respect to the same has been succinctly,processed_document_pdf_39525705_157.mp3 +put forth by the Hon'ble SC in c c alavi haji vs. palapetty muhammed (2007) 6 scc 555. Para 13 & 14 of the,processed_document_pdf_39525705_158.mp3 +"judgment is worth mentioning as under: ""13. According to S. 114 of the act, r/w illustration (f) thereunder, when it appears to the court",processed_document_pdf_39525705_159.mp3 +"that the common course of business renders it probable that a thing would happen, the court may draw presumption that the thing would have happened,",processed_document_pdf_39525705_160.mp3 +"unless there are circumstances in a particular Cas. to show that the common course of business was not followed. Thus, S. 114 enables the court",processed_document_pdf_39525705_161.mp3 +"to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human",processed_document_pdf_39525705_162.mp3 +"conduct and public and Pvt. business in their relation to the facts of the particular Cas. . Consequently, the court can presume that the common course",processed_document_pdf_39525705_163.mp3 +"of business has been followed in particular cases. When applied to communications sent by post, S. 114 enables the court to presume that in the",processed_document_pdf_39525705_164.mp3 +"common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption i.e. raised under S. ",processed_document_pdf_39525705_165.mp3 +"27 of the g.c. Act is a far stronger presumption. Further, while S. 114 of evidence act refers to a general presumption, S. 27 refers",processed_document_pdf_39525705_166.mp3 +to a specific presumption 14. S. 27 gives rise to a presumption that service of notice has been effected when it is sent to the,processed_document_pdf_39525705_167.mp3 +"correct address by registered post. In view of the saidmanan vs. . M/s alkarma page 1 of 24 on 8 june, 2023",processed_document_pdf_39525705_168.mp3 +"Address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is",processed_document_pdf_39525705_169.mp3 +deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by,processed_document_pdf_39525705_170.mp3 +"the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary",processed_document_pdf_39525705_171.mp3 +"course of business. 28. Thus, in view of the law as above said and the fact that the address given by accused in his notice",processed_document_pdf_39525705_172.mp3 +under S. 251 crpc being the same address which finds mention in the legal notice and that the legal notice was duly dispatched through postal,processed_document_pdf_39525705_173.mp3 +"receipt, the mandatory statutory legal notice marked as ex cw 1/d is deemed to have been served on the accused in the present Cas. . Thus,",processed_document_pdf_39525705_174.mp3 +"the factum of issuance and receipt of mandatory statutory legal notice also stands proved based on the documentary evidence of legal notice, postal receipts. It",processed_document_pdf_39525705_175.mp3 +"has been also proved that despite issuance of legal notice, the accused had failed to make the payment of the cheque amount. 29. Before noting",processed_document_pdf_39525705_176.mp3 +"the line of defence of the accused that can be deduced through the cross examination of the complainant witnesses, it is apposite to note the",processed_document_pdf_39525705_177.mp3 +admitted facts in the present matter: a) the accused is a partnership firm. This has been established in view of the consistent position of cw,processed_document_pdf_39525705_178.mp3 +"1 as well as cw 2. Furthermore, nowhere during the course of the trial the accused has disputed that alkarna is not a partnership firm.",processed_document_pdf_39525705_179.mp3 +Not a single suggestion disputing alkarma not being a partnership firm has been put forth by the accused. B) accused sandeep chaudhary is the partner,processed_document_pdf_39525705_180.mp3 +and authorized signatory of accused alkarma firm. The same stands proved on a co-joint reading and perusal of the cheque in question and notice under,processed_document_pdf_39525705_181.mp3 +S. 251 crpc. The accused sandeep chaudhary has admitted his signatures on the cheque in question and perusal of the cheque reflects that the same,processed_document_pdf_39525705_182.mp3 +"is belong to ""alkarma"" of which sandeep chaudhary is the authorized signatory. Furthermore, it is also not the Cas. of the accused that he is",processed_document_pdf_39525705_183.mp3 +not the authorized signatory/partner of accused alkarma. C) complainant used to work for the accused alkarma. This has also not been disputed by the accused.,processed_document_pdf_39525705_184.mp3 +Not a single suggestion or question has been put by the accused which could directly or indirectly goes on to establish that it is the,processed_document_pdf_39525705_185.mp3 +Cas. of the accused that the complainant has no connection whatsoever with the accused alkarma firm or that complainant was never an employee of the,processed_document_pdf_39525705_186.mp3 +"accused firm. As a matter of fact, ex cw1/j i.e., proof of appointment and ex cw1/k i.e., proof of salary brought on record by the",processed_document_pdf_39525705_187.mp3 +complaint further cements the position that the complainant indeed was the employee of accused alkarma firm. 30. In order to rebut the presumption existing in,processed_document_pdf_39525705_188.mp3 +"favor of the complainant, the accused through the cross examination and notice under S. 251 crpc attempted to create following line of defence:manan vs. .",processed_document_pdf_39525705_189.mp3 +"M/s alkarma page 1 of 24 on 8 june, 2023",processed_document_pdf_39525705_190.mp3 +B) there never existed any settlement between him and the complainant as to the outstanding amount claimed by the complainant. C) the blank signed cheques,processed_document_pdf_39525705_191.mp3 +were used to be kept in his office for daily use and the same were taken from the said office and misused. (notice under S. ,processed_document_pdf_39525705_192.mp3 +251 crpc.) d) the cheque in question were in possession of cw2 vijay thakur and the same has been misused by vijay thakur and never,processed_document_pdf_39525705_193.mp3 +gave authorization to anyone regarding the issuance of cheque in question. (statement under S. 313 crpc.) e) whatever documents that have been brought on record,processed_document_pdf_39525705_194.mp3 +"by the complainant and his witness are forged and fabricated and were never created by him. F) whatever due, if any, is there against him",processed_document_pdf_39525705_195.mp3 +has already been paid by him to the complainant. (statement under S. 313 crpc.) 31. The line of defence raised by the accused appears to,processed_document_pdf_39525705_196.mp3 +be incredible. In his notice under S. 251 crpc he only stated that blank signed cheques used to be kept in his office for daily,processed_document_pdf_39525705_197.mp3 +"use and the same were taken from the said office and misused. Here, the accused never even mentioned as to who took the said cheques",processed_document_pdf_39525705_198.mp3 +"or when the said cheques were taken. However, only when the complainant examined cw 2 i.e., vijay thakur, the accused in his statement under S. ",processed_document_pdf_39525705_199.mp3 +313 crpc modified and changed his position and stated that the cheque in question were in possession of vijay thakur and the same have been,processed_document_pdf_39525705_200.mp3 +misused by vijay thakur. 32. During the course of the trial objection was raised with respect to full and final settlement brought on record since,processed_document_pdf_39525705_201.mp3 +"the same was not original. The objection was also decided in favor of the accused. However, mere absence of settlement agreement by itself does not",processed_document_pdf_39525705_202.mp3 +"in any manner create probable defence in favor of the accused, viewed specifically in the light of the fact that the complainant was the employee",processed_document_pdf_39525705_203.mp3 +"of the accused firm and further cw1 i.e., the complainant and cw 2 i.e., vijay thakur through their testimony has been able to establish that",processed_document_pdf_39525705_204.mp3 +"a settlement was arrived between the accused firm and the complainant. 33. Furthermore, the accused never initiated any complaint or legal proceedings with respect to",processed_document_pdf_39525705_205.mp3 +"the misuse of the cheque. As a matter of fact, there exists a total of 5 cheques bounce cases pending between the accused and the",processed_document_pdf_39525705_206.mp3 +complainant in the same court. A total of 33 cases are pending against the accused with respect to multiple cheques in the same court. It,processed_document_pdf_39525705_207.mp3 +is highly unnatural and improbable that where close to three dozen cheque bounce cases have been filed against the accused and he takes a stand,processed_document_pdf_39525705_208.mp3 +"that all the cheques have been misused, not a single complaint or legal proceedings or even a stop payment instruction has been initiated by the",processed_document_pdf_39525705_209.mp3 +"accused. This conduct of the accused further weakens his line of defence.manan vs. . M/s alkarma page 1 of 24 on 8 june, 2023",processed_document_pdf_39525705_210.mp3 +"Well as cw 2 i.e., vijay thakur, the counsel of the accused took a line of defence that the documents which has been filed on",processed_document_pdf_39525705_211.mp3 +"record i.e., settlement, does not bear the signature of the accused and only of vijay kumar cw 2. He has further through the cross examination",processed_document_pdf_39525705_212.mp3 +of the complainant as well as his witness attempted to establish that cw 2 was never authorized by the accused to enter into any settlement,processed_document_pdf_39525705_213.mp3 +"with the complainant. This line of defence also does not hold much water. It stands proved through the testimony of cw 2 i.e., vijay thakur",processed_document_pdf_39525705_214.mp3 +that he was also the employee of accused firm and was working in the position of Sr. manager. The same also stands proved through the,processed_document_pdf_39525705_215.mp3 +documents which has been brought on record by cw 2 which are on the letter head of the accused firm. 35. Cw 2 further brought,processed_document_pdf_39525705_216.mp3 +on record authorization letter dated 08.01.2018 ex cw2/b which does establish that he was duly authorized. Although the accused did attempt to show that since,processed_document_pdf_39525705_217.mp3 +"the settlement was dated 30.11.2017 and whereas the authorization letter ex cw2/b is of 08.01.2017, cw 2 was never authorized to enter into any settlement",processed_document_pdf_39525705_218.mp3 +"agreement on behalf of the accused. However, a plausible explanation to this effect was given by cw 2 in his cross examination that since he",processed_document_pdf_39525705_219.mp3 +was working in continuity with the accused firm he was under directions form the accused to sign mark a and mark b whereas the accused,processed_document_pdf_39525705_220.mp3 +in writing had issued the Auth. letter to him on 08.01.2018. It is proved that cw 2 has been working in the position of Sr. ,processed_document_pdf_39525705_221.mp3 +"manager with accused alkarma and was also authorized to issue identity cards to the employees of the accused alkarma. Further, cw 2 has been working",processed_document_pdf_39525705_222.mp3 +"in the accused firm since 1993. In view the abovesaid long tenure and responsible position, the delay of merely a month in the issuance of",processed_document_pdf_39525705_223.mp3 +the authorization letter does not create any reasonable doubt that cw 2 was never authorized by accused sandeep chaudhary to enter into settlement on behalf,processed_document_pdf_39525705_224.mp3 +"of accused firm. 36. Furthermore, a suggestion was put during the cross examination of cw 2 that ex cw2/b i.e., the authorization letter is forged",processed_document_pdf_39525705_225.mp3 +"and fabricated. However, mere suggestion by itself does not prove that the document is forged and fabricated. Something more ought to be brought on record",processed_document_pdf_39525705_226.mp3 +to establish the same. It is not the Cas. of the accused that he has initiated any Crl. proceedings with respect to the forging and,processed_document_pdf_39525705_227.mp3 +"fabrication of ex cw2/b. No material whatsoever has been brought on record by accused to even suggest the same. Thus, it stands proved that cw",processed_document_pdf_39525705_228.mp3 +2 was authorized to enter into settlement agreement on behalf of accused firm with the complainant. 37. The accused had an option to examine himself,processed_document_pdf_39525705_229.mp3 +"as a witness which the accused opted not to avail. Where the accused does not examine himself as a witness, his statement under S. 281",processed_document_pdf_39525705_230.mp3 +cr. P.c. Or 313 cr. P.c. Cannot be read as evidence of the accused and it has to be looked into only as an explanation,processed_document_pdf_39525705_231.mp3 +of the incriminating circumstance and not as evidence. There is no presumption of law that explanation given by the accused was truthful (v.S. yadav vs. ,processed_document_pdf_39525705_232.mp3 +"reena 2010 scc online del 3294). In the present matter, in his statement under S. 313 crpc the accused stated that the documents brought by",processed_document_pdf_39525705_233.mp3 +"cw 2 were never authorized by him and they are forged and fabricated. If the accused wanted to prove this, he was supposed to appear",processed_document_pdf_39525705_234.mp3 +"in the witness box and testify and get himself subjected to cross examination. Furthermore, nothing came in the cross examination of cw 2 so as",processed_document_pdf_39525705_235.mp3 +"to cast any doubt on the documents brought on record by him.manan vs. . M/s alkarma page 1 of 24 on 8 june, 2023",processed_document_pdf_39525705_236.mp3 +There is nothing due against the accused/firm and that the complainant has already received his entire due from the accused when he left the firm.,processed_document_pdf_39525705_237.mp3 +"In other words, it is the stand of the accused that he has already paid the entire due when the complainant left the firm and",processed_document_pdf_39525705_238.mp3 +"no due is left against the accused/firm. The same was, however, denied by the complainant. The abovesaid position of the accused further stands corroborated through",processed_document_pdf_39525705_239.mp3 +the statement of the accused under S. 313 crpc wherein the accused stated that whatever due which he had has already been paid by him,processed_document_pdf_39525705_240.mp3 +"to the complainant. 39. At this juncture it is pertinent to note that in terms of S. 1 sub-S. (4) of payment of wages act,",processed_document_pdf_39525705_241.mp3 +"the act is applicable to a factory. Now, the accused firm alkarma is a factory. The same is proved on perusal of form no 3a",processed_document_pdf_39525705_242.mp3 +"i.e., notice of change of manager brought on record by cw 2. 40. S. 13 a of payment of wages act is as follows: [13a.",processed_document_pdf_39525705_243.mp3 +"Maintenance of registers and records.--(1) every employer shall maintain such registers and records giving such particulars of persons employed by him, the work performed by",processed_document_pdf_39525705_244.mp3 +"them, the wages paid to them, the deductions made from their wages, the receipts given by them and such other particulars and in such form",processed_document_pdf_39525705_245.mp3 +"as may be prescribed. (2) every register and record required to be maintained under this S. shall, for the purposes of this act, be preserved",processed_document_pdf_39525705_246.mp3 +"for a period of three years after the date of the last entry made therein.] 41. Thus, as can be seen S. 13a mandates that",processed_document_pdf_39525705_247.mp3 +"an employer shall maintain registers and records of person employed by him, work performed, wages paid, deductions made, and receipts given. Alkarma being a factory",processed_document_pdf_39525705_248.mp3 +was therefore required to maintain the registers as per the labor legislations. The accused brought no registers maintained by him in this regard. If the,processed_document_pdf_39525705_249.mp3 +"stand of the accused is that he had already paid all the dues to the complainant, he ought to have brought the registers which were",processed_document_pdf_39525705_250.mp3 +"maintained by him reflecting the same, however, the accused brought nothing on record. Thus, adverse inference needs to be drawn against the accused firm and",processed_document_pdf_39525705_251.mp3 +"further the defence raised by the accused regarding due payment already been made to the complainant stands rejected. 42. The present matter, as per the",processed_document_pdf_39525705_252.mp3 +memo of parties has been filed against m/s alkarma through its partner sandeep chaudhary. In the complaint there exists a separate averment that accused sandeep,processed_document_pdf_39525705_253.mp3 +"chaudhary is partner of m/s alkarma and was/is looking after day-to-day affairs and is the authorized signatory of the Co. . Further, accused sandeep chaudhary signed",processed_document_pdf_39525705_254.mp3 +on the cheque in question as the authorized signatory of alkarma. Notice under S. 251 crpc was also framed against accused sandeep chaudhary as partner,processed_document_pdf_39525705_255.mp3 +of accused alkarma. It is also not the Cas. of the accused sandeep chaudhary that he is not the partner or authorized signatory of accused,processed_document_pdf_39525705_256.mp3 +alkarma. In fact the entire defence of accused sandeep chaudhary was raised on the premise that accused sandeep chaudhary is the partner of accused alkarma.,processed_document_pdf_39525705_257.mp3 +"Hence, in the present matter the accusedmanan vs. . M/s alkarma page 1 of 24 on 8 june, 2023",processed_document_pdf_39525705_258.mp3 +"Sandeep chaudhary is also vicariously liable in terms of S. 141 ni act being the partner of accused firm. 43. Thus, in view of the",processed_document_pdf_39525705_259.mp3 +"oral and documentary evidence brought on record by the complainant, statement of the accused under S. 313 cr.p.c, the accused has failed to create a",processed_document_pdf_39525705_260.mp3 +dent/doubt in the Cas. of the complainant and it is clear that the accused had committed an offence under S. 138 of the negotiable instruments,processed_document_pdf_39525705_261.mp3 +"act. Further, the complainant has also been able to establish his Cas. . 44. On the basis of the above said analysis and conclusions arrived, the",processed_document_pdf_39525705_262.mp3 +accused viz. i) m/s alkarma and ii) sh sandeep chaudhary s/o shri subhash chaudhary is convicted for the commission of the offence punishable under S. ,processed_document_pdf_39525705_263.mp3 +138 of the act. This judgment contains 24 pages. Every page of this judgment has been signed by me. Harshal negi negi date: announced in,processed_document_pdf_39525705_264.mp3 +"the open court 2023.06.08 16:30:59 +0530 on this day of 08th june, 2023 (harshal negi) mm(ni act)-05/south-west district dwarka courts/new delhimanan vs. . M/s alkarma",processed_document_pdf_39525705_265.mp3 +"page 1 of 24 on 8 june, 2023",processed_document_pdf_39525705_266.mp3 +"Smt.t.manuja vs. sri.kaleem ulla khan on 6 december, 2019 before the court of xxiv additional small causes judge and the motor accident claims tribunal &",processed_document_pdf_182063998_1.mp3 +"a.c.m.m. (scch-26) at bengaluru dated this the 6th december 2019 present: smt. Sharmila S. b.com, llb., c/c xxiv addl. Scj & acmm & member -",processed_document_pdf_182063998_2.mp3 +"mact bengaluru. M.v.c no.4182/2018 petitioners : 1.smt.t.manuja w/o late t.p.sathish, aged about 23 years 2. Sri.pillappa @ t.g.pillegowda s/o gopalappa, aged about 63 years 3.",processed_document_pdf_182063998_3.mp3 +"Smt.narayanama, w/o pillappa @ t.g.pillegowda, aged about 48 years, all are residing at thurunasi village, masthi hobli, malur taluk, kolar district. (by sri.t.v.ramesh., adv.,) v/s",processed_document_pdf_182063998_4.mp3 +"respondents : 1. Sri.kaleem ulla khan, s/o ubedulla khan, aged about 47 years 2 mvc no.4182/2018 scch-26 r/o lakkur village, malur taluk, kolar district. (exparte)",processed_document_pdf_182063998_5.mp3 +"2. The reliance general insurance Co. Ltd. , v floor, west wing centenary building,smt.t.manuja vs. sri.kaleem ulla khan on 6 december, 2019",processed_document_pdf_182063998_6.mp3 +"bangalore-01 (by sri.h.c.betsur.Adv. ) **** ::judgment: : this petition is filed by the petitioners under S. 166 of motor vehicles act, 1989, seeking compensation of rs.1,00,00,000/-,",processed_document_pdf_182063998_7.mp3 +"for the death of t.p.sathish, s/o pillappa @ t.g.pillegowda, in a road traffic accident. 2. It is the Cas. of the petitioners that: on 07.03.2018",processed_document_pdf_182063998_8.mp3 +the deceased was going towards thirumalashettihalli village from samethanahalli village scch-26 as a pillion rider in a motor cycle bearing reg.no.ka-53- ev-8493 ridden by his,processed_document_pdf_182063998_9.mp3 +"colleague shanthakumar slowly, cautiously on the correct side of 207 road. On the way at about 11.00 am., at bangalore rural district one Pvt. bus",processed_document_pdf_182063998_10.mp3 +bearing reg.no.ka-06-d-1169 came from opposite direction at high speed in a rash and negligent manner came to the wrong side of the road and dashed,processed_document_pdf_182063998_11.mp3 +"violently against the motor cycle. Due to heavy impact, both the occupants of the motor cycle were knocked down and the bus sustained ran over",processed_document_pdf_182063998_12.mp3 +"the pillion rider viz., the deceased, in the result he sustained crush injuries over his stomach and on the way to columbia hospital, white field,",processed_document_pdf_182063998_13.mp3 +the injured t.p.sathish succumbed to the injuries. 3. It is the Cas. of the petitioner that he was aged about 30 years at the time,processed_document_pdf_182063998_14.mp3 +"of accident, and was working as a lineman in bescom at hoskote and drawing a salary of rs.35,000/- per month. He was entitle for time",processed_document_pdf_182063998_15.mp3 +bound promotions and increments. The petitioners were scch-26 entirely depending upon the earnings of the deceased. The petitioners have put to lot of mental agony,processed_document_pdf_182063998_16.mp3 +"and untold misery due to sudden demise of deceased. They have spent rs.50,000/- towards transportation of dead body and towards funeral obsequies. Hence, they have",processed_document_pdf_182063998_17.mp3 +"filed this claim petition seeking compensation of rs.1,00,00,000/-. 4. After service of summons, respondents no.2 appeared before the court and filed its written statement. In",processed_document_pdf_182063998_18.mp3 +"spite of service of notice, the 1st respondent not appeared before the court and placed exparte. 5. Respondent no.2 in its written statement denied averments",processed_document_pdf_182063998_19.mp3 +of the petition and contends that the alleged accident caused due to negligence on the part of the rider of motor cycle. The rider of,processed_document_pdf_182063998_20.mp3 +the motor cycle without having dl and policy for motor cycle and both rider and pillion rider without wearing helmet proceeding on the same in,processed_document_pdf_182063998_21.mp3 +a rash and negligent manner and dashed scch-26 to the opposite coming bus. There is no rash and negligent on the part of the driver,processed_document_pdf_182063998_22.mp3 +"of the bus. Further itsmt.t.manuja vs. sri.kaleem ulla khan on 6 december, 2019",processed_document_pdf_182063998_23.mp3 +6. Further the 2nd respondent contends that the petition is dismissed for non joinder of necessary parties such as owner and insurer of motor cycle.,processed_document_pdf_182063998_24.mp3 +"This respondent admits the issuance of policy issued for the vehicle was cancelled due to cheque bounce, cheque bearing no.800375 dated 04.05.2017 for rs.73,793/- drawn",processed_document_pdf_182063998_25.mp3 +"on pragathi krishna gramina bank, the policy cancelled on 01.06.2017 i.e., prior to the date of accident dated 07.03.2018. The policy was not in force",processed_document_pdf_182063998_26.mp3 +as on the date of accident. There is no contractual obligation between the 2nd respondent and the owner of the bus. Except this all other,processed_document_pdf_182063998_27.mp3 +"defences are formal in nature and among other grounds, prays to dismiss the petition. Scch-26 7. On the basis of above pleadings, my learned predecessor",processed_document_pdf_182063998_28.mp3 +"has framed the following: ::issues:: 1. Whether the petitioners prove that, they are the legal heirs of the deceased t.p.sathish s/o pillappa @ t.g.pillegowda? 2.",processed_document_pdf_182063998_29.mp3 +"Whether the petitioners prove that, sathish was died on account of road traffic accident took place at samethanahalli village, anugondanahalli hobli, hosakote taluk, bengaluru due",processed_document_pdf_182063998_30.mp3 +"to rash and negligent driving of the driver of the Pvt. bus bearing reg.no.ka-06-d- 1169 dated 07.03.2018 at about 11.00 am.,? 3. Whether the petitioners",processed_document_pdf_182063998_31.mp3 +"are entitled for compensation as prayed in the petition? if so, from which respondent? 4. What order or award? 8. In order to prove the",processed_document_pdf_182063998_32.mp3 +"above said issues, petitioner no.1 got examined herself as pw-1, got marked documents at ex.p.1 to ex.p.12 documents. Further the account officer at bescom at",processed_document_pdf_182063998_33.mp3 +"hosakote division, scch-26 examined as pw2 and got marked ex.p13 and ex.p14 documents. Per contra the legal claims manager of 2nd respondent examined as rw1",processed_document_pdf_182063998_34.mp3 +and got marked ex.r1 to ex.r6 documents. 9. Heard the arguments of learned counsel for the petitioners and respondents. Learned counsel for the petitioner relied,processed_document_pdf_182063998_35.mp3 +on a decision reported in : 1) 1998 acj 123 2) 2012 acj 1307 3) ilr 2019 kar 1939smt.t.manuja vs. sri.kaleem ulla khan on 6,processed_document_pdf_182063998_36.mp3 +"december, 2019",processed_document_pdf_182063998_37.mp3 +Issue no.1 : in the affirmative &2 issue no.3 : partly in the affirmative issue no.4 : as per final order for the following: ::reasons::,processed_document_pdf_182063998_38.mp3 +"11. Issue nos.1 to 3: as these three issues are interlinked with each other, they are taken together for scch-26 common discussion in order to",processed_document_pdf_182063998_39.mp3 +"avoid repetition of facts and evidence. 12. As this claim petition has been filed by the petitioners under sec.166 of the m.v. Act, 1989, the",processed_document_pdf_182063998_40.mp3 +"burden is on them to prove that the deceased sathish died because of the accident which took place, as a result of rash and negligent",processed_document_pdf_182063998_41.mp3 +"driving of the Pvt. bus earning reg.no.ka-53-ev-8493. 13. In order to prove the same, petitioner no.1 smt.t.manjula, examined herself as pw-1 and she got marked",processed_document_pdf_182063998_42.mp3 +"documents as ex.p.1 to ex.p.12 documents. Out of which, ex.p.1 to ex.p7 are the police documents which are FIR with complaint, mahazar, sketch,",processed_document_pdf_182063998_43.mp3 +"imv report, inquest report, pm report and charge sheet. 14. On perusal of ex.p.1 it clearly discloses that, on 07.03.2018 at about 11.00 am., the",processed_document_pdf_182063998_44.mp3 +"deceased was died on account of road traffic accident took place on samethanahalli village, anugondanahalli hobli, hosakote scch-26 taluk, bengaluru due to rash and negligent",processed_document_pdf_182063998_45.mp3 +driving of the driver of Pvt. bus bearing reg.no.ka-06-d-1169. 15. Admittedly pw-1 is not an eyewitness to the alleged accident. She has been cross-examined by,processed_document_pdf_182063998_46.mp3 +"the learned counsel for the respondent no.2 wherein except bear suggestions, nothing worth has been elicited from her mouth to disprove their contentions. The 2nd",processed_document_pdf_182063998_47.mp3 +"respondent has not disputed the occurrence of the accident on the date, place and time between its insured vehicle and the motor cycle in which",processed_document_pdf_182063998_48.mp3 +"the deceased was travelling as pillion rider. Likewise, it has not been denied the death of the deceased on account of the accidental injuries. 16.",processed_document_pdf_182063998_49.mp3 +"The alleged fact has been corroborated by the contents of the police documents as stated above. The contents of mahazar and sketch clearly indicates that,",processed_document_pdf_182063998_50.mp3 +"this accident took place at samethanahalli village, babu layout nh-207 road, wherein the driver of the bus came scch-26 from thirumalashettyhalli to samethanahalli in a",processed_document_pdf_182063998_51.mp3 +"rash and negligent manner and dashed against the motor cycle in which the deceased was proceeding as pillion rider. During the course of cross examination,",processed_document_pdf_182063998_52.mp3 +"the pw1 denied the negligence on the part of her husband. Therefore, the petitioners are required to prove that there was no negligence on the",processed_document_pdf_182063998_53.mp3 +part of the driver of the offending vehicle. It is the Cas. of the petitioners that the driver of the bus hit the motor cycle,processed_document_pdf_182063998_54.mp3 +from opposite direction. The driver of the bus is the best person to speak as to how the accident has happened. For the reason best,processed_document_pdf_182063998_55.mp3 +"known to them, both the parties have not made any endeavor to examine him. A competent Auth. has filed the charge sheet after due investigation.",processed_document_pdf_182063998_56.mp3 +"This document corroborates the testimony of pw1. In order to deny the contention of the petitioners, the 1st respondent not appeared before the scch-26 court",processed_document_pdf_182063998_57.mp3 +"nor produced any documents to disprove the negligence of thesmt.t.manuja vs. sri.kaleem ulla khan on 6 december, 2019",processed_document_pdf_182063998_58.mp3 +17. The only contention of the 2nd respondent is that the policy bearing no.140121723400007244 issued for the vehicle bus bearing no.ka-06-d-1169 cancelled due to cheque,processed_document_pdf_182063998_59.mp3 +"bounce, cheque bearing no.800375 dated 04.05.2017 for rs.73,793/- drawn on pragathi krishna gramina bank. The policy cancelled on 01.06.2017 i.e., prior to the date of",processed_document_pdf_182063998_60.mp3 +accident dated 07.03.2018. The policy was not in force as on the date of accident and it was cancelled even prior to the date of,processed_document_pdf_182063998_61.mp3 +"accident. In order to substantiate its contention rw1 has produced ex.r1 to ex.r6 documents i.e., original cheque, bank endorsement, coy of the cancelled policy, letter",processed_document_pdf_182063998_62.mp3 +"issued to the owner and rto, postal acknowledgement for having sent the letter to owner and rto. The learned counsel for the petitioners cross examined",processed_document_pdf_182063998_63.mp3 +rw1 wherein he deposed that he do not know the mode of payment of premium. Scch-26 there is no impediment for him to produce proposal,processed_document_pdf_182063998_64.mp3 +form. He has not produced the postal receipts and acknowledgements for having sent the notices to the owner of the vehicle. Further he denied the,processed_document_pdf_182063998_65.mp3 +"other suggestions made by the petitioner's counsel. 18. From the above evidence of rw1, learned counsel for the 1st respondent argued that the policy claimed",processed_document_pdf_182063998_66.mp3 +"to have been issued for the offending vehicle was not in force as on the date of the accident, as the cheque issued by the",processed_document_pdf_182063998_67.mp3 +"owner of the vehicle Mr. khaleem ulla towards subscription was dishonoured for the reason ""signature differs, and the insurance Co. communicated the fact of dishonor",processed_document_pdf_182063998_68.mp3 +of cheque. 19. At the time of arguments learned counsel for the petitioners relied on a decision reported in ilr 2019 kar 1939 between divisional,processed_document_pdf_182063998_69.mp3 +"manager, united india insurance co., ltd., bangalore vs kumari shilpa and Anr. wherein it was observed that: scch-26 ""it is to be seen that the",processed_document_pdf_182063998_70.mp3 +"courier receipt contains the signature in english written as ""suguna'. Full address is not mentioned on the receipt. Further the signature on the cheque which",processed_document_pdf_182063998_71.mp3 +"was dishonoured is bearing a signature that it s totally not a signature of the owner as found in ex.r8, courier receipt. Thus, signature on",processed_document_pdf_182063998_72.mp3 +"the notice relied upon by the insurance Co. and the signature on the courier receipt does not tally in random. More particularly, massive discrepancy in",processed_document_pdf_182063998_73.mp3 +the signature should have been explained by the insurance Co. by presenting the Appl. form/proposal form filed at the time of subscribing policy by suguna,processed_document_pdf_182063998_74.mp3 +could have been a document that could have thrown lights on this issue. The insurance Co. is custodian of the said document. But for the,processed_document_pdf_182063998_75.mp3 +"reasons best in own to it, the same is not produced. In the circumstances, the learned member in his judgment at page no.24 has observed",processed_document_pdf_182063998_76.mp3 +"that scch-26 there was failure on the part of the respondent no.2 and insurance policy was not duly cancelled."" 20. Further our Hon'ble HC ",processed_document_pdf_182063998_77.mp3 +"of karnataka (dharwad bench) in a decision reported in 2017(2)akr 721 between divisional manager, national insurance co., ltd., vs kumar shivanand held that:smt.t.manuja vs. sri.kaleem",processed_document_pdf_182063998_78.mp3 +"ulla khan on 6 december, 2019",processed_document_pdf_182063998_79.mp3 +Policy-dishonour of cheque- owner of vehicle intimated by insurance Co. about dishonor of cheque but not about cancellation of insurance policy-no documents to prove deemed,processed_document_pdf_182063998_80.mp3 +"cancellation of policy-absence of any intimation to owner regarding cancellation of policy prior to date of accident- insurance Co. liable to pay compensation."" 21. By",processed_document_pdf_182063998_81.mp3 +"relying on the above decision, in so far as facts of the present Cas. is concerned, the owner of the bus obtained policy of insurance",processed_document_pdf_182063998_82.mp3 +"from the insurer for the period 05.05.2017 to 04.05.2018, for which premium scch-26 was paid through cheque on dated 04.05.2017 for rs.73,793/-. The 2nd respondent",processed_document_pdf_182063998_83.mp3 +"has received intimation from the bank on 25.05.2017. The accident occurred on 07.03.2018. As admitted by rw1, after receipt of bank endorsement, the 2nd respondent",processed_document_pdf_182063998_84.mp3 +cancelled the policy of the bus. During the course of cross examination rw2 admitted that they have issued policy in respect of offending vehicle on,processed_document_pdf_182063998_85.mp3 +"dated 19.06.2015. 22. It is not disputed fact that the 2nd respondent had issued insurance policy to offending vehicle, but it was cancelled due to",processed_document_pdf_182063998_86.mp3 +"cheque bounce. On perusal of ex.r2 the bank endorsement wherein the reason for dishonor mentioned as ""signature differs"". In this Cas. the respondent no.2 has",processed_document_pdf_182063998_87.mp3 +"not produced the proposal form , in order to compare the signature found in the cheque and the proposal form. Hence, the discrepancy in the",processed_document_pdf_182063998_88.mp3 +signature should have been explained by the insurance Co. by presenting the Appl. form/proposal scch-26 form filed at the time of subscribing policy by khaleem,processed_document_pdf_182063998_89.mp3 +ulla khan could have been a document that could have thrown lights on this issue. The insurance Co. is custodian of the said document. But,processed_document_pdf_182063998_90.mp3 +"for the reasons best known to it, the same is not produced. In the over all circumstances, it could be find that as on the",processed_document_pdf_182063998_91.mp3 +"date of the accident, the owner was not in know of the cancellation of policy. 23. Further the petitioners' counsel relied on a decision reported",processed_document_pdf_182063998_92.mp3 +"in (1998) 1 SC cases 371 between oriental insurance co., ltd., vs inderjit kaur and Ors. wherein Hon'ble SC held that: "" motor",processed_document_pdf_182063998_93.mp3 +"vehicles-motor vehicles act, 1988-ss.147(5), 149(1) and 146-insurance act, 1938-s.64vb-liability of insurer when cheque received towards premium dishonoured but policy not avoided-insurer issuing insurance policy on",processed_document_pdf_182063998_94.mp3 +"receiving cheque towards premium- cheque dishonoured-insurer informing the insured that the cheque having been dishonoured the insurer would not be at risk-however, the insurer not",processed_document_pdf_182063998_95.mp3 +"avoiding the policy for that reason-in such circumstances the insurer, even if he was entitled to avoid the policy for not having received the premium",processed_document_pdf_182063998_96.mp3 +"held, nonetheless liable for third party risks as the public interest served by an insurance policy must scch-26 prevail over the insurer's interest-however, the question",processed_document_pdf_182063998_97.mp3 +"whether in the said circumstances, the insurer could have avoided the insurance policy, left open-public interest: held:smt.t.manuja vs. sri.kaleem ulla khan on 6 december, 2019",processed_document_pdf_182063998_98.mp3 +Authorized insurer issued a policy of insurance to cover the bus without receiving the premium therefor. By reason of the provisions of Ss. 147(5) and,processed_document_pdf_182063998_99.mp3 +"149(1) of the motor vehicles act, the appellant became liable to indemnify third parties in respect of the liability which that policy covered and to",processed_document_pdf_182063998_100.mp3 +satisfy awards of compensation in respect thereof notwithstanding its entitlement to avoid or cancel the policy for the reason that the cheque issued in payment,processed_document_pdf_182063998_101.mp3 +of the premium thereon had not been honoured. The policy of insurance that the appellant issued was a representation upon which the authorities and third,processed_document_pdf_182063998_102.mp3 +parties were entitled to act. The appellant was not absolved of its obligations to third parties under the policy because it did not receive the,processed_document_pdf_182063998_103.mp3 +"premium. Its remedies in this behalf lay against the insured."" 24. Further in (2008) 2 SC cases 595 between deddappa and Ors. vs branch",processed_document_pdf_182063998_104.mp3 +"manager, national insurance co., ltd., wherein Hon'ble SC held that: ""a.motor vehicles act, 1988-ss.147(5),149(1) and 166-third party insurance-insurance Co. , held, not liable after rescinding",processed_document_pdf_182063998_105.mp3 +"insurance contract on account of non payment of premium -respondent Co. undertaking third party insurance for a motor vehicle, for the period 17.10.1997 to 16.10.1998-vehicle",processed_document_pdf_182063998_106.mp3 +owner paying premium scch-26 vide cheque dated 15.10.1997 which was dishonoured on 21.10.1997 due to insufficient funds-respondent Co. consequently cancelling insurance policy and informing vehicle,processed_document_pdf_182063998_107.mp3 +"owner and rto-accident taking place on 06.02.1998-held, contract of insurance stood rescinded due to failure of consideration and intimation to this effect had been given",processed_document_pdf_182063998_108.mp3 +"to all concerned-on principle of law, insurance Co. not liable to compensate third party for the accident but the SC in exercise of its",processed_document_pdf_182063998_109.mp3 +"jurisdiction under art.142, directing respondent Co. to compensate appellant and to recover amount from vehicle owner"". 25. In a recent decision wherein the Hon'ble high",processed_document_pdf_182063998_110.mp3 +"court of bombay in its judgement dated 15th april, 2019 in the matter of ""sbi insurance Co. vs madhubala & anr"", has held that in",processed_document_pdf_182063998_111.mp3 +"Cas. the cheque towards premium gets dishonoured, the insurance Co. is not liable to indemnify the owner of the offending vehicle as same amounts to",processed_document_pdf_182063998_112.mp3 +"""breach of promise' under the insurance agreement."" ""the Hon'ble HC held that liability of the authorized insurer to indemnify the third party in respect",processed_document_pdf_182063998_113.mp3 +of the liability covered under the policy subsists when the scch-26 policy of insurance has been issued on receipt of cheque towards the payment of,processed_document_pdf_182063998_114.mp3 +premium even when the cheque gets dishonoured and the insurance Co. has to satisfy the award in light of provisions of S. 147(5) and 149(1),processed_document_pdf_182063998_115.mp3 +of the mv act unless the insurance policy is cancelled by the authorized insurer and insured has been informed about the same before accident.smt.t.manuja vs. ,processed_document_pdf_182063998_116.mp3 +"sri.kaleem ulla khan on 6 december, 2019",processed_document_pdf_182063998_117.mp3 +The insured promises to pay the consideration for contract of indemnity in lieu of promise to indemnify in Cas. of liability. Failure to pay premium,processed_document_pdf_182063998_118.mp3 +"resultantly leads to breach of promise consequently, the insured waives its right to be indemnified. However, the insurance Co. is bound to discharge its statutory",processed_document_pdf_182063998_119.mp3 +"liability to indemnify the third party claimants as it is not privy to the insurance contract. In the final analysis, it can be rightly concluded",processed_document_pdf_182063998_120.mp3 +"that the Hon'ble HC has harmoniously balanced scch-26 the essence of motor vehicles act, 1988 and insurance act, 1938 protecting 'public interest' as well",processed_document_pdf_182063998_121.mp3 +as the interest of the insurance Co. to rightfully recover the compensation amount if the insurer fails to comply with its part of the responsibility,processed_document_pdf_182063998_122.mp3 +"of paying the premium"". 26. In the instant Cas. the respondent Co. undertaking third party insurance for a motor vehicle for the period 05.05.2017 to",processed_document_pdf_182063998_123.mp3 +"04.05.2018. The vehicle owner paying premium vide cheque dated 04.05.2017 which was dishonoured on 25.05.2017 due to drawers signature differs. Thus, based on the endorsement",processed_document_pdf_182063998_124.mp3 +"of the bank, it can be come to the conclusion that the signature on the cheque relied upon by the insurance Co. and the signature",processed_document_pdf_182063998_125.mp3 +of the 1st respondent does not tally in the random and the insurance Co. has not explained the discrepancy in the signature by presenting the,processed_document_pdf_182063998_126.mp3 +proposal form filed at the time of subscribing policy by 1st respondent. Thus there is no synchronization among the scch-26 submissions made and the documents,processed_document_pdf_182063998_127.mp3 +filed by the insurance Co. and there was failure on the part of the 2nd respondent and it is considered that the insurance policy was,processed_document_pdf_182063998_128.mp3 +"not duly cancelled and valid on the date of accident. Hence, the 1st respondent being the rc owner and the 2nd respondent being the insurer",processed_document_pdf_182063998_129.mp3 +"of the Pvt. bus bearing reg.no.ka-06-d-1169, are jointly and severally liable to pay the compensation to the petitioners. 27. In order to prove that, they",processed_document_pdf_182063998_130.mp3 +"are the legal representatives of the deceased, petitioners have produced ex.p9 to ex.p12 adhaar cards, which clearly discloses the relationship of petitioners with the deceased.",processed_document_pdf_182063998_131.mp3 +"28. Next remains the question regarding quantum of compensation that has to be awarded. Since this is a Cas. of death, the age, income of",processed_document_pdf_182063998_132.mp3 +"the deceased, No. of dependents needs to be considered. According to the scch-26 petitioners, the deceased sathish was aged about 30 years at the time",processed_document_pdf_182063998_133.mp3 +"of his death. In order to prove the age of the deceased, petitioners have produced ex.p9 adhaar card of the deceased wherein his date of",processed_document_pdf_182063998_134.mp3 +"birth was mentioned as 24.07.1985 and the accident took place in the year 2018. On perusal of the above material records, it is to be",processed_document_pdf_182063998_135.mp3 +"believed that, deceased was aged 33 years at the time of his death. In view of the ratio laid down in sarla varma's Cas. the",processed_document_pdf_182063998_136.mp3 +"proper multiplier to the age group of 31 to 35 is 16. 29. Petitioner no.1 being the wife, petitioners no.2 and 3 are being the",processed_document_pdf_182063998_137.mp3 +"parents, of the deceased considered as dependents on the income of the deceased. As per the sarla varma's Cas. , if the No. of dependents are",processed_document_pdf_182063998_138.mp3 +"2 to 3, 1/3rd of the income to be deducted towards personal and living expenses of the deceased. In this Cas. , No. of dependents are",processed_document_pdf_182063998_139.mp3 +"3. Hence, 1/3rd of the income is deducted towards personal and living expenses.smt.t.manuja vs. sri.kaleem ulla khan on 6 december, 2019",processed_document_pdf_182063998_140.mp3 +"30. Coming to the question of employment and monthly income of the deceased is concerned, in a judgment in SLP (Civ. ) no.25590 of",processed_document_pdf_182063998_141.mp3 +"2014 in between national insurance co. Ltd., v/s. Pranay sethi passed on 31.10.2017, Hon'ble apex court had overruled the ratio laid down in rajesh and",processed_document_pdf_182063998_142.mp3 +ors. V/s. Rajbir singh and Ors. Cas. and directed all the mact tribunals to follow the guidelines mentioned in pranay sethi's Cas. and it is,processed_document_pdf_182063998_143.mp3 +"also observed that, tribunals shall follow the fixation of multiplier as mentioned in sarla varma's Cas. and further a fresh table is prepared for addition",processed_document_pdf_182063998_144.mp3 +"of salary in Cas. of death for calculation of future prospects. Hence, the decision rendered by the Hon'ble apex court in pranay sethi's Cas. binds",processed_document_pdf_182063998_145.mp3 +this tribunal. Again a doubt arose in the mind of the court as to whether compensation under the head of loss of love and affection,processed_document_pdf_182063998_146.mp3 +"has to be awarded or not. On careful study of the ratio laid down in pranay scch-26 sethi's Cas. , the question dealt by the Hon'ble ",processed_document_pdf_182063998_147.mp3 +apex court was only regarding award of future prospects and addition and deduction of actual salary of the deceased. 31. If the ratio laid down,processed_document_pdf_182063998_148.mp3 +"in pranay sethi's Cas. is applied to the Cas. in hand, it is contended by the petitioners that, deceased was working as a lineman in",processed_document_pdf_182063998_149.mp3 +"bescom at hosakote and earning monthly salary of rs.25,995/-. In order to prove the nature of occupation and income of the deceased, petitioners have produced",processed_document_pdf_182063998_150.mp3 +"ex.p8 salary certificate of the deceased wherein the net salary of the deceased dated 26.02.2018 mentioned as rs.22,847/-. Further the petitioners have examined one n.chandrappa,",processed_document_pdf_182063998_151.mp3 +"accounts officer at bescom at hosakote division, bangalore as pw2 and got marked ex.p13 and ex.p14 ie., employee service particulars and salary certificates. In the",processed_document_pdf_182063998_152.mp3 +"chief examination he deposed that the deceased t.p.sathish who was working as an assistant lineman in their bescom,hosakote division scch-26 as a permanent employee and",processed_document_pdf_182063998_153.mp3 +"he was drawing monthly gross salary of rs.25,995/- and was entitle for time bound promotions and increments. In the cross examination he denied the suggestions",processed_document_pdf_182063998_154.mp3 +"made by the counsel for the 2nd respondent and also contends that they have prepared cheque for rs.3,22,452/ under sdcps scheme as compensation to the",processed_document_pdf_182063998_155.mp3 +W/O the deceased. Further it is suggested that the W/O the deceased had given job under compassionate ground and she is working in,processed_document_pdf_182063998_156.mp3 +"the same Dept. , for which the witness denied. Hence, it is considered that the deceased comes under the category of permanent employed person and the",processed_document_pdf_182063998_157.mp3 +"income of rs.22,847/- rounded off to rs.23,000/- p.m. Is sufficient for calculating the compensation. 32. As per the decision reported in SLP (Civ. )",processed_document_pdf_182063998_158.mp3 +"no.25590 of 2014 in between national insurance co. Ltd., v/s. Pranay sethi, the scch-26 Hon'ble apex court has made it clear that, an addition of",processed_document_pdf_182063998_159.mp3 +"50% to be added to the monthly income if the deceased was aged below 40 years, in Cas. of permanent employed person or person having",processed_document_pdf_182063998_160.mp3 +"fixed salary, as future prospects. 33. As per recent decision of Hon'ble SC of india decided on 18th september 2018 between magma general insurance",processed_document_pdf_182063998_161.mp3 +"co., ltd., vs nanu ram @ chuhru ram and Ors. , as the petitioner no.2 & 3 are being the parents of the deceased, due to",processed_document_pdf_182063998_162.mp3 +"the death of their son, they lost parental aid, protection, affection, society, discipline, guidance and training. Hence, petitioner no.2 & 3 are entitled for compensation",processed_document_pdf_182063998_163.mp3 +"under the head of loss of filial consortium.smt.t.manuja vs. sri.kaleem ulla khan on 6 december, 2019",processed_document_pdf_182063998_164.mp3 +"Sl. Particulars calculation total No. (i) monthly income Rs. 23,000/- (ii) 50% of (i) above if Rs. 23,000/- (+) scch-26 added to the Rs. 11,500/-",processed_document_pdf_182063998_165.mp3 +"= monthly income as Rs. 34,500/- future prospects (iii) 1/3rd of (ii) of the rs.34,500/- (-) same to be deducted rs.11,500/- = towards personal and",processed_document_pdf_182063998_166.mp3 +"living expenses monthly income Rs. 23,000/-p.m. (iv) compensation after rs.23,000/- x12 rs.44,16,000/- multiplier of 16 is x 16 applied 35. Out of compensation awarded under",processed_document_pdf_182063998_167.mp3 +"the head loss of dependency i.e., rs.44,16,000/-, petitioner no.1 being the wife entitled for rs.35,32,800/- rounded off to rs.35,33,000/- i.e., 80% of rs.44,16,000/-, petitioner no.2",processed_document_pdf_182063998_168.mp3 +"and 3 are being the parents of the deceased are entitled for rs.08,83,200/- rounded off to 8,83,000/- i.e., 20% of rs.44,16,000/-. 36. The details of",processed_document_pdf_182063998_169.mp3 +"compensation awarded is as under: sl.No. head of compensation amount/Rs. 1. Loss of dependency 44,16,000-00 2. Loss of consortium 40,000-00 (petitioner no.1) scch-26 3. Loss",processed_document_pdf_182063998_170.mp3 +"of filial consortium 80,000-00 (petitioner no.2 & 3) 4. Loss of estate 15,000-00 5. Funeral expenses 15,000-00 total 45,66,000-00 37. In all, petitioners are entitled",processed_document_pdf_182063998_171.mp3 +"for total compensation of rs.45,66,000/- with interest at the rate of 9% p.a. From the date of petition till its realization. 38. The total amount",processed_document_pdf_182063998_172.mp3 +"of compensation are apportioned as follows; heads petitioner petitioner petitionersmt.t.manuja vs. sri.kaleem ulla khan on 6 december, 2019",processed_document_pdf_182063998_173.mp3 +"loss of 35,33,000/- 4,41,500/- 4,41,500/- dependency loss of 40,000/- consortium loss of filial - 40,000/- 40,000/- consortium loss of estate 15,000/- funeral 15,000/- expenses total",processed_document_pdf_182063998_174.mp3 +"35,73,000/- 05,11,500/- 04,81,500/- 39. As far as awarding of interest on the compensation amount is concerned, in a recent decision scch-26 reported in 2018 acj",processed_document_pdf_182063998_175.mp3 +"1300 between mangla ram v/s. Oriental insurance co., ltd., and Ors. (in ca nos.2499 of 2018 arising out of SLP (c) nos.28141-42 of",processed_document_pdf_182063998_176.mp3 +"2017 decided on 06.04.2018) wherein the Hon'ble SC with regard to interest at the rate of 9% p.a. On the compensation amount, in para",processed_document_pdf_182063998_177.mp3 +"no.28 of the judgment held that, 'the appellant would also be entitled to interest on the total amount of compensation at the rate of 9",processed_document_pdf_182063998_178.mp3 +"per cent per annum on the compensation from the date of filing of the claim petition till date of realization"" and also by following the",processed_document_pdf_182063998_179.mp3 +"principles laid down in (2018) acj 1020 in between icici lombard general insurance co., ltd., v/s. Ajay kumar mohanty and Anr. decided on 6.3.2018 (in",processed_document_pdf_182063998_180.mp3 +"ca nos.7181 of 2015 and 1879 of 2016) at para no.1 and 12 Hon'ble SC held that: ""quantum- interest-tribunal allowed interest at the rate",processed_document_pdf_182063998_181.mp3 +of 7.5 per cent which was reduced by HC to 7 per scch-26 cent-apex court allowed interest at 9 per cent per annum from,processed_document_pdf_182063998_182.mp3 +"the date of filing of claim Appl. "". In view of the above judgments with regard to the rate of interest and also it is settled",processed_document_pdf_182063998_183.mp3 +"principles of law that, while awarding interest on the compensation amount, the court has to take into account the rate of interest on the nationalized",processed_document_pdf_182063998_184.mp3 +"bank and the rate of interest at the rate of 9% p.a. Cannot said to be on the higher side. Accordingly, the petitioner is entitled",processed_document_pdf_182063998_185.mp3 +"to interest at the rate of 9% p.a. 40. Coming to the question of fixing the liability to pay the compensation to the petitioner, the",processed_document_pdf_182063998_186.mp3 +respondent no.2 being the insurer and respondent no.1 being the rc owner of the bus bearing reg.no.ka-06-d-1169 are jointly and severally liable to pay compensation,processed_document_pdf_182063998_187.mp3 +"to the petitioner. However, the 2nd respondent has to indemnify the 1st respondent. Accordingly, issue no.1 & 2 are answered in affirmative and issue no.3",processed_document_pdf_182063998_188.mp3 +"is in partly affirmative. Scch-26 41. Issue no.4: on the basis of discussions made on issue nos.1 to 3, i proceed to pass the following:",processed_document_pdf_182063998_189.mp3 +"::order:: the petition filed under sec.166 of the m.v. Act, 1989 is partly allowed with cost. Petitioners are entitled for compensation of rs.45,66,000/- (Rs. forty",processed_document_pdf_182063998_190.mp3 +"fivesmt.t.manuja vs. sri.kaleem ulla khan on 6 december, 2019",processed_document_pdf_182063998_191.mp3 +"Out of which petitioners are entitled for petitioner no.1 rs.35,73,000/- petitioner no.2 rs.05,11,500/- petitioner no.3 rs.04,81,500/- petitioners are also entitled for proportionate interest at the",processed_document_pdf_182063998_192.mp3 +rate of 9% p.a. From the date of petition till its realization. The respondent no.2 is liable to pay the compensation to the petitioner and,processed_document_pdf_182063998_193.mp3 +"shall deposit the said amount within 60 days from the date of this order. On deposit of compensation amount pertaining to petitioners no.1 to 3,",processed_document_pdf_182063998_194.mp3 +75% to be released in their favour by way of crossed cheque and scch-26 remaining 25% to be kept in fixed deposit in any nationalized,processed_document_pdf_182063998_195.mp3 +"or scheduled bank, for a period of three years, in their names. Fee of counsel for petitioners is fixed at rs.1,000/-. Draw award accordingly. (dictated",processed_document_pdf_182063998_196.mp3 +"to the stenographer, directly on the computer, typed by her, thereof is corrected and then pronounced by me in the open court on this the",processed_document_pdf_182063998_197.mp3 +6th day of december 2019) (sharmila.s.) c/c xxiv addl. Small causes judge & a.c.m.m. Bengaluru. ::a n n e x u r e:: list of,processed_document_pdf_182063998_198.mp3 +witnesses examined on behalf of the petitioners:- pw-1 : t.manuja pw-2 : n.chandrappa list of documents marked on behalf of the petitioners:- ex.p.1 : copy,processed_document_pdf_182063998_199.mp3 +of FIR with complaint ex.p.2 : copy of mahazar ex.p.3 : copy of sketch ex.p.4 : copy of imv report ex.p.5 : copy,processed_document_pdf_182063998_200.mp3 +"of inquest report ex.p.6 : copy of pm report scch-26smt.t.manuja vs. sri.kaleem ulla khan on 6 december, 2019",processed_document_pdf_182063998_201.mp3 +Ex.p.8 : salary certificate ex.p.9 : notarised copy of adhaar cards to 12 ex.p.13 : employee service particulars ex.p.14 : salary certificate (2 in nos.),processed_document_pdf_182063998_202.mp3 +list of witnesses examined on behalf of the respondents:- rw-1 : pradeep d.S. list of documents marked on behalf of the respondents:- ex.r1 : original,processed_document_pdf_182063998_203.mp3 +cheque ex.r2 : bank endorsement ex.r3 : copy of the cancelled policy ex.r4 : letter issued to the owner of the vehicle ex.r5 : letter,processed_document_pdf_182063998_204.mp3 +issued to rto ex.r6 : postal acknowledgment for having sent the letter to owner and rto (sharmila.s.) c/c xxiv addl. Small causes judge & a.c.m.m.,processed_document_pdf_182063998_205.mp3 +"Bengaluru.smt.t.manuja vs. sri.kaleem ulla khan on 6 december, 2019",processed_document_pdf_182063998_206.mp3 +"R vs. dr. Samuel silas on 21 february, 2013 in the court of sh. J. R. Aryan, district judge & sessions judge, north east district,karkardooma",processed_document_pdf_5676867_1.mp3 +"courts, delhi cr no.04/13 unique id no. 02402r0012042013 r pratima joseph w/o sh. Rajeev noel das, r/o ska-402, plot no.14, shipra krishna vista, ahinsa khan,",processed_document_pdf_5676867_2.mp3 +"indirapuram, ghaziabad, up .........................revisionist vs. dr. Samuel silas r/o f-122, dilshad colony, mig f3, delhi .......................respondent date of institution of the Cas. : 15.01.2013 date of",processed_document_pdf_5676867_3.mp3 +"reserving the Cas. for orders: 13.02.2013 date of passing of order: 21.02.2013 cr no.02/13 unique id no. 02402r0012042013 pratima joseph w/o sh. Rajeev noel das,",processed_document_pdf_5676867_4.mp3 +"r/o ska-402, plot no.14, shipra krishna vista, ahinsa khan, indirapuram, ghaziabad, up .........................revisionist vs. dr. Samuel silas r/o f-122, dilshad colony, mig f3, delhi .......................respondent",processed_document_pdf_5676867_5.mp3 +date of institution of the Cas. : 08.01.2013 date of reserving the Cas. for orders: 13.02.2013 date of passing of order: 21.02.2013 judgement 1. Accused pratima,processed_document_pdf_5676867_6.mp3 +joseph summoned to face a charge for an offence of bouncing of cheque drawn by her in favour of complainant Dr. samuel silas has come,processed_document_pdf_5676867_7.mp3 +in revision against the order dated 30.08.2012 whereby her Appl. under S. 311 crpc for recalling the complainant Dr. samuel silas for his cross-examination has,processed_document_pdf_5676867_8.mp3 +"been dismissed for the reasons recorded in the order. Both sides counsels wherein Adv. sh. Vaibhav kumar appeared for the petitioner and Adv. , who appeared",processed_document_pdf_5676867_9.mp3 +for the complainant dr. Samuel silas-respondent in this revision have been heard and i find that order impugned is not in consonance with the law,processed_document_pdf_5676867_10.mp3 +"laid down by the Hon'ble HC inr vs. dr. Samuel silas on 21 february, 2013",processed_document_pdf_5676867_11.mp3 +Revisionist. Question arose if accused when summoned in a Cas. of offence of cheque bouncing and when accused put on trial when notice of offence,processed_document_pdf_5676867_12.mp3 +in terms of S. 251 crpc was given to the accused and accused simply provided a response that he pleaded not guilty and claimed trial,processed_document_pdf_5676867_13.mp3 +"and if accused failed to take steps to move Appl. under S. 145(2) of the negotiable instrument act, would it be legal and proper that",processed_document_pdf_5676867_14.mp3 +an opportunity to accused to put up his/her Cas. by cross-examination of the complainant is denied and he/she is called upon to enter defence. Would,processed_document_pdf_5676867_15.mp3 +"it comply the basic Crl. jurisprudence that before the accused is convicted, he had an opportunity to defend charge and to further extend this proposition",processed_document_pdf_5676867_16.mp3 +"in view of law defining offence of cheque bouncing when deemed to have been committed, to what extent accused was to be given an opportunity",processed_document_pdf_5676867_17.mp3 +to put up and prosecute his defence in particular when offence was to be tried as summary trial. 2. Present order takes up two revisions,processed_document_pdf_5676867_18.mp3 +"for disposal, which are cr.(r) No. 04/13 and 02/2013 as parties in both revision are same and subject matter in both cases is identical. In",processed_document_pdf_5676867_19.mp3 +the second revision the cheques concerned are cheque no.286605 dated 04.02.2099 for rs.75000/- and cheque no.286606 dated 05.02.2009 for rs.70000/-. 3. In the present Cas. ,processed_document_pdf_5676867_20.mp3 +learned mm taking recourse to judgment rajesh aggarwal's Cas. dismissed the plea of accused to recall the complainant for his cross-examination but then i find,processed_document_pdf_5676867_21.mp3 +proceedings conducted in this Cas. appear to be in violation of ratio held in rajesh aggarwal's Cas. . 4. Present Cas. under S. 138 of negotiable,processed_document_pdf_5676867_22.mp3 +instrument act was filed on 20.04.2009 by dr. Samuel salis on a plea and contention that being maternal uncle of accused pratima joseph and accused,processed_document_pdf_5676867_23.mp3 +"having approached complainant for a friendly loan that complainant provided a friendly loan of rs.3,45,000/- about 1 € year ago and this loan was promised",processed_document_pdf_5676867_24.mp3 +to be repaid in two months. Accused then avoided repaying the loan but finally she delivered three cheques first cheque dated 30.01.2009 drawn on hdfc,processed_document_pdf_5676867_25.mp3 +"bank, vasundhara enclave, delhi for rs.50,000/-, second cheque dated 31.01.2009 drawn on sbi, ansari nagar for rs.25000/- and third cheque dated 02.02.2009 drawn on sbi,",processed_document_pdf_5676867_26.mp3 +"ansari nagar for rs.75000/- and these three cheques when presented for collection through complainant's banker, all three cheques bounced with bank memo / remark ""funds",processed_document_pdf_5676867_27.mp3 +"insufficient"". It is further complainant's claim that cheque amount was not paid despite statutory demand notice issued and served upon the accused. Since complainant filed",processed_document_pdf_5676867_28.mp3 +"pre-summoning evidence in the form an Aff. and documents like cheque, bank return memos and legal notice and postal receipts were exhibited through Aff. , perusal",processed_document_pdf_5676867_29.mp3 +"of that material evidence suggested a prima facie Cas. , learned mm passed summoning order on the very first date of the filing of the complaint",processed_document_pdf_5676867_30.mp3 +i.e on 21.04.2009. File record further reveals that appearance of respondent-accused in the complaint could be secured only on 25.04.2011. Non-appearance of the accused during,processed_document_pdf_5676867_31.mp3 +"past two years period was on account of steps lacking on the part of complainant. Even after appearance of the accused on 25.04.2011, accused having",processed_document_pdf_5676867_32.mp3 +"been released on bail vide order dated 27.05.2011, vide order dated 13.09.2011 learned trial court observed a prima facie Cas. made out and accordingly notice",processed_document_pdf_5676867_33.mp3 +of offence was given to accused and accused simply got her plea recorded that she claimed trial and pleaded not guilty and learned mm then,processed_document_pdf_5676867_34.mp3 +proceeded to direct accused as well her counsel to move an appropriate Appl. in terms of S. 145(2) of negotiable instrument act and dater vs. ,processed_document_pdf_5676867_35.mp3 +"dr. Samuel silas on 21 february, 2013",processed_document_pdf_5676867_36.mp3 +5. On the adjourned date 30.11.2011 court was presided over by ld. Link m.m. And the court proceeded to close an opportunity to accused for,processed_document_pdf_5676867_37.mp3 +recalling of complainant or any of his witness for cross-examination as no Appl. under S. 145(2) of n. I act had been filed and learned,processed_document_pdf_5676867_38.mp3 +"court relied upon rajesh aggarwal's Cas. . Cas. was posted for defence evidence. Matter remained adjourned till on 06.03.2012, the court came to be presided by",processed_document_pdf_5676867_39.mp3 +Anr. mm and learned mm found that Appl. under S. 145(2) of n. I act was filed before him and matter was adjourned. Finally on,processed_document_pdf_5676867_40.mp3 +04.04.2012 learned mm observed that opportunity for accused to cross- examine complainant had already been closed vide order dated 30.11.2011 and since Cas. had been,processed_document_pdf_5676867_41.mp3 +"posted for defence evidence, Appl. under S. 145(2) of n. I act was dismissed. Matter remained adjourned for defence evidence and accused then moved Appl. ",processed_document_pdf_5676867_42.mp3 +"under S. 311 crpc. On the next date Cas. remained adjourned and the court then presided over by Anr. mm, who heard that Appl. and",processed_document_pdf_5676867_43.mp3 +dismissed the same on 30.08.2012. Thereafter Cas. remained adjourned on two dates for defence evidence and finally it was fixed for final arguments. 6. It,processed_document_pdf_5676867_44.mp3 +has been argued from the complainant's side that where accused had failed to plead any defence to the notice of the offence given to her,processed_document_pdf_5676867_45.mp3 +and in the absence of any defence placed before the court in any such Appl. in terms of S. 145(2) crpc then court proceeding with,processed_document_pdf_5676867_46.mp3 +the Cas. for defence evidence committed no illegality. Appl. under S. 311 crpc for recalling of the complainant for cross-examination was an attempt to undo,processed_document_pdf_5676867_47.mp3 +the earlier order whereby Appl. of accused under S. 145(2) of n i act had been dismissed on 30.11.2011. Learned counsel argued that revision was,processed_document_pdf_5676867_48.mp3 +without merit and was liable to be dismissed. 7. Counsel for the revisionist submitted that accused-revisionist should not be condemned undefended and court had failed,processed_document_pdf_5676867_49.mp3 +to observe and followed the ratio laid down in rajesh aggarwal's Cas. . I have considered both sides submissions and contentions. 8. Rajesh aggarwal's Cas. appears,processed_document_pdf_5676867_50.mp3 +to be a landmark in the scenario of cases concerning offence of cheque bouncing piling in courts and the Hon'ble court expressed concern that whereas,processed_document_pdf_5676867_51.mp3 +negotiable instrument act provided a special summary procedure for trial and disposal of the cases and despite the act providing deeming provision of offence committed,processed_document_pdf_5676867_52.mp3 +when it was shown the cheque to have been drawn in discharge of a legally recoverable debt or liability and the complainant further found to,processed_document_pdf_5676867_53.mp3 +"have complied provisions of S. 138 (a)(b)(c) of negotiable instrument act. In these circumstances, court held that procedure being followed in court of mm simply",processed_document_pdf_5676867_54.mp3 +of putting accused on trial by giving him 251 crpc notice and just recording his plea as not guilty and claiming trial defeated the spirit,processed_document_pdf_5676867_55.mp3 +of the law and created a situation that matter were being proceeded as a full fledged trial. It has been held that legislature provided for,processed_document_pdf_5676867_56.mp3 +summary trial and the difference between summary trial and summons trial as appearing from the provisions under S. 262-265 crpc and S. 251 crpc onwards,processed_document_pdf_5676867_57.mp3 +was obvious. In a summary trial as soon accused appears his plea was to be recorded under S. 262 (g) crpc and his examination could,processed_document_pdf_5676867_58.mp3 +be taken up by the magistrate and then court could record finding under S. 263(h) crpc regarding that examination. It came to be held:-r vs. ,processed_document_pdf_5676867_59.mp3 +"dr. Samuel silas on 21 february, 2013",processed_document_pdf_5676867_60.mp3 +"Offence in terms of cr.pc. Under S. 263(g) of cr.p.c, the court has to record the plea of the accused and his examination. It is",processed_document_pdf_5676867_61.mp3 +"thus obvious that in a trial of an offence under S. 138 n. I. Act the accused cannot simplicitor say ""i plead not guilty"" and",processed_document_pdf_5676867_62.mp3 +"wants to face trial. Since offence under S. 138 n. I act is a document based technical offence, deemed to have been committed because of",processed_document_pdf_5676867_63.mp3 +dishonour of cheque issued by the accused or his Co. of his firm the accused must disclose to the court as to what is his,processed_document_pdf_5676867_64.mp3 +defence on the very first hearing when the accused appears before the court. If the accused does not appear before the court of mm on,processed_document_pdf_5676867_65.mp3 +"summoning and rather approaches HC , the HC has to refuse to entertain him and ask him to appear before the court of mm",processed_document_pdf_5676867_66.mp3 +as the HC cannot usupr the powers of mm and entertain a plea of accused why he should not be tried under S. 138.,processed_document_pdf_5676867_67.mp3 +This plea as to why he should not be tried under S. 138 is to be raised by the accused before the court of mm,processed_document_pdf_5676867_68.mp3 +under S. 251 & under S. 263(g) of Cr.P.C. along with his plea he can file necessary documents and also make an,processed_document_pdf_5676867_69.mp3 +"Appl. , if he is so advised, under S. 145(2) of n. I. Act to recall the complainant to cross-examination him on his plea of defence.",processed_document_pdf_5676867_70.mp3 +"However, only after disclosing his plea of defence he can make an Appl. that the Cas. should not be tried summarily but as a summon",processed_document_pdf_5676867_71.mp3 +trial Cas. . This Appl. must disclose the defence of the accused and the reasons why he wants the Cas. to be tried as a summon,processed_document_pdf_5676867_72.mp3 +"trial."" it has been further held: since the mandate of legislature is trial of such cases in a summary manner, the evidence already given by",processed_document_pdf_5676867_73.mp3 +the complainant by way of Aff. is sufficient proof of the offence and this evidence is not required to be given again in terms of,processed_document_pdf_5676867_74.mp3 +S. 145(1) of n. I. Act and has to be read during the trial. The witnesses i.e the complainant or other witnesses can be recalled,processed_document_pdf_5676867_75.mp3 +only when accused makes an Appl. and this Appl. must disclose the reason why accused wants to recall the witnesses and on what point witness,processed_document_pdf_5676867_76.mp3 +is to be cross examined. One must not forget that the offence under S. 138 of n. I act is not of the kind of,processed_document_pdf_5676867_77.mp3 +offence as in ipc where the state prosecutes a person for offence against the society. The offence under S. 138 of n. I act is,processed_document_pdf_5676867_78.mp3 +an offence in the personal nature of the complainant and it is an offence made under n. I act so that the trust in commercial,processed_document_pdf_5676867_79.mp3 +transactions is not destroyed because of the dishonour of cheques. When it is within the special knowledge of the accused as to why he is,processed_document_pdf_5676867_80.mp3 +"not to face trial under S. 138 n. I act, he alone has to take the plea of defence and burden cannot be shifted to",processed_document_pdf_5676867_81.mp3 +"complainant. There is no presumption that even if an accused fails to bring out his defence, he is still to be considered innocent. If an",processed_document_pdf_5676867_82.mp3 +"accused has a defence against dishonour of the cheque in question, it is he alone who knows the defence and responsibility of spelling out his",processed_document_pdf_5676867_83.mp3 +"defence to the court and then proving this defences is on the accused. I, therefore, consider that the proper procedure to be followed by mm",processed_document_pdf_5676867_84.mp3 +"is that soon after summoning, the accused must be asked to disclose his defence & his plea should ber vs. dr. Samuel silas on 21",processed_document_pdf_5676867_85.mp3 +"february, 2013",processed_document_pdf_5676867_86.mp3 +Is no reason for the mm to recall the complainant or witnesses has to be considered sufficient and the trial court can ask the accused,processed_document_pdf_5676867_87.mp3 +"to lead his evidence in defence on the plea of innocence as the evidence of the complainant is already there. In a summary trial, a",processed_document_pdf_5676867_88.mp3 +complainant or his witness cannot be recalled in the court for cross-examination only for the sake of pleasure. Once the complainant has brought forward his,processed_document_pdf_5676867_89.mp3 +"Cas. by giving his Aff. about the issuance of cheque, dishonour of cheque, issuance of demand notice etc., he can be cross-examine only if the",processed_document_pdf_5676867_90.mp3 +accused makes an Appl. to the court as to on what point he wants to cross-examine the witness(es) and then only the court shall recall,processed_document_pdf_5676867_91.mp3 +"the witness by recording reasons thereto."" 9. Ratio of the judgment suggests that as soon accused appears in summary trial matter before the magistrate then",processed_document_pdf_5676867_92.mp3 +"his plea is to be recorded and in consonance with that plea, in a Cas. under n. I. Act accused is required to move an",processed_document_pdf_5676867_93.mp3 +Appl. under S. 145(2) n. I act and then magistrate has to consider that Appl. to examine if complainant or any witness of the complainant,processed_document_pdf_5676867_94.mp3 +was required to be called for his examination and cross- examination. 10. In a situation when accused appears before the court in the Cas. which,processed_document_pdf_5676867_95.mp3 +is required to be proceeded as a summary trial and there is omission in either examining the accused to disclose his defence or to record,processed_document_pdf_5676867_96.mp3 +his plea on the point of defence declining him an opportunity to cross-examine the complainant on a reasoning that he had failed to moved an,processed_document_pdf_5676867_97.mp3 +Appl. u/s 145(2) NI Act may not be in consonance with ratio of rajesh aggarwal judgement. It has been held in rajesh aggarwal Cas. ,processed_document_pdf_5676867_98.mp3 +"that soon after summoning when accused appears ""he must be asked to disclose his defence and his plea should be recorded"". Only when accused happens",processed_document_pdf_5676867_99.mp3 +"to take no defence and simply says ""i am innocent"", in that situation magistrate may not have any reason to recall the complainant or witness",processed_document_pdf_5676867_100.mp3 +"during summary trial and court can ask the accused to lead his defence of his innocence. In the present Cas. as seen above, accused appeared",processed_document_pdf_5676867_101.mp3 +before the court on 25.04.2011. On next four dates no such proceedings were taken up to examine the accused about his defence or to record,processed_document_pdf_5676867_102.mp3 +"her plea. Even on 13.09.2011 when notice of offence in terms of S. 251 cr.p.c was given to accused, plea invited from the accused and",processed_document_pdf_5676867_103.mp3 +"then recorded is simple "" i plead not guilty and claim trial"". No such further question has been put by the court as to what",processed_document_pdf_5676867_104.mp3 +defence accused had and intended to prosecute. Cas. was simple adjourned for accused to move an Appl. u/s 145(2) NI Act . On the adjourned,processed_document_pdf_5676867_105.mp3 +"date, ld. Mm dealing with accused appears to be on leave and matter was taken up before link mm and ld. Link mm found that",processed_document_pdf_5676867_106.mp3 +since no Appl. had been filed for recalling of complainant or any witness then opportunity on that point was closed for accused. 11. To my,processed_document_pdf_5676867_107.mp3 +view it would constitute denying a fair opportunity to accused to defend himself. May be the court if had examined the accused or her plea,processed_document_pdf_5676867_108.mp3 +"when accused had appeared before the court or had examined the accused about her defence when notice of offence was given to her, then court",processed_document_pdf_5676867_109.mp3 +itself could have taken an appropriate decision that recalling of complainant for cross-examination whether was made out or not. It is a matter of record,processed_document_pdf_5676867_110.mp3 +that accused did move an Appl. u/s 145(2) of the NI Act on 06.03.2012 and she laid down her plea and factsr vs. dr.,processed_document_pdf_5676867_111.mp3 +"Samuel silas on 21 february, 2013",processed_document_pdf_5676867_112.mp3 +Simply on a reasoning that such opportunity had already been closed and denied to accused vide order dated 30.11.2011. Numerous adjournment in the Cas. between,processed_document_pdf_5676867_113.mp3 +that period even defeated the very purpose and object of expeditious disposal of the Cas. as a summary trial. Dismissal of that Appl. u/s 145(2),processed_document_pdf_5676867_114.mp3 +NI Act on 07.03.2012 was unjust in absence of merits of plea raised in the Appl. taken up for consideration. Even thereafter Cas. remained,processed_document_pdf_5676867_115.mp3 +adjourned on several dates and finally accused moved an Appl. u/s 311 cr.p.c for calling the plaintiff for his cross-examination and it was dismissed on,processed_document_pdf_5676867_116.mp3 +"30.08.2012, which is now the subject matter of the present revision. To my view where the court had failed to record plea of accused or",processed_document_pdf_5676867_117.mp3 +her examination on her appearance in court and court failed to record as to what defence she wanted to prosecute when notice of offence u/s,processed_document_pdf_5676867_118.mp3 +"251 cr.p.c was given to her, then asking and directing the accused to enter defence on a finding and reasoning that she had failed to",processed_document_pdf_5676867_119.mp3 +move an Appl. u/s 145(2) NI Act would be a serious breach of Crl. jurisprudence that accused must have a fair and reasonable opportunity,processed_document_pdf_5676867_120.mp3 +"to defend the charge. A look at the Appl. which accused had moved u/s 145(2) NI Act , she raised several points on the question",processed_document_pdf_5676867_121.mp3 +"of liability towards complainant, which according to complainant cheque issued in the Cas. was towards discharge of that liability. Appl. of accused u/s 311 cr.p.c",processed_document_pdf_5676867_122.mp3 +was dismissed without examining the merits simply on reasoning that opportunity to cross-examine the complainant had already been closed. I find order impugned suffers illegality,processed_document_pdf_5676867_123.mp3 +in exercise of jurisdiction by ld. Mm. Impugned order dated 30.08.2012 is liable to be set-aside. Prayer of the revisionist to call the complainant for,processed_document_pdf_5676867_124.mp3 +"his cross-examination deserves to be accepted. Revision is, accordingly, allowed. It is, however, observed that since matter is pending in the court for last about",processed_document_pdf_5676867_125.mp3 +"four years, let ld. Mm fixed a date for calling the plaintiff for his cross- examination by accused and accused shall ensure to take up",processed_document_pdf_5676867_126.mp3 +that cross- examination and conclude it on one date and will not pray for any adjournment unless the court found request unavoidable. Announced in the,processed_document_pdf_5676867_127.mp3 +"open court on ( j r aryan ) 21.02.2013 district judge & addl. Sessions judge, in-charge ( ne distt. ), karkardooma courts, delhir vs. dr.",processed_document_pdf_5676867_128.mp3 +"Samuel silas on 21 february, 2013",processed_document_pdf_5676867_129.mp3 +"O.p. Mehra vs. raj kumari bhalla and anr. On 9 august, 2006 equivalent citations: ii(2007)bc589 author: satish kumar mittal bench: satish kumar mittal judgment satish",processed_document_pdf_1976295_1.mp3 +"kumar mittal, j. 1. Petitioner o.p. Mehra has filed this petition under S. 482 of the Cr.P.C. for quashing of Crl. complaint",processed_document_pdf_1976295_2.mp3 +"No. 115 of 1998 (annexure p-1), filed by respondent No. 1 under S. 138 of the NI Act (hereinafter referred to as 'the act')",processed_document_pdf_1976295_3.mp3 +"as well as the summoning order and the other consequential proceedings. 2. The petitioner is 85 years old Sr. citizen, who has served the country",processed_document_pdf_1976295_4.mp3 +"for about 35 years in the indian air force, from where he retired as air chief marshal. He was awarded padam vibhushan in the year",processed_document_pdf_1976295_5.mp3 +1977. The grouse of the petitioner is that he has been unnecessarily impleaded as an accused in the aforesaid complaint filed by respondent No. 1,processed_document_pdf_1976295_6.mp3 +"under S. 138 of the act and the judicial magistrate 1st class, chandigarh, without applying his mind and without there being sufficient averment and evidence",processed_document_pdf_1976295_7.mp3 +"against the petitioner on the record, he has summoned the petitioner as accused along with 8 other persons. Thus, the process of law and court",processed_document_pdf_1976295_8.mp3 +"has been misused by respondent No. 1 to unnecessarily harass the old Sr. citizen. 3. In this Cas. , respondent No. 1 filed Crl. complaint No. ",processed_document_pdf_1976295_9.mp3 +"115 of 1998 under S. 138 of the act. In the said complaint, 9 persons have been arrayed as accused. The petitioner has been arrayed",processed_document_pdf_1976295_10.mp3 +"as accused No. 9. In the complaint, it has been averred that a public Ltd. Co. styled as sagar sun estates and finance Ltd. issued",processed_document_pdf_1976295_11.mp3 +"two post-dated cheques, one for Rs. 10,000/- (principal amount) and Anr. for Rs. 1,608/- (interest) to the complainant in discharge of its liability. The amount",processed_document_pdf_1976295_12.mp3 +"of Rs. 10,000/- was deposited by the complainant with the said Co. in fixed deposit. The said cheques were signed by accused No. 8, the",processed_document_pdf_1976295_13.mp3 +"authorised signatory of the said Co. . When these cheques were dishonoured, the aforesaid complaint was filed by smt. Raj kumari bhalla through her husband shri",processed_document_pdf_1976295_14.mp3 +"v.m. Bhalla as her agent. 4. In the said complaint, after the preliminary evidence, all the nine accused were summoned by the trial court vide",processed_document_pdf_1976295_15.mp3 +"order dated 4.7.1998. After his service, the petitioner filed an Appl. for re-calling the summoning order and for dismissal of the complaint qua him on",processed_document_pdf_1976295_16.mp3 +the ground that the petitioner was only a part-time director of the Co. . He was never and at no point of time in charge of,processed_document_pdf_1976295_17.mp3 +"and responsible to the Co. for the conduct of its business within the meaning ofo.p. Mehra vs. raj kumari bhalla and anr. On 9 august,",processed_document_pdf_1976295_18.mp3 +2006,processed_document_pdf_1976295_19.mp3 +"By the Co. . The said Appl. was dismissed by the trial court vide order dated 30.4.2003, while holding that the said Appl. was not maintainable.",processed_document_pdf_1976295_20.mp3 +"Thereafter, the petitioner filed the instant petition for quashing of the complaint, the summoning order and the consequent proceedings. 5. I have heard the arguments",processed_document_pdf_1976295_21.mp3 +"of learned counsel for the parties and gone through the contents of the complaint, the summoning order as well as other documents annexed with the",processed_document_pdf_1976295_22.mp3 +"petitioner, 6. Counsel for the petitioner has made two-fold submissions. Firstly, he submitted that there is no specific averment either in the complaint itself or",processed_document_pdf_1976295_23.mp3 +in (he documents attached therewith that the petitioner was in charge of and responsible to the Co. for the conduct of its business at the,processed_document_pdf_1976295_24.mp3 +"time of the commission of the alleged offence by the Co. . In para 6 of the complaint, it has been alleged that accused No. 8",processed_document_pdf_1976295_25.mp3 +"had issued the cheques on behalf of the Co. , accused No. 1 is a chairman-cum-managing director of the Co. and accused nos. 2 to 9",processed_document_pdf_1976295_26.mp3 +are in charge of and responsible to the Co. for the conduct of its business. Counsel submitted that it has not been stated in the,processed_document_pdf_1976295_27.mp3 +"complaint or in the preliminary evidence by the complainant that the petitioner was in overall control of the day-to-day business of the Co. , counsel while",processed_document_pdf_1976295_28.mp3 +relying upon decision of the SC in katta sujatha vs. fertilizers and chemicals travancore Ltd. and anr. ; k.p.g. Nair vs. jindal menthol india,processed_document_pdf_1976295_29.mp3 +ltd. I (2001) bc 243 (SC ) : iv (2000) ccr 100 (SC ) : 2002 scc (cri.) 1038 and s.m.S. pharmaceuticals ltd.,processed_document_pdf_1976295_30.mp3 +"vs. neeta bhalla and anr. , submitted that mere incorporating in the complaint the magic words of S. 141(1) of the act is not sufficient",processed_document_pdf_1976295_31.mp3 +for taking cognizance against a person on the principle of vicarious liability until and unless substance of allegations answer and fulfil the requirements of the,processed_document_pdf_1976295_32.mp3 +ingredients of the said provision. The allegation that the person was in charge of and responsible to the Co. for the conduct of its business,processed_document_pdf_1976295_33.mp3 +must be clear and specifically disclose that the person was in overall control of the day-to-day business of the Co. . Counsel for the petitioner contended,processed_document_pdf_1976295_34.mp3 +"that in the instant Cas. , the petitioner was simply a part-time director. He was not associated in day-to-day affairs of the business of the Co. .",processed_document_pdf_1976295_35.mp3 +The complainant did not produce any evidence in her preliminary evidence showing that the petitioner was controlling the day-to-day affairs of the Co. . In spite,processed_document_pdf_1976295_36.mp3 +"of there being no material and clear averment against the petitioner, he was summoned by the trial court without Appl. of mind. Counsel for the",processed_document_pdf_1976295_37.mp3 +"petitioner also placed on record two affidavits, annexures p-2 and p-3. One sworn by g. Sagar suri. The chairman-cum-managing director of the Co. and the",processed_document_pdf_1976295_38.mp3 +"other sworn by g.S. chhatwal, the vice-president of the Co. , in which it has been categorically stated that the petitioner has never been a whole-time",processed_document_pdf_1976295_39.mp3 +"director of the Co. and he never remained in charge of and responsible for the day-to-day affairs/functioning of the Co. . Therefore, summoning of the petitioner",processed_document_pdf_1976295_40.mp3 +"in the aforesaid complaint was totally illegal and unjustified. 7. Secondly, counsel for the petitioner submitted that the aforesaid complaint was not signed, made and",processed_document_pdf_1976295_41.mp3 +"filed by the payee or holder in due course of the cheques, which are alleged to have been bounced. Thus, in view of S. 142(1)",processed_document_pdf_1976295_42.mp3 +"of the act, no court can take cognizance on such complaint filed by a person other than the payee or the holder in due course",processed_document_pdf_1976295_43.mp3 +of the bounced cheque. Counsel submitted that as per the decision of the SC in janki vasudeo bhojwani and anr. vs. o.p. Mehra vs. ,processed_document_pdf_1976295_44.mp3 +"raj kumari bhalla and anr. On 9 august, 2006",processed_document_pdf_1976295_45.mp3 +"Of attorney holder can appear, plead and act on behalf of the party and he can also file a complaint under S. 138 of the",processed_document_pdf_1976295_46.mp3 +"act, but he cannot become a witness. But in the instant Cas. , shri v.m. Bhalla, who has filed the instant complaint on behalf of his",processed_document_pdf_1976295_47.mp3 +wife smt. Raj kumari bhalla is not the general or special power of attorney holder of his wife. The instant complaint has been filed only,processed_document_pdf_1976295_48.mp3 +on the basis of an Auth. letter given by smt. Raj kumari bhalla to her husband which has been marked as mark c-1 in the,processed_document_pdf_1976295_49.mp3 +"trial court and which reads as under: Auth. letter i, hereby authorise mr. V.m. Bhalla s/o shri devi dayal bhalla. Resident of h. No. 3367.",processed_document_pdf_1976295_50.mp3 +"Sector 27-d, chandigarh to file complaint under S. 138 of NI Act , against m/s. Sagar suri estate and finance ltd. Cmdig, sagar suri, sagar",processed_document_pdf_1976295_51.mp3 +"apartment-6, tilak marg, new delhi and Ors. in the competent court, to appear on every date on my behalf to give statement, to compromise, to",processed_document_pdf_1976295_52.mp3 +"receive payment, to issue receipt or to withdraw the complaint, to engage counsel and to do all things which he may deem fit for prosecution",processed_document_pdf_1976295_53.mp3 +"of the above said complaint. Counsel for the petitioner submitted that merely on the basis of such an Auth. letter, neither a complaint under S. ",processed_document_pdf_1976295_54.mp3 +138 of the act can be filed nor such person can appear as a witness on behalf of the complainant. Such an Auth. letter cannot,processed_document_pdf_1976295_55.mp3 +"be treated as general power of attorney of the executant, because in this Auth. letter, it is nowhere undertaken that the executant would be bound",processed_document_pdf_1976295_56.mp3 +"by the acts done and conducted on her behalf in respect of the cheques, which are subject-matter of the Auth. letter. In support of his",processed_document_pdf_1976295_57.mp3 +"contention, counsel for the petitioner relied upon a judgment of this court in meeta rai vs. gulshan mahajan 1999(2) rcr (Crl. ) 383, in which in",processed_document_pdf_1976295_58.mp3 +"similar circumstances, it was held that on the basis of such an Auth. letter, no cognizance can be taken for the offence under S. 138",processed_document_pdf_1976295_59.mp3 +"of the act. 8. On the other hand, counsel for respondent No. 1 submitted that the averments made in the complaint to the effect that",processed_document_pdf_1976295_60.mp3 +accused nos. 2 to 9 are in charge of and responsible to the Co. for the conduct of its business are sufficient to proceed against,processed_document_pdf_1976295_61.mp3 +"all the accused under S. 141 of the act and at this stage, complaint as well as the summoning order cannot be quashed on the",processed_document_pdf_1976295_62.mp3 +ground that the averments made in the complaint arc vague and the petitioner was not in charge of and person responsible to the Co. for,processed_document_pdf_1976295_63.mp3 +the conduct of its business at the time of commission of the alleged offence by the Co. . This question will be determined by the trial,processed_document_pdf_1976295_64.mp3 +"court after recording of evidence of the parties. Counsel further submitted that in pursuance of the summoning order, petitioner did not appear before the trial",processed_document_pdf_1976295_65.mp3 +"court and now, he has been declared proclaimed offender, therefore, keeping in view the conduct of the petitioner, the court should not interfere in the",processed_document_pdf_1976295_66.mp3 +"petition filed under S. 482 of the Cr.P.C. . Regarding the second submission made by counsel for the petitioner, counsel for respondent No. ",processed_document_pdf_1976295_67.mp3 +1 does not dispute the factual position and the contents of the Auth. letter on the basis of which the instant complaint was filed by,processed_document_pdf_1976295_68.mp3 +"husband of the complainant on her behalf, he has also not controverted the affidavits, annexures p-2 and p-3. However, he submitted that power of attorney",processed_document_pdf_1976295_69.mp3 +"holder is competent to fileo.p. Mehra vs. raj kumari bhalla and anr. On 9 august, 2006",processed_document_pdf_1976295_70.mp3 +"Complaint can be filed. Thus, judicial magistrate, 1st class, chandigarh has not committed any illegality in this Cas. , while taking cognizance of the matter and",processed_document_pdf_1976295_71.mp3 +"summoning the petitioner. 9. S. 141 of the act is an exception for the general rule in Crl. law against vicarious liability under this S. ,",processed_document_pdf_1976295_72.mp3 +"a liability is sought to be fastened vicariously on a person connected with a Co. , the principal accused being the Co. itself. In order to",processed_document_pdf_1976295_73.mp3 +"bring the Cas. within S. 141 of the act, the persons who are sought to be made criminally liable should be in charge of and",processed_document_pdf_1976295_74.mp3 +responsible to the Co. for the conduct of its business at the time of the commission of the alleged offence. In s.m.S. pharmaceuticals ltd. vs. ,processed_document_pdf_1976295_75.mp3 +"neeta bhalla and anr. (supra), the SC observed that every person connected with the Co. shall not fall within the ambit of this provision.",processed_document_pdf_1976295_76.mp3 +It is only those persons who were in charge of and responsible for the conduct of business of the Co. at the time of commission,processed_document_pdf_1976295_77.mp3 +"of the offence will be liable for Crl. action. It was further held that merely being a director of a Co. , a person cannot be",processed_document_pdf_1976295_78.mp3 +made liable under S. 141 of the act. A director of a Co. cannot be deemed to be in charge of and responsible to the,processed_document_pdf_1976295_79.mp3 +"Co. for the conduct of its business. Such liability depends upon the respective roles assigned to the officers in a Co. . Therefore, in order to",processed_document_pdf_1976295_80.mp3 +"bring a Cas. within S. 141 of the act, the complaint must disclose the necessary facts which make a person liable. It is necessary to",processed_document_pdf_1976295_81.mp3 +"specifically aver in a complaint that at the time the offence was committed, the person accused was in charge of and responsible for the conduct",processed_document_pdf_1976295_82.mp3 +"of business of the Co. . In k.p.g. Nair vs. jindal menthol india ltd. (supra), it was held by the SC that though words of",processed_document_pdf_1976295_83.mp3 +S. 142(1) of the act need not be Inc. in a complaint as magic words but substance of the allegations read as a whole should,processed_document_pdf_1976295_84.mp3 +"answer and fulfil the requirements of the ingredients of the said provision. In katta sujatha vs. fertilisers & chemicals travancore Ltd. and anr. (supra), the",processed_document_pdf_1976295_85.mp3 +"SC explained the meaning of ""person in charge"" by observing that the term ""person in charge"" must mean that the person should be in",processed_document_pdf_1976295_86.mp3 +overall control of the day-to-day business of the Co. or firm. The person may be a party to the policy being followed by a Co. ,processed_document_pdf_1976295_87.mp3 +and yet not be in charge of the business of the Co. or may be in charge of but not in overall charge or may,processed_document_pdf_1976295_88.mp3 +"be in charge of only some part of the business. Thus, in my opinion, in order to fasten vicarious liability against a director of the",processed_document_pdf_1976295_89.mp3 +"Co. , there must be clear, specific and unambiguous allegations made in the complaint. It is not as if every direction of the accused Co. can",processed_document_pdf_1976295_90.mp3 +be roped in automatically and be proceeded with for the offence committed by the Co. under S. 138 of the act. The complainant can proceed,processed_document_pdf_1976295_91.mp3 +only against such persons who at the time of the offence committed by the Co. were in charge of and responsible to the Co. for,processed_document_pdf_1976295_92.mp3 +the conduct of its business. 'such persons' means that they were in overall control of the day-to-day business of the Co. . The averments in this,processed_document_pdf_1976295_93.mp3 +regard in the complaint must be clear. The role played by each of the accused must be clearly stated in the complaint. A bald allegation,processed_document_pdf_1976295_94.mp3 +by merely repeating the magic words mentioned in S. 141 of the act would not be enough to rope any and every director or other,processed_document_pdf_1976295_95.mp3 +"officer, manager, secretary of the Co. as the Cas. may be. 10. It is well settled that at the time of taking cognizance and issuing",processed_document_pdf_1976295_96.mp3 +"the process, the magistrate is required to apply his mind and to sec whether a Cas. is made out against the accused persons before issuing",processed_document_pdf_1976295_97.mp3 +"summons to them, as held in pepsi food ltd. And anr. vs. special judicial magistrate and ors. , the summoning of an accused in a",processed_document_pdf_1976295_98.mp3 +"Crl. Cas. is a serious matter. Crl. law cannot be seto.p. Mehra vs. raj kumari bhalla and anr. On 9 august, 2006",processed_document_pdf_1976295_99.mp3 +Support his allegations in the complaint to have the Crl. law set into motion. The order of the magistrate summoning the accused must reflect that,processed_document_pdf_1976295_100.mp3 +he has applied his mind to the facts of the Cas. and the law applicable thereto. It should be taken care that judicial process should,processed_document_pdf_1976295_101.mp3 +"not be an instrument of oppression or needless harassment, if a magistrate issues process in every Cas. without Appl. of mind, it will not only",processed_document_pdf_1976295_102.mp3 +burden the work of magistrate but it will also cause severe harassment to the persons who have been summoned. It is also well settled that,processed_document_pdf_1976295_103.mp3 +"this court has ample inherent power under S. 482, Cr.P.C. to prevent the abuse of the process of law by the inferior",processed_document_pdf_1976295_104.mp3 +courts and to see that the stream of administration of J. remains clean and pure. No doubt the magistrate can discharge the accused at any,processed_document_pdf_1976295_105.mp3 +"stage of the trial, if he considers the charge to be groundless, but that does not mean that the accused cannot approach the HC ",processed_document_pdf_1976295_106.mp3 +"under S. 482, Cr.P.C. for quashing the proceedings against him, when the complaint does not make out any Cas. against him and",processed_document_pdf_1976295_107.mp3 +"still he must undergo the agony of a Crl. trial. In view of the decision in adalat prasad vs. rooplal jindal and ors. , now",processed_document_pdf_1976295_108.mp3 +the magistrate cannot review his order on an Appl. filed by the summoned accused. If the summoned accused wants to show that he has been,processed_document_pdf_1976295_109.mp3 +"unnecessarily summoned without there being any sufficient ground for proceeding against him, he has remedy to approach this court under S. 482, code of Crl. ",processed_document_pdf_1976295_110.mp3 +"procedure and this court has ample power to quash the proceedings, in Cas. it comes to the conclusion that continuation of the proceedings in the",processed_document_pdf_1976295_111.mp3 +trial court is an abuse of the process of the court and the petitioner is being summoned unnecessarily without there being any cogent material against,processed_document_pdf_1976295_112.mp3 +"him. 11. In the light of the aforesaid principles, the facts of the present Cas. clearly show that in this Cas. , the judicial magistrate has",processed_document_pdf_1976295_113.mp3 +summoned the petitioner on the principle of vicarious liability for the offence committed by the Co. without there being any clear allegation and sufficient material,processed_document_pdf_1976295_114.mp3 +against him that he was the person in charge of and responsible for the conduct of business of the Co. at the time of commission,processed_document_pdf_1976295_115.mp3 +"of the alleged offence. In the complaint, only it has been averred that accused nos. 2 to 9 were in charge of and responsible to",processed_document_pdf_1976295_116.mp3 +the Co. for the conduct of its business. It has not been stated either in the complaint or in the preliminary evidence that the petitioner,processed_document_pdf_1976295_117.mp3 +was in overall control of the day-to-day business of the Co. . The complaint only contains the magic words of S. 141 of the act without,processed_document_pdf_1976295_118.mp3 +there being any averment as to how petitioner was in control of the day-to-day business of the Co. or was in charge of and responsible,processed_document_pdf_1976295_119.mp3 +to the Co. for the conduct of its business at the time of commission of alleged offence. It is not disputed that the petitioner was,processed_document_pdf_1976295_120.mp3 +"only a part-time director of the Co. and as per the affidavits, annexures p-2 and p-3, which have not been controverted by counsel for respondent",processed_document_pdf_1976295_121.mp3 +"No. 1, the petitioner has never been a whole time director of the Co. and he never remained in charge of and responsible for the",processed_document_pdf_1976295_122.mp3 +"day-to-day affairs/functioning of the Co. , undisputedly, the petitioner is not the signatory of the impugned cheque, thus, in my opinion, the judicial magistrate has committed",processed_document_pdf_1976295_123.mp3 +"a grave illegality while issuing to the petitioner for committing the offence under S. 138 of the act by the Co. , on the principle of",processed_document_pdf_1976295_124.mp3 +"vicarious liability. Hence, the complaint as well as the summoning order and all the subsequent proceedings qua the petitioner are liable to be quashed on",processed_document_pdf_1976295_125.mp3 +this ground. 12. I also find force in the second contention raised by counsel for the petitioner. S. 142(1) of the act provides that no,processed_document_pdf_1976295_126.mp3 +"court shall take cognizance of any offence punishable under S. 138o.p. Mehra vs. raj kumari bhalla and anr. On 9 august, 2006",processed_document_pdf_1976295_127.mp3 +"Course of the cheque. Undisputedly, in the instant Cas. , the complaint has been filed by shri v.m. Bhalla, the husband of smt. Raj kumar bhalla.",processed_document_pdf_1976295_128.mp3 +He was neither the payee nor the holder in due course of the cheque. He is also not a general or special power of attorney,processed_document_pdf_1976295_129.mp3 +"holder of his wife. He had filed the instant complaint only on the basis of the Auth. letter, which has been reproduced in Para. 7",processed_document_pdf_1976295_130.mp3 +"of this order. In the said Auth. letter, it was no where undertaken that the executant would be bound by the acts done and conducted",processed_document_pdf_1976295_131.mp3 +"on her behalf in respect of the cheques, which are subject matter of the Auth. letter. It is well settled, as has been held by",processed_document_pdf_1976295_132.mp3 +the SC in janki vashdeo bhojwani and anr. vs. indusind bank ltd. And ors. (supra) that a general or special power of attorney holder,processed_document_pdf_1976295_133.mp3 +"can appear plead and act on behalf of the party and he can also file a complaint under S. 138 of the act, but he",processed_document_pdf_1976295_134.mp3 +"cannot become a witness on behalf of the party. However, the instant complaint has not been filed by shri v.m. Bhalla being the general or",processed_document_pdf_1976295_135.mp3 +special power of attorney holder. Exactly the similar controversy was dealt with by this court in meeta rai vs. gulshan mahajan (supra) where also a,processed_document_pdf_1976295_136.mp3 +complaint under S. 138 of the act was filed on similar Auth. letter and this court observed as under: 4. The facts in the instant,processed_document_pdf_1976295_137.mp3 +"Cas. are entirely different and distinct from the Cas. of surinder singh (supra) inasmuch as in the instant Cas. , there is no document of general",processed_document_pdf_1976295_138.mp3 +power of attorney executed by smt. Sucheta mahajan in favour of her husband shri gulshan mahajan and for that matter nor even his document of,processed_document_pdf_1976295_139.mp3 +"special power of attorney authorising her husband to do certain acts for and on her behalf. Apart from it, it is relevant to note that",processed_document_pdf_1976295_140.mp3 +"the Auth. letter in nowhere undertakes that the executant, viz. , smt. Sucheta mahajan would be bound by the acts done and conducted on behalf of",processed_document_pdf_1976295_141.mp3 +her husband in respect of the matter which is the subject matter of Auth. letter. Learned counsel for the petitioner cited the judgment reported as,processed_document_pdf_1976295_142.mp3 +"u. C. Saxena, managing director, meltra machines & equipments pvt. Ltd., noida vs. shri madan mohan 1995(1) rcr (crl.) 394 : 1993(3) rcr (crl.) 391",processed_document_pdf_1976295_143.mp3 +": 1993(2) plr 161, when the learned single judge of this court held in para 7 as under- as mentioned hereinbefore, madan mohan complainant was",processed_document_pdf_1976295_144.mp3 +"neither the payee nor the holder in due course of the cheque and, therefore, he was not competent to institute the complaint. The learned trial",processed_document_pdf_1976295_145.mp3 +"magistrate has gravely erred in having failed to consider the above aspect of the Cas. . Therefore, i have no hesitation to hold that the court",processed_document_pdf_1976295_146.mp3 +below could not have taken cognizance of the complainant (complaint?) as far as the offence under S. 138 of the NI Act is concerned.,processed_document_pdf_1976295_147.mp3 +"5. By applying the ratio of the decision in the Cas. of u.c. Saxena (supra), in the instant Cas. , the complaint filed by shri gulshan",processed_document_pdf_1976295_148.mp3 +"mahajan, a person who has not been legally and validly authorised by means of a general power of attorney or a special power of attorney",processed_document_pdf_1976295_149.mp3 +cannot be held to be a properly instituted complaint in law and the same is liable to be quashed on that score alone.... 13. In,processed_document_pdf_1976295_150.mp3 +"view of the above discussion, this petition is allowed and the Crl. complaint No. 115 of 1998 (annexure p-1) filed by the respondent No. 1",processed_document_pdf_1976295_151.mp3 +"as well as the summoning order and the other consequential proceedings, only qua the petitioner, arc hereby quashed.o.p. Mehra vs. raj kumari bhalla and anr.",processed_document_pdf_1976295_152.mp3 +"On 9 august, 2006",processed_document_pdf_1976295_153.mp3 +"B.p.naveen vs. manu gowda on 3 october, 2020 in the court of the xxiii addl.chief metropoliton magistrate, nrupathunga road, bengaluru city dated this the 3rd",processed_document_pdf_148256648_1.mp3 +"day of october - 2020 present: sri. Shridhara.m, b.a., ll.m., xxiii addl.c.m.m., bengaluru city. C.c.no.16224/2017 judgment under S. 355 of Cr.P.C. complainant",processed_document_pdf_148256648_2.mp3 +": b.p.naveen, s/o.puttaswamy gowda, aged about 37 years, r/at no.276/141, 9th main road, pipe line, near airtel office, vijayanagar, bengaluru-40. (rep. By sri.s.yathiraj, adv.) v/s",processed_document_pdf_148256648_3.mp3 +"accused : manu gowda, s/o.b.mahadev, aged about 32 years, partner of m/s. Mahashila cinebandha, r/at. No.352, 2nd main, 8th cross, rajajinagar, hbcsl, nagarbhavi, bengaluru-91. (rep.by",processed_document_pdf_148256648_4.mp3 +"sri.manu.n.p, adv.) offence complained of : u/S. 138 of NI Act . Plead of the accused : not guilty. Final order : accused is convicted.",processed_document_pdf_148256648_5.mp3 +"Date of order : 03.10.2020. (shridhara.m) xxiii addl.cmm., bengaluru. Judgment 2 c.c.no.16224/2017 judgment the complainant has presented the instant complaint against the accused on 31.05.2017",processed_document_pdf_148256648_6.mp3 +"under S. 200 of Cr.P.C. for the offence punishable under S. 138 of NI Act , for dishonour of cheque of rs.10",processed_document_pdf_148256648_7.mp3 +"lakhs.b.p.naveen vs. manu gowda on 3 october, 2020",processed_document_pdf_148256648_8.mp3 +"The complainant has averred that, the accused had availed hand loan of rs.10 lakhs from him and the complainant had transferred the said amount through",processed_document_pdf_148256648_9.mp3 +"the account by way of rtgs no.sbinr52016062731436861-816868 dated:27.06.2016 from state bank of india, rpc layout branch, bengaluru, to the account of accused bearing a/c no.181700301000112,",processed_document_pdf_148256648_10.mp3 +"vijaya bank, subramanyanagar branch, bengaluru, for the purpose of business of the accused i.e., production of a feature film and he had undertaken to repay",processed_document_pdf_148256648_11.mp3 +"the same within 12 months. For the repayment of said hand loan, the accused had issued post dated cheque bearing no.522011 for sum of rs.10",processed_document_pdf_148256648_12.mp3 +"lakhs dated:31.03.2017 drawn on vijaya bank, subramanyanagar branch, bengaluru and requested to present it for encashment on the date. Judgment 3 c.c.no.16224/2017 the complainant has",processed_document_pdf_148256648_13.mp3 +"further alleged that, at the instruction of accused, he presented the said cheque for encashment through his banker viz., state bank of india, rpc layout",processed_document_pdf_148256648_14.mp3 +"branch, bengaluru, on 17.04.2017. But as per endorsement dated:19.04.2017, the said cheque came to be dishonoured for the reasons ""funds insufficient"". The complainant has further",processed_document_pdf_148256648_15.mp3 +"contended that, immediately, after receipt of the said endorsement from his banker, he brought the said fact to the notice of the accused, but he",processed_document_pdf_148256648_16.mp3 +"not responded positively. Hence, on 26.04.2017, the complainant through his counsel got issued legal notice by R.P. a.d., but the same were deliberately not",processed_document_pdf_148256648_17.mp3 +"claimed by the accused. Hence, returned with shara 'unclaimed"" on 04.05.2017. The accused neither complied the demand made by the complainant nor issued reply. Thereby,",processed_document_pdf_148256648_18.mp3 +"he committed the offence punishable under S. 138 of NI Act . Hence, filed the present complaint. 3. After receipt of the Pvt. complaint, my",processed_document_pdf_148256648_19.mp3 +predecessor in office took the cognizance and got registered the pcr and recorded the sworn statement. Since made out prima-facie grounds to proceed against the,processed_document_pdf_148256648_20.mp3 +"accused for the alleged offence, got issued process. Judgment 4 c.c.no.16224/2017 4. In response to the summons, the accused appeared through his counsel and obtained",processed_document_pdf_148256648_21.mp3 +"the bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to him, wherein, he denied the same",processed_document_pdf_148256648_22.mp3 +"and claimed to have the defence. 5. To prove the Cas. of the complainant, he himself choosen to examined as pw.1 and got marked exs.p1",processed_document_pdf_148256648_23.mp3 +"to p5. To prove his Cas. , the complainant has also choosen to examined the bank manager of vijaya bank by name smt.nandini as pw.2 and",processed_document_pdf_148256648_24.mp3 +through her got marked exs.p6 to p10. The pw.1 and pw.2 were subjected for cross-examination by the Adv. for the accused.b.p.naveen vs. manu gowda on,processed_document_pdf_148256648_25.mp3 +"3 october, 2020",processed_document_pdf_148256648_26.mp3 +"Cr.p.c, wherein the accused denied the same and the answer given by him was recorded. In support of the defence, the accused himself was examined",processed_document_pdf_148256648_27.mp3 +"as dw.1, but he not produced any documents in support of his defence and also subjected for cross-examination by the Adv. for the complainant. In",processed_document_pdf_148256648_28.mp3 +"the cross-examination of dw.1, complainant counsel got confronted seven documents and same are marked as exs.p11 to p17. Judgment 5 c.c.no.16224/2017 7. I have heard",processed_document_pdf_148256648_29.mp3 +"the arguments of both side counsels. 8. On going through the rival contentions, based on the substantial evidence available on record, the following points have",processed_document_pdf_148256648_30.mp3 +"been arising for determination: 1) whether the complainant proves beyond the reasonable doubt that, the amount covered under the ex.p1-cheque is the existence of legally",processed_document_pdf_148256648_31.mp3 +enforceable debt payable by the accused? 2) whether the complainant proves the guilt of the accused for the offence punishable under S. 138 of negotiable,processed_document_pdf_148256648_32.mp3 +"instruments act? 3) what order? 9. On appreciation of materials available on record, my findings on the above points are as under: point no.1 :",processed_document_pdf_148256648_33.mp3 +"in the affirmative point no.2 : in the affirmative point no.3 : as per final order, for the following: reasons :undisputed facts: 10. On going",processed_document_pdf_148256648_34.mp3 +"through the rival contentions of the parties, the fact that, the cause title addresses made mentioned in the present Cas. pertaining to the complainant and",processed_document_pdf_148256648_35.mp3 +"accused is not in dispute. The fact that, the accused being a proprietor of m/s. Mahashila judgment 6 c.c.no.16224/2017 cinebandha, did the production of feature",processed_document_pdf_148256648_36.mp3 +"film is not in dispute. The fact that, the accused himself is the proprietor of the said m/s. Mahashila cinebandha is not in dispute. The",processed_document_pdf_148256648_37.mp3 +"fact that, from the account of the complainant on 27.06.2016 to the proprietary concern of the accused by name m/s. Mahashila cinebandha sum of rs.10",processed_document_pdf_148256648_38.mp3 +"lakhs transferred from the account of complainant by way of rtgs as found in ex.p10, very particularly marked at ex.p10(a) is not in dispute. The",processed_document_pdf_148256648_39.mp3 +"fact that, the accused had bank account in vijaya bank, by mentioned his name as m/s. Mahashila cinebandha and he being a proprietor affixed his",processed_document_pdf_148256648_40.mp3 +"signature to the account opening form at ex.p6 is not in dispute. The fact that, as found in ex.p7 the accused being a proprietor of",processed_document_pdf_148256648_41.mp3 +m/s. Mahashila cinebandha got registered his name before the karnataka film chamber of commerce as found in ex.p7 on 19.10.2015 under the producer category is,processed_document_pdf_148256648_42.mp3 +"not in dispute. The fact that, theb.p.naveen vs. manu gowda on 3 october, 2020",processed_document_pdf_148256648_43.mp3 +"Pan card, as per ex.p8 is not in dispute. The fact that, as found in ex.p9(b) specimen signature card, the signature at ex.p9(a) and p9(b)",processed_document_pdf_148256648_44.mp3 +"belongs to the accused is not in dispute. Judgment 7 c.c.no.16224/2017 the fact that, questioned cheque at ex.p1 and the same is pertaining to his",processed_document_pdf_148256648_45.mp3 +"proprietary concern m/s. Mahashila cinebandha and being the proprietor, the accused affixed his signature at ex.p1(a) is not in dispute. The fact that, the questioned",processed_document_pdf_148256648_46.mp3 +cheque as per banker slip at ex.p2 got dishonoured for the reasons 'funds insufficient' is not in dispute. The issuance of legal notice and its,processed_document_pdf_148256648_47.mp3 +"un-service as found in ex.p5 postal acknowledgment stated as 'unclaimed' is not in dispute. The fact that, the bank statement at ex.p10 pertaining to the",processed_document_pdf_148256648_48.mp3 +accused proprietorship concern is not in dispute. As found in exs.p11 to p19 various persons have filed the separate cheque bounce cases against the accused,processed_document_pdf_148256648_49.mp3 +"is not in dispute. As found in exs.p13 and p15, the accused and his proprietary concern got convicted in respect of admitted amount made mentioned",processed_document_pdf_148256648_50.mp3 +"therein in pursuance of compromise is not in dispute. 11. Point nos.1 and 2: since both the points are connected with each other, they have",processed_document_pdf_148256648_51.mp3 +taken together for common discussion in order to avoid repetition of facts. The pw.1 to prove his Cas. choosen to examined himself and filed Aff. ,processed_document_pdf_148256648_52.mp3 +"by reiterating the complaint averments in toto, and produced the documents at exs.p1 to p5, they are: judgment 8 c.c.no.16224/2017 a) ex.p1 is the cheque",processed_document_pdf_148256648_53.mp3 +"bearing no.522011 issued by the accused for sum of rs.10 lakhs dated:31.03.2017, drawn on vijaya bank, subramanyanagar branch, bengaluru. B) ex.p1(a) is the alleged signature",processed_document_pdf_148256648_54.mp3 +of accused. C) ex.p2 is the bank memo dated:19.04.2017. D) ex.p3 is the legal notice dated:26.04.2017. E) ex.p4 is the postal receipt. F) ex.p5 is,processed_document_pdf_148256648_55.mp3 +"the unclaimed R.P. a.d cover. In the cross-examination of dw.1, complainant counsel got confronted seven documents and same are marked as exs.p11 to p17.",processed_document_pdf_148256648_56.mp3 +"They are: a) ex.p11 is the certified copy of Pvt. complaint in c.c.no.50183/2018 filed before learned 57th acmm, bengaluru by one pranesh rao against accused",processed_document_pdf_148256648_57.mp3 +"herein.b.p.naveen vs. manu gowda on 3 october, 2020",processed_document_pdf_148256648_58.mp3 +"Learned 26th acmm, bengaluru by surabhi souhardha credit co-op ltd., against accused concern herein. C) ex.p13 is the certified copy of judgment in c.c.no.17345/2017 on",processed_document_pdf_148256648_59.mp3 +"the file of learned xxv acmm, bengaluru. D) ex.p14 is the certified copy of Pvt. complaint in c.c.no.28908/2017 filed before learned 22nd acmm, bengaluru by",processed_document_pdf_148256648_60.mp3 +one p.dhiraj against accused herein. E) ex.p15 is the certified copy of judgment in c.c.no.25203/2017 on the file of learned iv addl. Scch and xxx,processed_document_pdf_148256648_61.mp3 +"acmm, bengaluru. F) ex.p16 is the certified copy of Pvt. complaint in c.c.no.54893/2017 filed before learned 57th acmm, bengaluru by one varadarajalu gowda against accused",processed_document_pdf_148256648_62.mp3 +"herein and his concern and judgment 9 c.c.no.16224/2017 g) ex.p17 is the certified copy of Pvt. complaint in c.c.no.54894/2017 filed before learned 57th acmm, bengaluru",processed_document_pdf_148256648_63.mp3 +"by one varadarajalu gowda against accused herein and his concern. 12. That apart, to prove his Cas. , the complainant got choosen to examined the bank",processed_document_pdf_148256648_64.mp3 +manager of vijaya bank by name smt.nandini as pw.2 and through her got marked exs.p6 to p10. They are: a) ex.p6 is the certified copy,processed_document_pdf_148256648_65.mp3 +of bank account opening form for individuals pertaining to mahashaila cine bandha. B) ex.p6(a) is the signature of accused. C) ex.p7 is the certified copy,processed_document_pdf_148256648_66.mp3 +of letter dated:19.10.2015 issued by the karnataka film chamber of commerce. D) ex.p8 is the certified copy of pan card pertaining to accused herein. E),processed_document_pdf_148256648_67.mp3 +ex.p9 is the certified copy of specimen signature card pertaining to accused herein issued by vijaya bank. F) ex.p9(a) and p9(b) are the signatures of,processed_document_pdf_148256648_68.mp3 +accused and g) ex.p10 is the statement of account for the period from 01.06.2016 to 01.03.2017 pertaining to mahashaila cinebandha. The pw.1 and pw.2 were,processed_document_pdf_148256648_69.mp3 +"subjected to the cross-b.p.naveen vs. manu gowda on 3 october, 2020",processed_document_pdf_148256648_70.mp3 +"13. In order to prove the defence of the accused, he himself choosen examined as dw.1 and he not produced any document judgment 10 c.c.no.16224/2017",processed_document_pdf_148256648_71.mp3 +"in support of his contention. The dw.1 subjected to the cross- examination by the Adv. for the complainant. 14. After cross-examination of pw.1, the incriminating",processed_document_pdf_148256648_72.mp3 +"evidence made against the accused was read over and explained to him as required under S. 313 of Cr.P.C. , wherein he",processed_document_pdf_148256648_73.mp3 +"denied the same including the receipt of legal notice, but gave his statement by stating that, he not borrowed money from complainant nor issued questioned",processed_document_pdf_148256648_74.mp3 +"cheque for its repayment. In that line, he himself choosen to entered into witness box and filed Aff. evidence, the same is not opposed by",processed_document_pdf_148256648_75.mp3 +"the other side, hence, the Aff. evidence on oath taken on record and examined him as dw.1. In the Aff. evidence of the accused, he",processed_document_pdf_148256648_76.mp3 +"contended that, he is aware of the facts and circumstances of the present Cas. , hence, he deposed. He also contended that, he is a businessman",processed_document_pdf_148256648_77.mp3 +doing film production for the last many years and he has not received any amount from the complainant. The complainant has transferred an amount of,processed_document_pdf_148256648_78.mp3 +"rs.10 lakhs to m/s. Mahashila cinebandha account which was repayable with interest. He also contended that, at that time, availing loan by the firm, the",processed_document_pdf_148256648_79.mp3 +"judgment 11 c.c.no.16224/2017 complainant had insisted and took 2 signed blank cheques for security purpose. The accused has further contended that, the said loan amount",processed_document_pdf_148256648_80.mp3 +"was repaid to the complainant by cash. The accused requested the complainant to return the said cheques which were given as security purpose. But, the",processed_document_pdf_148256648_81.mp3 +"complainant told that, he kept cheques somewhere and will return them as when he trace on them. But failed to return the same, inspite of",processed_document_pdf_148256648_82.mp3 +"repeated requests made by him, now the complainant got misuse the present cheque for making unlawful gain. The accused has further contended that, he has",processed_document_pdf_148256648_83.mp3 +not received any legal notice from the complainant and he managed to got the endorsement from the postal Auth. and filed the false complaint. The,processed_document_pdf_148256648_84.mp3 +"accused also strongly contended that, the complaint is not maintainable for non-joinder of the party. Complainant has made transactions with the firm name m/s. Mahashila",processed_document_pdf_148256648_85.mp3 +"cinebandha and not with accused. The bank official, the pw.2 got examined and deposed that, the account is on the firm name and not individual",processed_document_pdf_148256648_86.mp3 +"name. As such, there is no liability on the accused towards the complainant. There is no legally liable debt payable by the accused to the",processed_document_pdf_148256648_87.mp3 +complainant. The judgment 12 c.c.no.16224/2017 complainant got misused the said cheques given to him as security purpose by the firm and now with a view,processed_document_pdf_148256648_88.mp3 +"to harass the accused, he filed the false Cas. . Also misused Anr. cheque bearing no.522010 drawn on vijaya bank, subramanyanagar branch, bengaluru-10 and filed Anr. ",processed_document_pdf_148256648_89.mp3 +"Cas. through his friend by name kantharaj in c.c.no.16225/2017, which is pending before this court. The complainant filed the false Cas. . Hence, prayed for dismissal",processed_document_pdf_148256648_90.mp3 +"of the present complaint. The accused not choosen to produce any document in support of his contention, but he subjected for cross-examination. 15. The complainant",processed_document_pdf_148256648_91.mp3 +"has filed the present Cas. against accused based on the questioned cheque stating that, the same were issued by the accused for repayment of loan",processed_document_pdf_148256648_92.mp3 +"borrowed from him for theb.p.naveen vs. manu gowda on 3 october, 2020",processed_document_pdf_148256648_93.mp3 +"Be dishonoured, despite, issued legal notice, he avoided to receive the same, not paid the amount, hence, the complaint. 16. Whereas, the accused has clearly",processed_document_pdf_148256648_94.mp3 +"admitted the receipt of amount of rs.10 lakhs from the complainant for the purpose of production of feature film and he clearly contended that, the",processed_document_pdf_148256648_95.mp3 +"said amount was paid by the complainant to his proprietary concern by judgment 13 c.c.no.16224/2017 name m/s. Mahashila cinebandha not to him, therefore, he is",processed_document_pdf_148256648_96.mp3 +"not liable to pay the said money. More particularly, he contended that, while borrow the said money from the complainant, he took 2 singed blank",processed_document_pdf_148256648_97.mp3 +"cheques, despite, accused got cleared the loan amount, he filed the false Cas. by made use of ex.p1 cheque and misusing Anr. cheque through his",processed_document_pdf_148256648_98.mp3 +"friend filed Anr. cheque bounce Cas. in c.c.no.16225/2017. More particularly, he defended unless brought the proprietary concern, as the accused is not liable to pay",processed_document_pdf_148256648_99.mp3 +"any money. 17. On going through the rival contentions of the parties, it made clear that, the accused though admitted the receipt of rs.10 lakhs",processed_document_pdf_148256648_100.mp3 +"from the complainant by way of rtgs on 27.06.2016, he categorically contended that, it was not received by him, but it was paid to his",processed_document_pdf_148256648_101.mp3 +"proprietary concern and the same is not arrayed as party. Hence, Cas. is not maintainable. 18. On going through the rival contentions of the parties,",processed_document_pdf_148256648_102.mp3 +"it made clear that, as per S. 118(g) of NI Act , it shall be presume that, unless the contrary is prove the holder of",processed_document_pdf_148256648_103.mp3 +"the cheque, the complainant raised the cheque for discharge of legal liability, this presumption is rebuttable. As per S. 139 and 138 of negotiable instruments",processed_document_pdf_148256648_104.mp3 +"act, it should be judgment 14 c.c.no.16224/2017 presume that, cheque was drawn for discharge of liability of drawer, it is presumption under law. 19. In",processed_document_pdf_148256648_105.mp3 +"a decision reported in ilr 2006 kar 4672, in a Cas. between J. ramraj v/s. Hiyaj khan. Wherein, it was pleased to observe that, mere",processed_document_pdf_148256648_106.mp3 +"denial of issuing cheque, whether he sufficient to discharge of initial burden or not. But the Hon'ble HC of karnataka it was pleased to",processed_document_pdf_148256648_107.mp3 +"held that, mere denial of issuing cheque is not be sufficient, as it is time and again noted that, once the cheque is issued duly",processed_document_pdf_148256648_108.mp3 +"singed by the petitioner/accused, the presumption caused against him as per S. 139 of NI Act . By virtue of the said dictum, taking the",processed_document_pdf_148256648_109.mp3 +"contention of mere denial is not enough, but to rebut the Cas. of complainant as well as statutory presumption, the accused has to make out",processed_document_pdf_148256648_110.mp3 +contrary circumstances as per rider made mentioned in Ss. 118 and 139 of NI Act . In a decision reported in 2019 scc online supreme,processed_document_pdf_148256648_111.mp3 +"court 789, in a Cas. between ebha arjun jadeja v/s. State of gujarat. Wherein, it was pleased to observe that, the presumption which was needed",processed_document_pdf_148256648_112.mp3 +"to be drawn by the court under S. 118 of NI Act , would oblige the court to presume that, the cheque had been issued",processed_document_pdf_148256648_113.mp3 +"for consideration and only contrary is prove, such judgment 15 c.c.no.16224/2017 presumption would hold the ground. Except the bare denial nothing has found to come",processed_document_pdf_148256648_114.mp3 +on record to dislodge the positive proof that has been adduced by the appellant/accused. The twist of propartimality should guide the construction and interpretation of,processed_document_pdf_148256648_115.mp3 +reveals onus clauses and the accused cannot be accepted to discharge an unduly high standard of proof. In the absence ofb.p.naveen vs. manu gowda on,processed_document_pdf_148256648_116.mp3 +"3 october, 2020",processed_document_pdf_148256648_117.mp3 +"Persuasive burden. 20. It is settled position that, when the accused has to rebut the presumption under S. 139 of NI Act , the standard",processed_document_pdf_148256648_118.mp3 +"of proof doing so is that of ""preponderance of probabilities"", therefore, if the accused is able to raised the probable defence, which creates a doubt",processed_document_pdf_148256648_119.mp3 +"the existence of legally enforceable debt or liability, the prosecution can fail. As clarified in the various citations, the accused can rely on the materials",processed_document_pdf_148256648_120.mp3 +"submitted by the complainant in order to raise such a defence and it is conceivable that, in some cases the accused may not need to",processed_document_pdf_148256648_121.mp3 +"adduce evidence of his own. The accused also made rely upon presumption of fact, for instance, those mentioned in S. 114 of evidence act, to",processed_document_pdf_148256648_122.mp3 +"rebut the presumption arising under Ss. 118 and 139 of NI Act . Judgment 16 c.c.no.16224/2017 21. From the above, it made clear that, by",processed_document_pdf_148256648_123.mp3 +"virtue of Ss. 118 and 139 of NI Act , it is the initial burden on the accused to prove his probable defence. In this",processed_document_pdf_148256648_124.mp3 +"Cas. , the accused also entered into witness box and examined as dw.1. In his Aff. evidence, the accused got clearly admitted the receipt of rs.10",processed_document_pdf_148256648_125.mp3 +"lakhs from the account of complainant by way of rtgs as found in ex.p10, but he contended, it was received by m/s. Mahashila cinebandha, not",processed_document_pdf_148256648_126.mp3 +"by him and it was repayable with interest. On going through the contents made mentioned in para no.2 of his Aff. , he categorically admitted that,",processed_document_pdf_148256648_127.mp3 +sum of rs.10 lakhs got received from the account of complainant through the account of his proprietary concern by name m/s. Mahashila cinebandha. During the,processed_document_pdf_148256648_128.mp3 +"course of his cross-examination, he categorically admitted that: ""€□‚ƒ„g…†. €„‚‡ˆ‰š‹ˆ œ□žaz„s □„□„□ ‘□’“‘□”“lg…‰‘… ƒ„aƒ□• jaz„g□ ƒ„j. D ƒ„aƒ□•u□ □–.6 g„ ‘„“pˆg„ □ˆ□□—ž˜□□š ‘□’“‘□”“lg… jaz„g□ ƒ„j.",processed_document_pdf_148256648_129.mp3 +™□ˆap„ 27.06.2016 g„az„‚ □–.10 g„š› pˆtœœz„av□ g„—.10 □p„ž ÿ.–.□„ š□… p„‚€„iˆg… g„€„g„ sˆv□¡‚az„ □„□„□ p„a‘„□ai„‚ €□‚ƒ„g…†. €„‚‡ˆ‰š‹ˆ œ□žaz„s ƒ„aƒ□•u□ d€„iˆ dvz□. Z„—j□„ ‰š¢£p□ai„‚š› pˆtœœg„‚€„ ¤ˆƒ„z„š›,processed_document_pdf_148256648_130.mp3 +"□ˆ□„‚ €ˆƒ„ z□¥š□□ jaz„g□ ƒ„j. €□‚ƒ„g…†. €„‚‡ˆ‰š‹ˆ œ□žaz„sz„ ‘„g„€ˆv □ˆ□„‚ ‘□’“‘□”“lg… dv, □ˆ□□—ž˜□□š €„¦€„‡„jƒ„‚v□§š□□ jaz„g□ ƒ„j. Judgment 17 c.c.no.16224/2017 ƒˆqžai„‚‚ ƒ„¨v„b €„‚‚az„‚€„g□z„‚ □ˆ□„‚ d ƒ„aƒ□•ai„‚š›",processed_document_pdf_148256648_131.mp3 +"□t£ai„‚u„¤„□„‚□ v□u□z„‚p□—¤„‚©v„□§š□□, p□□ƒ„ €„iˆq„□‚ œž˜a™u„¤„‚ ezˆ¥g□."" 22. On perusal of testimony of pw.1, he categorically admitted that, m/s. Mahashila cinebandha is the proprietary concern of",processed_document_pdf_148256648_132.mp3 +"accused is been clearly admitted. More so, from the categorically admitted as found in ex.p6, he alone the proprietor is not in dispute. More categorically",processed_document_pdf_148256648_133.mp3 +"he admitted that, on 27.06.2016 as found in ex.p10 rs.10 lakhs has been transferred by the complainant by way of rtgs to the account of",processed_document_pdf_148256648_134.mp3 +"accused is also stands proved. More particularly, the accused categorically admitted, he resides in the cause title address. That apart, the accused had categorically admitted",processed_document_pdf_148256648_135.mp3 +"that, on behalf of his proprietary concern m/s. Mahashila cinebandha, he alone did transaction andb.p.naveen vs. manu gowda on 3 october, 2020",processed_document_pdf_148256648_136.mp3 +"23. From the meaningful reading of the above clear cut admission made by the accused, it is convenience that, without the proprietary concern of accused",processed_document_pdf_148256648_137.mp3 +"by name m/s. Mahashila cinebandha, the accused cannot take any identification. The role of the accused is merged with his business proprietary concern. Both the",processed_document_pdf_148256648_138.mp3 +"proprietary concern and accused are one and the same. Judgment 18 c.c.no.16224/2017 the proprietary concern by name m/s. Mahashila cinebandha is not a leaving person,",processed_document_pdf_148256648_139.mp3 +"but it is legal entity getting recognization through the accused alone. It is not the contention of accused that, other than him any other proprietors",processed_document_pdf_148256648_140.mp3 +or partners or any other directors or responsible persons are available to share the profit or loss or bare the risk under the vicarious liability.,processed_document_pdf_148256648_141.mp3 +"24. On perusal of the clear cut admission made by the accused, it made clear that, the very concern of the accused not comes under",processed_document_pdf_148256648_142.mp3 +"the definition S. 141 of NI Act . S. 141 deals about offence by companies. However, a person committed an offence punishable under S. 138",processed_document_pdf_148256648_143.mp3 +"of NI Act , is a Co. , every persons who at the time of offence was committed, was in-charge of, and was responsible to the",processed_document_pdf_148256648_144.mp3 +Co. for conduct of the business of the Co. as well as the Co. shall be deemed to be guilty of the offence and shall,processed_document_pdf_148256648_145.mp3 +"be liable to be proceeded against and punished, subject to comply the other provisos. 25. In the defense of the accused, it is not the",processed_document_pdf_148256648_146.mp3 +"contention his that, he run Co. which covers under S. 141 of NI Act . Though, he contended, he is havilng a proprietary concern of",processed_document_pdf_148256648_147.mp3 +"m/s. Mahashila cinebandha, he not judgment 19 c.c.no.16224/2017 choosen to produce any of its registration certificate. However, the pw.2 - bank manager got produced certain",processed_document_pdf_148256648_148.mp3 +"documents, which submitted by the accused at exs.p6 to p10 at the time of opening of account in the name of m/s. Mahashila cinebandha, discloses",processed_document_pdf_148256648_149.mp3 +"he being a proprietor did so. Therefore, it made clear that, in order to avoid the risk, the accused for his convenience cannot take such",processed_document_pdf_148256648_150.mp3 +"kind of defence. Without the accused, his legal person which is proprietary concern would not get any recognization. Accordingly, without the said concern the accused",processed_document_pdf_148256648_151.mp3 +is not getting any identity in doing the business of production of films in the name of m/s. Mahashila cinebandha. 26. On meticulous perusal of,processed_document_pdf_148256648_152.mp3 +"the cause title address of accused, it is mentioned that, sri.manu gowda s/o.b.mahadev, partner of m/s. Mahashila cinebandha, residing at no.352, 2nd main, 8th cross,",processed_document_pdf_148256648_153.mp3 +"rajajinagar hbcsl, nagarabhavi, bengaluru-91. On meticulous perusal of the said address, it discloses the identity of the accused as well as his proprietary concern by",processed_document_pdf_148256648_154.mp3 +"name m/s. Mahashila cinebandha. Though, complainant has wrongly pleaded as partner, but the dw.1 categorically admitted that, he is a sole proprietor of the said",processed_document_pdf_148256648_155.mp3 +"concern. Hence, Appl. of S. 141 of NI Act would not arise. The addresses made mentioned in the cause title of him as well",processed_document_pdf_148256648_156.mp3 +"as his proprietary judgment 20 c.c.no.16224/2017 concern also been admitted by him. Under such circumstances, how the accused has been placed his defence that, he",processed_document_pdf_148256648_157.mp3 +not received money only his proprietorship concern was received and it only liable and without arrayed m/s. Mahashila cinebandha as a party to the present,processed_document_pdf_148256648_158.mp3 +"Cas. , is not maintainable. Even accused not explained other then him, who is held responsible for the acts of his preparatory concern. Since, the status",processed_document_pdf_148256648_159.mp3 +"ofb.p.naveen vs. manu gowda on 3 october, 2020",processed_document_pdf_148256648_160.mp3 +"Concern, mere because of his proprietary concern not arrayed separately as party, but it was arrayed together with accused, the accused cannot take such kind",processed_document_pdf_148256648_161.mp3 +"of bald and baseless defence, which is unknown to law. Thereby, the accused has failed to prove that, the present Cas. is not maintainable without",processed_document_pdf_148256648_162.mp3 +"there being his proprietary concern arrayed as separate party. 27. As re-produced above, the accused in his Aff. evidence clearly admitted the receipt of rs.10",processed_document_pdf_148256648_163.mp3 +"lakhs from the complainant for the purpose of business of his proprietary concern. He pleaded that, the said loan was received by his m/s. Mahashila",processed_document_pdf_148256648_164.mp3 +"cinebandha account, which was repayable with interest. If so, who is responsible to repay the loan with interest, other than the accused is also not",processed_document_pdf_148256648_165.mp3 +"been clearly explained by the accused. The accused failed to prove that, the present Cas. is bad on account judgment 21 c.c.no.16224/2017 of none arrayed",processed_document_pdf_148256648_166.mp3 +"his proprietary concern as separate party, but on account of mentioning his name and concern in the cause title address, as he is sole proprietor",processed_document_pdf_148256648_167.mp3 +"and his capacity is merged with his proprietary concern, there is no serious lack from the part of complainant in arraying the parties. 28. The",processed_document_pdf_148256648_168.mp3 +"accused in his Aff. has contended that, he repaid loan amount by way of cash to the complainant. Though, he got misused 2 signed blank",processed_document_pdf_148256648_169.mp3 +"cheques obtained as security and by misusing the same for making illegal gain, apart from filing the present Cas. through his friend filed Anr. Cas. ",processed_document_pdf_148256648_170.mp3 +"in c.c.no.16225/2017. Though, accused has contended as such, in his cross-examination he deposed that: ""□„ š□… p„‚€„iˆg… g„€„ju□ g„—.10 □p„ž €„‚g„ªœz„ žu□« □„□„□š› zˆr‹□ e□›.",processed_document_pdf_148256648_171.mp3 +Dz„g□ d ‡„t€„□„‚□ ‡„av„ ‡„av„€ˆv €„‚g„ªœz□¥š□□. Ƒ„z„j □„ š□… p„‚€„iˆg… g„€„g„ sˆv□¡‚az„ □„□„□ sˆv□□u□ dg…nfjƒ… €„‚‚sˆav„g„ g„—.10 □p„ž d€„iˆ dvz□ jaz„g□ ƒ„j. D pˆg„tp□¬ ƒ„z„j,processed_document_pdf_148256648_172.mp3 +"‡„t wšg„‚€„ªuˆv □–.1 g„ z□p„¬□„‚□ dv„□u□ p□—n-z□¥š□□az„g□ ƒ„j. Ƒˆqžai„‚‚ ƒ„¨v„b €„‚‚az„‚€□g„z„‚, □„ š□… p„‚€„iˆg… g„€„ju□ ®„sz„“v□uˆv v„‹ˆ g„—.10 □p„žz„ jg„q„‚ z□p„‚¬u„¤„□„‚□ dv„□u□ p□—n-z□¥□„‚. □„□„u□ œ□€„iˆ",processed_document_pdf_148256648_173.mp3 +"ÿq„‚u„q□ai„iˆz„ □„av„g„ ‡„av„ ‡„av„€ˆv ‡„t žg„‚w§z„¥ pˆg„t, d □„u„z„□„‚□ ‘„¯□„b □„□„□ ®ˆ¦ap…□„ sˆv□u□ ‡ˆq cš›az„, –ai„iˆ£™u□ z□p… cx„€ˆ judgment 22 c.c.no.16224/2017 dg…nfjƒ… €„‚‚sˆav„g„ □šq„□‚ v□—az„g□",processed_document_pdf_148256648_174.mp3 +"ev„‚§. ‡ˆuˆv □„u„zˆvai□‚š d ‡„t€„□„‚□ –ai„iˆ£™u□ €„‚g„ªœz□¥□„‚. ‡„aap□zˆg„g„‚ □„€„‚u□ œ□€„iˆ ‹ˆ®„sz„š›zˆ¥u„ žaz„ ‡„t€„□„‚□ □„€„‚° sˆv□u□ d€„iˆ €„iˆq„‚vˆ§g□. Œ□€„iˆ ƒ□—švˆu„, ‡„aap□zˆg„g„‚ □„±„-z„š›zˆ¥u„ ƒ„t² €□—v„§z„ ‡„t€„□„‚□ □„€„‚u□",processed_document_pdf_148256648_175.mp3 +"□„u„zˆv □šq„‚vˆ§g„□. –ai„iˆ£™u□ □„u„zˆv ‡„t€„□„‚□ p□—l- žu□« œ¨šp„³w ‘„q□ai„‚□‚ v□—az„g□ eg„š□›, pˆg„t ƒ□□š‡„z„š› dv„□az„ ai„iˆ€„¯z□š zˆr‹□ ‘„q□™□›. –ai„iˆ£™u□ □ˆ□„‚ □–.1 g„ z□p„¬□„‚□ €„iˆv„“ p□—n-z„¥g„— p„—q„",processed_document_pdf_148256648_176.mp3 +ƒ„‚¤„‚© ‡□š¤„‚w§z□¥š□□ jaz„g□ ƒ„jai„‚□›. Ƒˆqžai„‚‚ ƒ„¨v„b €„‚‚az„‚€„g□z„‚ d z□q¬□„š› eg„‚€„ ƒ„´ €„iˆv„“ □„□„□z„‚. Gªz„ ®„sw£ €„iˆrg„‚€„ €„g„ □„□„□z„□› jaz„‚ □„‚rai„‚‚vˆ§g□. □ˆ□□š –ai„iˆ£™u□ □–.1 g„ z□p„¬□„‚□,processed_document_pdf_148256648_177.mp3 +"®„sw£ €„iˆr p□—n-z„¥g„— ƒ„‚¤„‚© ‡□š¤„‚w§z□¥š□□ jaz„g□ ƒ„jai„‚□›.""b.p.naveen vs. manu gowda on 3 october, 2020",processed_document_pdf_148256648_178.mp3 +"That, he got repaid rs.10 lakhs to the complainant, he had no document, but deposed that, step by step he repaid. If at all, he",processed_document_pdf_148256648_179.mp3 +"repaid the amount in installments to the complainant definitely, necessary particulars ought to disclosed, as to, when, where and to whom he got repaid such",processed_document_pdf_148256648_180.mp3 +"amount, but no such explanation is forth coming from his side. It is significant fact to note that, though he is claimed repaid the entire",processed_document_pdf_148256648_181.mp3 +"amount to the complainant, admittedly, judgment 23 c.c.no.16224/2017 not produced any document. At least, he could have suggested those particulars as to the repayment to",processed_document_pdf_148256648_182.mp3 +"the pw.1, but no such suggestion is made. Unless produce necessary documents as to repayment ,mere plausible defence taken by the accused cannot be acceptable.",processed_document_pdf_148256648_183.mp3 +"The dw.1 in his cross-examination has mentioned above, clearly admitted rs.10 lakhs were remitted to his account and for its repayment got issued questioned cheque",processed_document_pdf_148256648_184.mp3 +"at ex.p1. But he volunteers that, for the security of rs.10 lakhs, he got issued 2 signed blank cheques. In order to show that, he",processed_document_pdf_148256648_185.mp3 +"got issued 2 signed blank cheques to the complainant, its particulars were not disclosed by him. Mere his say, without any proof it cannot be",processed_document_pdf_148256648_186.mp3 +"acceptable, as the statutory presumption as well as the Cas. placed by the complainant as to passing of consideration and issuance of questioned cheque is",processed_document_pdf_148256648_187.mp3 +"been clearly admitted by the accused. 30. The accused in the above said testimony has deposed that, whenever he got released the film, stage by",processed_document_pdf_148256648_188.mp3 +"stage he got received money and therefore, he is not able to deposit the money to his account and later repaid to the complainant. He",processed_document_pdf_148256648_189.mp3 +"stated, it was impediment to him, as he received cash from the distributor, he returned to the complainant. He also deposed that, when his film",processed_document_pdf_148256648_190.mp3 +"was in profit, the distributors used to money to his account. When judgment 24 c.c.no.16224/2017 they were in loss, smaller amount would returned by way",processed_document_pdf_148256648_191.mp3 +"of cash. The profit and loss is the his look out in his business. But, in the Cas. on hand, it is him to manifest",processed_document_pdf_148256648_192.mp3 +"his probable defence as to repayment of rs.10 lakhs to the complainant. Admittedly, he deposed that, at the time of when he repaid the loan",processed_document_pdf_148256648_193.mp3 +"amount to the complainant, since he was close to him, he not collected any document from the complainant. It was suggestion made to him that,",processed_document_pdf_148256648_194.mp3 +"in respect of payment of amount, though accused got issued the ex.p1 cheque, he deposed falsely, but he denied the same. The dw.1 has deposed",processed_document_pdf_148256648_195.mp3 +"that, signature at ex.p1 is only of him and rest of filling are not made by him and he denied the suggestion that, though he",processed_document_pdf_148256648_196.mp3 +"himself got filled the said cheque and given to complainant and deposed falsely. As admitted by accused, in order to show that, he repaid the",processed_document_pdf_148256648_197.mp3 +"amount to the complainant on installments admittedly no document is been placed. It is pertinent to note that, accused was doing production of film in",processed_document_pdf_148256648_198.mp3 +"the name of his proprietary concern by his active participation. For production of film it requires huge money, therefore, for arranging money either for income",processed_document_pdf_148256648_199.mp3 +"or for expenses, he need to maintain necessary documents. Amount of rs.10 lakhs is not a smaller amount, therefore, either he gathered the said amount",processed_document_pdf_148256648_200.mp3 +"or he repaid to the complainant, he needs to furnish better particulars, judgment 25 c.c.no.16224/2017 but he not did so, thereby, failed to establish that,",processed_document_pdf_148256648_201.mp3 +"he repaid rs.10 lakhs to the complainant. 31. In that regard, in the cross examination of accused, he deposed that: ""€□‚ƒ„g…†. €„‚‡ˆ‰š‹ˆ œ□žaz„s crai„‚š› v„ai„iˆgˆz„",processed_document_pdf_148256648_202.mp3 +"œ□€„iˆz„ €„¦€„‡ˆg„z„ žu□« ƒ„z„j p„a‘„□ai„‚š› ‹□p„¬‘„v„“€„□„‚□ □€„£‡„u□ €„iˆrz□¥š□□. □„□„□ ƒ„aƒ□•ai„‚ ‡□ƒ„j□„š› dzˆai„‚ v□ju□ ‘ˆ€„wƒ„‚w§z□¥š□□. □ˆ□„‚b.p.naveen vs. manu gowda on 3 october, 2020",processed_document_pdf_148256648_203.mp3 +"–ai„iˆ£™u□ g„—.10 □p„ž €„‚g„ªœz„ žu□« □„□„□ cx„€ˆ ƒ„aƒ□•ai„‚ dzˆai„‚ v□ju□ ‘ˆ€„w €„g„z„š› pˆtœœ□›. □ˆ□„‚ ‰p□žai„‚□„‚□ v„–µœp□—¤„‚©€„ ƒ„□‚€ˆv, –ai„iˆ£™u□ g„—.10 □p„ž€„□„‚□ €„‚g„ªœz□¥š□□ jaž‚zˆv ƒ„‚¤„‚© ƒˆz„s□□ €„iˆq„‚w§z□¥š□□",processed_document_pdf_148256648_204.mp3 +"jaz„g□ ƒ„jai„‚□›."" 32. On going through the said testimony of dw.1, he categorically deposed that, in respect of production of film under his proprietary concern",processed_document_pdf_148256648_205.mp3 +"he used to maintain account and used to pay IT personally as well as in the name of his concern. He categorically admitted that,",processed_document_pdf_148256648_206.mp3 +"in respect of repayment of rs.10 lakhs to the complainant, as he alleged not disclosed in his IT returns. The sum of rs.10,00,000/ is",processed_document_pdf_148256648_207.mp3 +"not a smaller amount. If at all, he did so, definitely, could have been reflected, judgment 26 c.c.no.16224/2017 but for the reasons better known to",processed_document_pdf_148256648_208.mp3 +"him, he taken such contention. There was suggestion made to dw.1 that, in order to avoid the punishment and payment of cheque amount to the",processed_document_pdf_148256648_209.mp3 +"complainant, the accused deposed falsely, but he denied. On appraisal of the rival contention of the parties raised in the evidence of dw.1 facts remains",processed_document_pdf_148256648_210.mp3 +"that, the complainant got paid rs.10 lakhs to the proprietary concern of accused and he made use of the money is not in dispute. The",processed_document_pdf_148256648_211.mp3 +"accused with sole proprietary concern made use of money for his production of film. Such being the fact, if at all, he repaid the money",processed_document_pdf_148256648_212.mp3 +"definitely, some documents or witnesses should reveal those facts, in that regard, no evidence or explanation is been placed. Even during the course of cross",processed_document_pdf_148256648_213.mp3 +"of pw.1, no suggestion is made, as to its repayment, therefore, the fact remains that, accused being a sole proprietor of his m/s. Mahashila cinebandha",processed_document_pdf_148256648_214.mp3 +"not repaid the amount covered under the cheque and now claiming that, he is repaid. There is no substance in the probable defence taken by",processed_document_pdf_148256648_215.mp3 +"the accused. 33. The accused has contended that, legal notice is not served on him. But the postal cover returned at ex.p5 clearly endorsed that,",processed_document_pdf_148256648_216.mp3 +"it was unclaimed. Prior to that, it was also endorsed that, on 27.04.2017 and 28.04.2017 the concerned postman went to the admitted address of the",processed_document_pdf_148256648_217.mp3 +"accused, it was mentioned that, door judgment 27 c.c.no.16224/2017 locked intimation delivered. Despite, delivered the intimation, the accused has not collected the legal notice. It",processed_document_pdf_148256648_218.mp3 +"discloses that, wantonly he avoided receiving the same. When he is residing in the said address, the concerned post man went to deliver the intimation,",processed_document_pdf_148256648_219.mp3 +"none other than present and claim the same. It discloses the bonafidness of the accused. If at all, his contention he not resides in the",processed_document_pdf_148256648_220.mp3 +"given address, then it could have been presume that, the postal Auth. wrongly made the note, but it is not his contention, therefore, it can",processed_document_pdf_148256648_221.mp3 +"draw the inference that, since he knew the contents of legal notice at ex.p3, he avoided to receive. The complainant has complied the mandatory provision",processed_document_pdf_148256648_222.mp3 +"maintained the present Cas. . Despite, issued legal notice, the accused not came forward to set right of his wrong committed by him by way of",processed_document_pdf_148256648_223.mp3 +"pay the money covered under the questioned cheque. Even, the said offence is continues still further. 34. The obligation on the prosecution may be discharge",processed_document_pdf_148256648_224.mp3 +"with the help of presumption of law or facts. In this Cas. , evidence adduced by the complainant showing the reasonable and probable, on non-existence of",processed_document_pdf_148256648_225.mp3 +"the presume fact. The accused can prove the non existence of consideration by raising the probable defence, if the accused is prove to have discharged",processed_document_pdf_148256648_226.mp3 +"the initial onus of proofb.p.naveen vs. manu gowda on 3 october, 2020",processed_document_pdf_148256648_227.mp3 +"Or doubtful or the same was illegal, the onus would shift to the complainant, who will be obliged to prove it has a matter of",processed_document_pdf_148256648_228.mp3 +fact and upon its failure to prove would disentitled him to grant of relief on the basis of negotiable instrument. The burden on the accused,processed_document_pdf_148256648_229.mp3 +of proving the non-existence of the consideration can either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon,processed_document_pdf_148256648_230.mp3 +which he relies. 35. The bare denial of present consideration apparently does not appear to the any defence. Something which is probable has to be,processed_document_pdf_148256648_231.mp3 +"brought on record for getting benefit of shifting the onus of proving to the complainant. To disprove the presumption, the accused has to bring on",processed_document_pdf_148256648_232.mp3 +"record such facts and circumstances upon the consideration of which court made either believe that consideration, did not exist or it is non-existence was so",processed_document_pdf_148256648_233.mp3 +"probable that, a prudent man would, under the circumstances of the Cas. , act upon that, it did not exist. Accordingly, in the Cas. on hand,",processed_document_pdf_148256648_234.mp3 +"the accused has failed to rebut the Cas. set out by the complainant as well as statutory presumption. Mere plausible defence taken by the accused,",processed_document_pdf_148256648_235.mp3 +as to not maintainability of the Cas. as well as the repayment of alleged amount to the judgment 29 c.c.no.16224/2017 complainant without its fertility or,processed_document_pdf_148256648_236.mp3 +prove or any evidence holds no water. 36. The accused has failed to discharge his initial burden in order to create reverse burden on the,processed_document_pdf_148256648_237.mp3 +complainant. The accused has admitted the receipt of money of rs.10 lakhs from the complainant on behalf of his sole proprietary concern and got issuance,processed_document_pdf_148256648_238.mp3 +"of questioned cheque, but when the movement arises for its repayment, he took altogether different version without any base and concrete evidence. Hence, it is",processed_document_pdf_148256648_239.mp3 +"the consider opinion of this court that, the probable defence taken by the accused is baseless and it no way attack the claim of complainant.",processed_document_pdf_148256648_240.mp3 +"Despite, the accused took so much time to prosecute the matter, he not cleared the dues under the cheque and thereby Conti. the commission of",processed_document_pdf_148256648_241.mp3 +"offence, hence, he should be punished in accordance with S. 138 of NI Act . 37. In this Cas. , in view of clear cut admission",processed_document_pdf_148256648_242.mp3 +"made by the accused in his evidence has reproduced above, no need to re- appreciate the documentary evidence produced by the complainant as well as",processed_document_pdf_148256648_243.mp3 +"the evidence of pw.2. Though, accused has contended, he gave signed blank cheque, it does not mean that, it was gave as security or for",processed_document_pdf_148256648_244.mp3 +uncertain debt. The issuance judgment 30 c.c.no.16224/2017 of questioned cheque comes within the purview of S. 20 of NI Act . As per S. 106,processed_document_pdf_148256648_245.mp3 +"of evidence act, when any act is specifically within the knowledge of any person, the burden of proving that, the fact is upon him. Accordingly,",processed_document_pdf_148256648_246.mp3 +"though accused has contended, he got repaid rs.10 lakhs to the complainant, he utterly failed to prove the same. Though, accused has alleged got issued",processed_document_pdf_148256648_247.mp3 +"signed blank cheque as security, he utterly failed to prove that, he got discharged his burden by repaying rs.10 lakhs to the complainant. Therefore, has",processed_document_pdf_148256648_248.mp3 +"to be presume that, the accused towards discharge of existence of legally recoverable debt, though in his Aff. has stated that, the said amount was",processed_document_pdf_148256648_249.mp3 +"repayable with interest, the complainant only brought the present Cas. for the alleged loan paid by him to the accused, therefore, it has to be",processed_document_pdf_148256648_250.mp3 +"consider that, as per S. 20 of NI Act , the accused gave inchoate negotiable instrument to the complainant to authorizing him to fill the",processed_document_pdf_148256648_251.mp3 +"same has to be presume.b.p.naveen vs. manu gowda on 3 october, 2020",processed_document_pdf_148256648_252.mp3 +"Who choosen to produced the documents at exs.p6 to p10, wherein, she identified the admitted specimen signature of the accused in accordance ex.p9(a) and p9(b).",processed_document_pdf_148256648_253.mp3 +"The pw.2 also deposed that, the accused judgment 31 c.c.no.16224/2017 being a proprietor got opened account as per ex.p6 in her bank, the same is",processed_document_pdf_148256648_254.mp3 +"not denied by the accused. Though, the pw.1 and pw.2 subjected for cross-examination, nothing worthwhile has elicited from their mouth to disbelieve the version of",processed_document_pdf_148256648_255.mp3 +them or prove the contention of the accused. The pw.1 and pw.2 have withstood their contention during his cross-examination. The accused entered into witness box,processed_document_pdf_148256648_256.mp3 +"and led the evidence to prove the probable defence without any proper explanation as per S. 106 of evidence act, simply contended got repaid the",processed_document_pdf_148256648_257.mp3 +"loan amount, but to make believe his contention, no valid acceptable grounds is made out. Therefore, it is the consider opinion of this court that,",processed_document_pdf_148256648_258.mp3 +"for discharge of existence of legally recoverable debt, the accused got issued the questioned cheque, but when the movement of its presentation, the same got",processed_document_pdf_148256648_259.mp3 +"dishonoured. The ex.p3 legal notice issued to the admitted address of the accused was wantonly avoided by the accused and thereby, drag the complainant to",processed_document_pdf_148256648_260.mp3 +"approach this court of law and prosecuted the matter years together and the offence is Conti. till the day, therefore, the accused is liable to",processed_document_pdf_148256648_261.mp3 +"be punished as per S. 138 of NI Act . This Cas. is considered as summary trial, therefore, by convicting the accused for the offence",processed_document_pdf_148256648_262.mp3 +"punishable under S. 138 of negotiable judgment 32 c.c.no.16224/2017 instruments act. The accused has failed to prove that, though the complainant took Anr. cheque bearing",processed_document_pdf_148256648_263.mp3 +no.522010 as security along with ex.p1 cheque and filed the separate cheque bounce Cas. through his friend by name g.kantharaj in c.c.no.16225/2017. The accused has,processed_document_pdf_148256648_264.mp3 +failed to pay the said amount personally as well as being a proprietor of his m/s. Mahashila cinebandha. 39. There is no substance in the,processed_document_pdf_148256648_265.mp3 +"probable defence of the accused, contrary to the complainant has discharged his burden and proved the guilt of the accused. Therefore, keeping in the mind",processed_document_pdf_148256648_266.mp3 +"of the object of introduction of NI Act , it appears this court, it is fit Cas. to convict the accused coupled with the amount",processed_document_pdf_148256648_267.mp3 +"covered under the cheque at ex.p1 at rs.10,00,000/-. The same offence has been Conti. till this day, therefore, the complainant has successfully established the guilt",processed_document_pdf_148256648_268.mp3 +"of the accused, regarding commission of offence punishable under S. 138 of NI Act . The complainant has complied the mandatory requirement and established his",processed_document_pdf_148256648_269.mp3 +"Cas. successfully. Despite that, the accused has not set right the wrong committed by them as per S. 138 of NI Act . Judgment 33",processed_document_pdf_148256648_270.mp3 +"c.c.no.16224/2017 40. As discussed above by way of furnishing clear, convincing, corroborative, oral as well as documentary evidence has proved that, the accused has committed",processed_document_pdf_148256648_271.mp3 +"the offence punishable under S. 138 of NI Act . Therefore, looking into the transaction, it is the considered opinion of this court that, the",processed_document_pdf_148256648_272.mp3 +"accused has taken bald, inconsistence defence without any base and failed to prove his improbable defence. Contrary, the pw.1 has established his Cas. beyond the",processed_document_pdf_148256648_273.mp3 +"reasonable doubt through oral as well as documentary evidence. The accused despite made use of the huge amount of the complainant years together, not yet",processed_document_pdf_148256648_274.mp3 +"return. The accused by made use of the money of the complainant got did his business. It is not his contention that, from doingb.p.naveen vs. ",processed_document_pdf_148256648_275.mp3 +"manu gowda on 3 october, 2020",processed_document_pdf_148256648_276.mp3 +"Complainant at his risk and cost years together, he shall repay the same with interest at 18%p.a from the date of cheque till its realization.",processed_document_pdf_148256648_277.mp3 +"The accused made the complainant, unnecessarily approach this court of law, therefore, the accused is liable to be punished by way of imposing fine sentence.",processed_document_pdf_148256648_278.mp3 +"Therefore, the accused is to be convicted by imposing the cheque amount with interest at 18% p.a. As total fine amount. Out of the said",processed_document_pdf_148256648_279.mp3 +"fine amount, sum of rs.9,90,000/- together with interest at 18%p.a on the cheque dated 31.03.2017 judgment 34 c.c.no.16224/2017 shall be payable to the complainant as",processed_document_pdf_148256648_280.mp3 +"compensation and remaining amount of rs.10,000/- shall be payable to the state as fine amount. Accordingly, if the accused fails to pay the whole fine",processed_document_pdf_148256648_281.mp3 +"amount, the accused shall undergo simple imprisonment for 12 months. Thereby, one more opportunity has provided to the accused to comply the order. Otherwise, the",processed_document_pdf_148256648_282.mp3 +"very purpose of filing complaint will be defeated. As discussed above, the complainant has proved his Cas. beyond reasonable doubt. In the result, the accused",processed_document_pdf_148256648_283.mp3 +"shall sentence to pay the fine amount as detailed in the order portion. Accordingly, point nos.1 and 2 are answered in the affirmative. 41. Point",processed_document_pdf_148256648_284.mp3 +"no.3: in view of my findings on point nos.1 and 2, i proceed to pass the following: order accused found guilty for the offence punishable",processed_document_pdf_148256648_285.mp3 +under S. 138 of NI Act . Acting under S. 255(2) of Cr.P.C. the accused is convicted for the offence punishable under,processed_document_pdf_148256648_286.mp3 +"S. 138 of NI Act and sentence to pay fine of rs.10,00,000/- together with interest at 18%p.a from 31.03.2017. Judgment 35 c.c.no.16224/2017 out of",processed_document_pdf_148256648_287.mp3 +"the said fine amount, sum of rs.9,90,000/- together with interest at 18%p.a from 31.03.2017 shall be payable to the complainant as compensation as per S. ",processed_document_pdf_148256648_288.mp3 +"357 of Cr.P.C. remaining amount of rs.10,000/- shall be payable to the state as fine amount. In default of pay the fine",processed_document_pdf_148256648_289.mp3 +"amount, the accused shall undergo simple imprisonment for 12 (twelve) months. The bail bond and cash security/surety bond of the accused stands cancelled. The office",processed_document_pdf_148256648_290.mp3 +"is hereby directed to supply the copy of this judgment to the accused on free of cost. (dictated to stenographer, transcribed and computerized by him,",processed_document_pdf_148256648_291.mp3 +"corrected and then pronounced by me in the open court on this the 3rd day of october - 2020) (shridhara.m) xxiii addl. Chief MM ,",processed_document_pdf_148256648_292.mp3 +"bengaluru. Annexure list of witnesses examined on behalf of complainant: pw-1 : b.p.naveen pw.2 : nandinib.p.naveen vs. manu gowda on 3 october, 2020",processed_document_pdf_148256648_293.mp3 +Ex.p1 : original cheque judgment 36 c.c.no.16224/2017 ex.p1(a) : signature of accused ex.p2 : bank endorsement ex.p3 : office copy of legal notice ex.p4 :,processed_document_pdf_148256648_294.mp3 +postal receipt ex.p5 : unserved R.P. a.d cover ex.p6 : true copy of account opening form ex.p6(a) : specimen signature of accused ex.p7 :,processed_document_pdf_148256648_295.mp3 +letter dated:19.10.2015 ex.p8 : true copy of pan card ex.p9 : true copy of specimen signature card ex.p9(a) & p9(b) : signatures of accused ex.p10,processed_document_pdf_148256648_296.mp3 +: statement of account ex.p11 : cc of Pvt. complaint in c.c.no.50183/18 ex.p12 : cc of Pvt. complaint in c.c.no.24170/17 ex.p13 : cc of judgment,processed_document_pdf_148256648_297.mp3 +in c.c.no.17345/17 ex.p14 : cc of Pvt. complaint in c.c.no.28908/17 ex.p15 : cc of judgment in c.c.no.25203/2017 ex.p16 : cc of Pvt. complaint in c.c.no.54893/17,processed_document_pdf_148256648_298.mp3 +ex.p17 : cc of Pvt. complaint in c.c.no.54894/17 list of witnesses examined on behalf of the defence: dw.1 : manugowda list of exhibits marked on,processed_document_pdf_148256648_299.mp3 +"behalf of defence: - nil - xxiii addl. Chief MM , bengaluru. Judgment 37 c.c.no.16224/2017 03.10.2020. Comp - accd - for judgment Cas. called out.",processed_document_pdf_148256648_300.mp3 +"Complainant and accused are absent.b.p.naveen vs. manu gowda on 3 october, 2020",processed_document_pdf_148256648_301.mp3 +"And intimate the date of pronouncement of judgment. Hence, as per S. 353(6) of Cr.P.C. the following judgment is pronounced in the",processed_document_pdf_148256648_302.mp3 +open court vide separate order. ***** order accused found guilty for the offence punishable under S. 138 of NI Act . Acting under S. 255(2),processed_document_pdf_148256648_303.mp3 +of Cr.P.C. the accused is convicted for the offence punishable under S. 138 of NI Act and sentence to pay fine,processed_document_pdf_148256648_304.mp3 +"of rs.10,00,000/- together with interest at 18% p.a from 31.03.2017. Out of the said fine amount, sum of rs.9,90,000/- together with interest at 18% p.a",processed_document_pdf_148256648_305.mp3 +from 31.03.2017 shall be payable to the complainant as compensation as per S. 357 of Cr.P.C. remaining amount of judgment 38 c.c.no.16224/2017,processed_document_pdf_148256648_306.mp3 +"rs.10,000/- shall be payable to the state as fine amount. In default of pay the fine amount, the accused shall undergo simple imprisonment for 12",processed_document_pdf_148256648_307.mp3 +(twelve) months. The bail bond and cash security/surety bond of the accused stands cancelled. The office is hereby directed to supply the copy of this,processed_document_pdf_148256648_308.mp3 +"judgment to the accused on free of cost. Xxiii addl. Chief MM , bengaluru.b.p.naveen vs. manu gowda on 3 october, 2020",processed_document_pdf_148256648_309.mp3 +"Makwana mangaldas tulsidas vs. the state of gujarat on 5 march, 2020 bench: CJ , l. Nageswara rao 1 in the SC of india",processed_document_pdf_41019885_1.mp3 +Crl. appellate jurisdiction SLP (Crl. ) no. 5464 of 2016 makwana mangaldas tulsidas petitioner (s) vs. the state of gujarat and anr. Respondent (s),processed_document_pdf_41019885_2.mp3 +"o r d e r this petition relates to dishonour of two cheques on 27.01.2005, for a total amount of Rs. 1,70,000/-, tried and contested",processed_document_pdf_41019885_3.mp3 +over a period of 15 years up till this court. A matter which is supposed to be disposed of summarily by the trial court in,processed_document_pdf_41019885_4.mp3 +"six months, it took seven years for this Cas. to be disposed of at the trial court level. A dispute of such nature has remained",processed_document_pdf_41019885_5.mp3 +"pending for 15 years in various courts, taking judicial time and space up till this court. 2. Dishonour of cheque, which originally gave cause of",processed_document_pdf_41019885_6.mp3 +"action to file a Civ. suit, was criminalised in the year 1988, with the insertion of chapter xvii in the negotiable instrument act, 1881. Cheque",processed_document_pdf_41019885_7.mp3 +"dishonour, followed by default in payment after a demand notice, became punishable under S. 138 with imprisonment or fine which may extend to twice the",processed_document_pdf_41019885_8.mp3 +amount of the cheque or both. 3. The legislative intent behind the above-mentioned amendment was to ensure faith in the efficacy of banking operations and,processed_document_pdf_41019885_9.mp3 +credibility in transacting business on cheques. It was to provide a strong Crl. remedy in order to deter the high incidence of dishonour of cheques,processed_document_pdf_41019885_10.mp3 +and ensure compensation to the complainant. Subsequent amendments in the act and the pronouncements of this court reflect that it was always perceived that these,processed_document_pdf_41019885_11.mp3 +cases would be disposed off speedily so as to preserve the object of criminalisation of the act. 4. Despite many changes brought through legislative amendments,processed_document_pdf_41019885_12.mp3 +"and various decisions of this court mandating speedy trial and disposal of these cases, the trial courts are filled with largemakwana mangaldas tulsidas vs. the",processed_document_pdf_41019885_13.mp3 +"state of gujarat on 5 march, 2020",processed_document_pdf_41019885_14.mp3 +"Than 35 lakh, which constitutes more than 15 percent of the total Crl. cases pending in the district courts. Further, there is a steady increase",processed_document_pdf_41019885_15.mp3 +"in the docket burden. 5. A plain reading of chapter xvii of the n.i. Act, 1881 and the judgments of this court in indian bank",processed_document_pdf_41019885_16.mp3 +"Assn. & Ors. vs. UOI and ors., (2014) 5 scc 590 and meters and instruments Pvt. Ltd. and anr. vs. kanchan mehta, (2018)",processed_document_pdf_41019885_17.mp3 +1 scc 560 would show the following mandates with regard to the expeditious trial of cases of this nature: (a) the trial of cases relating,processed_document_pdf_41019885_18.mp3 +"to S. 138 of the act must be with nature of summary trial unless reasons call for summons trial, which is always exceptional. (b) the",processed_document_pdf_41019885_19.mp3 +evidence of the complainant must be conducted within three months of assigning the Cas. . (c) endeavour must be made to conclude the trial within six,processed_document_pdf_41019885_20.mp3 +"months from the date of filing of the complaint. (d) the trial, as far as practicable, must be held on a day to day basis",processed_document_pdf_41019885_21.mp3 +"unless reasons exist to do otherwise. Though, these mandates exist, they cannot operate in vacuum without addressing the factors attributable to the long delay of",processed_document_pdf_41019885_22.mp3 +"disposal of cases, urging holistic consideration. 6. One of the major factor, for high pendency is delay in ensuring the presence of the accused before",processed_document_pdf_41019885_23.mp3 +"the court for trial. As per recent study, more than half of the pending cases, i.e. More than 18 lakh cases, are pending due to",processed_document_pdf_41019885_24.mp3 +"absence of accused. 7. This court in indian bank Assn. (supra), has held that magistrate should adopt a pragmatic and realistic approach while issuing process",processed_document_pdf_41019885_25.mp3 +to ensure the presence of the accused. The direction was passed as follows:- €2) mm/jm should adopt a pragmatic and realistic approach while issuing summons.,processed_document_pdf_41019885_26.mp3 +"Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. Court, in appropriate cases, may take",processed_document_pdf_41019885_27.mp3 +"the assistance of the police or the nearby court to serve notice to the accused. For notice of appearance, a short date be fixed. If",processed_document_pdf_41019885_28.mp3 +"the summons is received back un-served, immediate follow up action be taken.□ 8. Taking effect from S. 144 of the act, Ss. 62, 66 and",processed_document_pdf_41019885_29.mp3 +"67 of Cr.P.C. and directions of this court, the magistrate may opt for one or many of the methods of service of",processed_document_pdf_41019885_30.mp3 +"summons, including service through speed post or the courier services, police officer or any other person, e-mail or through a court having territorial jurisdiction.makwana mangaldas",processed_document_pdf_41019885_31.mp3 +"tulsidas vs. the state of gujarat on 5 march, 2020",processed_document_pdf_41019885_32.mp3 +"Further process persists. While summon may be issued through aforementioned modes, bailable warrants and non-bailable warrants are to be executed through police as per S. ",processed_document_pdf_41019885_33.mp3 +"72 of Cr.P.C. many a time, police as serving agency, does not give heed to the process issued in Pvt. complaints. Courts",processed_document_pdf_41019885_34.mp3 +"also remain ambivalent of this fact, requiring the complainant to pay unjustified process fee, repeatedly and avoid to take action against negligent police officers. The",processed_document_pdf_41019885_35.mp3 +"coercive methods to secure the presence of accused viz. Attachment indicated in S. 82 and 83 Cr.P.C. , are seldom resorted. 10.",processed_document_pdf_41019885_36.mp3 +"Having regard to the prevailing state of affairs, we find that there is a need to evolve a system of service/execution of process issued by",processed_document_pdf_41019885_37.mp3 +"the court and ensuring the presence of the accused, with the concerted efforts of all the stakeholders like complainant, police and banks. One step in",processed_document_pdf_41019885_38.mp3 +"such direction was taken by this court in the Cas. of meters and instruments Pvt. Ltd. (supra), where it had directed the banks to give",processed_document_pdf_41019885_39.mp3 +the details of e-mail of the accused to the payee/complainant for service through e-mail. It was held: €in every complaint under S. 138 of the,processed_document_pdf_41019885_40.mp3 +"act, it may be desirable that the complainant gives his bank account No. and if possible e-mail id of the accused. If e-mail id is",processed_document_pdf_41019885_41.mp3 +"available with the bank where the accused has an account, such bank, on being required, should furnish such e- mail id to the payee of",processed_document_pdf_41019885_42.mp3 +"the cheque.□ (emphasis supplied) 11. Banks, being an important stakeholders in cases of this nature, it is their responsibility to provide requisite details and facilitate",processed_document_pdf_41019885_43.mp3 +"an expeditious trial mandated by law. An information sharing mechanism may be developed where the banks share all the requisite details available of the accused,",processed_document_pdf_41019885_44.mp3 +"who is the account holder, with the complainant and the police for the purpose of execution of process. This may include a requirement to print",processed_document_pdf_41019885_45.mp3 +"relevant information, viz the email id, registered mobile No. and permanent address of the account holder, on the cheque or dishonour memo informing the holder",processed_document_pdf_41019885_46.mp3 +"about the dishonour. The reserve bank of india, being the regulatory body may also evolve guidelines for banks to facilitate requisite information for the trial",processed_document_pdf_41019885_47.mp3 +of these cases and such other matters as may be required. A separate software-based mechanism may be developed to track and ensure the service of,processed_document_pdf_41019885_48.mp3 +"process on the accused in cases relating to an offence under S. 138 of n.i. Act. 12. With ensuring the credibility of cheques, it is",processed_document_pdf_41019885_49.mp3 +equally important that cheques are not allowed to be misused giving cause to frivolous litigation. The reserve bank of india may consider developing a new,processed_document_pdf_41019885_50.mp3 +"proforma of cheques so as to include the purpose of payment, along with other informations mentioned above to facilitate adjudication of real issues. 13. Further,",processed_document_pdf_41019885_51.mp3 +"a mechanism may be developed to ensure the presence of the accused even by way of coercive measure, if required, taking effect from S. 83",processed_document_pdf_41019885_52.mp3 +"of Cr.P.C. which allows attachment of property, including movable property. A similar co-ordinated effort may be evolved to recover interim compensation under",processed_document_pdf_41019885_53.mp3 +S. 143a of the n.i. Act as well as fine or compensation to be recovered as per S. 421 of Cr.P.C. the,processed_document_pdf_41019885_54.mp3 +"bank may facilitate mechanism for transferring requisitemakwana mangaldas tulsidas vs. the state of gujarat on 5 march, 2020",processed_document_pdf_41019885_55.mp3 +"Directed by the court. 14. With ever growing institution of n.i. Cases, there is a need of developing a mechanism for pre-litigation settlement in these",processed_document_pdf_41019885_56.mp3 +"cases. The legal services authorities act, 1987 provides for a statutory mechanism for disposal of Cas. by lok adalat at pre-litigation stage under Ss. 19",processed_document_pdf_41019885_57.mp3 +"and 20 of the act. Further, S. 21 of the act, recognises an award passed by lok adalats as a decree of a Civ. court",processed_document_pdf_41019885_58.mp3 +"and gives it a finality. This court in k.n. Govindan kutty menon vs. c.d. Shaji, (2012) 2 scc 51 has held that: €even if a",processed_document_pdf_41019885_59.mp3 +"matter is referred by a Crl. court under S. 138 of the NI Act , 1881 and by virtue of the deeming provisions, the award",processed_document_pdf_41019885_60.mp3 +passed by the lok adalat based on a compromise has to be treated as a decree capable of execution by a Civ. court.□ 15. The,processed_document_pdf_41019885_61.mp3 +effect of above legal proposition is that an award passed at the pre-litigation stage or pre-cognizance stage shall have an effect of a Civ. decree.,processed_document_pdf_41019885_62.mp3 +"The national legal services Auth. , being the responsible Auth. in this regard, may evolve a scheme for settlement of dispute relating to cheque bounce at",processed_document_pdf_41019885_63.mp3 +pre-litigation i.e. Before filing of the Pvt. complaint. This measure of pre- litigation ADR process can go a long way in settling the,processed_document_pdf_41019885_64.mp3 +"cases before they come to court, thereby reducing docket burden. 16. The high courts, in addition to the above, may also consider setting up of",processed_document_pdf_41019885_65.mp3 +"exclusive courts to deal with matters relating to S. 138, especially in establishments where the pendency is above a standard Fig. . Special norms for assessment",processed_document_pdf_41019885_66.mp3 +of the work of exclusive courts may also be formulated giving additional weightage to disposal of Cas. within the time-frame as per legal requirement. 17.,processed_document_pdf_41019885_67.mp3 +"This court in the Cas. of meters and instruments Pvt. Ltd. (supra), observed the following: €use of modern technology needs to be considered not only",processed_document_pdf_41019885_68.mp3 +for paperless courts but also to reduce overcrowding of courts. There appears to be need to consider categories of cases which can be partly or,processed_document_pdf_41019885_69.mp3 +"entirely concluded ""online"" without physical presence of the parties by simplifying procedures where seriously disputed questions are not required to be adjudicated. Traffic challans may",processed_document_pdf_41019885_70.mp3 +perhaps be one such category. At least some No. of S. 138 cases can be decided online. If complaint with affidavits and documents can be,processed_document_pdf_41019885_71.mp3 +"filed online, process issued online and accused pays the specified amount online, it may obviate the need for personal appearance of the complainant or the",processed_document_pdf_41019885_72.mp3 +"accused. Only if the accused contests, need for appearance of parties may arise which may be through counsel and wherever viable, video conferencing can be",processed_document_pdf_41019885_73.mp3 +used. Personal appearances can be dispensed with on suitable self operating conditions. This is a matter to be considered by the high courts and wherever,processed_document_pdf_41019885_74.mp3 +"viable, appropriate directions can be issued.□ (emphasismakwana mangaldas tulsidas vs. the state of gujarat on 5 march, 2020",processed_document_pdf_41019885_75.mp3 +"The high courts may be assessed and a best suited mechanism in this direction may be considered. 18. In meters and instruments Pvt. Ltd. (supra),",processed_document_pdf_41019885_76.mp3 +this court had also observed the nature of offence under S. 138 primarily relates to a Civ. wrong. While criminalising of dishonour of cheques took,processed_document_pdf_41019885_77.mp3 +"place in the year 1988 taking into account the magnitude of economic transactions today, decriminalisation of dishonours of cheque of a small amount may also",processed_document_pdf_41019885_78.mp3 +"be considered, leaving it to be dealt with under Civ. jurisdiction. 19. These are some indicative aspects in addition to what may come on board",processed_document_pdf_41019885_79.mp3 +"after hearing the relevant duty-holders. To work out mechanism for expeditious and just adjudication of cases relating to dishonour of cheques, fulfilling the mandate of",processed_document_pdf_41019885_80.mp3 +"law and reduce high pendency, various duty-holders like banks, police and legal services authorities may be required to take measures and prepare schemes. Thus, we",processed_document_pdf_41019885_81.mp3 +"find it necessary to hear them for evolving a concerted, coordinated mechanism for expeditious adjudication of these cases as per the legal mandate. 20. Let",processed_document_pdf_41019885_82.mp3 +"the matter be registered separately as suo moto Wp. (Crl. ) with the caption ‚expeditious trial of cases under S. 138 of n.i. Act, 1881ƒ.",processed_document_pdf_41019885_83.mp3 +"21. We request shri sidharth luthra, Sr. Adv. to assist the court as amicus curiae. We also appoint shri k. Parameshwar, Adv. as amicus curiae",processed_document_pdf_41019885_84.mp3 +"to assist him in the matter. 22. Issue notice to the UOI through law secretary, registrar general of all the high courts, the",processed_document_pdf_41019885_85.mp3 +"DGP of all the states and union territories, member secretary of the national legal services Auth. , reserve bank of india and indian",processed_document_pdf_41019885_86.mp3 +"bank Assn. , mumbai as the representatives of banking institutions. 23. List both the matters on 16.04.2020. „„„„„„„„„„„„„„..cji. [s.a. Bobde] „„„„„„„„„„„„„„...„j. [l.nageswara rao] new delhi; march",processed_document_pdf_41019885_87.mp3 +"5,2020. Item no.302 court no.1 S. ii-b s u p r e m e c o u r t o f i n d i",processed_document_pdf_41019885_88.mp3 +a record of proceedings petition(s) for special leave to appeal (crl.) no(s).5464/2016 (arising out of impugned final judgment and order dated 20-01-2014 in crlra No. ,processed_document_pdf_41019885_89.mp3 +"436/2012makwana mangaldas tulsidas vs. the state of gujarat on 5 march, 2020",processed_document_pdf_41019885_90.mp3 +61/2012 passed by the ) makwana mangaldas tulsidas Petitioner(s) vs. the state of gujarat & anr. Respondent(s) (with ia No. 63938/2017,processed_document_pdf_41019885_91.mp3 +- condonation of delay in filing and ia No. 63943/2017 - exemption from filing o.t.) date : 05-03-2020 the matter/s was called on for hearing,processed_document_pdf_41019885_92.mp3 +"today. Coram : hon'ble the CJ hon'ble mr. J. l. Nageswara rao for Petitioner(s) mr. Ajit sharma, aor* for Respondent(s) ",processed_document_pdf_41019885_93.mp3 +"mr. Aniruddha p. Mayee, aor mr. A. Rajarajan, adv. Mr. Sanjeev kr. Choudhary, adv. Upon hearing the counsel the court made the following o r",processed_document_pdf_41019885_94.mp3 +"d e r in terms of the signed order, let the matter be registered separately as suo moto Wp. (Crl. ) with the caption ‚expeditious",processed_document_pdf_41019885_95.mp3 +"trial of cases under S. 138 of n.i. Act, 1881ƒ. We request shri sidharth luthra, Sr. Adv. to assist the court as amicus curiae. We",processed_document_pdf_41019885_96.mp3 +"also appoint shri k. Parameshwar, Adv. as amicus curiae to assist him in the matter. Issue notice to the UOI through law secretary,",processed_document_pdf_41019885_97.mp3 +"registrar general of all the high courts, the DGP of all the states and union territories, member secretary of the national legal",processed_document_pdf_41019885_98.mp3 +"services Auth. , reserve bank of india and indian bank Assn. , mumbai as the representatives of banking institutions. List both the matters on 16.04.2020. (sanjay kumar-ii)",processed_document_pdf_41019885_99.mp3 +(indu kumari pokhriyal) astt. Registrar-cum-ps assistant registrar (signed order is placed on the file) *appearance slip not submitted by the counselmakwana mangaldas tulsidas vs. the,processed_document_pdf_41019885_100.mp3 +"state of gujarat on 5 march, 2020",processed_document_pdf_41019885_101.mp3 +"S.r. Sunil & co vs. d. Srinivasavaradan on 27 january, 2011 equivalent citations: 2012 air scw 551, 2014 (16) scc 32, 2012 cri. L. J.",processed_document_pdf_171168201_1.mp3 +"1180, air 2012 SC (Crl. ) 295, 2012 acd 111 (SC ), 2015 (3) scc (cri) 398, 2012 all mr(cri) 2109, (2012) 3 kccr",processed_document_pdf_171168201_2.mp3 +"155 bench: chandramauli kr. Prasad, harjit singh bedi Crl. a. 41 of 2005 1 in the SC of india Crl. appellate jurisdiction Crl. appeal",processed_document_pdf_171168201_3.mp3 +no. 41 of 2005 s.r. Sunil & co. ...... Appellant vs. d. Srinivasavaradan ...... Respondent o r d e r 1. A very Ltd. prayer,processed_document_pdf_171168201_4.mp3 +"is made in this appeal. It arises from the order of the HC . Admittedly a sum of Rs. 1,40,00,000/- had been borrowed by the",processed_document_pdf_171168201_5.mp3 +"respondent from the appellant on the 5th october, 1996. On 18th november, 1996, the respondent gave a cheque for rs.5,38,425/- towards the interest on the",processed_document_pdf_171168201_6.mp3 +"aforesaid amount. This cheque was deposited in the bank on the 9th of january, 1997 which was dishonoured on account of insufficient funds. A complaint",processed_document_pdf_171168201_7.mp3 +"under S. 138 of the NI Act was, accordingly, filed and it was noticed that the only dispute was with regard to the payment",processed_document_pdf_171168201_8.mp3 +"of the interest as the principal amount of rs.1,40,00,000/- had already been paid within Crl. a. 41 of 2005 time. The trial magistrate, accordingly, thought",processed_document_pdf_171168201_9.mp3 +"it fit that a sentence of imprisonment till the rising of the court and a fine of Rs. 5,000/- would meet the ends of J. .",processed_document_pdf_171168201_10.mp3 +A revision was thereafter filed by the appellant and the same has been dismissed. The present appeal has been filed praying that the sentence of,processed_document_pdf_171168201_11.mp3 +"imprisonment till the rising of the court and a fine of rs.s.r. Sunil & co vs. d. Srinivasavaradan on 27 january, 2011",processed_document_pdf_171168201_12.mp3 +"Jagadeeshan (2002) 2 scc 420. 2. We have heard learned counsel for the parties. In the afore-cited Cas. , it has been highlighted that the bouncing",processed_document_pdf_171168201_13.mp3 +of cheque was a serious matter and not to be dealt with lightly by the court and a sentence commensurate with the facts and the,processed_document_pdf_171168201_14.mp3 +"behaviour of the accused must also be kept in mind. Undoubtedly the principal amount of rs.1,40,00,000/- had been paid by the accused but the interest",processed_document_pdf_171168201_15.mp3 +which he had promised to pay by way of the cheque could not be realised as the cheque had bounced. It is also clear that,processed_document_pdf_171168201_16.mp3 +"despite the fact that the complaint had been filed in the year 1996 and the matter has been pending for 15 years, he has not",processed_document_pdf_171168201_17.mp3 +"made any attempt to make the payment. We, therefore, feel that a deterrent sentence is called for Crl. a. 41 of 2005 in the light",processed_document_pdf_171168201_18.mp3 +"of the aforesaid circumstances. We, accordingly, direct the accused-respondent herein to pay a compensation and fine of Rs. 5,38,425/- and in default of payment to",processed_document_pdf_171168201_19.mp3 +"undergo two years simple imprisonment. We give time upto the end of march, 2011 to make the payment failing which he will be taken into",processed_document_pdf_171168201_20.mp3 +"custody to serve out his sentence. 3. The appeal stands disposed of. ...... ..................j [harjit singh bedi] ........................j [chandramauli kr. Prasad] new delhi january 27,",processed_document_pdf_171168201_21.mp3 +"2011.s.r. Sunil & co vs. d. Srinivasavaradan on 27 january, 2011",processed_document_pdf_171168201_22.mp3 +"Manoj k. Seth vs. r.j. Fernandez on 20 june, 1991 equivalent citations: [1992]73compcas441(ker), 1991crilj3253 judgment manoharan, j. 1. The petitioner seeks to quash the proceedings",processed_document_pdf_42326_1.mp3 +"in c. C. No. 479 of 1990 pending before the chief judicial magistrate's court, ernakulam, by invoking S. 482 of the Crl. procedure code. The",processed_document_pdf_42326_2.mp3 +"respondent filed a complaint against the petitioner alleging that a cheque issued by the petitioner on march 6, 1990, for an amount of Rs. 15,",processed_document_pdf_42326_3.mp3 +"192.65 drawn on the syndicate bank, ernakulam, was presented for encashment on august 2, 1990, was dishonoured on august 3, 1390, and that though the",processed_document_pdf_42326_4.mp3 +"notice required under Cl. (b) of the proviso to S. 138 of the NI Act , 1881 (for short, ""the act""), was issued, the petitioner",processed_document_pdf_42326_5.mp3 +"failed to make the payment within 15 days of the receipt of the notice and, therefore, the petitioner has committed an offence under S. 138",processed_document_pdf_42326_6.mp3 +"of the act. 2. According to the petitioner, the cheque post-dated march 6, 1990, was drawn on march 1, 1986 ; and since the cheque",processed_document_pdf_42326_7.mp3 +"was not presented within six months from the said date as required under Cl. (a) of the proviso to S. 138 of the act, no",processed_document_pdf_42326_8.mp3 +"offence under the said S. is disclosed and, therefore, it is necessary that the proceeding is quashed. 3. The learned single judge before whom the",processed_document_pdf_42326_9.mp3 +matter came up for consideration felt that the matter has to be considered by a division bench since the view taken in paramjith singh vs. ,processed_document_pdf_42326_10.mp3 +n. C. Job [1989] 2 klt 740 ; [1990] 67 comp cas 570 was not endorsed by Anr. single judge and the same was referred,processed_document_pdf_42326_11.mp3 +"to a division bench for consideration. 4. The banking, public financial institutions and negotiable instruments laws (amendment) act, 1988 (act 66 of 1988), amended the",processed_document_pdf_42326_12.mp3 +act also and inserted chapter xvii containing Ss. 138 to 142 in the act. S. 138 makes the drawer of a cheque liable for penalties,processed_document_pdf_42326_13.mp3 +"in Cas. the cheque is dishonoured and payment is not made after notice. As has been noted, whereas the respondent alleged that the petitioner has",processed_document_pdf_42326_14.mp3 +"committed an offence punishable under S. 138 of the act, the petitioner maintains that though the cheque was dishonoured, since the conditions required under S. ",processed_document_pdf_42326_15.mp3 +"138 of the act are not satisfied, no offence under the said S. is made out. For properly appreciating the argument, it would be necessary",processed_document_pdf_42326_16.mp3 +"to read S. 138 of the act. S. 138 reads : ""138. Dishonour of cheque for insufficiency, etc., of funds in the account.--where ""any cheque",processed_document_pdf_42326_17.mp3 +drawn by a person on an account maintained by him with a banker for payment of any amount of money to Anr. person from out,processed_document_pdf_42326_18.mp3 +"of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because",processed_document_pdf_42326_19.mp3 +"the amount of money standing to the credit of that account ismanoj k. Seth vs. r.j. Fernandez on 20 june, 1991",processed_document_pdf_42326_20.mp3 +"That account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any",processed_document_pdf_42326_21.mp3 +"other provision of this act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to",processed_document_pdf_42326_22.mp3 +"twice the amount of the cheque, or with both : provided that nothing contained in this S. shall apply unless- (a) the cheque has been",processed_document_pdf_42326_23.mp3 +"presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity,",processed_document_pdf_42326_24.mp3 +"whichever is earlier ; (b) the payee or the holder in due course of the cheque, as the Cas. may be, makes a demand for",processed_document_pdf_42326_25.mp3 +"the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen clays, of the",processed_document_pdf_42326_26.mp3 +receipt of information by him from the bank regarding the return of the cheque as unpaid ; and (c) the drawer of such cheque fails,processed_document_pdf_42326_27.mp3 +"to make the payment of the said amount of money to the payee or, as the Cas. may be, to the holder in due course",processed_document_pdf_42326_28.mp3 +"of the cheque, within fifteen days of the receipt of the said notice. Explanation.--for the purposes of this S. , 'debt or other liability' means a",processed_document_pdf_42326_29.mp3 +"legally enforceable debt or other liability."" 5. According to the petitioner, the cheque dated march 6, is a post-dated cheque and the same was drawn",processed_document_pdf_42326_30.mp3 +"and delivered on march 1, 1986. As, admittedly, the cheque was not presented within six months from march 1. 1986, the condition under Cl. (a)",processed_document_pdf_42326_31.mp3 +"of the proviso to S. 138 of the act not having been satisfied, no offence under the said S. is committed. According to him, though",processed_document_pdf_42326_32.mp3 +"the cheque bears the date march 6, 1990, since the same was drawn and delivered on march 1, 1986, the cheque ought to have been",processed_document_pdf_42326_33.mp3 +presented within six months from the said date to satisfy the condition in Cl. (a) of the proviso to S. 138 ; that not having,processed_document_pdf_42326_34.mp3 +"been done the offence under the said S. cannot be said to have been committed. But, according to the respondent, apart from the fact that",processed_document_pdf_42326_35.mp3 +"the question whether the cheque is a post-dated cheque is a matter to be proved, even assuming that the cheque was delivered on march 1,",processed_document_pdf_42326_36.mp3 +"1986, the cheque can be considered to have been drawn only on the date it bears, i.e. march 6, 1990. According to him, since",processed_document_pdf_42326_37.mp3 +"the'cheque was presented within six months from the date, the condition in Cl. (a) of the proviso is also satisfied. The two questions that would",processed_document_pdf_42326_38.mp3 +"arise are whether the cheque in question is a post-dated cheque delivered on march 1, 1986 ; and the other, which is the date on",processed_document_pdf_42326_39.mp3 +which a post-dated cheque can be considered to have been drawn for the purposes of S. 138 of the act. 6. The first is a,processed_document_pdf_42326_40.mp3 +question of fact. Reliance was placed by the petitioner on annexures ii and v in support of his argument that the cheque was drawn on,processed_document_pdf_42326_41.mp3 +"march 1, 1986. Annexures ii and v are copies of the notices by the respondent. Annexure v dated april 2, 1986, states that the cheque",processed_document_pdf_42326_42.mp3 +"issued was postdated march 6, 1990. From that, it may be possible to infer that the cheque mentioned therein was delivered before april 2, 1986,",processed_document_pdf_42326_43.mp3 +"and that the date of the same was march 6, 1990. But the chequemanoj k. Seth vs. r.j. Fernandez on 20 june, 1991",processed_document_pdf_42326_44.mp3 +"Evidence. In such circumstances, normally, it will not be appropriate to invoke the jurisdiction under S. 482, Crl. procedure code. 7. We now proceed to",processed_document_pdf_42326_45.mp3 +"examine the other question. The contention of the petitioner, as noted earlier, is that though the cheque bears the date march 6, 1990, it was",processed_document_pdf_42326_46.mp3 +"really drawn on march 1, 1986, and inasmuch as the cheque was presented for encashment only on august 2, 1990, no offence under S. 158",processed_document_pdf_42326_47.mp3 +of the act is made out. The cheque was presented within six months after the date of the cheque but beyond six months of its,processed_document_pdf_42326_48.mp3 +"delivery on march 1, 1986. According to learned counsel for the petitioner, with respect to post-dated cheques as the present one, if the cheque bears",processed_document_pdf_42326_49.mp3 +"a date beyond six months from the date on which it was drawn, the same would be outside the purview of S. 138 of the",processed_document_pdf_42326_50.mp3 +act. Learned counsel relied on the decision of a single judge of the madras HC in babu xavier vs. lalchand munnath [1990] tlnj (crl),processed_document_pdf_42326_51.mp3 +121. This question as such did not arise for consideration in paramjith singh's Cas. [1_989] 2 klt 740 ; [1990] 67 comp cas 570 or,processed_document_pdf_42326_52.mp3 +in prithviraj's Cas. [1991] 71 comp cas 131 ; [1991) 1 klt 595 which confirmed the former. What was considered in paramjith's Cas. [19891 2,processed_document_pdf_42326_53.mp3 +klt 740 ; [1990] 67 comp cas 570 and prithviraj's Cas. [1991] 71 comp cas 131 was whether prosecution is maintainable under S. 138 of,processed_document_pdf_42326_54.mp3 +the act in the Cas. of a cheque issued before the commencement of the amending act 5g of 1988 but dishonoured after the said commencement.,processed_document_pdf_42326_55.mp3 +"The contention was that since the amending act came into force only on april 1, 1989, and the cheque therein was drawn before such commencement,",processed_document_pdf_42326_56.mp3 +"prosecution under S. 138 of the act is not maintainable in view of Art. 20(1) of the constitution. It was held, as per S. 138",processed_document_pdf_42326_57.mp3 +"of the act, that an offence is committed not on the drawing of the cheque but only on failure to pay the amount within 15",processed_document_pdf_42326_58.mp3 +"days of the receipt of the notice of dishonour. Though the cheque was drawn prior to the commencement of act 66 of 1988, as the",processed_document_pdf_42326_59.mp3 +"offence was committed after the commencement, it cannot be said that the law was not in force at the time of commission of offence under",processed_document_pdf_42326_60.mp3 +S. 138 of the act. The consequence of dishonour of a post-dated cheque in the context of S. 138 of the act did not arise,processed_document_pdf_42326_61.mp3 +"for consideration in those decisions. 8. As noted, the question for consideration in this Cas. is when can a postdated cheque be considered to have",processed_document_pdf_42326_62.mp3 +been drawn for the purpose of Cl. (a) of the proviso to S. 138 of the act. The act as such does not contain any,processed_document_pdf_42326_63.mp3 +"specific provision as to when a cheque could be considered to have been drawn. As per the presumption under S. 118(b) of the act, the",processed_document_pdf_42326_64.mp3 +"cheque must be presumed to have been drawn on the date it bears. The contention now is, that even if the cheque was presented and",processed_document_pdf_42326_65.mp3 +"was dishonoured within six months of the date of the cheque, since the cheque is a post-dated one, it must be considered to have been",processed_document_pdf_42326_66.mp3 +"drawn on the date when it wns delivered, viz., on march 1, 1986, and since the cheque was not presented within six months from that",processed_document_pdf_42326_67.mp3 +"date, the condition in Cl. (a) of the proviso to S. 138 of the act is not satisfied. 9. In considering the said aspect, it",processed_document_pdf_42326_68.mp3 +will be necessary to know the character of a post-dated cheque. A post-dated cheque is one containing a date later than the date of delivery.,processed_document_pdf_42326_69.mp3 +"Therefore, it has an implied notice that there is no present deposit to the credit of the drawer and an implied guarantee that the funds",processed_document_pdf_42326_70.mp3 +"would exist when it become due. Though the cheque is payable only on a future date, it may be negotiable. There is no prohibition in",processed_document_pdf_42326_71.mp3 +"the act against post-dating a cheque. If a banker pays the amount before the due date of a cheque, he will lose the statutory protection",processed_document_pdf_42326_72.mp3 +"arising frommanoj k. Seth vs. r.j. Fernandez on 20 june, 1991",processed_document_pdf_42326_73.mp3 +"1118, in considering the question as to when a payment would be deemed -to have been made under a post-dated cheque for the purpose of",processed_document_pdf_42326_74.mp3 +"S. 20 of the limitation act, it is held that the material date is the date on which the payment could have been made. In",processed_document_pdf_42326_75.mp3 +"that Cas. , a post-dated cheque was given on february 4, 1954, it was dated february 25, 1954. The SC held in para 8 (at",processed_document_pdf_42326_76.mp3 +"pages 872-73 of 36 comp cas) : ""we are, therefore, of opinion that, as a post-dated cheque was given on february 4, 1954, and it",processed_document_pdf_42326_77.mp3 +"was dated february 25, 1954, and as this was not a Cas. of unconditional acceptance, the payment for the purpose of S. 20 of the",processed_document_pdf_42326_78.mp3 +"limitation act could only be on february 25, 1954, when the cheque could have been presented at the earliest for payment."" 10. In the Cas. ",processed_document_pdf_42326_79.mp3 +"of a post-dated cheque, payment need be on the date it bears. Thus, a post-dated cheque is intended to be operative only from the date",processed_document_pdf_42326_80.mp3 +"it bears though, in between the date of delivery and the date it bears, the same is negotiable. But the drawee is not bound to",processed_document_pdf_42326_81.mp3 +honour it on any date prior to the date it bears. 11. Interpretation of S. 138 of the act to discover the liability arising from,processed_document_pdf_42326_82.mp3 +dishonouring of a post-dated cheque has to be with due regard to the said character of a post-dated cheque and the scope of Cl. (a),processed_document_pdf_42326_83.mp3 +of the proviso to S. 138 cannot be considered in isolation. The statute has to be construed with reference to the context and other clauses,processed_document_pdf_42326_84.mp3 +of the act to make it consistent. The very object of the provision is to enhance the acceptability of cheques by making the drawer liable,processed_document_pdf_42326_85.mp3 +for penalty in Cas. the cheque bounces for the reason mentioned in the said S. . If a post-dated cheque is considered to be drawn on,processed_document_pdf_42326_86.mp3 +"the date of its deliver)', the drawer of such a cheque can defeat S. 138 of the act, by showing a date beyond six months",processed_document_pdf_42326_87.mp3 +"of its delivery. In the circumstances, an interpretation which will bring about such a result cannot be adopted. The object of the S. is to",processed_document_pdf_42326_88.mp3 +make the drawer of the cheque subject to penalty when the cheque bounces on the ground mentioned in the S. . The rigour of the S. ,processed_document_pdf_42326_89.mp3 +itself reveals the intention of the legislature. Enough safeguards are provided in the S. itself to protect honest drawers. 12. An offence under S. 138,processed_document_pdf_42326_90.mp3 +of the act would be committed only when a cheque drawn for payment of any debt or liability is returned by the bank unpaid and,processed_document_pdf_42326_91.mp3 +the drawer fails to make payment of the said amount within 15 days of the notice of dishonour. One of the elements to be satisfied,processed_document_pdf_42326_92.mp3 +is that the cheque should have been returned unpaid. It goes without saying that such return of the cheque by the drawee could only be,processed_document_pdf_42326_93.mp3 +"on presentation ; i.e. when he is capable of presenting the same for encashment. In the Cas. of a post-dated cheque, as noted earlier,",processed_document_pdf_42326_94.mp3 +the same can be presented only on or after the date of the cheque. 13. The question as to when a post-dated cheque can be,processed_document_pdf_42326_95.mp3 +considered to have been drawn for the purpose of S. 138 of the act cannot be dealt with independently of the right to present the,processed_document_pdf_42326_96.mp3 +"same. In relation to the drawer and drawee, a post-dated cheque becomes operative only from the date of the cheque when alone the same is",processed_document_pdf_42326_97.mp3 +intended to be honoured. A post dated cheque for the purpose of Cl. (a) of the proviso to S. 138 of the act has to,processed_document_pdf_42326_98.mp3 +"be considered to have beenmanoj k. Seth vs. r.j. Fernandez on 20 june, 1991",processed_document_pdf_42326_99.mp3 +"Date of the cheque, it cannot be said that the condition in the said proviso is not satisfied. 14. In view of the above, with",processed_document_pdf_42326_100.mp3 +"respect, we are unable to agree with the view taken in babu xavier's Cas. [19901 tlnj (crl) 121 referred to earlier. 15. The Crl. m;",processed_document_pdf_42326_101.mp3 +"c. Is without merit and the same is liable to be dismissed which, accordingly, is hereby dismissed.manoj k. Seth vs. r.j. Fernandez on 20 june,",processed_document_pdf_42326_102.mp3 +1991,processed_document_pdf_42326_103.mp3 +"Vijayander kumar & ors vs. state of rajasthan & anr on 11 february, 2014 author: shiva kirti singh bench: shiva kirti singh, ranjan gogoi, p.",processed_document_pdf_3161550_1.mp3 +Sathasivam reportable in the SC of india Crl. appellate jurisdiction Crl. appeal no. 1297 of 2004 vijayander kumar & ors. ... Appellants vs. State,processed_document_pdf_3161550_2.mp3 +"of rajasthan & anr. ... Respondents j u d g m e n t shiva kirti singh, j. The appellants have preferred this appeal against",processed_document_pdf_3161550_3.mp3 +the dismissal of their petition under S. 482 of the Crl. procedure code (for brevity `Cr.P.C. €) by the HC of,processed_document_pdf_3161550_4.mp3 +"judicature for rajasthan at jodhpur. The HC declined to interfere with the order of learned chief judicial magistrate, sriganganagar, dated 22.05.2000 in Cas. No. ",processed_document_pdf_3161550_5.mp3 +"63/2000, taking cognizance of offence under S. 420 r/w S. 120-b of the I.P.C. . 2. Respondent no.2, surendra singhla, lodged a police",processed_document_pdf_3161550_6.mp3 +"Cas. against the appellants as well as one satish singhla on 28.04.1998. According to the averments and allegations in the written report, the informant is",processed_document_pdf_3161550_7.mp3 +"a partner of the firm m/s. Rajshree cotton Corp. , sriganganagar, working as broker as well as dealer in the sale and purchase of cotton. The",processed_document_pdf_3161550_8.mp3 +"appellants are directors of m/s. R.p. Taxfab Ltd. , modi nagar, who purchased cotton through informant firm from time to time. As per the accounts, the",processed_document_pdf_3161550_9.mp3 +"informant firm was to receive a sum of rs.47,28,115.80/-. The accused persons without taking the informant into confidence, entered into an agreement for transfer of",processed_document_pdf_3161550_10.mp3 +"management, assets and liabilities of m/s. R.p. Taxfab Ltd. in favour of accused satish singhla and two Ors. who became the new directors. The management",processed_document_pdf_3161550_11.mp3 +of the Co. was transferred on 24.02.1998 and on 27.02.1998 the informant was called by the appellants and told that the outstanding amount payable by,processed_document_pdf_3161550_12.mp3 +"the appellants shall be paid by the new directors. The informant didvijayander kumar & ors vs. state of rajasthan & anr on 11 february, 2014",processed_document_pdf_3161550_13.mp3 +"Ten lacs) and returned cotton yarn worth rs.13,26,560/- settled the dues in part and for the remaining dues they persuaded the informant to accept four",processed_document_pdf_3161550_14.mp3 +post-dated cheques issued by the new director satish singhla. The informant accepted the cheques on being assured by the accused persons that when presented on,processed_document_pdf_3161550_15.mp3 +"due dates the cheques shall be honoured. On such persuasion and trust, the informant signed some typed papers showing that he had agreed to receive",processed_document_pdf_3161550_16.mp3 +the balance amount from the new directors of the Co. and had received draft and goods from the appellants. 3. Besides the aforesaid allegations and,processed_document_pdf_3161550_17.mp3 +"averments in the written information, the informant has also alleged that he would not have signed the said papers nor received the post-dated cheques but",processed_document_pdf_3161550_18.mp3 +for the assurances given by the accused persons in presence of two witnesses. It is further alleged that when the informant presented cheque dated 25.03.1998,processed_document_pdf_3161550_19.mp3 +"for a sum of rs.5,00,000/- (Rs. five lacs) through his bank, the said cheque was dishonoured because accused satish singhla had got the payment of",processed_document_pdf_3161550_20.mp3 +the cheque stopped and that all the accused by mutual consent (conspiracy) have played a fraud and cheated him by making false statement and holding,processed_document_pdf_3161550_21.mp3 +"false assurances whereby they induced him to sign some papers. Allegedly, the accused had full knowledge even before issuing the cheques that these shall not",processed_document_pdf_3161550_22.mp3 +"be honoured and they had such dishonest intention from the beginning. 4. It is not in dispute that when the cheque bounced, the respondent no.2",processed_document_pdf_3161550_23.mp3 +"gave a legal notice and initiated a separate complaint under S. 138 of the NI Act , 1881, besides lodging of the present first information",processed_document_pdf_3161550_24.mp3 +report on 28.4.1998. The complaint filed against the appellants under the NI Act stands quashed by the HC on the basis that they,processed_document_pdf_3161550_25.mp3 +had not issued the cheques in question. The appellants€ earlier petition under S. 482 of the Cr.P.C. for quashing of first information,processed_document_pdf_3161550_26.mp3 +report vide Crl. miscellaneous petition No. 466 of 1998 was dismissed by the HC by order dated 12.02.1999 which is reported in 1999 Crl. ,processed_document_pdf_3161550_27.mp3 +law journal 1849 (vijayander kumar and ors. Vs. State of rajasthan and Anr. ). A perusal of that judgment discloses that the HC considered in,processed_document_pdf_3161550_28.mp3 +"detail the averments and allegations in the FIR and came to the conclusion that in view of allegations and attending circumstances, at that",processed_document_pdf_3161550_29.mp3 +stage it was not possible to hold that the appellants cannot be liable for commission of any offence. The HC held that there was,processed_document_pdf_3161550_30.mp3 +"a Cas. worth investigation. 5. Subsequently, the police concluded investigation and submitted final report to the effect that the Cas. is of Civ. nature. The",processed_document_pdf_3161550_31.mp3 +"learned chief judicial magistrate, sriganganagar, rejected the final report and after hearing the parties took cognizance of the offence under S. 420 r/w S. ",processed_document_pdf_3161550_32.mp3 +120-b of the ipc against all the five accused vide his order dated 22.05.2000. 6. The challenge to that order through a petition under S. ,processed_document_pdf_3161550_33.mp3 +482 of the Cr.P.C. has been rejected by the HC by the order under appeal. 7. Learned Sr. counsel for the,processed_document_pdf_3161550_34.mp3 +appellants drew our attention to some letters and communications such as annexure p.1 and p.2 both dated 27.02.1998 and annexure p.10 dated 24.02.1998 to support,processed_document_pdf_3161550_35.mp3 +his contention that on 24.02.1998 itself the change in the management was brought to the notice of the informant with an intimation that a liability,processed_document_pdf_3161550_36.mp3 +"of rs.23,00,000/- (Rs. twenty three lacs) hasvijayander kumar & ors vs. state of rajasthan & anr on 11 february, 2014",processed_document_pdf_3161550_37.mp3 +Informant received payment from the appellants as well as accepted the post-dated cheques on 27.02.1998 itself. On that basis it has been contended that wrong,processed_document_pdf_3161550_38.mp3 +averments and allegations have been made in the FIR . It is further Cas. of the appellants that the allegations and averments do,processed_document_pdf_3161550_39.mp3 +not make out any Crl. offence. 8. On behalf of the appellants reliance has been placed upon judgments of this court in the Cas. of,processed_document_pdf_3161550_40.mp3 +thermax Ltd. and Ors. vs. K.m.johny and Ors. [1] and in Cas. of dalip kaur and Ors. vs. . Jagnar singh and Anr. [2]. There can be,processed_document_pdf_3161550_41.mp3 +no dispute with the legal proposition laid down in the Cas. of anil mahajan vs. . Bhor industries Ltd. [3] which has been discussed in Para. ,processed_document_pdf_3161550_42.mp3 +31 in the Cas. of thermox Ltd. (supra) that if the complaint discloses only a simple Cas. of Civ. dispute between the parties and there,processed_document_pdf_3161550_43.mp3 +"is an absolute absence of requisite averment to make out a Cas. of cheating, the Crl. proceeding can be quashed. Similar is the law noticed",processed_document_pdf_3161550_44.mp3 +in the Cas. of dalip kaur (supra). In this Cas. the matter was remanded back to the HC because of non-consideration of relevant issues,processed_document_pdf_3161550_45.mp3 +"as noticed in Para. 10, but the law was further clarified in Para. 11 by placing reliance upon judgment of this court in r.kalyani vs. ",processed_document_pdf_3161550_46.mp3 +. Janak c.mehta[4]. It is relevant to extract Para. 11 of the judgment which runs as follows: □11.there cannot furthermore be any doubt that the,processed_document_pdf_3161550_47.mp3 +"HC would exercise its inherent jurisdiction only when one or the other propositions of law, as laid down in r. Kalyani vs. janak c.",processed_document_pdf_3161550_48.mp3 +"Mehta is attracted, which are as under: □(1) the HC ordinarily would not exercise its inherent jurisdiction to quash a Crl. proceeding and, in",processed_document_pdf_3161550_49.mp3 +"particular, a FIR unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no",processed_document_pdf_3161550_50.mp3 +"cognizable offence. (2) for the said purpose the court, save and except in very exceptional circumstances, would not look to any document relied upon by",processed_document_pdf_3161550_51.mp3 +"the defence. (3) such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence,",processed_document_pdf_3161550_52.mp3 +the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or,processed_document_pdf_3161550_53.mp3 +"actus reus. (4) if the allegation discloses a Civ. dispute, the same by itself may not be ground to hold that the Crl. proceedings should",processed_document_pdf_3161550_54.mp3 +not be allowed to continue.‚ 9. Learned Sr. counsel for the appellants also placed reliance upon judgment of this court in the Cas. of devendra,processed_document_pdf_3161550_55.mp3 +"and Ors. vs. . State of uttar pradesh and Anr. [5], only to highlight that a second petition under S. 482 of the code of Crl. ",processed_document_pdf_3161550_56.mp3 +procedure can be entertained because order of magistrate taking cognizance gives rise to a new cause of action. This issue does not require any deliberation,processed_document_pdf_3161550_57.mp3 +"because learned Sr. counsel for the respondent no.2, the informant, has not raised any objection to the maintainability of petition under S. 482 of the",processed_document_pdf_3161550_58.mp3 +"Cr.P.C. vijayander kumar & ors vs. state of rajasthan & anr on 11 february, 2014",processed_document_pdf_3161550_59.mp3 +No.2 has submitted that there is no merit in the contention advanced on behalf of the appellants that the FIR discloses only a,processed_document_pdf_3161550_60.mp3 +Civ. Cas. or that there is no allegation or averment making out a Crl. offence. For that purpose he relied upon judgment of the high,processed_document_pdf_3161550_61.mp3 +"court rendered in the facts of this very Cas. reported in 1999 Crl. law journal, 1849, already noted earlier. 11. No doubt, the views of",processed_document_pdf_3161550_62.mp3 +the HC in respect of averments and allegations in the FIR were in the context of a prayer to quash the first,processed_document_pdf_3161550_63.mp3 +information report itself but in the facts of this Cas. those findings and observations are still relevant and they do not support the contentions on,processed_document_pdf_3161550_64.mp3 +"behalf of the appellants. At the present stage when the informant and witnesses have supported the allegations made in the FIR , it",processed_document_pdf_3161550_65.mp3 +would not be proper for this court to evaluate the merit of the allegations on the basis of documents annexed with the memo of appeal.,processed_document_pdf_3161550_66.mp3 +Such materials can be produced by the appellants in their defence in accordance with law for due consideration at appropriate stage. 12. Learned counsel for,processed_document_pdf_3161550_67.mp3 +the respondents is correct in contending that a given set of facts may make out a Civ. wrong as also a Crl. offence and only,processed_document_pdf_3161550_68.mp3 +because a Civ. remedy may also be available to the informant/complainant that itself cannot be a ground to quash a Crl. proceeding. The real test,processed_document_pdf_3161550_69.mp3 +is whether the allegations in the complaint discloses a Crl. offence or not. This proposition is supported by several judgments of this court as noted,processed_document_pdf_3161550_70.mp3 +in Para. 16 of judgment in the Cas. of ravindra kumar madhanlal goenka and Anr. vs. . Rugmini ram raghav spinners Pvt. Ltd. [6] 13. On,processed_document_pdf_3161550_71.mp3 +considering the facts of the present Cas. it is found that the facts were properly noticed by the HC on earlier occasion while examining,processed_document_pdf_3161550_72.mp3 +the petition preferred by the appellants for quashing of FIR of this Cas. . The same view has been reiterated by the HC ,processed_document_pdf_3161550_73.mp3 +"in the order under appeal for not interfering with the order of cognizance by the learned magistrate. Hence, we do not find any good ground",processed_document_pdf_3161550_74.mp3 +"to interfere with the Crl. proceedings against the appellants at this stage. The appeal is, therefore, dismissed. No costs. 14. It is, however, made clear",processed_document_pdf_3161550_75.mp3 +that observations in this order or in the order under appeal are only for deciding the issues raised at the present stage and shall not,processed_document_pdf_3161550_76.mp3 +affect the defence of the appellants at a subsequent stage of the proceeding. Ƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒc.J. i. (p. Sathasivam) ƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒj. (ranjan gogoi) ƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒƒj. (shiva kirti singh) new,processed_document_pdf_3161550_77.mp3 +"delhi; february 11, 2014. ----------------------- [1] (2011) 13 scc 412 [2] (2009) 14 scc 696 [3] (2005) 10 scc 228 [4] (2009) 1 scc 516",processed_document_pdf_3161550_78.mp3 +"[5] (2009) 7 scc 495vijayander kumar & ors vs. state of rajasthan & anr on 11 february, 2014",processed_document_pdf_3161550_79.mp3 +"-----------------------vijayander kumar & ors vs. state of rajasthan & anr on 11 february, 2014",processed_document_pdf_3161550_80.mp3 +"Smt. Bhavya vs. W/O . Anand on 29 october, 2022 1 Crl. a.no.1181/2021 kabc010292462021 in the court of the lix addl.city Civ. & sessions",processed_document_pdf_157536097_1.mp3 +"judge (cch-60) at bengaluru dated this the 29th day of october, 2022 -: p r e s e n t :- sri.sadananda nagappa naik b.a.l,",processed_document_pdf_157536097_2.mp3 +"l.l.b., lix addl.city Civ. & sessions judge, cch-60, bengaluru city. Crl. appeal no.1181/2021 appellant/ : smt. Bhavya accused W/O . Anand, aged about 40",processed_document_pdf_157536097_3.mp3 +"years, r/at. Teachers colony nandaramaiah palya arisinakunte village nelamangala taluk bengaluru rural district. (by sri.lokesh k.s, adv.) v/s. Respondent/ : yelahanka merchants finance complainant Co. ",processed_document_pdf_157536097_4.mp3 +"hemakumar nagara bypass, b b road, yelahanka, bagalore - 560 064. 2 Crl. a.no.1181/2021 rep by its manager and gpa holder smt anitha w/o. Narendra",processed_document_pdf_157536097_5.mp3 +"kumar (absent.) judgmentsmt. Bhavya vs. W/O . Anand on 29 october, 2022",processed_document_pdf_157536097_6.mp3 +"And order of sentence passed in c.c.no.4611/2018 dated 03.02.2021 on the file of xii acmm, (scch-12) bengaluru (hereinafter referred as impugned judgment and order). 2.",processed_document_pdf_157536097_7.mp3 +Parties to this appeal shall be referred as per their ranking before the trial court for the purpose of convenience and for better appreciation of,processed_document_pdf_157536097_8.mp3 +"their contentions. 3. In the memorandum of appeal, the appellant submitted that, the impugned judgment suffers from J. and equity and therefore the same is",processed_document_pdf_157536097_9.mp3 +"liable to be set aside. As per ex.p.11 loan Appl. , the respondent Co. has issued loan to the appellant/accused for the purpose of improvement of",processed_document_pdf_157536097_10.mp3 +her business during the year 2017. The appellant is no way running any provision store. She has not borrowed any loan for the improvement of,processed_document_pdf_157536097_11.mp3 +the same. The complainant has filed a false complaint. There was a scuffle between the complainant officials and the brother of accused. The accused never,processed_document_pdf_157536097_12.mp3 +obtained any loan from the complainant. She has stood only guarantor of the transaction held between the respondent and her brother dhananjay. For the aforesaid,processed_document_pdf_157536097_13.mp3 +"reasons, appellant has prayed to interfere with the impugned judgment and order and set aside the same. 4. Along with memorandum of appeal, appellant produced",processed_document_pdf_157536097_14.mp3 +certified copy of impugned judgment and order of conviction passed by the trial court in c.c.no.4611/2018 5. Notice to respondent returned as served. Respondent has,processed_document_pdf_157536097_15.mp3 +not appeared before the court and hence the respondent is treated as absent. Heard the arguments addressed by the counsel for the appellant. T.c.r. Were,processed_document_pdf_157536097_16.mp3 +"called for reference in this appeal. 6. Now, following are points that arising for consideration: 1. Whether in the light of evidence and material brought",processed_document_pdf_157536097_17.mp3 +"before the court, trial court is justified in convicting accused/appellant for the offence punishable u/s.138 of n.i.act and sentencing accused for the said offence? 2.",processed_document_pdf_157536097_18.mp3 +Whether interference of this court is necessitated? 3. What order? 7. It is answered for the aforesaid points as under:- point no.1: in the affirmative,processed_document_pdf_157536097_19.mp3 +"point no.2: in the negative point no.3: as per final order below, for the following:- reasons 8. Point no. 1 and 2:- these points are",processed_document_pdf_157536097_20.mp3 +"taken together to avoid repeated discussions. 9. The brief facts of the complaint are as under:smt. Bhavya vs. W/O . Anand on 29 october,",processed_document_pdf_157536097_21.mp3 +2022,processed_document_pdf_157536097_22.mp3 +With all necessary licenses. The accused approached the complainant office on 29.11.2017 and became a member of the Co. vide membership no.2197. The accused filed,processed_document_pdf_157536097_23.mp3 +"a loan Appl. on 30.11.2017 for a sum of rs.4,00,000/-. The said loan was sanctioned to the accused on 04.12.2017 by way of cash with",processed_document_pdf_157536097_24.mp3 +"a condition to repay the same along with interest within a short period. The accused agreed to pay penal interest, recovery expenditure and other incidental",processed_document_pdf_157536097_25.mp3 +"charges in Cas. of accused default to make payment. Further stated that, the accused did not repay the loan properly. Out of the said loan",processed_document_pdf_157536097_26.mp3 +"amount, the accused paid only a sum of rs.83,000/- towards the loan amount. Further, the accused became defaulter towards repayment of loan account. On several",processed_document_pdf_157536097_27.mp3 +"demands and requests made by their Co. , the accused issued a cheque bearing no.111685 dated 18.07.2018 for rs.3,46,220/- drawn on union bank, bangalore city, avenue",processed_document_pdf_157536097_28.mp3 +"road, in the name of complainant Co. towards repayment of loan amount and the accused promised to honor the said cheque maintaining sufficient balance in",processed_document_pdf_157536097_29.mp3 +"her account. 10. It is further stated that, the complainant presented the above said cheque through their banker for collection but the said cheque was",processed_document_pdf_157536097_30.mp3 +"dishonored due to 'funds insufficient' by the bankers endorsement, dated 20.07.2018. The complainant approached the accused and orally informed the accused about the fact of",processed_document_pdf_157536097_31.mp3 +"dishonor of cheque. The complainant also got issued legal notice dated 06.08.2018, calling upon the accused to make the payment covered in the cheque along",processed_document_pdf_157536097_32.mp3 +with interest within 15 days from the date of receipt of legal notice. These facts constrained the complainant to file the present complaint against the,processed_document_pdf_157536097_33.mp3 +"accused for the offence punishable under S. 138 of n.i.act 11. Perused entire order sheets, complaint filed u/s.200 of Cr.P.C. , for",processed_document_pdf_157536097_34.mp3 +"the offence punishable u/s.138 of n.i.act, examination in chief Aff. of the complainant, plea of accusation, contents of exhibited documents ex.p.1 to ex.p.17. 12. So",processed_document_pdf_157536097_35.mp3 +"far as appreciation of evidence is concerned, complainant is examined as p.w.1. P.w.1 has reiterated averments of complaint in his examination in chief. Ex.p.1 is",processed_document_pdf_157536097_36.mp3 +"the cheque, ex.p.2 is the bank challan, ex.p.3 is the bank memorandum, ex.p.4 is the covering letter, ex.p.5 is the office copy of legal notice,",processed_document_pdf_157536097_37.mp3 +"ex.p6 and 7 are the postal covers, ex.p.8 is the postal acknowledgment, ex.p.9 is the postal track consignment, ex.p.10 is the membership Appl. , ex.p.11 is",processed_document_pdf_157536097_38.mp3 +"the loan Appl. , ex.p.12 is the cash receipt, ex.p.13 is the cash aid receipts, ex.p.14 is the account ledger of accused, ex.p.15 is the acknowledgment",processed_document_pdf_157536097_39.mp3 +"of registration of firm, ex.p.16 is the partnership deed and ex.p.17 is the general power of attorney. Therefore, the complainant has successfully discharged initial burden",processed_document_pdf_157536097_40.mp3 +"of proof casts under S. 138 of n.i act. Thereafter, burden shifts on the accused as per presumptions under S. 118 and 139 of n.i",processed_document_pdf_157536097_41.mp3 +act in the form of reverse onus on the accused to rebut presumptions. [ 13. It is settled principle of law as held by house,processed_document_pdf_157536097_42.mp3 +"of lords in vickers sons and maxim ltd., vs. Evans (1910) ac 444 as quoted with approval by the Hon'ble apex court in jamma masjid,",processed_document_pdf_157536097_43.mp3 +mercara vs kodimaniandra deviah and Ors. air 1962 SC 847 and reiterated in shiv shakti co-operativesmt. Bhavya vs. W/O . Anand on 29,processed_document_pdf_157536097_44.mp3 +"october, 2022",processed_document_pdf_157536097_45.mp3 +"Cannot read anything into a statutory provision which is plain and unambiguous. 14. On bare perusal of the object of the NI Act , it",processed_document_pdf_157536097_46.mp3 +shows that the main object of the chapter introducing dishonour of cheque on account of insufficiency of funds as penal offence in the act is,processed_document_pdf_157536097_47.mp3 +"to enhance the acceptability of cheques. In order to attract the ingredients of sec.138 of ni act, the complainant needs to prove that the cheque",processed_document_pdf_157536097_48.mp3 +"drawn by a drawer of the cheque on an account maintained by him issued to the payee in discharge of any debt or other liability,",processed_document_pdf_157536097_49.mp3 +"cheques are presented to bank within three months of the date of cheque and returned by the drawer bank as unpaid, complainant has made a",processed_document_pdf_157536097_50.mp3 +demand for the payment of the said amount of money by giving a notice in writing within 30 days of receipt of information of dishonour,processed_document_pdf_157536097_51.mp3 +"by the bank, and the drawer of such cheque is not made the payment of the said amount of money to the payee within fifteen",processed_document_pdf_157536097_52.mp3 +"days of the receipt of the said notice, then such person shall be deemed to have committed an offence and shall, without prejudice to any",processed_document_pdf_157536097_53.mp3 +"other provisions of the act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend",processed_document_pdf_157536097_54.mp3 +"to twice the amount of the cheque, or with both. 15. It is well settled principle of Crl. jurisprudence that a Crl. trial proceeds on",processed_document_pdf_157536097_55.mp3 +the presumption of innocence of the accused. An accused is presumed to be innocent unless proved guilty. It is the complainant/ prosecution to prove the,processed_document_pdf_157536097_56.mp3 +"guilt of the accused beyond reasonable doubt. However, in respect of offence under S. 138 of the act, although there is a reverse onus Cl. ",processed_document_pdf_157536097_57.mp3 +"contained in Ss. 118 and 139 of the act, the initial burden is on the complainant. 16. It is also a settled proposition of law",processed_document_pdf_157536097_58.mp3 +that the standard of proof which is required from the accused to rebut the statutory presumption under S. 118 r/w S. 139 of the,processed_document_pdf_157536097_59.mp3 +act is preponderance of probabilities. The accused is not required to prove his/ her Cas. beyond reasonable doubt. This onus on the accused can be,processed_document_pdf_157536097_60.mp3 +discharged from the materials available on record and from the circumstantial evidences or even by admissions in the cross examination of complainant and his witnesses.,processed_document_pdf_157536097_61.mp3 +"17. In k. Bhaskaran vs. sankaran vaidhyan balan reported in air 1999 SC 3762, the apex court held that once the signature in the",processed_document_pdf_157536097_62.mp3 +"cheque is admitted to be that of the accused, the presumption envisaged in S. 118 of the n. I. Act can legally be drawn to",processed_document_pdf_157536097_63.mp3 +infer that the cheque was made or drawn for consideration on the date which the cheque bears. 18. In rangappa vs. . Sri mohan reported,processed_document_pdf_157536097_64.mp3 +"in air 2010 SC 1898, a three judges' bench of the SC held that that once issuance of a cheque and signature thereon",processed_document_pdf_157536097_65.mp3 +"are admitted, presumption of a legally enforceable debt in favour of the holder of the cheque arises. It is for the accused to rebut the",processed_document_pdf_157536097_66.mp3 +"said presumption, though accused need not adduce his own evidence and can rely upon the material submitted by the complainant. However, mere statement of the",processed_document_pdf_157536097_67.mp3 +accused may not be sufficient to rebut the said presumption. A post dated cheque is a well recognized mode of payment. 19. In k.S. ranganatha,processed_document_pdf_157536097_68.mp3 +"vs. Vittal shetty reported in 2021 scc online SC 1191, a three judges' bench of the SC held that once the cheque is",processed_document_pdf_157536097_69.mp3 +"admitted to be that of the accused, thesmt. Bhavya vs. W/O . Anand on 29 october, 2022",processed_document_pdf_157536097_70.mp3 +Drawn for consideration on the date which the cheque bears. S. 139 of the act enjoins on the court to presume that the holder of,processed_document_pdf_157536097_71.mp3 +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,processed_document_pdf_157536097_72.mp3 +"that when a cheque is drawn out and is relied upon by the drawee, it will raise a presumption that it is drawn towards a",processed_document_pdf_157536097_73.mp3 +"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",processed_document_pdf_157536097_74.mp3 +raise a probable defence and the standard of proof for rebutting the presumption is on preponderance of probabilities. 20. M/s. Kalemani tax vs. . Balan,processed_document_pdf_157536097_75.mp3 +"(Crl. a.no.123/2021) (ll 2021 p.75) decided on 10.02.2021, a three judges' bench of the SC has observed that even a blank cheque leaf, voluntarily",processed_document_pdf_157536097_76.mp3 +"signed and handed over by the accused, which is towards some payment, would attract presumption under S. 139 of the NI Act , in the",processed_document_pdf_157536097_77.mp3 +"absence of any cogent evidence to show that the cheque is not issued in discharge of a debt. 21. On perusal of records, it is",processed_document_pdf_157536097_78.mp3 +"specifically contended by the accused that she has stood as a guarantor for the loan obtained by her brother. On the contrary, ex.p.10 produced by",processed_document_pdf_157536097_79.mp3 +the complainant shows that she had applied for membership with the Co. on 29.11.2017 and thereafter she has applied for loan of rs.4 lakhs on,processed_document_pdf_157536097_80.mp3 +"30.11.2017 as per ex.p.11 loan Appl. . Thereafter, she has also executed acknowledgment receipt for having received rs.4 lakhs, as per ex.p.12 acknowledgment. Therefore, the contention",processed_document_pdf_157536097_81.mp3 +of the accused that she has only stood as guarantor for loan of her brother and there is no debt or liability cannot be accepted.,processed_document_pdf_157536097_82.mp3 +22. It is not in dispute that accused had obtained the loan and bounced cheque ex.p1 belongs to the bank account of the accused. It,processed_document_pdf_157536097_83.mp3 +"is also not in dispute that signature appearing on the bounced cheque is the signature of the accused. It is also not in dispute that,",processed_document_pdf_157536097_84.mp3 +"cheque presented by the complainant came to be dishonoured by the banker of the accused for the reason stated in the dishonour memo. Therefore, the",processed_document_pdf_157536097_85.mp3 +"complainant has successfully proved the loan advanced to the accused for which the accused issued the cheque in question. Therefore, accused has failed to rebut",processed_document_pdf_157536097_86.mp3 +the presumption. The trial court has rightly held that the accused has not rebutted the presumption arising under S. 139 of n.i.act. 23. In addition,processed_document_pdf_157536097_87.mp3 +to that accused didn't produce any documents to show that accused filed any complaint before jurisdictional police against complainant for misuse of her cheque. Accused,processed_document_pdf_157536097_88.mp3 +did not produce any document to show that he filed Pvt. complaint before the jurisdictional magistrate in this regard. Accused not even produced any documents,processed_document_pdf_157536097_89.mp3 +"to show that, he instructed her banker to 'stop payment' when bounced cheque is presented for realization to show that she is not liable to",processed_document_pdf_157536097_90.mp3 +make any payment under the bounced cheque. 24. This court has compared the reasons assigned by the trial court in the impugned judgment of conviction,processed_document_pdf_157536097_91.mp3 +as discussed above with the allegations made in the memorandum of appeal. No grounds are made out in the memorandum of appeal to interfere with,processed_document_pdf_157536097_92.mp3 +"the impugned judgment of conviction.smt. Bhavya vs. W/O . Anand on 29 october, 2022",processed_document_pdf_157536097_93.mp3 +"Thousand two hundred and twenty Rs. only) was imposed for dishonor of cheque for rs.3,46,220/-. In default of payment of fine, accused is directed to",processed_document_pdf_157536097_94.mp3 +"undergo simple imprisonment for six months. Out of the fine amount, rs.3,46,220/- is ordered to be paid to complainant by way of compensation and rs.5,000/-",processed_document_pdf_157536097_95.mp3 +to the state exchequer. Fine amount imposed is within the purview of S. 138 of n.i.act. Appellant failed to show that sentence imposed is exorbitant.,processed_document_pdf_157536097_96.mp3 +Accused/appellant failed to show that quantum of fine imposed is excessive. There is no merit in the appeal. Order under appeal is sustainable in law.,processed_document_pdf_157536097_97.mp3 +"Hence, interference of this court is not necessary. Accordingly, point no.1 is answered in the affirmative and point no.2 is in the negative. 26. Point",processed_document_pdf_157536097_98.mp3 +"no.3 :- in view of findings on the above points no.1 and 2, this Crl. appeal is devoid of merits and same is liable to",processed_document_pdf_157536097_99.mp3 +"be dismissed by confirming impugned judgment of conviction and order of sentence. Hence, following order is made: order invoking provisions of S. 386 of code",processed_document_pdf_157536097_100.mp3 +"of Crl. procedure , this Crl. appeal filed u/s. 374(3) is dismissed. Consequently, impugned judgment of conviction and order of sentence c.c.no.4611/2018 dated 03.02.2021 on",processed_document_pdf_157536097_101.mp3 +the file of court of xii a.c.m.m (scch-12) is hereby confirmed. Appellant/accused is hereby directed to appear before trial court to deposit the fine amount,processed_document_pdf_157536097_102.mp3 +"or to serve the sentence. Office is hereby directed to send back t.c.r. Along with certified copy of judgment to the trial court, forthwith. (dictated",processed_document_pdf_157536097_103.mp3 +"to the judgment writer directly on computer, script typed by her and corrected, signed and then pronounced by me in the open court on this",processed_document_pdf_157536097_104.mp3 +"29th day of october, 2022.) (sadananda nagappa naik) lix addl.city Civ. & sessions judge, cch-60, bengaluru city. 29.10.2022 judgment pronounced in the open court (vide",processed_document_pdf_157536097_105.mp3 +"separate judgment) order invoking provisions of S. 386 of Cr.P.C. , this Crl. appeal filed u/s. 374(3) is dismissed. Consequently, impugned judgment",processed_document_pdf_157536097_106.mp3 +of conviction and order of sentence c.c.no.4611/2018 dated 03.02.2021 on the file of court of xii a.c.m.m (scch-12) is hereby confirmed. Appellant/accused is hereby directed,processed_document_pdf_157536097_107.mp3 +"to appear before trial court to deposit the fine amount or to serve the sentence.smt. Bhavya vs. W/O . Anand on 29 october, 2022",processed_document_pdf_157536097_108.mp3 +"Forthwith. Lix acc & sj, bengaluru.smt. Bhavya vs. W/O . Anand on 29 october, 2022",processed_document_pdf_157536097_109.mp3 +"Lingaiah vs. m.s.narasimha on 28 january, 2020 in the court of the xxiii addl.chief metropoliton magistrate, nrupathunga road, bengaluru city dated this the 28th day",processed_document_pdf_139458699_1.mp3 +"of january - 2020 present: sri. Shridhara.m, b.a., ll.m., xxiii addl.c.m.m., bengaluru city. C.c.no.12395/2016 judgment under S. 355 of Cr.P.C. complainant :",processed_document_pdf_139458699_2.mp3 +"lingaiah, s/o.late.dyavegowda, aged about 60 years, r/at no.132, 2nd cross, 8th main, binny layout, 1st stage, vijayanagar, bengaluru-40. (rep. By sri.d.leelakrishnan, adv.) v/s accused :",processed_document_pdf_139458699_3.mp3 +"m.s.narasimha, s/o.sanne gowda, aged about 45 years, proprietor, m/s. Maruthi wines, b.m.road, ramanagara, ramanagara district. (rep.by sri.yogesha.v, adv.) offence complained of : u/S. 138 of",processed_document_pdf_139458699_4.mp3 +"NI Act . Plead of the accused : not guilty. Final order : accused is acquitted. Date of order : 28.01.2020. (shridhara.m) xxiii addl.cmm., bengaluru.",processed_document_pdf_139458699_5.mp3 +Judgment 2 c.c.no.12395/2016 judgment the complainant has presented the instant complaint against the accused on 05.04.2016 under S. 200 of Cr.P.C. for,processed_document_pdf_139458699_6.mp3 +"the offence punishable under S. 138 of NI Act ,lingaiah vs. m.s.narasimha on 28 january, 2020",processed_document_pdf_139458699_7.mp3 +"2. In nut shall, the Cas. of the complainant is: in the 1st week of april, 2015, accused had approached the complainant seeking for financial",processed_document_pdf_139458699_8.mp3 +"assistance pleading some urgency and promise to return the same within a short time. Accordingly, the complainant out of consideration of his friendship, lent sum",processed_document_pdf_139458699_9.mp3 +"of rs.10 lakhs in cash on 15.04.2015 on the condition that, accused should refund the same within a short time together with interest at 18%",processed_document_pdf_139458699_10.mp3 +"p.a. From 15.04.2015. The complainant has further alleged that, thereafter, despite repeated requests and personal approaches, the accused did not keep up his promise of",processed_document_pdf_139458699_11.mp3 +"refund the said money nor paid the interest, but postpone the same for one or other pretext. Finally, when complainant confronted the accused and insisted",processed_document_pdf_139458699_12.mp3 +"upon him to repay the loan with interest, then he issued cheque bearing no.292025 for sum of rs.10 lakhs dated:11.11.2015 drawn on state bank of",processed_document_pdf_139458699_13.mp3 +"mysore, mangalwarpet branch, channapatna, in judgment 3 c.c.no.12395/2016 favour of complainant, assuring him to maintain sufficient funds in his account from the date of its",processed_document_pdf_139458699_14.mp3 +"presentation. The complainant has further averred that, believing the words of the accused, when he presented the said cheque for encashment on 01.02.2016 through his",processed_document_pdf_139458699_15.mp3 +"banker viz., Corp. bank, vijayanagar branch, bengaluru-40, he got shock and surprise to see the endorsement stating, the said cheque came to be dishonoured for",processed_document_pdf_139458699_16.mp3 +"the reasons ""funds insufficient"". Thereafter, he contacted the accused and brought the said fact and demanded for its repayment, but the accused profusely excused himself",processed_document_pdf_139458699_17.mp3 +"for the inconvenience caused to the complainant and advised to re-present the said cheque on 11.02.2016. Once again, he re-presented it for his banker, even",processed_document_pdf_139458699_18.mp3 +"then, the same came to be dishonoured for the memo dated:11.02.2016 for the reasons ""funds insufficient"". Thereafter, he gave legal notice to the accused on",processed_document_pdf_139458699_19.mp3 +"25.02.2016 by way of R.P. a.d to his two addresses, the said notice served on accused. Despite that, he either paid the amount covered",processed_document_pdf_139458699_20.mp3 +"under the cheque or not cause any reply. Thereby, he committed the offence punishable under S. 138 of NI Act . Hence, filed the present",processed_document_pdf_139458699_21.mp3 +"complaint. Judgment 4 c.c.no.12395/2016 3. After receipt of the Pvt. complaint, my predecessor in office took the cognizance and got registered the pcr and recorded",processed_document_pdf_139458699_22.mp3 +"the sworn statement. Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process. 4. In response to the",processed_document_pdf_139458699_23.mp3 +"summons, the accused appeared through his counsel and obtained the bail. As required, complaint copy was supplied to the accused.lingaiah vs. m.s.narasimha on 28 january,",processed_document_pdf_139458699_24.mp3 +2020,processed_document_pdf_139458699_25.mp3 +"Same and claimed to have the defence. 5. To prove the Cas. of the complainant, he himself choosen to examined as pw.1 and got marked",processed_document_pdf_139458699_26.mp3 +"exs.p1 to p7. The pw.1 was subjected for cross-examination by the Adv. for the accused. In the cross-examination of dw.1, complainant counsel got confronted two",processed_document_pdf_139458699_27.mp3 +"documents and same are marked as exs.p8 and p9. 6. Thereafter, incriminating evidence made against the accused was recorded under S. 313 of cr.p.c, wherein",processed_document_pdf_139458699_28.mp3 +"the accused denied the same and the answer given by him was recorded. In support of the defence, the accused himself was examined as dw.1",processed_document_pdf_139458699_29.mp3 +"and through himself, he not produced any judgment 5 c.c.no.12395/2016 document. But in the cross-examination of pw.1, accused counsel got confronted five documents and same",processed_document_pdf_139458699_30.mp3 +"are marked as exs.d1 to d5. To prove his probable defence, the accused has also choosen to examined one witness by name shridhar as dw.2.",processed_document_pdf_139458699_31.mp3 +The dw.1 and dw.2 subjected for cross-examination by the Adv. for the complainant. 7. I have heard the arguments of both side counsels. The complainant,processed_document_pdf_139458699_32.mp3 +"counsel has also submitted his detailed written arguments. 8. On going through the rival contentions, based on the substantial evidence available on record, the following",processed_document_pdf_139458699_33.mp3 +"points have been arising for determination: 1) whether the complainant proves beyond the reasonable doubt that, he paid sum of rs.10,00,000/- on 15.04.2015 as hand",processed_document_pdf_139458699_34.mp3 +"loan to the accused, and in turn, for discharge of legal recoverable debt, the accused issued the ex.p1 cheque bearing no.292025, dated:11.11.2015 for sum of",processed_document_pdf_139458699_35.mp3 +"rs.10,00,000/- drawn on state bank of mysore, mangalwarpet branch, channapatna? 2) whether the complainant proves the guilt of the accused for the offence punishable under",processed_document_pdf_139458699_36.mp3 +"S. 138 of NI Act ? 3) what order? 9. On appreciation of materials available on record, my findings on the above points are as",processed_document_pdf_139458699_37.mp3 +"under: judgment 6 c.c.no.12395/2016 point no.1 : in the negative point no.2 : in the negative point no.3 : as per final order, for the",processed_document_pdf_139458699_38.mp3 +"following: reasons 10. Point nos.1 and 2: since both the points are connected with each other, they have taken together for common discussion in order",processed_document_pdf_139458699_39.mp3 +"to avoid repetition of facts.lingaiah vs. m.s.narasimha on 28 january, 2020",processed_document_pdf_139458699_40.mp3 +"Complaint averments in toto, and produced the documents at exs.p1 to p9, they are: a) ex.p1 is the cheque bearing no.292025 issued by the accused",processed_document_pdf_139458699_41.mp3 +"for sum of rs.10,00,000/- dated:11.11.2015, drawn on state bank of mysore, mangalwarpet, channapatna branch. B) ex.p1(a) is the alleged signature of accused. C) exs.p2 and",processed_document_pdf_139458699_42.mp3 +p3 are the bank memos dated: 02.02.2016 and 29.03.2016. D) ex.p4 is the legal notice dated:25.02.2016. E) exs.p5 and p6 are the postal acknowledgment cards.,processed_document_pdf_139458699_43.mp3 +"F) ex.p7 is the unserved R.P. a.d cover. G) ex.p8 is the copy of lease agreement dated:05.08.2013 executed by d.n.lingaraju in favour of m.s.narasimha,",processed_document_pdf_139458699_44.mp3 +who is the accused herein. H) ex.p8(a) is the signature of said m.s.narasimha. Judgment 7 c.c.no.12395/2016 i) ex.p9 is the copy of without possession absolute,processed_document_pdf_139458699_45.mp3 +sale deed dated:07.07.2014 executed by sannegowda and m.s.narasimha in favour of one l.mohan. The pw.1 was subjected to the cross-examination by the Adv. for the,processed_document_pdf_139458699_46.mp3 +"accused. 11. In order to prove the defence of the accused, he himself choosen examined as dw.1 and produced the documents at exs.d1 to d5.",processed_document_pdf_139458699_47.mp3 +They are: a) exs.d1 and d2 are the certified copies of plaints in o.s.nos.61/2016 and 79/2016 filed by complainant herein against one sannegowda and dasegowda,processed_document_pdf_139458699_48.mp3 +and Ors. . B) ex.d3 is the certified copy of written statement in o.s.no.79/2016. C) ex.d4 is the certified copy of i.a no.1 filed by complainant,processed_document_pdf_139458699_49.mp3 +herein under order 39 r 1 and 2 of cpc. D) ex.d5 is the certified copy of order sheet in o.s.no.79/2016.lingaiah vs. m.s.narasimha on 28,processed_document_pdf_139458699_50.mp3 +"january, 2020",processed_document_pdf_139458699_51.mp3 +Filed Aff. evidence and examined as dw.2. The dw.1 and dw.2 were subjected to the cross-examination by the Adv. for the complainant. Apart from lead,processed_document_pdf_139458699_52.mp3 +"defence evidence, the dw.1 through his counsel has produced the citations and relied upon same. They are: a) Crl. a.no.808/2015 judgment 8 c.c.no.12395/2016 b) ilr",processed_document_pdf_139458699_53.mp3 +2006 kar 3579 c) 2000 Crl. l.J. 1988 d) laws (aph) 2004 358 e) laws (bom) 2007 350 f) laws (kar) 2009 8 27 g),processed_document_pdf_139458699_54.mp3 +2013 (3) dcr 460 h) 2003 Crl. l.j. 929 i) 2014 air scw 2158 j) air 2008 SC 1325 k) air 2009 SC ,processed_document_pdf_139458699_55.mp3 +1518 l) ilr 2008 kar 4629 m) air 2010 SC 1898 n) 2009 Crl. l.j. 3454 o) 2010 Crl. l.J. 372 13. While appreciate,processed_document_pdf_139458699_56.mp3 +"the materials on records and evidence, this court has gone through the decisions stated supra apart from the other decisions. 14. After cross-examination of pw.1,",processed_document_pdf_139458699_57.mp3 +"the incriminating evidence made against the accused was read over and explained to him as required under S. 313 of Cr.P.C. ,",processed_document_pdf_139458699_58.mp3 +"then he gave his statement by stating that, by misusing his cheque got obtained through smt.padma, the complainant has filed the false Cas. , by misusing",processed_document_pdf_139458699_59.mp3 +"judgment 9 c.c.no.12395/2016 the same, though he not borrowed any loan from the complainant as alleged in the complaint.lingaiah vs. m.s.narasimha on 28 january, 2020",processed_document_pdf_139458699_60.mp3 +Dw.1. The accused in brief has contended that: the accused not borrowed the loan of rs.10 lakhs as alleged by the complainant in the month,processed_document_pdf_139458699_61.mp3 +"of april, 2015 and no such transaction took place as such. The complainant came to know him in the year 2013 and for his necessities,",processed_document_pdf_139458699_62.mp3 +"he borrowed rs.25 lakhs through karnataka bank ltd., cheque from the complainant on the security of obtaining signed blank bond paper and 5 cheques drawn",processed_document_pdf_139458699_63.mp3 +"on state bank of mysore, mangalawarpet, channapatna. The accused has also contended that, the complainant took shyamasundar bar for monthly rent of rs.75,000/- and the",processed_document_pdf_139458699_64.mp3 +"said rent was paid by the accused to the land lord, inspite pay the interest of rs.75,000/- on the rs.25 lakhs loan borrowed from the",processed_document_pdf_139458699_65.mp3 +"complainant at monthly interest at 3%, the accused got paid the said interest payable to the complainant to the landlord smt.padma of the complainant regularly.",processed_document_pdf_139458699_66.mp3 +"Thereafter, in the month of february, 2015, the accused repaid rs.25 lakhs to the complainant, but he not returned the security documents received judgment 10",processed_document_pdf_139458699_67.mp3 +"c.c.no.12395/2016 from him such as, singed bond paper and cheques, whenever he asked for return the same. The complainant assured him that, it was kept",processed_document_pdf_139458699_68.mp3 +"somewhere else, after trace out the same would return to the accused. Despite, the accused made several requests for return of those documents, the complainant",processed_document_pdf_139458699_69.mp3 +"without return the same, misused those documents and filed the present complaint. The accused also contended that, after repayment of the entire loan of rs.25",processed_document_pdf_139458699_70.mp3 +"lakhs to the complainant, he stopped payment of interest to the complainant by way of handed over the same as rentals to the landlord smt.padma.",processed_document_pdf_139458699_71.mp3 +"The accused has also contended that, he took the loan of rs.25 lakhs from the complainant on the interest at 18% p.a. But he took",processed_document_pdf_139458699_72.mp3 +"the interest at 3% p.m. At rs.75,000/-, from the accused and the said money was paid to smt.padma on behalf of complainant towards the rent",processed_document_pdf_139458699_73.mp3 +"of bar premises inevitably. The complainant inspite of return the signed blank bond paper and cheques obtained as security, filed the false Cas. against the",processed_document_pdf_139458699_74.mp3 +"accused by misusing the same. Hence, prayed for his acquittal. 16. To prove the contention of the accused, regarding repayment of the loan of rs.25",processed_document_pdf_139458699_75.mp3 +"lakhs to the complainant, he choosen to examined one shridhar as dw.2. Who examined on judgment 11 c.c.no.12395/2016 oath and deposed that, the accused called",processed_document_pdf_139458699_76.mp3 +"him in the month of february, 2015 by saying that, would go to shyamsundar bar at channapatana and he went along with the accused. Wherein,",processed_document_pdf_139458699_77.mp3 +"the complainant sat inside one room alone, when the accused and dw.1 went inside and sat beside him. By that time, accused took rs.25 lakhs",processed_document_pdf_139458699_78.mp3 +"from his bag and handed over to the complainant. The complainant has counted the said money and kept with him and at that time, accused",processed_document_pdf_139458699_79.mp3 +"asked him to return the bond paper and cheques, which took for security for the said loan, then complainant told him that, it was kept",processed_document_pdf_139458699_80.mp3 +"somewhere else, after trace out the same would return.lingaiah vs. m.s.narasimha on 28 january, 2020",processed_document_pdf_139458699_81.mp3 +"Paid money to the complainant, he not returned the cheques and by misusing the same filed the false Cas. . The dw.1 and dw.2 were also",processed_document_pdf_139458699_82.mp3 +"subjected for cross-examination. 18. In this Cas. , the accused has not admitted the claim of complainant put forth in the present complaint. However, he took",processed_document_pdf_139458699_83.mp3 +"specific defence as re-produced above. That apart, he choosen to entered into witness box, examined as dw.1 and witness examined as dw.2 and relied upon",processed_document_pdf_139458699_84.mp3 +"the documents at exs.d1 to judgment 12 c.c.no.12395/2016 d5. No doubt, the initial presumption as per Ss. 118 and 139 of NI Act , is",processed_document_pdf_139458699_85.mp3 +"to be drawn in favour of complainant unless and until contrary prove. If at all, the accused has admitted the claim of complainant, then, question",processed_document_pdf_139458699_86.mp3 +"of prove the contrary does not arise. But, in the Cas. on hand, the accused attack on the claim of complainant with documentary as well",processed_document_pdf_139458699_87.mp3 +"as oral evidence, coupled with eye witness, as to whatever the loan of rs.25 lakhs borrowed, claimed to be repaid in the presence of dw.2.",processed_document_pdf_139458699_88.mp3 +"Therefore, it is the initial burden on the accused to rebut the Cas. of complainant. 19. On going through the rival contentions of the parties,",processed_document_pdf_139458699_89.mp3 +"the fact that, the complainant and accused are known to each other is not in dispute. The fact that, the complainant was obtained shyamasundar bar",processed_document_pdf_139458699_90.mp3 +"at channapata from the landlord smt.padma is not in dispute. The fact that, the accused was the middle person in obtaining the shyamasundar bar and",processed_document_pdf_139458699_91.mp3 +"restaurant on lease from smt.padma is not in dispute. The fact that, the cause title addresses of complainant and accused is not in dispute. The",processed_document_pdf_139458699_92.mp3 +"fact that, the accused took the loan of rs.25 lakhs from the complainant by way of cheque is not in dispute. The fact that, the",processed_document_pdf_139458699_93.mp3 +lease agreement dated:05.08.2013 entered into between complainant and accused in respect of running the maruthi wine judgment 13 c.c.no.12395/2016 shop on the lease of rs.18,processed_document_pdf_139458699_94.mp3 +"lakhs is not in dispute. The fact that, the recitals made mentioned in the said lease agreement at ex.p8 dated:05.08.2013 is not in dispute. The",processed_document_pdf_139458699_95.mp3 +"fact that, as per ex.p8 sum of rs.18 lakhs was leased out by the complainant to the accused is not in dispute. The fact that,",processed_document_pdf_139458699_96.mp3 +"in respect of the said premises for doing wine shop business, the accused has to pay rs.65,000/- as monthly rent to the complainant for the",processed_document_pdf_139458699_97.mp3 +"period of 5 years is also not in dispute. 20. The fact that, the accused sold his property along with his father sannegowda, as per",processed_document_pdf_139458699_98.mp3 +"ex.d9 in favour of l.mohan for the sale consideration of rs.50 lakhs by virtue of registered instrument is not in dispute. The fact that, the",processed_document_pdf_139458699_99.mp3 +complainant has filed original suit in o.s.no.61/2016 as per ex.d1 against the accused and his father sannegowda for the relief of recovery of money of,processed_document_pdf_139458699_100.mp3 +"rs.30 lakhs alleged to be paid as loan on 26.07.2013 is not in dispute. The fact that, the complainant herein also filed Anr. suit as",processed_document_pdf_139458699_101.mp3 +per ex.d5 in o.s.no.79/2016 against one dasegowda and his children rakesh and rekhavathi as per ex.d2 before Sr. Civ. judge at channapatna for the relief,processed_document_pdf_139458699_102.mp3 +"of specific relief based on the alleged agreement dated:12.12.2013 is not in dispute. The fact that, the said suits are still pending is not in",processed_document_pdf_139458699_103.mp3 +"dispute. Judgment 14 c.c.no.12395/2016 21. The fact that, questioned cheque and signature therein is of the accused is not in dispute. The fact that, the",processed_document_pdf_139458699_104.mp3 +"said cheque came to be dishonoured for the reasons 'funds insufficient' is not inlingaiah vs. m.s.narasimha on 28 january, 2020",processed_document_pdf_139458699_105.mp3 +"Accused in his cross- examination is not in dispute. The fact that, the compliance of mandatory provision is not in dispute. 22. In this Cas. ,",processed_document_pdf_139458699_106.mp3 +"to prove the probable defence of the accused himself examined as dw.1, who specifically defended the claim of the complainant. By specifically contended that, he",processed_document_pdf_139458699_107.mp3 +not borrowed the alleged loan of rs.10 lakhs and got issuance of questioned cheque to the complainant for its repayment. But as put forth his,processed_document_pdf_139458699_108.mp3 +"specific defence stating, in the year, 2013, he borrowed loan of rs.25 lakhs from the complainant through is Corp. bank cheque and for its repayment,",processed_document_pdf_139458699_109.mp3 +"he took 3 singed blank bond papers and 5 cheques drawn on state bank of mysore, mangalawarpet branch, as security. There was understanding between complainant",processed_document_pdf_139458699_110.mp3 +"and accused, with the shyamsundar bar owner smt.padma that, inspite of accused pay the interest rs.75,000/- per month on rs.25 lakhs at rs.3% p.m., the",processed_document_pdf_139458699_111.mp3 +"said interest amount as rent is to be payable by the accused to the landlord smt.padma. Accordingly, he paid the interest as rentals to judgment",processed_document_pdf_139458699_112.mp3 +"15 c.c.no.12395/2016 smt.padma and in the meanwhile, he returned the entire loan amount of rs.25 lakhs to the complainant in the year 2015. Despite, he",processed_document_pdf_139458699_113.mp3 +"repaid the money, the complainant has not returned the singed blank stamp papers and cheques, but filed the false Cas. . The dw.1, subjected for the",processed_document_pdf_139458699_114.mp3 +"cross-examination, wherein, also he re-asserted the said contention, as to borrowal of loan of rs.25 lakhs for meet out his ill-health in the year 2013,",processed_document_pdf_139458699_115.mp3 +"as emergent loan. He also deposed that, he told him that, he would return the said money on the interest at 18% p.a. 23. The",processed_document_pdf_139458699_116.mp3 +"accused clearly admitted the signature made mentioned in the questioned cheque at ex.p1 as of him. More categorically he deposed that, in the month of",processed_document_pdf_139458699_117.mp3 +"february, 2015 by sold the property of his father, which was rs.3 crores of land for rs.50 lakhs and by taking the advance of rs.45",processed_document_pdf_139458699_118.mp3 +"lakhs and returned the money of rs.25 lakhs to the complainant in the presence of his friend shridhar, who is none other than dw.2. The",processed_document_pdf_139458699_119.mp3 +"said payment made by the accused is not denied by the complainant by way of suggestion, thereby, admitted the receipt of rs.25 lakhs from the",processed_document_pdf_139458699_120.mp3 +"accused. Even the dw.1 has specifically re-asserted that, as per ex.p8, the lease was entered into between complainant and accused in respect of maruthi wines",processed_document_pdf_139458699_121.mp3 +"stores on 05.08.2013. Thereby, none of the parties have not disputed its recitals, as to the lease amount of judgment 16 c.c.no.12395/2016 rs.18 lakhs as",processed_document_pdf_139458699_122.mp3 +"well as monthly rent at rs.65,000/- as found in ex.p8. By way of producing ex.p8, though rival parties have not contended anything, it discloses about",processed_document_pdf_139458699_123.mp3 +"other than the complaint allegations, there was the money transaction of rs.25 lakhs and the lease entered into in respect of maruthi wines between complainant",processed_document_pdf_139458699_124.mp3 +"and accused. 24. The dw.1 in his cross-examination, clearly stated that, inspite of pay the interest on rs.25 lakhs to the complainant, he paid the",processed_document_pdf_139458699_125.mp3 +rentals in respect of the said bar to the owner by name smt.padma on behalf of complainant. The said factum is also not denied by,processed_document_pdf_139458699_126.mp3 +"the complainant side by way of making any suggestions. Even, the repayment of money to the complainant of rs.25 lakhs in the presence of dw.2",processed_document_pdf_139458699_127.mp3 +"is also not denied. 25. That apart, the dw.1 choosen to examined the dw.2, in regard to repayment of rs.25 lakhs to the complainant in",processed_document_pdf_139458699_128.mp3 +"his bar. Though, dw.2 was subjected for cross-examination, the said payment made by the accused to the complainant of rs.25 lakhs in the presence of",processed_document_pdf_139458699_129.mp3 +"dw.1 remainslingaiah vs. m.s.narasimha on 28 january, 2020",processed_document_pdf_139458699_130.mp3 +"Nothing has elicited from the moth of dw.1 and dw.2, as to the non-payment of rs.25 lakhs as such. Therefore, whatever judgment 17 c.c.no.12395/2016 the",processed_document_pdf_139458699_131.mp3 +"transaction restricted to rs.25 lakhs paid by the complainant through cheque to the accused in the year, 2013, came to be repaid by the accused",processed_document_pdf_139458699_132.mp3 +"to the complainant in the presence of dw.2 in the year 2015 stands proved. Meanwhile, as to the payment of interest to the complainant, the",processed_document_pdf_139458699_133.mp3 +accused has paid the interest as rentals to smt.padma on behalf of complainant till he clear the loan of rs.25 lakhs to the complainant is,processed_document_pdf_139458699_134.mp3 +"also not disproved by the complainant. Therefore, whatever the specific stand taken by the accused coupled with producing the documents at exs.d1 to d5 remains",processed_document_pdf_139458699_135.mp3 +"unchallenged, which made clear that, the transaction for rs.25 lakhs held between complainant and accused got closed. Even, whatever the transaction in respect of bar",processed_document_pdf_139458699_136.mp3 +"and restaurant or wine shop held between complainant and accused also came to be closed and in that regard, the complainant has not made any",processed_document_pdf_139458699_137.mp3 +"claim against the accused. Whatever the defence taken by the accused stands proved by producing oral as well as documentary evidence on record. Therefore, as",processed_document_pdf_139458699_138.mp3 +"required under S. 139 of NI Act , it is reverse burden casted upon the complainant to prove his Cas. , beyond the reasonable doubt. It",processed_document_pdf_139458699_139.mp3 +"is well worthy to cite the decision reported in 2008 air scc 7702 (p. Venugopal v/s.madan p. Sarathi). Wherein, it was pleased to held by",processed_document_pdf_139458699_140.mp3 +"the Hon'ble division bench of the Hon'ble apex court that: judgment 18 c.c.no.12395/2016 ""the presumption raised does not extent to the expenditure that cheque was",processed_document_pdf_139458699_141.mp3 +"issued for the discharge of any debt or liability. Which is required to be proved by the complainant. However, it is essentially a question of",processed_document_pdf_139458699_142.mp3 +"fact"". In the decision reported in ilr 2009 kar 1633 (kumar exports v/s. Sharma carpets). Wherein, it was pleased to held by the Hon'ble apex",processed_document_pdf_139458699_143.mp3 +"court that: (d) NI Act , 1881, Ss. 118, 139 and 138 - presumption under Ss. 118 and 139 - how to be rebutted -",processed_document_pdf_139458699_144.mp3 +"standard of proof required rebuttal - held, rebuttal does not require proof beyond reasonable doubt - something probable has to be brought record - burden",processed_document_pdf_139458699_145.mp3 +of proof can be shifted back to complainant by producing convincing circumstantial evidence - thereafter the said presumption arising under S. 118 and 139 Cas. ,processed_document_pdf_139458699_146.mp3 +"to operate - to rebut said presumption accused can also rely upon presumptions under evidence act, 1872 S. 114 (common course of natural even human",processed_document_pdf_139458699_147.mp3 +"conduct and public and Pvt. business) - evidence act, 1872 - S. 114 - presumptions of fact under"". In the decision of air 2008 supreme",processed_document_pdf_139458699_148.mp3 +"court 278 between john k john v/s. Tom verghees, the Hon'ble apex court it is held that: judgment 19 c.c.no.12395/2016 ""the presumption under S. 139",processed_document_pdf_139458699_149.mp3 +could be raised in respect of some consideration and burden is on the complainant to show that he had paid amount shown inlingaiah vs. m.s.narasimha,processed_document_pdf_139458699_150.mp3 +"on 28 january, 2020",processed_document_pdf_139458699_151.mp3 +"Accused, it is equally necessary to know how the complainant advanced such a huge amount"". 26. From the point of above dictums also, it was",processed_document_pdf_139458699_152.mp3 +"the reverse burden casted upon the complainant to establish the very Cas. beyond the reasonable doubt in order to convict the accused. 27. No doubt,",processed_document_pdf_139458699_153.mp3 +"strong specific defence taken by the accused coupled with oral as well as documentary evidence, he successfully rebutted the very Cas. put forth by the",processed_document_pdf_139458699_154.mp3 +"complainant, as to the alleged loan of borrowal of rs.10 lakhs on 15.04.2015, hence, it is reverse burden on the complainant as per S. 139",processed_document_pdf_139458699_155.mp3 +"of NI Act , to prove the very Cas. beyond the reasonable doubt. In that back drop, it requires to appreciate the evidence of complainant.",processed_document_pdf_139458699_156.mp3 +"28. The complainant has specifically contended that, during 1st week of april, 2015, the accused sought him for financial assistance of rs.10 lakhs as short",processed_document_pdf_139458699_157.mp3 +"term loan, accordingly, considering the friendship, he gave it to him on 15.04.2015 by way judgment 20 c.c.no.12395/2016 of cash, subject to liability the same",processed_document_pdf_139458699_158.mp3 +"as interest at 18% p.a., on the said money within short period. On going through the said contention of the complainant, it discloses, he projected",processed_document_pdf_139458699_159.mp3 +"the Cas. , the accused being a friend asked him for financial assistance and has placed the defence by the accused, the complainant has not narrated",processed_document_pdf_139458699_160.mp3 +"any one of the monetary or property transaction held between complainant and accused or with the father of accused. Straightaway projected, he lent of sum",processed_document_pdf_139458699_161.mp3 +"of rs.10 lakhs on 15.04.2015 in cash, as hand loan. The complainant has not whispered anything about the security document at the time of alleged",processed_document_pdf_139458699_162.mp3 +"lent of loan and even not produced any document, in that regard, no pleading as such. Therefore, it requires to appreciate the evidence of pw.1.",processed_document_pdf_139458699_163.mp3 +"29. The complainant subjected for cross-examination and he deposed that, he was working as assistant manager in the keonics institute of the Govt. of karnataka",processed_document_pdf_139458699_164.mp3 +"till 2015. From suggest, so it made clear that, he was also the Govt. employee. No doubt, in the further cross-examination, he deposes, he is",processed_document_pdf_139458699_165.mp3 +"semi Govt. employee, in order to show that, he is independent in taking decision or doing any monetary transaction without reporting or obtaining previous permission",processed_document_pdf_139458699_166.mp3 +"from the competent Auth. , he not produced any document. Judgment 21 c.c.no.12395/2016 when, the complainant was working in public domine, it is him to report",processed_document_pdf_139458699_167.mp3 +"each and every financial transaction held between complainant and accused to the higher Auth. , but as said by him, no such permission or report is",processed_document_pdf_139458699_168.mp3 +"made by him. Therefore, it clear that, the very act of the complainant is against the necessary conduct rules governs the Govt. employee. Therefore, whatever",processed_document_pdf_139458699_169.mp3 +"the alleged transaction held between complainant and accused, as alleged in the complaint to an extent of exchange of money for the tune of rs.20",processed_document_pdf_139458699_170.mp3 +"lakhs involved in the present Cas. as well as Anr. Cas. filed by him, without notice to the employer, the complainant did the said transaction,",processed_document_pdf_139458699_171.mp3 +"it is him to explain, as to the mobilization of fund of rs.20 lakhs as well as doing the bar and restaurant business, as alleged",processed_document_pdf_139458699_172.mp3 +"by him based on ex.p8, which was alleged to be held between accused and one d.n.lingaraju s/o late.d.l.nanjundaiah. How the said document is relevant to",processed_document_pdf_139458699_173.mp3 +"the Cas. of complainant is not been property explained.lingaiah vs. m.s.narasimha on 28 january, 2020",processed_document_pdf_139458699_174.mp3 +"That, the accused has run the wine shop business, as contemplated in ex.p8. The lease for the period of more than 11 months, it requires",processed_document_pdf_139458699_175.mp3 +"to be register. But ex.p8 document, was made on rs.200/- worth stamp paper and judgment 22 c.c.no.12395/2016 appears to be no complied the requisite of",processed_document_pdf_139458699_176.mp3 +"provision of registration act. 31. The complainant claimed to be worked as assistant manager in keonics institute of Govt. of karnataka. He does not discloses,",processed_document_pdf_139458699_177.mp3 +"how he mobilized the fund and on whose presence, he paid the hard cash either rs.10 lakhs in the present Cas. or Anr. sum of",processed_document_pdf_139458699_178.mp3 +"rs.10 lakhs involved in the Anr. Cas. filed by him in c.c.no.12396/2016. In the pleading, the complainant has not narrated that, he had the earlier",processed_document_pdf_139458699_179.mp3 +"monetary transaction with accused or his father. But in his cross- examination, he deposed that, earlier to the alleged loan transaction dated:15.04.2015, he had Anr. ",processed_document_pdf_139458699_180.mp3 +"monetary transaction of rs.30 lakhs with the accused. In that juncture, he not discloses, whether the transaction was concluded or not. But his own evidence",processed_document_pdf_139458699_181.mp3 +"discloses that, prior to the alleged loan transaction dated:15.04.2015 there was rs.30 lakhs monetary transaction held between complainant and accused. The accused has taken up",processed_document_pdf_139458699_182.mp3 +"the specific defence that: ""€r-1 z□‚ƒai„…†‡ p□tˆ‰g„…‚„ g„šb25 ‹p„œ □□‹‚„ž„…□ dgƒš□‘uƒ €□q„…‚„ □„az„’„s“ ’„sz„”vƒu□v, dgƒš□‘•…az„ 5 s□† □„– ‚„i□rz„ zƒp„…—u„˜„ž„…□ ™„qƒz„…pƒšaq„…, c‚„šu„˜„ž„…□ judgment 23 c.c.no.12395/2016",processed_document_pdf_139458699_183.mp3 +"z„…g„…™„aiƒš□u„™„r‰p„ƒšaq„…, dgƒš□‘ ›g„…z„œ zƒp□ ’žž□ÿ ™„”p„g„t‚„ž„…□ z□r‹… ‚„i□rzƒ □žƒ jaz„gƒ □„jai„…‹‡. □□qœ □„¡v„b ‚„……az„…‚„gƒz„… dgƒš□‘•…az„ ™„qƒz„av„¢„ □„– ‚„i□rz„ 3 jaz„ 5 zƒp„…—u„˜„… ž„ž„□ £¤ eg„£¢„…z„…,",processed_document_pdf_139458699_184.mp3 +"c‚„šu„˜„ž„…□ f ™„”p„g„tz„†‡ ¢□dg„…™„r□„‹… v„ƒšaz„gƒ e‹‡."" 32. On going through the above testimony of pw.1, the suggestion made by the accused, though denied by the",processed_document_pdf_139458699_185.mp3 +"complainant, it reveal the defence of the accused that, as found in ex.d1, when the complainant gave loan of rs.25 lakhs to the accused, complainant",processed_document_pdf_139458699_186.mp3 +took five singed blank cheques from the accused as security and got bounced the cheques and filed false cases. But it is significant fact to,processed_document_pdf_139458699_187.mp3 +"note that, the pw.1 has clearly admitted the possession of 3 to 5 singed blank cheques of the accused with him and he had no",processed_document_pdf_139458699_188.mp3 +"impediment to produce the same. 33. The said clear cut admission made by the pw.1 reveal that, apart from questioned cheque involved in the present",processed_document_pdf_139458699_189.mp3 +"Cas. as well as in c.c.no.12396/2016, the complainant possessed other 3 to 5 singed blank cheques of the accused is not disputed. If at all,",processed_document_pdf_139458699_190.mp3 +"the transaction held between complainant and accused genuine, definitely, why he got retained the other 3 to 5 signed blank cheques of the accused is",processed_document_pdf_139458699_191.mp3 +not been explained. The very act of judgment 24 c.c.no.12395/2016 the pw.1 in collecting other singed blank cheques of the accused reveal the purpose of,processed_document_pdf_139458699_192.mp3 +"very transaction. The accused also clearly admitted in the said evidence that, he borrowed loan of rs.25 lakhs from the complainant. Even, in his further",processed_document_pdf_139458699_193.mp3 +"cross- examination made to pw.1, it was suggested that, whatever the loan borrowed by the accused from the complainant in the year 2013, got cleared",processed_document_pdf_139458699_194.mp3 +"by him, in the presence of dw.2. The said evidence of dw.1 and dw.2 clearly manifest the loan cleared by the accused, whatever he took",processed_document_pdf_139458699_195.mp3 +"earlier in the year 2013. As per the say of dw.1, he got cleared thelingaiah vs. m.s.narasimha on 28 january, 2020",processed_document_pdf_139458699_196.mp3 +"Year 2013, between complainant and accused, without clearing the said loan transaction, once again, how the complainant being a Govt. employee, once again took the",processed_document_pdf_139458699_197.mp3 +risk to pay the loan of rs.25 lakhs involved in the present Cas. as well as other Cas. is not been satisfactorily explained. 34. In,processed_document_pdf_139458699_198.mp3 +"the present Cas. , the complainant has not narrated about the lent of total amount on 15.04.2015. This court has taken judicial notice that, the very",processed_document_pdf_139458699_199.mp3 +"complainant herein has filed separate cheque bounce cases, in the present Cas. as well as in c.c.no.12396/2016 alleged to be paid rs.20 lakhs to the",processed_document_pdf_139458699_200.mp3 +"accused on 15.04.2015. But in his cross-examination he deposed, how he judgment 25 c.c.no.12395/2016 mobilized the fund and what amount he paid to the accused.",processed_document_pdf_139458699_201.mp3 +"In that regard, in respect of requires to re-produce the relevant portion of cross-examination of pw.1 that: ""dgƒš□‘ □□‹ pƒ□˜„‹… ž„‚„…¥ ‚„…žƒuƒ £az□u„ dv„žƒša¦uƒ, dv„ž„",processed_document_pdf_139458699_202.mp3 +"□ƒ□□–v„ p„šq„ £a¦z„ g„…. Dv„ž„ ¢ƒ□„g„… g□d§ƒ□rg„gƒr¨. D □„az„’„s“ dgƒš□‘ 30 ‹p„œ □□‹ pƒ□¤z„ g„…. Dv„ž„ £¤ ‚„ƒšz„©ƒ□ ‚„ª‚„¢□g„ e¦ z„ jaz„, □„z„j □□‹ €□q„…‚□u„",processed_document_pdf_139458699_203.mp3 +"dgƒš□‘•…az„ ai„i□‚„šzƒ□ z□r©ƒ ™„qƒ¦‹‡."" 35. On going through the above testimony of pw.1, the complainant has deposed that, accused and his friend by name rajashekarreddy",processed_document_pdf_139458699_204.mp3 +"came to his house and requested for the loan of rs.30 lakhs. He clearly admitted that, since, he had the transaction with the accused, while",processed_document_pdf_139458699_205.mp3 +"gave money not obtained any document. Even, in the further cross-examination, the pw.1 has deposed that, the friend of the accused by name rajashekarreddy, who",processed_document_pdf_139458699_206.mp3 +"accompanied the accused at the time of request made as well as alleged receipt of money, though, he knew to him, he not examined the",processed_document_pdf_139458699_207.mp3 +"said rajashekarreddy, as he is the witness to the said transaction. Even, non-examining the said witness, no satisfactory explanation is forth coming from his side.",processed_document_pdf_139458699_208.mp3 +"Judgment 26 c.c.no.12395/2016 36. That apart, in his further cross-examination, he deposed that: ""ž„ž„□ £¤ □„¡‹« ž„u„z„… e¦ v„…. C‹‡zƒ ‚ƒ…¬□„šjž„†‡g„…‚„ ‘v□”f“v„ d‰- ‚„i□g□l ‚„i□rz„…",processed_document_pdf_139458699_209.mp3 +", cz„g„ ¢„t ž„ž„□ £¤ e¦ v„…. D d‰-ai„… z□r©ƒai„…ž„…□ ¢□dg„…™„r□„‹… vƒšaz„gƒ e‹‡. ‚ƒ…¬□„šjž„ €‚ƒ□§„ž„ 50 ‹p„œpƒ— ‚„i□g□l ‚„i□rzƒ ž„…. ‰‰ ž„a.12396/2016 ™„”p„g„tz„†‡ eg„…‚„ □□‹‚„ž„…□",processed_document_pdf_139458699_210.mp3 +"p„šq„ □„z„j €‚ƒ□§„ž„ ‚„i□g□l ‚„i□rz„ ¢„tz„†‡ €□rg„…vƒ-□žƒ. Dgƒš□‘uƒ 3 £□j v„©□ 10 ‹p„œ‚„ž„…□ €□rg„…vƒ-□žƒ. K‘”©□ wau„˜„‹š‡ p„šq„ 10 ‹p„œ €□rz„… , dgƒš□‘ai„… pƒš□jpƒ ‚ƒ…□gƒuƒ ‚ƒ…□",processed_document_pdf_139458699_211.mp3 +"wau„˜„†‡ dv„€uƒ □□‹ €□rzƒ . D □□‹ €□q„…‚□u„ ai„i□‚„šzƒ□ z□r©ƒai„…ž„…□ dgƒš□‘•…z„ £gƒ•…‰pƒšar‹‡, p□g„t dv„ž„†‡ ž„a®pƒ ev„…-."" 37. The pw.1 has deposed that, he had portion",processed_document_pdf_139458699_212.mp3 +"of cash, that apart, he gathered the sale consideration by sold his ancestral property at mysore. He had no impediment to produce the document of",processed_document_pdf_139458699_213.mp3 +"his property, which sold for rs.50 lakhs. If at all, he mobilized the fund as such, definitely, the sale deed alleged to be made by",processed_document_pdf_139458699_214.mp3 +"him, for the reasons better known to him, not produced the same before thislingaiah vs. m.s.narasimha on 28 january, 2020",processed_document_pdf_139458699_215.mp3 +"By the pw.1. But no such document is been placed by him for the judgment 27 c.c.no.12395/2016 reasons better known to him. Though, he deposed,",processed_document_pdf_139458699_216.mp3 +"he had no impediment to produce the same for the reasons better known to him, not produced. 38. That apart, he clearly deposed that, by",processed_document_pdf_139458699_217.mp3 +"sold the site as such, he gave money to the accused involved in the present Cas. as well as in c.c.no.12396/2016. More particularly he deposed,",processed_document_pdf_139458699_218.mp3 +"on three times, rs.10 lakhs each he paid the money to the accused. Even, he deposed that, in the month of april, he paid rs.10",processed_document_pdf_139458699_219.mp3 +"lakhs at his request. Even also deposed, in the month of may, also he paid money to the accused. In that regard, he clearly deposed",processed_document_pdf_139458699_220.mp3 +"that, not obtained any document, as he got belief on him. The said testimony of pw.1, it reveals the allegations against the accused that, he",processed_document_pdf_139458699_221.mp3 +"paid rs.30 lakhs to the accused on installment of rs.10 lakhs each. He deposed, in the month of april and may, also paid rs.10 lakhs",processed_document_pdf_139458699_222.mp3 +"each to the accused. In order to show that, exactly on 15.04.2015, he paid rs.10 lakhs to the accused, he not explained any particulars, on",processed_document_pdf_139458699_223.mp3 +"whose presence, how he gathered money, whether he paid to the accused, no satisfactory explanation is forth coming from his side. If at all, any",processed_document_pdf_139458699_224.mp3 +"prudent person came forward to pay huge amount of rs.10 lakhs each on 3 times, was it possible to pay the same, judgment 28 c.c.no.12395/2016",processed_document_pdf_139458699_225.mp3 +"without any security document, despite, the relationship may be any kind. The alleged payment of money without obtaining security document itself creates doubt. 39. In",processed_document_pdf_139458699_226.mp3 +"the cross-examination of pw.1, he deposed that, in the month of march, 2015, accused asked for the loan and exactly on 10.04.2015, he paid rs.10",processed_document_pdf_139458699_227.mp3 +"lakhs in cash to the accused, the money was within his house. More particularly he deposed that, he already reported about the payment of rs.10",processed_document_pdf_139458699_228.mp3 +"lakhs in his IT returns and he had no impediment to produce the same. More particularly, he deposed that, in all he paid rs.50",processed_document_pdf_139458699_229.mp3 +"lakhs to the accused and made mentioned in his IT returns. If at all, it was his specific contention that, he paid rs.50 lakhs",processed_document_pdf_139458699_230.mp3 +"loan to the accused, including the alleged loan of the present Cas. , definitely, the said IT returns is a primary document, which reveal the",processed_document_pdf_139458699_231.mp3 +"transaction pertaining to undisputed point of time. Though, he stated, he had no impediment to produce the same for the reasons better known to him,",processed_document_pdf_139458699_232.mp3 +"he withheld it also creates doubt, as to the bonafidness of the contention taken by the complainant as such. The non-production of those vital documents,",processed_document_pdf_139458699_233.mp3 +"as to be presume that, since no such transaction is held and not reported to the IT Dept. , he avoided to produce the same.",processed_document_pdf_139458699_234.mp3 +"The alleged transaction made judgment 29 c.c.no.12395/2016 by the complainant with the accused appears to be did unbecoming the Govt. servant. Therefore, it is him",processed_document_pdf_139458699_235.mp3 +"to produce the necessary document, as to brought those transaction to his higher Auth. , as required under the necessary conduct rules, but the same is",processed_document_pdf_139458699_236.mp3 +"lacks is also one of the strong circumstances to suspect the very claim of the complainant. 40. The pw.1 has deposed that, he gave money",processed_document_pdf_139458699_237.mp3 +"to the accused on interest at 18% p.a. Even todo so, as suggested and deposed by him, he not obtained any money lending licence. Even",processed_document_pdf_139458699_238.mp3 +"he deposed that, for recover rs.30 lakhs amount from the accused, he already filed suit in o.s.no.61/2016 against the accused, but he volunteers that, the",processed_document_pdf_139458699_239.mp3 +"said suit and present transaction are altogether different. He clearly admitted the complaint submitted by him at ex.d1 against the accused and his father. Even,",processed_document_pdf_139458699_240.mp3 +"he clearly admitted that, as found in ex.d1, he alleged to be paid sum of rs.25 lakhs by way oflingaiah vs. m.s.narasimha on 28 january,",processed_document_pdf_139458699_241.mp3 +2020,processed_document_pdf_139458699_242.mp3 +"Necessary security document from the accused. The suggestion made to pw.1 that, either as alleged in the present Cas. or as alleged in connected Cas. ",processed_document_pdf_139458699_243.mp3 +"in c.c.no.12396/2016 filed by the complainant against the accused, he not lent loan to the accused, therefore, not obtained any security document. If at all,",processed_document_pdf_139458699_244.mp3 +"judgment 30 c.c.no.12395/2016 any circumstances compelled to the complainant to pay the loan amount to the accused, definitely, could have been paid to him, but",processed_document_pdf_139458699_245.mp3 +"he denied the said suggestion and stated, on faith he paid money. When earlier loan transaction were not cleared and already he initiated the recovery",processed_document_pdf_139458699_246.mp3 +"proceedings, on which basis he faith on the accused is not been satisfactorily explained. 41. It is equally important to focus on the complaint submitted",processed_document_pdf_139458699_247.mp3 +"by the complainant as per ex.d1 in o.s.no.61/2016 before the court. On meticulous perusal of the said complaint particulars, wherein, the complainant has alleged that,",processed_document_pdf_139458699_248.mp3 +"he lent sum of rs.30 lakhs to the accused and in turn, accused got executed loan agreement dated:26.07.2013. On meticulous perusal of the said pleading,",processed_document_pdf_139458699_249.mp3 +"it reveals that, subject to appreciate the rival contentions of the parties pertaining to the said suit, though, no way concern to this Cas. , the",processed_document_pdf_139458699_250.mp3 +"fact that, the complainant projected the said Cas. stating, on 26.07.2013, he lent rs.30 lakhs to the accused and his father. Therefore, it made clear",processed_document_pdf_139458699_251.mp3 +"that, though the alleged loan was lent on 26.07.2013, the said suit came to be filed on 13.07.2016. Therefore, the said plaint reveal the factum",processed_document_pdf_139458699_252.mp3 +"that, in respect of the monetary transaction held between complainant and accused, the suit already initiated. The said plaint also reveals that, since the accused",processed_document_pdf_139458699_253.mp3 +"not paid money to the complainant, he filed suit on judgment 31 c.c.no.12395/2016 13.07.2016. When the accused and his father alleged to be not paid",processed_document_pdf_139458699_254.mp3 +"the loan of rs.30 lakhs from 26.07.2013 till 13.07.2016, under such circumstances, in the middle as alleged in the complaint, when recovering earlier amount, on",processed_document_pdf_139458699_255.mp3 +"which basis the complainant alleged to be lent sum of rs.10 lakhs, which is subject matter of present Cas. alleged to be paid on 15.04.2015.",processed_document_pdf_139458699_256.mp3 +"When earlier money itself is not paid by the accused, once again took the risk to pay the alleged loan of rs.10 lakhs involved in",processed_document_pdf_139458699_257.mp3 +"the present Cas. also created doubt and the complainant not removed the said doubt. 42. That apart, it also discloses, the very complainant herein had",processed_document_pdf_139458699_258.mp3 +"filed suit for specific performance against one dasegowda, rakesh and rekavathi at ex.d5. The said suit was filed for specific performance based on the alleged",processed_document_pdf_139458699_259.mp3 +"sale agreement dated:12.121.2013. No doubt, the accused is not a party to the said proceedings, but reveal the fact that, in the pleading it was",processed_document_pdf_139458699_260.mp3 +"mentioned that, for the sale consideration of rs.27,95,500/-, the complainant had purchased the said property and alleged to be paid the entire sale consideration to",processed_document_pdf_139458699_261.mp3 +"the said sellers on 12.12.2013. Therefore, it made clear that, the complainant had invested huge amount in purchasing the said property subject to the proof",processed_document_pdf_139458699_262.mp3 +"in the said suit. Under such circumstances, he being a judgment 32 c.c.no.12395/2016 Govt. employee, how he gathered the amount either rs.20 lakhs as involved",processed_document_pdf_139458699_263.mp3 +"in 2 cases in c.c.12395/2016 and 12396/2016 as well as he deposed itself created doubt and to show that, he had sufficient amount in his",processed_document_pdf_139458699_264.mp3 +"account, not produced any document. It is pertinent to note that, the entire claim put forth by the complainant by way of filing suits against",processed_document_pdf_139458699_265.mp3 +"the accused and Ors. were defended by the respective defendants. Therefore, it creates doubt, as to the alleged payment of loan, itself the complainant has",processed_document_pdf_139458699_266.mp3 +"to demonstrate the very Cas. by producing oral as well as documentary evidence.lingaiah vs. m.s.narasimha on 28 january, 2020",processed_document_pdf_139458699_267.mp3 +"Cross-examination, the pw.1 has deposed that: ""dgƒš□‘ ‚„i□z□“-2015 g„†‡ ¢„t pƒ□˜„‹… ž„‚„…¥ ‚„…žƒuƒ £a¦z„ g„…. Ž□ž„… 10.04.2015 g„az„… g„š.10 ‹p„œ ¢„t‚„ž„…□ dgƒš□‘uƒ ž„u„z„… g„š™„z„†‡ €□rzƒ.",processed_document_pdf_139458699_268.mp3 +□„z„j ¢„t ž„‚„…¥ ‚„…žƒai„…†‡ ev„…-. Dgƒš□‘uƒ ¢„t €□rzƒ jž„…□‚„ □„‚„…ai„…z„†‡ ž□ž„… ež„š□ □„p□“j p„v„“‚„ªz„†‡ ezƒ . Dgƒš□‘uƒ €□rz„ g„š.10 ‹p„œ ¢„t‚„ž„…□ ž„ž„□ dz□ai„… vƒjuƒ ‚„g„¦ai„…†‡,processed_document_pdf_139458699_269.mp3 +vƒš□j‰zƒ □žƒ. Ž„ž„□ dz□ai„… vƒjuƒ ‚„g„¦ai„…ž„…□ f pƒ□‰ž„†‡ ¢□dg„…‚„i□r‹‡. Ž□ž„… dgƒš□‘uƒ €□rz„ ml…¯ g„š.50 ‹p„œ ¢„t‚„ž„…□ ž„ž„□ dz□ai„… judgment 33 c.c.no.12395/2016 vƒjuƒ ‚„g„¦ai„…†‡ vƒš□j‰zƒ □žƒ.,processed_document_pdf_139458699_270.mp3 +"Ž„ž„□ dz□ai„… vƒjuƒ ‚„g„¦ai„…ž„…□ f pƒ□‰ž„†‡ ¢□dg„… ‚„i□q„‹… ž„ž„uƒ ai„i□‚„šzƒ□ c’„sªav„g„ e‹‡."" 44. The pw.1 has deposed that, in the month of march, 2015, the",processed_document_pdf_139458699_271.mp3 +"accused came to his house and asked for the loan; accordingly, he paid it on 10.04.2015 of rs.10 lakhs in cash, out of the money",processed_document_pdf_139458699_272.mp3 +"kept in his house. The said evidence is contrary to his own pleading that, during 1st week of april, 2015, the accused approached him and",processed_document_pdf_139458699_273.mp3 +"on 15.04.2015, he paid money, the said evidence and pleading of the complainant as to the alleged request made by the accused and the alleged",processed_document_pdf_139458699_274.mp3 +"payment of loan itself contradicts, hence, it does not repose any confidence to believe the Cas. of very complainant. The above testimony also discloses, at",processed_document_pdf_139458699_275.mp3 +"the time of alleged payment of loan, he was in Govt. job and it was mentioned in the IT returns and he also stated,",processed_document_pdf_139458699_276.mp3 +"rs.50 lakhs loan given to accused in the said IT returns and no impediment to produce the said document, but till the end of",processed_document_pdf_139458699_277.mp3 +"this Cas. , he not choosen to produce any such document, perhaps he not paid the loan, as alleged and not returned in his IT ",processed_document_pdf_139458699_278.mp3 +"returns, therefore, he withheld as against his own undertaking. It also one of the strong circumstances to disbelieve the very Cas. of the complainant. Judgment",processed_document_pdf_139458699_279.mp3 +"34 c.c.no.12395/2016 45. In the further cross-examination of pw.1, contrary to his own pleading, he also deposed that: ""ž„ž„□ £¤ □„¡‹« ž„u„z„… e¦ v„…. C‹‡zƒ",processed_document_pdf_139458699_280.mp3 +‚ƒ…¬□„šg□ž„†‡g„…‚„ ‘v□”f“v„ d‰- ‚„i□g□l ‚„i□rz„… cz„g„ ¢„t ž„ž„□ £¤ e¦ v„…. D d‰-ai„… z□r©ƒai„…ž„…□ ¢□dg„…™„r□„‹… vƒšaz„gƒ e‹‡. ‚ƒ…¬□„šjž„ €‚ƒ□§„ž„ 50 ‹p„œpƒ— ‚„i□g□l ‚„i□rzƒ ž„…. ‰‰.ž„a.12396/2016,processed_document_pdf_139458699_281.mp3 +"™„”p„g„tz„†‡ eg„…‚„ □□‹‚„ž„…□ p„šq„ □„z„j €‚ƒ□§„ž„ ‚„i□g□l ‚„i□rz„ ¢„tz„†‡ €□rg„…vƒ-□žƒ. Dgƒš□‘uƒ 3 £□j v„©□ 10 ‹p„œ‚„ž„…□ €□rg„…vƒ-□žƒ. K‘”©□ wau„˜„‹š p„šq„ 10 ‹p„œ €□rz„… , dgƒš□‘ai„…",processed_document_pdf_139458699_282.mp3 +"pƒš□jpƒ ‚ƒ…□gƒuƒ ‚ƒ…□ wau„˜„†‡ dv„€uƒ □□‹ €□rzƒ . D □□‹ €□q„…‚□u„ ai„i□‚„šzƒ□ z□r©ƒai„…ž„…□ dgƒš□‘•…az„ £gƒ•…‰p„šar‹‡, p□g„t dv„ž„†‡ ž„a®pƒ ev„…-."" 46. On going through the said",processed_document_pdf_139458699_283.mp3 +"testimony of pw.1, he deposed that, he had small amount of money cash with him and by sold his property at mysore; he gathered money",processed_document_pdf_139458699_284.mp3 +"and no impediment to produce the sale deed for rs.50 lakhs. For the reasons better known to him, he withheld the saidlingaiah vs. m.s.narasimha on",processed_document_pdf_139458699_285.mp3 +"28 january, 2020",processed_document_pdf_139458699_286.mp3 +"Complainant, for the reasons better known to him, he not produced is also one of the circumstances to disbelieve the judgment 35 c.c.no.12395/2016 version of",processed_document_pdf_139458699_287.mp3 +"pw.1. He also deposed that, not only the amount involved in the present Cas. , but also the amount involved in c.c.no.12396/2016 also paid by sold",processed_document_pdf_139458699_288.mp3 +his property and also contrary to his own pleading deposes; 3 times he gave sum of rs.10 lakhs each to the accused. 47. Both the,processed_document_pdf_139458699_289.mp3 +"cases have filed stating, he lent rs.10 lakhs each, but Anr. rs.10 lakhs, when he gave to the accused and what document were given by",processed_document_pdf_139458699_290.mp3 +"the accused as security for repayment of loan, nothing has been stated by the complainant. Contrary to his own version, he also deposed further that,",processed_document_pdf_139458699_291.mp3 +"in the month of april and may also gave rs.10 lakhs to the accused, but Anr. rs.10 lakhs at 3rd time, when he gave it",processed_document_pdf_139458699_292.mp3 +"to accused, nothing has been elicited. He deposed that, while gave money, he not obtained any security document from him, as he had faith on",processed_document_pdf_139458699_293.mp3 +the accused. The very evidence of pw.1 is gone against his own pleading and contradicts and inspite of the accused rebut the Cas. of the,processed_document_pdf_139458699_294.mp3 +"complainant, the complainant himself has rebutted his Cas. by way of deposing contrary against his own pleading. Therefore, it made clear that, the complainant has",processed_document_pdf_139458699_295.mp3 +"utterly failed to prove that, he had sufficient fund of rs.10 lakhs involved in the present Cas. as on 15.04.2015 and paid to the accused.",processed_document_pdf_139458699_296.mp3 +"Though stated in the presence of witnesses, he gave the said money, but none of the judgment 36 c.c.no.12395/2016 witnesses were examined. Even though stated",processed_document_pdf_139458699_297.mp3 +"that, on 15.04.2015, he gave money to the accused, but no evidence put forth from his mouth in that regard, but deposed contrary. 48. The",processed_document_pdf_139458699_298.mp3 +"complainant has stated, after repeated demands made by him for repayment of the loan, then accused gave the questioned cheque dated:11.11.2015. On perusal of the",processed_document_pdf_139458699_299.mp3 +"signature as well as other writings made in the cheque, it discloses, hand writing and ink are appears to be different. The complainant has utterly",processed_document_pdf_139458699_300.mp3 +"failed to demonstrate, the due execution and issuance of questioned cheque. Therefore, it has to be draw the inference that, for the reasons assigned by",processed_document_pdf_139458699_301.mp3 +"the accused in respect of the other transaction, the complainant took the signed blank cheque of the accused and filed the present Cas. as well",processed_document_pdf_139458699_302.mp3 +"as Cas. in c.c.no.12396/2016. The complainant utterly failed to discharge is reverse burden, as to the alleged lent of loan to the accused and he",processed_document_pdf_139458699_303.mp3 +"gave questioned cheque for repayment of legally recoverable debt. On the other hand, the accused has successfully proved his probable defence by way of cross-",processed_document_pdf_139458699_304.mp3 +"examining the pw.1 as well as himself entered into witness box produced the documentary evidence. Despite, the reverse burden created by the accused on the",processed_document_pdf_139458699_305.mp3 +"complainant, the complainant utterly failed to prove his very Cas. and demonstrate that, for judgment 37 c.c.no.12395/2016 discharge of existence of legally recoverable debt, the",processed_document_pdf_139458699_306.mp3 +"accused got issued accused. 49. Mere because of the signature and cheque belongs to the accused itself is not suffice to draw the inference that,",processed_document_pdf_139458699_307.mp3 +"the said cheque given by the accused for discharge of existence of legally recoverable debt. Whatever the loan amount borrowed by the accused, as he",processed_document_pdf_139458699_308.mp3 +"stated, after obtaining the sale consideration from the purchaser by name l.mohan as per ex.p9 sale agreement got cleared to the complainant, but conceding the",processed_document_pdf_139458699_309.mp3 +"said fact projected the said Cas. , as different loan transaction. The very act of the complainant discloses that, while he was in service without obtaining",processed_document_pdf_139458699_310.mp3 +"prior sanction from the higher Auth. used to did money lending business and collected the interest withoutlingaiah vs. m.s.narasimha on 28 january, 2020",processed_document_pdf_139458699_311.mp3 +"Document by way of filing cheque bounce cases. The very act of the complainant has to be deprecated. However, the accused successfully proved his probable",processed_document_pdf_139458699_312.mp3 +"defence and rebutted the Cas. of the complainant and demanded that, the amount covered under the cheque is not the existence of legally recoverable debt.",processed_document_pdf_139458699_313.mp3 +"Hence, he is not liable to pay the same. Consequently, the Cas. put forth by the complainant is to be negativated by way of acquitting",processed_document_pdf_139458699_314.mp3 +"the accused. Judgment 38 c.c.no.12395/2016 50. On overall appreciation of the material facts available on record, it discloses that, despite the accused harping on the",processed_document_pdf_139458699_315.mp3 +"very claim of the complainant, he fails to demonstrate his very Cas. . While appreciate the materials available on record, this court has humbly gone through",processed_document_pdf_139458699_316.mp3 +"the decision relied by both parties apart from the following decisions. In the decision reported in ilr 2009 kar 2331 (b.indramma v/s. Sri.eshwar). Wherein, the",processed_document_pdf_139458699_317.mp3 +"Hon'ble court held that: ""held, when the very factum of delivery of the cheque in question by the accused to the complainant and its receipt",processed_document_pdf_139458699_318.mp3 +"by complainant from the accused itself is seriously disputed by the accused, his admission in his evidence that, the cheque in question bares his signature",processed_document_pdf_139458699_319.mp3 +"would not be sufficient proof of the fact that, he delivered the said cheque to the complainant and the latter received if from the former"".",processed_document_pdf_139458699_320.mp3 +"51. The principle of law laid down in the above decision is applicable to the facts of this Cas. . Merely because, the accused admits that,",processed_document_pdf_139458699_321.mp3 +"cheque bares his signature, that, does not mean that, the accused issued cheque in discharge of a legally payable debt. Judgment 39 c.c.no.12395/2016 at this",processed_document_pdf_139458699_322.mp3 +"stage, this court also relies upon Anr. decision reported in air 2007 noc 2612 a.p. (g.veeresham v/s. Shivashankar and Anr. ). Wherein, the Hon'ble court has",processed_document_pdf_139458699_323.mp3 +"held as under: ""NI Act (26 of 1881). S.138 dishonour of cheque - presumptions available to complainant under s.118 and s.139 of act -",processed_document_pdf_139458699_324.mp3 +"rebuttal of cheque in question was allegedly issued by accused to discharge hand loan taken from complainant. However, no material placed on record by complainant",processed_document_pdf_139458699_325.mp3 +"to prove alleged lending of hand loan said fact is sufficient to infer that, accused is liable to rebut presumptions available in favour of complainant",processed_document_pdf_139458699_326.mp3 +"under Ss. 118 and 139 of act, order acquitting accused for offence under s.138 proper"". 52. The principle of law laid down in the above",processed_document_pdf_139458699_327.mp3 +"decisions is applicable to the facts of this Cas. . In the Cas. on hand also, as discussed above, the complainant has failed to prove with",processed_document_pdf_139458699_328.mp3 +"cogent evidence as to the lending of loan of rs.10 lakhs to the accused. Thus, that fact itself is sufficient to infer that, accused is",processed_document_pdf_139458699_329.mp3 +"able to rebut presumptions available in favour of complainant under Ss. 118 and 139 of the NI Act .lingaiah vs. m.s.narasimha on 28 january, 2020",processed_document_pdf_139458699_330.mp3 +"(m.s.narayana menon alian mani v/s. State of kerala and Anr. ). The Hon'ble apex court held that: ""once the accused discharges the initial burden placed on",processed_document_pdf_139458699_331.mp3 +"him the burden of proof would revert back to the prosecution"". 53. In this Cas. on hand also, on the lack of the complaint failed",processed_document_pdf_139458699_332.mp3 +"to prove the alleged loan transaction, it can gather the probability that, he is not liable to pay ex.p1 cheque amount of rs.10 lakhs and",processed_document_pdf_139458699_333.mp3 +"it is not legally recoverable debt. So, the burden is on the complainant to prove strictly with cogent and believable evidence that, the accused has",processed_document_pdf_139458699_334.mp3 +"borrowed the cheque amount and he is legally liable to pay the same. Just because, there is a presumption under S. 139 of negotiable instruments",processed_document_pdf_139458699_335.mp3 +"act, that, will not create any special right to the complainant so as to initiate a proceeding against the drawer of the cheque, who is",processed_document_pdf_139458699_336.mp3 +"not at all liable to pay the cheque amount. The accused has taken his defence at the earliest point of time, while record accusation and",processed_document_pdf_139458699_337.mp3 +"statement under S. 313 of Cr.P.C. by way of denial. The evidence placed on record clearly probablize that, complainant has failed to",processed_document_pdf_139458699_338.mp3 +"prove that, accused issued the cheque for discharge of liability of rs.10 lakhs. Hence, complainant has failed to prove judgment 41 c.c.no.12395/2016 the guilt of",processed_document_pdf_139458699_339.mp3 +"accused for the offence punishable under S. 138 of NI Act . 54. From the above elaborate discussions, it very much clear that, the complainant",processed_document_pdf_139458699_340.mp3 +"has failed to adduce cogent and corroborative evidence to show that, accused has issued cheque ex.p1 in discharge of his legally payable debt for valid",processed_document_pdf_139458699_341.mp3 +"consideration. Hence, rebutted the legal presumptions under S. 139 and 118 of NI Act in favour of the accused. 55. The sum and substances",processed_document_pdf_139458699_342.mp3 +"of principles laid down in the rulings referred above are that, once it is proved that, cheque pertaining to the account of the accused is",processed_document_pdf_139458699_343.mp3 +"dishonoured and the requirements envisaged under S. 138 of (a) to (c) of NI Act is complied, then it has to be presumed that,",processed_document_pdf_139458699_344.mp3 +cheque in question was issued in discharge of legally recoverable debt. The presumption envisaged under S. 138 of NI Act is mandatory presumption and,processed_document_pdf_139458699_345.mp3 +"it has to be raised in every cheque bounce cases. Now, it is settled principles that, to rebut the presumption, accused has to set up",processed_document_pdf_139458699_346.mp3 +"a probable defence and he need not prove the defence beyond reasonable doubt. Judgment 42 c.c.no.12395/2016 56. Thus, on appreciation of evidence on record, i",processed_document_pdf_139458699_347.mp3 +"hold that, the complainant has failed to prove the Cas. by rebutting the presumption envisaged under Ss. 118 and 139 of NI Act . The",processed_document_pdf_139458699_348.mp3 +"complainant has failed to discharge the initial burden to prove his contention as alleged in the complaint. Hence, the complainant has not produced needed evidence",processed_document_pdf_139458699_349.mp3 +"to prove that, amount of rs.10 lakhs legally recoverable debt. Therefore, since the complainant has failed to discharge the reverse burden, question of appreciating other",processed_document_pdf_139458699_350.mp3 +things and weakness of the accused is not a ground to accept the claim of the complainant in its entirety without the support of the,processed_document_pdf_139458699_351.mp3 +"substantial documentary evidence pertaining to the said transaction. The complainant fails to prove his caselingaiah vs. m.s.narasimha on 28 january, 2020",processed_document_pdf_139458699_352.mp3 +"Guilt of the accused for the offence punishable under S. 138 of NI Act . Accordingly, i answered the point nos.1 and 2 are negative.",processed_document_pdf_139458699_353.mp3 +"57. Point no.3: in view of my findings on point nos.1 and 2, i proceed to pass the following: order acting under S. 255(1) of",processed_document_pdf_139458699_354.mp3 +Cr.P.C. the accused is acquitted for the offence judgment 43 c.c.no.12395/2016 punishable under S. 138 of NI Act . The bail bond,processed_document_pdf_139458699_355.mp3 +"and cash security/surety bond of the accused stands cancelled. (dictated to stenographer, transcribed and computerized by him, corrected and then pronounced by me in the",processed_document_pdf_139458699_356.mp3 +"open court on this the 28th day of january - 2020) (shridhara.m) xxiii addl. Chief MM , bengaluru. Annexure list of witnesses examined on behalf",processed_document_pdf_139458699_357.mp3 +of complainant: pw-1 : lingaiah list of exhibits marked on behalf of complainant: ex.p1 : original cheque ex.p1(a) : signature of accused exs.p2 & p3,processed_document_pdf_139458699_358.mp3 +: bank endorsements ex.p4 : office copy of legal notice exs.p5 & p6 : postal acknowledgment cards ex.p7 : unserved R.P. a.d cover ex.p8,processed_document_pdf_139458699_359.mp3 +: copy of lease agreement ex.p8(a) : signature of accused ex.p9 : copy of sale deed list of witnesses examined on behalf of the defence:,processed_document_pdf_139458699_360.mp3 +dw.1 : m.s.narasimha dw.2 : shridhar list of exhibits marked on behalf of defence: ex.d1 : cc of plaint in o.s.no.61/2016 ex.d2 : cc of,processed_document_pdf_139458699_361.mp3 +"plaint in o.s.no.79/2016 ex.d3 : cc of written statement judgment 44 c.c.no.12395/2016 ex.d4 : cc of i.a. No.1lingaiah vs. m.s.narasimha on 28 january, 2020",processed_document_pdf_139458699_362.mp3 +"xxiii addl. Chief MM , bengaluru. Judgment 45 c.c.no.12395/2016 28.01.2020. Comp - accd - for judgment judgment pronounced in the open court vide separate order.",processed_document_pdf_139458699_363.mp3 +***** order acting under S. 255(1) of Cr.P.C. the accused is acquitted for the offence punishable under S. 138 of negotiable instruments,processed_document_pdf_139458699_364.mp3 +"act. The bail bond and cash security/surety bond of the accused stands cancelled. Xxiii addl. Chief MM , bengaluru.lingaiah vs. m.s.narasimha on 28 january, 2020",processed_document_pdf_139458699_365.mp3 +"Manan vs. . M/s alkarma page 1 of 24 on 8 june, 2023 in the court of shri harshal negi:mm-05(ni act): south-west district:dwarka courts:new delhi",processed_document_pdf_116482990_1.mp3 +"ct cases no.31118/2019 cnr no.dlsw02-043296-2019 manan s/o sh. Ram dhar prasad r/o h.no.r-3a2/73, block r3a2, mohan garden, uttam nagar new delhi -110059 ...complainant vs. m/s",processed_document_pdf_116482990_2.mp3 +"alkarma 57, rama road, najafgarh road, moti nagar, new delhi -110015 through its partners shri sandeep chaudhary and Ms. . Anjaly chaudhary 57, rama road, najafgarh",processed_document_pdf_116482990_3.mp3 +"road, moti nagar, new delhi -110015 also at: sandeep chaudhary s/o sh. Subhash chaudhary r/o soverign house, house no.c-2/102, vatika city, sector-49, gurugram, haryana ...accused",processed_document_pdf_116482990_4.mp3 +"offence complained of : u/s 138, ni act, 1881 date on which the complaint : 19.08.2019 was instituted plea of the accused : pleaded not",processed_document_pdf_116482990_5.mp3 +"guilty date of pronouncement of judgment : 08.06.2023 judgment 1. Tersely put, the Cas. of the complainant is that accused sandeep chaudhary is the partner",processed_document_pdf_116482990_6.mp3 +of Co. viz. m/s alkarma and was/is looking after the day-to-day affairs of the Co. . It is also the Cas. of the complainant that the,processed_document_pdf_116482990_7.mp3 +complainant was working in the accused Co. . That the payment of salary of the complainant was overdue for a long time. That on 30.11.2017 alkarma,processed_document_pdf_116482990_8.mp3 +"made settlement with the complainant for a sum of rs 3,39,964/-. That to discharge the legal liability the accused issued a total of five cheques",processed_document_pdf_116482990_9.mp3 +"one of the cheques being the cheque in question i.e., cheque bearing no 037355 dated 24.06.2019 of rs 62,741/- and drawn on canara bank, connaught",processed_document_pdf_116482990_10.mp3 +"place branch, new delhi to the complainant with an assurance of its encashment. The complainant presented the cheque in his account which were returned with",processed_document_pdf_116482990_11.mp3 +"the remarks ""contact drawer/drawee bank and present again"" dated 27.06.2019 and also with remarks dated 02.07.2019manan vs. . M/s alkarma page 1 of 24 on",processed_document_pdf_116482990_12.mp3 +"8 june, 2023",processed_document_pdf_116482990_13.mp3 +"08.07.2019 upon the accused through his counsel demanding the said amount. Despite service of aforesaid notice the money was not repaid by the accused. Thereafter,",processed_document_pdf_116482990_14.mp3 +complainant has filed the present complaint Cas. . Material on record 2. The accused entered appearance through counsel on 07.03.2020. Notice under S. 251 cr pc,processed_document_pdf_116482990_15.mp3 +dated 06.04.2021 was framed accordingly to which the accused pleaded not guilty and claimed trial. The accused stated that the blank signed cheques were used,processed_document_pdf_116482990_16.mp3 +to be kept in his office for daily use and the same were taken from the said office and misused. 3. The complainant relied upon,processed_document_pdf_116482990_17.mp3 +the following documents: a) original cheque in question is ex.cw1/a. B) original returning memo is ex.cw1/b. C) copy of legal notice is ex.cw1/c. D) original,processed_document_pdf_116482990_18.mp3 +receipts of postal Dept. is ex.cw1/d to ex.cw1/f. E) tracking reports are ex.cw1/g to ex.cw1/i. F) copy of delivery report is ex.cw1/g to ex.cw1/i. G),processed_document_pdf_116482990_19.mp3 +mark a is settlement deed. H) mark b is settled acknowledgment. H) partnership deed is mark c 4. During the course of the trial the,processed_document_pdf_116482990_20.mp3 +complainant examined himself as cw 1 and one vijay thakur as cw 2. The complainant adopted his pre-summoning evidence as post summoning evidence and was,processed_document_pdf_116482990_21.mp3 +"cross examined on 26.04.2022. In his post summoning evidence, the complainant also relied on original document ex.cw1/j (being the proof of appointment) (this was objected",processed_document_pdf_116482990_22.mp3 +by the counsel for accused as the same was not filed at the time of pse). (court observation: the objection is decided in the favour,processed_document_pdf_116482990_23.mp3 +of the complainant as he is filing the original document at the time of post summoning evidence). The complainant further relied on ex.cw1/k which is,processed_document_pdf_116482990_24.mp3 +the proof of his salary in the firm. He further rely upon id proof ex.cw1/l(osr).manan vs. . M/s alkarma page 1 of 24 on 8,processed_document_pdf_116482990_25.mp3 +"june, 2023",processed_document_pdf_116482990_26.mp3 +"Affirmed that ex.cw1/j, ex.cw1/k and ex.cw1/l were not issued by any partner/accused. He voluntarily stated that the same was issued by the manager of the",processed_document_pdf_116482990_27.mp3 +firm. He denied the suggestion that the manager was not authorised to issue the above said documents. He also affirmed that in all the documents,processed_document_pdf_116482990_28.mp3 +"ex.cw1/j, ex.cw1/k and ex.cw1/l nothing with respect to due amount has been mentioned. He denied the suggestion that documents ex.cw1/j and ex.cw1/k has intentionally and",processed_document_pdf_116482990_29.mp3 +deliberately been issued by vijay thakur in order to settle his personal score and to extort money from the accused despite having no authorisation in,processed_document_pdf_116482990_30.mp3 +his favour to issue the said documents. He also denied the suggestion that the aforementioned documents are forged and fabricated. That he have been working,processed_document_pdf_116482990_31.mp3 +in the firm since 1995 to 30.11.2017. 6. He further affirmed that aforesaid documents do not bear the signature of sandeep chaudhary. He voluntarily stated,processed_document_pdf_116482990_32.mp3 +that the above said documents were issued by the firm. That he was working as supervisor in the accused firm as the same is reflecting,processed_document_pdf_116482990_33.mp3 +in above said document. That the accused never entered into any written settlement with him. He voluntarily stated that the accused has verbally assured in,processed_document_pdf_116482990_34.mp3 +"the presence of other employees and also directed one mr. Vijay thakur, sr. Manager accounts to draft a settlement with him. He further voluntarily stated",processed_document_pdf_116482990_35.mp3 +that he had been supplied a photocopy of the documents which is framed by mr. Vijay thakur at the behest of the accused which is,processed_document_pdf_116482990_36.mp3 +mark-a and mark-b. That he have not mentioned the above said details in his complaint and evidence by way of Aff. . That he have not,processed_document_pdf_116482990_37.mp3 +filed any document which shows that vijay thakur was authorised. He denied the suggestion that vijay thakur was never authorised by the accused. He voluntarily,processed_document_pdf_116482990_38.mp3 +stated that vijay thakur was working in the capacity of sr. Manager accounts and he used to work on the directions of the accused who,processed_document_pdf_116482990_39.mp3 +was the partner of the accused firm. 7. He further denied the suggestion that mr. Vijay thakur was never authorised to enter into settlement on,processed_document_pdf_116482990_40.mp3 +behalf of the firm with any employee of the firm. He voluntarily stated that vijay thakur not entered into settlement and accused only directed the,processed_document_pdf_116482990_41.mp3 +vijay thakur to formulate the settlement. That he used to go to the office of the firm whenever was called by the firm. He denied,processed_document_pdf_116482990_42.mp3 +the suggestion that he entered with the conspiracy with vijay thakur. He further denied the suggestion that he illegally took the blank signed cheque in,processed_document_pdf_116482990_43.mp3 +question in connivance with vijay thakur. That since he was the employee of the firm it is quite natural that he used to work in,processed_document_pdf_116482990_44.mp3 +the premises of the firm for his employment. He affirmed that apart from the cheque in question the remaining documents which have been filed by,processed_document_pdf_116482990_45.mp3 +him till now does not bear the signature of the accused. He denied the suggestion that he have filled the particulars of the cheque in,processed_document_pdf_116482990_46.mp3 +question. He voluntarily stated that the particulars of the cheque apart from the signature filled by mr. Vijay thakur in the presence of the accused.,processed_document_pdf_116482990_47.mp3 +That there was no written document entered between him and accused it is written that accused has issued the cheque in question to him. He,processed_document_pdf_116482990_48.mp3 +voluntarily stated that the accused assured him the cheques which he has issued will be duly honoured whenmanan vs. . M/s alkarma page 1 of,processed_document_pdf_116482990_49.mp3 +"24 on 8 june, 2023",processed_document_pdf_116482990_50.mp3 +Information that accused is closing the firm. That he have not mentioned the above said either in his complaint or in evidence by way of,processed_document_pdf_116482990_51.mp3 +Aff. . That he is not aware whether any Cas. is pending between mr vijay thakur and accused. That as on date he is not aware,processed_document_pdf_116482990_52.mp3 +that firm is still in existence or whether the firm has been closed by the accused. He voluntarily stated that since it is accused firm,processed_document_pdf_116482990_53.mp3 +he might be aware of the same. That he do not know when the firm was closed. He denied the suggestion that he have intentionally,processed_document_pdf_116482990_54.mp3 +sent the legal notice to the address of the firm despite knowing that firm was closed in 2017. He denied the suggestion that there is,processed_document_pdf_116482990_55.mp3 +no liability against him when he left the job. He further denied the suggestion that there is no legally and enforceable debt of the accused.,processed_document_pdf_116482990_56.mp3 +He also denied the suggestion that multiple cases have been filed by him to put pressure upon accused and to extort money. 8. He affirmed,processed_document_pdf_116482990_57.mp3 +that accused used to visit outside the firm premises/office for his work. That he cannot say whether he used to visit the office in the,processed_document_pdf_116482990_58.mp3 +absence of the accused. He voluntarily stated that he used to visit the office whenever he was called by the firm. (at this stage the,processed_document_pdf_116482990_59.mp3 +counsel for accused has objected to the documents mark a and mark b as they are not originals and photocopies).(court observation: the objection is decided,processed_document_pdf_116482990_60.mp3 +in favour of the accused as they are not originals and will not be read in evidence till the originals are filed). He denied the,processed_document_pdf_116482990_61.mp3 +suggestion that nothing was due against the accused/firm and he have already received his entire due from the accused when he left the firm. 9.,processed_document_pdf_116482990_62.mp3 +"The complainant, thereafter, examined cw 2 i.e., vijay thakur. Cw 2 adopted his evidence by way of Aff. on 26.09.2022 and relied on mark a",processed_document_pdf_116482990_63.mp3 +"i.e., appointment letter, ex cw2/a i.e., authorization letter to sign identity cards, cw 2/b i.e., Auth. letter, cw2/c i.e., emails and ex cw2/d. 10. In",processed_document_pdf_116482990_64.mp3 +his cross-examination cw 2 stated that he has been working with the accused Co. since 16.02.1993 till february 2018. That initially he joined as an,processed_document_pdf_116482990_65.mp3 +accountant and left the services as Sr. manager accounts and administration. That he have not filed any appointment and designation letter on record. That he,processed_document_pdf_116482990_66.mp3 +do not remember his starting salary when he joined the accused Co. since its long time back. That at the time when he left the,processed_document_pdf_116482990_67.mp3 +"services of the accused Co. he was earning Rs. 1,30,000/-. That he is residing in his own house. That he brought the same in 1996",processed_document_pdf_116482990_68.mp3 +from his earnings. That he cannot remember his salary in the year 1996. He denied the suggestion that he was not honest in his work,processed_document_pdf_116482990_69.mp3 +with the accused firm. He denied the suggestion that he have duped amount from the accused firm. He also denied the suggestion that he used,processed_document_pdf_116482990_70.mp3 +to manipulate the records of the accused firm. That he have brought the id card issued by the accused firm which is ex. Cw-2/e (osr).,processed_document_pdf_116482990_71.mp3 +He affirmed that the signature at point a reflecting issuing Auth. are his signature. He voluntarily stated that he have been authorized by the accused,processed_document_pdf_116482990_72.mp3 +to sign the identity cards on behalf of the accused firm which is ex. Cw2/a. He denied the suggestion that he used to issue and,processed_document_pdf_116482990_73.mp3 +"misuse his Auth. to sign without prior knowledge and consent of the accused. At this stage, the counsel for the accused confronted mark a &",processed_document_pdf_116482990_74.mp3 +b of cw1. He affirmed the suggestion that mark a & b does not bear the signature of any partner of alkarma. He voluntarily stated,processed_document_pdf_116482990_75.mp3 +that he had sought the Auth. letter from the accused with respect to signing on mark a & b which was given to him on,processed_document_pdf_116482990_76.mp3 +"08.01.2018 which is ex. Cw2/b. He further affirmed that the signaturemanan vs. . M/s alkarma page 1 of 24 on 8 june, 2023",processed_document_pdf_116482990_77.mp3 +Written authorization in his favour to sign in mark a & b on behalf of the accused Co. . He voluntarily stated that he was having,processed_document_pdf_116482990_78.mp3 +oral directions and approval of the accused. He voluntarily stated that since he was working in continuity with the accused firm he was under direction,processed_document_pdf_116482990_79.mp3 +from the accused to sign mark a & b whereas the accused in writing had issued the Auth. letter to him on 08.01.2018 with respect,processed_document_pdf_116482990_80.mp3 +to entering into mark a & b of cw1 on behalf of the accused firm. He further affirmed that the ex. Cw2/b does not mention,processed_document_pdf_116482990_81.mp3 +that the same would be having retrospective effect pertaining to mark a & b. He voluntarily stated that since the talks of full and final,processed_document_pdf_116482990_82.mp3 +settlement were running in continuity he was authorized under directions to sign mark a and b although the Auth. in writing was given to him,processed_document_pdf_116482990_83.mp3 +on 08.01.2018. He denied the suggestion that he was not authorized by any partner of the accused firm to enter into the settlement on behalf,processed_document_pdf_116482990_84.mp3 +"of accused firm on 30.11.2017. At this stage, the counsel for the accused confronted ex. Cw2/c. He affirmed that the emails which are ex. Cw2/c",processed_document_pdf_116482990_85.mp3 +are not of the year 2017. He voluntarily stated that emails which are ex. Cw2/c are the communications made by him with the accused only,processed_document_pdf_116482990_86.mp3 +with respect to his full and final settlement. He also voluntarily stated that the accused in this email ex. Cw2/c has stated that he will,processed_document_pdf_116482990_87.mp3 +settle his payment also as he has done with Ors. too. That there was around 40 staff members approx of the accused firm in the,processed_document_pdf_116482990_88.mp3 +year 2017. That there were about 160 approx workers of the accused firm in the year 2017. He affirmed that the name of the complainant,processed_document_pdf_116482990_89.mp3 +does not find any mention in ex. Cw2/c. He denied the suggestion that he was not having Auth. to enter into full and final settlement,processed_document_pdf_116482990_90.mp3 +with the complainant on behalf of the accused and his firm. He denied the suggestion that the ex cw2/b is forged and fabricated. He also,processed_document_pdf_116482990_91.mp3 +denied the suggestion that ex. Cw2/b is forged and fabricated by typing on blank paper. He also denied the suggestion that he had entered into,processed_document_pdf_116482990_92.mp3 +mark a and mark b of cw1 behind the back of the accused and without his knowledge on commission basis. He denied the suggestion that,processed_document_pdf_116482990_93.mp3 +he had been indulging in creating forged and fabricated documents. He denied the suggestion that the accused has no liability whatsoever against the accused. He,processed_document_pdf_116482990_94.mp3 +also denied the suggestion that he was in possession of blank signed cheque book of the accused. He denied the suggestion that he have misused,processed_document_pdf_116482990_95.mp3 +the cheque in question in connivance with the complainant. He further denied the suggestion that he have created various kinds of letters documents without the,processed_document_pdf_116482990_96.mp3 +permission of the accused. He also denied the suggestion that he have misused his power and position in the accused firm and have acted in,processed_document_pdf_116482990_97.mp3 +utter violations in his responsibility. He affirmed that there is a cheque bounce Cas. pending between him and the accused. He affirmed that settlement which,processed_document_pdf_116482990_98.mp3 +has been placed by him in his Cas. is not signed by any partner of the accused firm. That he cannot answer who has signed,processed_document_pdf_116482990_99.mp3 +the settlement which has been placed by him in his Cas. . 11. The complainant thereafter closed his evidence. 12. The statement of the accused under,processed_document_pdf_116482990_100.mp3 +S. 313 crpc was then recorded on 03.01.2023. He stated that the documents which have been furnished by cw2 were never authorized by him. That,processed_document_pdf_116482990_101.mp3 +they are forged and fabricated. That the e-mail which have been furnished has no relevance to the present matter. That there exists no due on,processed_document_pdf_116482990_102.mp3 +"him with respect to the complainant. That whatever duemanan vs. . M/s alkarma page 1 of 24 on 8 june, 2023",processed_document_pdf_116482990_103.mp3 +Possession of the vijay thakur for business purposes since he used to travel abroad and he had issued instructions that the cheque would not be,processed_document_pdf_116482990_104.mp3 +"issued without his knowledge. However, the cheques in question have been misused by vijay thakur. That he have never given any authorization to anyone. 13.",processed_document_pdf_116482990_105.mp3 +"The accused opted to lead his defence evidence, however, on 27.02.2023 he closed his de. 14. Evidences and documents on record perused carefully. Arguments heard.",processed_document_pdf_116482990_106.mp3 +"Law point 15. Before analyzing the material on record, it is imperative to set forth the legal benchmark which governs the adjudication of cases under",processed_document_pdf_116482990_107.mp3 +"S. 138 ni act. A bare reading of S. 138 ni act reveals that in addition to the cheque being issued for the discharge, in",processed_document_pdf_116482990_108.mp3 +"whole or in part, of any debt or other liability; following are the ingredients which constitute an offence:- a. That a person drew a cheque",processed_document_pdf_116482990_109.mp3 +on an account maintained by him with the banker; a. That such a cheque when presented to the bank is returned by the bank unpaid;,processed_document_pdf_116482990_110.mp3 +b. That such a cheque was presented to the bank within a period of six months from the date it was drawn or within the,processed_document_pdf_116482990_111.mp3 +period of its validity whichever is earlier; c. That the payee demanded in writing from the drawer of the cheque the payment of the amount,processed_document_pdf_116482990_112.mp3 +of money due under the cheque to payee; and d. Such a notice of payment is made within a period of 30 days from the,processed_document_pdf_116482990_113.mp3 +"date of the receipt of the information by the payee from the bank regarding the return of the cheque as unpaid. (para 26, n. Harihara",processed_document_pdf_116482990_114.mp3 +"krishnan vs. j. Thomas, (2018) 13 scc 663, referred to in himanshu vs. b. Shivamurthy (2019) 3 scc 797) 16. S. 138 is to be",processed_document_pdf_116482990_115.mp3 +"r/w the presumption, being a rebuttable presumption, as contained in S. 139. S. 139 provides that: ""presumption in favour of holder - it shall",processed_document_pdf_116482990_116.mp3 +"be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in S. 138 for",processed_document_pdf_116482990_117.mp3 +"the discharge, in whole or in part, of any debt or other liability."" 17. Thus, in cheque bouncing cases, the judicial scrutiny revolves around the",processed_document_pdf_116482990_118.mp3 +"satisfaction of ingredients enumerated under S. 138 ni act and if so, whether the accused was able to rebut the statutory presumption contemplated by S. ",processed_document_pdf_116482990_119.mp3 +139 ni act. S. 139 is an example of reverse onus Cl. which usually imposes an evidentiary burden and not a persuasive burden. In othermanan,processed_document_pdf_116482990_120.mp3 +"vs. . M/s alkarma page 1 of 24 on 8 june, 2023",processed_document_pdf_116482990_121.mp3 +"Existence of a liability. Further the law is well settled that when an accused has to rebut the presumption under S. 139, the standard of",processed_document_pdf_116482990_122.mp3 +"proof of doing so is that of ""preponderance of probability"" (rangappa vs. sri mohan (2010) 11 scc 441). Once execution of cheque is admitted, it",processed_document_pdf_116482990_123.mp3 +"is a legal presumption under S. 139 of negotiable instrument act, the cheque was issued for discharging legally enforceable debt. 18. Attention is also invited",processed_document_pdf_116482990_124.mp3 +"to S. 118(a) wherein a presumption of the cheque having been issued in discharge of a legally sustainable liability and drawn for good consideration, arises.",processed_document_pdf_116482990_125.mp3 +"S. 118 of the n.i act provides:- ""presumptions as to negotiable instruments: until the contrary is proved, the following presumptions shall be made: (a) of",processed_document_pdf_116482990_126.mp3 +"consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or",processed_document_pdf_116482990_127.mp3 +"transferred was accepted, indorsed, negotiated or transferred for consideration;"" 19. Hence, it can be seen that from its very inception a presumption that the cheque",processed_document_pdf_116482990_128.mp3 +was issued in discharge of a debt or other liability subsists in favour of the complainant and onus rests upon the accused to rebut the,processed_document_pdf_116482990_129.mp3 +"existing presumption on the touchstone of preponderance of probability. 20. Further, the accused in a trial under S. 138 has two options. He can either",processed_document_pdf_116482990_130.mp3 +show that consideration and debt did not exist or that under the particular circumstances of the Cas. the non-existence of consideration and debt is so,processed_document_pdf_116482990_131.mp3 +"probable that a prudent man ought to suppose that no consideration and debt existed (para 20, kumar exports vs. sharma carpets (2009) 2 scc 513).",processed_document_pdf_116482990_132.mp3 +"The accused can also show that he has already returned the amount taken by him. Analysis & conclusion 21. Now, the law is also well",processed_document_pdf_116482990_133.mp3 +"settled that ""once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial",processed_document_pdf_116482990_134.mp3 +"presumption as contemplated under S. 139 of the NI Act has to be raised by the court in favor of the complainant."" (rangappa vs. ",processed_document_pdf_116482990_135.mp3 +"mohan, air 2010 SC 1898). Reference can also be made to k. Bhaskaran vs. . Sankaran vaidhyan balan 1999 (4) rcr (Crl. ) 309, wherein",processed_document_pdf_116482990_136.mp3 +"it has been held by the Hon'ble SC as under: ""as the signature in the cheque is admitted to be that of the accused,",processed_document_pdf_116482990_137.mp3 +the presumption envisaged in S. 118 of the act can legally be inferred that the cheque was made or drawn for consideration on the date,processed_document_pdf_116482990_138.mp3 +which the cheque bears. S. 139 of the act enjoins on the court to presume that the holder of the cheque received it for the,processed_document_pdf_116482990_139.mp3 +"discharge of any debt or liability."" 22. In this matter, the accused has admitted his signature.manan vs. . M/s alkarma page 1 of 24 on",processed_document_pdf_116482990_140.mp3 +"8 june, 2023",processed_document_pdf_116482990_141.mp3 +"And against the accused. Thus, the accused now has to rebut the presumption on the touchstone of preponderance of probabilities. Further, the accused has not",processed_document_pdf_116482990_142.mp3 +"lead his defence evidence. However, the law is also well settled that the accused in order to rebut the presumption need not to step into",processed_document_pdf_116482990_143.mp3 +the witness box or lead his defence evidence. The accused can through the material brought on record by the complainant can also rebut the presumption,processed_document_pdf_116482990_144.mp3 +"existing against him. 23. At the outset, on the close scrutiny and appraisal of the original cheque in question marked as ex cw1/a it clearly",processed_document_pdf_116482990_145.mp3 +"transpires that the same had been issued as per the above details. Further, the cheque in question got dishonored vide returning memos dated 27.06.2019 with",processed_document_pdf_116482990_146.mp3 +"remarks ""kindly contact drawer/drawee bank"" marked as ex cw 1/b. Thus, one of the essential ingredients of S. 138 i.e., that a person drew a",processed_document_pdf_116482990_147.mp3 +cheque on an account maintained by him with the banker; and that such a cheque when presented to the bank is returned by the bank,processed_document_pdf_116482990_148.mp3 +"unpaid, stands fulfilled. Further, on a co-joint reading of the cheque in question ex cw 1/a, return memo ex cw 1/b, it also stands proved",processed_document_pdf_116482990_149.mp3 +"that ""cheque was presented to the bank within a period of six months from the date it was drawn"". 24. The legal notice dated 08.07.2019",processed_document_pdf_116482990_150.mp3 +"ex cw-1/c further proves that the same was issued on 08.07.2019 and dispatched vide postal receipts ex cw1/d to ex cw1/f. Now, the accused has",processed_document_pdf_116482990_151.mp3 +denied the receipt of legal notice. 25. The Hon'ble SC in k bhaskaran vs. sankaran vaidhyan balan (1999) 7 scc 510 in para 18,processed_document_pdf_116482990_152.mp3 +"observed thus: ""......'giving notice' in the context is not the same as 'receipt of notice'. Giving is a process of which receipt is the accomplishment.",processed_document_pdf_116482990_153.mp3 +"It is for the payee to perform the former process i.e. Giving, by sending the notice to the drawer at the correct address....."" 26. Further,",processed_document_pdf_116482990_154.mp3 +in para 24 of the above said judgment the Hon'ble SC held that where the sender has dispatched the notice by post with correct,processed_document_pdf_116482990_155.mp3 +"address written on it, the principle Inc. in S. 27 of general clauses act could profitably be imported in such a Cas. . It was further",processed_document_pdf_116482990_156.mp3 +held that in this situation service of notice is deemed to have been effected on the sendee. 27. Law with respect to the delivery of,processed_document_pdf_116482990_157.mp3 +legal notice by post and the presumption with respect to the same has been succinctly put forth by the Hon'ble SC in c c,processed_document_pdf_116482990_158.mp3 +"alavi haji vs. palapetty muhammed (2007) 6 scc 555. Para 13 & 14 of the judgment is worth mentioning as under: ""13. According to S. ",processed_document_pdf_116482990_159.mp3 +"114 of the act, r/w illustration (f) thereunder, when it appears to the court that the common course of business renders it probable that",processed_document_pdf_116482990_160.mp3 +"a thing would happen, the court may draw presumption that the thing would have happened, unless there are circumstances in a particular Cas. to show",processed_document_pdf_116482990_161.mp3 +"that the common course of business was not followed. Thus, S. 114 enables the court to presume the existence of any fact which it thinks",processed_document_pdf_116482990_162.mp3 +"likely to have happened, regardmanan vs. . M/s alkarma page 1 of 24 on 8 june, 2023",processed_document_pdf_116482990_163.mp3 +"Pvt. business in their relation to the facts of the particular Cas. . Consequently, the court can presume that the common course of business has been",processed_document_pdf_116482990_164.mp3 +"followed in particular cases. When applied to communications sent by post, S. 114 enables the court to presume that in the common course of natural",processed_document_pdf_116482990_165.mp3 +"events, the communication would have been delivered at the address of the addressee. But the presumption i.e. raised under S. 27 of the g.c.",processed_document_pdf_116482990_166.mp3 +"Act is a far stronger presumption. Further, while S. 114 of evidence act refers to a general presumption, S. 27 refers to a specific presumption",processed_document_pdf_116482990_167.mp3 +14. S. 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered,processed_document_pdf_116482990_168.mp3 +"post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it",processed_document_pdf_116482990_169.mp3 +"is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served",processed_document_pdf_116482990_170.mp3 +"or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice",processed_document_pdf_116482990_171.mp3 +"is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. 28. Thus,",processed_document_pdf_116482990_172.mp3 +in view of the law as above said and the fact that the address given by accused in his notice under S. 251 crpc being,processed_document_pdf_116482990_173.mp3 +"the same address which finds mention in the legal notice and that the legal notice was duly dispatched through postal receipt, the mandatory statutory legal",processed_document_pdf_116482990_174.mp3 +"notice marked as ex cw 1/c is deemed to have been served on the accused in the present Cas. . Thus, the factum of issuance and",processed_document_pdf_116482990_175.mp3 +"receipt of mandatory statutory legal notice also stands proved based on the documentary evidence of legal notice, postal receipts. It has been also proved that",processed_document_pdf_116482990_176.mp3 +"despite issuance of legal notice, the accused had failed to make the payment of the cheque amount. 29. Before noting the line of defence of",processed_document_pdf_116482990_177.mp3 +"the accused that can be deduced through the cross examination of the complainant witnesses, it is apposite to note the admitted facts in the present",processed_document_pdf_116482990_178.mp3 +matter: a) the accused is a partnership firm. This has been established in view of the consistent position of cw 1 as well as cw,processed_document_pdf_116482990_179.mp3 +"2. Furthermore, nowhere during the course of the trial the accused has disputed that alkarna is not a partnership firm. Not a single suggestion disputing",processed_document_pdf_116482990_180.mp3 +alkarma not being a partnership firm has been put forth by the accused. B) accused sandeep chaudhary is the partner and authorized signatory of accused,processed_document_pdf_116482990_181.mp3 +alkarma firm. The same stands proved on a co-joint reading and perusal of the cheque in question and notice under S. 251 crpc. The accused,processed_document_pdf_116482990_182.mp3 +"sandeep chaudhary has admitted his signatures on the cheque in question and perusal of the cheque reflects that the same is belong to ""alkarma"" of",processed_document_pdf_116482990_183.mp3 +"which sandeep chaudhary is the authorized signatory. Furthermore, it is also not the Cas. of the accused that he is not the authorized signatory/partner of",processed_document_pdf_116482990_184.mp3 +"accused alkarma.manan vs. . M/s alkarma page 1 of 24 on 8 june, 2023",processed_document_pdf_116482990_185.mp3 +This has also not been disputed by the accused. Not a single suggestion or question has been put by the accused which could directly or,processed_document_pdf_116482990_186.mp3 +indirectly goes on to establish that it is the Cas. of the accused that the complainant has no connection whatsoever with the accused alkarma firm,processed_document_pdf_116482990_187.mp3 +"or that complainant was never an employee of the accused firm. As a matter of fact, ex cw1/j i.e., proof of appointment and ex cw1/k",processed_document_pdf_116482990_188.mp3 +"i.e., proof of salary brought on record by the complaint further cements the position that the complainant indeed was the employee of accused alkarma firm.",processed_document_pdf_116482990_189.mp3 +"30. In order to rebut the presumption existing in favor of the complainant, the accused through the cross examination and notice under S. 251 crpc",processed_document_pdf_116482990_190.mp3 +attempted to create following line of defence: a) the cheque in question was never issued to the complainant. B) there never existed any settlement between,processed_document_pdf_116482990_191.mp3 +him and the complainant as to the outstanding amount claimed by the complainant. C) the blank signed cheques were used to be kept in his,processed_document_pdf_116482990_192.mp3 +office for daily use and the same were taken from the said office and misused. (notice under S. 251 crpc.) d) the cheque in question,processed_document_pdf_116482990_193.mp3 +were in possession of cw2 vijay thakur and the same has been misused by vijay thakur and never gave authorization to anyone regarding the issuance,processed_document_pdf_116482990_194.mp3 +of cheque in question. (statement under S. 313 crpc.) e) whatever documents that have been brought on record by the complainant and his witness are,processed_document_pdf_116482990_195.mp3 +"forged and fabricated and were never created by him. F) whatever due, if any, is there against him has already been paid by him to",processed_document_pdf_116482990_196.mp3 +the complainant. (statement under S. 313 crpc.) 31. The line of defence raised by the accused appears to be incredible. In his notice under S. ,processed_document_pdf_116482990_197.mp3 +251 crpc he only stated that blank signed cheques used to be kept in his office for daily use and the same were taken from,processed_document_pdf_116482990_198.mp3 +"the said office and misused. Here, the accused never even mentioned as to who took the said cheques or when the said cheques were taken.",processed_document_pdf_116482990_199.mp3 +"However, only when the complainant examined cw 2 i.e., vijay thakur, the accused in his statement under S. 313 crpc modified and changed his position",processed_document_pdf_116482990_200.mp3 +and stated that the cheque in question were in possession of vijay thakur and the same have been misused by vijay thakur. 32. During the,processed_document_pdf_116482990_201.mp3 +course of the trial objection was raised with respect to full and final settlement brought on record since the same was not original. The objection,processed_document_pdf_116482990_202.mp3 +"was also decided in favor of the accused. However, mere absence of settlement agreement by itself does not in any manner create probable defence in",processed_document_pdf_116482990_203.mp3 +"favor of the accused, viewed specifically in the light of the fact that themanan vs. . M/s alkarma page 1 of 24 on 8 june,",processed_document_pdf_116482990_204.mp3 +2023,processed_document_pdf_116482990_205.mp3 +"I.e., vijay thakur through their testimony has been able to establish that a settlement was arrived between the accused firm and the complainant. 33. Furthermore,",processed_document_pdf_116482990_206.mp3 +"the accused never initiated any complaint or legal proceedings with respect to the misuse of the cheque. As a matter of fact, there exists a",processed_document_pdf_116482990_207.mp3 +total of 5 cheques bounce cases pending between the accused and the complainant in the same court. A total of 33 cases are pending against,processed_document_pdf_116482990_208.mp3 +the accused with respect to multiple cheques in the same court. It is highly unnatural and improbable that where close to three dozen cheque bounce,processed_document_pdf_116482990_209.mp3 +"cases have been filed against the accused and he takes a stand that all the cheques have been misused, not a single complaint or legal",processed_document_pdf_116482990_210.mp3 +proceedings or even a stop payment instruction has been initiated by the accused. This conduct of the accused further weakens his line of defence. 34.,processed_document_pdf_116482990_211.mp3 +"Anr. point which is noticeable is that during the cross examination of the complainant as well as cw 2 i.e., vijay thakur, the counsel of",processed_document_pdf_116482990_212.mp3 +"the accused took a line of defence that the documents which has been filed on record i.e., settlement, does not bear the signature of the",processed_document_pdf_116482990_213.mp3 +accused and only of vijay kumar cw 2. He has further through the cross examination of the complainant as well as his witness attempted to,processed_document_pdf_116482990_214.mp3 +establish that cw 2 was never authorized by the accused to enter into any settlement with the complainant. This line of defence also does not,processed_document_pdf_116482990_215.mp3 +"hold much water. It stands proved through the testimony of cw 2 i.e., vijay thakur that he was also the employee of accused firm and",processed_document_pdf_116482990_216.mp3 +was working in the position of Sr. manager. The same also stands proved through the documents which has been brought on record by cw 2,processed_document_pdf_116482990_217.mp3 +which are on the letter head of the accused firm. 35. Cw 2 further brought on record authorization letter dated 08.01.2018 ex cw2/b which does,processed_document_pdf_116482990_218.mp3 +establish that he was duly authorized. Although the accused did attempt to show that since the settlement was dated 30.11.2017 and whereas the authorization letter,processed_document_pdf_116482990_219.mp3 +"ex cw2/b is of 08.01.2017, cw 2 was never authorized to enter into any settlement agreement on behalf of the accused. However, a plausible explanation",processed_document_pdf_116482990_220.mp3 +to this effect was given by cw 2 in his cross examination that since he was working in continuity with the accused firm he was,processed_document_pdf_116482990_221.mp3 +under directions form the accused to sign mark a and mark b whereas the accused in writing had issued the Auth. letter to him on,processed_document_pdf_116482990_222.mp3 +08.01.2018. It is proved that cw 2 has been working in the position of Sr. manager with accused alkarma and was also authorized to issue,processed_document_pdf_116482990_223.mp3 +"identity cards to the employees of the accused alkarma. Further, cw 2 has been working in the accused firm since 1993. In view the abovesaid",processed_document_pdf_116482990_224.mp3 +"long tenure and responsible position, the delay of merely a month in the issuance of the authorization letter does not create any reasonable doubt that",processed_document_pdf_116482990_225.mp3 +"cw 2 was never authorized by accused sandeep chaudhary to enter into settlement on behalf of accused firm. 36. Furthermore, a suggestion was put during",processed_document_pdf_116482990_226.mp3 +"the cross examination of cw 2 that ex cw2/b i.e., the authorization letter is forged and fabricated. However, mere suggestion by itself does not prove",processed_document_pdf_116482990_227.mp3 +that the document is forged and fabricated. Something more ought to be brought on record to establish the same. It is not the Cas. of,processed_document_pdf_116482990_228.mp3 +the accused that he has initiated any Crl. proceedings with respect to the forging and fabrication of ex cw2/b. No material whatsoever has been brought,processed_document_pdf_116482990_229.mp3 +"on record by accused to even suggest the same. Thus, it stands proved that cw 2 was authorized tomanan vs. . M/s alkarma page 1",processed_document_pdf_116482990_230.mp3 +"of 24 on 8 june, 2023",processed_document_pdf_116482990_231.mp3 +37. The accused had an option to examine himself as a witness which the accused opted not to avail. Where the accused does not examine,processed_document_pdf_116482990_232.mp3 +"himself as a witness, his statement under S. 281 cr. P.c. Or 313 cr. P.c. Cannot be read as evidence of the accused and it",processed_document_pdf_116482990_233.mp3 +has to be looked into only as an explanation of the incriminating circumstance and not as evidence. There is no presumption of law that explanation,processed_document_pdf_116482990_234.mp3 +"given by the accused was truthful (v.S. yadav vs. reena 2010 scc online del 3294). In the present matter, in his statement under S. 313",processed_document_pdf_116482990_235.mp3 +crpc the accused stated that the documents brought by cw 2 were never authorized by him and they are forged and fabricated. If the accused,processed_document_pdf_116482990_236.mp3 +"wanted to prove this, he was supposed to appear in the witness box and testify and get himself subjected to cross examination. Furthermore, nothing came",processed_document_pdf_116482990_237.mp3 +in the cross examination of cw 2 so as to cast any doubt on the documents brought on record by him. 38. During the cross,processed_document_pdf_116482990_238.mp3 +"examination of the complainant, a suggestion was put to the complainant that there is nothing due against the accused/firm and that the complainant has already",processed_document_pdf_116482990_239.mp3 +"received his entire due from the accused when he left the firm. In other words, it is the stand of the accused that he has",processed_document_pdf_116482990_240.mp3 +"already paid the entire due when the complainant left the firm and no due is left against the accused/firm. The same was, however, denied by",processed_document_pdf_116482990_241.mp3 +the complainant. The abovesaid position of the accused further stands corroborated through the statement of the accused under S. 313 crpc wherein the accused stated,processed_document_pdf_116482990_242.mp3 +that whatever due which he had has already been paid by him to the complainant. 39. At this juncture it is pertinent to note that,processed_document_pdf_116482990_243.mp3 +"in terms of S. 1 sub-S. (4) of payment of wages act, the act is applicable to a factory. Now, the accused firm alkarma is",processed_document_pdf_116482990_244.mp3 +"a factory. The same is proved on perusal of form no 3a i.e., notice of change of manager brought on record by cw 2. 40.",processed_document_pdf_116482990_245.mp3 +S. 13 a of payment of wages act is as follows: [13a. Maintenance of registers and records.--(1) every employer shall maintain such registers and records,processed_document_pdf_116482990_246.mp3 +"giving such particulars of persons employed by him, the work performed by them, the wages paid to them, the deductions made from their wages, the",processed_document_pdf_116482990_247.mp3 +receipts given by them and such other particulars and in such form as may be prescribed. (2) every register and record required to be maintained,processed_document_pdf_116482990_248.mp3 +"under this S. shall, for the purposes of this act, be preserved for a period of three years after the date of the last entry",processed_document_pdf_116482990_249.mp3 +"made therein.] 41. Thus, as can be seen S. 13a mandates that an employer shall maintain registers and records of person employed by him, work",processed_document_pdf_116482990_250.mp3 +"performed, wages paid, deductions made, and receipts given. Alkarma being a factory was therefore required to maintain the registers as per the labor legislations. The",processed_document_pdf_116482990_251.mp3 +accused brought no registers maintained by him in this regard. If the stand of the accused is that he had already paid all the dues,processed_document_pdf_116482990_252.mp3 +"to the complainant, he ought to have brought the registers which were maintained by him reflecting the same, however, the accused brought nothingmanan vs. .",processed_document_pdf_116482990_253.mp3 +"M/s alkarma page 1 of 24 on 8 june, 2023",processed_document_pdf_116482990_254.mp3 +"Defence raised by the accused regarding due payment already been made to the complainant stands rejected. 42. The present matter, as per the memo of",processed_document_pdf_116482990_255.mp3 +parties has been filed against m/s alkarma through its partner sandeep chaudhary. In the complaint there exists a separate averment that accused sandeep chaudhary is,processed_document_pdf_116482990_256.mp3 +"partner of m/s alkarma and was/is looking after day-to-day affairs and is the authorized signatory of the Co. . Further, accused sandeep chaudhary signed on the",processed_document_pdf_116482990_257.mp3 +cheque in question as the authorized signatory of alkarma. Notice under S. 251 crpc was also framed against accused sandeep chaudhary as partner of accused,processed_document_pdf_116482990_258.mp3 +alkarma. It is also not the Cas. of the accused sandeep chaudhary that he is not the partner or authorized signatory of accused alkarma. In,processed_document_pdf_116482990_259.mp3 +"fact the entire defence of accused sandeep chaudhary was raised on the premise that accused sandeep chaudhary is the partner of accused alkarma. Hence, in",processed_document_pdf_116482990_260.mp3 +"the present matter the accused sandeep chaudhary was separately arraigned as an accused along with m/s alkarma. Thus, accused sandeep chaudhary is also vicariously liable",processed_document_pdf_116482990_261.mp3 +"in terms of S. 141 ni act being the partner of accused firm. 43. Thus, in view of the oral and documentary evidence brought on",processed_document_pdf_116482990_262.mp3 +"record by the complainant, statement of the accused under S. 313 cr.p.c, the accused has failed to create a dent/doubt in the Cas. of the",processed_document_pdf_116482990_263.mp3 +"complainant and it is clear that the accused had committed an offence under S. 138 of the NI Act . Further, the complainant has also",processed_document_pdf_116482990_264.mp3 +"been able to establish his Cas. . 44. On the basis of the above said analysis and conclusions arrived, the accused viz. i) m/s alkarma and",processed_document_pdf_116482990_265.mp3 +ii) sh sandeep chaudhary s/o shri subhash chaudhary is convicted for the commission of the offence punishable under S. 138 of the act. This judgment,processed_document_pdf_116482990_266.mp3 +contains 24 pages. Every page of this judgment has been signed by me. Announced in the open court harshal negi negi date: 2023.06.08 on this,processed_document_pdf_116482990_267.mp3 +"day of 08th june, 2023 16:31:55 +0530 (harshal negi) mm(ni act)-05/south-west district dwarka courts/new delhimanan vs. . M/s alkarma page 1 of 24 on 8",processed_document_pdf_116482990_268.mp3 +"june, 2023",processed_document_pdf_116482990_269.mp3 +"M/S. reddy's chits Pvt. vs. mr. Varadaraju. M on 10 june, 2022 in the court of xxvii addl. Chief MM , bengaluru present: sri. H.",processed_document_pdf_91125237_1.mp3 +"Satish b.a.l, ll.b., ll.m., xxvii a.c.m.m bengaluru. Dated: this the 10 th day of june 2022. C.c. No.4419/2021 complainant m/s. Reddy's chits Pvt. Ltd. , registered",processed_document_pdf_91125237_2.mp3 +"office at no.85, south end road, basavanagudi, bengaluru 560004. Represented by its managing director / foreman sri. Rajeev reddy. V (rep by sri. P.p. Jayakumara",processed_document_pdf_91125237_3.mp3 +"adv.) v/s. Accused mr. Varadaraju. M, s/o. Muniswamy, no.18, ground floor, near attimaramma temple street, parvathipuram, basavanagudi, bengaluru 560004. Also at: mr. Varadaraju. M s/o.muniswamy",processed_document_pdf_91125237_4.mp3 +"manoj cargo carries, no.81, rammuthy mansion, mysore road, new timberyard layout, bengaluru - karnataka 560026. (reptd by sri. S.n.r adv.,) 2 c.c. No. 4419/2021 offence",processed_document_pdf_91125237_5.mp3 +u/s.138 of NI Act . Plea of the accused accused claims to be tried final order convictedm/S. reddy's chits Pvt. vs. mr. Varadaraju. M on,processed_document_pdf_91125237_6.mp3 +"10 june, 2022",processed_document_pdf_91125237_7.mp3 +**** judgment the complainant Co. has filed complaint u/sec.200 of Cr.P.C. against the accused for the offence punishable u/sec.138 of negotiable instrument,processed_document_pdf_91125237_8.mp3 +act. 2. The facts germane for disposal of the instant complaint can be summarized as per following:- it is the Cas. of the complainant that,processed_document_pdf_91125237_9.mp3 +", t he complainant Co. is engaged in the business of promoting and conducting chit business as per the provisions of the chit funds act",processed_document_pdf_91125237_10.mp3 +"of 1982 and accused has subscribed chit group bearing No. 10l5, ticket no.23 in the complainant Co. for a chit value of rs.10,00,000/- payable at",processed_document_pdf_91125237_11.mp3 +"rs.40,000/- per month for a period of 25 months to the complainant Co. . It is stated that, the accused participated in the chit auction held",processed_document_pdf_91125237_12.mp3 +"on 15/06/2019 and was declared as prize bidder and on 19/06/2019, the accused received prize money of rs.6,04,000/- after deducting bid amount and standard deductions.",processed_document_pdf_91125237_13.mp3 +"Thereafter, the accused along with Ors. executed on demand promissory note, surety form, guarantee bond and other relevant documents in favour of complainant Co. for",processed_document_pdf_91125237_14.mp3 +"the amount received by him from the complainant Co. . After receiving prize money, the accused was not regular in payment of the chit installments and",processed_document_pdf_91125237_15.mp3 +"he has paid only rs.3,11,600/- as against rs.10,00,000/- and became defaulter. 3. It is also stated that, as the accused failed to make payment, the",processed_document_pdf_91125237_16.mp3 +complainant was constrained to issue legal notice dated:21/10/2020 to the accused and his guarantors and the accused visited the complainant Co. and towards discharge of,processed_document_pdf_91125237_17.mp3 +"liability due and payable by him, issued cheque bearing No. 000122 dated: 10/11/2020 for a sum of rs.5,00,000/- drawn on karur vysya bank, tiruvanamalai main",processed_document_pdf_91125237_18.mp3 +"road, shankarpuram taluk, villupuram, tamil nadu branch in favour of the complainant Co. . 4. It is stated that, the complainant presented the said cheque for",processed_document_pdf_91125237_19.mp3 +"encashment on 10/11/2020 through its banker punjab and sind bank (psb), J. c. Road branch, bengaluru and the same got dishonoured and returned with an",processed_document_pdf_91125237_20.mp3 +"endorsement dated: 11/11/2020 stating ""funds insufficient"". Thereafter, the complainant got issued demand notice dated : 30/11/2020 to the accused through rpad calling upon him to",processed_document_pdf_91125237_21.mp3 +"make the payment of the amount covered under the aforesaid cheque, within 15 days from the date of receipt of notice and the accused refused",processed_document_pdf_91125237_22.mp3 +"to received the said notice and the same was returned on 02/12/2020. Thereafter, the accused failed to make payment covered under the aforesaid cheque. Hence",processed_document_pdf_91125237_23.mp3 +this complaint. 5. The sworn statement of the complainant was recorded. As the complainant had complied the mandatory requirements of S. 138 of negotiable instrument,processed_document_pdf_91125237_24.mp3 +"act, the court issued summons tom/S. reddy's chits Pvt. vs. mr. Varadaraju. M on 10 june, 2022",processed_document_pdf_91125237_25.mp3 +6. The plea of the accused was recorded and the accusation was read over to the accused in the language known to him and the,processed_document_pdf_91125237_26.mp3 +"same was explained, to which, accused pleaded not guilty and submitted he has defense to make. 7. In order to prove the Cas. , the managing",processed_document_pdf_91125237_27.mp3 +director of the complainant Co. by name rajeev reddy. V got himself examined as pw.1 and got marked ex.p1 to ex.p15 documents. 8. The statement,processed_document_pdf_91125237_28.mp3 +of accused under S. 313 Cr.P.C. was recorded and the accused denied the incriminating evidence appearing against him. The accused got himself,processed_document_pdf_91125237_29.mp3 +examined as dw1 and got marked ex.d1 document. 9. Heard complainant arguments. The accused has not addressed his side arguments. I have perused the materials,processed_document_pdf_91125237_30.mp3 +on record. 10. The following points arise for my determination: (i) whether the complainant Co. proves that the accused was the subscriber of chit group,processed_document_pdf_91125237_31.mp3 +"bearing no.10l5, ticket no.23 for a value of rs.10,00,000/- payable at rs.40,000/- per month for a period of 25 months and he participated in the",processed_document_pdf_91125237_32.mp3 +"chit auction held on 15/06/2019 and was declared as a prize bidder and the accused received prize money of rs.6,04,000/- from the complainant Co. ?",processed_document_pdf_91125237_33.mp3 +"(ii) whether the complainant Co. proves that towards discharge of liability due and payable, accused issued cheque bearing No. 000122 dated: 10/11/2020 for a sum",processed_document_pdf_91125237_34.mp3 +"of rs.5,00,000/- drawn on karur vysya bank, tiruvanna malai main road, shankarpuram taluk, villupuram, tamil nadu branch? (iii) whether the complainant proves that accused has",processed_document_pdf_91125237_35.mp3 +committed an offence punishable u/sec.138 of negotiable instrument act? (iv) what order? 11. My answer to the above points are as follows:- point no.1 to,processed_document_pdf_91125237_36.mp3 +"3 : in the affirmative point no.4 : as per the final order, for the following:- rea s on s 12. Point nos.1 to 3",processed_document_pdf_91125237_37.mp3 +": in-order to prove them/S. reddy's chits Pvt. vs. mr. Varadaraju. M on 10 june, 2022",processed_document_pdf_91125237_38.mp3 +Examined as pw1 and the Aff. filed by him in liue of sworn statement was treated as examination in chief as per the dictum laid,processed_document_pdf_91125237_39.mp3 +"down in the ruling of the Hon'ble apex court of india, reported in (2014) 5 scc 590 (indian bank Assn. & ors v/s. Union of",processed_document_pdf_91125237_40.mp3 +"india & ors). The complainant got marked ex.p1 to p15 documents. In order to disprove the Cas. of the complainant Co. , the accused got himself",processed_document_pdf_91125237_41.mp3 +"examined as dw1 and got marked ex.d1 document. 13. The complainant has exhibited the following ex.p1 to p15 documents. Ex.p1 is the certificate of incorporation,",processed_document_pdf_91125237_42.mp3 +"ex.p2 is the board resolution, ex.p3 is the authorization letter, ex.p4 is the true copy of chit prior sanction order, ex.p5 is the true copy",processed_document_pdf_91125237_43.mp3 +"of the chit commencement certificate, ex.p6 is the chit agreement, ex.p7 is the on demand promissory note, ex.p8 is the cash voucher, ex.p9 is the",processed_document_pdf_91125237_44.mp3 +"agreement of guarantee, ex.p10 is the surety proposal form, ex.p11 is the true copy of account ledger extract, ex.p12 is the cheque, ex.p13 is the",processed_document_pdf_91125237_45.mp3 +"returned memo, ex.p14 is the legal notice dated: 30/11/2020, ex.p14 (a) is the postal receipt, ex.p15 is the returned rpad cover, ex.p15 (a) is the",processed_document_pdf_91125237_46.mp3 +copy of the legal notice dated: 30/11/2020. The accused has exhibited ex.d1 bank account statement. 14. Before adverting to the oral evidence let in by,processed_document_pdf_91125237_47.mp3 +"the complainant and accused and also without touching upon the defence set up by the accused, the documents produced by the complainant Co. which are",processed_document_pdf_91125237_48.mp3 +"at ex.p12 to 15 prima-facie discloses that the complainant Co. has discharged initial burden of proving presentation of ex.p12 cheque, bouncing of cheque, issuance of",processed_document_pdf_91125237_49.mp3 +"notice and its service. At this juncture, i find it relevant to quote ruling reported in 2010(11) scc 441, decided between rangappa vs. Sri. Mohan",processed_document_pdf_91125237_50.mp3 +"wherein the Hon'ble apex court held that: "" presumption under S. 139 of negotiable instrument act, 1881 includes the presumption of the existence of legally",processed_document_pdf_91125237_51.mp3 +"enforceable debt or liability. That presumption is required to be honoured and if it is not so done, the entire basis of making these provision",processed_document_pdf_91125237_52.mp3 +"will be lost. Therefore, it has been held that, it is for the accused to explain his Cas. and defend it once the fact of",processed_document_pdf_91125237_53.mp3 +cheque bouncing is prima- facie established. The brain is on him to disprove the allegations once a prima-facie Cas. is made out by the complainant,processed_document_pdf_91125237_54.mp3 +""". 15. In the aforesaid ruling the Hon'ble apex court has held that, once the complainant establishes bouncing of cheque, then it is for the",processed_document_pdf_91125237_55.mp3 +accused to disprove the allegations and also it is for him to rebut the presumption as contemplated under S. 139 of negotiable instrument act by,processed_document_pdf_91125237_56.mp3 +"placing acceptable evidence. In this backdrop, now i enter in to the domain of defense set up by the accused, for which i find it",processed_document_pdf_91125237_57.mp3 +appropriate to examine each and every aspect in detail. I. Transaction 16. It is to be noted that the accused in his examination in chief,processed_document_pdf_91125237_58.mp3 +"has deposed that he was a chit subscriber under the complainant Co. for a sum of rs.10,00,000/- and in the auction, he bidm/S. reddy's chits",processed_document_pdf_91125237_59.mp3 +"Pvt. vs. mr. Varadaraju. M on 10 june, 2022",processed_document_pdf_91125237_60.mp3 +"Deposed he has repaid 18 chit installments, out of which he has paid 2 installments through two cheques and remaining installments by way of cash.",processed_document_pdf_91125237_61.mp3 +"Dw1 has deposed that he has not liable to pay any amount to the complainant Co. . 17. During the cross-examination, dw1 has admitted that he",processed_document_pdf_91125237_62.mp3 +"was a chit subscriber under the complainant Co. for a sum of rs.10,00,000/- and deposed he has paid 16 installments and admitted that he is",processed_document_pdf_91125237_63.mp3 +"9 months due to the complainant Co. . Dw1 denied that he is liable to pay balance chit amount of rs.8,95,250/- to the complainant Co. . Dw1",processed_document_pdf_91125237_64.mp3 +has admitted his signature at ex.p12 cheque and denied that he has issued ex.p12 cheque to the complainant Co. towards discharge of the liability due,processed_document_pdf_91125237_65.mp3 +and payable by him to the complainant Co. . It is to be noted that dw1/accused has produced ex.d1 bank account statement and he in his,processed_document_pdf_91125237_66.mp3 +"cross-examination deposed that he has paid rs.50,000/- to the complainant Co. . On careful scrutiny of ex.d1 document nothing is forthcoming as to the payment of",processed_document_pdf_91125237_67.mp3 +"rs.50,000/- made by him to the complainant Co. . 18. It is worth to note that, during cross-examination, pw1 has deposed that the accused issued ex.p12",processed_document_pdf_91125237_68.mp3 +"cheque after issuance of legal notice dated: 21/10/2020 and the accused has suggested to pw1 that on the date of auction itself, the accused has",processed_document_pdf_91125237_69.mp3 +issued ex.p12 cheque and the same is denied by pw1. On careful scrutiny of testimony of dw1 and pw1 and the stand taken by the,processed_document_pdf_91125237_70.mp3 +"accused, it depicts that accused has categorically admitted that he had subscribed chit amount with the complainant Co. for a sum of rs.10,00,000/- and that",processed_document_pdf_91125237_71.mp3 +"he had received prize money of rs.6,04,000/- from the complainant Co. in the chit auction held by the complainant Co. on 15/06/2019. That apart, in",processed_document_pdf_91125237_72.mp3 +"order to establish the transaction in question, the complainant Co. has produced ex.p4 chit prior sanction order, ex.p5 chit commencement certificate, ex.p6 chit agreement, ex.p7",processed_document_pdf_91125237_73.mp3 +"promissory note, ex.p8 cash voucher, ex.p9 guarantee agreement and ex.p10 surety proposal form and notably, the accused has not disputed the aforesaid documents and he",processed_document_pdf_91125237_74.mp3 +"has also not questioned pw1 about his Auth. to file the instant complaint. That apart, in order to establish that the accused is due to",processed_document_pdf_91125237_75.mp3 +"the complainant Co. , the complainant Co. has produced ex.p11 account extract and the accused has not disputed the said document. During cross-examination the accused has",processed_document_pdf_91125237_76.mp3 +suggested that he has paid the entire amount as per ex.p11. On perusal of ex.p11 it discloses that accused is due to the complainant Co. ,processed_document_pdf_91125237_77.mp3 +"to the tune of rs.5,39,760/-. Pw1 in his cross-examination deposed that accused has paid rs.2,41,600/- as per ex.p11 and the same is reflected in ex.p11",processed_document_pdf_91125237_78.mp3 +"document also. 19. It is to be noted that, during cross examination of pw1, the accused has suggested to pw1 that, collection agents of complainant",processed_document_pdf_91125237_79.mp3 +Co. have collected all dues from the accused and pw1 has denied the said suggestion and he has voluntarily deposed that there are no agents,processed_document_pdf_91125237_80.mp3 +"in the complainant Co. . But, when it is suggested by the accused to pw1 that persons by name madhu and shekar working in the complainant",processed_document_pdf_91125237_81.mp3 +"Co. visited the house of the accused and collected money, pw1 deposed that the said persons have issued receipts at the time of receiving money.",processed_document_pdf_91125237_82.mp3 +The said testimony of pw1 goes to show that certain cash payments has been made by the accused to the representative of the complainant Co. .,processed_document_pdf_91125237_83.mp3 +As discussed the complainant Co. has produced ex.p11 account ledger extract and the cash payments made by the accused ism/S. reddy's chits Pvt. vs. mr.,processed_document_pdf_91125237_84.mp3 +"Varadaraju. M on 10 june, 2022",processed_document_pdf_91125237_85.mp3 +"20. It is worth to that if at all the accused has paid the entire dues, nothing prevented the accused to summon the relevant documents",processed_document_pdf_91125237_86.mp3 +from the complainant Co. and he could have produced receipts before the court for having made payments to the complainant Co. . Notably no such positive,processed_document_pdf_91125237_87.mp3 +"evidence is placed on record to disprove the Cas. of the complainant. As such it could be concluded that, the complainant Co. has ably establish",processed_document_pdf_91125237_88.mp3 +"the transaction that took place between the accused and complainant Co. . Ii. Contents of cheque. 21. It is to be noted that, the accused has",processed_document_pdf_91125237_89.mp3 +"taken a defense that there is a difference in the contents of the cheque and the signature of the accused. During cross-examination of pw1, the",processed_document_pdf_91125237_90.mp3 +"accused has suggested that there is a difference in the handwriting pertaining to the signature of the accused found at ex.p12 cheque and its contents,",processed_document_pdf_91125237_91.mp3 +"for which pw1 deposed he do not know about the same. It is worth to note that, as discussed dw1 in his cross-examination has categorically",processed_document_pdf_91125237_92.mp3 +admitted his signature at ex.p12 cheque. But he has denied the issuance of ex.p12 cheque to the complainant Co. . It is required to be noted,processed_document_pdf_91125237_93.mp3 +"that, nothing has been explained by the accused either in his examination in chief or in his statement recorded u/sec. 313 of cr.p.c that how",processed_document_pdf_91125237_94.mp3 +"the subject cheque came in to the possession of the complainant Co. . 22. That apart, it is the Cas. of the complainant Co. that accused",processed_document_pdf_91125237_95.mp3 +issued ex.p12 cheque after issuance of legal notice dated: 21/10/2020 and notably no questions has been posed by the accused to pw1 either denying the,processed_document_pdf_91125237_96.mp3 +"same or accepting the same. Be that as if may, ex.p15 notice was returned as not claimed. If at all, the accused is not due",processed_document_pdf_91125237_97.mp3 +"to the complainant Co. as claimed by the complainant Co. , nothing prevented the accused to initiate action against the complainant Co. for claiming higher amount",processed_document_pdf_91125237_98.mp3 +"from him. That apart, though the accused has taken a defense, that there is a deference in the handwriting pertaining to his signature at ex.p12",processed_document_pdf_91125237_99.mp3 +"cheque and its contents, as he has admitted his signature at ex.p12 cheque and as he has not offered explanation either in his examination in",processed_document_pdf_91125237_100.mp3 +"chief or in his statement recorded u/sec. 313 of cr.p.c as to how subject cheque came in to the possession of the complainant Co. , it",processed_document_pdf_91125237_101.mp3 +could be presumed that the accused has issued ex.p12 cheque towards discharge of liability due and payable by him to the complainant Co. . 23. It,processed_document_pdf_91125237_102.mp3 +"is to be noted that S. 20 of the negotiable instrument act states that if one person signs and delivers to Anr. , the paper stamp",processed_document_pdf_91125237_103.mp3 +"in accordance with the law relating to negotiable instruments either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie",processed_document_pdf_91125237_104.mp3 +Auth. to the holder thereof to make complete. The said provision empowers the holder of the cheque to fill up the contents of cheque and,processed_document_pdf_91125237_105.mp3 +"present the same to the bank. Therefore, the stand taken by the accused that there is difference in the handwriting pertaining to his signature at",processed_document_pdf_91125237_106.mp3 +"ex.p12 cheque and its contents does not appeal to this court. Therefore, taking note of the entire material placed on record by the complainant and",processed_document_pdf_91125237_107.mp3 +"accused, it could be concluded that accused being the subscriber of chit group bearing No. 10l5, ticket no.23 for a value of rs.10,00,000/- participated in",processed_document_pdf_91125237_108.mp3 +"the chit auction held on 15/06/2019 and he received prize money of rs.6,04,000/- from the complainant Co. and towards discharge of liability due and payable,",processed_document_pdf_91125237_109.mp3 +"the accused issued issued ex.p12 cheque. As such it could be concluded that them/S. reddy's chits Pvt. vs. mr. Varadaraju. M on 10 june, 2022",processed_document_pdf_91125237_110.mp3 +"Instruments act. Accordingly, i answer point no.1 to 3 in the affirmative. 24. Point no.4 :- for the foregoing reasons, i proceed to pass the",processed_document_pdf_91125237_111.mp3 +"following:- or d e r in exercise of power conferred u/sec. 255(2) of cr.pc, the accused is convicted for the offence punishable u/s.138 of n.i.",processed_document_pdf_91125237_112.mp3 +"Act and sentenced to pay fine of rs.5,85,000/-. In default of payment of the said fine amount, the accused shall undergo simple imprisonment for a",processed_document_pdf_91125237_113.mp3 +"period of six months. Out of the said fine amount, an amount of rs.5,75,000/- shall be paid to the complainant as compensation as contemplated u/sec.",processed_document_pdf_91125237_114.mp3 +"357(3) of Cr.P.C. and the remaining amount of rs.10,000/- shall be remitted to the state. (dictated to the stenographer, directly on computer",processed_document_pdf_91125237_115.mp3 +", corrected and then pronounced in open court by me on this the 10 th day of june, 2022) (h. Satish) xxvii a.c.m.m., bengaluru. Annexure",processed_document_pdf_91125237_116.mp3 +witnesses examined on behalf of the complainant: pw1 : sri. Rajeev reddy. V documents marked on behalf of the complainant ex.p1 : true copy of,processed_document_pdf_91125237_117.mp3 +certificate of incorporation ex.p2 : extract of minutes of meeting of the board of directors of the complainant Co. held on 30/12/2019 ex.p3 : authorization,processed_document_pdf_91125237_118.mp3 +letter ex.p4 : true copy of chit prior sanction order ex.p5 : true copy of chit commencement certificate ex.p6 : chit agreement ex.p7 : promissory,processed_document_pdf_91125237_119.mp3 +note ex.p8 : cash voucher ex.p9 : guarantee agreement ex.p10 : surety proposal form ex.p11 : true copy of account extract ex.p12 : cheque ex.p12(a),processed_document_pdf_91125237_120.mp3 +: signature of the accused ex.p13 : bank endorsement ex.p14 : copy of legal notice dt:30/11/2020 ex.p14(a) & (b) : postal receipts ex.p15 : returned,processed_document_pdf_91125237_121.mp3 +rpad cover ex.p15(a) : copy of notice contained in ex.p14 rpad cover witnesses examined on behalf of the accused: dw1 : varadaraju. M documents marked,processed_document_pdf_91125237_122.mp3 +"on behalf of the accused: ex.d1 : account statement. Xxvii a.c.m.m bengaluru.m/S. reddy's chits Pvt. vs. mr. Varadaraju. M on 10 june, 2022",processed_document_pdf_91125237_123.mp3 +"Comp: sri. P.p.j adv., accd: sri. S.n.r adv., for judgment. Complainant and counsel absent. Accused and counsel absent. By virtue of provision contained in sec.353(6)",processed_document_pdf_91125237_124.mp3 +"of Cr.P.C. , judgment can be pronounced in the absence of accused if it is of acquittal or fine. (order typed vide",processed_document_pdf_91125237_125.mp3 +"separate sheet) or de r in exercise of power conferred u/sec. 255(2) of cr.pc, the accused is convicted for the offence punishable u/s.138 of n.i.",processed_document_pdf_91125237_126.mp3