Kempanarasimhaiah alias Kemparaju vs P. Rangaraju

Arali Nagaraj, J.—These Criminal Revision Petition Nos. 773 to 778/2007 are filed by the same petitioner who is accused in C.C. Nos. 1530 to 1533, 18573 and 18574 of 2004 on the file of the learned XV Additional Chief Metropolitan Magistrate, Bangalore (hereinafter referred to as the ''Trial Court'' for short) challenging the legality and correctness of the judgments and orders of conviction and sentence separately passed in the said cases on the same date i.e. 8.3.2006 convicting him for the offence u/s 138 of Negotiable Instruments Act (hereinafter referred to as the ''N.I. Act'' for short) and sentencing him to pay various amounts of fine and in default, to undergo simple imprisonment for a period of 2 months in each of the said cases.

Challenging the said judgments and orders of conviction and sentence passed by the said trial Court in the said cases, the petitioner herein had filed Cr. I.A. Nos. 607/2006 to 612/2006 respectively before the Court of Sessions Judge (Fast Track Court No. 7) at Bangalore (hereinafter referred to as the ''Appellate Court''). The Appellate Court, by its judgment, passed separately in each of the said appeals on the same date i.e. on 21.2.2007 dismissed all the said appeals and thereby confirmed the respective judgments and orders of conviction and sentence passed by the Trial Court impugned in the said appeals. The said judgments of the Appellate Court are also challenged by the petitioner-accused in these revision petitions,

Since the parties to the criminal cases before the Trial Court, criminal appeals before the Appellate Court and also in these revision petitions before this Court are same and the nature of transactions between the parties is similar in all the cases, these six revision petitions are disposed of by this common Order.

Stated in brief, the case of the complainant,(hereinafter the parties are referred to as per their rank in the Trial Court) as averred in his complaint in all his said seven criminal cases is as under:

(a) The accused had been known to the complainant since the past 20 years and he (accused) has been carrying on the business in wrist watches as he is the authorised dealer of HMT and other watches. He has his shop at Unity Building, J.C. Road, Bangalore under the name and style Times House''. At the request of the accused, the complainant lent him totally a sum of Rs. 7,00,000/- on various dates during the years 1999 and 2000 which was agreed to be repaid by the accused to the complainant along with interest at the rate of 3% per month. The accused paid the interest to the complainant up to June 2000 and thereafter he became irregular in payment of the interest. Ultimately he stopped paying monthly interest from August 2003.

(b) Whenever the accused was borrowing money from the complainant, he was issuing cheques for the amount borrowed. Accordingly he issued in favour of the complainant the following cheques:

-------------------------------------------------------------------- Sl. Cheque No. Amount of C.C. No. Crl.R.P. No. Date & Cheque Ex. No. -------------------------------------------------------------------- 1. 246345 Rs. 1,00,000/- 1530/04 773/07 25.3.99 EX.P2

246375 1,50,000/- 1531/04 774/07 3.6.99 Ex.P2

252769 1,00,000/- 1532/04 775/07 22.11.99 Ex.P2

252800 1,00,000 1533/04 776/07 7.1.00 EX.P2

759725 1,00,000 1534/04 777/07 29.3.00 EX.P2 & 035825 29.3.00 Ex.P3 50,000

257434 1,00,000 1535/04 778/07 31.8.99 Ex.P2 --------------------------------------------------------------------

(c) The complainant did not present any of the above cheques to the bank for encashment as he was requested by the accused not to present the same for encashment. However, the accused went on revalidating the above cheques from time to time before their validity period could expire from the respective dates of their issue.

(d) Ultimately, though he invalidated them till the year 2003, he failed to repay the principal sums thereunder and also the interest accrued thereon from time to time. Therefore the complainant presented all the said cheques on different dates to his bank i.e. Karnataka State Industrial Co-operative Bank, Avenue Road Branch, Bangalore for encashment but all the said cheques came to be returned dishonoured by the said bank with endorsements as "referred to drawer;" "not arranged for" "exceeds arrangement" "funds insufficient" etc. on different dates.

(e) After the said cheques were returned dishonoured, the complainant got issued against the accused totally four statutory notices on different dates calling upon the accused make payment of the sums mentioned in the respective cheques with interest thereon at the rate of 3% per month, and informing him that in the event of his failure to do so, he would initiate proceedings against him u/s 138 of the N.I. Act Despite receipt of the said notices, the accused did not respond to the same. Therefore the complainant filed his respective complaints u/s 200 of Cr.P.C. in all the said criminal cases before the trial Court.

(f) After considering the evidence adduced by the complainant and the accused, both oral and documentary, the trial Court passed the said impugned Judgments and Orders of conviction and sentence convicting the accused for the offence u/s 138 of N.I. Act. Aggrieved by the same, he preferred the respective criminal appeals before the learned Appellate Court which also came to be dismissed. Therefore the accused has filed the present revision petitions challenging the correctness of both the said Judgments.

Heard the arguments of Sri M.R. Narayan, the learned Counsel for the petitioner-accused and also Sri R. Vijaya Kumar, the learned Counsel for the respondent-complainant in all these revision petitions. Perused the judgments of the Trial Court, the judgments of the Appellate Court which are impugned in these respective revisions. Also perused entire material on record in all the said criminal cases obtained from the Trial Court.

Having heard the learned Counsel for both the sides, the only point that arises for my consideration in these revision petitions is:

Whether the Trial Court as well as the Appellate Court committed any error in passing the impugned judgments and orders of conviction and sentence in all the said cases?

My findings on this point is in the ''Negative'' for the following,

REASONS

It is not in dispute that the contents of the affidavits filed in all the said criminal cases before the trial Court by the complainant as his evidence in examination-in-chief as to the nature of transactions between himself and the accused are identical except the dates and amounts of various cheques involved in the respective cases and that the petitioner-accused has also filed his common affidavit in all the said cases sworn to as his evidence in examination-in-chief. Further, it is also not in dispute that the evidence of DWs.2 and 3 examined for the petitioner-accused in all the said cases is common. Besides this, there is no dispute as to the petitioner-accused issuing all the said cheques in favour of the respondent-complainant, presentation of the said cheques by the complainant to his bank for their encashment on the respective dates, the return of the said cheques by the bank on the ground that there were no sufficient funds in the account of the accused to honour the same, the dates on which statutory notices were issued to the accused, the receipt of the said notices by the accused in all the said cases.

It is the case of the complainant, as strongly contended by the learned Counsel for the respondent-complainant, that the complainant advanced a total sum of Rs. 7,00,000/- to the accused on different occasions during the years 1999 and 2000 and, on each such occasion, the accused issued him cheque for the principal amount borrowed. But the case of the accused is that he borrowed only a sum of Rs. 2,00,000/- from the complainant and issued only two cheques as security for repayment of the same and that he issued five other cheques for securing the repayments of various amounts of loan advanced by the complainant to five of his (accused''s) friends whom he (accused) had introduced to the complainant and this being so, he (the accused) did not issue the said five cheques towards discharge of any debts due by him to the complainant However, there is no dispute as to the accused revalidating all the said seven cheques from the respective dates of their issue till the year 2003 from time to time before the expiry of their period of validity.

Sri Vijaya Kumar, the learned Counsel for the complainant, placing reliance on the latest decision of Hon''ble Supreme Court in the case of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, submitted that the Trial Court as well as the Appellate Court rightly raised the presumption u/s 139 of N.I. Act and recorded concurrent findings in their respective judgments that in view of the fact that the accused admitted the issuing of the said cheques by him in favour of the complainant, and that he went on revalidating the same from time to time, it shall have to be presumed that he issued the said cheques towards discharge of the debt which existed as on the relevant dates of the said cheques.

Per contra, placing his reliance on the same judgment Sri Narayan, the learned Counsel for the petitioner-accused submitted that the presumption that could be drawn u/s 139 of N.I. Act extends only to the issuing of cheque towards discharge of legally recoverable debt or other liability but it does not extend to the very existence of legally recoverable debt or liability. He further submitted that the presumption that could be drawn u/s 139 of N.I. Act cannot be held to be conclusive proof of the (act that there existed ''debts'' as on the date of respective cheques and they were issued towards discharge of the said debts; on the other hand, it is rebuttable one and it has been successfully rebutted by the accused through his oral evidence and that of DWs.2 and 3 and therefore the Trial Court as well as the Appellate Court committed serious error in holding the accused guilty of the said offence.

Since the learned Counsel for both the sides have placed reliance on the same judgment of Hon''ble Apex Court, in the case of Krishna Janardhan Bhat AIR 2008 SC 1325 it would be proper for me to extract the relevant portions in the said judgment. It is observed at paragraph Nos. 20,21, 23; 25,26 and 34 as under:

Para 20: "Section 138 of the Act has three ingredients, viz,:

(i) that there is a legally enforceable debt;

(ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and

(iii) that the cheque so issued had been returned due to insufficiency of funds.

Para.21: The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption u/s 139 of the Act, It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability.

[Emphasis supplied by me]

Para 23: An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on records. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different.

Para 25: Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is "preponderance of probabilities". Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies.

Para 26: A statutory presumption has an evidentiary value. The question as to whether the presumption stood rebutted or not, must, therefore be determined keeping in view the other evidences on record. For the said purpose, stepping into the witness box by the appellant is not imperative. In a case of this nature, where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration.

Para 34: It is further argued that statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should be held to have rebutted. Other important principles of legal jurisprudence, namely presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same.

As to the provisions of Sections 138 and 139 of N.I. Act, the following principles emerge from the above observations of Hon''ble Supreme Court at Para Nos. 21,23,25,26 and 34 of its judgment in the above said case of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, .

(i) Section 139 of the Act merely raises a presumption that the cheque was issued towards discharge in whole or in part of any debt or other liability which presupposes legally enforceable debt. Existence of legally recoverable debt is not a matter of presumption u/s 139 of the Act It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability. (Para 21)

(ii)The question as to whether the presumption stood rebutted or not, must be determined keeping in view the other evidences on record where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration. (Para 26)

(iii) An accused, for discharging the burden of proof placed upon him under a statute, need not examine himself. He may discharge his burden on the basis of the materials already brought on records. (Para 23)

(iv) Standard of proof on the part of an accused and that of the prosecution in a criminal case is different Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is "preponderance of probabilities". (Paras 23 & 35)

(v) Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies. (Para 25)

(iv) Other important principles of legal jurisprudence, namely presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 should be delicately balanced. (para 34)

I have now to examine the case of the complainant as well as that of the accused keeping in mind the above principles. The complainant besides alleging in his complaint filed in all the said cases, has stated in his evidence as PW. 1, that as he was knowing the accused since the past 20 years, he advanced to the accused loan of Rs. 7 lakhs on various dates during the years 1999 and 2000, which was agreed to be repaid by the accused along with interest at the rate of 3% p.m. and that in discharge of the said loan amount the accused issued the cheques in the respective cases. The defence of the accused is that he borrowed from the complainant only a sum of Rs. 2 lakhs only but not Rs. 7.00 lakhs as claimed by the complainant and issued two of the said cheques as security for the repayment of the same and, since he got the loan advanced by the complainant to five of his friends, he issued the other five cheques as security towards repayment of the respective loan amounts borrowed by his said friends from the complainant. Though it is held in the above said case that in order to rebut the presumption the examination of the accused himself is not necessary, in the present case, the accused has got himself examined as DW. 1 besides getting two other witnesses examined for him as DWs.2 and 3. Therefore considering the evidence of PW1 complainant DW1 accused-petitioner and his two witnesses viz., DWs 2 and 3. I have to see whether there existed legally enforceable debt payable by the accused to the complainant as on the date of issuing of the cheques in question by the former to the latter and also, whether the evidence of DWs 1 to 3 is sufficient to hold that the accused rebutted the presumption that has to be drawn in favour of the complainant by virtue of Section 139 of the N.I. Act as to the accused issuing the said cheques.

The accused, as DW. 1, has stated in his evidence that he borrowed a sum of Rs. 2 lakhs only from the complainant on various dates during the period 1999-2000 and, the amount borrowed on each occasion ranged from Rs. 25,000/- to Rs. 50,000/-. He has further deposed that right from the date of borrowing till the last payment on dated 6.3.2003 he must have paid more than Rs. 10 lakhs and therefore the demand of the complainant for Rs. 7 lakhs towards the principal and Rs. 4 lakhs towards interest besides being not only incorrect but amounts to exploitation. He has further stated at para No. 6 of his affidavit sworn to as his evidence in examination-in-chief that the complainant received the cheques issued by him as security for the repayment of the loan. He has further stated at para Nos. 7 and 8 therein that the complainant lent money to five persons namely, Mr. Aradhya, Mr. Hombegowda, Mr. Suri Wilfred, Mr. Venkalesh and Mr. Prem Das who were introduced by him only to the complainant and that he (accused) had issued cheques to the complainant as security for the repayment of the loans taken by the said persons and that all the said persons repaid the said loans but the complainant misused some of the cheques so issued by him as security for repayment of the loans by the said persons.

DW.2 is Suri Wilfred to whom the complainant is said to have tent money at the instance of the accused. He has stated in his evidence that during the period from 1999 to 2003 he took loans on 7 or 8 occasions from the complainant totally amounting to Rs. 2,50,000/- on the personal guarantee of the accused which loan was agreed to be repaid with interest at the rate of 5% per month. DW.3 Hombegowda is another person who claims to have availed loan from the complainant on the recommendation of the accused. He has stated in his evidence that during the year 2001 the complainant lent him a sum of Rs. 2,00,000/- bearing interest at the rate of 5% per month on the personal guarantee of the accused.

On careful scrutiny of the atom evidence of DW.1 the accused as to he getting the loans advanced by the complainant to the the said five persons and also the evidence of DWs.2 and 3 who are two of the said five persons, it could be seen that neither DW.2 nor DW.3 has stated in his evidence that at the time when he obtained loan from the complainant, the accused issued any cheque to the complainant as security towards repayment of the said loan. Besides this, the accused has also not stated in his evidence as to which of the seven cheques were issued by him as security towards repayment of the loan of Rs. 2,50,000/- said to have been obtained by DW.2 on 7 to 8 occasions during the period from 1999 to 2003 and the loan of Rs. 2,00,000/- said to have been obtained by DW.3 during the year 2001.

Further, on a careful perusal of the dates of the said cheques, it could be seen that admittedly four of the said cheques respectively in C.C. Nos. 1530 to 1532 and 1535 of 2004 were issued in the year 1999 only respectively on dated 25.3.1999, 3.6.1999, 22.11.1999 and 31.8.1999 and remaining two were issued on 7.1.2000 and 29.3.2000. If these dates are examined with reference to the evidence of DWs.2 and 3, it could be seen that since DW.2 claims to have availed loan from the complainant on 7 or 8 occasions during the period from 1999 to 2003, totally amounting to Rs. 2,50,000/-, none of the said seven cheques could be issues after March 2000 because the last of the said cheques is dated 29.3.2000. Besides this, the learned Counsel for the accused has not been in a position to point out as to which of the said cheques issued during the year 1999 or 2000 could have been issued by the accused to the complainant as security for the repayment of the said loan amount said to have been availed by DW.2 during 1999 and 2000. Further, since DW.3 has stated in clear terms in his evidence that he obtained loan from the complainant during the year 2001 and none of these seven cheques has been issued during the year 2001, absolutely there could be no occasion for the accused to issue any of these seven cheques to the complainant as security for the repayment of loan obtained by DW.3. Therefore the Trial Court as well as the First Appellate Court have rightly disbelieved the case of the accused that five of the said cheques were issued by him in favour of the complainant as security towards repayment of the loans said to have been advanced by the complainant to the said five persons including OWs2 and 3 on the recommendation and on the personal guarantee of the accused.

It is not in dispute that the accused revalidated almost all the cheques well before validity period of each of them could expire. If it were to be true that five of the said cheques were issued by him as security towards repayment of loan amounts advanced by the complainant to the said five persons at the instance of the accused and that the said five persons repaid the respective loans but the complainant, instead of returning the said cheques to the accused, misused the same, one cannot understand as to why the accused went on invalidating the said cheques from the year 2001 till the year 2003 despite the said persons repaying the said loan amounts. This conduct of the accused also falsifies his case. Therefore the findings recorded by the Trial Court as well as the Appellate Court disbelieving this defence of the accused does not call for any interference in these revision petitions.

The learned Counsel for the petitioner-accused has placed reliance on the decision of the Hon''ble Apex Court in case of K. Prakashan v. P.K. Surendera reported in (2008) 1 SCC 288 wherein it is observed as follows:

The trial court held that the complainant, who had no sufficient funds and used to borrow the same from his brothers, father and others, failed to show that he had any financial capacity to such a huge amount; that as all the transactions were admittedly recorded by him in a dairy which had not been produced, an adverse inference should be drawn; that the complainant failed to prove before the court that there had been any commercial or business transaction between himself and the accused, that the complainant contradicted himself insofar as whereas in the complaint petition he inter alia alleged that the loan was raised by him from his father as also from others, in his evidence, he did not state that he had borrowed any amount from third parties; that although the burden of proof was on the appellant, he, in view of the aforementioned circumstances, must be held to have discharged the same.

Placing reliance on the above observations, the learned Counsel for the petitioner strongly contended that the complainant had no capacity to lend to the accused such a heavy amount of Rs. 7,00,000/- and that he did not produce any material on record to show that he had such a capacity and therefore the courts-below ought not to have believed the case of the complainant that he lent Rs. 7,00,000/- to the accused. This submission cannot be accepted for the reason that it is the very case of the accused that he introduced the above said five of his friends to the complainant and got the loans advanced to them in lakhs of rupees on several occasions. If the complainant had capacity to lend to the friends of the accused as contended by the accused himself, it could not be said that the complainant had no capacity to lend to the accused. Besides this, there is evidence of PW. 1 that on his retirement he got retirement benefits to the extent of more than Rs. 4,00.000/- and he lent the same to the accused. Further, the complainant has denied in clear terms that he lent any loan to any of the said five persons at the instance of the accused. Further, DWs.2 and 3 except saying in vague terms in their evidence that they obtained loan from the complainant on several occasions, they have not produced any material to substantiate the same. Therefore the above submission of the teamed counsel for the petitioner - accused has no substance.

The learned Counsel for the petitioner-accused placing reliance on the decision of Andhra Pradesh High Court in the case of Krishnan Raju Finances, Hyderabad v. Abida Sultana and Anr. reported in Acq. D.C.C. 513, urged that since the complainant was doing money lending business without obtaining valid licence, even if there could be any debt due by the accused to the complainant, the same could not be recovered. On careful scrutiny of the evidence of the complainant and also that of the accused, the Trial Court as well as the Appellate Court have recorded a concurrent finding of fact that the accused failed to substantiate his contention that the complainant had been doing money lending business without obtaining valid licence. Having regard to the nature of the evidence of the accused and also that of the complainant, I do not find any reasons to take a view contrary to the one taken by both the Courts.

Drawing my attention to the observations of Hon''ble Supreme Court at para No. 19 of the judgment in Krishna Janardhan Bhat v. Dattachraya & Hedge reported in AIR 2008 SC 1325 (referred to supra), the learned Counsel for the petitioner-accused strongly contended that the payment cash of more than Rs. 20,000/- by the complainant to the accused and receipt of the same by the latter, itself was in contravention of the provisions of Section 269 of the Income Tax Act and as such it attracted the penalty u/s 271D of the said Act and as such the transaction itself was opposed to public policy and therefore the debt could not be termed as legally recoverable debt''. While submitting so, he further urged that the Appellate Court as well as the Trial Court were not justified in convicting the accused for the said offence. The said observations of Hon''ble Supreme Court read as under:

The courts-below failed to notice that ordinarily in terms of Section 269-SS of the Income Tax Act, any advance taken by way of any loan of more than Rs. 20,000/- was to be made by way of an account payee cheque only.

Section 271D of the Income Tax Act reads as under:

Section 271D: Penalty for failure to comply with the provisions of Section 269-SS:

(1) If a person takes or accepts any loan or deposit in contravention of the provisions of Section 269-SS, he shall be liable to pay, by way of penalty, a sum equal to the amount of the loan or deposit so taken or accepted.

(2) Any penalty imposable under Sub-section (1); shall be imposed by the Joint Commissioner.

On careful reading of the above observations and also all other observations in the said judgment I could not find the Hon''ble Supreme Court having laid down that the transactions in contravention of the said provisions of Income Tax Act could be termed as the transactions opposed to public policy so as to bring the same within the ambit of non-enforceable transactions. The Hon''ble Supreme Court has not laid down in the said decision that the transactions of this nature could be termed as opposed to public policy'' and as such the same would become legally not enforceable. However, this Court cannot lose sight of such transactions as in this case which have resulted in considerable loss to the government revenue inasmuch as the complainant himself has admitted that he received from the accused interest on the principal amount of Rs. 7.00 Lakhs at the rate of 3% per month till 2003 which comes to several lakhs. Therefore this matter requires to be referred to the concerned Income Tax authorities with a view to draw their attention to these transactions resulting loss to the Revenue.

The learned Counsel for the petitioner-accused vehemently contended that the complainant was directed by the Trial Court by it Order dated 20.9.2005 passed on the application of the accused filed u/s 91 of Cr.P.C. to produce the books of account pertaining to the loan transaction between himself and the accused, but the complainant did not produce the same though he produced only some slips pertaining to the said transactions and therefore adverse inference ought to have been drawn against the complainant by the courts-below. Per contra, the learned Counsel for the complainant, drawing my attention to the operative portion of the said Order, submitted that the complainant was directed to produce the slips maintained by him in respect of receipt of the payments made by the accused and accordingly he produced the slips. He further submitted that the said Trial Court did not direct the complainant to produce any books of accounts and therefore there was no occasion for him not to comply with the said order.

On perusal of the operative portion of the said order of the Trial Court, it is seen that the complainant was directed to produce the slips maintained by him evidencing the receipt of payments by the accused periodically. On perusal of the records, it is seen that the complainant produced some slips which came to be marked at Exs.D-1 to D-8. Besides this, DW.l accused has stated in his evidence that he has records with him for having paid to the complainant amounts exceeding Rs. 25,000/-. This being so, the submission of the learned Counsel for the petitioner-accused that the Courts-below ought to have drawn adverse inference against the accused cannot be accepted.

Placing, reliance on the decision of the Madras High Court in the case of Poppys Spinning Mills (P) Ltd. v. C. Visalakshi, Proprietrix, Sri Karpaga Vinayagar Textiles, Tirupur and Anr. reported in Acq.D.C.C. 749, the learned Counsel for the petitioner-accused urged that notices issued to the accused by the complainant were not clear as to the amounts under the respective cheques and as such the notices ware defective and therefore the proceedings u/s 138 of the N.I. Act could not be maintained nor could the accused have been found guilty. In support of this contention, the learned Counsel for the petitioner-accused placed reliance on another decision of Andhra Pradesh High Court in the case of Yankey Drugs And Pharmaceuticals Ltd. v. Citi Bank reported in Acq.D.C.C. 715, paragraphs 14 and 15 reads as follows:

Paragraph 14: Counsel for the 1st respondent-complainant, Sri Raghunandan, however, submits that the amount of Rs. 3871/- mentioned in the notice is a mere typographical error. Instead of mentioning Rs. 9,972/- which is the cheque amount, Rs. 3,871 was typed by mistake. In his submission, the proceedings are not liable to be quashed merely on this technical ground.

Paragraph 15: I am unable to agree with this contention. As already noted, giving notice and demanding payment of the amount covered by the dishonoured cheque; is one of the main ingredients of the offence u/s 138 of the Act If that main ingredient is missing, no offence is made out u/s 138. Futhermore, as already held by this Court in H.L. Agarwal v. Rakesh Agarwal 1997(1) ALT (Crl) 678, the offence under contemplated u/s 138 of the Act must be complied with.

On perusal of the copies of statutory notices issued to the accused by the complainant, it could be seen that except In Ex.P-6 notice issued in respect of cheque bearing No. 252736 which is marked as Ex.P-3 in CC.No. 18573/204, in all other notices, the amounts of the respective cheques are shown correctly. In respect of this cheque, the amount is shown in the notice as Rs. 1,00,000/- whereas the amount of cheque is Rs. 50,000/-. However, the Trial Court has considered the amount under this cheque as Rs. 50,000/- only but not as Rs. 1,00,000/- as claimed by the complainant in the said notice. Besides this, the complainant has correctly mentioned in his complaint the amount of this cheque as Rs. 50,000/-. Further, he has shown the same amount in the affidavit sworn to by him as his evidence in examination-in-chief. Therefore I am of the considered view that the said discrepancy as to the amount of this cheque in the said notice Ex.P-6 does not disentitle the complainant to claim the amount of the cheque which is only Rs. 50,000/- i.e. less than what is claimed in the notice.

For the reasons aforesaid, I am of the considered view that there existed legally enforceable debt payable by the petitioner - accused to the respondent - complainant as on the date of issuing of the said cheques by the accused to the complainant and that the Trial Court and the Appellate Court were justified in drawing presumption in favour of the complainant u/s 139 of the N.I. Act. I am of the further opinion that though the petitioner-accused was not supposed to prove his defence case beyond all reasonable doubt and he was only to prove that the same as probable, the evidence adduced by him in support of the same is not sufficient to rebut the presumption that has to be drawn in favour of the complainant as provided u/s 139 of the N.I. Act Therefore the Judgments and Orders of conviction passed by the Trial Court in the said respective cases and also the Judgments of the Appellate Court passed in the respective appeals confirming the Judgments of the Trial Court do not call for any interference in these revision petitions.

In the result, while answering the point raised for my determination in these Revision Petitions in the ''Negative'' and against the Revision Petitioner - Accused, I pass the following:

ORDER

All these Criminal Revision Petition Nos. 773 to 778/2007 filed by the petitioner who is accused in C.C. Nos. 1530 to 1533, 18573 and 18574 of 2004 on the file of the learned XV Addl. Chief Metropolitan Magistrate, Bangalore are hereby rejected. The respective Judgments and Orders of conviction passed by the Trial Court in the said cases on dated 8.3.2006 convicting the revision petitioner-accused for the offence punishable u/s 138 of the N.I. Act in each of the said cases are hereby left undisturbed. However, the sentence of Imprisonment of two months imposed on him as default sentence for non-payment of the fine is reduced to one month in each of the said cases.

Certified copies of the complaints and also the depositions of the complainant and the accused in all the said cases before the Trial Court shall be sent to the Commissioner of Income Taxes, Bangalore with a direction to probe into the matter and proceed against the complainant and the accused, in accordance with law.

The amounts deposited by the accused in the respective cases along with interest accrued thereon if any, shall be paid to the complainant

Original of this Common Order shall be placed in Crl.R.P. No. 773/2007 and a copy thereof in each of other five Revisions. No order as to costs in these revisions.