Bangalore District Court
Rajesh vs S.Sardar on 17 August, 2021
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 17th day of August - 2021
PRESENT: SRI. N.K.SALAMANTAPI, B.A., LL.B.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.20429/2018
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Rajesh,
S/o.Late.Sanjiv,
Aged about 48 years,
#25, 1st Cross, Anjanappa Layout,
Vijayanagar 2nd Stage,
Bengaluru-40.
(Rep. by Sri.S.Nataraja, Adv.)
V/S
Accused : S.Sardar,
S/o.Sabu Sab,
C/o Yuken India Ltd.,
#44, Whitefield Road,
Bengaluru-66.
And also at:
#202A/269, G.O.Compound,
Belthur, Kadugodi, Bengaluru-66.
(Rep.by Sri.Hanumantharaya.D, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Convicted.
DATE OF ORDER : 17.08.2021.
(N.K.SALAMANTAPI)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.No.20429/2018
JUDGMENT
The complainant has presented the instant complaint against the accused on 02.07.2018 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act for dishonour of cheque amount of Rs.10 lakhs.
2. The brief facts of the complaint are as under:
The complainant and accused were known to each other. To meet some urgent legal necessities, the complainant lent a hand loan of Rs.8 lakhs to the accused on 25.10.2016. Thereafter, the accused has executed an On demand pro-note in favour of complainant and promising to repay the same together with interest at 18% per annum. When the accounts were drawn, accused became due an amount of Rs.10,16,000/- as on 25.04.2018 and accused requested the complainant to accept the cheque for Rs.10 lakhs in full and final settlement of debt.
The complainant has further contended that thus towards repayment of the said amount, the accused has issued a post dated cheque bearing No.753160 dated 30.04.2018 drawn for Rs.10,00,000/- drawn on State Bank of India, Kadugodi, Whitefield Road, Bengaluru in favour of complainant. When the said cheque was presented for encashment through his banker Judgment 3 C.C.No.20429/2018 viz., UCO Bank, Vijayanagar Branch, Bengaluru on 30.04.2018, the same came to be dishonoured with an endorsement dated 01.05.2018 stating "Payment Stopped by Drawer". The accused has played mischief by stopping the payment. Thereafter, when the complainant has approached the accused and intimated the same, he told him that he would pay the same by demand draft, but he has not done so. Therefore, the complainant got issued legal notice to the accused on 18.05.2018 by way of R.P.A.D. as well as Speed Post, calling upon him to repay the cheque amount by demand draft within 15 days from the date of receipt of the legal notice and the same was duly served upon accused on 21.05.2018. Despite, the accused neither paid the cheque amount nor replied to the legal notice. Thus, he committed an offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
3. After receipt of the private 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 proceed against the accused for the alleged offence, got issued process.
Judgment 4 C.C.No.20429/2018
4. In response to the summons, the 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 accused, wherein, he denied the same and claimed to have the defence.
5. To prove the case of the complainant, he himself choosen to examine as PW.1 and got marked Exs.P1 to P15(a). The PW.1 was subjected for cross-examination by the advocate for the accused. In the cross-examination of DW.1, complainant counsel got confronted two xerox copies of documents and same are marked as Exs.P16 and P17 and the said documents are considered as secondary evidence. The complainant's counsel also got confronted Ex.C1 and Ex.C1(a) from the cross- examination of DW.1.
6. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same. In support of the defence, the accused himself was examined as DW.1, but not produced any document in support of his defence. The DW.1 was subjected for cross- examination by the advocate for the complainant.
7. Both side counsels have addressed their arguments.
Judgment 5 C.C.No.20429/2018
8. On going through the rival contentions, based on the substantial evidence available on record, the following points would arise for determination:
1) Whether the complainant proves beyond the reasonable doubt that the accused got issued Ex.P1-cheque bearing No.753160 to the complainant towards discharge of legal recoverable debt or liability and the said cheque was dishonoured?
2) Whether the complainant proves beyond the reasonable doubt that after dishonour of cheque served notice to the accused in compliance of Section 138(b) of Negotiable 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 : In the Affirmative Point No.2 : In the Affirmative Point No.3 : As per final order, for the following:
REASONS
10. POINT NOs.1 and 2: Since both the points are connected with each other, they have been taken together for common discussion in order to avoid repetition of facts.
The complainant has filed this complainant for the offence punishable under Section 138 of Negotiable Instruments Act Judgment 6 C.C.No.20429/2018 against the accused stating that he lent a hand loan of Rs.8 lakhs to the accused on 25.10.2016 and the accused has executed an On demand pro-note in his favour promising to repay the said amount with interest at 18% per annum. When calculated the principal along with interest, the accused became due sum of Rs.10,16,000/- as on 25.04.2018 and accused requested him to accept the cheque of Rs.10 lakhs in full and final settlement of debt due under the aforesaid. For which he agreed with him thus towards payment of the said debt, the accused has issued a post dated cheque bearing No.753160 dated 30.04.2018 for Rs.10,00,000/- drawn on State Bank of India, Kadugodi, Whitefield Road, Bengaluru in his favour. When the said cheque was presented for encashment through his banker viz., UCO Bank, Vijayanagar Branch, Bengaluru on 30.04.2018, the same was dishonoured returned with remarks "Payment Stopped by Drawer". Thereafter, when he approached the accused, he told him that he would pay the same by demand draft shortly, but he has not done so. Hence, he got issued legal notice calling upon him to repay the cheque amount, but he has not repaid the cheque amount of Rs.10,00,000/-. Hence, he prayed to punish the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
Judgment 7 C.C.No.20429/2018
11. To attract Section 138 of Negotiable Instruments Act, complainant should prove that; (1) the accused has issued a cheque for discharge of legally recoverable debt. (2) The same was presented through his banker. (3) It was dishonoured on presentation. (4) 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, if any were complied within 15 days from the date of receipt of notice.
12. In order to prove his case, the complainant filed his affidavit and himself examined as PW.1, wherein, he has reiterated the averments made in the complaint. In support of his contention, he relied upon the documents at Exs.P1 to P15(a). Among them, cheque bearing No.753160 issued by the accused for sum of Rs.10,00,000/- dated 30.04.2018, drawn on State Bank of India, Kadugodi, White Field Road, Bengaluru is marked as Ex.P1. The signature of accused is marked as Ex.P1(a). Exs.P2 and P3 are the Bank Endorsements issued by UCO Bank, the contents of Exs.P2 and P3 disclose that the cheque bearing Nos.753160 drawn for Rs.10,00,000/- was dishonoured for the reasons "Payment Stopped by Drawer". Ex.P4 is the Legal Notice dated 18.05.2018, the recitals of Ex.P4 discloses that the complainant has issued this notice to the accused through his counsel. By Judgment 8 C.C.No.20429/2018 issuing this notice, complainant called upon the accused to repay the cheque amount of Rs.10,00,000/- by demand draft within 15 days from the date of receipt of notice. Exs.P5 to P8 are the Postal receipts. Exs.P9 to P12 are the unserved R.P.A.D. covers, same are returned as party out of station. Exs.P9(a) to P12(a) are the legal notices at Exs.P9 to P12. Exs.P13 and P14 are the On demand promissory note and consideration receipt dated 25.10.2016 executed by accused in favour of complainant regarding availment of loan of Rs.8 lakhs from the complainant. Exs.P13(a) and P14(a) are the signatures of accused. Ex.P15 is the private complaint. Ex.P15(a) is the signature of complainant. Ex.P16 is the copy of ID Card pertaining to the accused herein issued by Yuken India Ltd. White Field Road, Bengaluru and Ex.P17 is the xerox copy of E-Aadhaar letter pertaining to the accused herein. Exs.P16 and P17 are marked and consider on secondary evidence. The PW.1 was subjected to the cross- examination by the advocate for the accused. In support of his case, the complainant through his counsel has relied upon the decisions as under:
a) AIR 2002 (5) KAR L.J. 516 in the case of Bhavani V/s. D.C.Doddarangaiah and another.
b) 2010 AIR SCW 2946 in the case of Rangappa V/s.
Mohan.
Judgment 9 C.C.No.20429/2018
c) AIR 2018 SC 3601 in the case of T.P.Murugan V/s. Bojan.
d) AIR 2018 SC 3173 in the case of Kishan Rao V/s. Shankargouda.
e) AIR 2019 SC 2446 in the case of Bir Singh V/s. Mukesh Kumar.
f) AIR 2019 SC 1876 in the case of Rohitbhai Jivanlal Patel V/s. State of Gujarat and another.
g) Crl.A.No.123 of 2021 in the case of M/s.Kalamani Tex & another V/s. P.Balasubramanian.
h) 2007 Crl.L.J. 3214 in the case of C.C.Alavi Haji V/s. Palapetty Muhammed and another.
I have gone through the above decisions.
Section 118 (a) of Negotiable Instruments Act provides that:
"Until the contrary is proved, the following presumptions shall be made: (a) 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 transferred, was accepted, indorsed, negotiated or transferred for consideration."
Section 139 of Negotiable Instruments Act provides that:
"It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."
Judgment 10 C.C.No.20429/2018
13. In order to rebut the presumption available under Sections 118(a) and 139 of Negotiable Instruments Act, the accused has filed his affidavit and examined himself as DW.1. In his evidence, he has stated that the complainant was stranger to him. As the complainant and his daughter are known to each other, as his daughter was in need of loan for which the complainant assured to get loan sanction as 10% commission on the loan, towards sanction of home loan, the complainant obtained cheque from his daughter for which his daughter gave a cheque belongs to him to the complainant along with property documents. He has not received any amount from the complainant as stated in the complaint and he has not issued cheque in favour of complainant for discharge of legally recoverable debt. On the other hand, the counsel for complainant has cross-examined the DW.1 and he has denied the evidence given by the accused before the court.
14. Accused has taken contention that the legal notice sent by complainant was not served to him and he has not seen the complainant at the earlier point of time. The complainant has stated that the notice was sent to the correct address of the accused. In order to prove the said contention the counsel for complainant cross-examined the DW.1. In the cross-examination the DW.1 has admitted that the address mentioned in Exs.P16 Judgment 11 C.C.No.20429/2018 and P17 are correct and the address mentioned in Ex.P17 is belonging to him. If any letter correspondence is made through post, it will be reached to the address mentioned in the Ex.P17. Therefore, the accused cannot say that the legal notice was not served on him and he does not aware about the notice sent by the complainant.
15. The accused has taken contention that his daughter and complainant are known to each other, for getting of loan on commission basis, his daughter has given cheque belongs to him to the complainant. To prove the above contention he did not try to adduce evidence of his daughter before the court. Therefore, he cannot say that his daughter has given the Ex.P1-cheque to the complainant for getting sanction of loan on commission basis.
16. On carefully perusal of the On demand promissory note and consideration receipt produced by the complainant it shows that the accused has received sum of Rs.8 lakhs on 25.10.2016 and he has agreed to repay the same along with interest as stated in the On demand promissory note and consideration receipt and he was due of Rs.10,16,000/- and he has issued a cheque for Rs.10,00,000/- as full and final settlement of the amount of On demand promissory note and consideration receipt. There is no Judgment 12 C.C.No.20429/2018 cogent and convenience materials on behalf of accused to believe his version that he has not issued the Ex.P1-cheque in favour of complainant for discharge of legally recoverable debt. Thus the accused has failed to rebut the presumption available under Section 118(a) and 139 of Negotiable Instruments Act in favour of complainant.
17. The R.P.A.D. covers produced by the complainant proved that the demand notice has been issued to the correct address of the accused and he awared of the contents of demand notice and he did not repay the amount to the complainant.
It is relevant to cite the decision reported in 2006 (4) KCCR 2375 in the case of Mr.Umraz Khan and others V/s. Mr.A.Jameel Ahmed and another. Wherein, Hon'ble High Court of Karnataka was pleased to held that:
"Once there is proof of posting of notice to correct address, it is deemed to have been served, the judgment of acquittal is bad in law".
18. On going through the said dictum, it is also made clear that if the notice was sent with correct address of the accused, it is suffice to draw the inference that notice was duly served on the accused. If the accused failed to accept the notice and failed to Judgment 13 C.C.No.20429/2018 claim the notice sent to him under register post, there is deemed service of notice upon him.
19. The learned counsel for accused in support of defence taken by the accused, he has relied upon the decisions as under:
a) C.C.No.1660/2017 in the case of Bulland leasing & Finance Pvt. Ltd., V/s. Manoj Singh Nirman.
b) 2016 Crl.L.J. 4330 in the case of Supply House, Rep.
by Managing Partner V/s. Ullas, Proprietor Bright Agencies and another.
Wherein, the Hon'ble Kerala High Court observed that:
"Post dated cheque issued by accused along with order for supply of certain goods by complainant. No supply of goods by complainant. Accused does not incur any liability towards complainant. Not liable to be convicted for dishonour of post dated cheque irrespective of fact that accused incurred certain liabilities towards complainant in respect of other transactions."
20. I have gone through the above decision. In the above decision the complainant has taken cheque promising to supply the goods, but he has not supplied the goods to accused, hence, accused was acquitted in the above case. But in the present case on hand, complainant has not taken cheque promising to supply the goods to accused. The facts and circumstances of the above Judgment 14 C.C.No.20429/2018 decision and the facts and circumstances in the present case on hand are totally different. Hence, the above decision does not come to the assistance of accused to prove his defence.
21. While making cross-examination of PW.1, the accused denied his signature found in Ex.P1 cheque. On close perusal of the signature found in Ex.P1(a) cheque as well as the signatures of the accused available on case record, such as plea, 313 of Cr.P.C. statement, depositions and vakalathnama of accused, it discloses the signature appears to be little different.
22. The DW.1 in his cross-examination has admitted that:
"ಈಗ ವಯಸಸದದರರದ ಕಕ ನಡಡಗಡತತದದ ಡ, ಸಸಲಲ ಸಹ ಬದಲಗದ ಎರದಡ ನಡಡಯಡತತರ."
23. On going through the said testimony of DW.1, it appears that because of his old age his hand is shaking, hence his signature is some little change. Even there is no suggestion made by the accused counsel to the PW.1 with regard to the compliance of mandatory provision. Thereby, the PW.1 proved his contention, but accused without any base, took bald and baseless contention.
Judgment 15 C.C.No.20429/2018
24. On overall appraisal 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 the statutory presumption as well as the facts and circumstances placed by the complainant in the present case. Thereby, the complainant has proved the guilt 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 the accused, whereas the complainant has discharged his burden and proved the guilt of the accused. Therefore, keeping in the mind of the object of introduction of Negotiable Instruments Act, it appears this court, it is fit case to convict the accused.
25. Therefore, from the perusal of oral and documentary evidence placed on record it reveals that complainant has made out his case and accused has failed to rebut the presumptions arisen in favour of complainant. Thus complainant has proved that accused has committed an offence punishable under Section 138 of Negotiable Instruments Act beyond all reasonable doubt. Hence, in view of the above said reasons, I hold point Nos.1 and 2 in the Affirmative.
Judgment 16 C.C.No.20429/2018
26. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
ORDER Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay total fine of Rs.10,00,000/-.
Out of the said fine amount, sum of Rs.9,95,000/- shall be payable to the complainant as compensation as per Section 357 of 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 accused shall under go simple imprisonment for 01 (One) Year.
The bail bond and cash security/surety bond of the accused stands cancelled.
The office 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, corrected and then pronounced by me in the open court on this the 17 th day of August - 2021) (N.K.SALAMANTAPI) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 17 C.C.No.20429/2018
ANNEXURE
List of Witnesses examined on behalf of Complainant:
PW-1 : Rajesh List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque
Ex.P1(a) : Signature of accused
Exs.P2 & P3 : Bank endorsements
Ex.P4 : Office copy of legal notice
Exs.P5 to P8 : Postal receipts
Exs.P9 to P12 : Unserved R.P.A.D. covers
Exs.P9(a) to P12(a) : Legal notices at Exs.P9 to P12
Exs.P13 & P14 : On demand promissory note and
consideration receipt
Exs.P13(a) & P14(a) : Signatures of accused
Ex.P15 : Private complaint
Ex.P15(a) : Signature of complainant
Ex.P16 : Copy of office ID Card
Ex.P17 : Copy of E-Aadhaar Card letter
List of Witnesses examined on behalf of the defence:
DW.1 : Sardar List of Exhibits marked on behalf of defence:
- Nil -
Ex.C1 : Vakalathnama
Ex.C1(a) : Signature of accused
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 18 C.C.No.20429/2018
17.08.2021.
Comp -
Accd -
For Judgment
Judgment pronounced in the open court vide separate order.
***** ORDER Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay total fine of Rs.10,00,000/-.
Out of the said fine amount, sum of Rs.9,95,000/- shall be payable to the complainant as compensation as per Section 357 of 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 accused shall under go simple imprisonment for 01 (One) Year.
The bail bond and cash security/surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
Judgment 19 C.C.No.20429/2018 XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Later, the convictee's counsel filed application Under Section 389(3) of Cr.P.C seeking for suspend the sentence for the reasons stated in the application.
Heard.
In the present case, the judgment was pronounced and convicted the accused. In view of the same, the convictee counsel has prayed that to suspend the sentence by appeal period. For the reasons stated in the application, for the limited period of prefer appeal only, the application filed by the accused counsel under Section 389(3) of Cr.P.C. is hereby partly allowed and sentence is suspended till appeal period only.
The convictee is hereby directed to
execute bond for fine amount of
Rs.10,00,000/.
XXIII ACMM, Bengaluru.