Bangalore District Court
Mr.Ratnakaran V.V vs Mr.N.Manoharan on 5 April, 2022
1 C.C. No.29138/2019 Judgt.
IN THE COURT OF THE XXI ACMM, BENGALURU
Dated: This the 05th day of April, 2022.
Present:
Smt. Reshma H.K., B.A.,LL.B.,
XXI ACMM, Bengaluru
C.C.No.29138/2019
Complainant : Mr.Ratnakaran V.V.,
Aged about 56 years,
S/o A.O.Balan,
R/at: House No.51,
Jyothi Nagar, 3rd Cross,
Horamavu Agara,
Bangalore - 560 043.
(By Sri.G.P., adv.)
V/s
Accused : Mr.N.Manoharan,
Aged about 42 years,
S/o K.P.Natarajan,
R/at: House No.11E,
Krishnappa Street,
Palace Guttahalli,
Bangalore - 560003.
Also at No.67, New Rajanna Layout,
Near Horamavu Agara
Hanuman Temple,
Sapthagiri Gym Road,
Horamavu Agara,
Bangalore - 560113.
Also at Om Sainath Traders,
Oil Traders,
Near Sri Sai Hospital,
Nagawara Main Road,
Nagawara, Bangalore - 560045.
(By Sri.E.L., Adv.)
2 C.C. No.29138/2019 Judgt.
JUDGMENT
This is the complaint filed by the complainant under section 200 of Cr.P.C. against the accused for the offence punishable under section 138 of Negotiable Instruments Act and to take cognizance of the offence to punish the accused in accordance with law.
2. The factual matrix of the complaint is that the complainant had taken the accused's house at No.51, Jyothi Nagar, 3rd Cross, Horamavu Agara, Bangalore for Lease Agreement dated:04.10.2015 and the complainant has paid Rs.6,30,000/- to the accused as Lease Amount through cheque bearing No.2900 4480 0968 dated:23.07.2015 a sum of Rs.50,000/-, cheque bearing no.2900 4480 0969 a sum of Rs.3,00,000/-, cheque bearing No.2900 4479 3980 dated:23.07.2015 a sum of Rs.2,00,000/- and cheque bearing No.2900 4480 0968 dated:23.07.2015 a sum of Rs.80,000/- drawn on Syndicate Bank, Kannur Main Branch, Kerala. Further the case of the complainant is that, during the Lease period the complainant came to know that the accused had mortgaged the house leased to the complainant and due to the accused default in payment the house came up for auction and the Bank has even placed the 3 C.C. No.29138/2019 Judgt. auction notice in the house premise. Further, knowing the same complainant has approached the accused to cancel the Lease Agreement and demanding back the Lease amount, but the accused promised that he will refund the Lease Amount on expiry of Lease period. Thereafter, due to auction process the Lease Agreement become invalid and hence complainant demanded the accused for returning the above said lease amount. On continues demands, the accused issued a cheque bearing No.000005 dated:10.03.2019 for a sum of Rs.4,00,000/- drawn on HDFC Bank, HBR Layout Branch, Bangalore towards the partial payment of Lease amount.
3. Further, as per the instructions of the accused, the complainant has presented the said cheque for encashment through his banker i.e., Canara Bank, Kalyannagar Branch, but to the shock and surprise of the complainant said cheque was returned as 'Funds Insufficient' as per the bank memo dated:12.03.2019. Thereafter, complainant informed the dishonor of cheque to the accused and the accused instructed to present the said cheque after two months. As per the accused instructions once again complainant presented the said cheque but the same was returned as 'Funds Insufficient' as per bank 4 C.C. No.29138/2019 Judgt. memo dated:03.06.2019. Thereafter, the complainant issued a Legal notice dated:20.06.2019 to the accused through R.P.A.D calling upon him to pay the amount covered under the cheque within the stipulated period and the same was returned on 22.06.2019. Hence, the complainant filed the present complaint against the accused for the offence punishable under section 138 of Negotiable Instrument Act.
4. This court after perusing records, cognizance of the offence was taken and there on sworn statement of the complainant was also recorded. The criminal case has been registered against the accused for the offence punishable under section 138 of N.I. Act.
5. Upon service of summons, accused appeared through his counsel and enlarged on bail. Thereafter, the court has recorded the plea of the accused and the accused did not pleaded guilty of the offence and claims to be tried. Hence, the case was posted for trial.
6. The complainant in order to prove his case, he himself examined as PW-1 and got marked 12 documents i.e., Ex.P-1 to Ex.P-12. Original Cheque marked as Ex.P.1, Signature of accused marked as Ex.P.1(a), Return Memos marked as Ex.P.2 and Ex.P.3, 5 C.C. No.29138/2019 Judgt. Legal notice marked as Ex.P.4, Postal Receipts marked as Ex.P.5 to Ex.P.7, Returned RPAD cover marked as Ex.P.8 to Ex.P.10, Lease Agreements marked as Ex.P.11 and Ex.P.12.
7. After completion of the evidence of complainant, the substance of the evidence has been read over and explained to the accused under section 313 of Cr.P.C. the accused is denied the incriminating evidence available against her and did not choose to lead evidence on his behalf.
8. The complainant filed his written arguments and perused the materials placed before the court. The following points would arise for consideration;
1. Whether the complainant proves that the accused issued cheque bearing No.000005 dated:10.03.2019 for the legally enforceable debt of Rs.4,00,000/-, in favour of complainant and it was presented within the validity period and same is returned unpaid on account of "Funds Insufficient"
and thereby caused the dishonor of cheque and inspite of legal notice, the accused fail to make payment and thereby committed an offence punishable under section 138 of Negotiable Instrument Act?6 C.C. No.29138/2019 Judgt.
2. What Order?
9. My findings on the above points are as under:-
Point No.1: In the "Affirmative"
Point No.2: As per the final orders for the following:
BRIEF STATEMENT OF REASONS FOR THE DECISION
10. Point No.1:
On over all perusal of the oral and documentary evidence adduced by both the parties, it reveals that the case of the complainant is that while taking the accused's house as lease and executed a Lease Agreement dated:04.10.2015 for a period till 03.04.2019. For the said lease complainant paid Rs.6,30,000/-
to the accused as a lease amount. During the lease period the complainant has purchased the said house through bank auction as the accused mortgaged the said house to the bank. After completion of the lease period, when the complainant demanded the accused for returning the said lease amount, by that time accused issued a cheque bearing No.000005 dated:10.03.2019 for a sum of Rs.4,00,000/- as a part payment of lease amount.
Furher the case of the complainant is that, he has produced the said cheque to the bank and same was bounced due to 7 C.C. No.29138/2019 Judgt. insufficient funds. Thereafter, though the accused issued legal notice to the accused to pay the said advanced amount, but the accused failed to do so. On the other hand, the very defence of the accused is that though the complainant purchased the said house through auction, but to harass the accused he has filed the present complaint.
11. As per the above evidence, the accused admitted the issuance of Ex.P.1/Cheque and its signature. Under the circumstances, it is worth to mention that once the cheque relates to the account of the accused and she accepts and admits the signature on the said cheque, then initial presumption as contemplated under section 139 of the N.I.Act has to be raised by the court infavour of the complainant.
12. Further, in a decision the Hon'ble Apex court, reported in AIR 2010 SC 1898 in a case of Rangappa V/s Mohan the Hon'ble Apex Court held that:-
"Once 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 under section 139 of the Negotiable Instruments Act has to 8 C.C. No.29138/2019 Judgt. be raised by the Court in favour of the complainant. Therefore, in view of above said deposition, a presumption under section 139 of Negotiable Instruments Act can be drawn in favour of complainant that the said cheque was issued for a valid consideration. Now it is for the accused to rebut the said presumption. It is a settled law that though the onus on the accused to rebut the presumption is that of preponderance of probabilities but still the accused is required to adduce cogent evidence to rebut the presumption. Mere assertions and explanations of fact in the Court will not amount to rebuttal of presumption. In order to rebut the presumption under section 139 of N.I. Act, the accused by cogent evidence, has to prove the circumstance under which cheque was issued.
As per the above decision of the Hon'ble Apex Court, when accused admitted the issuance of cheque and its signature on the said cheque, then the burden shifted to the accused to prove that under which circumstances the cheque has been issued to the complainant. Hence, in the present case, complainant is successful in drawing initial presumption available in his favour.9 C.C. No.29138/2019 Judgt.
13. Further, to rebut the presumption available to the complainant, the accused placed his defence by way of cross examining the PW.1. On perusal of the entire cross examination of PW.1, it shows that in the whole cross examination, counsel for the defence attempted to elicit from the mouth of witness regarding the purchase of the house property through bank auction and attempted to establish that due to purchase of the said property by the complainant, the accused is not at all liable to pay the said lease amount. Except this nothing has elicited by the defence counsel in order to prove the innocence of the accused. Furthermore, in the said cross examination of PW.1, accused admitted the issuance of Ex.P.1/Cheque in favour of complainant for the repayment of lease amount. Furthermore, the defence taken by the accused that due to purchase of said house property by the complainant through Bank auction, he is not liable to pay the borrowed lease amount holds no water as the accused has not produced any evidence before the court to prove his case.
14. It is worth to mention that when there is a presumption available in favour of the complainant regarding legally recoverable debt and the complainant successfully drawn that 10 C.C. No.29138/2019 Judgt. presumption, then the burden lies on the accused to prove his contention by adducing cogent evidence. Mere denial of the complainant case is not sufficient to prove the innocence of the accused. At this juncture, it is worth to relay on the decision passed by the Hon'ble Supreme Court of India in the case of T.P. Murugan through Lrs. & Anr. -Vs- Bojan reported in 2018 SAR (Criminal) 923 wherein which it is held that -
" Secs. 139, 138- Dishonour of cheques- Legally enforceable debt or liability - Presumption- Under Section 139 of the N.I. Act, once a cheque has been 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. This presumption is a rebuttable one, if the issuer of the cheque is able to discharge the burden that it was issued for some other purpose like security for a loan - In the present case, the respondent has failed to produce any credible evidence to rebut the statutory presumption- The appellants have proved their case by overwhelming evidence to establish that the two cheques were issued towards the discharge of an existing liability and legally enforceable debt- the respondent having admitted that the cheques and Pronote were 11 C.C. No.29138/2019 Judgt. signed by him, the presumption under S. 139 would operate- the respondent failed to rebut the presumption by adducing any cogent or credible evidence- hence, his defence is rejected - In view of the facts and circumstances, the impugned order passed in Criminal Revision Petition is hereby set aside, and the order of conviction and fine passed by the Trial Court is restored."
15. Further, in a decision reported in 2014 (3) DCR 558 in a case of "Sripad V/s Ramdas M Shet" the Hon'ble court held that;
" Mere a distorted version or mere taking up the plea or the defence that he is not liable to pay any amount or he discharge the amount are not sufficient to put back the burden on to the complainant to prove his case beyond reasonable doubt"
The ratio laid down in all these decisions are aptly applicable to the present case. In the case on hand, though the accused contended that there is no legally recoverable debt as he had issued Ext.P.1 /Cheque as a security, but failed to prove his case by adducing cogent and reliable evidence. A mere 12 C.C. No.29138/2019 Judgt. saying is not sufficient to rebut the statutory presumption available to the complainant.
16. More so, the complainant succeeded in drawing above stated statutory presumption in his favour. Furthermore, on basis of the material evidence placed before the court, it clearly establishes that the accused had issued Ext.P.1 /cheque for an amount of Rs.4,00,000/- to the complainant and the said cheque presented on the said day it was returned without honoring the same on account of "Funds Insufficient" maintained in the account of the accused. Further on perusing the EX-P.5 to Ex.P.7, the postal receipts and Ex.P.4, the legal notice all these discloses that, inspite of the intimation of the dishonour of cheque accused did not comply the demand made in the legal notice. All these facts clearly establishes that, accused committed an offence under section 138 of N.I. Act. Therefore, I answered this point in the "Affirmative".
17. Point NO.2:- Having held the complainant has proved point No.1, the next aspect that arises for my consideration is regarding sentence to be imposed on the accused for having committed an offense punishable under section 138 of 13 C.C. No.29138/2019 Judgt. Negotiable Instrument Act. It could be seen from the materials that the complainant presented the cheque on 10.03.2019 and the same were returned unpaid. Further, accused fails to repay the said amount about nearly 03 years and made the complainant to suffer for want of funds in her hands. So I am of the opinion that it is required to direct the accused to pay the compensation to the complainant and in that event only it will meet the ends of justice. Hence, for the foregoing reasons and finding to point No.1, I proceed to pass the following:
ORDER By invoking the power conferred under section 255(2) of Cr.P.C., the accused is convicted and sentenced to pay a fine of Rs.4,72,000/- for the offence punishable U/S.138 of N.I. Act and in default to pay the fine amount the accused shall undergo simple Imprisonment for one year.
Further, Acting under section 357(1)
(b) of Cr.P.C. the entire fine amount of Rs.4,67,000/- on recovery shall be paid to the complainant as compensation.
Further, accused is directed to deposit the fine amount of Rs.5,000/- to the State out of fine amount.14 C.C. No.29138/2019 Judgt.
Bail bond and surety bond of the accused shall stand cancelled.
Supply a free copy of this judgment to the accused.
Issue conviction warrant.
(Dictated to the Stenographer directly on computer, typed by her, corrected by me, signed then pronounced in the open court on this the 05 th day of April, 2022.) (SMT.RESHMA H.K.) XXI ACMM, BENGALURU ANNEXURE
1. List of witnesses examined on behalf of the complainant:
PW-1 : Mr.Ratnakaran
2. List of witnesses examined on behalf of the accused:
-NIL-
3. List of documents marked on behalf the complainant:
Ex.P.1 : Original Cheque
Ex.P.1(a) : Signature of accused
Ex.P.2 & 3 : Return Memos
Ex.P.4 : Legal notice
Ex.P.5 to 7 : Postal Receipts
Ex.P.8 to 10 : Returned RPAD covers
15 C.C. No.29138/2019 Judgt.
Ex.P.11 & 12 : Lease Agreements dt:04.10.2015
4. List of documents marked on behalf of the accused:
-NIL-
(SMT.RESHMA H.K.) XXI ACMM, Bengaluru