Bangalore District Court
Mr.K.R.Ramesh vs Mr.Venkatesha on 6 September, 2016
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 6th day of September 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.,
Case No. : C.C. No.2929/2014
Complainant : Mr.K.R.Ramesh,
S/o.Late Ranganna,
R/at No.218/28,
5th Main Road,
1st Block East Jayanagar,
Byrasandra,
Bengaluru-11.
(Rep. by Sri.M.V.Chandra
Shekar., Adv.,)
- Vs -
Accused : Mr.Venkatesha,
S.S (OP),
Customer Care Centre,
Bharath Sanchar Nigam Ltd.,
No.103, 1st Floor,
Ragi Pet,
Bengaluru-02.
(Rep. by Sri.M.Shivaraja.,
Adv.,)
2 C.C. No.2929/2014 J
Case instituted : 01.8.2013
Offence complained : U/s 138 of N.I. Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is Convicted
Date of order : 6.9.2016
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, the Accused is his friend and both are very well known to each other since several years. On 10.9.2012, the Accused approached him and sought for a hand loan of Rs.2,00,000/- to meet some of his urgent domestic purposes. The Accused assured him that, he will return the said amount as early as possible. Therefore in order to help the Accused, he agreed to pay the said hand loan to him and accordingly on the same day i.e., on 10.9.2012, he gave Rs.2,00,000/- to the Accused by way of cash. After the receipt of the said hand loan amount, 3 C.C. No.2929/2014 J the Accused executed an on demand pronote in his favour.
3. It is further submitted by the Complainant that, after few months, he asked the Accused to return the hand loan amount, but the Accused went on postponing the same on one ground or other. Finally in order to discharge his legally enforceable debt towards him, the Accused issued a cheque bearing No.079362 dated 31.5.2013, for Rs.2,00,000/- drawn on the Indian Overseas Bank, Shantinagar Branch, Bengaluru, in his favour. Thereafter when he presented the said cheque for encashment, the same came to be dishonoured for the reason "Funds Insufficient" on 3.6.2013.
4. It is further submitted by the Complainant that, thereafter, without having any alternative remedy, he got issued a legal notice on 1.7.2013 to the Accused by RPAD intimating to him about the dishonour of the cheque. The legal notice has been duly served upon the Accused on 2.7.2013. But even after the receipt of the legal notice, the Accused has neither replied nor repaid the amount covered under the cheque.
4 C.C. No.2929/2014 J5. The Complainant submits that, the dishonour of the cheque by the 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 be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
6. The pre-summoning evidence has been led by the Complainant on 6.2.2014. Prima-facie case has been made out against the Accused and he has been summoned vide the order of the same date.
7. The Accused has appeared before the Court on 19.4.2014. The substance of the accusation has been read over to him on 3.11.2014, he has pleaded not guilty and has claimed the trial.
8. In the post-summoning evidence, the Complainant has examined himself as PW1 and has filed his affidavit, wherein he has reiterated the averments made in the complaint.
P.W.1 has also relied upon the following documentary evidence:-
5 C.C. No.2929/2014 JEx.P1 is the disputed cheque, in which, the 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 on demand pronote as per Ex.P3, the signatures as those of the Accused as per Ex.P3(a) & Ex.P3(b) respectively, the office copy of the legal notice as per Ex.P4, the postal receipt as per Ex.P5, the postal acknowledgement as per Ex.P6, the complaint as per Ex.P7, the signature of the Complainant as per Ex.P7(a), the sale deed as per Ex.P8, the Pass Books as per Ex.P9 & 10 respectively, the relevant entries as per Ex.P9(a) & Ex.P10(a) respectively, and the Salary Statement as per Ex.P11.
9. The statement of the Accused under Sec.313 of Cr.P.C., has been recorded on 11.3.2016.
10. In Defence evidence, the Accused has examined himself on Oath under Sec.315 of Cr.P.C., as DW1.
In his evidence, DW1 has deposed that, he knows the Complainant since 2011 and he is working in the Telephone Exchange of Sampangiramanagar in BSNL and in the year 2011, he had availed a loan of Rs.30,000/- from the Complainant and at that time, he 6 C.C. No.2929/2014 J had given his 3 signed blank cheques, one signed on demand pronote and his pay slip to the Complainant as a security towards the said loan. He has also deposed that, he has repaid the said loan of Rs.30,000/- to the Complainant in the year 2011 and thereafter when he sought for the return of his cheques, the latter told him that, he had misplaced them somewhere and that, he would return them after tracing out the same. According to him, he came to know that, the Complainant had presented his cheque on 23.10.2011 for encashment only after he obtained his Bank statement and thereafter when he enquired with the Complainant about the same, the latter informed him that, he had not presented the said cheque in his Bank and that he would return it to him. According to him in addition to the cheque in question at Ex.P1, there is also one more cheque belonging to him with the Complainant and he has denied the entire case as alleged by the Complainant and he has also denied having issued either the disputed cheque or the pronotes in favour of the Complainant. Further he has also deposed that, except the signature on the cheque at Ex.P1(a) as well as on the pronote and the consideration receipt at Ex.P3(a) and Ex.P3(b), the 7 C.C. No.2929/2014 J rest of the contents in the said documents are not in his hand writing and that there is no service of any legal notice upon him.
11. In his cross-examination, DW1 has identified the photocopy of his pay slip for the month of June 2010 as per Ex.P10 and he has denied that, he knows the Complainant since 10 years and according to him, he knows the Complainant only from the year 2011. It is denied by him that, as per Ex.D1, which is his Bank Pass Book pertaining to the Indian Overseas Bank on 29.10.2011, he has withdrawn a sum of Rs.50,000/- through cheque bearing No.62970 in the name of the Complainant. Though this has been denied by DW1, he has admitted in his further cross-examination that, he had availed a loan of Rs.30,000/- from the Complainant in the year 2011, in respect of which, he claims to have been issued his 3 signed blank cheques and one on demand pronote in favour of the Complainant. However DW1 has denied that, towards the repayment of the loan of Rs.50,000/-, he had also issued one more cheque dated 26.10.2011 in favour of the Complainant which also came to be bounced. However it is elicited from the mouth of DW1 that, the said 3 cheques, which he claims 8 C.C. No.2929/2014 J to have issued in favour of the Complainant were drawn on the Indian overseas Bank, but he does not remember the cheque numbers. It is also elicited from the mouth of DW1 that, he has not got issued either the legal notice or lodged a police compliant against the Complainant that, alleging that the latter did not return his documents to him even after his repayment of Rs.30,000/= to the Complainant. Similarly throughout his cross- examination, DW1 has denied the entire case of the Complainant.
12. Similarly when it is suggested to DW1 that, one Y.Manjunath has filed C.C.No.28762/2014 against him before the Court of the 22nd ACMM, Bengaluru, he has pleaded ignorance, but subsequently he has admitted that, he has compromised with the said Complainant who is one Ramesh and not Y.Manjunath in the said case. However he has denied the suggestion that, he is in the habit of availing loan from the persons and failing to repay them.
13. Final arguments were advanced at length by the learned counsels representing both the sides.
9 C.C. No.2929/2014 J14. The learned counsel for the Complainant has prayed for the conviction of the Accused on the ground that, 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 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 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 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 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 in favour of the Complainant and thus the Accused be convicted for the offence punishable under Sec.138 of the N.I. Act.
15. On the other 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 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 as the pronote at Ex.P3 were issued by 10 C.C. No.2929/2014 J the Accused towards the discharge of the legally enforceable debt and therefore the Accused has successfully rebutted the presumption available in favour of the Complainant and thus prayed for the acquittal of the Accused.
16. I have considered the submissions and perused the record carefully.
17. Sec.138 of the Negotiable Instruments Act has been enacted to lend credibility to the financial transactions.
The main ingredients of the offence under Section 138 Negotiable Instruments Act are:-
(i) Drawing up of a cheque by the Accused towards payment of an amount of money, 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.
(iii) The drawer of the cheque fails to make the payment of the said amount of money within 15 days of the receipt of notice under the proviso (b) to Section 138.11 C.C. No.2929/2014 J
The Explanation appended to the Section provides that, the "debt or other liability" for the purpose of this Section means a legally enforceable debt or other liability.
18. Apart from this, Sec. 139 of the Negotiable Instruments Act lays down a presumption in favour of 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 cheque, of the nature referred to in Sec. 138, for the discharge, in whole or in part, of any debt or other liability".
19. Also, Sec. 118 of the Negotiable Instruments Act states, "Until the contrary is proved, the following presumptions shall be made:-
(a) 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;"12 C.C. No.2929/2014 J
20. Thus, the Act clearly lays down presumptions in favour of the Complainant with regard to the issuance of the cheque by the Accused towards the discharge of his liability in favour of the Complainant.
21. Under the scheme of the Act, the onus is upon the Accused to rebut the presumptions in favour of the Complainant by raising a probable defence.
22. Such being the legal position, it would be pertinent to refer to the defences raised by the Accused to rebut the presumptions in favour of the Complainant in this case.
23. The first defence raised by the Accused in his case is that, the Complainant has no financial capacity so as to lend a sum of Rs.2,00,000/- to the Accused.
24. In this regard though at the initial stage, the Complainant had not produced any documents before the Court and even during his cross-examination it was elicited from his mouth that, he has no impediment to produce the documents to show that, he owns building and he does real estate business, subsequently in his further chief-examination, the Complainant has 13 C.C. No.2929/2014 J produced the photocopy of the sale agreement dated 8.5.2011 as per Ex.P8, his Bank pass books as per Ex.P9 & Ex.P10, in which the relevant entries are marked as Ex.P9(a) to Ex.P10(a).
25. In respect of these documents, though it is suggested to him that, Ex.P8 is a concocted document, in which, his signature is not forthcoming, he has denied the same and though it is suggested to him that, the person shown as Ramesh in Ex.P8 is not he, the answer given by PW1 is that, the same has been got executed by his brother. Further with regard to the entries in the Passbooks at Ex.P9 & Ex.P10 it go to show that, on 12.5.2012, a sum of Rs.5,00,000/- has been credited to the account of the Complainant by way of deposit on 2.6.2012 and he has withdrawn the said amount by way of a self cheque. Similarly the entry dated 9.9.2012, goes to show that, a sum of Rs.3,50,000/- has been withdrawn by PW1 by way of a self cheque bearing No.443242. Though with regard to these entries at Ex.P8(a) and Ex.P9(a), it is suggested to PW1 that, he has not paid any amount to the Accused and that, he has not withdrawn any amount from his account on 10.9.2012, the documents at Ex.P9 & Ex.P10 could be relied upon 14 C.C. No.2929/2014 J by this Court to come to the conclusion that, as on the date of the alleged transaction, the Complainant was having sufficient funds and that he was possessing the financial capacity so as to advance the alleged amount of Rs.2,00,000/- to the Accused. Similarly with regard to the document at Ex.P8, which is an agreement of sale though the name of the vendor is shown as Ramesh.R, while the name of the Complainant in the cause title is shown as K.R.Ramesh, the father's name shown in Ex.P8 as well as in the cause title of the Complainant is the same as late Ranganna and except contending that the said document is a concocted document, the Accused has failed to prove that, it is a concocted document. As a result, the documents at Ex.P8 to 10 could be relied upon by this Court only for the purpose of considering the financial capacity of the Complainant at the relevant point of time. Therefore the defence of the Accused that, the Complainant was not financially sound holds no water.
26. The next defence raised by the Accused is that, he has not availed the loan of Rs.2,00,000/- from the Complainant on 10.9.2012 as alleged in the present case. However he has admitted his acquaintance with the 15 C.C. No.2929/2014 J Complainant since 2011, but he has set up a defence that his loan transaction was only for Rs.30,000/- from the Complainant in the year 2011. According to him, at the time of his availing the alleged loan of Rs.30,000/-, the Complainant had collected 3 signed blank cheques, singed pronotes and one pay slip from him as a security and that, he has repaid the entire loan amount of Rs.30,000/- to the Complainant. However he has admitted that, he has taken either any legal action or lodged the police complaint against the Complainant alleging that, inspite of his repaying the entire loan amount to the Complainant, the latter has not returned his documents to him. But this defence version is also highly improbable, in view of the fact that, the Accused, being a well educated person and working in the BSNL since 30 years, in the position of a Section Supervisor cannot be believed to have issued his documents and kept quite even though were not returned to him by the Complainant even for 3 to 4 years. Even otherwise, if this defence version of the Accused is to be believed by the Court, no material is placed on record by the Accused in order to prove before this Court that, he has acted as a man of ordinary prudence and skill, so as to see that his 16 C.C. No.2929/2014 J documents are not misused by the Complainant. But by not doing so, an adverse inference is liable to be drawn against the Accused.
27. Similarly the admission on the part of DW1 that, one Ramesh has filed a similar cheque bounce case against him in C.C.No.28762/14 before the Court of the 22nd ACMM, Bengaluru, goes to show that, the claim of the Complainant that the Accused is in the habit of availing loans from other persons also stands proved before the Court.
28. The next defence raised by the Accused is that, except the signatures on the cheque at Ex.P1 and pronote at Ex.P3, the other contents are not in his hand writing.
29. This defence is of not much significance in view of Sec.20 of the Negotiable Instruments Act, which authorizes the holder of a Negotiable Instrument to fill up its contents when its drawer has delivered the same to him. Similarly time and again, the Accused has deposed before the Court that, he has no objection to send the on demand pronote and the cheque to the FSL. However the 17 C.C. No.2929/2014 J Accused has failed to take any such steps so as to prove the said defence version. Similarly it is suggested to PW1 that, the on demand pronote and the consideration receipt has been got prepared by himself and L.Venkatesh by colluding with each other. If this were to be true, then nothing prevented the Accused from taking appropriate legal action against both the Complainant as well as L.Venkatesh. By not doing so, an adverse inference is once again liable to be drawn against him. No doubt the Complainant has failed to examine L.Venkatesh as a witness before the Court, but in view of the specific defence of the Accused about his alleged earlier transaction with the Complainant in the year 2011, the necessity of examining L.Venkatesh does not arise. Even otherwise, if the Accused felt that, the Complainant has misused his documents in collusion with the said Venkatesh, nothing prevented the Accused from examining the said Venkatesh as a witness before the Court. Bur for the reasons best known to him, the Accused has failed to take any steps. Similarly with regard to the signature on Ex.P3, it is suggested to PW1 by the learned Defence counsel himself that, the Accused has signed on blank document. Therefore this goes to 18 C.C. No.2929/2014 J show that, the Accused has admitted having signed on Ex.P3, though according to him, it was a blank document. In such circumstance, the burden is upon the Accused to prove before the Court that when he signed on Ex.P1 & 3, they were blank documents. However the Accused has failed in proving so.
30. The last and the technical defence raised by the Accused is with regard to the non-service of the legal notice upon him.
31. In his cross-examination, PW1 has suggested that, signature on Ex.P3 is not that of the Accused and that, he was not working in the address shown on Ex.P6 and as such there is no service of legal notice to him. However during his evidence before the Court, though the Accused has stated that, he is working in the Sampangiramanagar with Pin number 560027, he has not stated as to what is his correct residential address. No doubt the legal notice at Ex.P4 and the address on the postal acknowledgment at Ex.P6 are pertaining to the office address of the Accused, but the Accused has failed to show as to, what according to him, was his correct office address, as on the date of the issuance of the legal 19 C.C. No.2929/2014 J notice. Therefore except the denial of the correctness of the office address, the Accused has not taken any steps in order to prove before this Court that, the address shown in the legal notice at Ex.P 4 is wrong address. Therefore even this defence is not available to the Accused.
32. Thus by the over all appreciation of the evidence on record, it goes to show that, the Complainant has proved his case beyond reasonable doubt and on the contrary, the Accused has failed in rebutting the presumption available in favour of the Complainant.
33. During the course of his arguments, the learned counsel for the Complainant has relied upon the following decisions:-
1. In Bhagwati Kumar Gupta Vs., State of Rajasthan & ano., reported in IV (2013) BC 136 (Raj),
2. In K.N.Beena Vs., Muniyappan and ano., reported in (2001) 8 SCC 458.
3. In Lekh Raj Sharma Vs., Yash Pal Gupta, reported in Delhi High Court on 20th June 2015.20 C.C. No.2929/2014 J
34. For the reasons discussed above, this Court is of the view that, the Complainant has established his case beyond reasonable doubt and accordingly I proceed to pass the following: -
ORDER By exercising the power conferred u/s 265 of Cr.P.C., the accused is hereby convicted for the offence punishable u/s 138 of the Negotiable Instruments Act.
He is sentenced to pay a fine of Rs.2,25,000/- (Rupees Two lakhs Twenty Five Thousand only) within 30 days from today and in default of payment of fine, he shall undergo simple imprisonment for 6 (six) months.
Out of the fine amount so collected Rs.2,15,000/-(Rupees Two Lakhs Fifteen Thousand Only) is ordered to be paid to the Complainant as Compensation and the balance of Rs.10,000/- (Rupees Ten Thousand only) is ordered to be adjusted towards cost to the State exchequer..
The bail bond and surety bond of the accused stands cancelled.
Issue free copy of Judgment to the accused forthwith.21 C.C. No.2929/2014 J
(Dictated to the Stenographer, transcript thereof is computerized and printout taken by her, verified and then pronounced by me in the open Court on this the 6th day of September 2016).
(SARASWATHI.K.N), XVI Addl.CMM., Bengaluru City.
ANNEXURE
1. List of witnesses examined on behalf of the Complainant:
PW.1 : K.R.Ramesh
2. 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 : On demand pronote;
Ex.P-3(a) & : Signatures of the Accused;
3(b) Ex.P-4 : Office copy of the legal notice;
Ex.P-5 : Postal receipt;
Ex.P-6 : Postal acknowledgement;
Ex.P-7 : Complaint;
Ex.P-7(a) : Signature of the Complainant'
Ex.P-8 : Sale deed;
Ex.P-9 & 10 : Pass Book;
Ex.P-9(a) & : Relevant entries.
10(a)
Ex.P-11 : Salary statement. (Through DW1)
22 C.C. No.2929/2014 J
3. List of witnesses examined on behalf of the Accused:
DW-1 : Venkatesh.
4. List of documents exhibited on behalf of the Accused:
Ex.D1 : Pass Book;
Ex.D1(a) : Relevant entry in Ex.D1.
(SARASWATHI.K.N),
XVI ACMM, Bengaluru City.
23 C.C. No.2929/2014 J
6.09.2016
Judgment pronounced in the open court vide separate order.
ORDER By exercising the power conferred u/s 265 of Cr.P.C., the accused is hereby convicted for the offence punishable u/s 138 of Negotiable Instruments Act.
He is sentenced to pay a fine of Rs.2,25,000/- (Rupees Two lakhs Twenty Five Thousand only) within 30 days from today and in default of payment of fine, he shall undergo simple imprisonment for 6 (six) months.
Out of the fine amount so collected Rs.2,15,000/-(Rupees Two Lakhs Fifteen Thousand Only) is ordered to be paid to the Complainant as Compensation and the balance of Rs.10,000/-
(Rupees Ten Thousand only) is ordered to be adjusted towards cost to the State exchequer..
The bail bond and surety bond of the accused stands cancelled.
24 C.C. No.2929/2014 JIssue free copy of Judgment to the accused forthwith.
(SARASWATHI.K.N), XVI Addl.,Chief Metropolitan Magistrate, Bengaluru City.