Bangalore District Court
Sri. G.Sukumar vs Sri. Sathish Kumaran on 4 February, 2022
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IN THE COURT OF XXXIII ADDL., CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL UNIT, BENGALURU
: PRESENT :
M.Vijay, BAL, LLB.
XXXIII ADDL.CHIEF METROPOLITAN MAGISTRATE, BENGALURU.
DATED IS THE 4TH DAY OF FEBRUARY, 2022.
C.C.No.51698/2016
COMPLAINANT : Sri. G.Sukumar.
Son of Ganesh,
Aged about 40 years,
R/at No.36, Rudrappa Garden,
Viveknagar Post,
Bangalore560047.
.Vs.
ACCUSED : Sri. Sathish Kumaran.
Son of Late. A.C.Srinivasan,
R/at No.178/A, Rudrappa Garden,
Viveknagar Post,
Bangalore560047.
[ JUDGMENT
The complainant has filed this private complaint U/s.200 of Cr.P.C.,
against the accused for the offence punishable U/s 138 of Negotiable
Instrument Act.
2. The factual matrix of the case are as follow
The complainant averred that, accused is known to him since 3 and
1/2 decades. On this acquaintance, the accused approached him for
financial assistance of Rs.1,00,000/ to meet his personal necessity.
Accordingly, on 13.03.2014 he advanced Rs.1,00,000/ to the accused,
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on its receipt, the accused executed a hand loan agreement dtd:
13.03.2014 by agreeing to repay it within three months and also
deposited the original title deeds of property bearing old No.31 (new
No.178/A) situated at 2nd main road, ORC corporation division No.65,
Rudrappa garden, Bangalore. Later on, again during 2 nd week of April
2014, the accused sought further loan of Rs.3,00,000/. Accordingly,
considering the urgency, again he advanced Rs.3,00,000/ to the
accused, on its receipt, the accused executed another hand loan
agreement on 17.04.2014, in his and his wife favour by agreeing to
repay it along with earlier loan amount of Rs.1,00,000/ within three
months. That apart, again the accused approched him for
Rs.5,00,000/, accordingly, he advanced further sum of Rs.5,00,000/ to
the accused on 14.07.2014, on its receipt, the accused executed simple
mortgage deed in his favour on 14.07.2014. Besides that, again accused
approached him for additional loan of Rs.7,00,000/, as such he
advanced further sum of Rs.7,00,000/ to the accused on 30.09.2014, in
persuance of it, accused executed simple mortgage deed in his favour on
30.09.2014.
3. Further, the complainant avered that, he was looking for purchase a
house, at that time, the accused proposed to alienate his property bearing
No.31. After sale talks, he entered into an agreement of sale dtd:
04.02.2015 for total consideration amount of Rs.14,50,000/.
Accordingly, he paid an amount of Rs.11,60,000/ as an advance, same
was acknowledged by the accused. Apart from it, he also paid
Rs.3,60,000/ to the accused, in all, he alleged to have advanced
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Rs.15,00,000/ to the accused. However, subsequently, the accused
withdrawn his willingness to sale the property, accordingly the accused
executed a cancellation deed dtd.27.03.2015 by agreeing to pay the
advance amount of Rs.15,00,000/, and Rs.2,00,000/ towards
damages, in all, as per the deed of cancellation of sale agreement the
accused was required to pay him Rs.18,50,000/ on or before
27.04.2015. However, the accused failed to keep up his promises to pay
the amount of Rs.17,00,000/ towards the sale consideraion and
Rs.16,00,000/ towards loan transactions. In all, the accused was due of
Rs.33,00,000/ to him. Accordingly, he demanded the accused to pay
the amount of Rs.33,00,000/ received as advance sale consideration and
loans. However, towards discharge of the same, the accused has
allegedly issued cheque bearing No.113412 dtd.11.05.2015 for sum of
Rs.33,00,000/ drawn on Canara bank, Viveknagar branch in his
favour, with an assurance that, the cheque would be honoured on its
presentation.
4. As per the assurance and beleiving the accused, the
complainant presented the above cheque through his banker, but same
was returned as unpaid for "Insufficient funds" vide memo
dtd.14.05.2015 and he learnt that, the accused intentionally issued
the above cheque to cause wrongfull loss to him. Accordingly, he was
constrained to issue legal notice to the accused demanding to pay the
cheque amount, same was served on the accused, but, the accused
instead of paying the cheque amount has replied untenabally by
denying the existence of debt. Accordingly, the complainant alleges
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that, the accused has committed an o/p/u/s.138 of NI act.
5. The court took cognizance for an o/p/u/Sec.138 of N.I. Act,
based on the complaint, sworn statement and documents filed by the
complainant, a criminal case was ordered to be registered against the
accused for an o/p/u/s 138 of N.I. Act. In pursuance of summons, the
accused appeared through his counsel and he was enlarged on court
bail, substance of plea recorded, accused pleaded not guilty and claims
to be tried.
6. The complainant in order prove his case got examined his
power of attorney i.e., Smt. Rekha claiming to be second wife of the
complainant and also examined his siblings as P.Ws.2 to 4 and placed
reliance on Ex.P.1 to 24, after closure of complainant side evidence,
the accused was examined U/s 313 of Cr.P.C., he denied the
incriminating materials on record and got examined himself as D.W.1
and placed reliance on Exs.D.1 to D3.
7. Heard both the sides, the learned counsel for the complainant
relied upon following citations (1) Rohitbai Jeevanlal Patil V/s state
of Gujarath, (2) Crl.A.No.2109/2017, (3) CRR 5263/2018/.
8. On the other hand, the learned counsel for the accused placed
reliance on following decisions;
1. 2015(1)DLR 5 (Supreme Court), 2. 2014(2)
SCC 236, 3.2015(3) DLR 132, 4.2008 Crl. L.J.
434 (SC), 5. 2017(3) DLR 692 (Kerala High
Court), 6. 2015 (3 DLR 782 (Bombay), 7.
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2011 (4) Crimes 158 (Kerala), 8. 2018(1) DCR
331 (Bombay). 9. 2018 (1) DCR 671
(Rajasthan). 10. 2017 (2) DCR 740 (Kerala). 11.
2013 (2) DCR 52 (Kolkatta), 12. 2012 (2) DCR
504 (Bombay). 13. 2015 (1) DCR 642
(Karnataka). 14. 2012 (1) DCR 385 (Kerala).
15. 2015 (2) DCR 163 (Guvahati). 16. ILR 2001
KAR 959. 17. Crl.A.No.2852/2018 (Telangana
High Court)
9. Perused the materials on record, the following points arises for my
determination.
1. Whether the complaint proves beyond all
reasonable doubt that, accused has
committed an o/p/u/s 138 of Negotiable
Instruments Act?"
2. What order?
10. My findings to the above points are follows;
Point No1: In the Affirmative
Point No.2: As per final order for forgoing;
REASONS
11. Point No.1: The complainant claims to have paid an amount of
Rs.33,00,000/ to the accused i.e., sum of Rs.16,00,000/ hand loans and
deeds of mortgage, and sum of Rs.17,00,000/ towards agreement of sale
for repayment and the same, the accused allegedly issued cheque bearing
No.113412 dated 11.05.2015 for sum of Rs.33,00,000/ in his favour.
But, on its presentation the cheque was returned unpaid for "funds
insufficient", despite demand for repayment through legal notice the
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accused intentionally denied the claim in his reply notice accordingly, this
complaint.
12. Per contra, the accused denied the existence of legally enforceable debt
for sum of Rs.33,00,000/ as claimed by the complainant and he contends
that, all the hand loan agreements, deeds of simple mortgage, alleged
cancellation of agreement have been categorically denied and contended
that, the signatures on these documents were obtained forceibly in his house
by the complainant by posing threat along with rowdy elements, further
contends that, he borrowed only Rs.1,00,000/ for an interest at the rate of
8% from the complainant in the month of March 2014, at that time, the
original title deeds pertainings to his an ancestral house i.e., khatha
extract, one signed blank cheque, signatures on blank stamp papers, white
papers were forceibly obtained, besides that, the complainant has illegally
occupied portion of his house, hence, he filed suit of injunction against the
complainant and his family members and obtained an interim order as per
Ex.D1 in his favour, accordingly, he denied the existence of legally
enforceable debt and issuance of cheque in question towards claimed liablity
amount of Rs.33,00,000/, accordingly, he claims to be an innocent.
13. Before appreciating the materials on record, it is worth to note, the
undisputed facts between the parties. The parties are well acquainted with
each other from long time, the accused admits receipt of Rs.1,00,000/ from
the complainant on 13.03.2014 by executing an hand loan agreement and
deposited his original title deeds with the complainant for security.
However, the accused denied the execution of further hand loan agreement
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dated 17.04.2014, deeds of simple mortgage dated 14.07.2014,
13.09.2014 respectively and also execution of agreement of sale dated
04.02.2015, cancellation of agreement of sale dated 27.03.2015 and
receipt of total sum of Rs.33,00,000/ towards sale consideration and hand
loans. Therefore, it is burden on the complainant to prove the existence of
legally enforcible liability.
14. The complainant in order to prove his case, got examined his power of
attorney i.e., P.W.1 and his siblings P.Ws.2 to 4, besides that, he also placed
reliance on Exs.P.1 to 24. Before appreciating the evidence of P.W.1 it is
worth to note, the arguments of both sides. The learned counsel for the
accused vehemently argued that, the person who filed complaint has not
turned up for cross, accordingly, he sought to drawn an adverse inference,
as the P.W.1 does not know the mode of payment, deeds of simple
mortgages are not registered, the complainant not explained how the
amounts specified in the deed of simple mortgages, reached to the accused,
further, the amount claimed by the complainant does not match with the
documents produced by the complainant. Therefore, different figure have
been claimed by the complainant, accordingly, it has not been satisfactory
accounted. That apart, the financial capacity of the complainant has been
challenged by the accused as the complainant is residing in the house
provided by the government, the sources and capacity of the complainant
has not been proved. Further, P.W.2 to 4 are relative of the P.W.1, does
not have financial capacity to pay the amount as claimed, besides that,
P.W.1 admits possession of original title deeds of accused. The
complainant has presented the cheque in question for Rs.33,00,000/ only
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after issuance of notice by the accused, further contends that, he borrowed
only Rs.1,00,000/. Accordingly, the complainant has failed to prove the
transaction, as well as the financial capacity, the Ex.D.2, the charge sheet
has been filed against the complainant in CC.55533/2018 and also original
suit has been filed by the accused against complaint on the file of Hon'ble
CCH3 for injunction order. That apart, the cheque amount is more than
the amount claimed in complaint i.e., Rs.33,00,000/ instead of
Rs.31,70,000/, therefore, which is not an legally enforcible debt, the
complainant is unlicensed money lender, there is no reference with respect
to the earlier transaction Ex.P.9 to 13 though they are different dates but,
notarized on same day i.e., 24.03.2015, hence they are fabricated, and
there is contradiction with respect to custody of document, accordingly, the
accused has sufficient to rebuted the presumption hence claims to be an
innocent.
15. On the contrary, the counsel for the accused argued through VC that,
accused borrowed hand loans for tune of Rs.16,00,000/, through Ex.P.9 to
13, the accused admitted his signatures on these documents besides that,
through Ex.P.13 an agreement of sale, the accused received sum of
Rs.14,50,000/ as an advance and also Rs.50,000/ for registration,
further, the accused admits the issuance of cheque towards transaction in
favour of the complainant, same has been admitted in his reply notice dated
28.04.2014. Therefore, presumption has to be drawn in favour of the
complainant as per section 118A and 139 of N.I.Act. Further, the accused
falsely contends that, the signatures found on the hand loan agreements,
deeds of mortgage, cancellation were allegedly obtained forcibly, but,
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though he claims to have approached police, but, not produced any
documents to that effect. Therefore, the defence of the accused has not
proved, that apart in Ex.D.2, the accused wife was the complainant, Ex.D.1
filed for suit for injunction order, the documents relied by the complainant
are different intervals, but no complaint has been lodged during the period
Exs.P.9 to 14. Further, the FIS does not discloses the alleged forcible actions.
Therefore, the defence of the accused cannot be consider as it is bold
allegation, hence, the presumption has not been rebutted by the accused.
Accordingly, prays to convict.
16. Considering the rival contentions with the materials on record, firstly,
the accused challenges the locus standi of P.W.1 to depose on behalf of
complainant and also to draw an adverse inference against the complainant
for not having been turned up. However, as ruled by the Hon'ble Apex
Court in AC NARAYANA V/S STATE OF MAHARASTRA held that,
the power of attorney can depose or prosecute the
private complaint filed u/s 200 of Cr.P.C. for alleged
o/p/u/s 138 of N.I.Act, provided he or she must
have personal knowledge about alleged transaction.
17. Therefore, on this back ground of settled principle of law, I have
carefully perused testimony of P.W.1 which clearly discloses that, the P.W.1
claims to be second wife of the complainant is holding a power of attorney
to prosecute the case and also depose on behalf of the complainant. The
accused posed several question with regard to her relationship with the
complainant, and her presence during the time of the alleged loan
transaction, alleged payment of advance amount towards agreement of sale
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and its cancellation. But, the P.W.1 deposed that, she was very much
presence at the time of advancing the loan amount by her husband to the
accused on many occasions and also sale transactions. Therefore, since she
has personal knowledge about transaction the evidence of P.W.1 cannot be
discarded as prayed by the accused and adverse inference cannot be drawn
against the complainant, as the accused has not brought out any materials
contrary to status of the health of the complainant. Therefore, as held by
Hon'ble Apex Court the evidence of GPA holder can be considered, provided,
he or she must have personal knowledge about alleged transaction.
18. Secondly, the accused during the course of cross examination of P.W.1
suggested that, on 13.03.2014 he borrowed Rs.1,00,000/ from the
complainant for an interest at the rate of 8% and deposited original title
deeds and a signed blank cheque for security, that has been misused by the
complainant. Further in addition to that in Ex.P.20 in reply notice issued
by the accused on 15.05.2015 stated that,
my client instructs me to state that, your client
received blank signed cheque from my client on
13.03.2014 when my client was borrowed a
hand loan of Rs.1,00,000/ from your client"
19. In view of above contention and suggestion of the accused it is clear
that, accused does not disputing the cheque in question Ex.P.2 and
signature found on Ex.P.2 is of him. So, the complainant undoubtedly
proved the cheque in question i.e., Ex.P.2 pertains to the account and
signature found there on is of the accused. Therefore, as rightly argued by
the counsel for the complainant initial presumption has to be drawn in
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favour of the complainant in view of ruling relied by complainant i.e., Rohit
Bai Jeevanlal Patel V/s state of Gujarath ruled by the Hon'ble Apex court by
reaffirming the ratio laid down in Rangappa V/s Mohan i.e., (2010) 8 SCC
441 that;
"Once the cheque relates to the account of the
accused and he accept and admit the signature
on the said cheque, then initial presumption as
contemplated under Sec.139 of N.I. Act has to be
raised by the court in favour of the complainant.
The presumption referred to in Sec.139 of
N.I.Act is a mandatory presumption and not a
general presumption, but the accused is entitled
to rebut the said presumption."
20. In view of the above dictum, with admission of the accused, it is
mandatory upon the court to draw an initial presumption in favour of the
complainant that, the accused has issued the cheque in question Ex.P.2 in
favor of the complainant towards discharge of legally enforcible debt and
for consideration, as per section 139 and 118A of NI Act. Accordingly,
initial presumption has been drawn in favour of the complainant.
However, the presumption drawn in favour of the complainant is rebutable
in nature, the standard of proof for rebut the presumption is preponderance
of probabalities. Therefore, the accused has to prove, the non existence of
the liability or debt and questioned cheque was not issued towards
discharge of legally enforcible debt, or liability as claimed by the
complainant. Therefore, the onus is on the accused to rebut the
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presumption. At this stage, it is worth to note the decision of Hon'ble Apex
Court with regard to requirement for rebutting the presumption in Sumethi
Viz Vs. M/s. Paramount Tech. Fab. Industries, held that,
" To disprove the presumption, the accused
should bring on record such facts and
circumstances, upon consideration of which,
the court may either believe that the
consideration and debt didn't exist or their
nonexistence was so probable that a prudent
man would under the circumstances of the
case, act upon the plea that they didn't exist".
21. The accused challenged the financial capacity of the complainant to
advance the hand loan as well as payment of alleged advance sale
consideration by relying upon, the admission of P.W.1 during the course of
cross examination that, the P.W.1 stated the amount of Rs.1,00,000/, was
paid on 13.03.2014, by pledging the golden ornaments, as the complainant
did not have money in his house to advance the loan amount on that day.
Further, on 17.04.2014 claims to have paid Rs.3,00,000/, which was kept
in the house, but the complainant has not produced any document to show
her sons are earning members and source of income, further, P.W.1 stated
the monthly income of her husband was Rs.45,000/ to 50,000/ which
was not sufficient to lend the huge amount, that apart, the P.W.1 admits
that, the government has granted free house, therefore, the complainant
was not financially sound to advance the alleged amount. Further P.W.1
stated that, on 14.07.2014 they paid Rs.5,00,000/, by borrowing the same
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from her relative, and out of pledge of golden ornaments on 13.09.2014
claims to have paid Rs.7,00,000/, and Rs.17,00,000/ by borrowing
money from Malathi, Kalpana sisterinlaws and her brotherinlaw, but,
nothing has produced to show that, the sources as well as the pledging of
golden ornaments and income to their children.
22. Considering the arguments of learned counsel for the accused, I have
carefully examined the testimonies of P.Ws.1 to 4 with regard to financial
capacity of the complainant, in support of his arguments, the counsel for
the accused relied upon the decision i.e., K.Subramanyanaidu V/s
K.Damodar Naidu, John K.Abraham Symon C.Abraham and another. It is
true that, whenever the accused challenges the financial capacity, the
complainant has to prove his capacity that, he had requisite amount to
advance the claimed amount.
23. To prove the same, P.W.1 in her evidence stated that, initially her
husband advanced Rs.1,00,000/ on 13.03.2014 again on 17.04.2014 sum
of Rs.3,00,000/ was advanced in addition to that, on 14.07.2015 sum of
Rs.5,00,000/, on 13.09.2014 sum of Rs.7,00,000/ and through
agreement of sale dated 04.02.2015 sum of Rs.15,00,000/ received by the
accused. However, the accused denies the receipt of claimed amount of
Rs.15,00,000/ from the complainant. To substantiate the same, the
complainant placed reliance on Ex.P.9, as held supra the accused does not
dispute the execution and receipt of Rs.1,00,000/ on 13.03.2014.
However, he disputes the receipt of Rs.3,00,000/ through Ex.P.10,
Rs.5,00,000/ through Ex.P.11, Rs.7,00,000/ through Ex.P.12 and
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Rs.11,60,000/ through agreement of sale and cash of Rs.3,50,000/.
24. However, in the legal notice of the accused dated 28.04.2015 has
stated that;
" my client is ready to return hand loans
amount of Rs.4,00,000/ with nominal
interest to you"
25. So, as per Exs.P.9 and P.10 receipt of hand loans amount
Rs.4,00,000/ from the complainant not disputed by the accused. However,
further receipt of remaining amount through Exs.P.11 to P.14 has been
disputed by the accused. For that, the accused posed several questions with
regard to financial capacity to advance the amount mentioned in Exs.P.11
to P.13, i.e., how the amount was arranged, what was the sources, had he
withdrawn the amount from the account. The P.W.1 replying to his
question stated that, on 14.07.2014 her husband paid Rs.5,00,000/ in
cash to the accused. The part of the said alleged amount was kept in house
and some amount borrowed from his relatives. Likewise on 13.09.2014
again sum of Rs.7,00,000/ paid by the accused by pleading golden
ornaments and sum amount was with the complainant in his house.
26. However, the P.W.1 admittedly does not have any receipt to produce
before the court that, she had pledged her golden ornaments and her
husband paid the same to the accused. But, in order to substantiate, the
complainant received amounts from his siblings or the relatives has
examined P.Ws.2 to 4, according to P.W.1, the complainant had borrowed
amount from his sister Malathi, Kalpana and brother Sadashiva, in support
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of P.W.1's testimony, the sister of the complainant Smt.Malathi has deposed
that, she extended financial help to her brother during the September 2014
to purchase property, accordingly, she paid Rs.6,50,000/ to the
complainant. Likewise, another sister of complainant Smt.Kalpana P.W.3,
she also stated in the same line, that she extended financial help to her
brother complainant sum of Rs.5,00,000/ by pledging her golden
ornaments in the month of July 2014. Further, the brother of the
complainant G.Sadashiva P.W.4 also deposed he extended Rs.8,00,000/ to
his brother in the month of January 2015. In all through his siblings, the
complainant claims to have borrowed Rs.19,50,000/ to purchase a
property as he had shortage of money.
27. The accused contends that, the evidence of P.Ws.2 to 4 cannot be
considered as they are interested and they had no financial capacity to pay
such a huge amount to their brother. Accordingly, prayed not to consider
the evidence of P.Ws.2 to 4, on this submission, I have carefully examined
the evidence of P.Ws.2 to 4. the P.W.2 in support of her evidence produced
Ex.P.24 lease agreement dated 23.11.2012, wherein she stated, she is
doing the house keeping work her monthly income is Rs.5,000/, apart
from it, her son is doing at courier service monthly income of her son was
Rs.20,000/, she worked nearly 10 years i.e., from 2002 to 2012 at abroad
and she has saved some amount in her account, however she does not
produced any documents, but she has produced Ex.P.24 a lease agreement
and she had paid Rs.7,00,000/ lease amount to one Vinod Kumar.
28. Further, P.W.3 also admitted that, she does not have any receipt to
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show that, she has pledged her golden ornaments and paid the amount to
her brother. Further, the accused cross examined the P.W.4 is a retired
central government employee claims to have advanced sum of
Rs.8,00,000/, i.e., part amount from his savings i.e., Rs.4,00,000/ and
Rs.4,00,000/ was borrowed from his friends by name Murthy and Lokesh.
However, to substantiate that he had amount in his account as well as
alleged borrowal of loan from friends Murthy and Lokesh not produced any
documents to that effect, but, P.W.2 to 4 have categorically stated, they
paid the amount to their brother to complainant. Though, the accused
challenges the financial capacity, but, significantly he admit the signatures
on Ex.P.11 to 13 not only of him, but also signature of his wife, which is
relevant to consider, because mere denying of execution of these documents
does not create any doubt with regard to financial transactions between
them. Because, admittedly as per Ex.P.9 and 10 he borrowed
Rs.4,00,000/ for that, there is no dispute from the accused. However, he
disputes about execution of Ex.P.11 to 13, but, admits the signatures found
on each page of Ex.P.11 to 13.
29. So, the complainant to support the financial transaction as well as
agreement of sale between them has relied upon the written documents,
wherein, the accused clearly admits the signatures, so once the signature
admits, the fact of execution of these documents has to be inferred as per
section 114 of Indian Evidence Act, until and unless contrary is proved
about non existence or obtained fraudulently, forcibly as ruled by the
Hon'ble High Court of Karnataka in Laxman and others V/s M.Jayaram,
so once the signature admits on these documents, it is burden on the
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accused to prove, under what circumstances he subscribed his signature on
each page of Exs.P.11 to 14, to substantiate his defense, he contends that,
on March 2014 i.e., at the time of borrowing loan of Rs.1,00,000/, the
complainant had obtained original documents like Katha extracts, one
signed blank cheque, forcibly obtained his signatures on blank stamp
papers, signatures on white papers by posing threat from 20 to 30 gundas.
But, to substantiate the alleged forcible actions of the complainant, the
accused though claims that, he approached the jurisdictional police,
however, the jurisdictional police have refused to receive his complaint,
same cannot be acceptable, because, according to accused as narrated in
Ex.P.15 legal notice, three incidents were occurred in his house i.e., on
04.02.2015, 11.05.2015 and on 23.05.2015, but, though the accused
claims that, the cheque was issued at the time of execution of admitted
document Ex.P.9 i.e., an hand loan agreement, but, admittedly on careful
perusal of Ex.P.9 there is no recital with respect to issuance of Ex.P.2 cheque
for a security on 13.03.2014 in favour of the complainant. So, the custody
of questioned cheque with the complainant since march 2014 is falsifies the
Ex.P.9.
30. That apart, neither in the legal notice dated 28.04.2015 i.e., Ex.P.15
nor in reply notice dated 07.05.2015 stated the cheque in question forcibly
obtained. However, for the first time in Ex.P.20 i.e., in reply notice, the
notice caused by the complainant requested the complainant not to present
the cheque stating that it was received on 13.03.2014 which is quite
contrary to his admitted document Ex.P.9, therefore the custody of the
cheque or the alleged obtaining forceibly the cheque in question Ex.P2 from
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the accused by the complainant cannot be acceptable.
31. Further, so far as alleged obtaining of signature forcibly is concern, as
per the accused on 04.02.2015, as stated in Ex.P15 in his legal notice, the
complainant and his mens entered into house and obtained signatures on
agreement of sale and also left xerox copies of on agreement of sale, as if he
had received Rs.11,60,000/ from the complainant. On the same day, he
claims to have approached police, but, no action was taken by the police
against the complainant. Likewise, again on 11.02.2015 and 23.05.2015,
the complainant went to the house of accused and written the words on
wall that "as property pledged" and forceibly thrown out his belongings
from the house and illegally occupied his house is concerned, he approached
commissioner of police, Bangalore on 25.03.2015, but, to substantiate the
alleged forcible actions of the complainant and his family members, the
accused not produced a single piece of document to show that alleged
incidents were taken place on either on 04.02.2015, 11.05.2015 or
23.05.2015, even the defense of the accused cannot belivable as no prudent
man would keep mum, even after alleged obtaining of his signatures
forcibly on blank stamp papers, white papers etc., despite he approached
police, but they have not taken any action, however the accused even not
choosen to file private complaint to that effect, therefore, the alleged forcible
actions of the complainant as alleged by the accused is nothing but an after
thought cannot be acceptable. Because, admittedly on Exs.P.11 to P.14, not
only found the signature of the accused, but, also the signatures of wife of
the accused found place in each page of the Exs.P.11 to 14.
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32. Therefore, though P.Ws.1 to 4 not produced any piece of document to
show that, they had money with them, gold pledged for advancing the
amount to the accused, but, the complainant relied upon Ex.P.11 to 13, it
clearly etablishes the factum of receipt of amount specified in Ex.P.11 to 13,
merely because denying the execution by admitting the signatures and
alleging forcibly signature has been taken without any proof with respect to
alleged forcible actions of the complainant, the contentions of the accused
cannot be acceptable, as the clear admission of accused that, in each page
the signature of the accused found placed, therefore, the recitals of Ex.P.11
to 14 has to be taken into consideration and there is no doubt with regard
to execution of these documents Ex.P.11 to 14 by receiving the amount,
accordingly, the complainant has though failed to produce the documents
about source and income, but, Exs.P.11 to 14. evidencing the fact that, an
amount of Rs.5,00,000/ through Ex.P.11, sum of Rs.7,00,000/, through
Ex.P.12, Rs.11,60,000/ through Exp.13 in totally Rs.23,60,000/ paid
through document Ex.P.11 to 13.
33. That apart, as admitted through Exs.P.9 and P.10, the accused
borrowed Rs.4,00,000/, the hand loans amount, in totally as per these
documents, the accused has received Rs.16,00,000/ through hand loans
and through Ex.P.14 the agreement of sale, received total sum of
Rs.15,00,000/ has been proved by the complainant. Therefore, the
question of financial in capacity does not arise, since the receipt of the
amount through Ex.P.9 to 14 has been proved by the complainant.
Accordingly, the defence of the accused i.e., the complainant has borrowed
loan of Rs.1,50,000/, residing in governement granted house, no sources to
20
lend or advance cannot acceptable in view of written document and also the
defence in contrary to these documents is hit section 92 of Indian Evidence
Act, accordingly, as per Ex.P.15 the cancellation of agreement of sale, the
accused agreed to pay Rs.17,00,000/ towards agreement of sale including
the damages. Therefore, in totally through hand loans an amount of
Rs.16,00,000/ and through agreement of sale an amount of
Rs.17,00,000/ received by the accused. But, the accused contends that,
except Rs.4,00,000/ all the documents i.e., Exs.P.11 to 15 are fabricated.
But, he admits the signature on all the documents found on each page, even
then he denied the execution. However, it is burden on him to prove, under
what circumstances, he has affixed his signatures on each page, but, though
he contends that, all the signatures were obtained by the complainant
forcibly on 04.02.2015, 11.05.2015, 23.05.2015, if so, there was enough
time to take legal action against the complainant for alleged obtaining his
signatures forcibly on stamp papers, white papers, but, simply he claims
that, he approached police, but, refused to receive his complaint, but, which
cannot be acceptable, because he is not a layman, hence, it is nothing but
an after thought, as such the alleged forcibly obtained his signature cannot
be acceptable and the deicisions relied by the accused i.e., K.Subramani V/s
Damodar Naidu, 2015(3) DCR 132, 2017(3)DCR 692, with regard to
financial capacity, source of funds date of transaction are not applicable to
the case in hand as in this case, the complainant, relied upon the
documentary evidence i.e., Ex.P.9 to P.14 for proof of loan transactions as
well as agreement of sale held in between them.
34. Further, very difence of the accused i.e., alleged issuance of cheque for
21
security purpose on 13.03.2014 is concerned, the Ex.P.9 an admitted
document executed by the accused in favour of the complainant clearly
discloses that, there is no recital with respect to issuance of cheque in
question for security purpose. Even if the defense is taken into consideration
for arguements sake was true, then what efforts he made to take back his
signed blank cheque since 2014 till issuance of legal notice for not to misuse
of the cheque does not explained. Therefore, it is nothing but an after
thought, soon after presentation of cheque by the complainant for
Rs.33,00,000/ for encashment, legal notice has been issued by the accused.
Accordingly, all these documents Exs.P.9 to 14 clearly establishes there were
financial transactions and accused had initally offered to sell his ancestral
house through agreement of sale subsequently, cancelled the agreement of
sale held in between them.
35. Therefore, in view of Exs.P.9 to 14 the accused received total sum of
Rs.31,50,000/ i.e., Rs.16,00,000/ hand loans on various dates I.e.,
through Exs.P.9 to 12 and amount of Rs.11,60,000/ through Ex.P.3 and
agreement of sale and acknowledge the total receipt of Rs.15,00,000/ and
also agreed to pay the damages for non executing sale deed in favour of the
complainant through ExP.14, so the complainant has satisfactorily
accounted for the amount claimed in Ex.P.14. As such there is no mismatch
of figures, as claimed by the accused since in Ex.P.14 cancellation of
agreement of sale, the accused agreed to pay advance sale consideration
with damages of Rs.2,00,000/.
36. Further, the learned counsel argued that, there is no reference about
22
hand loans agreements i.e., in Ex.P9 and P.10 in Ex.P.11 and also
subsequent documents, further, toll the Ex.P.11 and P.12 deed, of simple
mortgage is compulsory registrable and though the dates of these
documents different but all the documents have been notarized on
23.05.2015, therefore, the documents are fabricated, but, the said
submissions is not valid as the recitals in Ex.P.11 and P.12 clearly discloses
that, the accused borrowed loans on respetcive dates but, not created any
charge over the property mentioned in schedule of E.x.11 and P.12.
Therefore which are nothing but an hand loan agreement which does not
required registration, that apart, all the loan transactions i.e., Ex.P.9 to
P.12 and agreement of sale are different transaction, as such there is no
necessity to mention the earlier transaction which were held through
written documents, further, all these documents are not compulsary
registerable, therefore mere notarizing these documents on same day does
not ipso facto ground that, they are fabricated.
37. Further, the counsel for the accused by refering the word " money
lender" used in Ex.P.11 and P.12 argued that the complainant is money
lender, accordingly, the transactins are illegal, but, nothing has brought out
on record that, to whom he has advanced loan for interest and doing money
lending businsesss so, in absence of that, the term money lender used in
Ex.P.11 and P.12 does not mean that the complainant doing a money
lending business, becuase it is well settled law that, to consider any person
as a money lender one must involve in money lending business for profits
but, to substantiate nothing has brought out by the accused. Accordingly,
the transaction claimed by the complainant is not an illegal transaction.
23
38. Besides that, the accused relied upon the Ex.D.1 to D.3 the complaiant
does not dispute the suit filed by the accused for injunction with respct to
house property, but not with respect to amount claimed further the Ex.D2
and D.3 the charge sheet filed with respect to incident alleged to have
occured subsequnt to filing of this complaint, therefore which are not
helpful to the case of accused to prove that claimed liability not in existence.
39. Therefore, considiering the entire materials on record, the accused
failed to establish his defence that, the questioned cheque was issued as a
security for the loan of Rs.1,00,000/ on 13.03.2014 as the Exp.9 does not
discloses the issuance of cheque in question as a security, further, the
accused denied the execution of the Ex.P.11 to P.14 the supportive
documents produced by the complainant to substantite the existence of the
legally enforcible debt, i.e., receipt of amount of Rs.5,00,000/ and
Rs.7,00,000/ respectively through Ex.p11 an P.12 and advance sale
consideration amount of Rs.11,60,000/ through Ex.P13. But, admits his
signature found on each page of these documents however, he denies the
execution and claims that forcibly the complaiant had obtained his
signatures on these documents, but to substantiate the alleged forcible
action nothing has been produced to disbelieve the execution of Ex.P.11 to
P.13, so, mere denial of execution and existence of liablilty is not sufficient,
the accused has to brought out the probable materials from the case of the
complaiannt that, the claimed liablilty or debt was not in existence, but
execpt denial of execution of Ex.P.11 to P.13 nothing has brought out to
prove the non existence of liability as supported by complaiant under
Ex.P.11 to P.13. So, in absence of that, as admitted by the accused Ex.P2 is
24
belongs to him, but denies the contents of the cheque and claims that it was
issued in the year 2013 but, fialed to prove the issuance of cheque in the
year 2013 in a blank, further, the complainant categorically stated by
producing the Ex.P.9 to P.13 the dates of loan transactions as well as
agreement of sale and its cancellation, accordingly, the decision relied by
the accused 2017(3) DCR 692 is not applicable to the case in hand.
Furhter, the counsel for the accused argued by relying upon decision i.e.,
2011(4) crimes 158 (Kerala), 2012 (1) DCR 385, that, issuance of signed
blank cheque does not amount execution of cheque and admission of
signature on cheque leaf does not amounts to execution of cheque is
concerned, as held supra, it is not the case of the accused that, the cheque in
question was also obtained forciblely, but it is his specific case that, he
issued Ex.P1 cheque with his signatue volunatratily for security, so, accused
voluntaliry issued Ex.P.1 cheque in favour of the complainant with his
signature, as such it is well settld law that issuance of signed blank cheque
voluntarily in favour of the holder of the cheque is deems execution of
empower the complaiant to fill the cheque and it attract section 138 of
NI.Act, as ruled by the Apex Court in Bir Singh V/s Mukesh Kumar.,
therefore, I do not found vaild force in the argument of learned counsel for
the accused, accordingly in my humble view, the above decision are not
applicable to the case in hand.
40. So far as, other decisions are concenred i.e., 2018(1) DCR 331 with
regard to suppression of genisis of transaction, 2018(1) DCR 673 about
passing of consideration required to be proved by the complainant and
2012 (2) DCR 504, 2015(1) DCR 642 about consistnecy in defence are
25
concern, as held supra the accused contends that, he voluntarily issued
cheque in question for security on 13.03.2014 and admitted the execution
of Ex.P.9 in persuance of admitted hand loan Rs.1,00,000/ but very
document Ex.P.9 speaks otherwise to his contention as there is no recital
about issuance of cheque in question for security and it is contrary to
admitted documents, further, the accused contends that, on three different
dates, the complainant and his mens have obtained his signatures forcibly
on stamp blank paper, white papers, but, not produce any documents to
show that, he approached the police with complaint for alleged incident
agaist the compaliant. Therefore, in consistnece in defence and the
complainant produced ExsP.9 to P.14 about his claim, as such there is no
suppression from the complainant and defence is not consistence to believe.
Accordingly, the decision relied by the accused are not applicable to the case
in hand. As such, the accused failed to probabalise his defence and failed to
brought out the believable materials to prove that, the claimed debt or
liability didn't exist and cheque in question was not issued towards the
claimed liability. Accordingly, the accused failed to dislodge the
presumption drawn in favour of the complainant, hence the complainant
has proved the issuence of cheque in question towards discharge of legally
enforcible liability and debt, as such the accused found guilty of the o/p/u/s
138 of N.I.Act.
41. So, far as sentence and compensation is concern, it is well settled law
that an o/p/u/Sec.138 of N.I. Act is primarily compensatory in nature,
Punitive is secondary. Therefore, considering above settled principal with
the facts and circumstances of the case, the complainant has not claimed
26
any interest for the loans borrowed by the accused Ex.P.9 to P.12, however
as per Ex.14 the accused agreed to pay the advance sale consideration of
Rs.15,00,000/ with Rs.2,00,000/ damages for non performing the
contract, so, accused agreed to pay Rs.17,00,000/ towards sale of house
property and hand loans amount. Therefore considering the nature of
transaction, duration of pendency, I am of the opinion that if the accused is
sentenced to pay fine of Rs.35,05,000/ that would meet the ends of justice,
accordingly, the accused is hereby sentenced to pay a fine of Rs.35,05,000/
out of that the complainant is entitled for sum of Rs.35,00,000/ as a
compensation as per Sec.357(1) of Cr.P.C., remaining amount of
Rs.5,000/ is to be appropriated to the state, in case of default the accused
shall under go simple imprisonment for a period of 6 months. Accordingly, I
answered the above point in "Affirmative".
42. Point No.2: In view of above finding to Point No.1, I proceed to pass
following;
ORDER
Acting under section 255(2) of Criminal Procedure Code, the accused is convicted of the offence punishable U/s 138 of Negotiable Instrument Act.
The accused is sentenced to pay a fine of Rs.35,05,000/ (Rupees Thirty five lakh five thousand only) in default, the accused shall undergo simple imprisonment for a period of six months. Out of the fine amount received, 27 Rs.5,000/ is to be appropriated to the State and by way of compensation as per the provision u/Sec.357(1) of Cr.P.C. the complainant is entitled for Rs.35,00,000 /.
The bail bonds and surety bond of the accused shall stand cancelled.
Office is directed to furnish a free copy of the judgment to the accused u/s 363(1) of Cr.P.C. (Dictated to the Stenographer transcribed and typed by her, corrected, signed and then pronounced by me in the open court, on this the 4th day of February, 2022) (M.Vijay), XXXIII ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Sri. G.Sukumar P.W.2 : Smt. Malathi P.W.3 : Smt.Kalpana P.W.4 : Sri. G.Sadashivan
2. Documents marked on behalf of complainant:
Ex.P.1 : General power of attorney Ex.P.2 : Original cheque Ex.P.2(a) : Signature of te accused Ex.P.3 : Bank return memo Ex.P.4 : Office copy of the Legal notice Ex.P.5 : Postal receipt Ex.P.6 : Letter return to the postal authority Ex.P.7 : Letter issued by the postal authority 28 Ex.P.8 : Reply notice Ex.P.9&10 : 2 hand loan agreement Ex.P.11&12 : 2 Sample mortgage deeds Ex.P.13 Agreement of sale Ex.P.14 Cancellation of sale agreement Ex.P.15 O/c of the notice dtd:28.04.2015 Ex.P.16 Reply notice dtd:07.05.2015 Ex.P.17 2 Postal receipts Ex.P.18&19 2 Postal acknowledgements Ex.P.20 Copy of the notice dtd:15.05.2015 Ex.P.21 Bank slip Ex.P.22&23 two Bank statement Ex.P.24 Evidence
3. Witnesses examined on behalf of Accused:
D.W.1 : P.W.1
4. Documents marked on behalf of Accused:
Ex.D.1 : Suit for injunction order, Ex.D.2 & 3 C/c copy of charge sheet (M.Vijay), XXXIII ACMM, BENGALURU.