Bangalore District Court
Paid Rs.2 vs As The Accused Did Not Respond Properly ... on 1 October, 2016
IN THE COURT OF THE XL ADDL.CHIEF METROPOLITAN
MAGISTRATE, BANGALORE CITY. SCCH-14
PRESENT: Basavaraj Chengti., B.Com.,LL.B.,(spl)
XL ACMM,
BANGALORE.
C.C.No.21769/2013
Dated this the 1st day of October 2016
1. Sl.No. of the case C.C. No.21769/2013
2. The date of Institution 02.05.2013
3. The date of
commencement of the 13.03.2015
evidence
4. Name of the Complainant Sri.T.Shivakumar,
S/o Thagadappa,
Aged about 30 years,
Proprietor of
M/s Deeksha Enterprises,
No.733, 1st main Road,
Gayathrinagar,
Bangalore-560021.
(By pleader Sri KRP)
5. Name of the Accused Sri.B.M.Venkatesh
Major in age,
Working as Store Keeper
BESCOM Central Division
13th Cross, Malleshwaram,
Bangalore-560003.
And also at
Sri.B.M.Venkatesh
No.44, 12th cross, Maruthinagar,
Now BBMP ward No.1
Yalahanka Hobli,
Bangalore North Taluk.
(By pleader Sri.SRK)
6. The offence complained of Under Sec.138 of N.I. Act.
or proved
7. Plea of the accused on his Pleaded not guilty
examination
8. Final Order Accused is convicted
9. Date of such order 01.10.2016
SCCH-14 2 C.C.No.21769/2013
JUDGMENT
This is a complaint filed by the complainant against the accused for the offence punishable U/Sec.138 of Negotiable Instruments Act (hereinafter called the Act).
2. Brief averments of the complaint are as under:
The complainant and accused are known to each other. The accused is working in BESCOM as store keeper since several years. The accused has approached and requested the complainant for hand loan of Rs.2,00,000/- in the last week of August 2012 in order to meet his urgent family, legal and financial purposes. The complainant paid Rs.2,00,000/- to the accused by way of cash in the 1st week of September 2012. The accused has promised and agreed to repay the said hand loan within five months. After expiry of five months, the complainant has requested the accused to repay the hand loan amount on several times. Finally, in the month of March 2013 in order to discharge the legal liability, the accused has issued a cheque bearing No.263856 dated 15.03.2013 for a sum of Rs.2,00,000/- drawn on State Bank of India, Malleshwaram, Margosa Road 8th cross, Bangalore-560003 in favour of the complainant. The complainant presented the said cheque for encashment through his collecting banker City Union Bank Ltd., Rajajinagar Branch, Bangalore. But, the said cheque was dishonored with a bank shara "Funds Insufficient" vide bank endorsement dated 16.03.2013. The complainant appraised the dishonour of the said cheque to the accused. As the accused did not respond properly and not repaid the cheque amount and therefore, the complainant issued a legal notice SCCH-14 3 C.C.No.21769/2013 on 02.04.2013 to the accused by RPAD calling upon the accused to pay the cheque amount. The notice sent to accused on 1st address was returned with a shara insufficient address. The notice sent to the accused on 2nd address was served on 03.04.2013. In spite of receiving the notice, the accused has failed to pay the cheque amount and thereby committed the offence punishable U/s 138 of the Act. Hence, the complainant has filed this complaint and sought for convicting the accused, punishing him as per law and awarding compensation U/Sec.357 of Cr.P.C.
3. Cognizance of offence was taken on the basis of complaint and PCR No.10170/2013 was registered. Then, sworn statement of the complainant was recorded. After verifying sworn statement and documents produced by the complainant, it is found that there was prima-facie case against the accused. Hence, this criminal case came to be registered and process against the accused was issued for the offence punishable U/s 138 of the Act. The complaint was presented before 13th ACMM Bangalore which was transferred to this Court. In pursuance of the summons, the accused has appeared before Court through his counsel and was enlarged on bail. Then, the substance of accusation was read over and explained to the accused. He has pleaded not guilty.
4. During the trial, the complainant has examined himself as PW.1 and got marked documents as Ex.P1 to Ex.P9. Complaint is marked as Ex.P10. Then, statement of the accused was recorded. He has examined himself as DW-1 and got marked documents as Ex.D1 to 8.
SCCH-14 4 C.C.No.21769/20135. Heard the arguments. The counsel for the complainant filed written argument also. He has relied upon following rulings:
1.2015 (A)n KCCR 2881 (SC) (T.Vasanthkumar Vs Vijayakumari)
2. ILR 2009 KAR 1633 (Kumar Exports Vs Sharma Carpets)
3. AIR 2008 SC 1325 (Krishna Janardhan Bhatt Vs Dattatraya G Hegde)
4. ILR 2009 KAR 1633 (Kumar Exports Vs Sharma Carpets)
5. ILR 2008 KAR 4361 (Sri.N.Hasainar Vs M.Hasainar) The accused has relied upon following rulings:
1. 2001 DCR 342 (Nayagam Lourd Prakash Vs Standard Charted Bank)
2. 2008 (1)DCR 30 (Director, Mauti Feeds & Farms Petitioner ltd Vs Basanna Pattekar)
3. 2009 (2) DCR 268 (Amit Kumar Jaipraksh Singh Vs Mahesh Mahadev Dabhaolkar & Ors)
4. 2012(2) DCR 94 (Dilipbhai Chimanbhai patel Vs Haji Shabbirbhai Hasanbahai Vora)
5. 2012 (2) DCR 741 (Baiju G Nath.Laiju Nivas Vs Girija Krishnakumar)
6.ILR 2007 KAR 2709 (M.Senguttuvan Vs Mahadevaswamy)
7. 2013 (2)DCR 427 (M/s Aswin Papers Vs B.G.Kalathil)
8. 2014 (4) KCCR(3032) (GREF Finance Ltd, Kolkata Vs Sree Shanthi Homes P Ltd, Bangalore & Anr) 9.2009 CRL.L.J(3777) (Sanjay Mishra Vs Ms Kanishka kapoor and Anr)
10.(2011) 4 SCC 275 (Milind Shripad Chanurkar Vs Kalim M Khan & anr)
11. 2015 AIR SCW (64) (K Subramani Vs K Demodara)
12. 2009 (2) DCR 153 (Patricio D Souza Vs Oscar D Souza & anr)
13. 2011 (2) DCR 509 (K.P.Gopi Vs Shabna C)
14. 2011 (2) DCR 696 (R.B.Ramakrishnan Vs A.Meena)
15. 2015 (2) KCCR page 1115 (SC) (Ramdas Vs Krishnanad) SCCH-14 5 C.C.No.21769/2013 The counsel for complainant has also produced copy of VAT certificate, copy of EPF certificate and copy of Form ST2 issued by central board of excise and customs after concluding arguments.
Since, the said documents are produced after arguments, they can not be considered.
I have gone through the said rulings and perused the records.
6. Now the points arise for my consideration are:
1. Whether the complainant has proved that the accused has issued Ex.P1 cheque in his favour for Rs.2,00,000/-
towards discharge of liability without maintaining sufficient balance in his bank account and failed to pay the amount of cheque in spite of service of demand notice?
2. What order?
7. My findings are:
POINT NO.1 : In Affirmative.
POINT NO.2 : As per final order.
REASONS
8. POINT NO.1 : It is the case of the complainant that the accused has borrowed Rs.2,00,000/- from him 1st week of September 2012 and promised to repay it within 5 months, that the accused failed to repay the borrowed amount as agreed, but on persistent demand, he has issued cheque bearing no.263856 dt.15.3.2013 for Rs.2,00,000/- drawn on SBI, Malleshwaram, Bangalore in his favour SCCH-14 6 C.C.No.21769/2013 towards discharge of debt, that the said cheque came to be dishonored on 16.3.2013 for insufficient funds in the account, that he got issued legal notice to the accused to both addresses on 2.4.2013 calling upon him to pay the amount of cheque, that notice sent to one address returned unserved as insufficient address, but the notice sent to the other address returned served on 3.4.2013, that in spite of service of notice, the accused has not paid the amount of cheque and thereby committed the offence as alleged.
9. The proprietor of the complainant has examined himself as PW-1 and got marked documents as Ex.P-1 to 9 to prove his case. His complaint is marked as Ex.P-10. The accused has denied all incriminating evidence appearing against him as false during statement. He has examined himself as DW-1 and got marked documents as Ex.D-1 to 8 to prove his defence and disprove the case of the complainant.
10. PW-1:Shivakumar has reiterated entire averments of the complaint. The cheque at Ex.P-1 is drawn in the name of the complainant for Rs.2,00,000/-. It bears the signature of the accused. It was dishonored on 16.3.2013 for insufficient funds as per Ex.P-2. There is nothing on record to disbelieve the contents of Ex.P-2. The accused has no defence that he had sufficient funds in his account on the said date. He has not produced any evidence to disprove the contents of Ex.P-2. Hence, dishonor of cheque stands established. The cheque is dt.15.3.2013. It was presented for encashment on 16.3.2013. After dishonor of cheque, the complainant has got issued notice to the accused as per Ex.P-4 on 2.4.2013 which was within SCCH-14 7 C.C.No.21769/2013 time. He sent notice to two addresses of the accused as can be seen from postal receipts, acknowledgement and postal cover at Ex.P-5 to
8. The notice sent to residential address of the accused returned unserved as insufficient address, whereas the notice sent to his office address returned duly served on 3.4.2013. The accused has admitted the service of notice. Reply notice is at Ex.P-9. DW-1 has deposed as to service of notice and issuance of reply. He has produced copy of reply, postal receipts, acknowledgement and postal cover which are marked as Ex.D-2 to 5. The accused has not paid amount of cheque to the complainant after service of notice. There was 15 days time to pay the cheque amount which came to be expired on 18.4.2013. Cause of action arose to the complainant on 19.4.2013. The complaint was filed on 2.5.2013 which is well within limitation. Thus, the complainant has complied all requirements of Sec.138 of the Act. He has discharged his primary burden to prove the case. Therefore, legal presumptions U/s 118 and 139 of the Act come to the aid of the complainant. The Court is bound to presume that the cheque at Ex.P-1 was issued for consideration and towards discharge of debt or liability. It is settled principle of law that existence of debt is also a matter of presumption U/s 139 of the Act. It means, the Court has to believe that the accused has borrowed Rs.2,00,000/- from the complainant and issued Ex.P-1 cheque for the said amount towards discharge of debt. But, the presumptions U/s 118 and 139 of the Act are rebuttable presumptions. The accused has to rebut the presumptions by probable defence. Ruling at Sl.No.6 is regarding principle of law that the accused need not adduce evidence to rebut the presumption, but he can do so by extracting the facts during cross examination of complainant. In this case, the accused has SCCH-14 8 C.C.No.21769/2013 adduced oral and documentary evidence. Hence, the said ruling has no application to this case.
11. The accused has disclosed his defence by issuing reply notice. He has denied all incriminating evidence appearing against him as false during statement. It is the defence of the accused that PW-1 is not the proprietor of the complainant and it is not registered, that complainant is not in existence and no amount is lent by the complainant and he has not borrowed any amount from the complainant, that he is not liable to pay any amount to the complainant or to PW-1, that he has not issued Ex.P-1 cheque for Rs.2,00,000/- in favour of the complainant, that father of the complainant was his colleague who was dismissed from service and he used to come to his chamber on and often, that he kept two signed cheques in table drawer in his cabin and the father of the complainant has stolen the said cheques, gave them to the complainant who misused the cheques, got them bounced and filed this case and connected case against him without there being any liability. The complainant has not produced any document regarding existence of complainant concern, but PW-1 has maintained that his concern is in existence, is doing business, is paying income tax and other taxes. He has specifically stated that he is the proprietor of the complainant. On the contrary, DW-1 has deposed about non existence of complainant concern. The accused has produced information given by Registrar of firms, Rajajinagar, copy of application under RTI Act and copy of Appeal under RTI Act to corroborate his oral evidence which are marked as Ex.D-6 to 8. On perusal of said documents, it reveals that no firm by Deeksha SCCH-14 9 C.C.No.21769/2013 Enterprises is registered with Registrar of firm, Rajajinagar, Bangalore. There is nothing on record to disbelieve the information given by Information officer under Ex.D-6, but it is to be noted that the complainant is stated to be a proprietary concern and not partnership firm. So, question of registration of complainant concern with Registrar of firms does not arise. Therefore, the information at Ex.D-6 is not sufficient to hold that the complainant is not in existence. On the contrary, Ex.P-3 is debit advice of City Union Bank and it reveals that the bank has issued debit advice in the name of the complainant for Rs.2,00,112/-. It implies that the account in the said bank stands in the name of the complainant. A proprietary concern need not be registered with Registrar of firms. It need not have a deed of business like partnership deed in partnership firms. Ex.P-3 goes in favour of the complainant. Bank account in the name of the complainant indicates its existence. Hence, I disbelieve the contention of the accused and hold that the complainant is in existence and PW-1 is its proprietor.
12. There is presumption regarding existence of debt. Therefore, the complainant need not prove the transaction by independent evidence other than Ex.P-1 except in rebuttal. If the accused succeeds to prove his defence, then the complainant shall prove the transaction independently. The accused has examined himself as DW-1 and deposed as per his defence taken up during cross examination of PW-1. He has got marked his salary certificate as Ex.D-1 to prove that there was no need for him to borrow any money from the complainant. The salary certificate reveals that the accused was drawing a salary of Rs.55,933/- gross and of SCCH-14 10 C.C.No.21769/2013 Rs.36,192/- net as on 30.9.2012. There is no rule that a person having salary of Rs.55,000/- needs no loan. Therefore, Ex.D-1 is not sufficient believe the financial capacity of the accused.
13. DW-1 has stated as under during cross examination:
"I can not say the dates on which Thagadapa came to my chamber. I have not filed any complaint regarding theft of my cheques. Witness volunteers that he came to know about the theft of cheques after filing of this case".
14. The accused has stated about keeping of two signed cheques in the table drawer of his cabin, but he has not explained about necessity of keeping signed cheques there. He does not know when the cheques were stolen. He did not file any complaint regarding theft of cheques even after service of demand notice. He deposes about filing of false cases against him by the complainant, but he did not speak as to why there is grudge or ill-will between him and the complainant or his father. There is no corroboration to the evidence of DW-1 to believe that he kept the signed cheques in table drawer which were stolen by the father of the complainant. If the cheques were stolen as contended by the accused, he would not have kept quite after service of notice. He would have definitely initiated legal action against the complainant and his father. Moreover, no prudent man will keep cheques in table drawer without locking it that too duly signing the same. The defence and evidence of the accused is improbable and unbelievable. Hence, I am of the opinion that the defence taken up by the accused is not sufficient to rebut the presumptions U/s 118 and 139 of the Act which remained unrebutted.
SCCH-14 11 C.C.No.21769/201315. Evidence of PW-1 is corroborated by the contents of Ex.P-1 to 8 which collectively substantiate the averments of the complaint at Ex.P-10. The cheque at Ex.P-1 is drawn in favour of the complainant. PW-1 is the proprietor of the complainant. There are some discrepancies in his evidence, but they are minor discrepancies which do not take away his credibility. Ex.P-2 discloses that the cheque in question was dishonored for insufficient funds in the account of the accused. Ex.P-3 debit advice discloses that the complainant is in existence and it has a bank account in City Union Bank. Ex.P-4 to 8 reveal that the complainant has called upon the accused to pay the amount of cheque. The accused did not pay the amount in spite of service of notice and thereby committed the offence punishable U/s 138 of the Act. Thus, the complainant has succeeded to prove his case. The accused has a specific defence, but he has failed to prove his defence by preponderance of probabilities. There is no evidence to believe that the complainant has obtained the cheque by illegal means. Hence, I hold that the complainant has proved this point and I answer the same in affirmative.
16. POINT NO.2: The rulings at Sl.No.1, 2, 8 are pertaining to authorization to file complaint, but they are relating to complaint by a company. But, in this case, the complaint is a proprietary concern and no such authorization or resolution is required. Hence, said rulings have no application to this case. The ruling at Sl.No.14 laid down a principle that not issuing reply will not take away the right of the accused to contest the matter. In this case, the accused has issued reply. Hence, the said ruling is not applicable to the facts of SCCH-14 12 C.C.No.21769/2013 this case. In ruling at Sl.No.3, original documents were not produced and therefore, the case of the complainant was disbelieved. In this case, the accused has produced all documents in original. Hence, said ruling does not apply to this case. The rulings at Sl.No.4, 5, 11 to 13 and 15 laid down principles that the complainant has to prove his financial capacity, passing of consideration, existence of debt and issuance of cheque, but it is to be noted that Hon'ble Supreme Court has held in Rangappa Vs Mohan case that existence of debt and issuance of cheque are the matters to be presumed U/s 139 of the Act. When the Court is bound to presume the said facts, asking the complainant to prove the same by producing independent evidence does not arise. However, the complainant has to prove all the said facts only after rebuttal of legal presumptions drawn in favour of the complainant. In this case, the accused has failed to prove his defence and to rebut the presumptions. Hence, the said rulings do not help the accused. The ruling at Sl.No.9 says that liability to pay unaccounted amount is not legally enforceable debt or liability and the ruling at Sl.No.10 says that the complainant has to prove that he is the proprietor of the concern. In this case, the complainant has produced Ex.P-3 which establishes the existence of the complainant. PW-1 has deposed that he is the proprietor of the complainant. He has produced Ex.P-1 to 3 which are pertaining to the complainant. Production of said documents indicates that there is nexus between the complainant and PW-1. The accused has not produced any evidence to disprove the evidence of PW-1 in that regard. Non disclosure of amount in IT attracts penal action. Hon'ble Supreme Court has held in Rangappa Vs Mohan that if the complainant discharges his primary burden, then onus shifts upon the accused to SCCH-14 13 C.C.No.21769/2013 prove his defence by preponderance of probabilities. In this case, the accused has no probable defence. He has failed to prove it by preponderance of probability. Hence, the said rulings are not applicable to this case. The rulings of the complainant are pertaining to drawing of presumptions and how the presumptions shall be rebutted. The accused in this case has failed to rebut the presumptions. Therefore, evidence adduced by the complainant is believable.
In view of above discussion and finding, I pass following:
ORDER The accused is found guilty and is convicted U/s 255(2) of Cr.P.C. for the offence punishable U/s 138 of Negotiable Instruments Act.
The accused is sentenced to pay fine of Rs.4,00,000/- or IDSI for 6 months for committing the said offence.
After recovery of amount, Rs.3,90,000/- shall be paid to the complainant as compensation.
Bail bond of accused stands cancelled.
(Dictated to the Stenographer, directly on computer and then corrected by me and pronounced in the open court, on this the 1st day of October 2016.) BASAVARAJ CHENGTI XL ACMM, BANGALORE SCCH-14 14 C.C.No.21769/2013 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT:
PW.1 - Shivakumar
LIST OF DOCUMENT MARKED ON BEHALF OF THE
COMPLAINANT:
Ex.P1 - Cheque
Ex.P1(a)- Signature of Accused
Ex.P2 - Bank Memo
Ex.P3 - Debit advice
Ex.P4 - Copy of Notice
Ex.P5 and
Ex.P6 - Postal Receipts
Ex.P7 - Acknowledgement
Ex.P8 - Postal Cover
Ex.P9- Reply notice
Ex.P10 - Complaint
LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENCE:
DW.1 - Venkatesh LIST OF DOCUMENTS MARKED ON BEHALF OF THE DEFENCE:
Ex.D1 - Salary certificate Ex.D2 - Copy of reply notice. Ex.D3-Postal receipts(3 in nos) Ex.D4 - Acknowledgment Ex.D5 -Postal cover Ex.D6 - Copy of Information given by Public Information Offer. Ex.D7 - Copy of Application Ex.D8 - Copy of 1st Appeal XL ACMM, BANGALORE.SCCH-14 15 C.C.No.21769/2013
Dt;01.10.2016 C-KRP A-SR For Judgment Order pronounced in open court vide separate judgment.
ORDER The accused is found guilty and is convicted U/s 255(2) of Cr.P.C. for the offence punishable U/s 138 of Negotiable Instruments Act.SCCH-14 16 C.C.No.21769/2013
The accused is sentenced to pay fine of Rs.4,00,000/- or IDSI for 6 months for committing the said offence.
After recovery of amount, Rs.3,90,000/- shall be paid to the complainant as compensation.
Bail bond of accused stands cancelled.
XL ACMM, BANGALORE