Bangalore District Court
Mahaveer P vs Ms Kaveri Ambulance Services on 7 November, 2024
1
C.C.No.8390/2014
KABC030237302014
Presented on : 07-04-2014
Registered on : 07-04-2014
Decided on : 07-11-2024
Duration : 10 years, 7 months, 0 days
IN THE COURT OF THE XXII ADDL.CHIEF JUDICIAL
MAGISTRATE, BENGALURU
PRESENT: SRI.JAI SHANKAR.J,
B.A.L., LL.B
XXII ADDL.C.J.M., BENGALURU.
DATED: THIS THE 7TH DAY OF NOVEMBER 2024
JUDGMENT U/s.278(2) of BNSS -2023
(OLD CORRESPONDENCE NO. 255(2) OF CODE OF
CRIMINAL PROCEDURE
C.C.NO. : 8390/2014
COMPLAINANT : Sri. Mahaveer. P,
Proprietor of PARAS FINANCIERS,
No.31/5, N.N. Plaza,
V.V. Road, Basavanagudi,
Bangalore - 560 004.
(By Sri. D. Nagaraja Shetty, Adv.
2
C.C.No.8390/2014
V/s.
ACCUSED : 1. M/s. Kaveri Ambulance Services,
By its Proprietor
Sri. A. Venkatesh,
No.13, 5th Cross, Cubbonpet,
Near Halasur Gate Police Station,
Bangalore - 560 002.
2. Sri. A. Venkatesh,
Proprietor of
M/s. Kaveri Ambulance Service
No.13, 5th Cross, Cubbonpet,
Near Halasur Gate Police Station,
Bangalore - 560 002.
Also having address at :
Sri. A. Venkatesh,
S/o. Sri. Anjinappa,
No.247, Jettipalya,
Kadabagere Post,
Magadi Main Road,
Bangalore - 562130.
(By Sri. A.G. & Associates., Adv.,)
Offence complained of : U/s.138 of N.I.Act
Plea of the Accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 07.11.2024
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C.C.No.8390/2014
JUDGMENT
This is a private complaint filed by the complainant rept as a proprietor of Paras Financiers against the accused no.1 firm, rept by its proprietor the accused no.2 for the offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the complainant's case is as under:
It is contended that, the complainant and the accused no.2 are known to each other from past 7 to 8 years and having a good relationship under the business transaction. The accused no.2 was in habit of purchasing second hand ambulance vehicle and was attaching the said vehicle to a particular hospitals on a call basis under the name and style of the firm Kaveri Ambulance Service the accused no.1. During the course of the business transaction, the accused 4 C.C.No.8390/2014 no.2 had availed financial assistance from the complainant to purchase the Tempo Traveller bearing No.KA-01-7546 by making HP Entry in the RC book and also, by entering into Hire Purchase Agreement on 03.09.2010. The accused no.2 was irregular in making the payment and on mutual settlement, in the month of April 2013, the accused no.2 has agreed to settle the due amount of Rs.11,50,000/- and also executed acknowledgment of debt and has also obtained the NOC of the vehicle. Towards the part payment of the settlement amount, the accused no.2 as a proprietor of accused no.1 firm has issued a cheque bearing No. 768846, dt:15.06.2013 for Rs.9 Lakhs, drawn on ICICI bank Ltd., Bangalore Main Branch, Bengaluru along with a letter of undertaking dt:10.06.2013 assuring that, on its presentation, it would be honored. Believing the representation, when the complainant presented the cheque 5 C.C.No.8390/2014 through his banker ie., ING Vysya Bank, Srinivasanagar Branch, Bengaluru, it dishonored with shara as "Funds Insufficient" vide memo dt:30.07.2013. Thereby, the complainant has got issued the demand notice dt:28.08.2013 through RPAD as well as through courier. Though the notice issued under the RPAD is being returned as not claimed on 05.09.2013, but the notice issued through the courier is being served on the accused and despite of which, the accused no.2 has not chosen to comply the demand, which has given cause of action to file the present complaint.
3. After filing of the complaint, this court has taken cognizance of the offence punishable U/s.138 of N.I.Act. Sworn statement of the complainant was recorded. Being satisfied that, there are prima-facie materials to proceed against accused no.1 & 2, summons was issued. After 6 C.C.No.8390/2014 appearance of the accused no.2 as a proprietor of accused no.1 firm, he was enlarged on bail and plea was recorded. The accused no.2 has pleaded not guilty and claimed for the trial.
4. From the basis of the pleadings, the following points that arise for my consideration are as follows:-
1. Whether the complainant proves that, the accused no.2 as a proprietor of the accused no.1 firm issued cheque bearing No.768846, dt:15.06.2013 for Rs.9 Lakhs drawn on ICICI bank Ltd., Bangalore Main Branch, Bengaluru towards discharge of his liability which was returned unpaid on presentation for the reason "Funds Insufficient" and despite of knowledge of the notice, he has not paid the said cheque amount and thereby, committed an offence punishable U/s.138 of N.I.Act?
2. What order?
5. In order to establish the complainant case, the complainant is being examined as PW.1 and got marked 7 C.C.No.8390/2014 Ex.P.1 to P.13 documents and closed his side evidence. The Ex.P.14 to P.27 are being marked through the confrontation of the DW.1. After the completion of the complainant evidence, statement of the accused no.2 as required U/s. 313 of Cr.P.C. was read over and explained to him, he denied the incriminating evidence appeared against him and submitted that, he has the evidence and accordingly, he is being examined as DW.1 and got marked Ex.D.1 to D.3 documents and closed his side evidence.
6. Heard from both side. Perused the materials available on record.
7. My answer to the aforesaid points are as under:-
Point No.1 :- In the Affirmative Point No.2 :-As per the final order, for the following:- 8
C.C.No.8390/2014 REASONS
8. Point No.1:- The complainant has filed this complaint alleging that, the accused no.2 as a proprietor of accused no.1 firm has committed an offence punishable U/s.138 of N.I.Act. He pleads and asserts that, the accused no.2 as a proprietor of the firm and in discharge of his liability has issued the cheque bearing No.768846, dt:
15.06.2013 for Rs.9 Lakhs drawn on ICICI bank Ltd., Bangalore Main Branch, Bengaluru, which is being dishonored for want of sufficient funds. Thereby, he got issued the legal notice dt:28.08.2013 which is being served on the accused no.2 and despite of which, he has not chosen to comply the demand, which has given a cause of action to file the complaint.
9. In this scenario, if the documents placed by the complainant is scrutinized, the complainant in order to 9 C.C.No.8390/2014 examine the compliance of statutory requirements as envisaged U/s.138 of NI Act, he got produced the Ex.P.1 the cheque dt:15.06.2013. The said cheque is returned with an endorsement as Funds Insufficient as per Ex.P2, the return advise dt:30.07.2013, the Ex.P.3 is the office copy of the legal notice dt: 28.08.2013, Ex.P 4 to 7 are the postal receipts, Ex.P.8 to 10 are courier receipts, Ex.P.11 & 12 are the unserved RPAD cover dt: 05.09.2013 and Ex.P.13 is the Speed post acknowledgment. The present complaint is filed on 17.10.2014. A careful scrutiny of the documents relied by the complainant goes to show that, a statutory requirement of Sec.138 of NI Act is being complied with and this complaint is filed well in time. The complainant has discharged his initial burden by examining him as PW.1 and by producing the documents as referred above. Thus, 10 C.C.No.8390/2014 complainant is entitled to rely on the statutory presumptions enshrined U/s.118 R/w. Sec. 138 of N.I.Act.
Sec. 118 of the Act reads as thus, that every Negotiable Instrument was made or drawn for consideration and that, every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration.
Further Sec.139 of Negotiable Instrument Act provides for presumption infavour of PA holder. It reads like this, 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, or any debt or any other liability.
10. A combined reading of the referred sections raises a presumption infavour of the holder of the cheque that, he has received the same for discharge in whole or in 11 C.C.No.8390/2014 part of any debt or other liability. No doubt, the said presumptions of law are rebuttable in nature, the accused can take probable defense in the scale of preponderance of probabilities to rebut the presumption available to the complainant. It is need less to say that, the evidence of the PW.1 can be rebutted even by effectively cross-examining the PW.1, rather entering the witness box.
11. So here, it is relevant to note that, whether the accused no.2 has really rebutted the presumption available under the law which requires due consideration. It is an undisputed fact that, the disputed cheque at Ex.P.1 does belong to the accused no.2 and it is also not in dispute that, the signature appearing therein belongs to accused no.2 as a proprietor of the accused no.1 firm M/s. Kaveri Ambulance Services. Even, it is not in dispute that, the disputed cheque at Ex.P.1 is being dishonored with shara 12 C.C.No.8390/2014 as Funds Insufficient and it is also not in dispute that, on the disputed cheque being dishonored, the complainant has got issued a demand notice as per Ex.P.3 which is being served on the accused no.2. Though the accused in the cross examination of the PW.1 do deny the receipt of the legal notice, but during the course of his cross examination, he categorically admits the receipt of the demand notice. Nevertheless, the Ex.D.1 the reply notice dt:19.09.2013 would also clearly establish the accused no.2 having replied the demand notice of the complainant which itself suffices the receipt of the demand notice by the accused no.2. Therefore, I am of the considered view that, the complainant has complied the mandatory provision of issuing the demand notice and the complaint is very well maintainable.
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C.C.No.8390/2014
12. It is a case of the complainant that, the accused no.2 being the proprietor of the accused no.1 firm is in the habit of purchasing second hand ambulance vehicle and he attaching the said vehicle to the hospitals on the call basis. He being well conversant with the complainant under the business transaction, he used to raise loan for purchasing the tempo travellers and in such loan transaction, the accused no.2 became default in making payment and on a mutual settlement, towards the payment of Rs.11,50,000/-, he had issued the disputed cheque at Ex.P.1 towards the part payment which is alleged to be dishonored for want of sufficient funds. He also claims that, the accused no.2 has intentionally issued the disputed cheque inspite of he having the knowledge of the fact that, he has no sufficient funds in his account and therefore, he has committed an offence punishable U/s. 138 14 C.C.No.8390/2014 of N.I.Act. But, however the accused no.2 totally deny the transaction as pleaded by the complainant and also denies the issuance of the cheque for the settlement as pleaded by the complainant. He totally denies the fact of he raising loan for the purchase of the vehicle, but claims that the complainant is stranger to him. On the other hand, he claims that, he had handed over the disputed cheque towards the security purpose which is alleged to be misused by the complainant. Thereby, he questioning the financial capacity of the complainant, seeks for acquittal.
13. So, by gathering the rival claims of the parties, it could be gathered that, as the accused no.2 denied the loan transaction for purchasing the vehicles as pleaded by the complainant, the burden would be upon the complainant to establish the fact of the loan transaction and also, the issuance of the cheque towards the legally 15 C.C.No.8390/2014 enforceable liability. Likewise, the burden would also upon the accused to establish that, he never raised any loan from the complainant for the purchase of the vehicles or had issued the disputed cheque for the said transaction, but had issued towards the security purpose which is alleged to be misused by the complainant. So, in this back ground, if the complainant case is taken into consideration, he has stepped into the witness box as PW.1 and got produced almost 13 documents as Ex.P.1 to 13 and also got confronted Ex.P.14 to 27 documents through the DW.1. As said above, the disputed cheque at Ex.P.1 and the signature appearing therein is not being denied by the accused no.2. As said, the complainant claims that, the accused no.2 used to purchase the second hand vehicles for his business purpose and he used to attach the vehicle for the hospitals. The accused no.2 has also used to execute the Hire 16 C.C.No.8390/2014 Purchase Agreements and also used to make HP entry in the RC books. Though, the accused no.2 has totally denied the loan transaction with the complainant by questioning the financial capacity of the complainant and also, the mode of the business, but during the course of his cross examination as well as in his reply notice at Ex.D.1, he has categorically admitted the fact of the complainant carrying on the business of finance in which he has raised the loan. Perhaps, in reply notice at Ex.D.1 he takes the defence of he repaying the entire receipt amount and therefore, there is no due as claimed. Here, it is relevant to note that, though at one breath the accused no.2 do deny the loan transaction, but by taking a contention of repayment of the receipt loan under Ex.D.1, he categorically admits the fact of the complainant financing to the accused no.2 and the 17 C.C.No.8390/2014 accused no.2 raising the loan for the purchase of the vehicles.
14. Perhaps, though the accused no.2 has denied the purchase of the vehicle under the hire purchase agreements and so also, there being a mention of HP entry in the RC book, but the Ex.P.14 & 15 the RC books and the Ex.P.19 to P21 the Hypothication agreements evidences the fact of the accused no.2 purchasing the vehicles i.e., Tempo traveller ambulance bearing KA-01-7546, Maruti Omni Ambulance bearing No. KA-05-A-235 and KA-04-C-1368 from the complainant by raising loan and by executing the above said hypothication agreement. Even, there is a clear mention in the Ex.P.14 & 15 with regard to the accused no.2 hypothicating these vehicles to the complainant for the loan raised. Perhaps, though the accused no.2 do deny the fact of these documents and alleges to have created by 18 C.C.No.8390/2014 the complainant, but he was unsuccessful to establish as to how the Ex.P.14 & 15 the RC books had come to the possession of the complainant when he specifically denies the loan transaction. Nowhere, he denies the vehicle referred therein under his ownership. He admits only the signatures appearing therein and denies other contentions which is not being established by the accused no.2. When these documents evidences the fact of the vehicles owned by the accused no.2 being hypothicated with the complainant, it makes clear that, the case put forth by the accused holds no force.
15. Infact, the accused no.2 also admits the signatures appearing in Ex.P.16 to 18 ie., the acknowledgment of debt, the agreement dt: 30.05.2008 and letter of undertaking dt:10.06.2013 pertains to him and claims that, he had signed in a blank papers which was 19 C.C.No.8390/2014 alleged to be created by the complainant, but again to appreciate the said defence, except his self testimony evidence, there is no positive evidence forthcoming. When, he claims that, when he approached the complainant for the financial assistance and when the complainant had insisted for blank signed cheque which he obliged it and having complainant failed to advance the amount, he alleged to have purchased the vehicle with the amount which was with him. When the accused no.2 takes this defence, certainly there was no impediment for him to demand the return of the cheque or the signed blank documents in writing at a particular point of time or nothing had prevented him in taking some legal action. Much less, he could have requested his bank to stop the payment under Ex.P.1 by disclosing the real incident which again not forthcoming. But, on the another hand, the disputed cheque is being 20 C.C.No.8390/2014 dishonored for want of sufficient funds. So, here it suffices that, though the accused no.2 has taken a probable defence to disprove the complainant case, but that is not being established by placing probable evidence. No iota of evidence are also placed on record to establish the repayment of the receipt amount and also, the disputed cheque is being issued towards the security purpose. So, here having the accused no.2 failed to establish his defence, the contents reduced in Ex.P.16 to 19 has to be accepted. If these documents are looked into, it suffices that, the accused no.2 having raised the loan for the purchase of the tempo traveller bearing no. KA-01-7546 and there being a due of Rs.11,50,000/- under settlement for which he had entered into an agreement and having issued the cheques at Ex.P.22 to 27 and also the disputed cheque at Ex.P.1. Though, the accused no.2 do deny the contents appearing 21 C.C.No.8390/2014 therein, but absolutely there is no evidence forthcoming to disbelieve these documents. Even, the FSL report/ commissioner report would evidence the signatures appearing in the disputed cheques as well as Ex.P.22 to 27 belongs to the accused no.2 which is not being challenged by him. When, the evidence placed on record establishes the fact of the accused raising the loan for the purchase of the vehicle as pleaded in the complaint, I am of the considered view that, the complainant has successfully established his case which is not being rebutted by the accused.
16. In the decision reported in (2021) 5 SCC 283 - Kalamani Tex and Another., Vs. P.Balasubramanian, (2010) 11 SCC 441- Rangappa Vs. Sri.Mohan., Wherein it is held that, when once the signature of an accused on the cheque is established, than the reverse onus clauses 22 C.C.No.8390/2014 become operative, also aptly applies to the case in hand. When the complainant has established the accused no.2 having issued the cheque at Ex.P.1 towards the discharge of legal liability and their existed a legally enforceable debt, the onus to disprove it, shifts on the accused no.2 which is not been proved by placing positive evidence. In this background, having the accused no.2 not disputed the complainant case by placing positive evidence, I am of the considered view that, the cheque issued by the accused no.2 at Ex.P1 is for the legally enforceable liability and this fact is being established by the complainant by placing cogent and positive evidence which is not rebutted by the other side.
17. It is need less to say that, documentary evidence do prevail on the oral evidence. Absolutely, there is no evidence available on record, to hold that, the disputed 23 C.C.No.8390/2014 cheque was being issued towards the security purpose. So, in this back ground when the provisions U/s.118 and 139 of N.I. Act is looked into, it raises the presumption in favour of the holder of the cheque that, he has received the same for discharge in whole or in part of any debt or other liability. It also permits the complainant to fill the cheque having established the Ex.P.1 being issued towards the discharge of legal liability. As said above, the accused no.2 has not disputed the cheque does pertains to him. It could be said that, the accused no.2 has not disputed the cheque in question and signature found therein. When the drawer has admitted the issuance of cheque as well as the signature present therein, the presumption envisaged U/s.118 R/w.139 of N.I.Act would operate infavour of the complainant. The said provisions lies on a special rule of evidence applicable to negotiable instruments. The 24 C.C.No.8390/2014 presumption is one of law and thereunder the court shall presume that, the instrument was endorsed for consideration. So also, in the absence of contrary evidence on behalf of the accused no.2, the presumption U/s.118 of N.I.Act goes in favour of the complainant. No doubt, as said statutory presumptions are rebuttable in nature, but when the complainant has relied upon the statutory presumptions enshrined U/s.118 R/w.Sec.139 of N.I.Act, it is for the accused no.2 to rebut the presumption with cogent and convincing evidence.
18. It is worth to note that, Sec.106 of Indian Evidence Act postulates that, the burden is on the accused to establish the fact which is especially within its knowledge. This provision is exception to the general rule that, the burden of proof is always on the prosecution to establish its case beyond all reasonable doubt. In that view 25 C.C.No.8390/2014 of matter, the burden is on the accused to prove that, the cheque in question was not issued for discharge of any liability. But, despite the accused no.2 has taken the defence that, the Ex.P.1 was not issued towards the legal liability to the complainant, but the said fact and the version is not been established. From the discussion made supra, it could be said that, the complainant has established his case by placing positive evidence. On the other hand, the accused no.2 failed to to establish his defence by placing probable defence and also, failed to elicit the said fact from the mouth of the PW.1. In this back ground, the case of the complainant requires to be accepted. The evidence placed on record establishes that, the complainant has proved that, for discharge of the legal liability, the accused no.2 has issued Ex.P.1 cheque and it is being dishonored for want of sufficient fund as per 26 C.C.No.8390/2014 Ex.P.2. Therefore, Point No.1 is answered in the "Affirmative'.
19. Point No.2:- For the reasons discussed in the point No.1, the complainant has proved the guilt of the accused no.2 punishable U/s.138 of N.I.Act. The Hon'ble Apex Court also dealt in the decision reported in (2018) 1 SCC 560, M/s. Meters and Instrument Pvt. Ltd., Vs. Kanchana Mehta., wherein It is held that "the object of provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged, but is not debarred at the later stage subject to appropriate compensation has may be found acceptable to the parties or the court". By considering the decision, it could be said that, the time when the transaction has taken place and the primary object of the provision being kept in 27 C.C.No.8390/2014 mind, I am of the considered view that rather imposing punitive sentence, if sentence of fine is imposed with a direction to compensate the complainant for its monetary loss by awarding compensation with interest U/s. 396 of BNSS 2023, it would meet the ends of justice. By considering these aspects, I am of the considered view that, it would be just and proper to impose fine of Rs.14,40,000/-. Out of the compensation of Rs.14,40,000/-, an amount of Rs.14,35,000/- shall be awarded to the complainant U/s.396 of BNSS 2023. Accordingly I proceed to pass the following :
ORDER Acting U/s.278(2) of BNSS -2023 (Old Correspondence No. 255(2) of Code of Criminal Procedure), the accused no.2 as a proprietor of the accused no.1 firm is convicted for the offence punishable under section 138 of the Negotiable Instruments Act, the accused no.2 is 28 C.C.No.8390/2014 sentenced to pay fine of Rs.14,40,000/- (Rupees Fourteen Lakhs and Forty Thousand only) .
In default thereof, the accused no.2 shall undergo simple imprisonment for the term of one year.
Acting U/s. 396 of BNSS - 2023 (Old
Correspondence No.357(1)(b) of Cr.P.C), it is
ordered that, Rs.14,35,000/- (Rupees Fourteen Lakhs and Thirty Five Thousand only), there from shall be paid to the complainant as compensation. The remaining fine amount of Rs.5,000/- (Rupees Five Thousand only) is defrayed to the state for the expenses incurred in the prosecution.
The office is to furnish the free copy of this Judgment to the accused forthwith.
(Directly dictated to stenographer on computer, typed by her, revised by me and then pronounced by me in the open court on this the 7h day of November 2024).
JAI Digitally signed by
JAI SHANKAR J
SHANKAR Date: 2024.11.07
J 14:20:16 +0530
(JAI SHANKAR.J)
XXII Addl. Chief Judicial Magistrate, Bengaluru.29
C.C.No.8390/2014 ANNEXURE List of witnesses examined on behalf of complainant:-
PW.1 : Sri. Mahaveer. P List of exhibits marked on behalf of complainant:-
Ex.P1 : Original cheque
Ex.P1(a) : Signature of the accused
Ex.P2 : Bank Memo
Ex.P3 : Legal notice
Ex.P4 to 7 : Postal receipts
Ex.P8 to 10 : Courier receipts
Ex.P11 & 12 : Unserved postal covers
Ex.P11 (a) & : Notices inside the covers
P12 (a)
Ex.P13 : Speed post acknowledgment
Ex.P14 & 15 : R C books
Ex.P16 : Acknowledgment
Ex.P16(a) : Signature of accused
Ex.P17 : Agreement
Ex.P17(a) : Signature of accused
Ex.P18 : Letter of undertaking
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C.C.No.8390/2014
Ex.P18(a) : Signature of accused
Ex.P.19 to 21 : Agreements of vehicles
Ex.P.19(a) to (h) ; Signatures of accused Ex.P.22 to 27 : Six original cheques List of witnesses examined on behalf of the accused:-
DW.1 : Sri. Venkatesh List of exhibits marked on behalf of the accused:-
Ex.D.1 : Reply notice
Ex.D.2 ; RP Receipt
Ex.D.3 : Price list
Digitally
signed by JAI
JAI SHANKAR J
SHANKAR Date:
J 2024.11.07
14:20:09
+0530
(JAI SHANKAR.J)
XXII Addl. Chief Judicial Magistrate, Bengaluru.