Bangalore District Court
Mr. C. Satishkumar vs Mr. Bala Murali Krishna on 3 February, 2023
KABC0C0275942018
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 THIS THE 3RD DAY OF FEBRUARY, 2023.
C.C.NO.58291/2018
COMPLAINANT : Mr. C. Satishkumar
S/o Mr. K, Chandarkumar
Aged about 43 years
R/at Flat No.003, Ultimate dreams,
No.6 & , Murugan Temple Street,
Puttappa Payout, New Tippasandra,
Bangalore560075.
Vs.
ACCUSED : Mr. Bala Murali Krishna
S/o. Kantha Raj,
Aged about 47 years, R/at. No.207,
2nd Floor, (Opp., Aiswarya Bakery)
Mashana road, Lakshmaiah layout,
Horamavu, Bangalore43
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.
2C.C.No.58291/2019
2. The factual matrix of the case are as follows: The complainant alleged that, accused had borrowed sum of Rs.7,00,000/ from him on 22.02.2016 and agreed to repay it, on or before july 2018 with an interest at the rate of 2% p.m., by executing on demand promissory note and receipt on very same day, however, the accused neither paid the principal nor interest, but, on his demand the accused by calculating the interest for period of eleven months and the principal amount had issued cheque bearing No.009534 dated 05.07.2018 for sum of Rs.8,50,000/ drawn on ICICI Bank Banasawadi branch, with an assurance that, the cheque would be honored.
3. As per the instruction and assurance of the accused, the complainant claims to had presented the cheque bearing No.009534 for encashment through his banker, but, it came to be dishonored for "account closed", vide memo dated 07.07.2018, accordingly, he was constrained to issue demand notice on 16.07.2018 calling upon the accused to pay the cheque amount of Rs.8,50,000/, same was returned unserved as "Door Lock", "not claimed", which is nothing but deemed to have been served, despite 3 C.C.No.58291/2019 of it service, the accused neither paid the cheque amount nor replied to his notice, accordingly, alleged that, the accused has committed an o/p/u/s 138 of N.I Act, accordingly, prays to convict the accused in accordance with law.
4. Based on the complaint, the sworn statement affidavit, the documents etc., the court took cognizance of an offense punishable under Sec.138 of N.I. Act by following the guidelines of Apex Court issued in Indian Bank Association case and ordered to be registered a criminal case against the accused for the o/p/u/s. 138 of N.I. Act.
5. In pursuance of summons, the accused appeared through his counsel, he was enlarged on court bail, further, substance of plea was recorded, the accused pleaded not guilty and he claimed to be tried, the complainant in order to prove his case got examined himself as P.W.1 and placed reliance on Ex.P1 to P9. Upon closure of complainant side evidence, the court examined the accused U/s 313 of Cr.P.C, the accused denied the incriminating materials on record, and got 4 C.C.No.58291/2019 examined himself as DW1 and placed reliance on Ex.D1 to 7.
6. Heard both the sides, the learned counsel for the accused also filed his written submission, perused the materials on record, the following points arise for my determination.
Whether the complaint proves beyond all reasonable doubt that, accused has committed an o/p/u/s 138 of Negotiable Instruments Act?"
What Order?
7. My findings to the above points are follows;
Point No1: In the Affirmative.
Point No.2: As per final order for forgoing;
REASONS
8. POINT No:1: The accused denied the alleged loan transaction held on 22.02.2016 for sum of Rs.7,00,000/ as well as issuance of cheque bearing No.009534 dated 05.07.2018 for sum of Rs.8,50,000/ and the service of statutory notice, so, the burden is on the complainant to 5 C.C.No.58291/2019 prove the existence of loan liability as well as issuance of cheque in question towards discharge of legally enforcible debt and compliance of Sec.138(a) to (c) of N.I Act.
9. So far as, the compliance of Sec.138(b) of N.I Act is concern, the complainant placed reliance on Ex.P3 demand notice, Ex.P5 track consignment, Ex.P6 returned cover and specifically stated the legal notice sent to residential address of the accused was returned with shara "door lock, and "not claimed", that apart, as per the Ex.P5 postal track consignment shows that the items sent to the residential address of the accused was delivered, therefore, the accused deliberately avoided the service of legal notice, as such prayed to draw an inference that the demand notice was duly served upon the accused.
10. On the contrary, the accused denied the service mainly on the ground that, his residential address shown in cause title as well as demand notice is incorrect, as the bakery referred in demand notice as well as cause title does not exist, accordingly, the complainant not sent legal notice to his correct and proper residential address, therefore, he contended that, demand notice not been 6 C.C.No.58291/2019 served upon him, and his correct address is #207, JR Amaze Apartments, 2nd floor, near KNC Arogyadham, Horamavu Bangalore, as shown in Ex.D3 and D7, that apart, the notices sent by the complainant was returned unserved and report of postman has been altered at Ex.P6, accordingly, notice sent to incorrect address, as such, he claimed that, demand notice was not served upon him.
11. Considering the rival contentions , I have meticulously examined the materials on record, it clearly discloses that, the residential address of the accused shown in Ex.P3 i.e., demand notice, Ex.P6 and cause title are one and the same, the accused contended that, his correct residential address is #207, JR Amaze Apartments, 2nd floor, near KNC Arogyadham, Horamavu Bangalore, as shown in Ex.D3 statement of account and Ex.D7 Gas bill, however, the court summons issued to the address shown in cause title was duly served upon the accused and the accused put his appearance on the first date of hearing, in pursuance of service of court summons issued to the very same address, when such being the case, Ex.D3 and D7 7 C.C.No.58291/2019 were not issued by the competent authority for proof of residential address.
12. Further, the accused admitted that, "it is true to suggest that, the address mentioned in the court notice is my correct residential address and it was served upon me by the police, in pursuance of it, I put my appearance before the court", so, it is crystal clear that, the complainant has sent notice to very same address shown in cause title, which was duly served upon the accused, but, in contrary, the accused contended that, the shara returned by the postal authority has been tampered by the complainant, even though, the complainant had sent the legal notice to his incorrect or wrong address of him, but, as held supra, the court summons issued to the very same address was duly served upon the accused, in contrary the accused claiming that, it is in incorrect address, but, it cannot be acceptable, in view of his admission.
13. So, once, he admits the the residential address shown in cause title, the complainant has undoubtedly proved that, the residential address shown in cause title as well 8 C.C.No.58291/2019 as Ex.P6 are one and the same, even though it was returned unserved either it was incorrect address or not claimed or door locked, intimation delivered, once it is dispatched to the correct last known address of the accused then, the service of demand notice shall be presumed U/S 27 of General Clauses Act, even though the demand notice returned for insufficient address, no such person, door lock, party is not in station etc., however, it is rebuttable in nature, therefore, the onus is on the accused to prove his contention that, the address mentioned on Ex.P6 is incorrect, but, during the course of his cross examination he clearly admitted as extracted above;
"It is true to suggest that, the address mentioned in the court notice is my correct residential address and it was served upon me by the police, in pursuance of it, I put my appearance before the court", Therefore, Ex.D3 and D7 are not helpful to prove the correct residential address of the accused since, which were not issued by the competent authority for proof of residential address, as such, the accused failed to prove 9 C.C.No.58291/2019 the notice sent by the complainant to the incorrect and improper address of him, hence, the complainant has undoubtedly proved compliance of Sec.138(a) to (c) of N.I Act.
14. So far as, transaction is concern, the accused denied the alleged borrowal of Rs.7,00,000/ as well as execution of on demand promissory note and issuance of cheque in question towards discharge of loan liability, to substantiate the same, the complainant placed reliance on Ex.P1 cheque, on demand promissory note and receipt at Ex.P7 and 8, based on these documents, the complainant firmly stated that, accused had borrowed Rs.7,00,000/ from him by way of cash, on the same day accused allegedly executed Ex.P7 and 8 on demand promissory note by agreeing to repay it with an interest at the rate of 2%, however, the accused failed to pay interest as well as principal, on his demand, the accused allegedly issued Ex.P1 cheque for total sum of Rs.8,50,000/ inclusive of an interest for 11 months.
15. Inter alia, the accused subjected the PW1 for cross examination, wherein, he posed several questions with 10 C.C.No.58291/2019 regard to acquaintance with one Dinesh, where and when the loan was advanced, what are all documents collected by complainant at the time of advancement of loan, when the cheque was issued as well as the execution of on demand promissory note and specifically contended that, he had a financial transaction with one Dinesh during 2014 to 2016, for that, said Dinesh had collected his 2 singed blank cheques, out of it Ex.P1 cheque has been misused by the complainant with active collusion of said Dinesh, even though, he repaid the entire loan amount through online transfer as per Ex.D3, same is reiterated by the accused in his chief examination that, the complainant by collecting the Ex.P1 cheque from one Dinesh this false case has been filed in order to extract money, however, the complainant categorically denied the alleged defence contention.
16. So, the very defence of the accused is crystal clear that, accused does not disputed Ex.P1 relates to his account, further, in the cross examination DW1 admitted that, Ex.P1 belongs to him and cheque was bounced for account closed but not the signature differs, therefore, the accused further admitted that, he does not disputed 11 C.C.No.58291/2019 Ex.P1(a) signature, therefore, the complainant has undoubtedly proved the cheque in question as well as signature found thereon is of the accused, so, though the accused denied the borrowal of Rs.7,00,000/ from the complainant on 22.06.2016, but, admitted Ex.P1 relates to his account, therefore, the mandatory presumption U/Sec.118(a) r/w 139 of N.I Act shall be drawn infavour of complainant that, unless until contrary is proved, the complainant had received Ex.P1 towards discharge of legally enforcible debt, and accused has drawn Ex.P1 cheque for consideration, as it is mandatory presumption required to be drawn, once, the accused admits the cheque and signature found thereon is belongs to him, at this stage, it is worth to note, the decision of M/s Kalmani Tex and another Vs. P. Balasubramanyam, wherein, the lordship held that, "The statute mandates that, once the signature of an accused on the cheque and cheque are established then the statutory presumption U/S 118(a) r/w 139 of N.I Act must be drawn infavour of the complainant".
12C.C.No.58291/2019 Accordingly, presumption has been drawn infavour of the complainant that, accused has drawn Ex.P1 cheque for sum of Rs.8,50,000/, however, it is rebuttable in nature.
17. Therefore, the onus is on the accused to prove his defence that, he had financial transaction with one Dinesh, who is admittedly relative of the complainant, for that, he claims to have issued 2 cheque to said Dinesh for security in the month of june 2014, despite repayment of entire loan through online, the said Dinesh told him that, he would tear the cheques, believing the words of his friend he kept quite, but, misusing one of his cheque, the said Dinesh has filed this false case through his relative complainant for extracting money illegally and fabricated Ex.P7 and 8 on demand promissory note, therefore, the Ex.D3 statement of bank account, substantiate the financial transaction between accused and one Dinesh, as well as Ex.D4 proves the issuance of 2 cheques in the year 2014 to one Dinesh for security, accordingly, he contended that, the debt claimed by the complainant did not exist and cheques were issued to one Dinesh, but not towards the claimed transaction.
13C.C.No.58291/2019
18. The accused in order to discharge the onus got examined himself as DW1, he reiterated his defence contention that, he denied the transaction allegedly held between him and the complainant and contended that, he issued Ex.P1 cheque to one Dinesh a relative of complainant, as per Ex.D3, he claims to have repaid entire loan amount through online transfer, despite of repayment, the complainant by colluding with said Dinesh has filed this false case, to substantiate the transaction held in between him and one Dinesh, the accused placed reliance on Ex.D3 and D5, Ex.D3 statement of account pertains to the accused, wherein, the accused claimed that, an account bearing No.000620871098 is claimed to be an account of one Dinesh, he transferred money to the account of one Dinesh from 21.07.2014 to 29.02.2016, but, the Ex.D3 does not discloses the account bearing No.000620871098 is belongs to one Dinesh.
19. Further, the Ex.D3 is not a document of proof for the custody of the cheque in question, therefore, even if the Ex.D3 considered to be a proof of transaction between said Dinesh and the complainant, but, it is not a proof for custody of Ex.P1 cheque held by said Dinesh and nexus 14 C.C.No.58291/2019 between complainant and said Dinesh, therefore, Ex.D3 only proves the transaction between one Dinesh and the accused, but, not the custody of Ex.P1 cheque with said Dinesh.
20. Further, the accused relied upon Ex.D4 to prove the Ex.p1 cheque issued to one Dinesh, it is record slip or transaction sheet maintained by the accused, which is not issued by any authority, therefore, Ex.D4 does not have any evidential value as it is self document of the accused, therefore, Ex.D3 and D4 does not prove the nexus between complainant and one said Dinesh as well as custody of Ex.P1 cheque held by the said Dinesh from 2014.
21. That apart, the accused relied upon Ex.D2 copy of complaint lodged by him to Commissioner of Police to show that, he has taken legal action against the complainant herein, but, the said document apparently discloses that, it was given on 08.01.2019, subsequent to filing of this complaint, which does not helpful to defence of the accused, unless and until the accused proved the 15 C.C.No.58291/2019 nexus between complainant and one Dinesh and custody of Ex.P1 held by said Dinesh from 2014.
22. Further, the complainant in order to strengthen his case about claimed transaction, has produced Ex.P7 and 8 an on demand promissory note with consideration receipt, the accused denied the same and contended that, Ex.P7 and 8 are fabricated document as there is contrary evidence that, 10 days prior to the date of issuance of cheque on 05.07.2018 on demand was executed, but, in complaint as well as affidavit the complainant claimed that, Ex.P7 and 8 were executed on 22.02.2016, therefore, on this contrary evidence the execution of Ex.P7 and 8 cannot be relied upon as they are fabricated documents, but, same cannot be acceptable, because the accused only suggested to the complainant in cross examination, same is extracted here below;
"it may be true to suggest that promissory note given on 22.02.2016, it is false to suggest that, I have obtained blank signed promissory note from the accused".16
C.C.No.58291/2019 So, very suggestion of the accused is crystal clear that, complainant had collected signed blank on demand promissory note, but, does not disputing Ex.P7(a) and Ex.8(a) the signatures of the accused, inspite that suggestion, the accused contended that, Ex.P7 and 8 is a fabricated document, only on the ground that, there is a contradiction with respect to date of issuance of on demand promissory note that, in complaint, the complainant claimed that, Ex.P7 and 8 was executed on 22.02.2016, but, in the cross examination the complainant stated that, it was issued one week or 10 days prior to the issuance of cheque, but, though there is minor contradiction, but, on considering the entire testimony of PW1 the complainant firmly stated the accused on receipt of amount had executed Ex.P7 and 8, therefore, which is not at all fatal to the case of the complainant as the accused himself suggested that, complainant had collected a signed blank on demand promissory note from him.
23. Therefore, when signature as well as issuance of on demand promissory note to the complainant not been disputed, the alleged fabrication of on demand 17 C.C.No.58291/2019 promissory note cannot be acceptable, as it is negotiable instrument, not compulsorily attestable document and as per Sec.20 of N.I Act, the complainant is empower to fill the contents, once the accused admits the issuance of signed blank paper voluntarily to the complainant, therefore, the alleged fabrication of on demand promissory note cannot be acceptable, as such, the Ex.P7 and 8 undoubtedly proves the receipt of Rs.7,00,000/ by the accused with a promise to repay it along with interest at the rate of 2% p.m.
24. Further, the accused has relied upon Ex.D5 discharge summary to show that, on 22.02.2016 i.e., on the date of transaction, he was at Shankar Cancer Hospital attending his mother, therefore, the transaction was not at all held, however, the complainant asked specific question with regard to his presence at the hospital, neither, the attending pass issued by the hospital authority nor any oral evidence produced to that effect, therefore, in absence of relevant material the Ex.D5 does not reflects that, the accused was attending his mother at the hospital, therefore, Ex.D5 does not helpful to the defence 18 C.C.No.58291/2019 of the accused that, the claimed transaction is a doubtful transaction.
25. So, considering the entire materials on record, though the accused denied the borrowal of Rs.7,00,000/ from the complainant on 22.02.2016 on execution of on demand promissory note, but, admitted Ex.P1 belongs to him, however, he further contended that, he issued Ex.P1 to one Dinesh who is admittedly relative of the complainant has misused his cheque inspite of repayment of loan through online transfer Ex.D2, but, though the accused produced Ex.D3, but, failed to establish the bank account bearing No.000620871098 is of the said Dinesh and also nexus between complainant and said Dinesh, therefore, merely because the complainant and one Dinesh are admittedly relatives, it does not ipso facto ground to believe that, said Dinesh held custody of Ex.P1 cheque, therefore, the accused failed to prove the custody of Ex.P1 cheque with said Dinesh right from 2014.
26. In view of failure to prove the prime defence of the accused, the issuance of Ex.P1 cheque infavour of the complainant cannot be disputed, as the complainant to 19 C.C.No.58291/2019 prove the financial transaction held in between him and the accused on 22.02.2016, not only relied upon Ex.P1 cheque, but, also relied upon Ex.P7 and 8 on demand promissory note and consideration receipt, though the accused contended that, Ex.P7 and 8 are fabricated document, but, in contrary he only suggested to the PW1 in cross examination that, complainant had collected his signed blank on demand promissory note, when such being the case execution of on demand promissory note cannot be doubted and it clearly discloses that, the accused acknowledged the receipt of Rs.7,00,000/ from the complainant with the promise to repay it along with interest at the rate of 2% p.m., therefore, the accused failed to brought out probable materials to disprove the case of the complainant that, the claimed debt did not exist and Ex.P1 cheque not been drawn infavour of the complainant for any consideration.
27. Accordingly, in view of failure to prove his defence, the accused failed to rebut the presumption drawn infavour of the complainant, as such, the complainant undoubtedly proved the receipt of Rs.7,00,000/ by the accused on 22.02.2016 as well as issuance of Ex.P1 20 C.C.No.58291/2019 cheque towards discharge of outstanding amount of Rs.8,50,000/ inclusive of interest for eleven months at the rate of 2% p.m., therefore, in view of failure to pay the cheque amount with in stipulated time, the complainant has undoubtedly proved the ingredient of Sec.138 of N.I Act, and also compliance of Sec.138(a) to
(c) of N.I Act, accordingly, the accused is here by found guilty of an o/p/u/s 138 of N.I. Act.
28. So, far as sentence and compensation is concern, an o/p/u/s.138 of N.I. Act, is a civil wrong and compensatory in nature, punitive is secondary, considering, the above settled principal of law with facts and circumstances of the case, which clearly reveals that, the accused issued Ex.P1 cheque towards discharge of loan as well as interest for eleven months, therefore considering the nature of transaction, duration of pendency, litigation expenses, I am of the opinion that, if sentence of fine of Rs.9,55,000/ is imposed that would meet the ends of justice, accordingly, the accused is hereby sentenced to pay a fine of Rs.9,55,000/, out of that, the complainant is entitled for sum of Rs.9,50,000/, as a compensation as per Sec.357(1) of Cr.P.C., 21 C.C.No.58291/2019 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".
29. 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 for an offence punishable U/s 138 of Negotiable Instrument Act.
The accused is sentenced to pay a fine of Rs.9,55,000/, (Rupees Nine lakh fifty five thousand only) in default, the accused shall undergo simple imprisonment for a period of six months. Out of the fine amount received, 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.9,50,000/.
22C.C.No.58291/2019 The bail bond and surety bond of the accused shall stand cancelled.
Office is directed to furnish a free copy of the judgment to the accused.
(Dictated to the Stenographer transcribed and typed by her, corrected, signed and then pronounced by me in the open court, on this the 3rd day of February, 2023) (M.Vijay), XXXIII ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Mr. C. Satishkumar
2. Documents marked on behalf of complainant:
Ex.P.1 : Original Cheque
Ex.P.1(a) : Signature of the accused
Ex.P.2 : Bank return memo
Ex.P.3 : Office copy of the legal notice
Ex.P.4 : Postal receipt
Ex.P.5 : Postal track
Ex.P.6 : Returned postal cover
Ex.P.6(a) : Returned postal cover opened in the
open court and notice therein
marked.
Ex.P.7 : On demand promissory note
23
C.C.No.58291/2019
Ex.P.8 : Consideration receipt
Ex.P.7 (a) and 8(a) : Signature of the accused
Ex.P.9 : Bank statement
3. Witnesses examined on behalf of Accused:
D.W.1 : Bala muralikrishna K.
4. Documents marked on behalf of Accused:
Ex.D1 : C/c of C.C. No.50916/2017
Ex.D2 : Copy of the Complaint
Ex.D3 : Bank statement
Ex.D4 : Cheque book with transaction sheet
Ex.D5 : Discharge summery of my mother
Ex.D6 : Death certificate of the father of witness
Ex.D7 : Two tax gas invoices
(M.Vijay),
XXXIII ACMM, BENGALURU.