Bangalore District Court
Mr.D. Balaji vs Mr.Venkatachalaiah on 3 January, 2017
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU
Dated this the 3rd day of January 2017
Present: Sri. Rajkumar .S.Amminbhavi., B.Com., LLB (Spl)
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No. 28122/2014
Complainant: Mr.D. Balaji
s/o. late Dilli N
Aged about 37 years
R/at. No.69/A, Railway Quarters
Yeshwanthapura
Bangalore- 560 022
(By B K Maregowda . Adv)
- Vs -
Accused: Mr.Venkatachalaiah
aged about 57 years,
s/o. Mr.Thimmaiah
residing at No.159/J,
Railway Quarteres,
Yeshwanthapura,
Bangalore - 560 022
Also at
Mr. T Venkatachalaiah,
s/o. Thimmaiah,
MCM,
S.W.Railway Coaching Depot,
Yeshwanthpur,
Bangalore - 560 022
(By Maruthi S. Adv)
Offence U/s138 of Negotiable Instruments Act.
Plea of the accused Pleaded not guilty.
Final order Convicted
2 C.C. 28122 of 2014
JUDGMENT
1. The Complainant filed this Complaint against the accused U/s.200 of Cr.PC for the offence punishable U/s 138 of N.I.Act.
2. The brief facts of the case of the complainant are; that, both the complainant and accused are residents of Railway Quarters, Yeshwanthpura, Bangalore and they are well known to each for the last 12 years. On account of their cordial relationship the accused approached the complainant in the first week of December 2013 and requested for financial assistance to the tune of Rs.4,00,000/- to meet some of his legal necessities and other commitments and he was agreed to repay the same within six months. As per the request made by the accused, the complainant had advanced a sum of Rs.4,00,000/- to the accused on 10.12.2013 by way of cash. As per assurance given by the accused he was not repaid the same within 6 months. Then the complainant demanded for repayment of the borrowed loan amount, after six months on several requests and demand made by the complainant, finally on 25.06.2014, the accused has issued cheque No.680059 dated 27.06.2014 drawn on Canara Bank, Gokula Branch, Bangalore- 560 054 in favour of the complainant and directed the complainant to present the 3 C.C. 28122 of 2014 same on its date for encashment. Accordingly, the complainant presented the said cheque through his bankers State Bank of India, Mathikere Road Branch, Bangalore-560 022 but it was dishonoured with endorsement "Account Closed" on 13.09.2014. The said fact has been informed by the complainant to the accused but he was not responded the same. Then the complainant issued legal notice on 23.09.2014 by registered post to his residential address and to the office address. Both notices were returned with postal endorsement "Not Claimed - return to sender" it seems to, deemed service of legal notice. In spite of service of legal notice, the accused fails to repay the borrowed loan amount. Hence, the complainant had constrained to file the complaint against the accused for the offence punishable under Section 138 of N.I.Act., which is well within time.
3. After recording of the sworn statement of the complainant and cognizance has been taken and after issuance of summons to the accused, pursuant to the summons the accused had appeared before this Court through his counsel and enlarged bail on him. The substance of accusation was recorded and read 4 C.C. 28122 of 2014 over the accused in his vernacular. He pleaded not guilty. Hence, claims for trail.
4. To prove the case, the complainant has been examined as PW.1 and got marked documents as Ex.P.1 to Ex.P.6. After the evidence, the statement under Sec.313 of Cr.PC has been recorded, read over and explained the same to the accused. He denies the incriminating evidence appearing against him. Per contra, the accused has been examined as DW.1 and got marked documents as Ex.D.1 to Ex.D.5.
5. Heard arguments.
6. The following points arise for my determination;
1. Whether the complainant proves that the accused had issued cheque bearing No.680059, dated: 27.06.2014 for Rs.4,00,000/- drawn on Canara Bank, Gokula Branch, Bengaluru, for discharge of the loan amount and when the said cheque presented for encashment, it was dishonoured with an endorsement "Account Closed" and after issuance of the legal notice he fails to repay the said amount and Thereby, the accused have committed offence punishable U/s. 138 N.I.Act?
2. What order ?
5 C.C. 28122 of 2014
7. My answer to the above points are;
Point No.1 : Affirmative
Point No.2 : As per final order for the
following;
REASONS
8. POINT NO.1: On perusal of the evidence of PW-1 he has reiterated as per the averments made in the complaint and he has got marked 6 documents namely, the cheque which is marked as Ex.P-1, the signature of the accused therein which is marked as Ex.P1(a), bank endorsement which is marked as Ex.P2, the office copy of the legal notice which is marked as Ex.P3, postal receipt which is marked as Ex.P4, returned two postal envelops marked as Ex-P5 and P6.
9. In his cross-examination, he deposed that, it is true that his mother D Radha is also working as technician in Railway Station at Yeshwanthpur and accused is also working at Railway station, Yashwanthpur. They are having family members like his mother, his elder sister Laxmi, younger sister Rajeshwari and his younger brother D Karthik they are all residing in the railway quarters at Yeshwanthpur. Further he deposed that he was and is running tea stall at Railway Department, Yashwanthpur for the last 4 years. He was getting 6 C.C. 28122 of 2014 daily income of Rs.5,000 to 6000/- and out of his daily income monthly he was getting 10-15,000/- by way of profit. He was unmarried, their family expenses monthly was Rs.10,000/- and out of that he was saving 3,000/- to 4,000/- per month. He was borrowed loan of Rs.2,00,000/- from his friend Mugesh in the month of March or April. He know the present accused for the last 7-8 years as he was also residing in the railway quarters. He do not know what was the monthly salary of the said accused. In the month of October 2013 he was requested for advancement of said loan amount and after two months he has advanced the said loan amount, at that time he was agreed to repay the same within six months. At the time of advancement of loan, the accused and his mother were present, at that time he was not taken any documents either loan agreement etc. He was advanced the said loan amount, out of Chit amount of Rs.4,00,000/- which has been received from the Chit owner and he has kept said amount in his house for his marriage purpose, since he was member of the chit in the year 2011 , he has withdrawn the chit amount in the month December 2013. He is not having any documents that he was paid the chit amount and he is one of the members of chit. He has not advanced the said loan amount for interest. The accused has issued Ex-P1 in the 7 C.C. 28122 of 2014 month of June 2014 and he has assured that, the said cheque will be present after one month. Accordingly he has presented the said cheque for encashment through his bank. But it was dishonoured for the reason "funds insufficient". He denied the suggestion that expect signature Ex-P1(a) other writings are not written by the accused. He denied their suggestion that he has not at all received the legal notice issued by the complainant.
10. In further cross PW1 deposed that, he was studied up to SSLC and he do not know reading kannada language. The Accused has issued Ex-P1 near his house, at that time his mother was present. He denied the suggestion that, except Ex- P1(a) signature and other writing are different hand writing and he himself has wrote the contents of Ex-P1. Further, he deposed that he do not know that, Ex-P1 was written by his own sister. It is true that, he has got issued legal notice through the residential house of the accused. He do not know another complaint under section 138 of NI Act was filed by his own sister Rajeshwari and which was pending before 15th ACMM in CC No. 26230/2014. It is true that, the CC No.26230/2014 which was filed by his sister pending on the file of 15th ACMM are admitted by the PW1, hence the certified copy of order sheet of said 8 C.C. 28122 of 2014 document is marked as Ex-D1. He denied the suggestion that his mother and his sister were running chit business and at that, time accused has issued two signed blank cheques in favour of his mother and sister and he has not misused the signed blank cheques given by the accused to his sister and thereafter, himself and his sister were got filed complaint against the accused before this court and his sister was filed complaint before 15th ACMM. Further, he knows that in No.26230/2014 his sister and present accused were got compromised before the 15th ACMM for Rs.2,30,000/- and accused agreed to pay the said amount for Rs.10,000/- each on monthly installments. It is true that, the daughter of the accused by name Bhagyalakshmi was filed criminal complaint before Yashwanthpur PS against himself and his mother and his sister. Further it is true that, the said criminal complaint which has been filed by the daughter of the accused Bhagyalakshmi and in that complaint they have got compromised with the said Bhagyalakshmi and in that, compromise the accused has gave statement before the said PS that, the said accused was received an amount of Rs.4,00,000/- from his mother and his sister and they will have quarrel with the said accused and they will got settle their dispute before the 28th ACMM court amicably.
9 C.C. 28122 of 2014 Further he deposed that, it is not true to suggest that, by taking un-due advantage of the accused, he has given his signed blank cheque to his mother and he himself got filled the signed blank cheque and filed false case against the accused and his sister also filed false complaint against the said accused, which was got compromised before the 15th ACMM.
11. After recording statement of the accused, he himself got examined as DW1 in his chief he deposed that he do no know the present complainant and he was not having any monetary transaction with the present complainant. He was seen the present complainant who is running tea stall at Yashwanthpur railway station near parcel office, the mother of the complainant by name D Radha also serving in the railway department as a technician. The said Radha is residing in railway quarters No.59 and he was also residing in the said railway quarters at Yashwanthpur. The mother of the complainant Radha and his sister Rajeshwari were running chit business. The wife of the accused by name Rathnamma, for performing the marriage of their daughter Bhagyalakshmi she was borrowed the loan amount of Rs.2,60,000/- from Rajeshwari who is the sister of the complainant as said Rajeshwari was running chit business.
10 C.C. 28122 of 2014 At that time, for security purpose he has given his two singed blank cheque to the said Rajeshwari through his wife as she has received Rs.2,60,000/- from the said Rajeshwari. On account of the said two signed blank cheques given by the accused to the said Rajeshwari, the said Rajeshwari who is the sister of present complainant was got filed complaint against him on the file of 15th ACMM in CC No.26230/2014. And in that case both of them were got compromised and to that effect he has produced the certified copy of the order sheet which is marked as Ex-D1 and also he has produced certified copy of the judgment dated 21.02.2015 which is marked as Ex-D2. His daughter by name Bhagyalakshmi was filed criminal complaint before Yashwanthpur PS on 13.09.2014 against mother of the complainant, complainant and his sister Rajeshwari. The copy of the PCR No.642/2014 as per endorsement issued by IO of the said PS which is marked as Ex-D3. The copy of the complaint is marked as Ex-D4 and statement of the present complainant is marked as Ex-D5. The present complainant Balaji has given his statement before the Yashwanthpur police as per Ex-D5 stating that, the said accused was borrowed the loan amount of Rs.4,00,000/- from the mother of the complainant and his sister Rajeshwari and said accused was already repaid the borrowed 11 C.C. 28122 of 2014 loan amount of Rs.4,00,000/- and thereby he will not given any harassment to the present accused and said accused was not due any amount to the complainant Balaji. And said complainant Balaji has gave his statement as per Ex-D5 he was not file complaint against present accused Venkatachalaiah as he was not liable to pay amount to the present complainant. And that he was also filed complaint against the said accused which is still pending before 28th ACMM. And also he was given statement before the police as per Ex-D5 that he will not quarreled with the present accused. Further he deposed that Ex-P1 cheque belongs to his own bank account but he denied the signature marked as Ex-P1(a) was not his signature.
12. In his cross he deposed that he know the present complainant for the last 4-5 years. It is true that he himself and mother of the complainant are serving in the railway department and residing in railway quarters situated at Yashwanthpur and both quarters are adjoining to each other. It is true that he was got compromised in CC No.26230/2014 on the file of 15th ACMM. He denied the suggestion that as per Ex-P5 RPAD envelope was returned with postal endorsement as "not claimed". It is true that Ex-P1 cheque belongs to his own bank account 12 C.C. 28122 of 2014 cheque. But he denied the signature marked as Ex-P1(a). On 13.09.2014, as daughter of the accused Bhagyalakshmi was filed complaint against mother of the complainant, complainant and his sister before the Yashwanthpur PS as per Ex-D4. He denied the suggestion that after issuance of legal notice to him as per Ex-P3 on 23.09.2014, his daughter Bhagyalaksmi was filed criminal complaint before the Yashwanthpur PS as per Ex- D4. He denied the suggestion that after lodging of the complaint as per Ex-D4 by his daughter, they have got compromised before the PS. He has not produced any documents to show that his wife Rathnamma was member of the Chit alleged to have been run by the mother of the complainant and his sister Rajeshwari, and at that time he was issued his signed two blank two cheques for security purpose through his wife Rathnamma. It is true that the complaint, which has been filed by the sister of the complainant before the 15th ACMM and present case in hand, are altogether different. It is true that, when the complaint is filed by the sister of the complainant Rajeshwari against him which was pending before 15th ACMM and when it was got compromised at that time, the present complaint before this case was pending. Further it is true that, at the time of compromise before the 15th ACMM he was not stated that the present 13 C.C. 28122 of 2014 complainant was also filed complaint against him, which was pending before this court. He denied the other suggestion.
13. On perusal of the averments made in the complaint the evidence of the complainant and also accused and the documents produced by the respondent parties, it is admitted fact that both complainant and accused are well acquainted with each other since the complainant's mother Radha and the accused were and are till today serving as railway department employee at Yashwanthpur and they are residing at Yashwanthpur railway quarters adjoining to each other. The present complainant is well known to the said accused through his mother and apart from that, the complainant was and is running tea stall near parcel office at Yashwanthpur railway station. Further it is admitted fact that, prior to filing of the said complaint the complainant complied all the necessary ingredients of section 138 of NI Act. Further, as per Ex-P3 legal notice issued by the complainant by RPAD both the notices were returned with postal endorsement "not claimed" as per Ex-P5 and P6. The postal envelope endorsed seems to not claimed it means deemed service of legal notice. In spite of the service of legal notice, the accused fails to give any reply to the said 14 C.C. 28122 of 2014 notice, hence, the complainant filed the present complaint well within the time. Though, the accused had deposed with respect to issuance of cheque under Ex-P1 though it is belongs to his own bank account cheque but he has denied with respect to the signature which is marked Ex-P1(a) was not his signature. But, on perusal of the Ex-P2 bank endorsement, the cheque was dishonoured with an endorsement 'account closed' therefore, if the signature which is marked as Ex-P1(a) was not the signature of the accused definitely, bank will issue endorsement like 'drawers signature differs' . Further the complainant deposed that, he was advanced the loan amount of Rs.4,00,000/- by way of cash to the accused, since the accused was intending to perform his daughters marriage and have financial difficulty and thereby only he was borrowed loan amount. Further, with respect to source of income of the complainant for advancing so much of amount, he has deposed that in the month of December 2013 accused approached him for advancing financial assistance and for discharge of the said loan amount he has issued cheque Ex-P1. With respect to his source of income during the course cross of examination PW1 deposed that, he was and is running tea stall at Yashwanthpur railway station and getting daily income of Rs.5,0000 to 6,000/-. And he was having monthly 15 C.C. 28122 of 2014 saving of Rs.10,000/- to 15,000/- as profit out of the said business. Further he deposed that, he was till today un-married and his family expenses are all meet out by his mother who is employee in the railway department and they are all jointly residing in the railway quarters allotted to the mother of the complainant. Further he deposed that, in cross out of his monthly savings he use to save Rs.3,000/- to 4,000/- and he saved Rs.2,00,000/- for his marriage expenses and he has borrowed loan amount of Rs.2,00,000/- from his friend one Murugesh and out of said amount he has advanced Rs.4,00,000/- by way of cash to the accused and apart from that, he has also deposed that he is one of the member of the chit and in the month of December 2013. He has bid chit amount of Rs.2,00,000/- and that amount has been paid to the accused. Further, as per the defense of the accused it is admitted fact that the sister of the complainant by name Rajeshwari has filed complaint against the present accused before the 15th ACMM bearing CC No.26230/2014. In that case both Rajeshwari and present accused have got compromised by filing joint memo and in terms of joint memo filed by them 15th ACMM pleased to pass the considered judgment that, accused shall pay an amount of Rs.2,30,000/- and to substantiate the 16 C.C. 28122 of 2014 said complaint filed by the sister of complainant, the accused himself produced the documents Ex-D1 and D2. In the cross of DW1 he has also deposed that, the present case is filed by the present complainant was pending when they have got compromise by filing joint memo in CC 26230/2014 and there was no recital mentioned in the joint memo filed by them before 15th ACMM court about the pendency of the present case filed by the present complainant was also filed complaint against the present accused. Therefore, the complaint filed by the sister of the present complainant against the present accused before the 15th ACMM Court was and is not binding upon the present case in the hand if that is the case, the present accused he ought to have stated in the joint memo that that he was issued his blank signed cheque to the complainant of the said case in CC No.26230/2014 when the wife of the by name Rathnamma was borrowed amount of Rs.2,60,000/- for repayment of the said Rs.2,60,000/- he has issued his two signed blank cheque for security purpose. To substantiate alleged defense set up by the accused during his chief examination and during course of cross of PW1 he has not produced any iota of documents except his oral testimony. Therefore, the alleged defense set up by the 17 C.C. 28122 of 2014 accused is not sustainable to disprove the claim of the complainant.
14. Further, with respect to conduct of the accused, the daughter of the accused one Bhagyalakshmi was filed criminal complaint against the present complainant, mother of complainant and sister of the complainant before Yashwanthpur PS. As per Ex-D3 PCR has been registered by the IO of the Yashwanthpur PS bearing No. 642/2014. And he has also produced certified copy of Ex-D3, complaint copy Ex-D4 and statement of the present complainant that, he does not quarrel with the present accused and his family member but, police have not filed any charge sheet against the present complainant his mother and his sister as per the alleged complaint filed by the daughter of the accused before Yashwanthpur PS. Therefore, mere filing of the complaint by the daughter of the accused will not take away the claim of the complainant against the present accused. The cheque Ex-P1 was dishonoured with endorsement 'accused closed' whereas, the complaint filed by the daughter of the accused before Yashwanthpur PS was also filed on 13.09.2014 itself. Therefore, it can be inferred that to escape from the criminal liability as per the cheque issued by the accused, he himself has got closed his bank account after receipt 18 C.C. 28122 of 2014 of the legal notice. The Ex-P1 cheque has been issued on 27.06.2014. On perusal of Ex-P1 he might have closed his bank account after filing the complaint by the sister of the complainant.
15. The present complainant is summary trail in nature.. Ordinarily, offence under section 138 of NI Act in quasi criminal in nature and "mensrea" is not essential ingredients, offence under section 138 of NI Act, is bring into operation rule of strict libility, whereas "mensrea" is essential ingredients in criminal offences. Therefore, the complainant has proved his case against the accused since offence under section 138 of NI Act element of "mensrea" has been excluded in general public interest to curb the instances of dishonoring of the cheques and to lend the credibility to the commercial transaction. Hence in the light of the above observation, the complainant has successfully proved his case and the accused has committed offence punishable under section 138 of NI Act. Hence I am of the opinion that, the complainant is entitle for entitle for legally recoverable debt amount of Rs.4,00,000/- which has been advanced by the complainant to the accused and for discharge of the said borrowed loan amount to accused, the accused has 19 C.C. 28122 of 2014 issued Ex-P1. Accordingly I answer the point No.1 in the affirmative.
16. Point No.2 :- In view of my findings on Point No.1 in the affirmative, I proceed to pas the following...
ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of Rs.4,03,000/- In default of payment of said fine amount, the accused shall undergo simple imprisonment for six month.
Out of the said fine amount, Rs.4,00,000/-
shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and Rs.3000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands cancelled.
Free copy issued to the accused.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified, corrected and then pronounced by me in the open Court on this the 3rd day of January 2017).
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
20 C.C. 28122 of 2014 ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 D Balaji List of documents exhibited on behalf of the complainant:
Ex.P.1 Cheque Ex.P.1(a) Signature of the accused Ex.P.2 Bank endorsement Ex.P.3 Office copy of the legal Notice Ex.P.4 Postal receipt Ex.P.5 & 6 Two returned un-served RPAD cover
List of witnesses examined on behalf of the accused :
[ DW1 : Venkachalaiah List of documents exhibited on behalf of the accused :
Ex.D.1 Copy of order sheet Ex.D.2 Judgment copy dt.21.02.2015 Ex.D.3 The copy of the PCR No.642/2014 Ex.D.4 Copy of complaint Ex.D.5 Copy of statement
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
21 C.C. 28122 of 2014 (vide separate judgment pronounced in the open Court) ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of Rs.4,03,000/- In default of payment of said fine amount, the accused shall undergo simple imprisonment for six month.
Out of the said fine amount, Rs.4,00,000/-
shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and Rs.3000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands cancelled.
Free copy issued to the accused.
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
22 C.C. 28122 of 2014 Heard Inference