Bangalore District Court
Sri. B. Gopal vs Sri. Santosh on 28 December, 2022
KABC0C0265272017
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 28TH DAY OF DECEMBER, 2022.
C.C.NO.58175/2017
COMPLAINANT 1. Sri. B. Gopal
S/o Late Bachanna,
Aged about 50 years,
Residing at: Dodda Koliga village
Begur post, Sulibele hobli, Hoskote
taluk562122.
(Since dead by Lrs )
1(a). Smt. Bhagyamma
W/o Late Gopal
Aged about 45 years
1(b). Mis. D.G. Sunitha
D/o Late B. Gopal
Aged about 25 years
1(c). Sri. D.G. Suman S/o Late B.
Gopal Aged about 22 years
All are R/at Dodda Koliga village
Begur post, Sulibele hobli, Hoskote
taluk562122.
2
C.C.No.58175/2017
Vs.
ACCUSED : Sri. Santosh
S/o Late Narayanappa
Aged about 36 years
Residing at: Arebinnimangala village,
Jala Hobli, Bangalore north taluk,
Bangalore5622129.
And also at:
Basaweshwara Traders Gollahalli
Gate, Devanahalli Budigere road,
Budigere Post, Jala hobli, Bangalore.
JUDGMENT
The complainant has filed this private complaint U/s.200 of Cr.P.C., against the accused for the offence punishable U/s 138 of Negotiable Instrument Act.
2. The factual matrix of the case are as follows: The complainant averred that the accused is his relative, based on that acquaintance, father of the accused during life time, for the benefit of family necessities had executed agreement of sale with General Power of Attorney in his favour on 15.02.2020 with respect to land bearing Survey No.1 measuring 4 acres situated Arebannimangala village, Devanahalli Taluk by receiving 3 C.C.No.58175/2017 an advance sale consideration amount of Rs.20 lakhs through cheque bearing No.679708, dated 15.02.2010 drawn on Kaveri Grameena Bank Mallinathapura branch. However, after entering into an agreement of sale, the KIADB acquired property subjected under agreement of sale, by knowing the same, the complainant claims to have demanded the accused as well as the father of the accused for refund of advance amount. But the accused promised him to repay it along with interest as soon as KIADB releases compensation to the accused and his father, believing the same, he waited for some time, but, in the meantime, the father of the accused Narayanappa had died in the 2nd week of September 2015, however, after death of accused father, he claimed to have intimated the accused to file objection along with the agreement as well as GPA executed by the father of the accused to KIADB, but, the accused promised him again to refund the advance amount along with the interest within six months, considering the relationship and to have good relationship with the relatives, he granted further one more year, however, even after completion of one year accused failed to pay advance amount, but, in the last week of April 2017, on his demand the accused 4 C.C.No.58175/2017 issued cheque bearing No.692153, dated 25.05.2017 drawn on Vijaya Bank, Mylanahalli branch in his favour with an assurance that, cheque would be honored as the KIADB authorities will release the amount in the third week of May 2017, accordingly, he claims to have presented cheque on 01.06.2017 for encashment, but, cheque came to be dishonored for "Payment Stopped By Drawer" on 12.06.2017, immediately, he claims to have demanded the accused to pay the cheque amount on 16.06.2017, same was not served upon the accused on 19.06.2017, despite of service, the accused failed to pay the cheque amount and thereby committed an offence punishable U/s.138 of N.I.Act, accordingly, the complainant 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.
3. 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.
5C.C.No.58175/2017
4. 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 PW1 and placed reliance on Ex.P1 to P13, however, soon after his examination complainant had reported to be dead, thereafter, the LRs of the complainant came on record, and examined witnesses on PW2 to 4. 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 examined himself as DW1 and placed reliance on Ex.D1 to 7, that apart, he also examined Bank Manager on his side as DW2.
5. Heard both the sides. the counsel for the complainant, also filed his written submission, the learned counsel for the accused relied upon following decisions 2001 Crl. Law Journal 4311, (2002) 7 SCC 541, 2002, Crl. Law Journal 3255, 2009 1 crimes HC 203, 2009 Supreme KAR 207, Crl.Apl.No.505/2019, Crl.Apl.No. 200057/2016.
6C.C.No.58175/2017
6. 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 issuance of his cheque towards refund of advance sale consideration amount of Rs.20,00,000/ received by his father by way of cheque bearing No.679708 on 15.02.2010 through an agreement of sale along with interest as per the settlement held in between them before Panchayath, further, he contended that, his cheque allegedly stolen by the complainant and signature found on the cheque in question is not belongs to him, 7 C.C.No.58175/2017 accordingly, he claims to have issued stop payment instruction to his banker, hence, he is not liable claims to be innocent, so, the burden is on the complainant to prove the existence of legally enforceable liability, as well as issuance of cheque in question, however, the accused does not dispute the compliance of Sec.138(a) to (c) of N.I Act as well as cheque in question i.e., bearing 692153 is related to his account.
9. The complainant in order to prove his case got examined himself as PW1, he reiterated the complainant averments and placed reliance on agreement of sale, GPA as well as cheque, the accused denied the execution of agreement of sale as well as GPA and also receipt of advance sale consideration amount of Rs.20,00,000/ on 15.02.2010 through cheque, by his father, however, the complainant produced agreement of sale Ex.P9, GPA Ex.P8 and statement of account, on perusal of Ex.P11 issued by Cauvery Kalpatharu Grameena Bank clearly discloses a sum of Rs.20,00,000/ has paid to the accused father C.Narayanappa on 15.02.2010 through Cheque bearing No.679708 dtd.15.02.2010, the fact of encashment has been clearly shown in Ex.P11, that apart, 8 C.C.No.58175/2017 to prove the receipt of Rs.20,00,000/ and also execution of agreement of sale as well as GPA, the complainant examined attesting witness by name Venkataramanappa PW2, he upon oath stated that, on 15.02.2010 father of the accused executed an agreement of sale and GPA with respect to the Sy No.1 of Arebinnamangala village by receiving sum of Rs.20,00,000/ by way of Cheque as advance sale consideration, he identified the LTM of accused father as well as his signature and clearly stated that, in his presence the accused father had executed an agreement of sale as well as GPA, though the accused crossexamined the PW1 nothing has elicited that, father of the accused not been executed an agreement of sale.
10. That apart the sister of the accused deposed in support of the complainant as PW3, she categorically stated, her father by receiving Rs.20,00,000/ had executed an agreement of sale as well as GPA in favour of the complainant, though the accused cross examined the PW3 that she is interested witness, but, nothing has elicited except the relationship as well as the suit filed by the PW3 and its compromise as per Ex.D1 to 3, which clearly discloses that, the said suit filed with respect to 9 C.C.No.58175/2017 compensation amount between brothers and sisters of accused and PW3 and it has filed subsequent to acquisition of the agreement property by the KIADB, as such the execution of agreement and receipt of Rs.20,00,000/ by the father of accused cannot be doubted as the amount of Rs.20,00,000/ paid through Cheque but not by way of cash and in pursuance of payment, the father of the accused not only executed an agreement of sale and also GPA in favour of the complainant, the learned counsel for accused vehemently argued that, the stamp papers of Ex.P8 and 9 were purchased at Shidlaghatta, therefore, he urged that, both are created, however, both these documents clearly transpires that, the stamp papers were purchased by the father of the accused, as such, merely because stamp papers purchased at Shidlaghatta, it does not ipso facto ground to consider the document are created as there is no bar to purchase the stamps at any where.
11. Further, the accused contended that, his father was suffering from paralysis, as such, he was not in possession entering into Ex.P8 and 9, but, nothing was brought on record that, except paralysis accused father mentally was 10 C.C.No.58175/2017 not fit to execute the Ex.P8 and 9, hence, the contention of the accused that, his father was physically not fit to execute Ex.P8 and 9 cann't be acceptable, as the sister of the accused PW3 categorically stated her father had executed Ex.P8 and 9 infavour of complainant, even though her father was suffering from paralysis, but, mentally fit to execute Ex.P8 and 9, that apart, the accused counsel during the course of argument raised a point of financial capacity of complainant, but, the complainant produced Ex.P11 which evidencing the fact that, as on 16.02.2010 the bank balance of the complainant was Rs.33,65,480/ and the advance clear consideration amount paid 2 cheques, but, not in cash, so, it clearly proves the financial capability of the complainant, hence, the complainant proved the payment of Rs.20,00,000/ through Cheque to the father of the accused Sri.Narayanappa towards advance sale consideration on 15.02.2010.
12. Further, it is not in dispute that, subsequent to agreement father of the accused died in the 3 rd week of September2015. That apart, it is also not in dispute the acquisition of land bearing Sy.No.1, which is admittedly 11 C.C.No.58175/2017 subjected under the agreement held in between the complainant and father of the accused. The complainant after the death of accused father, he intended to file objections before KIADB for not to release compensation, but, at that time the accused requested the complainant with a promise that he would pay the advance sale consideration amount as soon as the compensation amount releases by the KIADB and issued Ex.P1 Cheque for total sum of Rs.30,00,000/ after Panchayath held with respect to an agreement and GPA before well wishers of both the parties, the testimony of the complainant also supported by PW3 the sister of the accused herein, that after death of her father the accused agreed to pay sum of Rs.30,00,000/ to the complainant.
13. However, the accused denied the same, but contended that Cheque belongs to him, his 2 Cheques were lost, therefore, he lodged a complaint before Baagaluru police as Ex.D4 to 6, but later learnt that, the complainant has stolen his 2 blank Cheques and misused, but, the complainant in order to over come the defence of the accused got relied upon CD containing the audio conversation between the complainant and accused with 12 C.C.No.58175/2017 regard to the issuance of Cheque as well as the promise made by the accused to pay the advance sale consideration as soon as he receives the compensation, though the said CD got marked as Ex.P13, but the accused denied the conversation as well as his voice. Therefore, it is burden on the complainant to prove the conversation held in between him and the accused, but complainant not produced certificate from the competent authority to prove that, the audio conversation is of the accused, so in absence of that, it is not fit to consider the audio conversation found in a CD between the accused and the complainant, however, the accused though denied the issuance of cheque as well as the signature found on the cheque, but, admitted Ex.P1 cheque is belongs to his account, so, the burden is on the complainant to prove the signature found on the Cheque is none other than the accused, for that, the counsel for the accused filed an application U/sec. 45 of Indian evidence act to refer the Ex.P1(a) for expert opinion along with examination of bank manager. The court considering the real controversy between the parties summoned bank manager of Bank of Baroda, Mylanahalli branch, the accused in order to prove his defence that, the signature 13 C.C.No.58175/2017 found on the Cheque is not belongs to him, has examined the branch manager of his bank as DW2 and got marked the account opening application and NCR issued by Baagaluru PS and also his letter for stop payment.
14. The DW2 in her evidence deposed that, the account bearing No.146301011002711 is pertaining to the account of the accused as per the letter issued by the accused on 23.02.2017 along with NCR issued by Baagaluru PS, the payment of amount was stopped by the bank and also the signature Ex.P.1(a) doesn't match or tallies with the specimen signatures available with her bank. However, in her crossexamination the complainant elicited that, the signature found on PAN card and the loan application are different. So, it is brought on record by the complainant that, 2 different signatures have been found in the application as well as the PAN card belongs to the accused, so, the complainant vehemently argued that, the accused has habit of putting different signatures thereby in order to escape from liability issued Cheque with different signature and later issued stop payment instruction with an intention to deceive the complainant.
14C.C.No.58175/2017
15. Per contra, the counsel for the accused argued that, the evidence of DW2 couple with the Ex.D6 and 7 are evidencing the fact that, the complainant has misused the Cheque by forging the signature of the accused and filed this false case, the evidence of DW2 is clear that, signature Ex.P1(a) is not belongs to the accused.
16. So, considering the rival contentions with the materials on record, it clearly discloses that, the Cheque in question admittedly got bounced for the remarks of "Payment Stopped By The Drawer", but, not "Drawer Signature Differs", the accused though examined DW2 to prove his defence that, Ex.P1(a) is not of his signature, but not produced his statement of account to prove the sufficient balance in his account as on the date of the Cheque which is paramount to consider his defence that, the Cheque was bounced not for paucity of funds, but it is for bounced for signature differs and other reasons. At this stage, it is worth to note the decision of Hon'ble Apex court between M/s MMTC Ltd., and another V/S Medchil Chemicals and Pharma Pvt. Ltd., held that, "Even though the cheque dishonored by reason of stop payment instruction an offence under section 138 15 C.C.No.58175/2017 could still be made out. It is held that, the presumption U/S 139 is attracted in such a case also the authority shows that, even in the cheque is dishonored by reason of stop payment instruction by virtue Sec.139 the court as to presume that, the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Offcourse this is a rebuttable presumption. The accused can thus show that the stop payment instruction were not issued because of insufficiency or paucity of funds if the accused shows that in his account there was sufficient funds to clear the amount of cheque at the time of presentation the cheque for encashment at the drawer bank and that stop payment notice had been issued because of other valid causes including that there was no existing that or liability had been issued because of other valid cause including that there was no existing debt or liability at the time of presentation of cheque for encashment, then an o/p/u/s 138 would not be made out".
So, the accused firstly not produced the statement of account to prove sufficient balance in his account as on the date of Cheque to consider his defence that, the complainant had allegedly stolen his Cheque.
16C.C.No.58175/2017
17. That apart, the DW2 in her crossexamination clearly admitted that, the signature found on PAN card of the accused and the account opening application are not one and the same, in other words 2 different signatures admittedly found on the very documents of the accused, therefore as rightly argued by the counsel for the complainant, accused has an habit of putting signature differently.
18. In addition to that, the accused in court itself, i.e., in 313 statements of accused signed differently in statement recorded U/Sec.313 of Cr.P.C. on 10.09.2018 and additional statements recorded on 21.10.2019, in both these statements the signatures of the accused is all together different, it further corroborates and strengthens the contention of the complainant that, the accused had issued Ex.P.1 Cheque by changing his signatures, therefore, though the signature Ex.P.1(a) doesn't tallied with specimen signature available with his banker, but admittedly in the bank itself as well as in the court the accused has signed differently by changing one or the other which clearly stands proved the complainant has an habit of changing his signatures, therefore it can be safely 17 C.C.No.58175/2017 inferred that Ex.P1(a) is none other than the accused, because though the accused filed complaint to the Baagaluru PS about lost of his Cheques and later learnt that, his Cheque with the custody of the complainant, but, till date, the accused has not taken the legal action against the complainant for alleged stolen of his Cheque and misused, therefore, inaction of the accused clearly indicates that, the defence of the accused is nothing but an after thought to escape from the liability. As such, the complainant undoubtedly proved Ex.P1 and Ex.P1(a) is of the accused, so, once it is proved that, the Cheque in question as well as the signature found on the Cheque is of the accused even though the accused denied the issuance of the Cheque and the liability it has to be presumed U/s.118(a) and 139 of NI Act in favour of holder of the Cheque that he received Ex.P.1 Cheque towards discharge of enforceable liability and accused has drawn Ex.P1 Cheque for consideration as it is mandatory presumption shall be drawn infavour of the holder of the Cheque, once, the holder of the Cheque proved the Cheque in question as well as signature found thereon related to the account of the accused, in support 18 C.C.No.58175/2017 of this the court relying upon the decision of Hon'ble Apex Court that, Rangappa V/s Mohan has held that;
"Once the cheque relates to the account of the accused and he accept and admit the signature on the said cheque, then initial presumption as contemplated under Sec.139 of N.I. Act has to be raised by the court in favour of the complainant. The presumption referred to in Sec.139 of N.I. Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption."
19. Accordingly initial presumption has been drawn in favour of the complainant that, the accused has issued Ex.P1 Cheque towards the advance sale consideration received by his father through agreement of sale on 15.02.2010. However, it is a rebuttable presumption, therefore, the onus is on the accused to rebut the presumption, in order to rebut the same the learned counsel for the accused vehemently argued that, the agreement of sale held in between the father of the 19 C.C.No.58175/2017 accused and the complainant, therefore, the liability claimed by the complainant is not of the accused, as such it is not a legally enforceable debt. Further, the complainant not caused any legal notice to the father of the accused, even though the time for performance of contract was fixed only for 6 months and the accused has allegedly issued the Cheque in question in the year 2017 i.e., after 7 years from the date of agreement, as such, the claim of the complainant appears to be time barred, as such the liability claimed by the complainant is not legally enforceable and didn't exist as on the date of cheque, accordingly, claims to be acquitted.
20. Per contra, the complainant argued that, soon after death accused father Narayanappa the sisters of the accused had filed suit in O.S. No.36/2017 as per Ex.D2 and 3 during pendency of the said suit, the accused agreed to settle the advance sale consideration amount to the complainant in presence of his sisters, on his promise the sisters of accused have entered into compromise in pursuance of the same, accused issued Ex.P1 cheque, as such, it is not time barred liability as it is not a loan transaction.
20C.C.No.58175/2017
21. Considering the rival contentions with the materials on record as rightly argued by the learned counsel for the complainant that, an agreement of sale held on 15.02.2010, the time was fixed for performance of contract was 6 months, however, along with agreement of sale the accused also executed GPA Ex.P8, wherein, the deceased Narayanappa during life time has given authorization to the complainant to realize the amount from KIADB if the land subjected under an agreement of sale acquired by the KIADB, it is not in dispute that, KIADB has acquired the land bearing No.1 subjected under agreement of sale and also the KIADB released the compensation amount to the accused and his siblings, so, it is well settled law that, power of attorney goes along with the death of executer of GPA, admittedly, the father of the accused i.e., deceased Narayanappa died in the 2 nd week of September 2015, further, it is not in dispute within 6 months from the date of agreement the KIADB has acquired the land subjected under agreement, during life time of accused father, as per GPA in accused father authorized the complaint to recover the advance sale consideration amount from KIADB, admittedly, KIADB released the amount in the year 2017, after the accused 21 C.C.No.58175/2017 issued Ex.P1 cheque towards settlement of advance consideration amount, therefore, within 3 years from the date of revocation of GPA, the accused issued Ex.P1 cheque, towards settlement of sale consideration amount, as such, in view of GPA, the father of the accused authorized the complainant to realize the amount from the KIADB, whenever it releases, therefore, question of time barred liability does not arise and the date of agreement of sale cannot considered for recovery of advance sale consideration amount, since, the accused father had authorized the complainant to realize the amount from KIAIDB, whenever, it releases by executing the GPA infavour of the complainant, as such, from the date of death of accused father, the accused issued cheque within 3 years, as such, it is not time barred claim further, the decision relied by the accused i.e., the Bidar Urban Cooperative Bank Ltd., Vs. Girish is not applicable as the transaction in said case is with respect to loan, whereas the present one with respect to agreement of sale, as well as GPA, therefore, the claimed liability is not a time barred one.
22C.C.No.58175/2017
22. Further, the accused contended that, the liability claimed by the complainant is not of his individual liability, it is of his deceased father, as such, liability claimed by the complaint is not legal one, and he is not liable for the same, for that, he relied upon decision of High Court of Bombay, Reported in 2001 Crl.L.J, however, the accused does not dispute that, the property subjected under agreement of sale acquired by the KIADB and also the complainant proved authorization given by the accused father for realization of advance consideration amount from KIADB, further, it is not in dispute that, the property subjected under agreement is the self acquired property of accused father, in addition to that, admittedly, the agreement property was also subjected under the suit filed by the accused sister, during the pendency of suit, the accused and his sisters entered into a compromise and they have realized the amount also, so, they received the amount from the estate of his deceased father, as such, the pious obligation is on the LRs of deceased Narayanappa, as such, the accused being the one of the LRs is liable to discharge the debts and liability of his deceased father, once he realized the amount out of the estate of deceased his father, as such, 23 C.C.No.58175/2017 though the claimed liability is of his father, he issued Ex.P1 cheque for settlement of advance sale consideration with interest, even though it is not in his liability, further, as per Sec.138 of N.I Act, not only attracts issuance of cheque by the drawer for the liability of the drawer but, also attracts the cheque issued for other liability or another at this stage it is worth to note, 18 [ 138 Dishonour of cheque for insufficiency, etc., of funds in the account. --Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 19 [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless--
24C.C.No.58175/2017
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.-- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.]
23. So, in view above provision Sec.138 of N.I Act not only attracts the individual liability of the drawer and also it attracts cheque issued for liability of others, therefore, the contentions of the accused that, the liability claimed by the complainant is not individual liability of him, as such, he is not liable can not be acceptable, hence, not tenable.
25C.C.No.58175/2017
24. Further, the learned counsel for the accused raised a point with regard to claimed amount of Rs.30,00,000/ i.e., the advance sale consideration is only Rs.20,00,000/ but, the claimed amount is Rs.30,00,000/, therefore, claimed amount is not legally enforceable one, on the contrary, the counsel for the complainant argued that, the principal amount received through cheque on 15.02.2010, therefore, the Panchayathdars and the family members of the accused agreed to pay Rs.10,00,000/ along with principal amount, since, the complainant money has been enjoyed by the accused and his father for the period of 7 years, so, on this rival contentions that, I have carefully perused the materials on record, the complainant vehemently stated, a settlement was arrived between him and the accused, family members of the accused with respect to refund of advance amount along with interest for delayed payment, in this regard, the complainant examined accused sister Saraswathamma, she deposed that, her brother accused agreed to refund the advance sale consideration amount of Rs.20,00,000/ with interest in totally the accused agreed to pay Rs.30,00,000/ for delayed repayment, but, the accused denied it, however, on careful perusal of materials on record, it clearly 26 C.C.No.58175/2017 transpires on 15.02.2010 sum of Rs.20,00,000/ received by the accused father, the testimony of PW.3 corroborates the settlement held in between the accused and the complainant for Rs.30,00,000/ the argument with respect to interest is concern, the principal amount Rs.20,00,000/ was received on 15.02.2010, whereas the accused issued Ex.P1 cheque in the month of April 2017, so, the settlement held for Rs.30,00,000/ is neither exorbitant or illegal, since, no prudent man would refrain from claiming extra amount, as such, as per settlement the Ex.P1 cheque issued by the accused is a legally enforceable debt, therefore, it is legally enforceable debt.
25. So, considering entire materials on record, though the accused denied execution of agreement of sale as well as GPA by his father on receipt of Rs.20,00,000/ by agreeing to sell a land bearing Sy No.1 of Arebannimangala village as well as issuance of Ex.P1 cheque for sum of Rs.30,00,000/ infavour of the complainant, but, admitted Ex.P1 relates to his account, however, he further denied signature found on the cheque not belongs to him, but, the cheque came to be dishonored for payment stopped by the drawer, and 27 C.C.No.58175/2017 cheque was not dishonored for signatures differs, the complainant specifically argued that, accused in order to cheat the complainant had issued cheque by changing his signature, same is corroborated by the branch manager of accused banker DW2, the testimony of DW2 clearly strengthens the claim of the complainant that, the accused has an habit of changing his signature i.e., the loan application and the Pan card belongs to the accused filed along with the application, the signature of the accused is not similar, in other words, altogether different, that apart, the court twice examined the accused U/S 313 of Cr.P.C., the signatures found on both the accused statements are altogether different, therefore, it can be easily inferred that, signature on the cheque is none other than the accused.
26. Moreover, it is not the case of the accused that, he had sufficient balance in his account as on the date of the cheque, in other words cheque not got bounced, because of paucity of funds, therefore, to consider the defence of the accused that, his cheque has stolen by the complainant, firstly, the accused must prove the sufficient balance in his account as on the date of the 28 C.C.No.58175/2017 cheque in question, in view of the dictum of Hon'ble Apex Court referred supra, further, the accused though he lodged complaint with the Baaglur Police about his lost of 2 blank cheques, but, even after coming to know the custody of his cheque with the complainant, admittedly not taken legal action against the accused till date, it further indicates and strengthens the claim of the complainant that, the defence of the accused nothing but an after thought to escape from the liability, since, no prudent man would keep quite, even after, a huge amount claimed by the complainant by using the cheque in question, accordingly, defence cannot be acceptable.
27. That apart, the sister of the accused has clearly supported the case of the complainant with regard to execution of agreement of sale as well as GPA by the accused father and health of the accused father was sound and consciously executed infavour of the complainant by receiving an amount of Rs.20,00,000/ through cheque in presence of attesting witness PW2 Venkataramanappa, who also corroborated the claim of the complainant, so far as execution of agreement of sale as well as GPA infavour of complainant by the father of the accused in 29 C.C.No.58175/2017 his presence by receiving an amount of Rs.20,00,000/ through cheque, so, both the PW2 and 3 have consistently deposed infavour of the complainant with respect to execution of Ex.P8 and 9 out of them PW3 is own sister of accused, but, still the accused denied the execution of Ex.P8 and 9 as well as receipt of Rs.20,00,000/ of his father, however, the complainant got marked Ex.P11 statement of his account, which clearly stands proved the payment of Rs.20,00,000/ by the complainant through cheque to the accused father on 15.02.2010.
28. Further, accused does not disputed the Civil Suit filed by the sisters as per Ex.D1 to 3 and the settlement held in between him and his sisters as well as the acquisition of agreement property by KIADB and receipt of compensation amount by the accused and his siblings, though he disputed the settlement held in between him and the complainant for sum of Rs.30,00,000/ at the time of releasing the compensation amount, but, his own sister PW3 clearly stated the settlement held in between the accused and the complainant, therefore, in absence of proof about stolen of the cheque in question by the complainant, the issuance of cheque by the accused for 30 C.C.No.58175/2017 sum of Rs.30,00,000/ infavour of the complainant for refund of advance sale consideration received by his father through Ex.P8 and 9, along with interest cannot be doubted towards legally enforcible liability, therefore, the accused failed to establish the probable defence that, his cheque had been stolen by the complainant and signature found on the cheque is not oblongs to him and claimed liability not of his liability, accordingly, Sec.138 attracts not only for the liability of drawer, but, also attracts issuance of cheque by the drawer for other liability, as such, the accused failed to rebut the presumption drawn infavour of the complainant U/S 139 of N.I Act, accordingly, in the complainant has undoubtedly proved the issuance of Ex.P1 cheque by the accused in his favour towards legally enforceable liability created under Ex.P8 and 9 and subsequently realizing the amount from KIADB for acquisition of land bearing Sy No.1 of Arebinnimangala which is subjected under agreement of sale as well as GPA i.e., Ex.P8 and 9 thereby the accused had realized the amount out of his estate of his father i.e., individual property of his father, accordingly, accused is found guilty of o/p/u/s 138 of N.I. Act.
31C.C.No.58175/2017
29. 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, as per Ex.P8 and 9 the sale consideration amoun of Rs.20,00,000/ was received by the accused father by calculating interest the accused agreed to pay Rs.30,00,000/ to the complainant, so, already the interest for delayed payment already added to the principal, therefore considering the nature of transaction, duration of pendency, litigation expenses, I am opinion that, if sentence of fine of Rs.31,05,000/ is imposed that would meet the ends of justice, accordingly, the accused is hereby sentenced to pay a fine of Rs.31,05,000/, out of that, the complainant is entitled for sum of Rs.31,00,000/, as a compensation as per Sec.357(1) of Cr.P.C., remaining amount of Rs.5,000/, is to be appropriated to the state, in case of default, the accused shall under go simple imprisonment for a period of 6 months. Accordingly, I answered the above point in "Affirmative".
32C.C.No.58175/2017
30. 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.31,05,000/, (Rupees thirty one lakh 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.31,00,000/.
The bail bond and surety bond of the accused shall stand cancelled.
33C.C.No.58175/2017 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 28th day of December, 2022) (M.Vijay), XXXIII ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Sri. B. Gopal
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 & 5 : Two postal receipts
Ex.P.6 & 7 : Two postal acknowledgments
Ex.P.8 : General power of attorney
Ex.P.9 : Agreement of sale
Ex.P.10 : Reply notice
Ex.P.10(a) : Reply notice cover
Ex.P.11 : Bank statement
Ex.P.12 : Copy of the application U/s 65B of
Indian Evidence Act
Ex.P.13 : CD
Ex.P.13(a) : Typed copy of conversation recored in
CD
34
C.C.No.58175/2017
3. Witnesses examined on behalf of Accused:
DW.1 : Santosh DW.2 : Chaitra Narayanan
4. Documents marked on behalf of Accused:
Ex.D1 to 3 : Certified copy of order sheet, plaint, application U/O 23 rule 3 of CPC.
Ex.D4 &5 : Police acknowledgment
Ex.D5(a) : Signature
Ex.D6 : Affidavit
Ex.D6 : Account opening form
Ex.D7 : Police acknowledgment
(M.Vijay),
XXXIII ACMM, BENGALURU.