Bangalore District Court
Srinivasa Gupta vs Raju on 13 March, 2020
IN THE COURT OF THE JUDGE COURT OF SMALL
CAUSES AND XXVI A.C.M.M, AT BENGALURU
Present: Abdul Khadar, B.A., LL.B.,
JUDGE, Court Of Small Causes,
Bengaluru
Dated this the 13th day of March 2020
C.C. No: 4668/2019
Complainant: Srinivasa Gupta,
S/o Rajagopal Shetty,
Aged about 52years,
R/at No.78, Garlic Complex,
APMC Yard, Yeshwanthpura,
Bengaluru-560022.
(By Sri. M.D.Paramesha-Advocate)
-Vs-
Accused : Raju,
Aged about 48years
S/o Puttaswamy,
Shop No. 11, Veerabhadreshwara
Telecom, Metro Pillar No.56, Opp:
Sarakki Bus Stand, Kanakapura
Main Road, Bengaluru-560062.
(By Sri.Shashi Kumar R- Advocate)
JUDGMENT
The complainant has filed the private complaint under Sec.200 of Cr.P.C., against the accused for having committed an offence punishable under Sec.138 of Negotiable Instruments Act.
2. According to the complainant, that the accused is the friend of the complainant and well known to the complainant. During the first week of January 2018 the accused approached the complainant for hand loan of SCH-09 2 C.C.4668/2019 Rs.5,00,000/- for improvement of his business and also to meet his urgent domestic needs with an assurance to repay the same within one year. In the first week of February 2019 the complainant paid Rs.4,60,000/-, as the complainant's wife S.Aruna sold the property and he had paid to the accused from the said sale consideration amount of his wife's property. After completion of one year, when the complainant demanded the accused for repayment of the said hand loan, at that time towards discharge of his liability the accused issued a cheque bearing No.939766, dated 26.04.2019, for Rs.4,60,000/- drawn on Sree Thyagaraja Co-op. Bank Ltd., J.P.Nagara I Phase Branch, Bengaluru. The complainant presented the said cheque twice for encashment through his banker, Axis Bank, Chamarajpet Branch, Bengaluru which came to be returned unpaid for the reasons "Refer to Drawer/Not Arranged for and Funds Insufficient"
on 04.05.2019 and 08.07.2019 respectively. Immediately, complainant informed about dishonour of cheque to the accused and demanded him to pay cheque amount. The accused failed to repay the amount therefore, the complainant issued demand notice to the accused through RPAD on 05.08.2019 calling upon him to pay the aforesaid cheque amount within 15 days from the date of receipt of notice. So far the complainant counsel has not received either the SCH-09 3 C.C.4668/2019 returned RPAD cover or the Acknowledgement. In this regard on 21.08.2019 the complainant counsel had lodged a complaint to the Post Master. As per Track consignment letter issued by the postal Authority the said notice was duly served on the accused on 07.08.2019. In pursuance of the notice, the accused not repaid amount covered under the cheque nor replied to the demand notice. Accordingly, complainant has filed the present complaint, to take action against the accused in accordance with law and to award suitable compensation in the interest of justice and equity.
3. Being satisfied with the complaint averments, this Court has taken cognizance and after recording sworn statement being satisfied with the prima-facie case, issued summons to the accused compelling his appearance. Accused appeared through his counsel before this Court and got enlarged on bail. Substance of accusation was read over to the accused. Accused pleaded not guilty for the offence punishable U/s.138 of NI Act. Hence, this Court called upon the complainant to prove his case.
4. In support of the case, the complainant is examined as P.W.1 and got marked 7 documents as per Ex.P1 to P.7. After enlarging on bail and subsequently, inspite of giving sufficient opportunities, neither the accused nor his counsel have appeared before this court nor did cross examine PW-1. Hence to that effect NBW SCH-09 4 C.C.4668/2019 has been issued against him and the same was unexecuted. The accused has not at all challenged the evidence of PW-1 and the present case is summary trial and quasi-criminal in nature and thereby recording the statement of accused under Sec.313 of Cr.P.C is dispensed with and defence evidence of accused is taken as Nil. At this juncture, I have relied a decision reported AIR 2004 SC 2528 Indian Bank Association and others -v/s Union of India and others N.I. Act (26 of 1881) Sec.138, 143, 145- Dishonour of cheque summary trial -directions given to trial court to follow procedures for speedy and expeditious disposal of cases falling under Section 138 of N.I. Act. Thereby appearance of the accused is dispensed with and the case was posted for arguments.
5. Heard arguments and perused the materials available on record.
6. The points that only would arise for my determinations are:
1. Whether the complainant proves that the accused had issued cheque bearing No.939766, dated 26.04.2019, for Rs.4,60,000/- drawn on Sree Thyagaraja Co-op. Bank Ltd., J.P.Nagara I Phase Branch, Bengaluru., towards discharge of his legal liability and when the said cheque presented for encashment twice, it was dishonoured with an endorsement "Refer to Drawer/Not Arranged for and Funds Insufficient", after issuance of legal notice, he fails to repay SCH-09 5 C.C.4668/2019 Rs.4,60,000/- covered under the cheque and thereby the accused has committed an offence punishable under Sec.138 of N.I. Act?
2. What order?
7. My findings to the above points is as under:
Point No.1 : In the Affirmative
Point No.2 : As per final order below
for the following:
REASONS
Point No.1 :
8. Under Section 138 of N.I. Act, the offence will constitute only, if the cheque was issued towards discharge of legal liability and it was dishonored for Insufficient of Funds in the credit of the accused. In this connection, the complaint averments reveal that, during the first week of January 2018 the accused approached the complainant for hand loan of Rs.5,00,000/- for improvement of his business and also to meet his urgent domestic needs with an assurance to repay the same within one year. In the first week of February 2019 the complainant paid Rs.4,60,000/-, as the complainant's wife S.Aruna sold the property and he had paid to the accused from the said sale consideration amount of his wife's property. After completion of one year, when the complainant demanded the accused for repayment of the said hand SCH-09 6 C.C.4668/2019 loan, at that time towards discharge of his liability the accused issued a cheque bearing No.939766, dated 26.04.2019 for Rs.4,60,000/- drawn on Sree Thyagaraja Co-op. Bank Ltd., J.P.Nagara I Phase Branch, Bengaluru. The complainant presented the said cheque twice for encashment through his banker, Axis Bank, Chamarajpet Branch, Bengaluru which came to be returned unpaid for the reasons "Refer to Drawer/Not Arranged for and Funds Insufficient"
on 04.05.2019 and 08.07.2019 respectively. Immediately, complainant informed about dishonour of cheque to the accused and demanded him to pay cheque amount. The accused failed to repay the amount therefore, the complainant issued demand notice to the accused through RPAD on 05.08.2019 calling upon him to pay the aforesaid cheque amount within 15 days from the date of receipt of notice. So far the complainant counsel has not received either the returned RPAD cover or the Acknowledgement. In this regard on 21.08.2019 the complainant counsel had lodged a complaint to the Post Master. As per Track consignment letter issued by the postal Authority the said notice was duly served on the accused on 07.08.2019. In pursuance of the notice, the accused not repaid amount covered under the cheque nor replied to the demand notice.
SCH-09 7 C.C.4668/20199. To prove the case of the complainant he himself examined as PW1 filed affidavit in lieu of examination-in-chief and reiterated the complaint averments in toto. The complainant produced documents 7 at Ex.P1 to P7. Ex.P1 is the cheque bearing No.939766, dated 26.04.2019, for Rs.4,60,000/- drawn on Sree Thyagaraja Co-op. Bank Ltd., J.P.Nagara I Phase Branch, Bengaluru. The signature of accused is marked at Ex.P1(a). Bank endorsement is marked at Ex.P.2 & 3. The office copy of legal notice is marked at Ex.P4. Postal receipt is marked at Ex.P5. Letter written to the post master at Ex.P6 and track consignment at Ex.P7. On perusal of Ex.P2 & 3- endorsements, wherein it, appears that the cheque at Ex.P1 presented by the complainant for encashment through his banker which was returned as "Refer to drawer/ not arranged for and Funds Insufficient".
10. Ordinarily in cheque bouncing cases, what the courts have to consider is whether the ingredients of the offence enumerated in Sec.138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Sec.139 of the Act.
11. In this regard I relied on a decision reported in AIR 2001 SC 3897, in the case of Hiten.P.Dalal vs Bratindranath Banerjee, wherein the Apex court observed that Sec.138 and 139 of the Act introduced SCH-09 8 C.C.4668/2019 exceptions to the general rule as to the burden of proof in the criminal cases and shifted the onus on the accused in the following manner:
"Because, both sections 138 and 139 require that the court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn. It is obligatory on the court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. Such a presumption is a presumption of law, as distinguished from a presumption of fact, which describes provisions by which the court "may presume"
a certain state of affairs. Presumption are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the presumption may be discharged with the help of presumption of law or fact unless the accused adduces evidence showing the reasonable possibility of the non- existence of the presumed fact.
12. In the light of these extracts, the presumption mandated by Section 139 of the Act does indeed include the existence of the legally enforceable debt or liability. In the present case, the accused did not plead and take any stand in respect of his defence.
SCH-09 9 C.C.4668/201913. It is settled position of law that, if the accused did not enter the witness box to adduce the rebuttal evidence or to produce any documents, then, an adverse inference can be drawn. In this regard I relied on a decisions reported in AIR 1999 SC 1341in the case of Eshwar Bai C. Patel V/s Narihar Behara and(1999) 3 SCC 573 in the case of Vidhydhar V/s. Manik Rao and Another, wherein, the Hon'ble Apex Court has observed that;
"When a person fails to enter into witness box to state his case on oath, the adverse inference can be drawn as per Sec.114 of Indian Evidence Act, against such person". "Evidence Act, 1872 - S.114 III (g) - Presumption - If a party abstains from entering the witness box, an adverse inference would arise against him. "Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set-up by him is not correct".
14. Though the case is posted for cross examination of PW1. Inspite of giving sufficient opportunities, neither counsel for the accused nor the accused having failed to cross examine PW1. Hence, Cross examination of PW1 is taken as nil. Since, the present complaint is summary trial in nature and thereby recording the statement of accused under SCH-09 10 C.C.4668/2019 Sec.313 of Cr.P.C. is dispensed with. Hence, defence evidence is taken as nil. After hearing arguments on merits from complainant the case is posted for judgment.
15. On perusal of averments made in the complaint and also documents produced by the complainant, it is clear that it is an admitted fact that even after issuance of legal notice by the complainant to the accused prior to filing of the said complaint, the accused has not given any reply to the notice. Therefore, prior to the filing of the said complaint the complainant had complied all the necessary ingredients under Sec.138 of NI Act. Though, the accused has appeared before this court through his counsel and enlarged on bail. He pleaded not guilty and claims to make defense and to substantiate his defense. He has not cross-examined PW1 inspite of giving sufficient opportunities and also failed to adduce his defense evidence and also failed to produce any iota of documentary evidence. Since, the evidence of PW1 is unchallenged.
16. On perusal of the Ex.P1 there is an ambiguity. Since, the complainant has proved this case by adducing cogent and corroborating evidence. The accused has failed to rebut the presumptions available to him and also failed to lead defense evidence. If really, he was not at all issued Ex.P1 cheque for SCH-09 11 C.C.4668/2019 discharge of consideration amount to the complainant, he ought to have taken necessary legal action against PW1 after issuance of legal notice to him by the complainant, he ought to have adduced his defense evidence or he ought to have cross examined PW1. Therefore, non-performing of the aforesaid legal proceedings, that, itself is very much fatal to the alleged defense setup by the accused during the course of recording of his accusation. There is no dispute that Ex.P1 cheque belongs to his own bank account. The signature found on Ex.P1(a) is of his own signature. There is no any ambiguity on perusal of Ex.P1. It can be presumed that the accused has issued the Ex.P1 cheque to the complainant with knowing fully well without having sufficient funds in his bank account with an intention to defeat the claim of complainant.
17. It can be presumed that no any ordinary prudent man will issue signed blank cheque to any other persons without having monetary transactions between themselves. As per Sec.73 of the Indian Evidence Act this court is having ample power with respect to compare the admitted signatures and disputed signatures. Therefore, on perusal of Ex.P1 therein signature of the accused is at Ex.P1(a). The accused had put his signature at the time of filing of the vakalath and the personal bond and also at the time of recording his accusation the signature found in are one and the SCH-09 12 C.C.4668/2019 same. It bears to the accused. Hence, the probability of the preponderance is higher on the side of the complainant rather than the accused.
18. Ordinarily offence Under Sec. 138 of NI Act mensrea is not essential, under Sec. 138 of NI Act, is bring into operation role of strict liability, where as mensrea is essential ingredients in criminal offences. Therefore, the complainant has proved this case against the accused since the offence Under Sec.138 of NI Act element of mensrea has been excluded in general public interest to curb the instances of dishonoring of cheques and to lend the credibility to the commercial transactions. Therefore, in this case also the accused knowing fully well he fails to discharge his legally recoverable debt under ExP.1 to the complainant. Therefore, the testimony of PW-1 inspires confidence to believe and to act upon. It is pertinent to note that the oral evidence of PW-1 and documentary evidence i.e., Exs.P.1 to P.7 are consistent, corroborative and supporting to each other and in accordance with the case of the complainant and which lead me to conclude that the case of the complainant is proved beyond all reasonable doubts against the accused for the charged offence p/u/Sec.138 of the Negotiable Instruments Act, 1881. Since, present complaint is summary trail and quasi criminal in nature. It is like recovery proceedings and punishment is fine on in default of it simple SCH-09 13 C.C.4668/2019 imprisonment. Therefore, I answered point No.1 in the affirmative.
Point No.2:
19. In view of my above discussions and findings on Points No's. 1, I proceed to pass the following:
ORDER Acting under Section 255[2] of Cr.P.C, the accused is hereby convicted for the offence Punishable U/s. 138 of the N.I. Act.
The accused shall pay fine of Rs.4,60,000/-. In default of payment of fine amount, the accused shall under go Simple Imprisonment for six months.
Entire fine amount so realized, the accused shall pay to the Complainant as compensation, as provided U/s.357 Cr.P.C. The cash security amount of Rs.5,000/- deposited by the accused is forfeited and remitted to the State. The bail bond of the accused is hereby stand cancelled.
Office is directed to furnish free copy of this Judgment to the accused.
(Dictated to the stenographer directly over computer, typed by her, corrected and then pronounced by me in the open court on this the 13th day of March 2020) (Abdul Khadar) Judge , Court of Small Causes, &XXVI ACMM, Bengaluru ANNEXURE List of Witnesses examined on behalf of complainant:
PW -1 : Srinivasa Gupta SCH-09 14 C.C.4668/2019 List of Documents marked on behalf of complainant:
Ex.P.1 : Cheque Ex.P.1(a) : Sig.of accused Ex.P.2 & 3 : Bank Endorsement, Ex.P.4 : Legal Notice, Ex.P.5 : Postal receipt Ex.P.6 : Letter written to post mater Ex.P.7 : Track consignment
List of Witnesses examined on behalf of accused:
-NIL-
List of documents marked on behalf of accused:
-NIL-
(Abdul Khadar) Judge , Court of Small Causes, & XXVI ACMM Bengaluru.