Bangalore District Court
Sri Ramesh. R vs Sri Satish Kumar N on 1 March, 2017
IN THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY
Dated this the 1st day of March, 2017
PRESENT: SMT. ISHRATH JAHAN ARA, B.A.L., L.L.B.,
XIX ADDL.C.M.M.BANGALORE.
Case No: CC No.840/2015
Complainant: Sri Ramesh. R,
S/o. Rangappa,
Aged about 31 years,
R/at #14, 2nd Cross, 1st Main Road,
Netaji layout, Vijayanagar 2nd Stage,
Bengaluru - 560 040.
Accused: Sri Satish Kumar N.
S/o. Nanda Gopal Major,
R/at #153, 11th Main Road,
Manjunatha Nagar,
Bengaluru -560 010.
Offence complained of: U/s.138 of N.I. Act
Plea of accused: Pleaded not guilty
Opinion of the Judge: Accused found guilty
Date of order: 1st March 2017
JUDGEMENT
The complainant has filed this complaint u/Sec..200 of Cr.P.C. against the accused for the offence punishable u/Sec. 138 of N.I. Act.
2. The brief facts of the complaint that;
The Complainant stated that the Complainant and accused are known to each other from last two years, having been introduced by one Sri Jagan, who is a Mechanic having his Scooter Garage at B.C.C. 2 C.C.No.840/2015 Layout, Vijayanagar, who is a childhood friend of this Complainant. The accused always used to visit the Garage of Sri Jagan and during one of his visits in August 2013 accused approached Sri Jagan for the hand loan of Rs.5,00,000/- by saying that he was in a financial mess, as Sri Jagan was unable to pay money to this accused, he brought this accused with this Complainant and requested him to help the accused. The Complainant informed the accused that he can arrange only Rs.3,00,000/- and accordingly, he advanced a sum of Rs.3,00,000/- to this accused as a loan on the request of Sri Jagan on 10.9.2013. The accused after receipt of loan amount, promised to repay the loan amount within a year and towards the repayment of the loan amount, had issued his post-dated cheque bearing No.467256 dtd.25.8.2014 for Rs.3,00,000/- drawn at HDFC Bank, payable at par with a request to present the said cheque for encashment on its due date and it will be honoured on its presentation.
3. It is further submitted that the Complainant on assurance of the accused, presented the said cheque before his banker State Bank of India, RPC Layout branch, Bengaluru for encashment on 27.8.2014 but the said cheque returned dishonoured with an endorsement "funds insufficient" on 30.8.2014 and the same was informed to this Accused.
3 C.C.No.840/2015
4. He further stated that as the Accused has failed to make payment of the cheque amount, the Complainant got issued the Legal Notice on 15.9.2014 through RPAD, calling upon the Accused to pay the cheque amount within 15 days from the date of receipt of notice and the same was duly served on the accused on 18.9.2014. The Accused in spite of receipt of the notice, has neither chosen to make payment of the cheque amount nor he has sent his reply by denying the transaction. The Accused knowing fully well that he has no sufficient funds in his bank account, had issued a bogus cheque with an intention to cheat this Complainant and thereby the Accused has committed an offence punishable u/Sec.138 of N.I. Act.
5. After recording of sworn statement of the complainant, the Private Complaint lodged by the complainant was registered as a Criminal Case, summons was issued as against the accused. The accused appeared through his Counsel and he was enlarged on bail. Plea of accusation was read over to the accused. The accused pleaded not guilty and claims to be tried.
6. The complainant himself got examined as PW1 and he got produced 5 documents marked as Ex.P1 to Ex.P5 and closed his side of evidence.
7. After closure of the complainant side evidence, accused Statement u/Sec.313 of Cr.P.C. recorded and read over to the accused. 4 C.C.No.840/2015 The accused denied the incriminating evidence in toto. The accused has not led any evidence from his side.
8. Arguments heard and perused the entire records.
9. The only point arise for my consideration is:
1. Whether the Complainant has proved the guilt of the accused u/s 138 of N.I. Act beyond all reasonable doubts?
2. What order?
10. My findings to the above point are as under:
Point No.1 : In the Affirmative
Point No.2 : As per final order
for the following:
REASONS:
11. Point No.1: The entire burden is on the complainant to prove his case and also to prove the above point. In order to prove the same, the complainant stepped into the witness box, got examined as PW-1 and he filed his affidavit in lieu of the oral evidence by reiterating the complaint averments.
12. PW1 deposed that the accused is known to him through his friend Sri Jagan, as this accused was visiting Sri Jagan to his Scooter Garage and during his visit in August 2013 accused approached Sri Jagan for the hand loan of Rs.5,00,000/- by saying that he was in a financial mess, as Sri Jagan was unable to pay money to this accused, he brought this accused to him and requested him to help the accused and he accordingly, he arranged a sum of Rs.3,00,000/- and advanced 5 C.C.No.840/2015 the same to this accused as a loan on the request of Sri Jagan on 10.9.2013. He deposed that the accused after receipt of loan amount, promised to repay the loan amount within a year and towards the repayment of the loan amount, had issued his post-dated cheque bearing No.467256 dtd.25.8.2014 for Rs.3,00,000/- drawn at HDFC Bank, payable at par with a request to present the said cheque for encashment on its due date and it will be honoured on its presentation.
13. He further deposed that on assurance of the accused, he presented the said cheque before his banker for encashment on 27.8.2014 but the said cheque returned dishonoured with an endorsement "funds insufficient" on 30.8.2014 and the same was informed to this Accused.
14. He further deposed that as the Accused has failed to make payment of the cheque amount, he got issued the Legal Notice on 15.9.2014 through RPAD, calling upon the Accused to pay the cheque amount and the same was duly served on the accused on 18.9.2014. He deposed that the Accused in spite of receipt of the notice, has neither chosen to make payment of the cheque amount nor he has sent his reply by denying the transaction. He deposed that the Accused knowing fully well that he has no sufficient funds in his bank account, had issued his bogus cheque with an intention to cheat him and thereby the Accused has committed an offence.
6 C.C.No.840/2015
15. PW1 in order to prove his case got produced the original cheque issued by this accused marked as Ex.P1. He deposed that the signature found on Ex.P1 is that of this accused and he got identified the signature found on the cheque marked as Ex.P1(a). He got produced the bank endorsement marked as Ex.P2. He got produced copy of the legal notice along with RPAD receipt marked as Ex.P3 and Ex.P3(a) respectively. He got produced the Postal Acknowledgement Due Card for having served the notice to the accused marked as Ex.P.4. He deposed that the accused after receipt of the loan amount, also executed a Loan Agreement in his favour by acknowledging the debt and also by agreeing to repay the loan amount and he got produced the said Loan Agreement marked as Ex.P.5.
16. The accused has denied the entire case of the Complainant and denied the very fact that he had borrowed the hand loan of Rs.3,00,000/- from this Complainant and he in order to repay the said loan amount, had issued his Ex.P1 Cheque and the same was bounced. The learned Counsel for the accused subjected PW1 for cross-examination and he extensively cross-examined PW1.
17. The PW1 in his cross-examination stated that he is working as a Car Purchasing and Selling broker getting income of Rs.4 to 5 lakhs per annum and out of the amount saved by him from his savings, he advanced a sum of Rs.3,00,000/- to this accused on his 7 C.C.No.840/2015 request in the presence of his friend Sri Jagan. PW1 further stated that he has no documents with him to prove that he had with a sum of Rs.3,00,000/- to advance the same in favour of this accused and he advanced the said amount to this accused on his request.
18. PW1 further stated that the Ex.P5 document was written by one Sri Abhishek as per the instructions of this accused. PW1 denied the suggestion that he has no financial capacity to advance the huge loan amount of Rs.3,00,000/- to this accused and even this accused has not borrowed any kind of loan much less a sum of Rs.3,00,000/- from him and he has not issued Ex.P1 cheque towards repayment of the loan amount. Though he admitted the suggestion that on Ex.P5 the scribe of the document has not put his signature. However, the accused has not chosen to deny his signature found on Ex.P5 document and even he did not chosen to deny the testimony of PW1 regarding execution of Ex.P5 document in his favour after receipt of loan amount of Rs.3,00,000/-. On the contrary, PW1 categorically deposed that the accused after receipt of the loan amount of Rs.3,00,000/- on the very same, in the presence of one Sri Jagan executed Ex.P5 document in his favour by acknowledging the debt. The contents of Ex.P5 document discloses that the accused on 10.9.2013 after receipt of the loan amount of Rs.3,00,000/- from this Complainant, had executed this document by acknowledging the debt 8 C.C.No.840/2015 of Rs.3,00,000/- and also stated that he issued his cheque bearing No.467256 drawn at HDFC Bank for a sum of Rs.3,00,000/- by disclosing the date on the cheque as '25.8.2014' and requested the Complainant to present the cheque and encash the cheque.
19. The accused except putting some suggestions to PW1 in his cross-examination that he has not executed Ex.P5 document, nothing has been elicited from his mouth to disbelieve his testimony and to discard the Ex.P5 document. PW1 stated that he is not remembered the denomination of the currency notes advanced by him to this accused as a loan and even he has not kept any record regarding the same.
20. PW1 stated that he without interest advanced the loan amount by way of cash to this accused on his request as this accused is close friend of his friend Sri Jagan. He further stated the accused issued his Ex.P1 cheque towards repayment of the loan amount.
21. The accused during the cross-examination of PW1 denied his liability to pay the cheque amount of Rs.3,00,000/-. PW1 denied the suggestion that he has not advanced any kind of loan to this accused. He further denied the suggestion that the accused has not issued his Ex.P1 cheque towards repayment of the loan amount. He denied the suggestion that he himself for his convenience, written all the contents of the cheque and presented the cheque for encashment even though the accused has not instructed him to present the cheque 9 C.C.No.840/2015 for encashment. He denied the suggestion that there was no any loan transaction in between him with this accused.
22. The accused except putting some suggestion to PW1 during his cross-examination that he is not liable to pay cheque amount, nothing has been elicited from his mouth to disbelieve his testimony or to discard his evidence. The accused has taken up the defence that he had a loan transaction with one Sri Jagan and towards the financial transaction he had given his duly signed blank cheque in favour of Sri Jagan and this Complainant colluding with Sri Jagan, misused his cheque and created the cheque as Ex.P1 for Rs.3,00,000/- even though there was no any loan transaction in-between him with this Complainant and even he has not issued his Ex.P1 cheque in favour of this Complainant towards repayment of the loan amount. Though the said defence was put to PW1 in his cross-examination, however PW1 in his cross-examination denied the entire suggestions put to him and denied that the accused had issued his Ex.P1 duly signed blank cheque in favour of Sri Jagan and he colluding with Sri Jagan, misused the said cheque and created the cheque for Rs.3,00,000/- and presented the cheque for encashment even though the accused was not liable to pay any kind of amount in his favour.
23. Even though the accused has denied the issuance of cheque towards repayment of the loan amount, however, the accused has not 10 C.C.No.840/2015 chosen to deny a fact that Ex.P1 is belong to him. The accused even admitted his signature found on Ex.P1 - Cheque marked as Ex.P.1(a). The accused even did not chosen to deny a fact that his Ex.P1 - cheque was bounced with a specific reason "funds insufficient". No doubt, the accused during the cross-examination of PW1 put a suggestion that he had issued a duly signed blank cheque in favour of Sri Jagan and his cheque was misused by this PW1 colluding with Sri Jagan and created the same as Ex.P1 for Rs.3,00,000/- and filed this false complaint. However, the defence of the accused was categorically denied by PW1 in his cross-examination.
24. However, the accused has not chosen to deny the documentary evidence adduced by the PW1 before this court marked as Ex.P.1 to Ex.P5. The accused has not chosen to deny a fact that immediately after the receipt of Ex.P2 bank endorsement, the Complainant got issued Ex.P3 notice. Though the accused has denied the fact that he personally received the notice issued as per Ex.P3. On the contrary, PW1 has categorically deposed that immediately after receipt of the Bank Endorsement marked as Ex.P.2, he has sent notice as per Ex.P3, calling upon the accused to pay the cheque amount and also by intimating the dishonour of the cheque and the same was duly served upon the accused as per Ex.P4. The accused during the cross- examination of PW1, has not chosen to deny the evidence of PW1 with 11 C.C.No.840/2015 respect to issuance of Ex.P3 notice nor he has chosen to deny the contents of Ex.P4 document. The accused during the cross- examination of PW1, has not put any suggestions to him either by denying the issuance of notice or about the service of notice.
25. Admittedly, the Ex.P4 document proves that the notice issued u/Sec.138(b) of N.I. Act was served on this accused and even after receipt of the Legal Notice, the accused neither chosen to make payment of the cheque amount nor he has sent his reply by denying the transaction. In such situation, an adverse inference has to be drawn against this accused that he after receipt of the Legal Notice, by admitting the contents of the notice and also by admitting his liability to pay the cheque amount, did not resisted the claim of the Complainant.
26. As I have discussed supra, the accused except denying the transaction and also by denying the issuance of cheque towards the repayment of the loan amount, has failed to convince the court what is impediment on him to send a reply to Ex.P3 - Notice immediately after receipt of the Ex.P3 - Notice. However, PW1 has deposed that the accused even after receipt of the Legal Notice as per Ex.P3, has neither chosen to make payment of the cheque amount nor he has sent his reply by denying the transaction and also by denying the contents of the notice.
12 C.C.No.840/2015
27. The oral and documentary evidence adduced before this court by the Complainant clearly proves that the accused even inspite of receipt of Legal Notice, has failed to make payment of the cheque amount. The PW1 by adducing oral and documentary evidence before this court, proved that the notice issued u/Sec.138 (b) of N.I. Act was served on this accused and even after completion of statutory period of limitation, the accused has failed to make payment of the cheque amount. Admittedly, the entire burden is on this accused to rebut the case of the Complainant and also to rebut the presumption available to this Complainant u/Sec.139 of N.I Act.
28. The accused in order to prove his defence and to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act, has not chosen to lead his evidence from his side. As I have discussed supra, even after receipt of Legal Notice as per Ex.P3, the accused has not even sent his reply by denying the contents of the notice. These facts clearly prove that the accused only for the sake of defence during the stage of trial, has taken up the false defence before this court that he had given his duly signed blank cheque in favour of one Sri Jagan and the same was misused by this Complainant colluding with Sri Jagan and created the same as Ex.P1 for Rs.3,00,000/-.
29. As I have discussed supra, the accused except taking the defence during the cross-examination of PW1, has not chosen to prove 13 C.C.No.840/2015 his defence by adducing evidence before this court. As I have discussed supra, PW1 in his cross-examination categorically denied the entire suggestions put to him and denied that the accused is not liable to pay the cheque amount. The accused has utterly failed to prove his defence by adducing cogent and convincing evidence before this court. The accused has utterly failed to rebut the presumption available to this available to the Complainant u/Sec.139 of N.I. Act
30. The entire burden is on this accused to prove that his duly signed cheque was misused by this Complainant and created the same as Ex.P1 for Rs.3,00,000/-. The accused has utterly failed to prove his defence to the satisfaction of the court by adducing cogent and convincing evidence before this court.
31. The accused has utterly failed to prove that he had given his duly signed blank cheque in favour of one Sri Jagan and this Complainant colluding with Sri Jagan, misused his duly signed blank cheque and created the same as Ex.P1 for Rs.3,00,000/-. In such situation, the defence taken by the accused during the course of trial, cannot be believable and acceptable. Likewise, the Accused has utterly failed to rebut the presumption available to this Complainant u/Sec.118 and also u/Sec.139 of N.I. Act it reads thus respectively.
32. As per the provisions of Sec.118, which reads thus:
a. Of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, 14 C.C.No.840/2015 indorsed, negotiated or transferred for consideration;
b. As to date - that every negotiable instrument bearing a date was made or drawn on such date; c. As to time of acceptance - that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
d. As to time of transfer - that every transfer of a negotiable instrument was made before its maturity;
e. As to order of endorsements - that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
f. As to stamps - that a lost promissory note, bill of exchange or cheque was duly stamped; g. That holder is a holder in due course - that the holder of a negotiable instrument is a holder in due course;
33. Likewise, the accused also failed to rebut the presumption available to this Complainant u/s.139 of N.I. Act which reads:
It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
34. The learned Counsel for the Complainant has vehemently argued that the Complainant before filing of this complaint, has followed all the procedures prescribed u/Sec.138 of N.I. Act and this Accused even after receipt of the Legal Notice, has neither chosen to make payment of the cheque amount nor he has sent his reply by denying the transaction and therefore, by drawing an adverse 15 C.C.No.840/2015 inference against this Accused, the Accused has to be convicted in accordance with law, is fully convinced this court. He has arguments that the notice issued as per Ex.P3 was duly served on this accused and even after receipt of Legal Notice, the accused neither chosen to make payment of the cheque amount nor he has sent his reply by denying the contents of the notice. His arguments is fully convinced this court. Likewise, his arguments that the accused only with an intention to ran away from his liability to make payment of the cheque amount, has taken up the false defence during the cross- examination of PW1 that he had issued his Ex.P1 duly signed blank cheque in favour of one Sri Jagan and subsequently, the Complainant colluding with Sri Jagan, misused his duly signed blank cheque, created the same as Ex.P1 and filed this false complaint. The arguments canvassed by the learned Counsel for the Complainant, is fully convinced this court.
35. The complainant by adducing oral and documentary evidence before this court, has proved the guilt of the accused beyond all reasonable doubt. There is no whatsoever doubt in the mind of court about the case of the complainant. The oral and documentary evidence adduced before this court by the complainant, is fully corroborating with each other and convinced this court about his case. The complainant by adducing oral and documentary evidence before this court bring home the guilt of the accused beyond all reasonable 16 C.C.No.840/2015 doubt. Therefore, by taking into consideration the facts and circumstances and evidence available on record, I answer this Point No.1 in affirmative.
36. Point No.2. In view of my findings on the above point and the reasons stated therein, I proceed to pass the following:
ORDER Acting u/Sec.255 (2) of Cr.P.C., the accused is hereby convicted for the offence punishable u/Sec.138 of N.I. Act.
The accused is sentenced to pay a fine of Rs.3,55,000/- (Rupees Three Lakhs and Fifty-five Thousand only). In any default to pay fine amount shall undergo simple imprisonment for 6 months.
Out of fine amount recovered under Section 357 of Cr.P.C., a sum of Rs.3,50,000/- (Rupees Three Lakhs and Fifty Thousand only) shall be paid to the complainant which includes the cheque amount and also cost of the proceedings. Remaining fine amount of Rs.5,000/- shall be forfeited to State.
The bail bond and surety bond of the accused stands cancelled.
Office to furnish free copy of the judgement to the accused forthwith.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified and then pronounced by me in the Open Court on this the 1st day of March 2017) (ISHRATH JAHAN ARA) XIX ADDL.C.M.M., Bengaluru.
17 C.C.No.840/2015ANNEXURE:
Witnesses examined on behalf of the Complainant:
PW.1 Mr. Ramesh R. Witnesses examined on behalf of the Accused: Nil Documents marked 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 Copy of the legal notice
Ex.P.3(a) RPAD Receipt
Ex.P.4 Postal Acknowledgement Due Card
Ex.P.5 Loan Agreement
Documents marked on behalf of the Accused:
Nil
XIX ACMM, B'lore.