Bangalore District Court
Chinnappa S vs M/S.Jatti Automobiles on 3 February, 2015
IN THE COURT OF THE XII ADDL. CHIEF
METROPOLITAN MAGISTRATE, AT BENGALURU
Dated this the 3rd day of February 2015.
Present: Sri. K.M.Radhakrishna, B.A., LL.B.,
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No.9468/2012
Complainant: Chinnappa S,
S/o. Late Shamanna,
Aged about 82 years,
R/at No.11/1, Ravi Krupa,
3rd Cross, K.N.Extension,
Yeshwanthapura, Bengaluru-22.
(By Sri.Ramesh Babu, Adv.)
- Vs -
Accused: M/s.Jatti Automobiles,
No.51, Pattandur Agrahara,
Outer Circle, Whitefield,
Bengaluru-66.
Rep. by its Proprietor D.B.Jatti.
(By Sri.Nagendra Prasad B.M.,
Adv.)
******
JUDGMENT
This is a complaint under Sec.200 of Cr.PC against the accused for the offence punishable under Sec.138 of the Negotiable Instruments Act.
2 CC No.9468/20122. The facts of the complaint in brief are that, the accused is known to the complainant. The accused is the proprietor of M/s.Jatti Automobiles. On the offer of the accused to pay the interest @ 18.33% p.a., the complainant has deposited a sum of Rs.2,50,000/- with him. The accused has paid the interest on the deposited amount till January 2009 and failed to pay the interest thereafter. When the complainant has demanded for payment of the accrued interest and principal amount, the accused has issued a cheque bearing No.538888 dated 15.11.2011 for Rs.2,50,000/- drawn on Bank of Baroda, Palace Orchards Branch, Bengaluru in favour of the complainant to repay the amount. As per the assurance of the accused, the complainant has presented the cheque to the bank for encashment. It was returned dishonoured with a shara "opening balance insufficient" dated 17.11.2011. Thereafter, the complainant has served the legal notice dated 24.11.2011 to the accused on 25.11.2011. On receipt of the demand notice, the accused failed to pay the cheque amount and has committed an offence punishable u/s 138 of the Negotiable Instruments Act.
3. Wherefore, it is prayed to punish the accused in accordance with law and impose the fine under Sec.357 of Cr.PC to meet the ends of justice.
4. After taking cognizance and registration of the case, process were ordered against the accused. On receipt of the same, the accused has put his appearance through an Advocate and got enlarged on bail. The accusation was recorded against the accused and read over in the language known to him. He pleaded not guilty and claims to be tried.
3 CC No.9468/20125. To prove the case, the complainant has been examined as PW.1 and got marked documents as Ex.P.1 to Ex.P.16. After the evidence, the statement under Sec.313 of Cr.PC is 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.7.
6. Heard arguments.
7. Points for consideration are;
1. Whether the accused proves that, the cheque in question (Ex.P.1) was not issued by him in favour of the complainant towards the discharge of legally enforceable debt ?
2. Whether the complainant proves that, the accused has committed the offence punishable under Sec.138 of the Negotiable Instruments Act ?
3. What order ?
8. My answer to the above points are;
Point No.1 : As per the observations,
Point No.2 : Negative,
Point No.3 : As per the final order for the
following;
REASONS
9. POINT NOS.1 & 2: In the examination-in-chief, PW.1
has reiterated the complaint averments. The cheque Ex.P.1 for Rs.2,50,000/- is the subject matter of this case. To establish the 4 CC No.9468/2012 compliance of Sec.138 (a) to (c) of the Negotiable Instruments Act, PW.1 has produced the bank endorsement Ex.P.2, the legal notice Ex.P.3 and the postal acknowledgement Ex.P.5 contending that, the accused failed to pay the cheque amount even after service of demand notice on the dishonour of the cheque with a shara "opening balance insufficient/account is inoperative".
10. The admitted facts in this case are that, the accused is the businessman and the proprietor of M/s.Jatti Automobiles, M/s.Jatti Engineering India Pvt. Ltd., M/s.Jatti Motors, M/s.Jatti Ranch, M/s.Jatti Project Inc., M/s.Jatti Foundation etc. As per the letter of the accused Ex.D.3 dated 15.7.2009 with it's annexure Ex.P.8 and the cross-examination of DW.1, the complainant, his son C.Prasanna Kumar, daughter C.Gayathri Devi, daughter-in-law R.Anitha, son-in-law M.Narayanaswamy and others have deposited a total sum of Rs.36,50,000/- with the accused during the period from 2005 to 2008. It is also not in dispute that, the accused has issued number of cheques and receipts to the complainant and his family members on such deposits. The cash receipts Ex.P.9 to Ex.P.14 are evident for it. The accused has paid total interest of Rs.18,41,118/- till the end of January 2009 to the complainant and his family members on such deposits as could be seen in the letter Ex.D.3 dated 15.7.2009.
11. In the case on hand, the deposit of the amount of Rs.2,50,000/- in question under receipt Ex.P.11 dated 27.10.2005 is not disputed by the accused. PW.1 contends that, it was deposited on the assurance of the accused to pay interest at 18.33% p.a. and asserts the payment of interest at the said 5 CC No.9468/2012 rate till January 2009. Here, admittedly there was no written agreement with regard to the payment of interest. But the payment of Rs.18,41,118/- as interest by the accused as referred above to the complainant and his family members is a substantial piece of evidence to believe that, the accused was paying interest at the rate of 18.33% p.a. Therefore, there are no reasons to believe the denial of the accused with regard to interest.
12. PW.1 asserts the failure of the accused to pay interest after January 2009 and issuance of the cheque Ex.P.1 by him in the year 2011 to return the principal amount under the deposit. Here, it is expedient to indicate that, as the instant case and the case in C.C.No.9471/12 filed by the complainant, his family members i.e., son, daughter-in-law, daughter and son-in-law respectively have filed similar cases against the accused on the file of this Court (all cases are reserved for judgment) as hereunder:
C.Prasanna Kumar C.C.No.9467/12 & Rs.5,00,000/- & C.C.No.9469/12 Rs.2,50,000/-
R.Anitha C.C.No.9470/12 Rs.2,50,000/-
C.Gayathri Devi C.C.No.16149/12 Rs.3,00,000/-
M.Narayanaswamy C.C.No.16150/12 Rs.3,00,000/-
13. The complainant herein states that, the amount of Rs.36,50,000/- was deposited by him and his family members with the accused out of the compensation paid by BDA in relation to the acquisition of their land. This is not in specific dispute. The receipt of deposits by the accused without questioning the source is quite evident. Therefore, DW.1 has no reason to question the source and capacity of the complainant.
In view of the above admitted facts and in the light of the 6 CC No.9468/2012 discussion in the foregoing paragraphs, the defence raised by DW.1 as if the amount in question is unaccounted and undisclosed etc. does not survive for consideration. The accused has relied on the following authorities in support of his defence. (2014) Supreme (SC) 53053 - Ramdas Vs Krishnanand.
Held - the complainant being an employee of the accused having annual savings of Rs.10,000/- claiming to have given loan of Rs.5,00,000/- to the accused failed to explain the source of fund - Claim not sustainable."
2009 Cri.L.J. 3777 (Bombay) - Sanjay Mishra Vs Ms. Kanishka Kapoor @ Nikki and another.
Held - Sec.138 and 139 of N.I.Act - Cheque dishonoured - the complainant failed to disclose huge amount allegedly advanced in the I.T. return or books of accounts is sufficient to rebut the presumption.
Also referred:
• 1998 Cri.L.J.906 (AP) - A.Bhoosanrao Vs Purushothamdas Pantani and another.
Based on the above observations and admitted facts, the principles in the aforesaid authorities cannot be made applicable to the present facts of the case.
14. The specific defence of the accused in this case is that, no demand notice on the dishonour of the cheque was served on him. He has issued a signed blank undated cheque in the year 2006 as found in the xerox copy thereof at Ex.D.2 to the complainant as a security to the amount deposited. There is no existing legal liability on his part to discharge as if he has paid 7 CC No.9468/2012 Rs.5,00,000/- (+) Rs.7,50,000/- as per the receipt Ex.D.1 dated 10.3.2010 and Ex.D.4 dated 13.2.2011 vide cheque bearing No.210058 and cash respectively to the complainant towards the claim in C.C.No.9471/12 and the case on hand. In fact, PW.1 has admitted his signatures in the cash receipts at Ex.D.1 and Ex.D.4. According to him, the amount received by him under Ex.D.1 and Ex.D.4 is pertaining to the different transaction and not towards the claim in these two cases. To substantiate it, he has produced the official receipts Ex.P.15 dated 18.5.2005 and Ex.P.16 dated 30.11.2007 admittedly issued by the accused for having received the deposits of Rs.2,50,000/- and Rs.5,00,000/-
respectively. From the above facts, it is clear that, after the accused has sent the letter Ex.D.3 dated 15.7.2009 requesting the complainant and his family members not to present the security cheques for encashment assuring them to clear their amount, he has paid a total amount of Rs.12,50,000/- to the complainant under Ex.D.1 and Ex.D.4.
15. Here, the amount deposited by the complainant under Ex.P.15 and Ex.P.16 and C.C.No.9471/12 with the accused is Rs.13,00,000/-. The amount paid by the accused under Ex.D.1 and Ex.D.4 is Rs.12,50,000/-. Individually, the complainant has deposited Rs.17,00,000/- as per Ex.P.8 with the accused. Therefore and in the absence of the evidence from the complainant's side, it has to be inferred that, the amount paid by the accused under Ex.D.1 dated 10.3.2010 and Ex.D.4 dated 13.2.2011 to the complainant is not only towards the claim under the cheques in C.C.No.9471/12 and the case on hand, but also in excess thereof. From these facts, it appears that, Rs.4,50,000/- is due to the complainant, which is less than the 8 CC No.9468/2012 amount written on the cheques in both the cases. Under these circumstances, it can be safely held that, the liability of the accused pertaining to the amount under the disputed cheque stands discharged. Thus, non-existing of the liability under the cheques in dispute in both the cases is obvious. Here, it is relevant to note the authority of the Hon'ble Supreme Court relied on by the accused in Crl.A.No.518/2006 in the case of Krishna Janardhan Bhat Vs Dattatreya G Hegde. Also referred ILR 2009 Kar. 172 in the case of A.Vishwanath Pai Vs Vivekananda S Bhat.
16. Ex.P.5 is the postal acknowledgement under which PW.1 claims to have served the legal notice Ex.P.3 to the accused. Wherein, the office address of Jatti Automobiles is shown at No.51, Pattandoor Agrahara, Bengaluru-66. The accused denies his office at the said address stating that, it is at No.225, Bellary Road, Bengaluru. In contra, DW.1 has admitted in the cross-examination that, the office address of his automobile is shown at No.51, Pattandoor Agrahara, Bengaluru-66 in the criminal petition No.2422/12 filed by him and Civil Misc. No.187/13 on the file of the Hon'ble High Court. This admission and documentary evidence itself is sufficient to accept the arguments of the counsel for the complainant that, the accused is in the habit of showing his automobile office in both the addresses to his convenient. Admittedly, the M/s.Jatti Engineering India Pvt. Ltd., is at the address found at Ex.P.5. DW.1 describes it as a construction site. It is true that, Ex.P.5 does not bear the signature of the accused. On this ground, he is disputing the service of notice. But the counsel for the complainant contends that, the demand notice was received by the office of the accused on his behalf in the given address. As 9 CC No.9468/2012 already cited above, the accused is the proprietor of number of firms and carrying his business with the help of his assistants and managers. Therefore, his continuous presence in the given address and service of notice personally to him cannot always be expected as rightly pointed out. Even for the sake of discussion, if the contention of the accused that, the office of his automobile is believed to be at No.225, Bellary Road, Bengaluru, the given address in Ex.P.5 is the address of M/s.Jatti Engineering India Pvt. Ltd., belongs to him. It is not his defence that, none of his assistants or managers have received the demand notice on his behalf. Therefore, it has to be inferred that, the signature found at Ex.P.5 should have been the signature of his concerned assistant as rightly pointed out by the complainant's counsel. Even otherwise, the principles laid down in the authority 2012 (4) AIR Kar.R 119 in the case of Prakash @ Gnanaprakash Vs T.S.Susheela relied on by the complainant that, "Dishonour of cheque under Sec.138 - The purpose of sending the notice by registered post is to give an opportunity to the drawer to pay the cheque amount within 15 days of the service of notice and thereby free himself from penal consequences. Likewise, it is open for the accused to make payment within 15 days from the date of receipt of summons from the Court and resolve himself of any criminal liability."
are sufficient to ruled out the contention of the accused with regard to non-service of notice. Therefore, I hold that, the notice was duly served to the accused.
17. So far, the issuance of the signed blank undated cheque in the year 2006 as contended by the accused is contradicted by him in the form of producing the xerox copy thereof at Ex.D.2, 10 CC No.9468/2012 which indicates the payee name, amount details with signature written on the cheque except the date column leaving blank. If really, he had issued a signed blank cheque, the contents of the cheque Ex.P.1 would not have been found in the xerox copy at Ex.D.2. It is quite sufficient to ruled out the contention of DW.1 as such. Thus, it is obvious that, the accused has given a filled up undated cheque to the complainant at the time of receiving the deposit in the year 2005 under Ex.P.11 dated 27.10.2005. The admission of the complainant herein during the cross- examination dated 22.1.2015 that, "he used to deposit the amount with the accused and was taking receipt along with undated security cheque against each deposit" is sufficient to say that, the cheque Ex.P.1 was issued in the year 2005.
18. Arguing on merits, the counsel for the complainant has contended that, since the accused while giving a filled up undated cheque has given an implied authority to the complainant to fill the date column at his choice and it has to be deemed that, the cheque has been issued by the accused with effect from 15.11.2011 filled up by the complainant thereon as enumerated under Sec.20 of the Negotiable Instruments Act. This contention has been opposed by the accused stating that, the date on which, the undated cheque was given by him is to be deemed to have been issued in the year 2007. Here, I find no reason to go with the contention of the accused. Because, the intention of the accused in giving filled up undated cheque itself not only indicates the security for the amount deposited, but also prima facie authority to the complainant to make use of it by filling the date so as to get refund the amount by way of encashment on the due date at the option of the complainant.
11 CC No.9468/2012Therefore, the contention of DW.1 that, the cheque was given for security purpose is not a ground to take the defence as such.
19. The defence counsel has argued that, the complainant cannot use the undated cheque as a threat against the accused as it was given for security purpose. Also relied on the authority 1995 Cri.L.J.560 (AP) in the case of Taher N Khambati Vs M/s.Vinayak Enterprises, Secunderabad and others.
"Held - obtaining of signed blank cheque by the creditor from the debtors at the time of advancing certain sum with a view to make use of it as a threat for realisation of the amount cannot be said to be issued voluntarily for discharge of debt or legal liability."
For my above observations in the light of the factual circumstances, I hold with due respect that, the aforesaid principles are not applicable to the present facts of the case.
20. No doubt, PW.1 has relied on the authority 1 (2010) BC 362 (Kar.) in the case of Kuthar Ahammed Bhava Vs S.K.District Co-operative Fish Marketing Federation Ltd., asserting the liability of the accused under the cheque Ex.P.1 to discharge. The principles held therein are:
"Issuance of the cheque towards payment of debt - once the debt or liability is proved, then the presumption has to raise that, it was issued towards the payment of debt or liability."
Since the liability under the cheque in question has been stands discharged by the accused for the reasons stated at para No.15 of this judgment, the aforesaid principles cannot be made 12 CC No.9468/2012 applicable to the case of the complainant. Thus, I find no hesitation to hold that, the complainant is not entitled for the presumption under Sec.139 of the Negotiable Instruments Act as it stands rebutted by the accused by discharging the liability under Ex.D.1 and Ex.D.4. Hence, I am inclined to hold that, no offence under Sec.138 of the Negotiable Instruments Act is made out against the accused. With this conclusion, I answer point No.1 accordingly and point No.2 in the negative.
21. Point No.3: In view of my findings on Point Nos.1 & 2, I pass the following;
ORDER
Acting under Sec.255(1) of Cr.PC, the
accused D.B.Jatti S/o. Basappa Danappa Jatti is acquitted for the offence punishable under Sec.138 of the Negotiable Instruments Act.
The bail bonds of the accused shall stands cancelled forthwith.
(Dictated to the Stenographer on computer, print out taken by her is verified, corrected and then pronounced by me in the open Court on this the 3rd day of February 2015).
(K.M.Radhakrishna) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
13 CC No.9468/2012ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 Chinnappa S 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 Copy of the legal notice issued to the accused. Ex.P.4 Postal receipt. Ex.P.5 Postal acknowledgement. Ex.P.6 Complaint. Ex.P.7 Receipt in respect of Jatti Projects Inc. Ex.P.8 Annexure. Ex.P.9 Official receipt dated 27.10.2005. Ex.P.10 Another Official receipt dated 27.10.2005. Ex.P.11 Another Official receipt dated 27.10.2005. Ex.P.12 Official receipt dated 4.5.2006. Ex.P.13 Official receipt dated 18.12.2006. Ex.P.14 Official receipt dated 30.11.2007. Ex.P.15 Official receipt dated 18.5.2005. Ex.P.16 Official receipt dated 30.11.2007.
List of witnesses examined on behalf of the accused :
DW.1 Danappa Basappa Jatti List of documents exhibited on behalf of the accused :
Ex.D.1 Cheque payment voucher dated 10.3.2010. Ex.D.2 Copy of the Signed blank undated cheque.
Ex.D.3 Letter dated 15.7.2009 Ex.D.4 Cash payment Voucher dated 13.2.2011. Ex.D.4(a) Signature of the complainant. Ex.D.5 Copy of the complaint dated 4.6.2012. Ex.D.6 NCR. Ex.D.7 Mahazar.
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.