Bangalore District Court
Sri. Ramesh B. Gowda vs Sri. Rohit Sipani on 3 May, 2016
IN THE COURT OF THE XIX ADDL.CHIEF
METROPOLITAN MAGISTRATE AT BANGALORE CITY
Dated this the 3rd day of May, 2016
PRESENT: SMT. ISHRATH JAHAN ARA, B.A.L., L.L.B.,
XIX ADDL.C.M.M.BANGALORE.
Case No: CC No.9021/2012
Complainant: Sri. Ramesh B. Gowda
S/o. Sri. Bomme Gowda,
Aged about 35 years,
R/at No.325/1, 14th Main,
5th Cross, RMV Extension,
Sadashiva Nagar,
Bangalore -560 080.
Accused: Sri. Rohit Sipani
Major,
Proprietor,
Sipani Timbers,
K.M. Road, Parvathipura,
Chickmagalore.
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: 3rd May 2016
JUDGMENT
The complainant has filed this complaint U/s.200 of Cr.P.C. against the accused for the offence punishable U/s. 138 of N.I. Act.
2. The brief facts of the complaint that;
The Complainant stated that the Accused did business with this Complainant between the period from 23.10.2008 to 11.12.2008 2 C.C. 9021/2012 pertaining to the transaction in sale of Silver Oak Tree logs and the said transaction taken place between the Complainant and Accused. The Complainant supplied 83 loads of Silver Oak Tree Logs to the Accused on the orders placed by this Accused. On the last date of the said transaction, there subsisted an amount of Rs.50,00,000/- which becomes due and liable to be paid by this Accused to the Complainant for having purchased the said logs from the Complainant. Having regards settlement arrived in respect of the account and amount liable to be paid by this Accused, the Accused towards part payment of the sale price amount, had issued a cheque bearing No.259281, dtd. 1.12.2008 for Rs.10,00,000/- drawn on ING Vysya Bank Ltd., Chickmagalur Branch in favour of this Complainant, with an assurance that on presentation, the cheque will be honoured.
3. It is further submitted by the Complainant that he by believing the words of this Accused, presented the said cheque for encashment before his banker for encashment but the said cheque returned dishonoured with an endorsement "funds insufficient" on 27.2.2009 and the same was informed to this Accused. As the Accused has failed to repay the loan amount, the Complainant got issued the Legal Notice on 25.3.2009 through his advocate by RPAD and UCP calling upon the Accused to make payment of the cheque amount 3 C.C. 9021/2012 within 15 days from the date of receipt of notice and the said notice was duly served upon this Accused. The Accused even inspite of receipt of Legal Notice, failed to make payment of the cheque amount but he has sent false 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, only with an intention to cheat this Complainant and thereby the Accused has committed an offence punishable u/Sec.138 of N.I. Act.
4. 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.
5. P.A. Holder of the complainant based on the Power of Attorney, got examined as PW1 and he got produced 8 documents marked as Ex.P1 to Ex.P8 and closed his side of evidence.
6. After closure of the complainant side evidence, accused Statement u/Sec.313 Cr.P.C. recorded and read over to the Accused. The accused denied the incriminating evidence in toto and he 4 C.C. 9021/2012 intended to lead his evidence. The Accused got himself examined as DW1 and he got examined two witnesses from his side as DW2 and DW3 and got produced 4 documents marked as Ex.D1 to Ex.D4. DW3 got produced one document from his side and the same is marked as Ex.D.5 and closed his side of evidence.
7. I have heard the arguments on the both sides and perused the entire records.
8. The only point arises for my consideration is:
1. Whether the Complainant has proved the guilt of the accused u/s 138 of NI Act beyond all reasonable doubts?
2. What order?
9. 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:
10. 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 P.A. Holder of the Complainant stepped into the witness box based on the Power of Attorney and got examined as PW1. PW1 5 C.C. 9021/2012 filed his affidavit in lieu of oral evidence by reiterating the complaint averments.
11. The PW1 deposed that the Accused did business with this Complainant between the period from 23.10.2008 to 11.12.2008 pertaining to the transaction in sale of Silver Oak Tree Logs. He deposed that the Complainant supplied 83 loads of Silver Oak Tree Logs to the Accused on the orders placed by this Accused and on the last date of the said transaction, there subsisted an amount of Rs.50,00,000/- which becomes due and liable to be paid by this Accused to the Complainant for having purchased the said logs from the Complainant. He deposed that having regards settlement arrived in respect of the account and amount liable to be paid by this Accused, the Accused towards part payment of the sale price amount, had issued a cheque bearing No.259281, dtd.1.12.2008 for Rs.10,00,000/- drawn on ING Vysya Bank Ltd., Chickmagalur Branch in favour of this Complainant, with an assurance that on presentation, the cheque will be honoured.
12. He further deposed that the Complainant by believing the words of this Accused, presented the said cheque for encashment before his banker but the said cheque returned dishonoured with an 6 C.C. 9021/2012 endorsement "funds insufficient" on 27.2.2009 and the same was informed to this Accused. He deposed that as the Accused has failed to repay the loan amount, the Complainant got issued the Legal Notice on 25.3.2009 through his advocate by RPAD and UCP calling upon the Accused to make payment of the cheque amount within 15 days from the date of receipt of notice and the said notice was duly served upon this Accused. He deposed that the Accused even inspite of receipt of Legal Notice, failed to make payment of the cheque amount but he has sent false 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 a bogus cheque, only with an intention to cheat the Complainant and thereby the Accused has committed an offence.
13. PW1 in order to prove his case got produced the Power of Attorney executed by the Complainant in his favour to prosecute this case marked as Ex.P.1. He got produced the original cheque issued by this Accused in favour of the Complainant marked as Ex.P2. He deposed that the signature found on Ex.P2 is that of this Accused and he got identified the signature found on the cheque marked as Ex.P2(a). He got produced the bank endorsement marked as Ex.P3. He got produced copy of the legal notice along with two RPAD 7 C.C. 9021/2012 receipts marked as Ex.P.4, Ex.4(a) and Ex.P.4(b) respectively. He got produced two Postal Acknowledgement Due Cards for having served the notice to this Accused marked as Ex.P.5 & Ex.P.6. He got produced the Certificate of Posting receipt marked as Ex.P.7 and he got produced reply notice issued by this Accused marked as Ex.P.8.
14. The Accused has denied the entire case of the Complainant and denied the very fact that he had purchased Silver Oak tree logs from the Complainant and he was due to the Complainant amounting to Rs.50,00,000/- and towards part payment of the sale price amount, he had issued his Ex.P.1 for Rs.10,00,000/- and the same was bounced. The Learned Counsel for the Accused subjected PW1 for cross-examination and he extensively cross-examined the PW1.
15. PW1 in his cross-examination stated that in his presence the sale transaction was took place in-between the Complainant and this accused and therefore, he has got the personal knowledge about the transaction and also about the issuance of cheque by this accused towards the part payment of the purchase of the Silver Oak Tree logs. He deposed that this Complainant is having 76 Acres of Coffee Estate and he is one of the employee to the Complainant in his estate. He further stated that he is personally managing the estate business of this Complainant. He has categorically stated that as this Complainant is 8 C.C. 9021/2012 presently not residing at Bangalore City, he had executed a Power of Attorney in his favour to prosecute the case on his behalf, as he got the personal knowledge about the transaction. PW1 stated that the Complainant sold Silver Oak timber logs in between September 2008 to November 2008 to this accused amounting to Rs.50,00,000/-.
16. He has stated that there was no written Agreement in between this Complainant and this accused with respect to sale and purchase of the timber. He has stated that he has not produced any documents before this court to prove that when exactly they sold the Silver Oak Timber to this accused and how many loads timber was sold to this accused and for each load what is the amount fixed by the parties and even he has not produced the documents to prove that exactly how much amount was due by this accused towards the purchase of the timber. PW1 has categorically stated that as this accused was purchased timber worth of Rs.50,00,000/- and he in order to make part-payment of the purchased timber amount, had issued his Ex.P2 cheque for a sum of Rs.10,00,000/- and the same was dishonoured on its presentation for encashment. He has categorically admitted that he has not produced any documents before this court to prove that this accused had issued his Ex.P2 cheque towards the part- payment of the sale price amount of the timber.
9 C.C. 9021/2012
17. He admitted that in Trip Sheet it has been clearly disclosed exactly how much of load of timber was sold to this accused and measurement of each log along with its weight. He has stated that from the estate of this accused in between the period from 11.8.2008 to 23.10.2008 they have sold the timber only to this accused and except this accused there was no any sale transaction with any other person. He has admitted the suggestion that one Sri. Chandrashekar was the writer of his estate and even admitted that one Sri. Vincent Lobo was also a timber merchant. He has categorically denied the suggestion that there was no any sale transaction of Silver Oak Timber Logs in- between this Complainant and the accused in between the period from 23.10.2008 to 11.8.2008 and this accused has not at all purchased any silver oak timber from the estate of this Complainant and as such this accused is not liable to pay any kind of amount to this Complainant.
18. The accused has taken up the specific defence that he had purchased the Silver Oak Timber Logs from one Sri. Vincent Lobo who in turn purchased the said logs from this Complainant and he for the security of the sale price amount of the Silver Oak Timber Logs had issued his duly signed Ex.P2 blank cheque in favour of Sri. Vincent Lobo and the said Sri. Vincent Lobo in turn colluding with this Complainant, misused his cheque for their convenience and created 10 C.C. 9021/2012 the same for Rs.10,00,000/- and presented the same before the banker of this Complainant for encashment, even though this accused was not liable to pay any kind of amount to this Complainant. The said defence was put to PW1 during his cross-examination, wherein the PW1 in his cross-examination denied the entire suggestions put to him and denied that this accused is not personally liable to pay any kind of amount in favour of this Complainant and even denied the suggestion that the accused towards the purchase of the Silver Oak Timber Logs, had not issued Ex.P2 cheque for part-payment of the sale price amount and as such the accused is not liable to pay cheque amount disclosed in Ex.P2.
19. However, PW1 has stated that the Accused himself had issued a duly filled-up his cheque in his favour of the Complainant towards the part-payment of the sale price amount.
20. The PW1 categorically denied the suggestion that this Accused has not directly purchased the silver oak timber logs from the Complainant's estate from this Complainant and even he has not issued Ex.P.2 cheque towards the part-payment of the sale price amount. PW1 has categorically denied the suggestion that the Accused is not liable to pay the cheque amount and even this Accused has not issued Ex.P.2 cheque towards part-payment of the sale price amount. 11 C.C. 9021/2012
21. The Accused except putting some suggestions to PW1 that he is not liable to pay the cheque amount and he has given his duly signed blank cheque in favour of one Sri. Vincent Lobo as a security towards the purchase of the silver oak timber logs from Sri. Vincent Lobo who in turn purchased the said timber from the Complainant. The said defence was categorically denied by PW1. The accused during the cross-examination of PW1 except putting some suggestions to PW1, which has been categorically denied by PW1, nothing has been elicited from mouth of PW1 to disbelieve his testimony and to discard his evidence. The accused has categorically admitted the fact that from the estate of the Complainant 82 loads of silver oak timber was supplied to his Sawmill and through his Lorries he got shifted the 82 load of silver oak timber from the estate of this accused to his sawmill. No doubt, the accused has stated that he shifted the 82 loads of silver oak timber logs from the estate of this Complainant after he purchased the same from one Sri. Vincent Lobo, who in turn purchased the said logs from the Complainant. This fact was categorically denied by PW1 in his cross-examination and denied that this accused is not directly liable to pay purchase sale price amount of silver oak timber logs.
12 C.C. 9021/2012
22. Though the Accused has denied the issuance of cheque in favour of PW1 towards part-payment of the sale price amount, but he did not chosen to deny a fact that Ex.P.2 cheque is belong to him.
23. The Accused even did not chosen to deny his signature found on Ex.P.2 marked as Ex.P.2(a). The Accused even did not chosen to deny a fact that his Ex.P.2 cheque was bounced on its presentation with an endorsement "funds insufficient". The Accused even did not chosen to deny a fact that this Complainant had issued Ex.P.4 notice calling upon him to pay the cheque amount and also by intimating the dishonour of the cheque and the same was duly served upon him. On the contrary, the PW1 has categorically deposed that immediately after the receipt of the Ex.P.3 bank endorsement, he got issued Ex.P.4 notice, calling upon the Accused to make payment of the cheque amount and same was duly served upon this Accused.
24. He further deposed that the Accused even inspite of receipt of Legal Notice, has not chosen to make payment of the cheque amount but he has sent his frivolous reply by denying the transaction. PW1 in order to prove this fact, got produced the notice marked as Ex.P.4 along with a postal receipt marked as Ex.P.4(a) and Ex.P4(b) along with two Postal Acknowledgement Due Cards for having served the notice to this Accused marked as Ex.P.5 and Ex.P6. The 13 C.C. 9021/2012 Accused has not chosen to deny the testimony of PW1 with respect to issuance of notice and even he has not chosen to deny the documentary evidence marked as Ex.P.1 to Ex.P.8.
25. The Ex.P.4 to Ex.P.7 documents clearly prove that the notice issued u/Sec.138 (b) of N.I. Act. was duly served upon this Accused and this Accused after receipt of Legal Notice has not chosen to comply the notice by paying the cheque amount but he has sent his frivolous reply by denying the transaction. In such situation, an adverse inference has to be drawn against this Accused that he kept quite even without complying the notice by paying the cheque amount.
26. 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. The burden is on this Accused to prove that he has given his duly signed blank cheques in favour of one Sri. Vincent Lobo towards the security of the sale price amount of silver oak timber logs purchased from the estate of the Complainant and the said Sri Vincent Lobo colluding with the Complainant, misused his cheques and filed this false complaint even though he is not liable to pay any kind of amount to this Complainant. 14 C.C. 9021/2012
27. The Accused in order to prove his defence, stepped into witness box and got examined as DW1. The DW1 deposed that his name is Rohith Gulgulia and except the said name he was not called by any other names. He deposed that the Complainant is a stranger to him and there was no any business or financial transaction in-between them. He deposed that for the first time he has seen this Complainant before this court in this proceedings. He deposed that he is not the owner of the Sipani Timbers. He deposed that the Sipani Timbers is a partnership firm established in the year 2002 to which his grand father and sister-in-law are partners. He deposed that his grand father was retired from the partnership firm in the year 2004 and subsequently, he along with his sister-in-law became the partners and subsequently, his sister-in-law was also retired in the year 2009 and thereafter his wife became the new partner of the business.
28. He deposed that in the year 2010 they closed down the said partnership firm. He deposed that in the year 2008-09 his brother Sri. Hemanth Gulgulia was looking after the business of partnership firm and he is managing industry. He deposed that Ex.P2 cheque was belonged to his partnership firm and also deposed that the signature found on Ex.P2 is that of him. He deposed that he had given his duly signed blank cheque in favour of his brother for the smooth 15 C.C. 9021/2012 functioning of the business. He has categorically deposed that he had not made any transaction with this Complainant and even he was not liable to pay any kind of amount to this Complainant much less sale price amount of Silver Oak Timber Logs. He deposed that his cheque was misused by this Complainant and he came to know about the misuse of his cheque only after he received the notice from this Complainant as per Ex.P4 and subsequently he has sent his reply as per Ex.P8 by denying the transaction. He deposed that his brother Sri. Hemanth Gulgulia had given his duly signed blank cheque in favour of one Sri. Vincent Lobo for the security of the purchase of the silver oak timber logs and as per the instructions of Sri. Vincent Lobo, he had paid a sum of Rs.30,00,000/- to the person instructed by the Sri. Vincent Lobo.
29. He got produced three receipts for having paid a sum of Rs.30,00,000/- marked as Ex.D1 to Ex.D3 respectively. He got produced the 82 Trip Sheets to prove that from his partnership firm 82 loads of Silver Oak Timber Logs were sold after they got measured the each log marked as Ex.D4. He deposed that he is not liable to pay any kind of amount to this Complainant and this Complainant by misusing his duly signed blank cheque, collected from Sri. Vincent Lobo, created the same as Ex.P2 for a sum of Rs.10,00,000/- and 16 C.C. 9021/2012 presented the same for encashment even though he was not liable to pay any amount to this Complainant. DW1 prays to dismiss the complaint.
30. The Complainant has denied the testimony of DW1 and his learned Counsel subjected DW1 for cross-examination. DW1 in his cross-examination categorically admitted that he is doing Timber Business under the name of Rohith Sipanies. DW1 categorically admitted that he purchased 80 loads of Silver Oak Timber Logs from the estate of this Complainant and after purchase of the Timber Logs the same was transported to his firm as disclosed in Ex.D4 Trip Sheet. DW1 has stated that he is not aware of the exact value of the timber purchased by him from the Complainant. However, DW1 has stated that his brother Sri. Hemanth Gulgulia had made purchase transaction with this Complainant worth of Rs.50,00,000/-. He admitted the suggestion that in his reply notice as per Ex.P8 he has not stated that his name was wrongly described by this Complainant.
31. Likewise, DW1 has stated that he has no documents with him to prove that his brother Sri. Hemanth Gulgulia had issued his duly signed blank cheque in favour of Sri. Vincent Lobo towards the security of the purchase of timber from the estate of this Complainant. He has categorically admitted that in Ex.D1 to Ex.D3 receipts were 17 C.C. 9021/2012 issued by this Complainant after he received the amount paid by him towards the sale of the timber logs. Though DW1 has stated that as per the instructions of the Sri. Vincent Lobo, he had paid the amount to this Complainant as disclosed in Ex.D1 to Ex.D3. However, he has categorically admitted that he has no documents with him to prove that as per the instruction of the Sri. Vincent Lobo he had given sale price amount to this Complainant as disclosed in Ex.D1 to Ex.D3.
32. The DW1 except denying the suggestion put to him that he after purchase of the Silver Oak Timber Logs from the estate of this Complainant towards the part-payment of the sale price amount, had issued his Ex.P2 cheque for a sum of Rs.10,00,000/-, has utterly failed to prove that he had made business towards with Sri. Vincent Lobo and he purchased the silver oak timber logs from Sri. Vincent Lobo and in turn the said Sri. Vincent Lobo purchased the said timber logs from this Complainant. DW1 categorically admitted that in Ex.D4 Lorry Number disclosed by him is belonged to him and he transported the timber logs from the estate of this Complainant to his firm.
33. Even though the DW1 in his cross-examination denied his liability to pay the cheque amount to this Complainant and denied that he directly purchased the silver oak timber logs from the estate of this Complainant and towards part payment of the sale price amount, 18 C.C. 9021/2012 he had issued his Ex.P2 cheque and the same was dishonoured on its presentation. However, DW1 has categorically admitted that through Ex.D4 Trip sheet they have transported the Silver Oak Timber Logs from the estate of this Complainant in his lorries and they transported totally 82 loads from the estate of this Complainant.
34. As I have discussed supra, DW1 categorically stated that he has no documents with him to prove that he had purchased the timber logs from one Sri. Vincent Lobo and towards security of the said purchased timber logs he had given his duly signed blank cheque to Sri. Vincent Lobo through his brother Sri. Hemanth Gulgulia
35. Per contra, the DW1 has categorically admitted that the Ex.P.2 cheque is belong to his bank account and even he admitted his signature found on Ex.P.2 marked as Ex.P.2(a). DW1 further admitted that he has personally received the notice issued as per Ex.P4 and even after receipt of the Legal Notice, he has sent his reply by denying the transaction as per Ex.P8.
36. The DW1 except adducing the oral evidence that he had purchased timber logs worth of Rs.50,00,000/- from one Sri. Vincent Lobo and towards security of the sale price amount he had given his duly signed blank cheque in favour of one Sri. Vincent Lobo through 19 C.C. 9021/2012 his brother Sri.Hemanth Gulgulia has not chosen to prove the same by adducing documentary evidence before this court.
37. No doubt the accused in order to prove his defence got examined his brother Sri. Hemanth Gulgulia as DW2 and also Sri. Vincent Lobo as DW3. Even though DW2 in his evidence deposed that the Sipani Timbers is a partnership firm to which his grand father, his wife and DW1 were partners and after the retirement of his grand father, the wife of DW1 became the partner and his partnership firm purchased silver oak timber logs from Sri Vincent Lobo, who in turn purchased the said timber logs from the Complainant and there was no direct sale transaction in-between him with this Complainant, has not chosen to deny a fact that his firm has purchased silver oak timber logs from the estate of this Complainant and they transported 82 loads of timber logs from the estate of this Complainant and they were due to pay purchase amount to the Complainant. Even though DW2 has also stated that they have not made direct sale transaction with this Complainant and even deposed that he made sale transaction through DW3 - Sri Vincent Lobo, has categorically admitted the fact that from the estate of the accused they have transported 82 loads of timber logs to their firm. Even DW2 in his cross-examination admitted that he has no documents with him to prove that he had made business 20 C.C. 9021/2012 transaction with Sri Vincent Lobo and they purchased the timber from DW3 - Sri Vincent Lobo and he had issued Ex.P2 cheque belonged to this DW1 to Sri Vincent Lobo as a security towards the sale price amount.
38. Moreover, the DW2 has also categorically admitted that they have purchased Timber logs worth of Rs.50,00,000/- from the estate of this Complainant. Though he denied the suggestion that he and his brother colluding with the Sri. Vincent Lobo with an intention to deceive the Complainant, is deposing false before this court that they have given blank Ex.P2 cheque as a security to Sri Vincent Lobo towards the purchase of the Silver Timber Logs.
39. Likewise, DW3 - Sri Vincent Lobo in his evidence except deposing the fact that he purchased 82 loads of silver oak timber logs from the estate of this Complainant and he in turn sold the said timber in favour of Sipani Traders, has utterly failed to prove that he had made business transaction with this Complainant and he was liable to pay sale price amount to the Complainant. It is not the testimony of DW3 that he had already paid the entire sale price amount to this Complainant after purchased the timber logs from the Complainant. Even though DW3 has deposed that he himself had given Ex.P2 cheque to the Complainant.
21 C.C. 9021/2012
40. On the contrary, the DW3 has failed to convince this court why he had given Ex.P2 cheque belonged to the DW1 to this Complainant when he made business transaction with this Complainant. Moreover, even according to DW3 he was having bank account in his name. In such situation, the testimony of DW3 that he had given Ex.P2 duly signed blank cheque of DW1 to this Complainant as a security after he purchased the timber logs from this Complainant, cannot be believable and acceptable.
41. No prudent man will believe the testimony of DW3 that he had given the duly signed blank cheque belonged to DW1 to this Complainant for the security of the sale price amount after he purchased the silver oak timber logs from the estate of the Complainant for the huge amount of Rs.50,00,000/-. The defence taken by the accused is not acceptable and believable and it will not convince this court that this Complainant by collecting the duly signed blank cheque from DW3 belonged to DW1, misused the same for Rs.10,00,000/- and filed this false complaint, even though the Complainant sold the timber logs worth of Rs.50,00,000/- to the Sipani Timbers from his estate.
42. There is no sufficient evidence on record from the accused's side to believe his defence that he purchased 82 loads of silver oak 22 C.C. 9021/2012 timber logs from DW3 - Sri. Vincent Lobo and in turn he purchased said timber from the estate of this Complainant and DW3 had issued Ex.P2 duly signed blank cheque belonged to DW1 to this Complainant as a security towards the sale price amount. Even Ex.D5 document will not disprove the case of the Complainant and it will not rebut the presumption available to this Complainant u/Sec.139 of N.I. Act. Admittedly, the Complainant is one Sri. Chandrashekar who lodged the First Information against this Vincent before Kalasa Police and this document does not prove that the DW3 was purchased the timber logs from the estate of this Complainant and in turn he sold the said timber logs to Sipani Traders and Ex.P2 cheque is pertaining to the said transaction.
43. The Ex.D1 to Ex.D5 documents does not prove that DW3 colluding with this Complainant, misused the duly signed blank cheque of DW1 issued by him towards the security of the sale price amount to DW3 and he in turn issued the said cheque to this Complainant as a security of the sale price amount and this Complainant created the said cheque for Rs.10,00,000/- and filed this false complaint.
44. The oral and documentary evidence adduced before this court by the accused is not sufficient and convincing to believe his 23 C.C. 9021/2012 defence and to discard the case of the Complainant. As I have discussed supra, the DW1 except adducing oral evidence that he has given his blank cheques in favour of one DW3 through his brother DW2 towards the security of the sale price amount after purchase of timber logs from the estate of this Complainant, has not chosen to prove the same to the satisfaction of the court. The burden is on this Accused to prove that the Complainant has created and concocted the contents of Ex.P.2 cheque colluding with DW3 for his convenience. Admittedly, the Accused has not chosen to prove his defence to the satisfaction of the court.
45. As I have discussed supra, the entire burden is on this Accused to prove that he had given his blank cheques in favour of DW3 through his brother DW2 after they purchased the timber logs from the estate of the Complainant and subsequently the DW3 in turn handed over the duly signed blank cheque to this Complainant after he purchased the timber logs as a security and he misused the cheque and created the same as Ex.P.2 and filed this false complaint. The Accused has utterly failed to prove his defence to the satisfaction of the court by adducing cogent and convincing evidence before this court.
24 C.C. 9021/2012
46. The oral and documentary evidence adduced before this court by the accused will not take away the case of the Complainant and it will also rebut the presumption available to this Complainant u/Sec.139 of N.I. Act. The Accused has utterly failed to prove that there was no any business transaction in between him with this Complainant much less amounting to Rs.50,00,000/- and he has not issued Ex.P2 cheque towards the part-payment of the sale price amount after purchase of silver oak timber logs from the estate of this Complainant.
47. Even when this Accused was questioned u/Sec. 313 Cr.P.C. by this court, the Accused except denying the incriminating evidence deposed against him by PW1, has not put forth any defence from his side to believe his defence. 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.
48. 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, indorsed, negotiated or transferred for consideration;
b. As to date - that every negotiable instrument bearing a date was made or drawn on such date;25 C.C. 9021/2012
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;
Like wise he also failed to rebut the presumption available u/s. 139 of NI 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.
49. There is nothing on record to believe the defence of the Accused that this Accused had given his duly signed blank cheque in favour of DW3 towards security of the sale price amount after purchase of the timber logs and in turn DW3 colluding with this Complainant, misused his cheque and filed this false complaint against this Accused.
26 C.C. 9021/2012
50. The arguments canvassed by the Learned Counsel for the Accused that the Complainant colluding with DW3, misused the blank cheques issued in favour of DW1 through his brother DW2 towards the security of the sale price amount after purchase of timber logs from the estate of this Complainant and DW3 in turn issued the duly signed blank cheque of this DW1 collected from DW2 towards the security of the sale price amount after he purchased the timber logs from his estate and this Complainant has created the cheque for Rs.10,00,000/- and filed this false complaint and therefore, the complaint has to be dismissed by acquitting this Accused, is not convinced this Accused and it cannot be acceptable. Likewise, his further arguments that this accused by adducing oral and documentary evidence before this court, has successfully proved his defence and he has successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act, is also not convinced this court and it holds no merit.
51. On the contrary, 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 not chosen to make payment of the cheque amount well within the period of limitation but he has sent his false reply with an intention to ran 27 C.C. 9021/2012 away from his liability to pay the cheque amount. He has argued that the Accused knowing fully well that he has no sufficient funds in his bank account, had issued a bogus cheque, only with an intention to cheat this Complainant. He has argued that the entire burden is on this Accused to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act and this Accused has totally failed to prove his defence to the satisfaction of the court. He further argued that the oral and documentary evidence adduced before this court by the accused are not sufficient and convincing and it will not rebut the presumption available to this Complainant u/Sec.139 of N.I. Act.
52. He has further stated that the Accused only with an intention to ran away from his liability to pay the cheque amount, has taken up the false defence that his cheque was misused by this DW3 colluding with this Complainant. He has further stated that the Complainant by adducing the oral and documentary evidence before this court, proved the guilt of the Accused beyond all reasonable doubts and therefore by considering the facts and evidence of the case, the Accused has to be convicted for the offence punishable u/Sec.138 of N.I. Act. The arguments canvassed by the learned Counsel for the Complainant, is fully convinced this court and therefore, it is accepted. The learned Counsel for the Complainant in support of his arguments 28 C.C. 9021/2012 has relied upon the judgements reported in, 2015 (3) DCR 362 Delhi High Court between Suresh Chandra Goyal Vs. Amit Singhal wherein it is held that;
"So long as there is debt existing in respect where of cheque is issued the same may be presented for recovery of debt. "
AIR 2016 Supreme Court 740 between Don Ayengia Vs. The State of Assam and Anr. wherein it is held that;
"N.I Act (26 of 1881), S.138 - cheque dishonour - Cheque issued whether in discharge of "any debt or other liability" - Agreement between parties wherein cheques issued by Complainant to one "N' - Upon termination of agreement amount paid to "N" was refundable to Complainant - Promissory note executed by "n' contained an unequivocal acknowledgement of not only debt/liability aforementioned but promise to liquidate same within one month with interest at bank rate - Five cheques handed over to Complainant were to be returned but only upon payment of amount in question - It cannot be said that cheques had nothing to do with any debt or to her liability - Words "security"
qua cheques used in promissory note - Imply that once amount was paid, cheques shall have to be returned - There would be no reason for their rentention by Complainant or for their presentation - Endorsement made by respondent on promissory note that cheques can be presented on date mentioned - Failure on part of "N" to liquidate liability within one month -
Dishonour of cheque on ground of insufficiency of funds - Conviction of respondent who acknowledged to liquidate debt owned by 'N' - proper. "
2014 (2) DCR 93 Karnataka High Court between Venkatesh Prasad Vs. Subray V. Bhat wherein it is held that;
"whenever cheques are issued, a presumption has to be drawn under Section 139 of N.I.Act that cheque has been issued towards discharge of his liability and the 29 C.C. 9021/2012 said presumption also includes the presumption of existence of legally enforceable debt or liability."
AIR 2015 Supreme Court 2579 between Mainuddin Abdul Sattar Shaikh Vs. Vijay D. Salvi wherein it is held that;
(A) Negotiable Instruments Act (26 of 1881), S. 138 - dishonour of cheque - Liability - Cheque drawn by respondent in his personal capacity and not by company of which he is Managing Director -
Company is not liable even if it is for discharging dues of company - Respondent being drawer of cheque is alone liable for offence under Sec.138. "
The law laid in these judgements are amply applicable to the facts of the present case on hand and it will helpful to the case of the Complainant.
53. 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 this case. The complainant by adducing oral and documentary evidence before this court bring home the guilt of the accused beyond all reasonable doubt. Therefore, by taking into consideration the facts and circumstances and evidence available on record, I answer this Point No.1 in affirmative.
30 C.C. 9021/2012
54. 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.11,05,000/-(Rupees Eleven Lakhs and Five Thousand only). In any default to pay fine amount shall under go simple imprisonment for 6 months.
Out of fine amount recovered under Section 357 of Cr.P.C. a sum of Rs.11,00,000/- (Rupees Eleven Lakhs 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 bonds 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 3rd day of May, 2016) (ISHRATH JAHAN ARA) XIX ADDL.C.M.M. Bangalore ANNEXURE:
Witnesses examined on behalf of the Complainant:
PW.1 Mr. K.N. Praveen, GPA Holder
Witnesses examined on behalf of the Accused:
D.W.1 Mr. Rohit Gulgulia
D.W.2 Mr. Hemanth Kumar
D.W.3 Mr. Vincent Lobo
31 C.C. 9021/2012
Documents marked on behalf of the Complainant:
Ex.P.1 Power of Attorney
Ex.P.2 Cheque
Ex.P.2(a) Signature of the Accused
Ex.P.3 Bank endorsement
Ex.P.4 Copy of the legal notice
Ex.P.4(a) & Ex.P.4(b) Two RPAD receipts
Ex.P.5 & Ex.P.6 Two Postal Acknowledgement Due Cards
Ex.P.7 COP receipt
Ex.P.8 Reply notice
Documents marked on behalf of the Accused:
Ex.D1 to 3 Three receipts
Ex.D4 82 Trip Sheets
Ex.D5 Certified copy of the judgement in C.C.146/2009
XIX ACMM, B'lore.