Bangalore District Court
Sri. K. Manoharlal (Huf) vs Ananda Metal Corporation on 22 March, 2018
IN THE COURT OF XIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU.
:: PRESENT ::
SMT. C.G. VISHALAKSHI, B.A.L., L.L.B.,
XIII A.C.M.M. Bengaluru.
C.C. NO.502/2015
Dated: This the 22nd day of MARCH-2018
COMPLAINANT/S: Sri. K. Manoharlal (Huf),
S/o. Late. Kishindas,
Aged about 64 years,
No.119, Church Road,
Shanthinagar,
Bangalore-560027.
Represented by SPA Holder:
Sunil. M.Makhija,
S/o. Sri. K. Manoharlal,
Aged about 39 years.
ACCUSED: Ananda Metal Corporation,
Represented by Proprietor:
R. Adimoolam,
Major,
C-81, Industrial Estate,
Peenya 3rd stage,
Bangalore-560058.
R/at. No.13/88, 7th Main,
3rd Cross, Prakashnagara,
Bangalore-560021.
JUDGEMENT 2 C.C.502/2015
OFFENCE Under Section.138 of Negotiable
Instruments Act.
Plea of the accused Pleaded not guilty
Final order Convicted
**
JUDGEMENT
This complaint is filed against the accused under Section.200 of Cr.P.C. for the offence punishable under Section.138 Negotiable Instruments Act.
2. The gist of the complaint is as follows:
The accused is the Proprietor of Ananda Metal Corporation and being well known to the complainant since three years, had approached the complainant for hand loan of Rs.2,00,000/- for his urgent business purpose. Accordingly, the complainant has paid a sum of Rs.2,00,000/- infavour of the accused on 20-07-2013 by cash. The accused had executed demand promissory note and consideration receipt infavour of the complainant on 20-07-2013 for acknowledgement of receipt of loan amount JUDGEMENT 3 C.C.502/2015 of Rs.2,00,000/- and undertaken to repay the same with interest at the rate of 1% p.m. Thereafter, on repeated demand and personal approach the accused had issued the cheque bearing No.091369, dated: 10-11-2014 for Rs.2,00,000/- drawn on State Bank of Mysore, Malleswaram Branch, Bangalore-560003 infavour of the complainant towards principal amount due to the accused. As per the assurance, when the complainant has presented the said cheque for encashment through his banker i.e., Vijaya Bank, Shanthinagar, Bangalore, the said cheque was returned dishonoured with remarks 'Funds Insufficient' vide memo dated: 11-11-2014. Immediately, the complainant caused notice against the accused on 18- 11-2014 by RPAD. The notice sent against the accused was duly served on 21-11-2014. In response to the same, the accused though accused replied to the demand notice, but not complied with demands of notice. Hence, having no other go, the complainant maintained this complaint against the accused, alleging that the accused has committed an offence punishable under Section.138 of JUDGEMENT 4 C.C.502/2015 Negotiable Instruments Act and prays to deal the accused as per law.
3. On presentation of the complaint, this court has taken cognizance of the offence; sworn statement of the complainant was recorded. On perusal of the documents and on hearing the complainant, process was issued against the accused. In pursuance of the process, the accused appeared before this court and enlarged on bail. Copies of the complaint papers supplied to him. Substance of the accusation was read over and explained to the accused. The accused did not plead guilty and claims to be tried. Hence, the matter was posted for the evidence of the complainant.
4. In order to prove the case of the complainant, he got examined himself as PW.1 and got marked documents as Ex.P1 to P14 and closed his side evidence. After completion of the complainant's evidence, the accused was examined under Section.313 of Cr.P.C. and his statement was recorded. To substantiate his defence, the accused JUDGEMENT 5 C.C.502/2015 examined himself as DW.1 and got marked documents at Ex.D1 to D25 on their side.
5. Heard arguments.
The counsel for the accused in support of their case, has relied upon the following citations as follows:
(2014) 2 Supreme Court Cases 236 John K. Abraham V/s. Simon C. Abraham & Anr ** ILR 2014 KAR 6572 Sri. H. Manjunath V/s. Sri. A.M. Basavaraju ** 2015 AIR SCW 64 K. Subramani V/s. K. Damodara Naidu ** 2010 Cri.L.J. 372 Shrimathi V/s. Renuka **
6. Upon reading the entire materials on record and on hearing the arguments the following points that arise for my consideration:
POINTS
1. Whether the complainant proves beyond all shadow of doubt that, the accused has committed an offence JUDGEMENT 6 C.C.502/2015 punishable under Section.138 Negotiable Instruments Act?
2. What order?
7. My answers to the above points are as follows:
Point No.1: In the Affirmative
Point No.2: As per the final order,
for the following.
:: REASONS ::
8. POINT NO.1: As the accused did not pleaded
guilty, the complainant has chosen to examine himself as PW.1 and got marked documents as Ex.P1 to P14.
As per the decision reported in ILR 2008 KAR PAGE- 4629 between Shivamurthy V/s Amruthraj and in another decision rendered by the Hon'ble Apex court in AIR-2008 SC-1325 between Krishna Janardhan Bhat V/s Dattatreya G. Hegde, in order to attract Sec.138 of Negotiable Instruments Act, the complainant has to satisfy 3 essential ingredients like, 1) there is legally enforceable JUDGEMENT 7 C.C.502/2015 debt, 2) that the cheque was drawn from the account of the Bank of the accused for discharge of whole or part of any debt or other liability which pre-supposes to be legally enforceable debt, 3) cheque so issued returned unpaid due to Insufficient of funds.
9. Keeping in view the ingredients of Section.138 of Negotiable Instruments Act, I proceed to discuss the documents of this case.
(a) Ex.P2 is the cheque bearing No.091369, dated: 10-
11-2014 for Rs.2,00,000/- drawn on State Bank of Mysore, Malleshwaram Branch, Bangalore-560003. As per the say of the complainant, Ex.P2(a) is the signature of the accused.
(b) Ex.P3 is the Bank endorsements issued by the Bank authorities, dated: 11-11-2014 for having dishonour of the cheques for the reason 'Funds Insufficient'.
(c) It must be noted as per Clause (b) proviso to Section.138 of Negotiable Instruments Act, the JUDGEMENT 8 C.C.502/2015 complainant was required to make a demand for payment of the said amount within 30 days from the date of receipt of cheque as un-paid.
(d) Ex.P4 is copy of the legal notice dated: 18-11-2014 which shows that the complainant made demand in writing calling upon the accused to make repayment of the said cheques amount by issuing notice against him which is within 30 days.
(e) Ex.P5 and 6 are the postal receipts and Ex.P7 and P18 are the postal acknowledgment cards, it shows that notice sent against the accused under RPAD was duly served on the accused. Ex.P9 is the reply notice.
As per Clause (C) proviso to Section.138 of Negotiable Instruments Act, the accused is entitled 15 days time to make payment of money covered under cheque. Further, as per Section.142(b) of Negotiable Instruments Act, complaint has to be filed within 30 days from the date of which the cause of action arose. Therefore, the complainant has filed this complaint well within time. JUDGEMENT 9 C.C.502/2015
10. Thus, the complainant has fulfilled all the ingredients, which were required for the completion of the offence punishable under Section.138 of Negotiable Instruments Act.
11. On perusal of the entire materials on record, it shows that the complainant maintained this complaint against the accused alleging that the accused being the Proprietor of Ananda Metal Corporation and well known person since three years, had borrowed a sum of Rs.2,00,000/- from him on 20-07-2013 on execution of demand promissory note and consideration receipt and undertaken to repay the same with interest at the rate of 1% p.m.. But thereafter on persistent demand, the accused had issued the disputed cheque infavour of the complainant towards payment of the principal amount. As per the assurance, when the complainant has presented the said cheque for encashment through his banker, it was bounced back unpaid for the reason 'Funds Insufficient'. Despite of issuance of demand notice and its due service on him, since the accused did not come forward to pay the amount JUDGEMENT 10 C.C.502/2015 covered under the cheque, he maintained this complaint in time.
12. Per-contra, on reading the line of cross-examination and the defence setup by the accused, it shows that the accused denied the acquaintance in between himself and the complainant and he denied about the borrowing loan of Rs.2,00,000/- from the complainant and he also denied about execution of documents like on demand promissory note and consideration receipt infavour of the complainant. He also denied with regard to the issuance of this disputed cheque infavour of the complainant towards discharge of any debt or liability of Rs.2,00,000/-. Though accused not disputed the fact that Ex.P1 cheque is belongs to the bank account of the accused and Ex.P1(a) is his signature, but he has taken up the defence that he never borrowed any loan from the complainant and he never issued this disputed cheque infavour of the complainant. On the other hand, he had borrowed a sum of Rs.15,00,000/- from one Om Sai Associates and Surmandir for his business purpose and on that time for security purpose he had JUDGEMENT 11 C.C.502/2015 issued his signed blank cheque and signed blank demand promissory note infavour of the said Om Sai Associates and Surmandir. Thereafter though he had cleared the said loan to the said Om Sai Associates and Surmandir. But, the complainant by misusing his signed blank cheques and pro-notes allegedly given infavour of Om Sai Associates and Surmandir as security, has filed false complaint against him, though there exists no debt or liability in between himself and the complainant.
13. Thus, there is no dispute so as to the fact that Ex.P2 cheque is belongs to the bank account of the accused and Ex.P2(a) is his signature.
14. It is well settled that, admission furnishes best evidence as per the decision laid down in AIR-1981 PAGE- 2085.
Thus in my opinion, the admission given by the accused is sufficient to come to conclusion about the JUDGEMENT 12 C.C.502/2015 execution of Negotiable Instruments (cheque in question) is admitted as well as proved.
15. In view of the decision reported in 2010 SC 1898 between Rangappa V/s Mohan, once the execution of Negotiable Instruments Act is either proved or admitted, then the court shall draw a presumption under Section.139 of Negotiable Instruments Act, in favour of the complainant to that effect that the said Negotiable Instrument i.e., the disputed cheque has been drawn for valid consideration and it is towards legally recoverable debt and it is drawn for valuable consideration.
16. Having admitted the fact that Ex.P2 cheque is belongs to the bank account of the accused and Ex.P2(a) is his signature, presumption arose infavour of the complainant under Section.139 of Negotiable Instruments Act. Hence, the burden is on the accused to rebut the same with probable evidence.
JUDGEMENT 13 C.C.502/2015
17. To prove the case of the complainant, he examined his son i.e., his SPA holder as PW.1, who deposed his evidence by way of an affidavit and reiterated the averment of the complaint and deposed about lending loan of Rs.2,00,000/- by the complainant infavour of the accused on 20-07-2013. He also deposed with regard to the fact that the accused for having receipt of the said loan amount, had executed the demand promissory note and consideration receipt infavour of the complainant. It is deposed by the complainant that the accused has undertaken to repay the said loan amount with interest at the rate of 1% p.m. PW.1 further deposed with regard to the fact of issuance this disputed cheque by the accused infavour of the complainant towards repayment of principal amount on persistent demand of the complainant and he deposed with regard to the dishonour of the said cheque for the reason 'Funds Insufficient' on its presentation for encashment through the complainant's banker and also deposed with regard to the causing of demand notice against the accused and its non-compliance. JUDGEMENT 14 C.C.502/2015
18. To prove the oral evidence with regard to the fact of lending loan infavour of the accused, the complainant i.e., PW.1 has produced documents like on demand promissory note and consideration receipt which are marked at Ex.P10 and 11 and it is his evidence that the signature found on Ex.P10 and 11 which are marked at Ex.P10(a) and P11(a) are the signatures of the accused. These documents testifies the fact that the accused has executed demand promissory notice and consideration receipt infavour of the accused for having acknowledged receipt of the loan amount of Rs.2,00,000/- from the complainant on20-07- 2013. Though accused has denied the acquaintance in between himself and the complainant contending that he do not know the complainant. With this he made an attempt to say that when he do not know the complainant, then how the complainant could advance loan in his favour. Hence, he by taking the defence that there was no acquaintance in between himself and the complainant made an attempt to say that there was no any such loan transaction at all.
JUDGEMENT 15 C.C.502/2015
19. But it is the case of the complainant that the accused is well known person and he is the Proprietor of Ananda Metal Corporation. Though accused has denied with regard to the acquaintance of the accused with the complainant. But on careful reading of the cross-examination, it shows that the accused counsel only has suggested about the acquaintance in between the complainant and the accused by suggesting about the existence of monitory transaction in between himself and the complainant. This clearly goes to show that there was acquaintance in between the complainant and the accused. If was there no any such acquaintance in between the complainant and the accused, then what made the accused to give such suggestion to the PW.1 during cross-examination and what was the necessity for the accused to suggest such suggestion to PW.1. This clearly goes to show about the very acquaintance in between the complainant and the accused. Inspite of the same the accused has taken such vague defence denying the very acquaintance with the complainant that there is no acquaintance in between himself and the complainant. Hence, the defence taken by the accused denying the JUDGEMENT 16 C.C.502/2015 acquaintance in between the complainant and the accused holds no water.
20. No doubt, the accused has elicited evidence from the mouth of PW.1 that he do not know the name of the father of the accused and the family background of the accused. But mere that fact, it cannot be said that there was no any acquaintance at all in between the complainant and the accused. Because, the complainant clearly stated that the accused is the Proprietor of Ananda Metal Corporation, as there was acquaintance in between the complainant and the accused and as the accused is known person to the complainant, he has deposed the fact that the accused is the Proprietor of Ananda Metal Corporation. Even otherwise having suggested the suggestion with regard to the monitory transaction in between the complainant and the accused, the accused has admitted about the acquaintance in between them. Further the fact of acquaintance in between the complainant and the accused is depicts from the suggestion of the accused that the JUDGEMENT 17 C.C.502/2015 complainant and PW.1 had obtained the signed blank cheque and pro-note from the accused as security.
21. If was there no any acquaintance in between the accused and the complainant and so also with PW.1, then there was no occasion for the accused to give such suggestion of furnishing cheque and pro-note by the accused to the complainant and PW.1 as security. Because, the security will be furnished only to the person from whom loan will be borrowed. But in the case on hand, though accused has denied with regard to the loan transaction in between the complainant and the accused by taking the defence denying the acquaintance in between himself and the complainant. If was there no any acquaintance in between the complainant and the accused, then why and for what purpose the accused had allegedly issued his cheque and pro-note though as security infavour of the complainant and also infavour of his son i.e., PW.1. This clearly goes to show that there was acquaintance in between the complainant and the accused and on such acquaintance only the complainant has JUDGEMENT 18 C.C.502/2015 advanced loan infavour of the accused and having receipt of such loan of Rs.2,00,000/-, the accused has executed documents like demand promissory note and consideration receipt infavour of the complainant and towards discharge of the principal amount only, the accused had issued this disputed cheque. Despite of the same, he has taken such vague defence by denying the very acquaintance in between himself and the complainant just to overcome the situation.
22. Further it is the case complainant that he had lent loan of Rs.2,00,000/- infavour of the accused on 20-07- 2013 on the request of the accused to meet his business requirements and the accused has executed demand pro- note and consideration receipt in his favour for acknowledgement of the receipt of loan of Rs.2,00,000/-. To prove the said fact the PW.1 not only adduced his evidence on oath, but also to substantiate the said fact he produced document like pro-note and consideration receipt as per Ex.P10 and P11 said to have been executed by the accused infavour of the complainant for receipt of loan of JUDGEMENT 19 C.C.502/2015 Rs.2,00,000/-. The accused has denied the fact of loan transaction and denied about the execution of pro-note and consideration receipt infavour of the complainant. But it is pertinent to note that though accused has denied the alleged execution of pro-note and consideration receipt as per Ex.P10 and P11, but he did not denied the fact that the signatures found on Ex.P10 and P11 i.e., on demand pro- note and consideration receipt which are marked at Ex.P10(a) and 11(a) are not his signatures. On the other hand, he clearly admitted the fact that the signature found on Ex.P10 and P11 which are marked at Ex.P10(a) and P11(a) are his signatures.
23. Having admitted the fact that the signatures found on Ex.P10 and 11 which are marked at Ex.P10(a) and P11(a) are his signatures, burden is on the accused to prove the circumstance in which he had affixed his signatures to those documents.
24. Because the position of law is clear that once execution of pro-note is admitted, presumption under JUDGEMENT 20 C.C.502/2015 Section.118(a) of Negotiable Instruments Act would arise that it is supported by consideration. The said presumption is rebuttable one. The accused can rebut the presumption by proving the non-existence of consideration by raising probable defence. If the accused is proved to have discharged the initial onus or proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the complainant who will be obliged to prove it as a matter of fact and upon its failure to prove, would disentitle him to grant of relief on the basis of Negotiable Instruments. The bare denial of passing of consideration apparently dies not appears to be any defence. On the other hand, something which is probable has to be brought on record for getting benefit of shifting the onus of proving to the complainant.
25. So, burden is on the accused to disprove the fact of existence of loan transaction in between him and the complainant by proving the fact that the documents like pro-note and consideration receipt were not executed by him infavour of the complainant in connection to the JUDGEMENT 21 C.C.502/2015 alleged loan transaction in question. Though accused has taken the defence that he never borrowed any loan from the complainant and he never executed any documents like pro-note and consideration receipt in favour of the complainant. On the other hand he had borrowed loan of Rs.15,00,000/- from Om Sai Associates and Surmandir and on that time he had given his signed pro-note and consideration along with signed blank cheque infavour of the said Om Sai Associates and Surmandir and thereafter they have cleared the said debt etc., but to substantiate the said defence, the accused except bare suggestion and denial, not produced any material evidence before this court nor elicited any material admission from the mouth of PW.1.
26. If the defence of the accused was true that he never borrowed any loan from the complainant on execution of Ex.P10 and P11 documents i.e., pro-note and consideration receipt in favour of the complainant, but on the other hand, he had borrowed loan of Rs.15,00,000/- from Om Sai Associates and Surmandir on furnishing his JUDGEMENT 22 C.C.502/2015 signed blank cheques and pro-notes as security etc., then certainly he would have proved the same by producing any material evidence before this court or he would have proved the same by eliciting any material admission from the mouth of PW.1. But the accused neither placed any material evidence before this court nor elicited any material admission from the mouth of PW.1 by suggesting suitably. But the accused not made any suggestion to PW.1 in this regard. This creates doubt.
27. If the defence of the accused was true then certainly he would have made any such material suggestion to PW.1 during his cross-examination i.e., with regard to the defence of borrowing loan of Rs.15,00,000/- from Om Sai Associates and Surmandir on furnishing the signed blank pro-note and consideration receipt and singed blank cheque as security and about their misuse by the said Om Sai Associates and Surmandir in collusion with this complainant inspite of repayment of alleged loan amount of Rs.15,00,000/- to the said Om Sai Associates and Surmandir. But no any such suggestion made to the PW.1 JUDGEMENT 23 C.C.502/2015 during his cross-examination. This creates doubt with regard to the very defence of the accused in explaining the circumstance in which the disputed cheque went to the hands of the complainant.
28. On the other hand, during the course of cross- examination, the accused counsel themselves have suggested with regard to the furnishing pro-note and consideration receipt in blank infavour of the complainant and his father as security. This falsifies the defence of the accused that he had furnished his signed blank pro-note and consideration receipt and signed blank cheque infavour of Om Sai Associates and Surmandir in relation to the alleged loan transaction of Rs.15,00,000/- and about their misuse by the said Om Sai Associates and Surmandir in collusion with this complainant.
29. No doubt, the accused has produced documents like statement of account pertaining to Om Sai Associates and Surmandir as per Ex.D3 and D4. But he has not proved those documents by examining its author before this court. JUDGEMENT 24 C.C.502/2015 Because, mere production of the documents is not sufficient. On the other hand, burden is on the accused to prove that those documents by examining the competent person before this court. That means to say that burden is on the accused to prove the fact that he had borrowed loan of Rs.15,00,000/- from Om Sai Associates and Surmandir and in relation to the said transaction, he had given his signed blank pro-note and consideration receipt along with his signed blank cheque as security and thereafter he had cleared the said debt inspite of the same, the said Om Sai Associates and Surmandir by making the use of his security documents in collusion with this complainant filed this false complaint against him by placing any cogent and convincing evidence. But in this regard, except production of documents like Ex.D3 and D4 not proved the fact of alleged loan transaction in between himself and the Om Sai Associates and Surmandir, since he has not chosen to examine any competent person of the said Om Sai Associates and Surmandir. Hence, the documents which were placed before this court by the accused as per Ex.D3 and 4, does not suffice to come to conclusion that the JUDGEMENT 25 C.C.502/2015 accused has proved his defence that he had furnished the disputed cheques and signed pro-note and consideration receipt in relation to the alleged loan transaction of Rs.15,00,000/- allegedly existed in between himself and the said Om Sai Associates and Surmandir and they were misused by the said Om Sai Associates and Surmandir in collusion with this complainant.
30. If the defence of the accused was true that he never borrowed any loan from the complainant and he never executed any documents like Ex.P10 and P11 pro-note and consideration receipt and on the other hand, he had borrowed loan of Rs.15,00,000/- from one Om Sai Associates and Surmandir on furnishing his signed blank pro-note, consideration and signed blank cheque as security etc., and thereafter he has discharged the said loan to the said Om Sai Associates and Surmandir, then certainly he would have made any attempt to take back his security documents i.e., signed blank pro-note, consideration receipt and signed blank cheque from the possession of the said Om Sai Associates and Surmandir. JUDGEMENT 26 C.C.502/2015 But no such steps have been taken by the accused to take back his security documents from the possession of the said Om Sai Associates and Surmandir. If the defence of the accused was true that he had borrowed loan from Om Sai Associates and Surmandir and on furnishing this disputed pro-note, consideration receipt and cheque in blank as security infavour of the said Om Sai Associates and Surmandir as security and thereafter he had cleared the debt, then certainly he would have written letter for the said Om Sai Associates and Surmandir requesting them to return his security documents by narrating the fact of clearance of the debt. In case if the said Om Sai Associates and Surmandir not considered is prayer and returned his security documents, then he would have caused necessary notice to the said Om Sai Associates and Surmandir demanding them to return his security documents by narrating the circumstance in which he had given those documents in blank as security and if the said Om Sai Associates and Surmandir has complied with the demands of notice, then certainly he would have lodged police complaint against the said Om Sai Associates and JUDGEMENT 27 C.C.502/2015 Surmandir for non-return of his security documents or atleast he would have given stop payment instructions to the bank authorities requesting them not to honour the cheque which allegedly given infavour of the Om Sai Associates and Surmandir as security. But no such overtact is forth coming on reading the conduct of the accused.
31. Unless the accused has proved that he has acted as normal prudent, he could not rebut the presumption which arose in favour of the complainant under Section.139 of Negotiable Instruments Act. Because, no prudent man would remain silent without taking any legal steps against the person to whom he had given his signed blank cheque, pro-note and consideration receipt as security in relation to any loan transaction inspite of clearance of the loan. Hence, the defence taken by the accused in explaining the circumstance in which the disputed cheques, pro-note and consideration receipt went to the hands of the complainant is not convincing and probable one.
JUDGEMENT 28 C.C.502/2015
32. No doubt, the accused has caused necessary reply to the demand notice of the complainant issued against him on account of dishonour of Ex.P1 cheque. But, mere issuance of reply notice, it cannot be said that he has proved his defence unless he proves the some by placing any cogent and material evidence. Even otherwise in his reply notice, he did not taken any defence of furnishing the disputed cheque and pro-note and consideration receipt in blank as security infavour of the Om Sai Associates and Surmandir in connection to the alleged loan transaction of Rs.15,00,000/- allegedly borrowed by him from the said Om Sai Associates and Surmandir and about their misuse through this complainant.
33. If really the defence of the accused was true that he never borrowed any loan from the complainant to the tune of Rs.2,00,000/- and he never executed any documents like pro-note and consideration receipt infavour of the complainant for acknowledging the receipt of the said loan amount and he never issued this disputed cheque infavour of the complainant towards discharge of any debt or JUDGEMENT 29 C.C.502/2015 liability. On the other hand, he had borrowed loan of Rs.15,00,000/- from one Om Sai Associates and Surmandir on furnishing this signed blank cheque along with blank pro-note and consideration receipt as security and they were misused by the complainant even after clearance of the alleged debt of Rs.15,00,000/- and made false claim against him by causing demand notice against him etc., then certainly he would have taken such defence at earliest in his reply notice. But though accused has caused reply to the demand notice of the complainant, but he has not whispered anything with regard to his defence of furnishing this disputed cheque, disputed pro-note and consideration receipt in blank as security infavour of Om Sai Associates and Surmandir in connection to the alleged loan transaction of Rs.15,00,000/- allegedly existed in between himself and the said Om Sai Associates and Surmandir by denying the loan transaction with this complainant. Hence, whatever the defence taken by the accused during the course of cross-examination in explaining the circumstance in which the disputed cheque, pro-note and consideration went to the possession of the JUDGEMENT 30 C.C.502/2015 complainant is nothing but after thought. Hence, no evidentiary value could be attached to the defence of the accused, since he failed to prove his defence by placing any cogent and convincing evidence. Hence, the defence raised by the accused is not probable one to dispel the presumption which arose infavour of the complainant under Section.139 of Negotiable Instruments Act.
34. Further the accused has questioned the source of arrangement of funds and monitory capacity of the complainant to lend loan of Rs.2,00,000/- infavour of the accused. But PW.1 clearly deposed in his evidence that they have lent loan out of the amount accrued through their business. Further it is not denied by the accused with regard to the profession of the complainant that he is doing the business under the name and style of M.R.S. Enterprises. Further the amount involved in this case i.e., cheque amount is of Rs.2,00,000/-. It is the version of the complainant that his father i.e., complainant has turnover Rs.20,00,000/- and he has income of Rs.3 to 4 lakhs p.a. through his business. To substantiate the said fact, he has JUDGEMENT 31 C.C.502/2015 produced documents like I.T. Returns which discloses the fact that the complainant has income per annum Rs.9,55,467/-. This evidence is not falsified by the accused. On the other hand, the monitory capacity of the complainant has been admitted by the accused himself, since his advocate only have suggested the fact that the complainant is doing money lending business. No person would do the business of money lending without there being sufficient monitory capacity. Hence, by suggesting the suggestion that the complainant is doing the business of money lending, the accused has admitted the monitory capacity of the complainant to lend loan of Rs.2,00,000/- infavour of the accused. Even otherwise the amount involved in the cheque of this case is not huge amount. On the other hand, it is for a sum of Rs.2,00,000/-. The person having income of Rs.9 to 9.50 lakhs p.a. certainly has capacity to lend money to the accused to the tune of Rs.2,00,000/-. Hence, the arguments of the accused with regard to the monitory capacity of the complainant to lend loan to the tune of Rs.2,00,000/- infavour of the accused holds no water.
JUDGEMENT 32 C.C.502/2015
35. Further though, at one stretch the accused made an attempt to say that the documents like Ex.P10 and 11 are created documents, by taking the defence that there is some variations in the ink and handwriting with regard to the recitals of the those documents and contended that there is difference in the ink in the rubber stamp/seal affixed to the said pro-note and consideration receipt. But PW.1 has clearly given explanation that the recitals of Ex.P10 and 11 was not written by him. Hence, there is some variations in the handwritings and ink used for such writings. Though accused made an attempt to say that there is some variations in the ink of the rubber stamp affixed to the Ex.P10 and P11 and with this the accused made an attempt to say that the said documents were not executed by the accused and the said rubber stamp/seal is not pertaining to their concern. But, DW.1 clearly admitted the fact that the said rubber stamp affixed to the Ex.P10 and 11 i.e., pro-note and consideration receipt is pertaining to his Ananda Metal Corporation and he also admitted the fact that he only had written the Ex.P2 cheque. JUDGEMENT 33 C.C.502/2015
36. Thus, there is clear admission with regard to the issuance of cheque by the accused infavour of the complainant and so also the fact of execution of pro-note and consideration receipt infavour of the complainant. Inspite of the same, the accused made and attempt to deny the alleged loan transaction in between himself and the complainant by taking false defence that he has obtained from one Om Sai Associates and Surmandir on furnishing the disputed cheque, pro-note and consideration receipt infavour of Om Sai Associates and Surmandir as security and they were misused by the said person in collusion with this complainant. Hence, the defence taken by the accused is not probable and convincing one to dispel the burden which arose infavour of the complainant.
37. Further, at one stretch, the accused made an attempt to say that he being the Proprietor of Ananda Metal Corporation, has sufficient income and there was no necessity for him to borrow any loan of Rs.2,00,000/- from the complainant. With this he made an attempt to say that JUDGEMENT 34 C.C.502/2015 there was no any loan transaction at all in between himself and the complainant.
38. To substantiate the said fact, though he has produced documents like I.T. Returns as per Ex.D1 and 2. But on careful reading of his defence evidence it creates doubt with regard to his monitory status. Because, it is his defence that he had borrowed loan of Rs.15,00,000/- from one Om Sai Associates and Surmandir. If really he had sufficient income as shown in Ex.D1 and 2 documents and there was no need for him to borrow any loan etc., then what was the necessity for him to borrow loan from the said Om Sai Associates and Surmandir. This clearly goes to show that there was monitory necessity for the accused for his business purpose and to meet his business expenses only, he had borrowed loan of Rs.2,00,000/- from the complainant. Even otherwise, as per the balance sheet affixed to the Ex.D2 I.T. Returns shows that there was cash on hand to the tune only of Rs.74,171/-. This also creates doubt with regard to the monitory status of the accused. Even otherwise there is no hard and fast rule that the JUDGEMENT 35 C.C.502/2015 person who has sufficient income, shall not contract for any loan.
39. Thus, the accused failed to prove the defence that he never borrowed any loan from the complainant to the tune of Rs.2,00,000/- on execution of any document and he never issued this disputed cheque infavour of the complainant towards discharge of any debt or liability. On the other hand he had borrowed loan of Rs.15,00,000/- from the Om Sai Associates and Surmandir on furnishing his signed blank cheque and signed blank pro-note and consideration receipt as security and inspite of the fact that he has cleared the alleged debt of Rs.15,00,000/- to the said Om Sai Associates and Surmandir. But the said Om Sai Associates and Surmandir person in collusion with the complainant by misusing his signed cheques and pro- notes have filed this false complaint against him through this complainant, though there exists no debt or liability in between himself and the complainant by placing any cogent and convincing evidence.
JUDGEMENT 36 C.C.502/2015
40. Hence, onus not shifted on the shoulder of the complainant, on the other hand it rest with the accused only. Inspite of the same the complainant has proved the alleged loan transaction in between himself and the accused and it clearly establishes through the suggestion of the accused to PW.1 and about execution of Ex.P10 and P11 documents infavour of the complainant. Because, during cross-examination of PW.1, the accused has suggested about the monitory transaction in between the accused and the complainant and so also the fact of furnishing the disputed cheque, pro-note and consideration receipt in favour of the complainant and his son i.e., PW.1 though as security and towards discharge of loan of Rs.2,00,000/- the accused has issued Ex.P2 cheque infavour of the complainant. The Ex.P2 cheque on its presentation for encashment was bounced back unpaid for the reason 'Funds Insufficient'. Despite of issuance of demand notice against the accused and its due service on the accused, since he did not come forward to settle the amount covered under the cheque, he maintained the complaint.
JUDGEMENT 37 C.C.502/2015
41. Further, though accused filed documents like Ex.D5 to D24 i.e., the memo filed by one Raghu, Suresh. M.V. and Lakshman who are the complainants in C.C.2055/2015, C.C.2056/2015 and C.C.2057/2015 along with the certified copies of cheques, endorsements of the bank and notices issued against the accused by the complainants of the above said cases and made an attempt to say that the complainant by misusing the signed blank cheques and signed blank pro-notes of the accused got filed the above said three cheque bounce cases against the accused and as there was no merit in those cases, the complainants of those cases, have withdrawn those cases by filing memo. With this the accused made an attempt to say that this complaint also filed by the complainant at the instance of one Raghu who by handing over the signed blank cheques and pro-notes of the accused allegedly given infavour of the Om Sai Associates and Surmandir as security in connection to the alleged loan transaction of Rs.15,00,000/- allegedly existed in between himself and the said Om Sai Associates and Surmandir. But, on perusal of those documents, it shows that the above said JUDGEMENT 38 C.C.502/2015 complaints in C.C.2055/2015, C.C.2056/2015 and C.C.2057/2015 were filed by the complainant therein independently and they have withdrawn the complaints as not pressed against the accused by filing memo. Mere the fact that the complaints in C.C.2055/2015, C.C.2056/2015 and C.C.2057/2015 were withdrawn by the complainants therein, cannot be a ground to suspect the case of the complainant on hand.
42. Hence, with all these reasons, this court is of the opinion that though accused made an attempt to dispel the burden which arose infavour of the complainant under Section.139 of Negotiable Instruments Act by taking the defence that he never borrowed any loan from the complainant and he never issued the disputed cheque infavour of the complainant, on the other hand he had borrowed loan of Rs.15,00,000/- from Om Sai Associates and Surmandir on furnishing his signed blank cheques, singed blank pro-note and consideration receipt as security and they were misused by this complainant and filed this JUDGEMENT 39 C.C.502/2015 false complaint against him etc. But, he has not proved his defence by placing any material and cogent evidence.
43. Hence, onus not shifted on the shoulder of the complainant; on the other hand it rests with the accused only. Despite of the same, the complainant has proved the fact that there was existence of loan transaction in between himself and the accused and towards discharge of the said loan only the accused has issued the disputed cheque and the said cheque was bounced back unpaid for the reason 'Funds Insufficient' on presentation of the same for encashment by this complainant and despite of issuance of demand notice against the accused by appraising the fact of dishonour of the cheques, though accused did not come forward to settle the amount covered under the cheque. Hence, he maintained this complaint in time.
44. Hence, the complainant has proved all the essential ingredients of Section.138 of Negotiable Instruments Act to bring home the guilt of the accused under Section.138 of JUDGEMENT 40 C.C.502/2015 Negotiable Instruments Act. Hence, I answered Point No.1 in the Affirmative.
45. POINT NO.2: In view of my discussions on Point No.1 as above, I proceed to pass the following:
ORDER Acting under Section.255(2) Cr.P.C., the accused is convicted for the offence punishable under Section.138 of Negotiable Instruments Act.
The accused shall pay a fine of Rs.3,00,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for six months.
Out of the said amount, accused shall be paid Rs.2,90,000/- to the complainant as compensation as provided under Section.357 of Cr.P.C. and Rs.10,000/- shall remitted to the state as fine.
(Dictated to the stenographer, transcribed by him, corrected and then pronounced in open court by me on this the 22nd day of March-2018.) (C.G. Vishalakshi) XIII A.C.M.M., Bengaluru.JUDGEMENT 41 C.C.502/2015
ANNEXURE Witnesses examined on behalf of the complainant:
PW.1 : Sri. Sunil M. Makhija Documents marked on behalf of the complainant:
Ex.P1 : Special Power of Attorney Ex.P2 : Cheque Ex.P3 : Endorsement Ex.P4 : Legal Notice Ex.P5&6 : Postal Receipts Ex.P7&8 : Acknowledgements Cards Ex.P9 : Reply notice Ex.P10 : On demand promissory note Ex.P11 : Consideration Receipt Ex.P12 : Complaint Ex.P13 : I.T. Returns Ex.P14 : Ledger Account
Witnesses examined on behalf of the accused:
DW.1 : R. Adimoolam Documents marked on behalf of the accused:
Ex.D1 : Statement of Income
Ex.D2 : I.T. Returns Acknowledgment
Ex.D3&4 : Ledger accounts
Ex.D5 : C/c of Memo filed in C.C.2055/15
Ex.D6 : C/c of Cheque
Ex.D7 : C/c of Return Memo
JUDGEMENT 42 C.C.502/2015
Ex.D8 : C/c of Notice
Ex.D9 : C/c of Memo filed in C.C.2056/15
Ex.D10to14: C/c of On demand promissory notes and
C/c of consideration Receipts
Ex.D15 : C/c of Cheque
Ex.D16 : C/c of Return Memo
Ex.D17 : C/c of Notice
Ex.D18 : C/c of Memo filed in C.C.2057/15
Ex.D19to22: C/c of On demand promissory notes and
C/c of consideration Receipts
Ex.D23 : C/c of Cheque
Ex.D24 : C/c of Return Memo
Ex.D25 : C/c of Notice
(C.G. Vishalakshi)
XIII A.C.M.M., Bengaluru.
* Accused copy furnished.