Bangalore District Court
Sri.D. Thejas vs Sri.Amar Vel on 17 January, 2023
KABC020030232021
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IN THE COURT OF THE JUDGE COURT OF SMALL
CAUSES AND A.C.M.M, AT BENGALURU
DATED THIS THE 17th DAY OF JANUARY-2023
PRESENT:
SRI.SOMASHEKARA.A,B.A.,L, L.L.M.
SMALL CAUSES JUDGE & MACT
CC No.780/2021
Complainant: Sri.D. Thejas,
S/o Dundegowda,
Aged about 32 years,
R/at No. 53, 6th Cross,
KHB Colony, Kanakapura,
Ramanagar District - 562117.
(By Sri.Prashanth C.N,- Adv.)
-Vs-
Accused: Sri.Amar Vel,
S/o Sampangl,
Aged about 32 years,
R/at No. 45, K.G. Halli,
Railwaygate, Arabiic College,
Post: Nagavara Main Road,
Bengaluru - 560045.
(By Smt. D. Kavitha -Adv)
Judge Sign
2 CC. No.780/2021
Judgment
JUDGMENT
This case is instituted by the complainant viz., Sri.D.Thejas, Under Section 200 of Cr.P.C. against the accused for the offence punishable Under Section U/Sec. 138 of N.I.Act.
2. The substance of allegations and assertion of the complainant is that, the complainant and accused are well acquainted with each other. The accused approached the complainant for hand loan of Rs.1,50,000/- for his financial problems and agreed to pay 1% interest per month. The complainant has paid Rs.1,50,000/- to the accused on 22.10.2019 and agreed to repay the same within three months. After lapse of said period, the accused has not repaid the same, inspite of repeated demands and request, the accused had issued cheque bearing No.952931 dated 23.01.2020 for a sum of Rs. 1,50,000/- drawn on ICICI Bank, Judge Sign 3 CC. No.780/2021 Judgment Cantonment Branch, Bengaluru, in favour of the complainant. It is alleged that as per the instructions of the accused, he has presented the said cheque through his bank, but the same was returned dishonoured by the bank for the reasons "Non CTS cheque not allowed". Thereafter, he got issued a demand notice dated 11.02.2020 through his counsel to the accused calling upon him to pay the cheque amount and said notice returned not served with an endorsement ' Insufficient Address not known' on 14.02.2020. Hence, it is alleged that the accused has committed an offence punishable Under Section 138 of N.I.Act.
3. My Predecessor in Office by taking cognizance for the offence punishable U/Sec.138 of N.I. Act, registered the case as PCR. Sworn statement of complainant was recorded. Thereafter, by perusing the Judge Sign 4 CC. No.780/2021 Judgment averments of complaint, documents, this court has registered the case as CC in register No.3 and issued summons to accused. In pursuance of summons accused appeared through his Advocate and he is on bail. Plea read over accused pleaded not guilty and claimed to be tried.
4. Thereafter, complainant in order to prove his case, he examined himself as PW1 and got marked 5 documents as per ExP1 to P5. Thereafter, statement of accused u/Sec. 313 of Cr.P.C. was recorded. On the other hand, accused examined himself as DW1 and got marked 01 documents at Ex.D1.
5. Heard the arguments and perused the materials on record.
Judge Sign 5 CC. No.780/2021 Judgment
6. The learned counsel for accused has relied upon the citation as under:
1. Criminal Appeal No. 2021/2008 ( M/s.
Harman Electronics (P) Ltd., & Anr. V/s M/s. National Panasonic India Ltd.,
2.CRMC No.381/2018 (Engineering Control v/s. Banday Infratech Pvt. Ltd.,)
3. Crimnal Appeal No. 500 of 2006 ( Prabhakar V/s. Sadhana
7. The following points are arise for my consideration:
1. Whether the complainant proves that beyond reasonable doubt that the accused towards part repayment of Rs.1,50,000/- he had issued cheque for Rs.1,50,000/- each and on its presentation, the same is got bounced for the reasons "Non CTS cheque not allowed" and inspite of legal notice the accused did not paid the cheque amount and thereby the accused is guilty for the offence punishable under Section U/Sec. 138 of N.I.Act?
2. What order?
8. My findings on the above points are as under:
Point No.1 : In the Affirmative; Point No.2 : As per the final order;
for the following:
Judge Sign 6 CC. No.780/2021 Judgment REASONS
9. Point No.1:- Existence of legally enforceable debt is a sine-qua-non for prosecuting the case U/Sec. 138 of N.I.Act. For convenient purpose the essential ingredients to constitute offence U/Sec. 138 of N.I.Act is summarized as below:
i) A cheque was issued
ii) The same was presented
iii) But it was dishonoured
iv) A notice in terms of said provision was served on the person sought to be made liable and
v) Despite of notice, any payment was made nor other obligations, if any work compared 15 days from the date of the receipt of the notice.
10. It is the core contention of the complainant that while the accused was availed hand loan Rs.1,50,000/- , towards repayment of the said amount the accused had issued Ex.P1/cheque.
11. In order to bring home the guilt of the accused, the complainant himself examined as PW.1 and Judge Sign 7 CC. No.780/2021 Judgment reiterated the contents of the complaint in his chief examination. In support of his oral evidence he has placed the documentary evidence at Ex.P1 to 5 documents.
12. Ex.P1 is the cheque in question, as could be seen from the said document, it appears that the complainant has presented the said cheque within the period of limitation from the date of its issuance. Ex.P2 is the endorsement issued by the bank by intimating that the cheque got dishonoured for the reasons "Non CTS cheque not allowed" in the accused account. Ex.P3 is the office copy of the legal notice, dtd.11.02.2020 issued to the accused in compliance with Section 138 of N.I.Act. Ex.P4 is the postal receipt, Ex.P5 is the Unserved postal cover. ExP5(a) is the copy of legal notice opened in open court.
Judge Sign 8 CC. No.780/2021 Judgment
13. Based on the oral and documentary evidence the learned counsel for the complainant vehemently argued that the complainant has complied with all the requirements of Section 138 of N.I.Act and thus he prayed for conviction of the accused.
14. On the other hand, the accused has taken a specific defense that in the year 2013 he had availed loan of Rs.30,000/- form the compalinant and towards security of the said loan he had issued Ex.P1 cheque. In the year 2014 the said loan amount was repaid by him to the complainant, on that day he requested to return the said cheque but he has postpone the same. He further stated that the complainant had filed case against one Santhosh who is his friend, in that case he had given evidence in favour of Santhosh and on that grudge the complainant mis used the cheque issued by him towards security of the loan availed in the year 2014. On the Judge Sign 9 CC. No.780/2021 Judgment above said defence the accused has examined as himself as DW1 and stated said facts.
15. The learned counsel for the complainant has submitted that so for as returning of the cheque to the complainant and Non CTS are concern it will attract Sec. U/Sec. 138 of N.I.Act. On the other hand, the accused has taken a contention that the cheque in question was issued towards security for the loan availed in the year 2013. since the said cheque is old one and as such the bank has issued endorsement stating that " Non CTS cheque not allowed". Now a short question that would arise before this court. Whether the amount covered under Ex.P1 cheque can be termed as legally recoverable debt. The standard cheque which were issued in circulation were not declared to be in valued by the bank. In view of the notification issued by the RBI dated 18.03.2013 that standards cheques were to be accepted Judge Sign 10 CC. No.780/2021 Judgment which means there is no bar in presenting non CTS cheques for encashment, therefore the ground urged by the accused does not hold water.
16. DW1 is subjected for cross-examination, wherein he has categorically admitted that the Ex.P1 cheque and signature is belongs to him. It is pertinent note that the signature found in Ex.P1 is not denied by the accused. If at all, the accused has issued the Ex.P1/Cheque towards security for the loan amount availed in the year 2013 and after its repayment he could have collect the said cheque from the complainant. But he was not done so.
17. The issuance of cheque pertaining to security cheque, guarantor cheque and cheque which are dishonour for any of the grounds mentioned in the bank statement will amount to an offence of the U/Sec. 138 of Judge Sign 11 CC. No.780/2021 Judgment N.I.Act. The hon'ble Supreme Court of India in Plethore case held that cheque issued as security or guarantor cheque are all covered the NI Act this law was laid down in Sampelli Sathyanarayana case reported in AIR 2016 SC 4623.
18. The next bone of contention taken by the accused is that the notice issued to him by the complainant is not served. In this regard, I have gone through the Ex.P5/postal cover and Ex.P5 (a) notice. On 11.02.2020 the complainant got issued the said notice to the accused but the same was returned with an endorsement "Insufficient Address not known", but in the evidence given by the accused in CC NO. 2978/2018 he has given his address which was shown in the cause title of this complaint. In this regard, in his cross examination he has categorically stated that "ನ.ಡ.1, ನ.ಪ.4 ಮತತತ ನ.ಪ.5ರಲಲ ತಳಸರತವ ವಳಳಸ ಒಒದದದ ಅಗದದ ಎಒದರದ ಸರ."
Judge Sign 12 CC. No.780/2021 Judgment This piece oral testimony the accused makes it clear that he was residing in the address given in the cause title of the complaint. Therefore, the contention taken by the accused is appears to be strange.
19. In rebuttal evidence the accused/DW1 in her chief-examination stated that the Ex.P1/cheque was issued to in the year 2013 towards security of the loan amount. This statement of the accused makes it clear that he had financial transaction with the complainant. It is pertinent note that in the cross-examination he stated that he has not taken any action against the complainant for having misused Ex.P1/cheque.
20. When once issuance of cheque is admitted this Court is required to draw a presumption as envisaged Under Section 118 and Under Section 139 of N.I.Act. At this juncture, it is worth to place reliance on Judge Sign 13 CC. No.780/2021 Judgment the following decision reported in (1999) 7 SCC 510 K.Bhaskaran V/s Shankaran Vaidhyan Balan and another decision reported in (2010) 11 SCC 441 Rangappa V/s. Mohan, (2020) 12 SCC 724 APS Forex Services Pvt. Ltd., - Versus - Shakti International Fashion linkers and ors." by reiterating the principles laid down in K.Bhaskaran V/s Shankaran Vaidhyan Balan's case and "Rangappa Vs. Mohan's" case. The Hon'ble Apex in APS Forex case has held that: "The fact that the accused has admitted the issuance of cheque and his signature on the cheque and that the cheque in question pertaining to the account, there is a presumption u/Sec. 139 of NI Act, that there exists a legally enforceable debt or liability." Even our Hon'ble High Court relying on the Hon'ble Apex Court decision recently in Criminal Appeal No.140/2011, dtd. 20 th November-2020 - Muralidhar Rao Vs. P. Nageshwar Judge Sign 14 CC. No.780/2021 Judgment Rao" has held that "a person who signs a cheque and make it over to the payee remains liable unless he adduces the evidence and rebut the presumption that the cheque had been issued for payment of debt or in discharge of a liability and the onus shifts on the accused to establish a probable defence." Further recently the Hon'ble Apex Court in Triyambaka S Hedge v/s S.Sripad Cr.L.Appeal No.849-850/2011, dated 23.09.2021 reported in L.L (Live Law) 2021 SC 492 by reiterating the same principles as held - that applying the proposition of law that when once signature is admitted to be that of accused, the presumption envisaged in Sec.118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Sec.139 of the Act enjoins on the court to presume that the holder of the cheque received it for Judge Sign 15 CC. No.780/2021 Judgment discharge of any debt or liability. The question to be looked into is as to - whether any probable defense was raised by accused. As discussed above, the complainant has been successfully established his case beyond reasonable doubt that the accused had issued the cheque in question in discharge of legally enforceable debt of rent and other perks. Since there is no contrary evidence this court is required to draw presumption as envisaged U/Sec.118 of N.I. Act that the cheque was made or drawn for consideration on the date the cheque bears and further as per Sec. U/Sec.139 of N.I.Act this court is required to draw presumption that accused has issued the said cheque for due discharge of debt.
21. Therefore, considering all these aspects of the case and totality of the circumstances and on careful and meticulous appreciation of evidence adduced on behalf Judge Sign 16 CC. No.780/2021 Judgment of complainant, the complainant has successfully established beyond all reasonable doubt that he had had advanced loan to the accused and accused for due discharge of amount, he had issued cheque under Ex.P1. On the other hand, accused has failed to rebut the presumption available in favour of complainant with regard to the existence of legally recoverable debt under Ex.P1/cheque. Thus, this Court is of the opinion that complainant has proved the ingredients of Sec.138 of N.I.Act and proved that accused has committed an offence punishable Under Section 138 of N.I.Act. Hence, for the above reasons, I answer Point No.1 in the Affirmative.
22. Point No.2: As discussed in point No.1, the complainant has proved the guilt of the accused. It is worth to note that the offence is of the nature of quasi Judge Sign 17 CC. No.780/2021 Judgment civil and quasi criminal wrong. Hence, it is proper to award sentence of fine only instead of imposing sentence of imprisonment to the accused. At this juncture, it is worth to place the reliance of recent decision of Hon'ble Apex Court reported in 2020 (1) SCC 283 Kalamani Text. and another V/s. P Balasubramaniam, Wherein the Hon'ble Apex court at head note D has held that Negotiable Instrument Act 1881- Sec. 138 - compensation under - there needs to be a consistent approach towards awarding it compensation and unless there exist special circumstance, the court should uniformly Levy fine of up to the double of cheque amount along with simple interest at 9%. So considering the pendency of the case from 2021 and loan transaction this court, feels an amount of Rs.2,00,000/- can be awarded as compensation to the complainant, which would meet the Judge Sign 18 CC. No.780/2021 Judgment ends of justice. Thus for the above reasons, I proceed to pass the following:
ORDER Acting under Section 255[2] of Cr.P.C, the accused is hereby convicted for the offence Punishable U/s.138 of the N.I. Act.
The accused is sentenced to pay total fine amount of Rs.2,05,000/-. In default of payment of fine amount, the accused shall under go Simple Imprisonment for a period six months.
After deposit of fine amount an amount of Rs.2,00,000/- shall be paid to the Complainant as compensation as provided U/s.357 (1) Cr.P.C. The remaining Rs.5,000/- be appropriated to the state as fine.
The bail bond of the accused is hereby stand cancelled.
Judge Sign 19 CC. No.780/2021 Judgment Office is directed to furnish free copy of this judgment to the accused.
(Dictated to the stenographer on computer, corrected and then pronounced by me in the open court on this the 17th day of January 2023.) ( Somashekara A) Judge & ACMM, Court of Small Causes Bengaluru.
ANNEXURE List of Witnesses examined on behalf of complainant:
PW1 Sri.D.Thejas List of Documents marked on behalf of complainant:
Ex.P1 Cheque
Ex.P1(a) Signature of accused
Ex.P2 Bank endorsement
Ex.P3 Notice
Judge Sign
20 CC. No.780/2021
Judgment
Ex.P4 Postal receipt
Ex.P5 Unserved postal cover
Ex.P5(a) Copy of notice opened in open court
List of Witnesses examined on behalf of accused:
DW.1 Sri.Amar Velu List of documents marked on behalf of accused:
Ex.D1 Certified copy of deposition in CC No.2978/2018 Judge & ACMM, Court of Small Causes Bengaluru.
Judge Sign