Bangalore District Court
S/O Sampangi vs S/O Ramee Gowda on 13 July, 2022
KABC020292342018
IN THE COURT OF THE VI ADDL. JUDGE, COURT OF SMALL CAUSES
AND ADDL. CHIEF METROPOLITAN MAGISTRATE,
BENGALURU CITY.
C.C. NO.5528-2018
Present: Smt. Shainey K.M. BAL.,LL.B.,
6th Addl. Judge, Court of Small
Causes and ACMM, Bengaluru.
Dated: On this 13th day of July, 2022.
JUDGMENT U/S 355 OF CR.P.C. 1973.
1 Sl.No. of the Case : C.C.No.5528/2018
.
2 The date of : 01.12.2018.
commission of the
.
offence
3 Name of the : Sri. AnilRaju.S
Complainant S/o Sampangi,
.
Aged about 28 years,
R/at No.66,
New Government Society
Dasarahalli, H.A.F.Post
Bengaluru-24.
(By Sri. R.Nagaraju, Advocate)
4 Name of the Sri. Praveena,
Accused : S/o Ramee Gowda,
Aged about 28 years,
R/at No.56,
Near Anganavadi Kendra,
Lalanakere Village,
Lalanakere Sub post,
Gandasi hobli,
Arsikere taluk,
Hassan district-573164.
Also At: SLR Iyengar Bakery &
Sweets, Jelli Machine Circle,
Chikkabettahalli,
Vidyaranyapura post,
Bengaluru-97.
And also at:
No.668/1, Near Harsha Wines,
Dasarahalli, HAF Post,
Bengaluru-24.
(By Sri. K.R.Ravikumar., Advocate)
5 The offence : Under Section 138 of the
complained of or Negotiable Instrument Act.
.
proves
6 Plea of the accused : Pleaded not guilty.
and his examination
.
7 Final Order : Accused is Convicted.
.
8 Date of such order for : 13.07.2022.
the following
.
JUDGMENT
This is a complaint against the accused filed under Sec. 200 of Cr. P. C. for the offence punishable under Section 138 of the Negotiable Instruments Act.
02. The brief facts of the complainant's case is as follows:
2.1. It is contended that, accused is close friend of the complainant and they both have been working together earlier, in Bakery Shop.
The accused has borrowed hand loan of Rs. 1,10,000/-, 50,000/-, 80,000/-, 60,000/-, 80,000/- and 1,00,000/- on 28.11.2016, 14.01.2017, 16.02.2017, 06.04.2017, 09.12.2017, and 13.01.2018, respectively, in total Rs. 4,80,000/-. It is contended that accused has repaid Rs. 10,000/- each on 23.12.2016, 28.12.2016 and 08.01.2017 out of Rs. 4,80,000/-. It is contended that accused has not paid the complainant the balance loan amount of Rs. 4,50,000/- . On repeated demands made by complainant for repayment of balance amount of loan, the accused has issued cheque bearing no:
791498, dtd 29.06.2018 for Rs. 4,50,000/- drawn on Karnataka Bank, Bhuvaneshwar Branch, Bengaluru, towards repayment of loan .
2.2 The complainant had presented aforesaid cheque through his banker for collection, but said cheque has been returned unpaid on 30.06.2018, 1.08.2018, 5.9.2018, and 28.09.2018 with a shara "Insufficient funds". It is contended that accused has assured to repay the loan amount on or before 29.09.2018, but he failed to clear of the dues.
2.3 That on 10.10.2018, the complainant issued a legal notice to accused through his counsel and same has been served on accused on 17.10.2018. Despite service of statutory notice, neither accused has replied the notice nor paid the cheque amount. Hence, this complaint.
03. On filing of the private complaint, the Court has taken cognizance of the above offence and proceeded with the case as there was ground to proceed against the accused.
04. The accused has put appearance before the court through his counsel, filed bail application, and offered cash surety for his appearance before the court and enlarged on bail.
05. The plea of accused was recorded, read over and explained to the accused, for which, he has not pleaded guilty and claimed to be tried.
06. In support of his case, complainant was examined as Pw:1.
Exhibits were marked as ExP:1 to 7 and closed his evidence. Learned counsel for accused has cross examined P.w.1.
07. Statement U/Sec. 313 of Cr.P.C., was recorded and read over, explained to accused and he has denied the contents of statement as false. Accused has examined himself as D.W.1. Exhibits were marked as Ex-D:1 to 5 on behalf of accused. Learned counsel for the complainant has cross examined D.w.1.
08. Heard the arguments of complainant and accused. Perused the material placed on record, now, following points arises of the consideration for the disposal of the case.
POINTS
1. Whether Complainant proves beyond all reasonable doubt that Accused has committed an offence punishable under Section 138 of Negotiable Instruments Act?
2. Whether accused has rebutted the presumption as contemplated u/sec 139 of N.I Act?
3. What order?
09. My answers to the above points are as follows:
Point no:1 : In the affirmative.
Point no:2: In the negative.
Point no.3: As per final order for the following:
:REASONS:
10. Point no:1 & 2: This is a private complaint filed against
the accused for the offence punishable under sec. 138 read with section 142 of N.I Act. On perusal of the oral and documentary evidence placed by the complainant, it reveals that the present complaint is filed well within time in accordance with the provisions of Negotiable Instruments Act. Moreover, there is no dispute with regard to taking cognizance of the offence punishable under Section 138 of N I Act.
11. At the outset, an essential ingredient of Section 138 of N.I Act is that the cheque in question must have been issued towards legal liability. Under Section 118 of the Act, a presumption shall be raised regarding consideration, date, transfer, endorsement and regarding holder in the case of negotiable instruments. Even under Section 139 of the Act, a rebuttable presumption shall be raised that, the cheque in question was issued regarding discharge of legally enforceable debt. These presumptions are mandatory provisions that are required to be raised in case of negotiable instruments.
12. It is the case of the complainant that, he lent a sum of Rs. 4,80,000/- to the accused between 28.11.2016 and 13.01.2018 and in part accused has repaid Rs 30,000/- out of it between 23.12.2016 and 09.01.2017. To pay remaining balance loan, accused cheque in question towards the repayment of balance debt.
13. To prove his case, complainant has filed affidavit in lieu of examination in chief, examined as Pw:1 and reiterated the averment made in the complaint. He has produced disputed cheque, memos issued by the banks, office copy of legal notice, postal receipt, postal acknowledgment, at Ex-P:1 to 7. It is admitted fact that, parties to the case are known to each other.
14. The accused has set up a specific defence that, he never borrowed loan from complainant at any point of time and cheque kept in Bakery of the accused was stolen by the complainant to file the present false criminal case. To substantiate his contention, accused examined himself as Dw:1 and produced documents at ExD:1 to 5. Dw:1 deposed that he had sold off his property on 16.4.2018 under registered sale deed for sale consideration of Rs 8,04,000/- and to substantiate his contention he has produced the E copy of registered sale deed, certificate under Sec. 65 B of Indian Evidence Act, and Encumbrance certificate issued by Sub-Registrar, Yalahanka at Ex-D:1 to 3. Contents of Ex-D:1-sale deed clearly reveals that aforesaid site was purchased by the accused in the year 2015 and later he sold it away to one Thatigiri Sham Kumar under registered sale deed in the year 2018.
15. It is specific plea of accused that complainant has stolen the cheque in question from the bakery of accused to gain money unlawfully and to file the present case. To substantiate his contention, accused has produced Lost Article Report dtd:
22.03.2019 and certificate U/Sec 65-B Indian Evidence Act at ExD:4 and 5, respectively.
16. Oral and documentary evidence placed on record by both parties reveals that accused has started up his bakery business from 2017. Accused has failed to show that he had started up his Bakery business prior to 2016.
17. The signature of accused appearing in ExP:1 cheque is not in dispute. Statutory notice issued by the complainant through his advocate has been duly served on accused, but he did not reply the statutory notice.
18. Counsel for the accused has cross-examined P.W.1 in detail, however, nothing worthwhile is elicited from the mouth of P.W.1 to establish the defence of the accused and to prove the fact of alleged misuse or theft of cheque. Therefore, the burden heavily lies on the accused to prove his defence and alleged misuse of cheque.
19. Firstly, the accused has failed to establish that cheque in question was stolen by the complainant which was kept in bakery of accused. Admittedly, accused has produced ExD:4-the lost Article Report, but same does not disclose that complainant had stolen the cheque in question. Even, name of the complainant not been mentioned in the complaint by the accused while lodging online complaint with police.
20. Secondly, according to accused cheque was misplaced or stolen by the complainant in the year 2016, but the complaint of missing of cheque has been lodged with police in the year 2019, that too 3 years after filing of the present private complainant.
21. Thirdly, no positive evidence is placed on record to believe that Ex-P:1 cheque in question was stolen by the complainant. Admittedly, accused has lodged online complaint with the police regarding misplace of cheque, however, no FIR has been registered by the police concerned in this regard. No action has been also taken against the complainant herein by concerned police for alleged misuse of cheque, yet now.
22. After lodging of complaint by the accused, even no charge sheet has been submitted by Investigating Officer of police station concerned either to believe that complainant had stolen the cheque in question. Even, concerned police have not taken any steps against the complainant with regarding to alleged misuse of cheque yet now. Sweeping allegations and mere lodging complaint alleging of misplace of cheque itself is not sufficient to prove the defence or rebut the evidence.
23. Fourthly, statutory notice sent by the complainant after dishonour of cheque has been duly served on accused. The notice was issued on 10.10.2018 as per Ex-P:6-statutory notice. But, he did not reply the statutory notice nor lodged complaint with police regarding alleged steal of cheque, immediately. Soon after receipt of notice. On other hand, he lodged complaint with the police on 22.3.2019 as per Ex-D:4, which is much before the cross examination of Pw:1 was commenced. There is an extraordinary delay occurred in lodging complaint with police regarding misuse of cheque in question and the conduct of accused creates doubt in mind of the court regarding genuineness of defence.
24. Fifthly, Accused had knowledge of the contents of statutory notice and it is not in dispute. Dw:1 deposed that he had not replied the statutory notice of the complainant. There is no positive evidence placed on record to believe the version of accused to prove that complainant has stolen the cheque in question in the year 2016 from the Bakery shop of accused.
25. Finally, Accused deposed that he used to keep signed blank cheque in his Bakery-shop to pay off the rent and electricity charges of the shop during his absence in the town. However, cross examination of Dw:1 clearly reveals that the building wherein he was running Bakery business was on Mortgage and so, question of paying Rent every month in respect of said shop would not arise at all, as contended by accused. The cross examination of Dw:1 further reveals that never he did pay the Electricity charges of said shop through Cheque. The accused has failed to establish that he did keep the signed blank cheque in his Bakery shop in order to pay Rent of shop or Electricity charges as well.
26. Service of Notice : It is an admitted fact that the statutory notice was duly served on accused, which is supported by clear and absolute admission given by the accused in the cross-examination.
27. Material available on record clearly reveals that financial transactions were took place between the parties to the case on various dates and accused has issued Ex-P:1 cheque to complainant towards repayment of balance loan amount.
28. Much discussion is not required in this case to hold that, accused is guilty of the offence punishable under Sce.138 of N.I. Act, because, signature of accused appearing in cheque has been admitted by the accused. Moreover, he failed to establish the alleged misuse of cheque by placing cogent and corroborative evidence. The positive evidence adduced by Pw:1 inspires the confidence of the Court. No cogent and corroborative evidence placed on record by the accused to establish that, Ex.P.1 cheque in question was stolen by the complainant in the year 2016. The oral evidence of complainant is supported with documentary evidence. Therefore, it is clear before the court that, accused has committed the offence under Sec.138 of N.I. Act.
29. There is no rebuttal evidence to disbelieve the evidence of Pw:1. Hence, the evidence of the complainant has to be believed. The accused has issued above cheque to complainant, and also he failed to prove the alleged repayment of loan, it indicates that he has failed to rebut the presumption, which is in favour of complainant. As appreciated and discussed supra, the complainant has proved by placing convincing evidence to show that accused is due of payment of cheques amount. In view of sec. 139 of NI Act, it has to be presumed that a cheque is issued in discharge of any debt or other liability. Coming back to the facts in the present case, this court is of the view that the accused did not raise a probable defence.
30. Accused herein has relied on decision of Hon'ble apex court of Karnataka reported in 2012 (3) KCCR 20157 and 2015 (1) SCC 99. Financial capacity of complainant to lend money is not seriously challenged by the accused. Moreover, amount was paid to accused on various dates. Mere denial of financial capacity of complainant does not amount valid defence. Therefore, the aforesaid decisions relied on by the accused are not helpful to accused. Accordingly, I answer point No.1 in the affirmative and point No.2 in the negative.
31. POINT No.3:- The Negotiable Instruments Act is a special enactment, and the provisions of the Act prevail over the general provisions contained in Code of Criminal Procedure. Therefore, keeping the relevant provisions of the Act in mind the sentence is to be passed. In the light of the reasons on the point No.1, I proceed to pass the following;
ORDER The accused is convicted under Section 255 (2) of Cr.P.C., for the offence punishable under Section 138 of the Negotiable Instruments Act, and he is sentenced to pay a fine of Rs.4,55,000/- (Rupees four lakhs and fifty five thousand only). In default to pay fine the accused shall undergo simple imprisonment for a period of three months.
Further, acting under Section 357(1)(a) of Cr.P.C., out of fine amount of Rs.4,55,000/- a sum of Rs.5,000/- (Rupees five thousand only), shall be defrayed as prosecution expenses to the state.
Further, acting under Section 357(1)(b) of Cr.P.C., a sum of Rs.4,50,000/- (Rupees four lakhs and fifty thousand only), amount on recovery of fine shall be paid as compensation to the complainant.
Bail bond of the accused and that of surety shall stand cancelled.
Supply a free copy of this Judgment to the accused. (Dictated to the stenographer on official laptop, typed by her, corrected, signed, then pronounced by me in open court on this the 13th July, 2022) (Smt. Shainey. K.M.) VI Addl. Judge and ACMM., Court of Small Causes, Bengaluru.
:ANNEXTURE:
LIST OF WITNESSES EXAMINED BY THE COMPLAINANT PW.1 Anil Raju.S LIST OF WITNESSES EXAMINED BY THE ACCUSED Ex.P.1 : Cheque Ex.P.1(a) : Signature of the accused Ex.P.2 to 5 : 4 Bank return memo Ex.P.6 : Notice Ex.P.6(a) : Postal receipt Ex.P.7 : Postal acknowledgment Ex.P.7(a) : Signature of the accused LIST OF DOCUMENTS MARKED ON BEHALF OF COMPLAINANT:
DW.1 : Sri. Praveena LIST OF DOCUMENTS MARKED ON BEHALF OF ACCUSED:
Ex.D.1 : Copy of sale deed
Ex.D.2 : Application U/s 65 B of IEA
Ex.D.3 : Notarized of Form No.15
Ex.D.4 : Lost article report
Ex.D.5 : Affidavit
(Smt. Shainey K.M.)
VI Addl. Judge and ACMM.,
Court of Small Causes,
Bengaluru.
Judgment pronounced in open court
(Vide separate Judgment)
ORDER
The accused is convicted under Section 255 (2) of Cr.P.C., for the offence punishable under Section 138 of the Negotiable Instruments Act, and he is sentenced to pay a fine of Rs.4,50,000/- (Rupees four lakhs and fifty thousand only). In default to pay fine the accused shall undergo simple imprisonment for a period of three months.
Further, acting under Section 357(1)(a) of Cr.P.C., out of fine amount of Rs.4,55,000/- a sum of Rs.5,000/- (Rupees five thousand only), shall be defrayed as prosecution expenses to the state.
Further, acting under Section 357(1)(b) of Cr.P.C., a sum of Rs.4,50,000/- (Rupees four lakhs and fifty thousand only), amount on recovery of fine shall be paid as compensation to the complainant. Bail bond of the accused and that of surety shall stand cancelled.
Supply a free copy of this Judgment to the accused.
VI Addl. Small Causes Judge & ACMM, Bengaluru.