Bangalore District Court
Mr. D.B.Nachappa vs Mr. Bopanna.A.M on 4 May, 2019
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU
Dated this the 4th Day of May, 2019
Present: Sri. Rajkumar .S.Amminbhavi., B.Com., LLB (Spl)
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No. 4811/2018
Complainant: Mr. D.B.Nachappa,
S/o. D. Beemaiah,
Aged about 63 years,
R/at. No.301, 4th Floor,
9th Cross, 2nd Main Road,
Maruthinagara,
Yelahanka,
Bengaluru-560 064.
(By Mr. B.A.Lazar, Adv.,)
V/s
Accused: Mr. Bopanna.A.M.,
S/o. Madappa,
Aged about 38 years,
R/at. No.44,
Muniswamappa Layout,
Thindlu,
Vidyaranyapura Post,
Bengaluru - 560 097.
Working at:
ITC Ltd.,
I.D.No:SM-5401 (Secondary)
Jala,
Jala Hobli,
Bengaluru North.
(By. Mr. Arun Kumar.H.C., Adv.)
2 C.C.No:4811/2018
Offence complained of: U/s 138 of the Negotiable
Instruments Act
Plea of the accused: Pleaded not guilty
Final Order: Accused is convicted
Date of order: 04.05.2019
JUDGMENT
This is a complaint filed by the complainant under Sec.200 of Cr.P.C against the accused for the offence punishable under Sec.138 of the Negotiable Instruments Act.
2. The facts of the complaint in brief are that :
The complainant is a retired Ex-service man in the year 2014 and after his retirement again he joined service in ITI company wherein the accused was also working and thereby both of them are well acquaintacy with each other for the last 20 years. They are co-workers. Now the complainant retired from the said ITI company and thereby on account of well acquaintacy, the accused approached the complainant in the month of March 2014 for advancement of hand loan amount of Rs.4,50,000/- for his family legal necessity and to clear other debts agreeing to pay the same within a short period. Believing on good faith, the complainant advanced the said loan amount of Rs.4,50,000/- on 21/03/2014. But as per the assurance made by the accused, he failed to repay the borrowed loan 3 C.C.No:4811/2018 amount. After repeated demands made by the complainant, finally the accused issued a cheque bearing No:937448 dated 17/01/2018 for Rs.4,50,000/- drawn on Axis Bank Ltd., Yelahanka, Bengaluru. He had assured that the said cheque will be honoured on its presentation. As per the assurance made by the accused, the complainant presented the said cheque through his Bankers State Bank of India, Hospital Road, Yelahanka, Bengaluru. But the said cheque was dishonoured with an endorsement "Present in proper zone" on 18/01/2018. Immediately the said fact was informed by the complainant to the accused but he did not responded. Then the complainant got issued legal notice on 25/01/2018 by RPAD calling upon the accused to repay the cheque amount within 15 days from the date of receipt of this legal notice. The said notice was duly served upon the accused on 27/01/2018. In spite of receipt of legal notice, the accused has neither repaid the said amount nor sent any reply notice. Hence, the complainant had constrained to file the said complaint against the accused for the offence punishable under Section 138 of N.I. Act., which is well within time and based on the records available on record cognizance has been taken and registered it PCR.
3. After recording of the sworn statement of the complainant and complaint is registered in criminal case register and after issuance of summons to the accused, 4 C.C.No:4811/2018 pursuant to the summons the accused had appeared before this Court through his counsel and enlarged on bail. The substance of accusation was recorded and read over to the accused in his vernacular. He pleaded not guilty. Hence, he claims for trail.
4. In order to prove the case of the complainant, the complainant got examined himself as PW-1 and got marked 07 documents. In support of his case, he has got examined the Bank Manager of the accused as PW.2. Both have been fully cross-examined. After recording the statement of the accused under Section 313 of Cr.P.C, the accused submitted that he will adduce defence evidence, but as per order dated 19/07/2018, the counsel for the accused submitted that they have no oral evidence and hence the defence evidence was taken as no evidence and case was posted for arguments.
5. Heard arguments.
6. The following points arise for my determination;
1) Whether the complainant proves that the accused had issued a cheque bearing No:937448 dated 17/01/2018 for Rs.4,50,000/- drawn on Axis Bank Ltd., Yelahanka, Bengaluru for discharge of the amount and when the said cheque was presented for encashment, it was dishonoured with an endorsement "Present in proper zone" and after issuance of the legal notice he fails to 5 C.C.No:4811/2018 repay the said amount and thereby, the accused has committed offence punishable U/s 138 N.I.Act ?
2) What order ?
7. My answer to the above points are;
Point No.1 : In the Affirmative
Point No.2 : As per final order for the
following;
REASONS
8. POINT No.1 : The complainant got himself
examined as PW-1. He has reiterated as per the averments made in the complaint and got marked 07 documents namely, Ex.P1 cheque, Ex.P.1(a) signature of the accused, Ex.P.2 is the Bank endorsement which was dishonored with an endorsement "Present in proper zone", the office copy of the legal notice which is marked as Ex.P.3, two postal receipts are marked as Ex.P.4 and Ex.P.5, two Postal acknowledgements are marked as Ex.P.6 and Ex.P.7 and the bank account statement is marked as Ex.P.8.
9. In his cross, he deposed that he know the accused for the last 20 years since both of them were working as co-workers in ITC company after his retirement served in Army and from 2014 onwards he served at ITC company and now he is retired from the said company. At the time of his service in the said company he was getting monthly salary of Rs.30,000/- and he is also getting family pension 6 C.C.No:4811/2018 of Rs.20,000/-. But to that effect He has not produced any documents. He denied the suggestion that, he is deposing falsely that he was not at all retired as ex-service man and getting family pension of Rs.20,000/-. Out of his monthly pension and other benefits, he will spend monthly Rs.15 to 20,000/-. The accused had borrowed the loan amount of Rs.4,50,000/- on 21/03/2014 by way of cash. It is true that there is no impediment for advancement of said loan by way of cash or DD. The accused himself requested for payment of the said amount by way of cash and accordingly he has paid it by way of cash. The writing on Ex.P.1 are in his own hand writing and he volunteers that so also the signature marked as Ex.P.1(a) ink and other writings are different. Further, he volunteers that as per the assurance made by the accused, he himself wrote the contents of Ex.P.1 cheque as he has given the cheque on 14/01/2018. He has advanced the said loan amount out of his pension benefits and by bidding chit amount and totally he has paid Rs.4,50,000/-. He denied the suggestion that, the accused only borrowed the loan amount of Rs.2,00,000/- in the month of June 2016 and at that time he has given signed blank cheques for security purpose and out of the borrowed loan amount of Rs.2,00,000/- he has paid Rs.1,00,000/- by way of cash and Rs.1,00,000/- on 07/01/2018, and one cheque bearing No:021950 which was signed blank cheques and he misused the signed blank cheques and filed a false 7 C.C.No:4811/2018 complaint for residing. He has advanced the said loan amount in the presence of his wife in his house. He has not obtained any documents at the time of advancement of loan in question since both of them were working in the said ITC company and he know the accused for the last 20 to 30 years. Believing on good faith, he has advanced the said loan amount by way of cash. He denied the suggestion that, he has not at all presented the cheque for encashment on 15/01/2018. He denied the suggestion that, the legal notice as per Ex.P.3 was issued to his working place address was not duly served upon him. He denied other suggestions.
10. In support of his case, he got examined PW.2 who is the Bank Manager of the accused bank account and he deposed that Ex.P.1 cheque belongs to the bank account holder by name Mr. Bopanna, having S/B. Account No:094010100211185 and on the date of presentation of Ex.P.1 cheque on 17/01/2018, the balance amount in his S/B. account was Rs.7,190=65 and the said cheque was Non-CTS cheque and it was dishonoured with an endorsement "Present it before proper zone", since at the time of presentation of the cheque in question, the bank account was transferred to Vidyaranyapura Branch, Bengaluru and thereby only they have given endorsement as per Ex.P.2. Since at the time of presentation of the cheque he was working as Bank Manager of Axis Bank at 8 C.C.No:4811/2018 Yelahanka Branch, Bengaluru and he has produced the bank account statement of the accused who is the account holder of their Bank by name. Bopanna.A.M. for the period 01/01/2008 to 31/03/2018 and the same is marked as Ex.P.8 and the relevant entry that is on 18/01/2018 the balance amount was Rs.21,174=40 is marked as Ex.P.8(a). Though on the date of cross-examination as on tehdate i.e., on 05/04/2019, the accused and the counsel for the accused were called out, absent, hence the witness is final witness and hence the cross of PW-2 was taken as no cross.
11. On perusal of the averments made in the complaint and documents produced by the complainant and the defence set up by the accused, it is admitted fact that both of them are well known to each other since both of them were working as co-workers in ITC company for the last 20 to 25 years and the complainant prior to joining to service at ITC company he was served in Indian Army and retired as Ex-service man in the year 1994 and after his retirement he has again served in ITC company and thereby the complainant know the accused since both of them were working in the same company. Further, it is also admitted fact that prior to filing of the said complaint the complainant has complied all the necessary ingredients of Section 138 of N.I.Act. Even after service of notice, since the complainant has issued the legal notice to his residential address, the accused failed to give any reply 9 C.C.No:4811/2018 notice. The complainant advanced the said loan amount for his family legal necessity as per the request made by him on 31/03/2014 and advanced the said amount by way of cash in the presence of his wife in his house and there is no dispute that Ex.P.1 cheque belongs to his own bank account and the signature marked as Ex.P.1(a) is his own signature. Hence, as per Section 20 of N.I.Act prior to issuance of the cheque in question, there is a difference with respect to ink in Ex.P.1(a) signature and other writings of Ex.P.1 cheque and he himself volunteers that as per the instruction given by the accused he wrote the contents of Ex.P.1 cheque. With respect to source of income, he deposed that he is a retired Ex-service man and at the time of retirement he is getting family pension of Rs.20,000/- and during the course of serving in ITC company he is getting monthly salary of Rs.30,000/- and he used to spend monthly expenses of Rs.10,000/- to Rs.15,000/-. Therefore, he is having sufficient finds for advancement of loan in question. Further, the specific defence taken by the accused during the course of cross of PW-1 that in the month of June-July 2016, he had only borrowed Rs.2,00,000/- by way of cash from the complainant and he has already repaid the said amount of Rs.2,00,000/- and out of Rs.1,00,000/- paid on 07/01/2018 and at that time he has also issued cheque of Axis Bank, Vidyaranyapura Branch, Bengaluru and the cheque Number is 021950. But to substantiate the same, 10 C.C.No:4811/2018 He has not produced any documents. He has not produced his bank account statement. Therefore, it is crystal clear that he had borrowed the loan amount from the complainant, but the defence of the accused is that he has only borrowed Rs.2,00,000/- in the year 2016 in the month of June - July 2016. Whereas, the complainant has advanced the loan amount of Rs.4,50,000/- on 21/03/2014. Therefore, it can be presumed that, he had borrowed the loan amount on 21/03/2014 and to defeat the claim of the complainant he might be deposing false that in the year 2016 in June-July 2016 he has borrowed only Rs.2,00,000/- by way of cash. If that was the case, he ought to have produced his documents. If he has not at all issued the cheque in question, he ought to have given stop payment instructions to his banker, he ought to have challenged the cognizance taken by this court or ought to have given complaint against the complainant for the alleged misuse of the cheque. Therefore, the non- compliance of the aforesaid legal proceedings that itself, is very much fatal to the alleged defence taken by the accused. It can be presumed that the accused knowing fully well he had borrowed the loan amount from the complainant on 21/03/2014 and issued the cheque without having sufficient funds in his bank account and the cheque was presented at Axis Bank, Vidyaranyapura Branch, Bengaluru on 18/01/2018. The said bank account was transferred to Vidyaranyapura Branch, 11 C.C.No:4811/2018 Bengaluru from Yelahanka and thereby the endorsement is issued as "Present it before proper zone". To substantiate the same, the complainant had got examined the Bank Manager of the bank account of the accused of Axis Bank, Vidyaranyapura Branch, Bengaluru who has deposed that they have given endorsement as per Ex.P.2 to presented it before proper zone as on the date of presentation the account was not in their branch and thereby they have such endorsement as per Ex.P.2 and at the time of presentation of the cheque on 18/01/2018, he was having sufficient funds or not, PW-2 has produced the bank account statement of the accused who is the account holder of the Bank and as on 18/01/2018 he was having balance amount of Rs.21,174=40 which is marked as Ex.P.8(a). Hence, it can be presumed that knowing fully well the accused might have transferred his bank account from Yelahanka Branch, Bengaluru to Vidyaranyapura Branch, Bengaluru. On perusal of the bank account statement as per Ex.P.8, the account number mentioned in Ex.P.1 cheque and the bank account statement are one and the same. Therefore, knowing fully well to defeat the claim of the complainant he has got transferred the said bank account from Yelahanka Branch to Vidyaranyapura Branch, Bengaluru. To defeat the claim of the complainant, he failed to produce any iota of document except his oral testimony. Since he has paid Rs.2,00,000/-, except his oral testimony since he has paid 12 C.C.No:4811/2018 Rs.2,00,000/- he has not produced any iota of document. Looking to the conduct of the parties to the proceeding, the complainant is a retired Ex-service man who had served in Army and thereafter he had joined service at ITC company and at the time of filing the complaint he was aged about 63 years and he is a senior citizen. On the other hand, the age of the accused mentioned in the cause title of the complaint is 38 years. Therefore, the conduct of the parties to the proceeding in this case is to be considered. Knowing fully well the complainant being senior citizen, to defeat the claim of the complainant he has deposed falsely during the course of cross of PW-1 that he has not borrowed the loan amount as per Ex.P.1 cheque and he had borrowed only Rs.2,00,000/- in the month of June - July 2016 and already repaid the cheque amount. The defence set up by the accused is not sustainable.
12. The drawer of the cheque shall have to take abundant precaution prior to issuance of cheque in question. Therefore, in the instant case also, it can be presumed that no any ordinary prudent man will issue signed blank cheque to any other persons without having monetary transaction between themselves. Further, the complainant has proved his case by adducing cogent and corroborative evidence as per the Section 138 of N.I.Act. On the other hand, the accused has failed to rebut the defence as per Section 139 of N.I.Act by adducing cogent and 13 C.C.No:4811/2018 corroborative evidence. Hence, the probability of the preponderance is higher on the side of the complainant, rather than the accused.
13. Ordinarily offence under Section 138 of N.I.Act "mensrea" is not essential, under Section 138 of N.I.Act , is bring into operation rule of "strict liability", whereas, "mensrea" is essential ingredients in criminal offences. Therefore, The complainant has proved his case against the accused, since offence under Section 138 of N.I.Act element of Mensrea has been excluded in general public interest to curb the instances of dishonouring of cheque and to lend the credibility to the commercial transaction. Therefore, in this case also the accused knowing fully he was borrowed the loan in question from the complainant and for discharge the loan in question he has issued the Ex.P.1 to the complainant.
14. Hence, in the light of the above observation, the complainant has successfully proved that, the accused has committed offence punishable under Section 138 of N.I. Act. With these reasons, I am of the opinion that, the complainant successfully established before the Court that the accused has issued Ex.P.1 to the complainant for the legally recoverably debt. Therefore, I answer the point No.1 in the affirmative.
14 C.C.No:4811/201815. Point No.2 : In view of my findings on Point No.1 in the affirmative, I proceed to pass the following :
ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of Rs.4,70,000/- (Rupees Four lakhs and Seventy Thousand only). In default of payment of said fine amount, the accused shall undergo simple imprisonment for a period of three months.
Further ordered that, the entire fine amount of Rs.4,70,000/- (Rupees Four lakhs and Seventy Thousand only) shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C.
The bail bond and surety bond of the accused stands cancelled.
Supply a free copy of this Judgment to the accused.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified, corrected and then pronounced by me in the open Court on this the 4th day of May, 2019).
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.15 C.C.No:4811/2018
ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 Mr. D.B.Nachappa PW.2 Mr. Santhosh Banakar
List of documents exhibited on behalf of the complainant:
Ex.P.1 Cheque
Ex.P.1(a) Signature of the accused
Ex.P.2 Bank endorsement
Ex.P.3 Office copy of the legal notice
Ex.P.4 and Ex.P.5 Postal receipts
Ex.P.6 and Ex.P.7 Postal acknowledgements
Ex.P.8 Bank account statement
Ex.P.8(a) Specific entry in the bank account
statement
List of witnesses examined on behalf of the accused : Nil.
List of documents exhibited on behalf of the accused : Nil.
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.16 C.C.No:4811/2018
04/05/2019 Complainant - BAC Accused - AHC Judgment (Judgment pronounced in the open court vide separate order) ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of Rs.4,70,000/- (Rupees Four lakhs and Seventy Thousand only). In default of payment of said fine amount, the accused shall undergo simple imprisonment for a period of three months.
Further ordered that, the entire fine amount of Rs.4,70,000/- (Rupees Four lakhs and Seventy Thousand only) shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C.
The bail bond and surety bond of the accused stands cancelled.
Supply a free copy of this Judgment to the accused.
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, 17 C.C.No:4811/2018 Bengaluru City.