Bangalore District Court
M.Govindaraju vs D.Mohan Kumar on 21 December, 2016
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 21st day of December - 2016
PRESENT: SRI. S.G.SALAGARE, B.Sc., LL.B.,(Spl)
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.15919/2013
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : M.Govindaraju,
S/o.Late.Munikrishnappa,
Aged about 45 years,
R/at No.36, Sarakki,
Bengaluru-78.
(Rep. by Sri.K.Venkatesh, Advocate)
V/S
Accused : D.Mohan Kumar,
S/o.Dasasetty,
Major in age,
R/at. No.27, 3rd Main Road,
1st Cross, NTI Extension,
RMV II Stage, Bengaluru.
(Rep. by Sri.Shanthkumar.B, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Convicted.
DATE OF ORDER : 21.12.2016.
(S.G.SALAGARE)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.15919/2013
JUDGMENT
This complaint is filed by the complainant against the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the complaint are as under:
Complainant and accused are knew each other and they are friends. In order to contest the Assembly Election to be held on 05.05.2013, accused had approached and requested the complainant on 20.04.2013 for hand loan of Rs.1,08,000/-, and promised to repay the said amount within short period. After considering the request of accused, complainant has paid Rs.1,08,000/- to the accused by way of cash on 22.04.2013. After stipulated period, complainant demanded for repayment of the above said loan amount, and the accused in order to discharge his liability has issued a cheque bearing No.504342 dated:15.05.2013 drawn for Rs.1,08,000/- drawn on Indian Bank, Sadashivanagar Branch, Bengaluru in favour of complainant and assured that the said cheque will be honoured on its presentation.Judgment 3 C.C.15919/2013
It is further case of complainant that, he has presented the said cheque through his banker for collection. On 21.05.2013 the said cheque was returned unpaid for the reasons "Funds Insufficient" in the account maintained by the accused. On 27.05.2013, the complainant brought this fact to the knowledge of accused by issuing demand notice through RPAD, and the said demand notice was duly served upon accused. After receipt of notice the accused has neither paid the cheque amount nor replied the notice. Hence, the complainant has filed the complaint against the accused for the offence punishable under Section 138 of Negotiable Instruments Act and prayed to punish the accused with maximum sentence and to award compensation to the complainant.
3. My predecessor after perusing records, took cognizance of offence, and recorded sworn statement, ordered to register Criminal Case against the accused for the offence punishable under Section 138 of Negotiable Instruments Act. The accused after service of summons put his appearance through his counsel and has been enlarged on bail. Thereafter, the court has recorded the Judgment 4 C.C.15919/2013 plea of accused and the accused has pleaded not guilty of the offence and claims to be tried. Hence, the case was posted for trial.
4. The complainant in order to prove his case, got examined himself as PW-1 and got marked eight documents at Exs.P1 to P8 and closed his side. After completion of the evidence of complainant, the substance of the evidence has been read over and explained to the accused under Section 313 of Cr.P.C., the accused denied all the incriminating evidence arisen against him. In the cross-examination of PW.1, accused counsel got confronted one document and same is marked as Ex.D1. The accused has been given sufficient opportunities to lead his defence evidence, but the accused has not led any oral evidence.
6. I have heard the arguments of complainant side, and perused the materials placed on record. The complainant counsel has also submitted his detailed written arguments. The accused side arguments is not led, hence the case is posted for Judgment on Merit.
6. The following points would arise for my consideration: Judgment 5 C.C.15919/2013
1) Whether the complainant proves beyond all reasonable doubt that, he had advanced Rs.1,08,000/- hand loan to the accused and Ex.P1 - cheque bearing No.504342 dated:
15.05.2013 drawn for Rs.1,08,000/- drawn on Indian Bank, Sadashivanagar Branch, Bengaluru is issued in favour of complainant for discharge of the said amount, and on its presentation, cheque came to be dishonoured for the reasons 'Funds Insufficient' and even after service of notice, the accused has failed to repay the amount and thereby accused is guilty of the offence punishable under Section 138 of N.I.Act?
2) What Order?
7. My findings on the above points are as under:
Point No.1 : In the Affirmative Point No.2 : As per final order, for the following:
REASONS
8. POINT NO.1: It is alleged that, the accused had borrowed an amount of Rs.1,08,000/- from complainant, and the accused to discharge his liability has issued a cheque bearing No.504342 dated:15.05.2013 drawn for Rs.1,08,000/- drawn on Indian Bank, Sadashivanagar Branch, Bengaluru in favour of complainant. When the Judgment 6 C.C.15919/2013 said cheque was presented for encashment, same was dishonoured for the reasons 'Funds Insufficient'. Even after issuance of demand notice, accused has not made any arrangement for return of cheque amount. The accused has denied the accusation made against him.
9. To prove his case, the complainant got examined himself as PW.1 by filing his affidavit in lieu of his examination in chief evidence. In the affidavit, PW.1 has reiterated the averments made in the complaint and in support of his contention; PW.1 has got marked eight documents. Among them cheque bearing No.504342 dated:15.05.2013 drawn for Rs.1,08,000/- is marked as Ex.P1. The said cheque is drawn on Indian Bank, Sadashivanagar Branch, Bengaluru in favour of complainant. The signature of accused is marked as Ex.P1(a). Ex.P2 is the Bank Endorsement issued by the Indian Overseas Bank, the contents of Ex.P2 disclose that, the cheque bearing No.504342, drawn for Rs.1,08,000/- is dishonoured for the reasons 'Funds Insufficient', Ex.P3 is the Inward Returns Report dated:22.05.2013 issued by the Indian Overseas Bank, Ex.P4 is the Demand Notice dated:27.05.2013, the recitals of Ex.P4 disclose that, the Judgment 7 C.C.15919/2013 complainant has issued this notice to the accused through his counsel. By issuing this notice complainant called upon the accused to repay the cheque amount of Rs.1,08,000/- within 15 days from the date of receipt of notice. Ex.P5 is the Postal receipt, Ex.P6 is the Postal Acknowledgment Card, Ex.P7 is the Complaint dated:29.08.2013 lodged by the complainant against the accused before the Sanjay Nagar Police Station and Ex.P8 is the NCR issued by the J.P.Nagar Police Station.
10. In the cross-examination of PW.1 it is suggested that, on 17.05.2013 PW.1, his brother's son by name Ramesh, his body guard Murali went to the house of accused and picked up quarrel with accused, at that time they gave threat to accused, his wife and children and forcibly obtained signature of accused on the cheque belonging to accused. Thus it is crystal clear that, Ex.P1 cheque belongs to accused and signature marked at Ex.P1(a) is that of accused. When accused has admitted the cheque and signature, then presumption arises in favour of complainant under Section 118(a) of Negotiable Instruments Act that, cheque is issued for valid Judgment 8 C.C.15919/2013 consideration. Further, on perusal of Ex.P1 to P6, it is crystal clear that, complainant has complied the provisions of Section 138 of Negotiable Instruments Act. Hence, the initial presumption arises in favour of complainant under Section 139 of Negotiable Instruments Act that accused has issued the cheque for discharge of legally recoverable debt. The presumptions arisen in favour of complainant are rebuttable presumptions, and accused can rebut the presumptions by cross-examining PW.1 or by adducing defence evidence or by both.
11. To rebut the presumptions arisen in favour of complainant, accused has choosen to cross-examine PW.1 and he has not adduced the defence evidence. In the chief- examination affidavit PW.1 stated that, accused approached him on 20.04.2013 and requested for amount of Rs.1,08,000/-. On 22.04.2013 he paid Rs.1,08,000/- to accused by cash. PW.1 has stated that, accused borrowed the amount to contest for assembly election to be held on 05.05.2013. After election when he demanded for return of amount, accused has issued the cheque bearing No.504342, dated:15.05.2013. Later he presented the Judgment 9 C.C.15919/2013 cheque for encashment, but on 21.05.2013 the said cheque was returned unpaid for the reasons 'funds insufficient' in the account maintained by the accused. He got issued legal notice on 27.05.2013, and called upon the accused to repay the cheque amount. In the cross-examination PW.1 stated that, he is running MGR Enterprises, wherein the amusement games are conducted for children, and it is conducted in a rented premises. PW.1 stated that, he is getting profit of Rs.20,000/- per month from the said amusement games. PW.1 further stated that, he was party worker of BSR Congress and he contested for Assembly Election at Kanakapura Constituency on behalf of BSR Congress party. PW.1 stated that, accused was working in the office of BSR Congress and therefore he came in contact with accused. PW.1 stated that, he gave amount to accused in a hotel and he did not remember the name of the said hotel. PW.1 denied the suggestion that, he had no capacity to lend Rs.1,08,000/-. PW.1 denied the suggestion that, in Kanakapura he opened the election office in the house of accused for the purpose of election. PW.1 denied the suggestion that, he has not paid the rent and picked up quarrel with accused. PW.1 denied the Judgment 10 C.C.15919/2013 suggestion that, during the quarrel he threatened the accused, his wife and children and forcibly obtained the signature of accused on a blank cheque belonging to accused and got filled up the date on the cheque. PW.1 admitted that, in this aspect accused has lodged a complaint against him at Sanjayanagar Police Station.
12. Ex.D1 is the complaint lodged by the accused on 17.05.2013 before the Sanjayanagar Police Station. The recitals of Ex.D1 disclose that, accused was working in the BSR Congress office; at that time he came in contact with complainant. On 17.05.2013 at about 8.00 a.m. complainant, his brother's son Ramesh, his body guard Murali came to his house and abused him in filthy words and gave life threat to him, at that time complainant has forcibly obtained a cheque from him by putting date as 15.05.2013 and obtained his signature. Accused has also obtained his signature on a blank white paper, and under the threat and coercion he has signed the cheque. The Sanjayanagar Police has registered the case as NCR No.206/2013. Ex.P7 is the explanation given by the complainant to the complaint lodged by accused before Judgment 11 C.C.15919/2013 Sanjayanagar Police Station. The recitals of Ex.P7 disclose that, PW.1 stated that on 24.04.2013 accused has borrowed money from him for a period of one week and on 12.05.2013 accused, himself has called him and issued cheque for Rs.1,08,000/-. Accused has made false allegations in the complaint i.e., Ex.D1.
13. From the oral and documentary evidence adduced by both sides, it is crystal clear that, Ex.P1 cheque belongs to accused and Ex.P1(a) signature is that of accused. It is the contention of complainant that, on 22.04.2013 accused borrowed Rs.1,08,000/- from him. It is the contention of accused that, complainant has forcibly obtained his cheque and signature under the threat and coercion. As per Ex.D1 complainant came to the house of accused on 17.05.2013 and obtained his cheque forcibly. As per the Ex.P7, accused has borrowed money from complainant on 24.04.2013 and issued the cheque on 12.05.2013. PW.1 has denied the allegations made by the accused.
14. To substantiate his contention, accused has not entered the witness box and has not adduced his oral evidence. Accused also has not examined any witness to Judgment 12 C.C.15919/2013 establish that, quarrel took place between himself and complainant, and complainant gave life threat and forcibly obtained the cheque from him. Complaint is lodged by accused on 17.05.2013. Accused has not stated about the further action taken by the police on the basis of Ex.D1. It is not stated, whether final report is submitted or not? After that complainant had issued legal notice dated:27.05.2013, calling upon the accused to repay the cheque amount. Ex.P6 disclose that, notice is duly served upon accused. Accused has not given any reply to the demand notice. Accused has not denied the contents of demand notice. Accused has also not entered the witness box and denied the claim of complainant. Accused has not proved that, complainant obtained his cheque and signature on cheque forcibly by giving threat. Accused stated that, complainant had opened an office on the upstair of his house for the election purpose, but same is not proved by the accused by producing the relevant documentary evidence. Complainant has stated that, he is running amusement game under the name and style as MGR Enterprises and this fact is not denied the accused. Complainant has stated that, he is getting profit of Judgment 13 C.C.15919/2013 Rs.20,000/- per month from the amusement games. It can be easily presumed that, from the amusement games Rs.20,000/- per month profit can be obtained. Therefore, the contention of accused that, complainant had no capacity to lend Rs.1,08,000/- cannot be believed and accepted. Accused has not led or adduced clinching evidence to believe that, complainant has obtained his cheque by giving threat and coercion. Therefore, the evidence placed on record clearly probablize that, accused has borrowed hand loan of Rs.1,08,000/- from complainant and issued Ex.P1 cheque for discharge of said amount. The evidence placed on record clearly disclose that, accused has failed to rebut the presumptions arisen in favour of complainant. Complainant by examining himself as PW.1 and by marking the documents at Ex.P1 to P8 has established that complainant has complied all the provisions of Section 138 of Negotiable Instruments Act. Complainant has proved that the accused has committed an offence punishable under Section 138 of Negotiable Instruments Act. Hence, in view of the above said reasons, I hold point No.1 in the Affirmative.
Judgment 14 C.C.15919/2013
15. Point No.2: In view of my findings on point No.1, I proceed to pass the following:
ORDER Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act.
The accused is sentenced to pay total fine amount of Rs.1,50,000/- (Rupees One lakh fifty thousand only). In default accused shall under go simple imprisonment for 02 (two) months.
Out of the total fine amount a sum of Rs.1,45,000/- (Rupees One lakh forty five thousand only) is ordered to be paid to the complainant by way of compensation under Section 357 of Cr.P.C. The balance amount of Rs.5,000/- (Rupees five thousand only) shall be remitted as fine to the State.
The bail bond and surety bond of the accused stands cancelled.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 21st day of December - 2016) (S.G.SALAGARE) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 15 C.C.15919/2013ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : M.Govindaraju List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Ex.P1(a) : Signature of accused Ex.P2 : Bank endorsement Ex.P3 : Inward Returns Report Ex.P4 : Office copy of legal notice Ex.P5 : Postal receipt Ex.P6 : Postal Acknowledgment card Ex.P7 : Complaint Ex.P8 : NCR
List of Witnesses examined on behalf of the defence:
- None -
List of Exhibits marked on behalf of defence:
Ex.D1 : Complaint dtd:17.05.2013
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 16 C.C.15919/2013
21.12.2016.
Comp -
Accd -
For Judgment
Judgment pronounced in the open court
vide separate order.
*****
ORDER
Acting under Section 255(2) of
Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act.
The accused is sentenced to pay total fine amount of Rs.1,50,000/- (Rupees One lakh fifty thousand only). In default accused shall under go simple imprisonment for 02 (two) months.
Out of the total fine amount a sum of Rs.1,45,000/- (Rupees One lakh forty five thousand only) is ordered to be paid to the complainant by way of compensation under Section 357 of Cr.P.C. The balance amount of Rs.5,000/- (Rupees five thousand only) shall be remitted as fine to the State.Judgment 17 C.C.15919/2013
The bail bond and surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.