Bangalore District Court
Sri. K. Nagarjun vs Sri. N.Vasukinath on 6 January, 2020
1 C.C.No.4242/2018 J
THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated:- This the 6th day of January, 2020
i.
Present: Sri.S.B.HANDRAL, B.Sc., L.L.B(SPL).,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : i. C.C.No.4242/2018
Complainant : Sri. K. Nagarjun,
S/o. Sri.M.S.Krishnamurthy,
Aged about 38 years,
R/at No.9, 11/1, T.G.Comforts,
2nd Floor, Arekere Main Road,
B.G. Road,
Bengaluru -560 076.
Rep. by Sri Ravishankar T.P.,
Adv.,)
- Vs -
Accused : Sri. N.Vasukinath,
S/o. Late Narayana Shastry,
Aged about.. years,
R/at No.7, 16th Cross,
Gayathri Layout,
Basavanapura Main Road,
Krishnarajapura,
Bengaluru - 560 036.
(Rep. by Sri. Nanda Kumar., Adv.,)
Case instituted : 22.5.2017
2 C.C.No.4242/2018 J
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 6.1.2020
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, his mother late Smt.Vasanthakuamri was employed in Ministry of Commerce and Industry as Addl. Director General of Foreign Trade at Bengaluru and she was holding responsible post in the said department and had retired from service on Superannuation on 31.5.2012 and was having sufficient amount in her bank account which was earned by her. The Accused was their family priest since the year 2003 and developed a good relationship with his mother and family and had knowledge of potentiality of his mother and family accordingly the Accused approached along with his 3 C.C.No.4242/2018 J wife to his mother during the year 2009 seeking financial assistance to a tune of Rs.16 Lakhs for purchase of house property at Bengaluru for which his mother assured to assist the Accused by way of financial help from time to time upon the assurance made by the Accused to his mother that, he would repay the same in installments. It is further contended that, his mother had paid a sum of Rs.16 Lakhs on various dates to the Accused and said amount was received by the Accused on various dates between November 2009 to November 2010. In the year 2014 his mother was diagnosed as Liver cancer and therefore she began to demand the loan amount to the Accused but the Accused went on postponing the same on one or the other pretext and on 2.12.2015 his mother expired at Bengaluru thereafter the Accused began to avoid him and his other family members in order to escape from repayment of the loan amount of Rs.16 Lakhs availed by him from his mother, hence left with no other alternative he has lodged a police complaint before Tilaknagar police station on 24.3.2016 against the Accused. Thereafter the Accused is a priest and respected person in the society in order to 4 C.C.No.4242/2018 J avoid legal complications discussed with him and his family members on 14.4.2016 and acknowledged his liability to repay the amount borrowed from his mother the Accused along with his wife undertaken to repay the said loan amount along with interest, later on 18.4.2016 the Accused and his wife had sent a loan under taking agreement along with a cheque bearing No. 059791 drawn on Vijaya Bank, K.R.Puram branch, Bengaluru for Rs.16 Lakhs in his name towards repayment of the loan amount availed by him from his mother and also promised debt he will settle the dues by honoring the cheque on 13.2.2017. It is further contended that, he has also made mobile call through his mobile No. 9886698855 on 3.4.2016 at 21.17 p.m., on 5.5.2016 at 8.08 a.m. and on 8.4.2016 at 21.35 p.m to the Accused mobile No. 8050912168, during the conversation the Accused and his wife Smt. Poornima admitted the liability and assured to make the payment but till today did not paid the amount covered under the cheque. It is further contended that, as per the request made by the Accused he has presented the said cheque issued by the Accused through his banker i.e. Karnataka Bank 5 C.C.No.4242/2018 J Ltd., Jayanagara 9th block Branch, Bengaluru for encashment on 14.2.2017 but the said cheque was dishonoured for the reason "Funds Insufficient' vide endorsement dated: 17.2.2017 and thereafter he was intimated the said fact to the Accused but Accused did not pay the cheque amount, hence on 11.3.2017 issued legal notice to his correct residential address and same has been served on him and the Accused issued untenable reply dated:
25.4.2017. Hence the complainant has filed this present complainant against the Accused for the offence punishable U/s.138 of Negotiable Instruments Act.
3. Before issuing process against the accused, the Complainant has filed his affidavit-in-lieu of his sworn statement, in which, he has reiterated the averments of the complaint. In support of his sworn statement, P.W.1 has relied upon the documentary evidence as per Ex.P.1 to P.5 i.e, Original Cheque dated:-13.2.2017 as per Ex.P.1, the signature on the said cheque identified by P.W.1 as that of the accused as per Ex.P.1(a), the Bank Memos as per Ex.P.2, the office copy of the Legal Notice as per 6 C.C.No.4242/2018 J Ex.P.3, the Postal Receipt as per Ex.P.4 reply notice as per Ex.P.5.
4. Prima-facie case has been made out against the accused and summons was issued against the accused in turn he has appeared before the court and got enlarged on bail and the substance of the accusation has been read over to him, to which he pleaded not guilty and claims to be tried.
5. In view of the principles of law laid down and as per the directions of the Hon'ble Apex Court in the decision of the Indian Bank Association Vs., Union of India, reported in 2014 (5) SCC 590, after recording the plea of the accused, as he intended to set out his defence, the case was posted for the complainant evidence.
6. The complainant himself examined as PW.1 and he has filed his affidavit, in which he has reiterated the complaint averments. The Complainant in addition to the Ex.P.1 to P.5 documents which were got marked at the time of recording of sworn statement has produced loan 7 C.C.No.4242/2018 J undertaking agreement dated: 14.4.2016 executed by the Accused and his wife as per Ex.P.6, and signatures found on the Ex.P.6 of the Accused and his wife, and the complainant are as per Ex.P.6(a) to P.6(c) respectively. The copy of the office order No. 18/2012 dated: 31.5.2012 is as per Ex.P.7, copy of the Death certificate of complainant's mother as pre Ex.P.8, copy of the complaint lodged by the complainant against the Accused and his wife as per Ex.P.9 and closed his side.
7. Thereafter, the statement of the accused as required under Sec.313 of the Cr.P.C. has been recorded. He has denied the incriminating evidence appearing against him and has not chosen to lead his rebuttal evidence.
8. Heard and perused the written arguments submitted by both learned counsels for the complainant and the Accused and perused the decisions submitted by the learned counsel for the complainant and Accused and materials on record.
9. On the basis of complaint, evidence of complainant and documents and having heard the 8 C.C.No.4242/2018 J arguments of both learned counsels for the complainant and the accused, the following points that are arise for consideration are:-
1. Whether the complainant proves that the accused has issued cheque for Rs.16,00,000/= bearing No.059791 dated:- 13.2.2017 drawn on Vijaya Bank, K.R.Puram branch, Bengaluru.
to discharge legally recoverable debt to the complainant and when the complainant has presented a cheque for encashment through his banker but the said cheques have been dishonoured for the reasons "Funds Insufficient" on 17.2.2017 and the complainant issued legal notice to the accused on 11.3.2017 and inspite of it the accused has not paid the cheque amount within prescribed period there by the accused has committed an offence U/s.138 of the Negotiable instruments Act?
2. What Order?
10. The above points are answered as under:
Point No.1: In the Affirmative Point No.2:As per final order for the following:
REASONS
11. Point No.1: Before appreciation of the 9 C.C.No.4242/2018 J facts and oral and documentary evidence of the present case, it is relevant to mention that under criminal jurisprudence prosecution is required to establish guilt of the Accused beyond all reasonable doubts however, a proceedings U/s.138 of N.I.Act is quasi criminal in nature. In these proceedings proof beyond all reasonable doubt is subject to presumptions as envisaged U/s.118, 139 and 136 of N.I.Act. An essential ingredient of Sec. 138 of N.I.Act is that, whether a person issues cheque to be encashed and the cheque so issued is towards payment of debt or liability and if it is returned as unpaid for want of funds, then the person issuing such cheque shall be deemed to have been committed an offence. The offence U/s.138 of N.I. Act pre-supposes three conditions for prosecution of an offence which are as under:
1. Cheque shall be presented for payment within specified time i.e., from the date of issue or before expiry of its validity.
2. The holder shall issue a notice demanding payment in writing to the drawer within one month from the date of receipt of information of the bounced cheque and 10 C.C.No.4242/2018 J
3. The drawer inspite of demand notice fails to make payment within 15 days from the date of receipt of such notice.
If the above said three conditions are satisfied by holder in due course gets cause action to launch prosecution against the drawer of the bounced cheque and as per Sec.142(b) of the N.I. Act, the complaint has to be filed within one month from the date on which cause of action arise to file complaint.
12. It is also one of the essential ingredients of Sec. 138 of N.I.Act that, a cheque in question must have been issued towards legally recoverable debt or liability. Sec. 118 and 139 of N.I.Act envisages certain presumptions i.e.,U/s.118 a presumption shall be raised regarding 'consideration' 'date' 'transfer' 'endorsement' and holder in course of Negotiable Instrument. Even Sec.139 of the Act are rebuttable presumptions shall be raised that, the cheque in question was issued regarding discharge of a legally recoverable or enforceable debt and these presumptions are mandatory presumptions that are required to be raised in cases of negotiable instrument, but the said presumptions are not 11 C.C.No.4242/2018 J conclusive and rebuttable one, this proportion of law has been laid down by the Hon'ble Apex Court of India and Hon'ble High Court of Karnataka in catena of decisions.
13. In the present case the complainant has examined as PW.1 by filing his affidavit evidence wherein he has reiterated the entire contents of the complaint. The complainant/PW.1 testified that, his deceased mother was an employee in Ministry of Commerce and Industry as Addl. Director General of foreign Trade at Bengaluru and Accused being his family priest had knowledge of potentiality of his mother , accordingly he approached his mother and asked financial assistance of Rs.16 Lakhs for purchase of House property at Bengaluru by agreeing to repay the said amount in installments, accordingly his mother has paid an amount of Rs.16 Lakhs on various dates to the Accused and thereafter in the year 2014 she was diagnosed as Liver cancer and at that time she demanded for repayment of the amount but the Accused went on postponing on one or other pretext and on 20.12.2015 his mother got expired, thereafter the 12 C.C.No.4242/2018 J Accused avoided in order to escape from repayment of the loan amount for which he lodged the complaint before the Tilaknagar police station against the Accused and his wife, thereafter the Accused discussed with him and his family members and agreed and acknowledged his liability to repay the loan amount along with interest which was borrowed from his mother, consequently executed a repayment undertaking and issued post dated cheque i.e Ex.P.1 for sum of Rs.16 Lakhs in his name towards discharge of the loan borrowed by him from his mother by assuring to settle the dues by honoring the cheque on 13.2.2017.The complainanat/Pw.1 further testified that, he has presented the said cheque on 14.2.2017 through his banker but the said cheque was dishonoured for the reason of "Funds Insufficient" on 17.2.2017, thereafter he got issued legal notice dated:
11.3.2017 through RPAD and the said notice was served on him but the Accused issued untenable reply and failed to comply with the demand made in the legal notice.
14. In support of oral evidence the 13 C.C.No.4242/2018 J complainant/PW.1 has produced documents Original Cheque dated:-13.2.2017 as per Ex.P.1 , the signature on the said cheque identified by P.W.1 as that of the accused as per Ex.P.1(a), the Bank Memos as per Ex.P.2, the office copy of the Legal Notice as per Ex.P.3, the Postal Receipt as per Ex.P.4 reply notice as per Ex.P.5, loan undertaking agreement dated: 14.4.2016 executed by the Accused and his wife as per Ex.P.6, and signatures found on the Ex.P.6 of the Accused and his wife and the complainant are as per Ex.P.6(a) to P.6(c) respectively. The copy of the office order No. 18/2012 dated: 31.5.2012 is as per Ex.P.7, copy of the Death certificate of complainant's mother as per Ex.P.8, copy of the complaint lodged by the complainant against the Accused and his wife as per Ex.P.9 and closed his side.
15. On careful perusal of the defence of the Accused and reply notice i.e Ex.P.5 issued by the Accused, the Accused in his reply notice denied his acquaintance with the mother of the complainant but during the course of cross-examination has admitted that, earlier he had borrowed a loan 14 C.C.No.4242/2018 J amount of Rs.1,60,000/= from the mother of the complainant and repaid the said amount, hence it goes to show that though the Accused has denied his acquaintance with the complainant's mother but he admits in the cross-examination. It is also not in dispute that, as on the date of filign of the complaint the mother of the complainant was died and the complainant is the legal heir to his mother . the Accused has not disputed the death certificate i.e Ex.P.8 produced by the complainant makes it clear that, the mother of the complainant was died on 20.12.2015. it is also not in dispute by the Accused that, the mother of the complainant was retired from her services on attaining the age of superannuation on 31.5.2012 i.e. as per Ex.P.7.
16. The Accused in his defence has denied the loan transaction in question and issue of cheque in question towards discharge of loan in question. It is the specific defence of the Accused that, the complainant had influenced the police officials in order to make unlawful gain from him has fraudulently and by way of coercion and undue influence obtained the cheque in question and also 15 C.C.No.4242/2018 J loan undertaking agreement i.e. Ex.P.1 and P.6 in the police station and he is not liable to pay any amount to the complainant, there was no occasion to him to issue the Ex. P.1 and P.6. Hence, from the defence of the Accused makes it clear that, though the Accused has denied the loan transaction in question and issuance of Ex.P.1 and P.6 towards discharge of loan amount in question but he has admitted that, the cheque in question is belong to his account and signature appearing on the cheque i.e. Ex.P.1(a) is that of his signature. In relation to the service of notice, it is not in dispute that, the Accused has received the legal notice caused by the complainant and in turn has issued reply to the said notice. Therefore, it goes to show that, there is no dispute with regard to service of notice upon the Accused.
17. Therefore on careful perusals of the oral and documentary evidence produced by the complainant i.e Ex.P.1 to P.5 and admitted facts by the Accused in respect of cheque in question belongs to his account and his signature found on cheque i.e. Ex.P.1(a) is that of his signature and 16 C.C.No.4242/2018 J service of legal notice it can be held that, the complainant has discharged his initial burden by complying the mandatory requirements as required U/s.138 of Negotiable Instruments Act and initially the presumptions are available infavour of the complainant U/s.118 and 139 of the Negotiable Instruments Act. Consequently it is for the Accused to rebut the presumption available in favour of the complainant and to show that, cheque in question was not issued either in favour of the complainant or towards discharge of any legally recoverable debt or liability by producing cogent and convincible evidence but not mere suggestions or even by plausible explanations.
18. It is the specific defence of the Accused that, he has not borrowed any loan amount from the mother of the complainant much less the loan amount of Rs.16 Lakhs from the mother of the complainant and the cheque in question i.e Ex.p.1 and loan undertaking agreement i.e Ex.P.6 have not been issued by the Accused in favour of the complainant towards discharge of the alleged loan amount in question. The Accused has also denied 17 C.C.No.4242/2018 J the financial capacity of the mother of the complainant. In order to prove the claim of the complainant that, his mother during her life time had lent an amount of Rs.16 Lakhs to the Accused on various dated during the year 2009 to 2010, the complainant has not produced the documents but he has relied upon the document i.e. Ex.P.6 loan repayment undertaking agreement executed by the Accused and his wife dated: 14.4.2016 in favour of the complainant by acknowledging the loan amount of Rs.16 Lakhs received from the mother of the complainant and also agreed to repay the said loan amount infavour of the complainant by issuing the Ex.P.1 cheque for sum of Rs.16 Lakhs to the complainant.
19. The Accused during the course of cross-
examination of the complainant has specifically denied the issuance of cheque in question and loan undertaking agreement i.e. Ex.P.1 and P.6 in favour of the complainant by contending that, the complainant has influenced the police officials i.e PSI of the concerned police station and obtained the Ex.P.1 and P.6 under coercion and undue influence.
18 C.C.No.4242/2018 JOn Careful perusal of Ex.P.6 wherein it is written that, the Accused and his wife have acknowledged the loan transaction in question i.e they had received an amount of Rs.16 Lakhs from the mother of the complainant i.e Smt.T.Vasanthakumari by way of cash for the purpose of purchase of house. It is also recited that, the mother of the complainant was died on 20.12.2015 and the Accused had agreed to repay the loan amount of Rs.16 Lakhs to the complainant which was borrowed from his deceased mother during her life time and also issued a cheque bearing No. 059791 on 18.4.2016 in favour of the complainant. It is also seen from Ex.p.6 that, the Accused has affixed his signature to Ex.P.6 which is at Ex.p.6(a) and his wife was also affixed her signature which is identified by the complainant at Ex.P.6(b) and the signature of the complainant is at Ex.P.6(c). It is a relevant here to mention that, the Accused during the course of cross-examination of the complainant has not disputed the recitals and signatures of the Accused and his wife in Ex.P.6 which is evidenced by the suggestions made to the PW.1 at page No.2 in para No.2 of cross- examination reads as under:
19 C.C.No.4242/2018 J2. £Á£ÀÄ ¢£ÁAPÀB 24.3.2012 gÀ°è w®PÀ£U À ÀgÀ ¥ÉÇðøï oÁuÉAiÀÄ°è zÀÆgÀÄ PÉÆnÖgÀÄvÉÛÃ£É JAzÀgÉ ¤d £Á£ÀÄ zÀÆgÀÄ PÉÆlÖ £ÀAvÀgÀ DgÉÆæAiÀÄ£ÀÄß ¥ÉÇðøï oÁuÉUÉ PÀgɬĸÀ¯ÁVvÀÛÄ JAzÀgÉ ¤d. DgÉÆæ ¥ÉÇðøï oÁuÉUÉ §AzÀ £ÀAvÀgÀ C°è ¤¦.1 ZÉPÀÌ£ÀÄß ªÀÄvÀÄÛ ¤¦.6 gÀ°ègÀĪÀ zÁR¯ÁwUÀ¼À£ÀÄß §gÉzÀÄPÉÆnÖgÀÄvÁÛ£ÉAzÀgÉ ¸ÀjAiÀÄ®è.
Further at para No. 3 suggested as under:-
3. ¤¦.1 ZÉPÀÌ£ÀÄß ªÀÄvÀÄÛ ¤¦.6 gÀ°gÀĪÀ CVæªÉÄAmï ¥ÉÇðøï oÁuÉAiÀÄ°è DgÉÆæAiÀÄ PÉʬÄAzÀÀ §®ªÀAvÀªÁV §gɬĹPÉƼÀî¯ÁVzÉ JAzÀgÉ ¸ÀjAiÀÄ®è.
Hence on careful perusal of the above suggestion made to the complainant makes it clear that, the Accused has admitted the issuance of cheque in question and execution of loan under taking agreement i.e Ex.P.1and P.6 by acknowledging the loan amount in question borrowed by him from the mother of the complainant and also agreed to repay the loan amount in favour of the complainant and also admitted the contents of the cheque in question i.e Ex.P.1 and recitals of the Ex.P.6 are written by him as admitted by the 20 C.C.No.4242/2018 J Accused.
20. It is true that the Accused during the cross- examination of complainant has specifically suggested that, the Ex.P.1 and P.2 are obtained from him under coercion and forcibly in the police station by filing the complaint against him before the Tilaknagar police station. So far as concerned to the said defence if at all the complainant had influenced the police officials of Tilaknagar Police station in order to make unlawful gain from the Accused, the Accused immediately after alleged issuance of cheque in question and loan undertaking agreement under coercion and undue influence or due to the force of the police, immediately he would have take action agiasnt the complainant or against the police concerned before the higher authorities of the police department either by filing the complaint or by issuing notice to the concerned police or complainant or by filing the complaint before the appropriate court of law or atleast by issuing stop payment instructions to his banking authorities alleging about the obtaining of Ex.P.1 cheque in question by the complainant under coercion or 21 C.C.No.4242/2018 J forcibly as alleged by him. It is true that, during the course of cross-examination of the complainant has suggested that, the complaint has filed against the PSI by name Tanweer and constable by name Andanigowda before the Commissioner of Police about the alleged incident, but in order to substantiate the said suggestion the Accused has not produced any such complaint, in such circumstances, only on the basis of bare suggestion by the Accused to the PW.1, it can not be held that, he had taken action against the concerned police as well as against the complainant in respect of alleged obtaining of cheque and loan undertaking agreement under force and coercion from him. On the contrary in view of non taking of action by the Accused against the complainant or concerned police, adverse inference can be drawn that, no person will remain silent for the inaction on the part of other party, thereby the conduct of the Accused clearly goes to show that, he had issued the cheque in question and executed loan undertaking agreement by acknowledging the loan amount borrowed by him from the mother of the complainant during her life time and also agreed to repay the said amount and 22 C.C.No.4242/2018 J towards discharge of the said amount has issued the cheque in question.
21. The complainant in his evidence, has specifically stated that, after lending the loan amount to the Accused in the year 2014 she was diagnosed as liver cancer and therefore he and his mother demanded the Accused for repayment of the loan amount but the Accused did not repaid the same and on 20.12.2015 his mother got expired thereafter the Accused started avoiding his family members to escape from repayment of the loan amount availed by him from his mother, therefore he has filed a complaint against the Accused and his wife before the police. In support of the said evidence, has produced the copy of the complaint which is filed by the complainant against the Accused and his wife is at Ex.P.9. This fact is also admitted by the Accused in his reply i.e Ex.P.5 and also during the course of cross-examination of the complainant but the Accused has taken the defence that, on the basis of said complaint only the complainant and police have obtained the Ex.P.1 cheque and Ex.P.6 loan undertaking agreement 23 C.C.No.4242/2018 J under coercion and undue influence but as it is already held that, the said defence has not been proved by the Accused , in such circumstances the fact of filing of the complaint by the complainant against the Accused and his wife remains as it is , therefore an inference can be drawn that, there is no such law preventing the person for taking action as provided under the law against the persons who are having intention of defrauding the rights without any valid reasons.
22. Therefore from careful perusal of the Ex.P.1, P.6 and P.9 and the cross-examination of the complainant/Accused makes it clear that, the Accused has not elicited anything to discard the oral evidence of the complainant and also to accept the defence of the Accused that, the complainant had influenced the police officials of Tilaknagar police station and obtained the cheque and the loan undertaking agreement under coercion or undue influence or forcibly as alleged by him in his defence. On the contrary, the Ex.P.1, P.6 and P.9 discloses that, the Accused has acknowledged the loan amount of Rs.16 Lakhs borrowed by him from the 24 C.C.No.4242/2018 J mother of the complainant and also agreed to repay the said loan amount along with interest and consequently has executed a loan repayment undertaking as per Ex.P.6 and has issued a cheque i.e Ex.P.1 in favour of the complainant for sum of Rs.16 Lakhs toward discharge of the loan amount in question.
23. It is relevant here to mention that, the complainant during the course of cross-examination of the complainant has elicited certain facts with regard to non production of the documents by the complainant so as to prove the loan amount of Rs.16 Lakhs lend by the mother of the complainant to the Accused . it is true that, the PW.1 in his cross- examination has admitted that, he does not know how much salary was getting by his mother in the year 2009 and he do not know the exact dates and amounts on which his mother lend the said amounts to the Accused and has not produced the dairy in which his mother got written the payment made by her to the Accused. The complainant has also admitted that, he is not able to produce the documents to show that, her mother has paid the 25 C.C.No.4242/2018 J loan amount to the Accused by selling her ornaments and his mother was retired in the year 2012. It is also admitted by the complainant that, during the life time of his mother she had not taken any action against the Accused for recovery of the loan amount lend by her. Hence in the cross- examination of the complainant, he admits that, he has not produced any documents to show that, on which dates , how much amount paid by his mother out of the amount received by her from her pensionary benefits and by selling her ornaments and also not produced the dairy in which there is mentioning of amount paid by his mother to the Accused.
24. It is relevant here to mention that, though the complainant has admitted that, he has not produced the documents to show that, his mother had advanced loan amount of Rs.16 Lakhs to the Accused on various dates as claimed by him, but it is already held in the above that, the Accused himself admitted the advancing of loan amount of Rs.16 Lakhs by the mother of the complainant and also acknowledged the receipt of the said amount 26 C.C.No.4242/2018 J and agreed to repay the said amount in favour fo the complainant as per Ex.P.6, then the admissions of the complainant is of no use for the Accused to disprove the claim of the complainant. Apart from that, the Accused at page No.2 of cross-examination dated: 21.2.2019 has specifically suggested that, he had borrowed a loan amount of Rs.1,60,000/= from the mother of the complainant during her life time and the said amount has been repaid by him in her life time only, hence the said suggestion itself sufficient to hold that, the Accused used to borrow the loan amount from the mother of the complainant, in such circumstances, now he cannot be permitted to deny the financial capacity of the mother of the complainant and also lending of the loan amount in question. As it is also held in the above that, the complainant has proved that the cheque in question was issued by the accused to him and the signature appearing on the cheque is that of the accused, in such circumstances, even a presumption can be drawn to the extent of existence of debt or liability against the Accused. In this regard it is relevant here to refer the decisions reported in 2001 AIR Karnataka HCR 2154 27 C.C.No.4242/2018 J between 'M/s.Devi Tyres V/s.Navab Jan' and in 2011 ACD 1521 (KAR) between 'Smt. Usha Suresh V/s. Shashidharn', in 2010 SC 1898 between 'Rangappa Vs. Mohan' and 2011 ACD 1412 (KAR) between 'N.Hasainar Vs. M.Hasainar, S/o. Ibrahim'. The Hon'ble High Court of Karnataka in the above decision i.e., 2001 AIR Karnataka HCR 2154 at para No.6 was pleased to hold that issuance of cheque itself was adequate proof of existence of debt or liability. The Hon'ble Apex Court has also held in the decision referred above, the Hon'ble Apex Court in 2010 SC 1898 in case of 'Rangappa Vs. Mohan' that, presumptions U/sec.118(a) and 139 of N.I. Act indeed does extend to the existence of legally recoverable debt, of course the said presumption is rebuttable one, the accused has to rebut the presumption by taking probable defence. In another decision of Hon'ble Apex court of India reported in CRIMINAL APPEAL NO. 508 OF 2018 DT 15-03-2018 between ROHITBHAI JIVANLAL PATEL Vs STATE OF GUJARAT AND ANR held that "Negotiable Instruments Act facts like source of funds are not relevant if the Accused has not been able to rebut the presumption. It is further 28 C.C.No.4242/2018 J held that "When such a presumption is drawn, the facts relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the Accused has been able to rebut the presumption or not". In another decision of Hon'ble High Court of Karnataka reported in ILR 2019 KAR 493 in the case of Sri.Yogesh Poojary Vs. Sri.K.Shankara Bhat, wherein the Hon'ble High Court held that, the presumption mandated by Sec.139 of N.I Act includes the presumption that, there existed a legally enforceable debt or liability, however such presumption is rebuttable in nature". In another decision of Hon'ble High Court of Karnataka in the case of Shri.V.R.Shresti Vs. Shri. Bhaskara.P. in Crl. Appeal No. 2109/2017 dated: 15.10.2019 wherein the Hon'ble High Court of Karnataka held that "the Accused has not given any reply to the notice and also in the cross-examination, he categorically admits that, the cheque has bounced on account of no sufficient fund in the bank account of the Accused. Mere non 29 C.C.No.4242/2018 J producing of the document before the court with regard to the source of income to advance a loan is not a ground to dismiss the complaint. The Accused ought to have rebutted the contention of the complainant by producing cogent evidence before the court and mere denial is not enough". Hence the principles of law laid down by the Hon'ble Apex Court of India and High Court of Karnataka in the above referred decisions are aptly applicable to the case on hand, since in the present case also the complainant has proved that, the Accused has issued the cheque in question in his favour and the Accused has admitted the cheque belongs to him and signature appearing on the cheque is that of his signature, in such circumstances, this court has drawn a presumption towards existence of legally enforceable debt as per Sec.139 of N.I. Act. Therefore under these circumstances the arguments canvassed by the learned counsel for the defence i.e., the complainant has not produced any documents to show that his mother had sufficient source of income to lend the amount of Rs.16 Lakhs to the accused and complainant has failed to produce any document to prove source of income of his mother to 30 C.C.No.4242/2018 J lend the loan amount are not sustainable and acceptable one.
25. It is also relevant here to mention that, the Accused in his defence has taken specific defence that, the complainant has influenced the police officials of Tilaknagar police station and obtained the cheque i.e Ex.P.1 ad loan undertaking agreement i.e Ex.p.6 under coercion and influence, therefore he is not liable to pay any amount to the complainant and there was no occasion for him to issue Ex.P.1 and P.6 and denied the loan transaction in question. But it is already held in the above that, if really the complainant had obtained the Ex.P.1 and P.6 under coercion or undue influence by influencing the police, he would have immediately taken appropriate action against the complainant and police officials who were helped him as alleged by the Accused but no such efforts have been made by the Accused that itself goes to show that, the Accused has issued the subject towards the discharge of liability in question on the contrary it cannot be held that, the Ex.P.1 and P.6 have been obtained by the complainant as alleged by him. In this regard, it is relevant here to 31 C.C.No.4242/2018 J refer the decision of Hon'ble Apex Court of India reported in AIR 2018 SC 3601 in a case of T.P.Murugan(dead) Thr. Lrs.V. Bhojan Vs. Posa Nandi, rep. Thr. Lrs. PA holder, T.P. Murugan V. Bhojan, wherein the Hon'ble apex Court held that "
Negotiable Instruments Act (26 of 1881) Ss.118, 138, 139 - Dishonour of cheque - Presumption as to enforceable debt- cheques allegedly issued by accused towards repayment of debt- Defence of accused that 10 cheques issued towards repayment of loan back in 1995 - behavior of accused in allegedly issuing 10 blank cheques back in 1995 and never asking their return for 7 years, unnatural - Accused admitting his signature on cheques and pronote, presumption under S.139 would operate against him - Complainant proving existence of legally enforceable debt and issuance of cheques towards discharge of such debt- Conviction, Proper". Hence by applying the said principles of law to the present facts of the case in the present case also the accused has not made any efforts to get return of cheque alleged to have been obtained by the complainant with the help of police under 32 C.C.No.4242/2018 J coercion and undue influence, under such circumstances, the said unnatural conduct of the accused in non taking of action, an adverse inference can be drawn against the accused that, the cheque in question issued by the accused towards discharge of the liability and presumption U/s.139 of N.I. Act would operate against him, as he has admitted the signature and cheque in question is belongs to him. In another decision reported in 2015 (4) KCCR 2881 (SC) in the case of T. Vasanthakumar Vs. Vijayakumari wherein the Hon'ble Apex court held that, "NEGOTIABLE ISNTRUCEMTNS Act, 1881- Section 138 and 139
- acquittal - If justified- Accused not disputing issuance of cheque and his signature on it - Plea that it was issued long back as security and that loan amount was repaid - Not supported by any evidence - Fact that date was printed, would not lend any evidence to case of accused- Acquittal not proper. Hence in the present case also it is the main defence of the Accused that the cheque in dispute alleged to have been issued towards security to the complainant and the complainant by misusing the said 33 C.C.No.4242/2018 J cheque has filed this complaint but the Accused has admitted the issuance of cheque and his signature on the said cheque and also taken defence that, the cheque was issued towards security but no documents or proof given by the Accused to prove his defence in such circumstances by applying the principles of law laid down in the above decision the defence of the Accused cannot be acceptable one. Hence, the principles of law laid down in the above decisions are aptly applicable to the case on hand, since in this case also the complainant proved that his mother during her life time lent an amount of Rs.16 Lakhs to the Accused and the accused in turn issued cheque for discharge of the said amount as per Ex.P.1 and also executed loan undertaking agreement as per Ex P.6, on the other hand, the Accused has also failed to produce cogent and convincible evidence to rebut the statutory presumption in support of his defense in such circumstances the defense taken by the accused cannot be acceptable one.
26. No doubt, the defence version claimed by 34 C.C.No.4242/2018 J the Accused could be considered only the accused has rebutted the presumption available U/s.118 and 139 of NI Act in favour of the complainant by producing cogent and convincible evidence. It is settled law that, the accused can rebut the presumption only on the basis of materials produced by the complainant even without entering into the witness box but in the present case the Accused has failed to substantiate his defence version in order to rebut the presumption available to the complainant and to prove the defense of the accused, the accused while recording his statement as required U/s. 313 of Cr.P.C. though he has denied the incriminatory evidence appearing against him but he did not entered in to witness box to prove his defense or rebut the presumption available to the complainant U/s. 118 and 139 of N.I.Act. Under such circumstance, it is for the accused to disprove the case of the complainant or rebut the presumption then only the onus will be shifted on the complainant to prove his case.
Admittedly the accused did not entered in to the witness box, therefore an adverse inference can be drawn against the accused that he has failed to 35 C.C.No.4242/2018 J rebut the presumption available to the complainant. Therefore it is clear that, except having denial of the case of the Complainant in the cross examination of complainant, the Accused has not taken any interest so as to prove his defence. In this regard, it is relevant here to refer a decision of Hon'ble Apex Court of India reported in "AIR 2018 SC 3173 in a case of Kishan Rao Vs. Shankargouda" wherein the Hon'ble Apex Court held that " Negotiable Instruments Act (26 of 1881), Ss. 138, 139- Dishonour of cheque - Presumption as to - Accused issuing cheque of Rs.2 Lakhs towards repayment of loan to Complainant- said cheque dishonoured on account of insufficiency of funds- Complainant proving issuance of cheque having signatures of Accused - Accused failing to rebut presumption raised against him and no evidence led by him in his support - Acquittal of Accused by High Court in revisional jurisdiction on ground of doubt in mind of Court with regard to existence of loan, improper- Accused, liable to be convicted. In another decision decided in Crl.Appeal No.1545 of 2019 dt.17/10/2019 by the Hon'ble Apex Court of 36 C.C.No.4242/2018 J India in the case of Uttam Ram Vs. Devinder Singh Hudan and Anr. Wherein the Hon'ble Apex Court held that, " Dishonor of cheque - Statutory presumption under - burden to prove - the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability - it is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer - even a blank cheque leaf, voluntarily signed and handed over by the accused which is towards some payment, would attract presumption U/s. 139 of NI Act - the accused is held guilty of dishonour of cheque for an offence U/s.s.138 of NI Act. It is also held that, the accused has failed to lead any evidence to rebut the statutory presumption, a finding returned by both the Trial Court and High Court. Both courts not only erred in law but also committed perversity when the due amount is said to be disputed only on the account of discrepancy in the cartons, packing materials or the rate to determine the total liability as if the appellant was proving his debt 37 C.C.No.4242/2018 J before the civil court. Therefore it is presumed that, the cheque in question were drawn for consideration and the holder of the cheques received the same in existing debt.
The principles of law laid down in the above decision are aptly applicable to the case on hand, since in this case also the complainant proved the fact of payment of the amount of Rs.16 Lakhs by his deceased mother during her life time to the accused and the accused in turn by admitting and acknowledging the said loan amount, has issued cheque for discharge of the said amount as per Ex.P.1. It is also proved by the complainant that, the accused has admitted the liability to return the cheque amount in Ex.P.6 and accused has also failed to enter into witness box to rebut the statutory presumption in support of his defense in such circumstances the defense taken by the accused counsel during the course of cross examination and argument cannot be acceptable one.
27. It is also important to note here that, the Accused has not denied or disputed that the cheque in question as well as the signatures therein do 38 C.C.No.4242/2018 J belong to him and he has failed to prove as per his defence the cheque has come to the possession of the Complainant, this would also give rise to an adverse inference against him. This preposition of law finds support from the decisions of Hon'ble High Court of Karnataka reported in 2010(1) KCCR 176 in the case of "Siddappa Vs. Manjappa". In another decision of Hon'ble Apex court of India decided in Crl.A.No.664 of 2012 dated: 19.9.2019 in the case of "M.Abbas Haji Vs. T.M.Chennakeshava" held that, " the Accused has to explain how the cheque entered into the hands of complainant". Hence in the present case also the Accused has failed to prove his defence that, how the cheque in question was entered into the hands of complainant. Therefore for the above said reasons the defense taken by the accused cannot be acceptable one and accused has miserably failed to rebut the presumption available in favour of the complainant by adducing cogent and convincible evidence.
28. It is also the defence of the Accused that, there is no direct transaction between the 39 C.C.No.4242/2018 J complainant and Accused and as per the own admissions of the complainant goes to show that, his mother paid the alleged amount of Rs.16 Lakhs to the Accused during the year November 2009 to November 2010 and the Ex.P.1 in question was alleged to be issued in the year 2016, hence the alleged debt was barred by time i.e. the cheque in question was issued after six years from the date of alleged lending of loan amount and even the Ex.p.1 was also not presented within its validity period and it was presented after lapse of 9 months though the validity for presentation of Ex.P.1 is for a period of three months, in such circumstances, the alleged debt in question is barred by time and even though the complainant proved his case , he cannot be recovered the loan amount from the Accused as it was time barred by debt. In this regard and in support of the arguments of learned counsel for the Accused has relied upon the decisions reported in 2001 Crl. L.J. 24 in the case of Sasserilil Joseph Vs. Devassia 2) LAWS (BOM) 2008 4 57 Hon'ble High Court of Bombay in the case of Kamalaksha Lakshmana Prabhu Vs. S.J. Mayeker and argued that, in view of Sec. 19 of the 40 C.C.No.4242/2018 J Limitation Act the debt has to be recovered within a period of three years from the last date in which the amount was paid and the complainant in this case has not produced any evidence to prove the fact that, the Accused has admitted his liability in writing since the date of last transaction till the issue of cheque by the Accused, thus complaint is liable to be dismissed as the loan amount in question i.e. debt is time barred and cannot be recovered and not legally enforceable debt under the provision contained in Sec.138 of N.I. Act.
29. On the other hand the learned counsel for the complainant during his argument submitted that, U/s.25(3) of the Contract Act is very clear that, there is a promise made in writing and signed by a person to be charged there with to pay wholly or in part a debt which is time barred by law of Limitation. In support of this argument, has also relied upon the decision of Hon'ble High Court of Karnataka decided in Crl. Appeal No. 2275/2006 in the case of G. Muniswamy Vs. H.S.Nagendra Kumar 20 Crl.Application No. 2933/2007 in the case of Mr. Dinesh B Choksi Vs. Rahul Vasudeo 41 C.C.No.4242/2018 J Bhat 3) ILR 2006 KAR 4242 in the matter of H.Narasimha Rao Vs. R. Venakataram.
30. On careful considering the rival contentions of both learned counsels and the admitted facts by the complainant in his complaint, evidence and also in his cross-examination that, it is true that, the complainant is claiming the loan transaction by stating that, his mother has paid an amount of Rs.16 Lakhs to the Accused during the year 2009 to 2010. It is also an admitted fact that, the cheque in question issued in the year 2016. It is also an admitted fact that, the cheque in question was presented by the complainant through his banker on 13.2.2017 and it was dishonoured on 17.2.2017. Now the question before the court is whether the cheque in question was issued in discharge of time barred debt or not and debt in question is not legally enforceable at the time of issuance of cheque in question or not. In this regard as it is already held in the above that, the Accused has clearly admitted the execution of loan repayment undertaking i.e Ex.P.6 and he has put his signature to the Ex.P.6 by acknowledging the debt in question i.e. the loan 42 C.C.No.4242/2018 J amount of Rs.16 Lakhs borrowed by him from the mother of the complainant during the year 2009 and 2010. No doubt, the Accused has taken defence that, the Ex.p.6 has been obtained by the complainant by influencing the police under coercion and undue influence but the Accused has not proved the said defence, in such circumstances it has already held in the above that, the Accused has admitted and acknowledged the debt in question by executing Ex.P.6 in writing on 14.6.2016. It is also held in the above that, the cheque in question has been issued by the Accused in favour of the complainant at the time of execution of Ex.P.6 i.e. on 14.4.2016 by assuring to honour the said cheque on 13.2.2017, hence for the said reasons it can be held that, the complainant has produced the evidence to show that, the Accused has admitted his liability in writing as on 14.4.2016 in respect of the loan amount borrowed by him from the mother of the complainant during the year 2009 and 2010, hence in view of admitting the liability to repay the loan amount by the Accused in writing on 14.4.2016 and also by issuing the cheque in question i.e .ex.P.1 dated: 13.2.2017 , the cheque is found to have been 43 C.C.No.4242/2018 J issued for discharge of legally enforceable debt or liability under the law, therefore for the said reasons the arguments canvassed by the learned counsel for the Accused i.e. the alleged debt in question is barred by time and the Ex.p.1 has not been presented to the bank within its validity period cannot be acceptable one and also with due respect to the principles of law laid down by the Hon'ble High Courts relied upon by the learned counsel for the Accused, are not helpful for the Accused to prove his defence that, the debt in question is time barred debt and cheque in question was issued in discharge of time barred debt.
31. On careful reading of the principles of law laid down by the Hon'ble High Court of Karnataka and Bombay in the decisions reported in Crl. Appeal No. 2275/2006 in the case of G. Muniswamy Vs. H.S.Nagendra Kumar 2) Crl.Application No. 2933/2007 in the case of Mr. Dinesh B Choksi Vs. Rahul Vasudeo Bhat 3) ILR 2006 KAR 4242 in the matter of H.Narasimha Rao Vs. R. Venakataram. In the decision of ILR 2006 KAR 4242 wherein the Hon'ble High Court 44 C.C.No.4242/2018 J had held that " In case if the time barred debt is agreed to be paid through a cheque there is no legal bar for the debtor agreeing to pay time barred debt and the cheque issued towards repayment of time barred debt also constitute offence U/s.138 of the Act . The Hon'ble High Court of Bombay has also held that, "Sub section 3 of Sec. 25 of the Contract Act is an exception to the General Rule that, an agreement made without consideration is void. Sub Sec.3 of Sec. 25 of the Contract Act also applies to a case where there is a promise made in writing and signed by a person to be charged there with to pay wholly or in part a debt which is barred by law of limitation". It is further held that, a case of promise created by a cheque issued for discharge of a time barred debt or liability and once it is held that, a cheque drawn for a discharge of a time barred debt creates a promise which becomes enforceable contract, it cannot be said that, cheque is drawn in discharge of debt or liability which is not legally enforceable. The promise in the form of a cheque drawn in discharge of a time barred debt 45 C.C.No.4242/2018 J or liability becomes enforceable by virtue of Sub section 3 of Sec. 25 of the Contract Act. Thus, such cheque becomes a cheque drawn in discharge of legally enforceable debt as contemplated by the explanation to sec. 138 of the said Act of 1881.
Hence, in view of the principles of law laid down by the Hon'ble High Court of Karnataka and Bombay in the above referred decisions in the present case also the Accused has promised to pay the time barred debt by acknowledging the debt in writing as per Ex.P.6 and also issued the cheque in question i.e Ex.P.1 towards discharge of the debt or liability, in such circumstances, the promise is in the form of a cheque drawn discharge of debt in question which becomes enforceable by virtue of Sec. 25 (3) of the Contract Act.
32. Therefore considering all these aspects of the case and totality of the circumstances and on careful and meticulous appreciation of evidence adduced on behalf of the complainant the complainant has successfully established beyond all reasonable doubt that, the mother of the 46 C.C.No.4242/2018 J complainant during her life time has paid a sum of Rs.16 Lakhs to the accused and the accused in turn has issued cheque in question i.e. Ex.P.1 to the complainant towards discharge the loan amount borrowed by him from his mother during her life time and thereafter the complainant has presented the said cheque through his banker and same was returned dishonoured with an endorsement of "Funds Insufficient" and thereafter he got issued legal notice to the accused and inspite of receiving the said notice, the Accused did not paid the cheque amount, hence the complainant filed the present complaint against the accused. On the other hand, the accused has failed to rebut the presumption available infavour of the complainant with regard to the existence of legally recoverable debt under Ex.P.1 Cheque. Therefore accused has committed an offence punishable U/s.138 of N.I. Act, accordingly for the above said reasons this point is answered in the Affirmative.
33. Point No.2: Negotiable Instrument Act was enacted to bring credibility to the cheque and the very purpose of enactment is to promote the use of 47 C.C.No.4242/2018 J negotiable instrument, while to discourage the issuance of cheque without having sufficient funds in their accounts. Such being the case the intention of the legislature is that, complainant be suitable compensated while accused be punished for his act. Hence while awarding the compensation the said fact is to be kept in mind and suitable compensation is awarded to the complainant certainly it will not cause injustice to the accused, accordingly the complainant is entitled for the compensation as ordered by the court and for the said reasons, it is just and proper to pass the following :-
ORDER Acting U/sec.255(2) of Cr.P.C.
the accused is convicted for the offence punishable U/sec.138 of N.I.Act.
The accused is sentenced to pay a fine of Rs.16,15,000/= (Rupees Sixteen Lakhs and Fifteen Thousand only) within one month from the date of order, in default he shall under go simple imprisonment for a period of (3) three months for the offence punishable U/sec.138 of N.I.Act.48 C.C.No.4242/2018 J
Further acting U/sec.357(1) of Cr.P.C. out of the fine amount on recovery, a sum of Rs.16,10,000/= (Rupees Sixteen Lakhs and Ten Thousand only) shall be paid as compensation to the complainant.
Further acting U/sec.357(1)(a) of Cr.P.C. out of fine amount on recovery a sum of Rs.5,000/= (Rupees Five Thousand only) shall be defrayed as prosecution expenses to the state.
The Bail bond and surety bond of the Accused stands cancelled.
Office is directed to furnish free certified copy of this judgment to the Accused incompliance of Sec.363(1) of Cr.P.C.
(Directly dictated to the stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open Court on this the 6th day of January 2020).
(SRI.S.B. HANDRAL), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri. K.Nagarjun 49 C.C.No.4242/2018 J
2. List of documents exhibited on behalf of the Complainant:-
Ex.P-1 : Original Cheque; Ex.P-1(a) : Signature of the Accused; Ex.P-2 : Bank Memo; Ex.P-3 : Office copy of the Legal Notice; Ex.P-4 : Postal Receipt; Ex.P-5 : Reply Notice; Ex.P-6 : Loan undertaking agreement dated:
14.4.2016 executed by the Accused and his wife Ex.P-6(a) & : Signatures of the Accused and his wife 6(b) Ex.P-6(c) : Signatures of the complainant;
Ex.P.7 : Copy of the office order dated 31.5.2012 Ex.P-8 copy of the Death certificate of :
complainant's mother Ex.P.9 : copy of the complaint lodged by the complainant against the Accused and his wife
3. List of witness/s examined on behalf of the Accused:-
- Nil-
4. List of documents exhibited on behalf of the Accused:-
-Nil-
(SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.50 C.C.No.4242/2018 J
6.1.2020 Judgment pronounced in the open court vide separate order.
ORDER Acting U/sec.255(2) of Cr.P.C.
the accused is convicted for the offence punishable U/sec.138 of N.I.Act.
The accused is sentenced to pay a fine of Rs.16,15,000/= (Rupees Sixteen Lakhs and Fifteen Thousand only) within one month from the date of order, in default he shall under go simple imprisonment for a period of (3) three months for the offence punishable U/sec.138 of N.I.Act.
Further acting U/sec.357(1) of
Cr.P.C. out of the fine amount on
recovery, a sum of
Rs.16,10,000/= (Rupees Sixteen
Lakhs and Ten Thousand only)
shall be paid as compensation to
the complainant.
Further acting U/sec.357(1)(a)
of Cr.P.C. out of fine amount on
recovery a sum of Rs.5,000/=
(Rupees Five Thousand only)
shall be defrayed as prosecution
expenses to the state.
The Bail bond and surety bond
of the Accused stands cancelled.
51 C.C.No.4242/2018 J
Office is directed to furnish free
certified copy of this judgment to
the Accused incompliance of
Sec.363(1) of Cr.P.C.
XVI ACMM, B'luru.