Bangalore District Court
S.Nagaraj vs C.L.Mallegowda on 4 April, 2018
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 4th day of April - 2018
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.6892/2013
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : S.Nagaraj,
S/o.Shivalingaiah,
Aged about 52 years,
R/at No.8/9, Akshya Nilaya,
4th Main, 8o Feet Ring Road,
Jhanabharathi Post,
Nagadevanahalli, Bengaluru-56.
(Rep. by Sri.P.R.Harish Kumar, Adv.)
V/S
Accused : C.L.Mallegowda,
S/o.Late.Lingaiah,
Aged about 56 years,
R/at. No.B-18/3, DRDO Township,
C.V.Raman Nagar Post,
Bengaluru East Range,
Bengaluru-93.
(Rep.by Sri.S.Nagaraj, 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 : 04.04.2018.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.6892/2013
JUDGMENT
The complainant has presented the instant complaint against the accused on 09.01.2012 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act for dishonour of cheque of Rs.6,00,000/- .
2. In precise, the facts of the complainant case is:
The complainant known to the accused and he pleads financial difficulties and approached to him on 03.10.2011 and borrowed sum of Rs.6,00,000/- from the complainant.
The accused for clearing the said liability got issued the cheque bearing No.125537, dated:04.11.2011 for sum of Rs.6,00,000/- drawn on State Bank of India, C.V.Raman Nagar, Bengaluru. The complainant without suspect the accused, got received the cheque and he assured to arrange the money in his bank. Accordingly, the complainant has presented the said cheque for encashment through his banker viz., Apex Co-Operative Bank, K.S.Town Branch, Kengeri Satellite Town, Bengaluru. But, it is utter shock and surprise to complainant, while receipt of endorsement Judgment 3 C.C.6892/2013 dated:09.11.2011 stating cheque was dishonour for "Insufficient funds".
The complainant has further contended that, thereafter, he got issued legal notice dated:30.11.2011 by R.P.A.D as well as speed post through his counsel demanding the accused to pay the money covered under the cheque. The said notices were send to the address of the accused, wherein, he resides as well as working and the same got served on the accused, but not complied the same nor issued and reply. The accused knowingfully well that, without maintaining sufficient funds got issued cheque, the same also dishonoured, thereby he committed the offence punishable under section 138 of Negotiable Instruments Act. Hence, the complaint.
3. After presentation of the complaint before this court, my predecessor in office had taken the cognizance and got registered the case and recorded the sworn statement of the complainant. Since found prima facie case got registered the criminal case and process was issued to the accused.
4. In response to the summons, the accused appeared before this court and obtained the bail through his counsel. Judgment 4 C.C.6892/2013 After receipt of the copy of the complaint as required, the accusation read over and explained to the accused, he denied the same and claimed to have the defence and try the matter. Thereafter, the evidence of the complainant was recorded by way of filing affidavit and got marked Exs.P1 to P14(a). In support of this case, he choosen to examine one witness by name Sri.Ramanna Gowda as PW.2. The PW.1 and PW.2 were subjected for cross- examination by the advocate for the accused.
5. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same and the answer was given by him was recorded. In support of the defence, the accused himself was examined as DW.1 and got marked Exs.D1 and D2 and also subjected for cross-examination by the advocate for the complainant.
6. Heard the arguments of complainant counsel. The accused counsel has submitted his detailed written arguments.
1) Whether the complainant proves that, he complied all the mandatory provisions to maintain the present case?Judgment 5 C.C.6892/2013
2) Whether the complainant proves beyond the reasonable doubt that, on 03.10.2011 he lent sum of Rs.6 lakhs as hand loan to the accused, and in turn, the accused has issued Ex.P1 cheque bearing No.125537, dated:04.11.2011 for sum of Rs.6 lakhs for discharge of existing legally recoverable debt?
3) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
4) What Order?
7. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Affirmative Point No.2 : In the Affirmative Point No.3 : In the Affirmative Point No.4 : As per final order, for the following:
REASONS
8. POINT NOs.1 to 3: Since these three points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
On going through the materials available on record, the fact that, Ex.P1 cheque and signature found therein belongs to the accused is not in dispute. The fact that, the address of the complainant and accused as narrated on the Judgment 6 C.C.6892/2013 complainant is not in dispute. The fact that, the compliance of mandatory provisions is not in dispute. The fact that, the financial capacity of the complainant is not in dispute. The fact that, the working capacity of the accused is also not in dispute.
9. In order to prove the case of complainant, the complaint averments has reiterated in the affidavit filed in lieu of his chief examination by the complainant as substantial evidence. The evidence of PW.1 is supported with documents at Exs.P1 to P14(a), which are:
a) Ex.P1 is the alleged cheque bearing No.125537 issued by the accused for sum of Rs.6 lakhs, dated:04.11.2011.
b) Ex.P1(a) is the signature of accused.
c) Ex.P2 is the Bank Memo dated:09.11.2011.
d) Ex.P3 is the Legal Notice dated:30.11.2011.
e) Exs.P4 to P7 are the postal receipts.
f) Exs.P8 and P9 are the postal acknowledgement cards.
g) Ex.P10 is the statement of account pertaining to the complainant.
h) Ex.P11 is the Katha certificate in the name of complainant issued by the Assistant Revenue Officer, BBMP, Bengaluru.Judgment 7 C.C.6892/2013
i) Ex.P12 is the Khatha Extract pertaining to complainant issued by the Assistant Revenue Officer, BBMP, Bengaluru.
j) Ex.P13 is the photograph pertaining to the building of complainant.
k) Ex.P13(a) is the C.D pertaining to the building of complainant.
l) Ex.P14 is the blank signed cheque of accused herein, and
m) Ex.P14(a) is the signature of accused.
10. The PW.1 and PW.2 were subjected to the cross-examination by the advocate for the accused. In support of his case the complainant through his counsel has produced the citation and relied upon same, it is;
a) AIR 2001 SCC 2895
b) 2006 (4) KCCR 2375
11. Contrary to the case of the complainant, apart from he examined as DW.1 and got marked Exs.D1 and D2, they are:
a) Ex-D1 is the wedding card pertaining to the son of the accused.
b) Ex-D2 is the certified copy of the registered sale deed dated 29.05.2007 pertaining to accused.
Apart from lead defence evidence, the DW.1 through his counsel has produced the citations and relied upon same. They are: Judgment 8 C.C.6892/2013
a) 2010 (5) KCCR SN 435
b) 2008 Crl.L.J 2955
c) 2008 Crl. L. J. 2405
12. No doubt, both the parties are subjected the respected witnesses for cross examination in order to prove their respective contentions.
13. Contrary to the case set up by the complainant, the accused apart from denying the very allegations made by the complainant at the time of recording plea, 313 statement even during the cross-examination of PW1, choosen to entered into witness box.
14. The DW.1 has set up his specific defence that, he does not know the complainant, except in the present proceedings, he not met him on 03.10.2011 and borrowed the alleged loan of Rs.6,00,000/- and issuance of Ex.P1 cheque for repayment of said money. Also specifically contended that, in the year 2007 through his aunty, who is his mother's elder sister's son by name Ramanna Gowda borrowed loan of Rs.50,000/- on 5% interest, on the security of blank cheque. The DW.1 was cleared the dues of Rs.50,000/- to him in the year 2008 and requested to Judgment 9 C.C.6892/2013 return the said cheque. But he told him that, the said cheque was misplaced and after trace out of it, will returned the same. Since, the DW.1 not sold his property to the said Ramanna Gowda, filed the present case through the PW1, though he not made any financial transaction with him.
15. The same defense was suggested to the PW.1. No doubt, the accused not choosen to examine the Ramanna Gowda, with whom, he alleged to made the transaction, but to remove the cast cloud on the transaction, the PW1 choosen to examined the PW.2.
16. The evidence of PW.2 has to be appreciating to understand the real transaction made by accused. During the course of cross-examination of PW.2, some admissions made by him regard to ascertaining the relationship is very much necessary in order to ascertain the relationship and earlier transaction. During the course of cross of PW.2, he deposed that, "2007gÀ°è DgÉÆæ £À£Àß ºÀwÛgÀ gÀÆ.50,000/- ºÀtªÀ£ÀÄß ±ÉÃPÀqÀ 5 gÀAvÉ §rØAiÀÄ ªÉÄÃ¯É ¥ÀqÉzÀÄPÉÆArzÀÝgÀÄ JAzÀgÉ Judgment 10 C.C.6892/2013 ¸ÀjAiÀÄ®è. DUÀ £Á£ÀÄ ¨ÀszÀævÉUÁV DgÉÆæ¬ÄAzÀ ¤¦-1 SÁ° ZÉPÀÌ£ÀÄß ¥ÀqÉzÀÄPÉÆArzÉÝ JAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÀzÀj gÀÆ.50,000/- ºÀt ªÀÄvÀÄÛ §rØAiÀÄ£ÀÄß 2008gÀ°è DgÉÆæ £À£ÀUÉ ¤ÃrzÀgÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è. DUÀ DgÉÆæ SÁ° ZÉPÀÌ£ÀÄß ªÁ¥À¸ï PÉÆr JAzÀÄ £À£ÀUÉ PÉýzÀgÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è. DUÀ ZÉPï J°èAiÉÆà ºÉÆÃVzÉ ¹PÀÌ £ÀAvÀgÀ PÉÆqÀÄvÉÛãÉAzÀÄ ºÉýzÉ JAzÀgÉ ¸ÀjAiÀÄ®è. DgÉÆæ DvÀ£À d«ÄãÀ£ÀÄß ªÀiÁgÁl ªÀiÁqÀĪÁUÀ £Á£ÀÄ PÀrªÉÄ ¨É¯ÉUÉ PÉýzÀÝÀjAzÀ DgÉÆæ ¨ÉÃgÉAiÀĪÀjUÉ ªÀiÁgÁl ªÀiÁrgÀÄvÁÛgÉAzÀgÉ ¸ÀjAiÀÄ®è. DgÉÆæ £À£ÀUÉ d«ÄãÀÄ ªÀiÁgÁl ªÀiÁqÀzÉà EgÀĪÀÅzÀjAzÀ £À£ÀUÀÆ ªÀÄvÀÄÛ DgÉÆæUÀÆ «±Áé¸À PÉÆlÄÖ ºÉÆìÄvÀÄ ªÀÄvÀÄÛ £À«Ää§âgÀ ªÀÄ£À¸ÁÛ¥À GAmÁ¬ÄvÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è. F ªÀÄ£À¸ÁÛ¥À¢AzÀ ZÉPÀÌ£ÀÄß ¦gÁå¢UÉ ¤Ãr CªÀgÀ PÉʬÄAzÀ §gɹ F ¸ÀļÀÄî PÉøÀ£ÀÄß zÁR°¹zÉÝãÉAzÀgÉ ¸ÀjAiÀÄ®è." The PW.2 further deposes that:
"D ¸ÀªÀÄAiÀÄzÀ°è DgÉÆæ £À¤ßAzÀ gÀÆ.50,000/- ºÀtªÀ£ÀÄß DvÀ£À ªÀÄUÀ¼À ªÀÄzÀĪÉUÁV ¥ÀqÉzÀÄPÉÆArzÀÝgÀÄ. DUÀ ¤¦-14 ZÉPÀÌ£ÀÄß PÉÆlÄÖ 2-3 wAUÀ¼À £ÀAvÀgÀ ºÀt ºÉÆAzÁtôPÉ ªÀiÁr ¨ÁåAQUÉ ºÁPÀÄvÉÛãÉ, DUÀ ¤Ã£ÀÄ ZÉPï ºÁdgÀÄ ªÀiÁr ¨ÁåAQ¤AzÀ ºÀt vÉUÉzÀÄPÉƼÀÀÄzÉAzÀÄ ºÉýzÀÝgÀÄ. ¤¦-14 SÁ° ZÉPï JAzÀgÉ ¸Àj. ¤¦-14 ZÉPÀÌ£ÀÄß §gÀªÀtôUÉ ªÀiÁr PÉÆr JAzÀÄ ºÉüÀ®Ä ¤ªÀÄUÉ vÉÆAzÀgÉ EgÀ°®è JAzÀgÉ ¸ÁQë £Á£ÀÄ £ÀAvÀgÀzÀ°è ºÉüÀÄvÉÛãÉ, DUÀ ¤ÃªÀÅ ZÉPï ºÁQPÉƽî JAzÀÄ ºÉýzÀgÉAzÀÄ Judgment 11 C.C.6892/2013 GvÀÛj¹gÀÄvÁÛgÉ. ¤¦-14 ZÉPÀÌ£ÀÄß ªÀQîgÀ ªÀÄÆ®PÀ F PÉù£À°è ºÁdgÀÄ ªÀiÁqÀ®Ä £Á£Éà PÉÆnÖzÉÝãÉAzÀgÉ ¸Àj. DgÉÆæUÉ gÀÆ.50,000/- ºÀtªÀ£ÀÄß £ÀªÀÄä yAiÉÄÃlgï ºÀwÛgÀ PÉÆnÖgÀÄvÉÛãÉ. DgÉÆæUÉ £Á£ÀÄ gÀÆ.50,000/- ¸Á®ªÀ£ÀÄß PÉÆmÁÖUÀ DgÉÆæ¬ÄAzÀ ¤¦-1 ªÀÄvÀÄÛ 14 JgÀqÀÄ ZÉPÀÄÌUÀ¼À£ÀÄß ¨ÀszÀævÉUÁV DgÉÆæ¬ÄAzÀ ¥ÀqÉzÀÄPÉÆArzÉÝ JAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÁQë ªÀÄÄAzÀĪÀjzÀÄ ¤¦-14£ÀÄß ¨ÀszÀævÉUÁV ¥ÀqÉzÀÄPÉÆArzÉÝ JAzÀÄ £ÀÄr¢gÀÄvÁÛgÉ. £À£Àß ºÀwÛgÀ EzÀÝ ¤¦-1 ZÉPÀÌ£ÀÄß ¦gÁå¢UÉ PÉÆlÄÖ, ¦gÁå¢AiÀÄ ªÀÄÆ®PÀ DgÉÆæAiÀÄ «gÀÄzÀÞ ¸ÀļÀÄî PÉøÀ£ÀÄß zÁR°¹zÉÝãÉAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÀzÀj gÀÆ.50,000/- ºÀtªÀ£ÀÄß DgÉÆæ ªÀÄgÀÄ¥ÁªÀw¹gÀÄvÁÛgÉ. DgÉÆæ gÀÆ.50,000/- ºÀtªÀ£ÀÄß ªÀÄgÀÄ¥ÁªÀw¹zÀ £ÀAvÀgÀ ¤¦-14 ZÉPÀÌ£ÀÄß ªÁ¥À¸ï PÉÆqÀ®Ä ¤ªÀÄUÉ vÉÆAzÀgÉ EgÀ°®è JAzÀgÉ ¸ÁQë DgÉÆæAiÉÄà §AzÀÄ ZÉPï vÉUÉzÀÄPÉƼÀÄîvÉÛãÉAzÀÄ ºÉýzÀÝgÉAzÀÄ £ÀÄr¢gÀÄvÁÛgÉ. ¤¦-1 ªÀÄvÀÄÛ 14 SÁ° ZÉPÀÄÌUÀ¼À£ÀÄß ªÁ¥À¸ï PÉÆr JAzÀÄ DgÉÆæ ¸ÀĪÀiÁgÀÄ ¨Áj PÉýzÀÝgÀÆ, DzÀgÀÆ £Á£ÀÄ ªÁ¥À¸ï PÉÆnÖ®è JAzÀgÉ ¸ÀjAiÀÄ®è."
17. From the evidence of PW.2 it made clear that, at the earliest stretch, the accused denied that PW.2 with whom he made the transaction, but from the above piece of suggestions made to PW.2, he clearly admitted that, the earlier alleged transaction made by him with only PW.2, none other else. Therefore, it is made clear that, the earlier Judgment 12 C.C.6892/2013 transaction borrowing the of loan and obtaining the blank cheque from the accused was alleged to be misused by the PW.2, therefore, he is very much present before this court. The evidence of PW.2 is very much essential to prove the probable defence of the accused. No doubt, as re-produced above, the PW.2 was denied the suggestions of earlier borrowing of loan from PW.2 of Rs.50,000/- and on account of not sold his property to him, he filed the present case through complainant.
18. During the further cross-examination of PW.2 as re- produced above, at later portion, the accused himself clarified in making admission regarding obtaining of blank cheque from accused, which is none other than Ex.P14. It is significant fact to note that, Ex.P14 is the blank cheque belongs to be accused. The PW.2 has clearly asserted that, in the year 2007 for solemnization of the marriage of daughter of accused, borrowed loan of 50,000/- and for its re-payment, the accused got issued blank cheque at Ex.P14. From the evidence of PW.2, it made clear that, the blank cheque obtained by the PW.2 was produced at the Ex.P14. By way of production of Ex.P14 as projected by the Judgment 13 C.C.6892/2013 accused in blank with the signature of accused. The defence of the accused, the said Ex.P14 was misused by the PW.2 through complainant is brushed out. Therefore, there is no substance in believing the defence of the accused. With regard to the blank cheque at Ex.P14, through the PW.2, the defence of the accused is ruled out. Therefore, it is the accused has to prove the contrary to the statutory presumption enumerated under Sections 118 and 138 of Negotiable Instruments Act.
19. As per the statutory presumptions, it shall presume that, the issuance of cheque is only for passing of consideration which is none other than legally recoverable debt. In the case on hand, though at the earlier occasion, the complainant has not narrated the date of approach made by the accused for demanding loan, but during his cross-examination he deposed that, prior to 15 days earlier from the date of issuing loan, the accused came and requested him. He also deposed that, on that day, he had no money and after mobilize the funds, 15 days later he paid the said money to the accused, in the presence of Ramanna Gowda. He also deposed that, he paid the money Judgment 14 C.C.6892/2013 under the denominations of Rs.1000/- and Rs.500/- and on the very same date, the accused got issued cheque and undertakes to repay the same within one month. The said evidence of PW.1 is supported with the evidence of PW.2. The PW.2 is also deposed in the same line. The PW.1 deposed that, since 10-12 years back through the PW.2, the accused came in contact the complainant. The PW.2 is the relative of the accused and the accused fails to prove his defence through PW.2, but he fails to disprove the very case put forth by the PW.1. No doubt, in this case, the financial capacity of the PW.1 is not disputed by the accused. The documents at Exs.P10 to P13 also discloses the financial capacity of complainant. From the overall appreciation of the evidence of PW.1 and PW.2, the accused took the defence on Ex.P14 in respect of the transaction made through PW.2, it fails to disprove the very case set by the complainant. It is the accused as to demonstrate the probable defence, contrary to the case of complainant.
20. No doubt, during the course of cross of PW.1, it was the suggestion made that, notice was not served on accused. The Ex.P3 is the legal notice, the same was got Judgment 15 C.C.6892/2013 issued to the accused as per Ex.P4 to P7-Postal receipts. The PW.1 during the course of his cross-examination admitted that. Smt.Prema is his wife. As per Ex.P8 the legal notice was served on the wife and as per Ex.P9 it was served to the working place of accused. When he is working in the cause title address, the accused cannot say that, the same was not served on him. It is not his contention that, his wife is not residing with him. When he is residing along with his family members, service made to any of the family member is to be considered as valid service. To that effect, cited the following decisions.
It is relevant to cite decision reported in 2006 (4) KCCR 2375 (Mr. Umraz Khan and others V/s.
Mr.A.Jmeel Ahmed and another). Wherein, Hon'ble High Court of Kartnataka was pleased to held that:
"Once there is proof of posting of notice to correct address, it is deemed to have been served, the judgment of acquittal is bad in law".
It is relevant to cite another decision reported in ACD 2011 page 1507 (SC), the Hon'ble Apex Court, in the said ruling held that;
Judgment 16 C.C.6892/2013
"the notice of demand was served upon the wife of the appellant and not the appellant.
Therefore, there is no escape from the
conclusion that the complainant had not
complied with the requirements of giving notice in terms of Section 138(b) of Negotiable Instruments Act".
21. Therefore, from the point of that decisions, it made clear that, whatever the service taken by the complainant, for issuance of legal notice to accused was valid. Though, the accused not choosen to cause necessary reply. If at all any defence he had, could have been put forth by cause reply. But, he fails to do so, for the reasons best known to him.
22. The accused at the one stretch contending borrowing the loan of Rs.50,000/- from the PW.2, but during the course of cross-examination of PW.1, it was suggested about borrowing loan of Rs.1,00,000/- from him through PW.1. The relevant portion of suggestion runs thus:
"DgÉÆæ £À£ÀUÉ ¥ÀjZÀAiÀÄ E®è JAzÀgÉ ¸ÀjAiÀÄ®è. DgÉÆæAiÀÄ zÉÆqÀتÀÄä£À ªÀÄUÀ gÁªÉÄÃUËqÀ JAzÀgÉ ¸Àj. DgÉÆæ ªÀÄvÀÄÛ gÁªÉÄÃUËqÀ EªÀgÀ ªÀÄzsÉå ºÀtPÁ¹£À ªÀåªÀºÁgÀ EvÀÄÛ JAzÀgÉ £À£ÀUÉ UÉÆwÛ®è. DgÉÆæ gÁªÉÄÃUËqÀgÀ ºÀwÛgÀ gÀÆ.1 ®PÀë Judgment 17 C.C.6892/2013 ¸Á®ªÀ£ÀÄß ¥ÀqÉzÀÄ ¸À» ªÀiÁrzÀ SÁ° ¤¦-1 ZÉPÀÌ£ÀÄß ¨ÀszÀævÉUÁV gÁªÉÄÃUËqÀjUÉ PÉÆnÖzÀÝgÀÄ JAzÀgÀÉ ¸ÀjAiÀÄ®è. SÁ° ZÉQÌ£À°è gÁªÉÄÃUËqÀgÀÄ §gÀªÀtôUÉ ªÀiÁr £À£Àß ªÀÄÆ®PÀ ¸ÀļÀÄî zÀÆgÀ£ÀÄß ¸À°è¹zÁÝgÉAzÀgÉ ¸ÀjAiÀÄ®è."
23. From the above testimony of PW.1, it made clear that, the accused himself, he is in confusion state of mind regarding his defence. Only in order to defeat the claim of the complainant has taken in consistence defence without any logic. Even after production of Ex.P14-Blank signed cheque he took another defence which runs thus:
"¸ÁQëUÉ MAzÀÄ ZÉPÀÌ£ÀÄß vÉÆÃj¹ ¸ÀzÀj ZÉPï ªÀÄvÀÄÛ CzÀgÀ°ègÀĪÀ ¸À» AiÀiÁgÀzÉAzÀÄ ¥Àæ²ß¹zÁUÀ ¸ÁQë ZÉPÀÌ£ÀÄß ¥Àj²Ã°¹ ZÉPï ªÀÄvÀÄÛ ¸À» £À£ÀßzÉà JAzÀÄ M¦àPÉÆArgÀÄvÁÛgÉ. ¸ÀzÀj ZÉPÀÌ£ÀÄß ¤¦-14 JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. ¸ÁQëAiÀÄ ¸À»AiÀÄ£ÀÄß ¤¦-14(J) JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. ¤¦-14 SÁ° ¸À» ªÀiÁrzÀ ZÉPï DVgÀÄvÀÛzÉ. ¤¦-14 SÁ° ZÉPÀÌ£ÀÄß AiÀiÁjUÉ PÉÆnÖzÉÝ JAzÀÄ ºÉüÀ®Ä §gÀĪÀÅ¢®è. ¤¦-14 gÁªÀÄtÚ UËqÀjUÉ ¤ÃrzÀ ZÉPï DVgÀÄvÀÛzÉ JAzÀgÉ ¸ÀjAiÀÄ®è. £Á£ÀÄ ¦gÁ墬ÄAzÀ gÀÆ.6 ®PÀë ºÀtªÀ£ÀÄß ¥ÀqÉzÀÄPÉÆAqÀÄ ¸ÀzÀj ºÀtªÀ£ÀÄß ªÀÄgÀÄ¥ÁªÀw¸À®Ä ¤¦-1 ZÉPÀÌ£ÀÄß ¤ÃrzÉÝ JAzÀgÉ ¸ÀjAiÀÄ®è. £À£Àß ¸ÁQë ¥ÀæªÀiÁt ¥ÀvÀæzÀ°è w½¹zÀ «¼Á¸ÀzÀ°è £Á£ÀÄ ªÁ¸À«gÀÄvÉÛãÉAzÀÄ vÉÆÃj¸À®Ä £Á£ÀÄ AiÀiÁªÀÅzÉà zÁR¯ÉAiÀÄ£ÀÄß ºÁdgÀÄ ªÀiÁrgÀĪÀÅ¢®è. PÀ¼ÉzÀ 1 Judgment 18 C.C.6892/2013 ªÀµÀð¢AzÀ ¸ÁQë ¥ÀæªÀiÁt ¥ÀvÀæzÀ°è w½¹gÀĪÀ «¼Á¸ÀzÀ°è ªÁ¸À«gÀÄvÉÛãÉ. ¢.09.11.2011gÀAzÀÄ £À£Àß SÁvÉAiÀÄ°è gÀÆ.6 ®PÀë ºÀt EgÀ°®è JAzÀgÉ ¸Àj. ¢.30.11.2011gÀAzÀÄ £À£Àß ªÀÄ£É ªÀÄvÀÄÛ PÀbÉÃjAiÀÄ «¼Á¸ÀPÉÌ ¦gÁå¢ ªÀQîgÀ ªÀÄÆ®PÀ £ÉÆÃn¸ï PÀ¼ÀÄ»¹zÀÝgÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è. ¤¦-8PÉÌ £À£Àß ºÉAqÀw ¥ÉæêÀÄ ¸À» ªÀiÁr £ÉÆÃn¸ï ¹éÃPÀj¹gÀÄvÁÛgÉAzÀgÉ ¸ÀjAiÀÄ®è. ¤¦-9gÀ ¥ÀæPÁgÀ §AzÀ £ÉÆÃn¸ï£ÀÄß £ÀªÀÄä PÀbÉÃj ¹§âA¢AiÀĪÀgÀÄ ¹éÃPÀj¹ £À£ÀUÉ £ÉÆÃn¸ï vÀ®Ä¦¹gÀÄvÁÛgÉAzÀgÉ ¸ÀjAiÀÄ®è. ¦gÁå¢UÉ ºÀt PÉÆqÀ¨ÉÃPÁUÀÄvÀÛzÉ JAzÀÄ ºÉý £Á£ÀÄ ¸ÀļÀÄî ¸ÁQë £ÀÄrAiÀÄÄwÛzÉÝãÉAzÀgÉ ¸ÀjAiÀÄ®è. gÁªÀÄtÚ UËqÀgÀ ªÀÄÆ®PÀ £À£ÀUÉ ¦gÁå¢AiÀÄ ¥ÀjZÀAiÀĪÁVvÀÄÛ JAzÀgÉ ¸ÀjAiÀÄ®è. ¦gÁå¢AiÀÄ eÉÆvÉ ªÀåªÀºÁgÀ ªÀiÁr DvÀ¤AzÀ gÀÆ.6 ®PÀë ºÀtªÀ£ÀÄß ¥ÀqÉzÀÄPÉÆAqÀÄ F ¢£À £ÁåAiÀiÁ®AiÀÄzÀ°è ¦gÁå¢ £À£ÀUÉ UÉÆwÛ®è JAzÀÄ ¸ÀļÀÄî ¸ÁQë £ÀÄrAiÀÄÄwÛzÉÝãÉAzÀgÉ ¸ÀjAiÀÄ®è."
24. The accused oftenly took the inconsistence plea without any base. Therefore, no sanctity can attached to the defence of the accused.
25. During the course of cross of DW.1, he deposed that, for the marriage of his son, he born the expenses of Rs.10,00,000/- and he sold his property for Rs.20,00,000/- and born the expenses. The Ex.D2, he produced discloses that, he sold the property for Rs.60,000/-. Therefore, it is Judgment 19 C.C.6892/2013 him to establish that, how he arranged the money of Rs.10,00,000/-, other than the money collected from the complainant. But, in that regard, the accused fails to prove the same.
26. From the appraisal of facts and circumstances discussed above, coupled with material evidence available on record, it is clear that, the accused borrowed the loan of Rs.6,00,000/- from the complainant. For re-payment of the same, he got issued the Ex.P1 cheque. But, he fails to maintain sufficient money in this account and made the cheque dishonour. Despite, give legal notice as per Ex.P3, not honour the same. Even, during the pendency of Rs.6 lakhs also not pay the money covered under the cheque. Thereby, the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act.
27. In the case on hand, the complainant by producing documentary evidence as well as oral evidence, has proved his case beyond reasonable doubt. Even, the accused though taken probable defence, fails to rebut the case of the complainant, thereby; the accused has failed to Judgment 20 C.C.6892/2013 disprove the very case of the complainant. Mere taking bald defence is not enough to suspect the genuineness of claim of the complainant. The accused failed to take any specific defence to rebut the case of the complainant. Therefore, there is no material on record to disbelieve the claim of the complainant. The complainant by producing convincing evidence, has proved his case beyond reasonable doubt. The statutory presumption is in favour of the complainant that, for the payment of legally recoverable debt, the accused has issued the Ex.P1-cheque. The same got dishonoured and even to rectify the said mistake by issuing legal notice, he not comply the demand and thereby committed the offence punishable under Section 138 of Negotiable Instruments Act.
28. In this case, the complainant has made the sufficient grounds to draw the presumption as required under Section 139 and 118 of Negotiable Instruments Act that, the accused for the repayment of the loan borrowed by him for sum of Rs.6 lakhs, got issued the Ex.P1 in favour of the complainant. Though, the said cheque was presented at the instance of the accused for encashment, the same got Judgment 21 C.C.6892/2013 dishonoured and the intimation was delivered to the complainant by stating "Funds Insufficient". Thereafter, the complainant issued the legal notice, calling upon the accused to repay the money covered under the cheque. Since, the accused not come forward to pay the money, accursed cause of action to the complainant to bring the present case. The very case put forth by the complainant is after strict compliance of mandatory provisions enumerated under Section 138 of Negotiable Instruments Act. Though, the accused appeared, but utterly fails to disprove the case of the complainant. The PW.1 successfully proved his case by producing material evidence on record. Thereby, the complainant has proved the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act. The accused wantonly issued the cheque for repayment of money without maintaining the sufficient funds, despite issued the legal notice not rectified his mistake by pay the money covered under the cheque. It shows that, intentionally the accused got issued the cheque without maintaining sufficient funds; thereby the accused committed the alleged offence. Even after the filing of the complaint and till the day, the accused not come forward to Judgment 22 C.C.6892/2013 pay the money in order to skip from his liability. Thereby the complainant has proved that, the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act.
29. No doubt, the complainant proved the guilt of the accused. Under such circumstances, what is the sentence to be imposed on the accused is to be looked into. Keeping in the mind of the object of the introduction of Negotiable Instruments Act as well as the purpose of the loan availed by the accused from the complainant and made use of the same for his personal benefit, it appears this court that, it is a fit case to impose fine sentence rather imprisonment. The fine imposed on the accused in respect of the cheque amount major portion has to be payable to the complainant as compensation and meager portion has to be payable to the state as fine. If the accused fails to pay the whole fine amount, as default sentence within appeal period, she shall undergo simple imprisonment for 06 months. Thereby, one more opportunity has provided to the accused to comply the order. Otherwise, the very purpose of filing complaint will be defeated. As discussed above, the complainant has Judgment 23 C.C.6892/2013 proved his case beyond reasonable doubt. In the result, the accused shall sentence to pay the fine amount as detailed in the order portion. Accordingly, Point Nos.1 to 3 are answered in the Affirmative.
30. Point No.4: In view of my findings on point Nos.1 to 3, I proceed to pass the following:
ORDER Accused found guilty for the offence punishable under Section 138 of Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay fine of Rs.6,00,000/-.
Out of the said fine amount, sum of Rs.5,90,000/- shall be payable to the complainant as compensation as per Section 357 (3) of Cr.P.C. Remaining amount of Rs.10,000/- shall be payable to the state as fine amount.
Failing which, as default sentence,
the accused shall under go simple
imprisonment for 10 ( Ten ) months.
Judgment 24 C.C.6892/2013
The bail bond and cash
security/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.
(Dictated to the Stenographer directly on computer typed by him, corrected and then pronounced by me in the open court on this the 4th day of April - 2018) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Nagaraj PW-2 : Ramanna Gowda
List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque
Ex.P1(a) : Signature of accused
Ex.P2 : Bank endorsement
Ex.P3 : Office copy of legal notice
Exs.P4 to P7 : Postal receipts
Exs.P8 & P9 : Postal Acknowledgment Cards
Ex.P10 : Statement of account
Ex.P11 : Khatha Certificate
Ex.P12 : Khatha Extract
Ex.P13 : Photo
Ex.P13(a) : C.D.
Ex.P14 : Original blank singed cheque
Ex.P14(a) : Signature of accused
Judgment 25 C.C.6892/2013
List of Witnesses examined on behalf of the defence:
DW.1 : C.L.Mallegowda List of Exhibits marked on behalf of defence:
Ex.D1 : Marriage Invitation
Ex.D2 : CC of sale deed
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 26 C.C.6892/2013
04.04.2018.
Comp -
Accd -
For Judgment
Judgment pronounced in the open court
vide separate order.
*****
ORDER
Accused found guilty for the offence
punishable under Section 138 of
Negotiable Instruments Act.
Acting under Section 255(2) of
Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay fine of Rs.6,00,000/-.
Out of the said fine amount, sum of Rs.5,90,000/- shall be payable to the complainant as compensation as per Section 357 (3) of Cr.P.C. Remaining amount of Rs.10,000/- shall be payable to the state as fine amount.
Judgment 27 C.C.6892/2013
Failing which, as default sentence,
the accused shall under go simple
imprisonment for 10 ( Ten ) months.
The bail bond and cash
security/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.