Bangalore District Court
Smt.Mangala vs Mr.Srinivas.N on 21 May, 2022
1 C.C. No.12470/2020 Judgt.
IN THE COURT OF THE XXI ACMM, BENGALURU
Dated: This the 21st day of May, 2022.
Present:
Smt. Reshma H.K., B.A.,LL.B.,
XXI ACMM, Bengaluru
C.C.No.12470/2020
Complainant : Smt.Mangala,
No.108,
Maruthi Markandeshwarangar,
Srighandha Kaval,
Pillappana Katte,
Sunkadakatte,
Bangalore - 560091.
(By Sri.P.R., adv.)
V/s
Accused : Mr.Srinivas.N,
S/o Nanjappa,
No.24/1, 14th Cross,
Sardapurdamma Layout,
Behind Banyan Tree Bus Stop,
Sunkadakatte Vishwaneedam Post,
Bangalore - 560091.
(By Sri.G.H., Adv.)
JUDGMENT
This is the complaint filed by the complainant under section 200 of Cr.P.C. against the accused for the offence punishable under section 138 of Negotiable Instruments Act and to take cognizance of the offence to punish the accused in accordance with law.
2 C.C. No.12470/2020 Judgt.
2. The factual matrix of the complaint is that the complainant is working as a conductor in BMTC, Bangalore. Further, accused offered to sell his site property situated at Sunkadakatte for a total consideration of Rs.4,50,000/- and complainant accepted the proposal of accused. Accordingly, on 27.06.2019 the complainant paid a sum of Rs.2,00,000/-, on 17.07.2019 paid a sum of Rs.50,000/- and on 29.07.2019 paid a sum of Rs.50,000/- and intotal complainant paid Rs.3,00,000/- to the accused as an advance amount and accused promised to register the said site in the name of complainant by July 2019. Further complainant stated that subsequently the accused failed to register the site property in the name of complainant and assured that he will refund the advance paid by the complainant along with interest. Further the case of the complainant is that, when the complainant requested the accused for refund of the advance amount of Rs.3,00,000/-, then the accused issued a cheque bearing No.537725 dated:20.03.2020 for an amount of Rs.2,50,000/- drawn on Vijaya Bank, Sunkadakatte Branch, Bangalore.
3. Further, as per the instructions of the accused, the complainant has presented the said cheque for encashment on 3 C.C. No.12470/2020 Judgt. 11.06.2020 through her banker i.e., Bank of India Account, Bangalore Main Branch, but to the shock and surprise of the complainant said cheque was returned as 'Funds Insufficient' as per the bank memo dated:12.06.2020. Thereafter, the complainant issued a Legal notice dated:23.06.2020 to the accused through R.P.A.D calling upon him to pay the amount covered under the cheque within the stipulated period and the same was served to the accused on 24.06.2020. Despite of service of summons, accused failed to repay the amount covered under the cheque. Hence, the complainant filed the present complaint against the accused for the offence punishable under section 138 of Negotiable Instrument Act.
4. This court after perusing records, cognizance of the offence was taken and there on sworn statement of the complainant was also recorded. The criminal case has been registered against the accused for the offence punishable under section 138 of N.I. Act.
5. Upon service of summons, accused appeared through his counsel and enlarged on bail. Thereafter, the court has recorded the plea of the accused and the accused did not pleaded guilty of the offence and claims to be tried. Hence, the case was posted for trial.
4 C.C. No.12470/2020 Judgt.
6. The complainant in order to prove her case, she herself examined as PW-1 and got marked 14 documents i.e., Ex.P-1 to Ex.P-14. Original Cheque marked as Ex.P.1, Signature of accused marked as Ex.P.1(a), Return Memo marked as Ex.P.2, Legal notice marked as Ex.P.3, Postal Receipts marked as Ex.P.4 & Ex.P.5, Track Consignments marked as Ex.P.6 and Ex.P.7, C.Ds marked as Ex.P.8, Ex.P.9 and Ex.P.12, Photographs marked as Ex.P.10 and Ex.P.11, Ledger Account marked as Ex.P.13 and Postal Acknowledgment marked as Ex.P.14.
7. 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 is denied the incriminating evidence available against him and did not choose to lead evidence on his behalf.
8. Heard arguments and perused the materials placed before the court. The following points would arise for consideration;
1. Whether the complainant proves that the accused issued cheque bearing No.537725 dated:20.03.2020 for the legally enforceable debt of Rs.2,50,000/-, in favour of complainant and it was presented within the validity period and same is returned 5 C.C. No.12470/2020 Judgt. unpaid on account of "Funds Insufficient"
and thereby caused the dishonor of cheque and inspite of legal notice, the accused fail to make payment and thereby committed an offence punishable under section 138 of Negotiable Instrument Act?
2. What Order?
9. My findings on the above points are as under:-
Point No.1: In the "Affirmative"
Point No.2: As per the final orders for the following:
BRIEF STATEMENT OF REASONS FOR THE DECISION
10. Point No.1:
On over all perusal of the oral and documentary evidence adduced by both the parties, it reveals that the case of the complainant is that in order to purchase the site property belongs to the accused, the complainant accepted the proposal of the accused and paid Rs.3,00,000/- advance to the accused.
Subsequently the accused failed to register the site property in the name of complainant and assured that he will refund the advance paid by the complainant along with interest. Further the case of the complainant is that, when the complainant requested the accused for refund of the advance amount of Rs.3,00,000/-, 6 C.C. No.12470/2020 Judgt. then the accused issued a cheque bearing No.537725 dated:20.03.2020 for an amount of Rs.2,50,000/- drawn on Vijaya Bank, Sunkadakatte Branch, Bangalore. Further the case of the complainant is that, she has produced the said cheque to the bank and same was bounced due to insufficient funds.
Thereafter, though the complainant issued legal notice to the accused to pay the said advanced amount, but the accused failed to do so. On the other hand, there is no specific defence of the accused regarding the issuance of the cheque and also how the alleged cheque is in the custody of complainant. Hence, there is no denial regarding the cheque.
11. As per the above evidence, the accused did not denied the issuance of Ex.P.1/Cheque and its signature. Under the circumstances, it is worth to mention that once the cheque relates to the account of the accused and she accepts and admits the signature on the said cheque, then initial presumption as contemplated under section 139 of the N.I.Act has to be raised by the court infavour of the complainant.
12. Further, in a decision the Hon'ble Apex court, reported in AIR 2010 SC 1898 in a case of Rangappa V/s Mohan the 7 C.C. No.12470/2020 Judgt. Hon'ble Apex Court held that:-
"Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant. Therefore, in view of above said deposition, a presumption under section 139 of Negotiable Instruments Act can be drawn in favour of complainant that the said cheque was issued for a valid consideration. Now it is for the accused to rebut the said presumption. It is a settled law that though the onus on the accused to rebut the presumption is that of preponderance of probabilities but still the accused is required to adduce cogent evidence to rebut the presumption. Mere assertions and explanations of fact in the Court will not amount to rebuttal of presumption. In order to rebut the presumption under section 139 of N.I. Act, the accused by cogent evidence, has to prove the circumstance under which cheque was issued.
As per the above decision of the Hon'ble Apex Court, when accused admitted the cheque and its signature on the said 8 C.C. No.12470/2020 Judgt. cheque, then the burden shifted to the accused to prove that under which circumstances the cheque has been issued to the complainant. Hence, in the present case, complainant is successful in drawing initial presumption available in his favour.
13. Further, to rebut the presumption available to the complainant, the accused placed his defence by way of cross examining the PW.1. On perusal of the entire cross examination of PW.1, it shows that in the whole cross examination, counsel for the defence attempted to elicit from the mouth of witness regarding the financial capacity of the complainant and regarding the intimacy between the complainant and accused. For which complainant stated that she came to know about the accused when she went to the house of the accused to give the wedding invitation card of her son. Further deposed that, she is working as a conductor in BMTC and having salary of Rs.30,000/-. Further, in the cross examination counsel for the accused questioning the complainant regarding the differences in hand writing on cheque and for which PW.1 replied that she did not know to write english and hence she has handed over the cheque to her son by name Manjesh and the bank authorities has written her name on the cheque.
9 C.C. No.12470/2020 Judgt.
14. Further, during the course of cross examination of PW.1 accused denied the service of statutory notice. However, the complainant has produced Ex.P.6 and Ex.P.7, the Track Consignment Reports of the postal authorities and the entries in these documents clearly shows that the delivery of Ex.P.3/ Notice on the accused. Further, on perusal of the entire cross examination accused questioning the PW.1 regarding the proof of financial transaction with the accused. With this regard, during the course of proceedings PW.1 produced Ex.P.8 and Ex.P.9, the CD copies to show the phone conversation between the accused and complainant regarding the financial transaction. Further, PW.1 produced Ex.P.10 to Ex.P.12 the Photographs and CD to show the presence of accused at the marriage function of the complainant's son. However, the accused did not come forward to cross examine the PW.1 on these documents. It is worth to note that the accused has not produced any evidence on his behalf to falsify the case of the complainant.
15. It is worth to mention that when there is a presumption available in favour of the complainant regarding legally recoverable debt and the complainant successfully drawn that presumption, then the burden lies on the accused to prove his 10 C.C. No.12470/2020 Judgt. contention by adducing cogent evidence. Mere denial of the complainant case is not sufficient to prove the innocence of the accused. At this juncture, it is worth to relay on the decision passed by the Hon'ble Supreme Court of India in the case of T.P. Murugan through Lrs. & Anr. -Vs- Bojan reported in 2018 SAR (Criminal) 923 wherein which it is held that -
" Secs. 139, 138- Dishonour of cheques- Legally enforceable debt or liability - Presumption- Under Section 139 of the N.I. Act, once a cheque has been signed and issued in favour of the holder, there is statutory presumption that it is issued in discharge of a legally enforceable debt or liability. This presumption is a rebuttable one, if the issuer of the cheque is able to discharge the burden that it was issued for some other purpose like security for a loan - In the present case, the respondent has failed to produce any credible evidence to rebut the statutory presumption- The appellants have proved their case by overwhelming evidence to establish that the two cheques were issued towards the discharge of an existing liability and legally enforceable debt- the respondent having admitted that the cheques and Pronote were signed by him, the presumption under S. 139 would operate- the respondent failed to rebut 11 C.C. No.12470/2020 Judgt. the presumption by adducing any cogent or credible evidence- hence, his defence is rejected - In view of the facts and circumstances, the impugned order passed in Criminal Revision Petition is hereby set aside, and the order of conviction and fine passed by the Trial Court is restored."
16. Further, in a decision reported in 2014 (3) DCR 558 in a case of "Sripad V/s Ramdas M Shet" the Hon'ble court held that;
" Mere a distorted version or mere taking up the plea or the defence that he is not liable to pay any amount or he discharge the amount are not sufficient to put back the burden on to the complainant to prove his case beyond reasonable doubt"
The ratio laid down in all these decisions are aptly applicable to the present case. In the case on hand, though the accused contended that there is no legally recoverable debt as he had issued Ext.P.1 /Cheque as a security, but failed to prove his case by adducing cogent and reliable evidence. A mere saying is not sufficient to rebut the statutory presumption available to the complainant.
12 C.C. No.12470/2020 Judgt.
17. More so, the complainant succeeded in drawing above stated statutory presumption in his favour. Furthermore, on basis of the material evidence placed before the court, it clearly establishes that the accused had issued Ext.P.1 /cheque for an amount of Rs.2,50,000/- to the complainant and the said cheque presented on the said day it was returned without honoring the same on account of "Funds Insufficient" maintained in the account of the accused. Further on perusing the EX-P.4 and Ex.P.5, the postal receipts and Ex.P.3, the legal notice all these discloses that, inspite of the intimation of the dishonour of cheque accused did not comply the demand made in the legal notice. All these facts clearly establishes that, accused committed an offence under section 138 of N.I. Act. Therefore, I answered this point in the "Affirmative".
18. Point NO.2:- Having held the complainant has proved point No.1, the next aspect that arises for my consideration is regarding sentence to be imposed on the accused for having committed an offense punishable under section 138 of Negotiable Instrument Act. It could be seen from the materials that the complainant presented the cheque on 20.03.2020 and the same were returned unpaid. Further, accused fails to repay 13 C.C. No.12470/2020 Judgt. the said amount about nearly 02 years 02 months and made the complainant to suffer for want of funds in her hands. So I am of the opinion that it is required to direct the accused to pay the compensation to the complainant and in that event only it will meet the ends of justice. Hence, for the foregoing reasons and finding to point No.1, I proceed to pass the following:
ORDER By invoking the power conferred under section 255(2) of Cr.P.C., the accused is convicted and sentenced to pay a fine of Rs.2,85,000/- for the offence punishable U/S.138 of N.I. Act and in default to pay the fine amount the accused shall undergo simple Imprisonment for one year.
Further, Acting under section 357(1)
(b) of Cr.P.C. the entire fine amount of Rs.2,80,000/- on recovery shall be paid to the complainant as compensation.
Further, accused is directed to deposit the fine amount of Rs.5,000/- to the State out of fine amount.
Bail bond and surety bond of the accused shall stand cancelled.
14 C.C. No.12470/2020 Judgt.
Supply a free copy of this judgment to the accused.
Issue conviction warrant.
(Dictated to the Stenographer directly on computer, typed by her, corrected by me, signed then pronounced in the open court on this the 21 st day of May, 2022.) Sd/-
(SMT.RESHMA H.K.) XXI ACMM, BENGALURU ANNEXURE
1. List of witnesses examined on behalf of the complainant:
PW-1 : Mangala
2. List of witnesses examined on behalf of the accused:
-NIL-
3. List of documents marked on behalf the complainant:
Ex.P.1 : Original Cheque
Ex.P.1(a) : Signature of accused
Ex.P.2 : Return Memo
Ex.P.3 : Legal notice
Ex.P.4 & 5 : Postal Receipts
Ex.P.6 & 7 : Track Consignments
Ex.8, 9 & 12 : C.Ds
Ex.10 & 11 : Photographs
15 C.C. No.12470/2020 Judgt.
Ex.P.13 : Ledger Account
Ex.P.14 : Postal Acknowledgment
4. List of documents marked on behalf of the accused:
-NIL-
Sd/-
(SMT.RESHMA H.K.) XXI ACMM, Bengaluru