Bangalore District Court
Sunil Kumar. M vs T.V. Mohan Raju on 9 September, 2024
KABC030823042018
Presented on : 15-11-2018
Registered on : 15-11-2018
Decided on : 09-09-2024
Duration : 5 years, 9 months, 24 days
IN THE COURT OF THE XXIII ACJM, BENGALURU
-: Present :-
Smt.Asha K.S., B.A.L, L.L.B.,
XXIII ACJM, BENGALURU,
C.C. No.30201/2018
Dated: the 09th day of September 2024.
Complainant :- Sunil Kumar.M. S/o.Manchegowda,
Age: 33 years, No.114, 1st Floor,
Sri Someshwara Arcade,
Moodalapalya Circle,
Nagarbhavi Main Road,
Vijayanagar, Bengaluru-560072.
(By Sri.Chaitanya V., Advocate)
-V/s -
Accused :- T.V.Mohan Raju,
S/o: T.V.Naidu,
No.51/23/2, 21st Main,
22nd Cross, Near Maruthi Mandir,
Vijaynagar, Bengaluru-560040.
(By Sri.M.N.Venkata, Advocate)
2 C.C.No.30201/2018
Offences complained of U/s 138 of Negotiable Instruments Act.
Plea of the Accused Not Pleaded guilty.
Final Order Accused is convicted.
Date of Order 09.09.2024.
JUDGMENT
The complainant has filed the present complaint under Section 200 of Cr.P.C. against the accused for the commission of an offense punishable under section 138 of Negotiable Instruments Act.
2. The case of the complainant in brief is as under:-
"The complainant is a Research Scholar MSRIT, Bengaluru. Complainant submits that the accused is known to him since 2015. Being well known to him, accused had approached the complainant for a short term hand loan of Rs.12,00,000/- with interest, which accused wants to spend for his relatives marriage. Complainant had agreed for the same and has paid the said amount to the accused by way of cash on 6th November, 2017. The complainant further submits that the accused was in dire need of money and also agreed to repay the entire amount within three months from the date of receipt and accused has issued two undated cheques bearing number 114444 and 114445, drawn on Union Bank of India, Vijayanagara Branch, Bengaluru for a sum of Rs.6,00,000/- each to the 3 C.C.No.30201/2018 complainant. After giving the cheques accused keep on telling complainant not to present the cheques promising to repay the amount with interest. Complainant further contended that he has waited for almost eight months and finally approached accused demanding for repayment of cheque amount. On that day accused requested complainant to present both cheques on 14.08.2018 for clearance. When the complainant has presented the said cheques for realization, the same have been returned with an endorsement as "Funds Insufficient".
3. The complainant caused a legal notice on 05.08.2018 through RPAD calling upon the accused to pay the amount covered under the cheque. The notice was returned unserved with an endorsement "unclaimed".
4. After filing of complaint, cognizance was taken. In pursuance of summons, accused appeared before the Court and he had enlarged on bail. Substance of accusation has been framed and contents of its read over to the accused. Accused pleaded not guilty and he claimed to be tried.
5. In order to prove his case complainant has examined himself as PW.1 and got marked 13 documents at Ex.P.1 to 13 on behalf of the complainant. After closure of complainant evidence, accused has been examined under section 313 of Cr.P.C and he has denied the incriminating 4 C.C.No.30201/2018 circumstance appeared against him in the evidence and not opted to lead defense evidence.
6. Thereafter arguments heard. Perused the written arguments.
7. The following points arise for my determination: -
1) Whether the complainant has made out all the ingredients of Sec.138 of Negotiable Instruments Act to prove the guilt of accused?
2) What Order?
8. On hearing the arguments and on perusal of the materials placed on record, my answers to: -
Point No.1:- In the Affirmative Point No.2:- As per final order for the following:-
REASONS
9. It is the case of complainant is that he and accused are known to each other from 2015. The accused has approached the financial assistance from the complainant and borrowed Rs.12,00,000/- on 06.11.2017 by way of cash. The accused has agreed to repay the same within three months and issued two post dated cheques bearing numbers 114444 and 114445 drawn on Union Bank of India, Vijayanagar Branch, Bengaluru for Rs.6,00,000/- each to the complainant. The complainant has waited for eight months and finally approached the 5 C.C.No.30201/2018 accused and demanded for repayment of the cheque amount. The accused has requested to present both the cheques on 14.08.2018 for realization. As per request of the accused, the complainant has presented both the cheques on 14.08.2018 through his banker Corporation Bank, CHBS Layout, Vijayanagar on 14.08.2018 and said cheques returned for the reason "Funds Insufficient" in the account of the accused. The complainant has received memo from the Bank on 16.08.2018.
10. It is further stated that the complainant has got issued a legal notice on 05.08.2018 and same has been returned unserved on 07.09.2018. The complainant has send the notice through whatsapp also same has been delivered to accused on 05.09.2018. Thereafter, the accused has not chosen to issue reply notice and not paid the cheque amount also. Thereafter, the complainant has filed this complaint. After service of summons, the accused has appeared through his Advocate and enlarged on bail. Substance of accusation has been framed and read over to the accused, but accused has not pleaded guilty and he has chosen to contest the matter.
11. To attract Sec.138 of NI Act it is necessary to fulfill the ingredients of said provision. I have carefully perused the section 138 of of N.I.Act, it has three ingredients which are as follows:-
6 C.C.No.30201/20181. That there is a Legally enforceable debt,
2. That the cheque was drawn from the account of bank for discharge in whole or any part of any debt or other liability which pre-supposes a legally enforceable debt.
3. That the cheque so issued had been returned due to insufficiency of funds.
12. Keeping in view the ingredients of Sec.138 of Negotiable Instruments Act. Now I proceed to reproduce the Sec.139 and 118(a) of N.I.Act here itself.
13. Sec.139 of N.I.Act reads as follows "Presumes in favor of holder, it shall be presumed unless the contrary is proved, that the holder of cheque received the cheque, of the nature referred to in Sec.138, for the discharge, in whole or in part or any debt or other liability".
13. Sec.118(a) reads as follows "Presumption as to Negotiable Instrument Act until the contrary is proved, the following presumption shall be made (a) of consideration- that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted endorse, negotiate or transferred, was accepted, endorsed, negotiated or transferred for consideration".
14. Keeping in view of the ingredients and provision of Sec.139 and 118(a) of N.I.Act, now I proceed to discuss the documents in the case. I am of the opinion that I need not repeat the entire case of the complaint once again since 7 C.C.No.30201/2018 I have already stated the same at the beginning of this judgment.
15. To prove his case, the complainant has examined himself as PW-1 and produced 13 documents and same has been marked as Ex.P.1 to P.13. The two cheques as per Ex.P.1 and P.2 and signatures thereon as per Ex.P.1(a) and P.2(a). Two Bank memos as per Ex.P.3 and P.4. Legal Notices as per Ex,P.5 and P.6. Two postal receipts as per Ex.P.7 and P.8. Unserved returned posts as per Ex.P.9 and P.10. Complaint as per Ex.P.11. Bank Statement as per Ex.P.12 and e-stamp Agreement as per Ex.P.13.
16. In the cross-examination of PW-1 he has deposed that he knows the accused through his friends from 15 years. He and accused were conversed many times through phone also. Accused had borrowed amount for his relative marriage. He had obtained Rs.32,00,000/- loan from the Bank to purchase the house at Moodalapalya. When the accused has visited his house to invite for his relatives marriage, he was not present in the house, hence invitation card is not with him. He does not know that whether the accused has lost his cheques or not. He is not doing any money lending business. He denied other suggestions.
17. The accused has denied the case of complainant and he has examined as DW-1 and in his evidence he has deposed that he had lost his two signed cheques. He had 8 C.C.No.30201/2018 intimated the same to his Bank on 16.08.2018 and he has also filed complaint before the police also. He has not received any notice from the complainant. One day Vijayanagar police and complainant and his Advocate came to his house in the night time and informed about the pendency of the case. Thereafter, he had approached his Advocate and verified the case papers of this case. He never borrowed any amount from the complainant as contended in the complaint. The complainant has filed false case against him. In support of his case, he has produced two documents and same has been marked as Ex.D.1 and D.2. Ex.D.1 is the endorsement issued by the police on 16.08.2016 and Ex.D.2 is the Letter to the Branch Manager of Union Bank of India dated 23.02.2018.
18. In the cross-examination of DW-1, he has deposed that he has lodged complaint before the police at about 5.00 pm to 6.00 pm. Ex.P.3 and P.4 Bank memos have been issued on 16.08.2018 in generally the timings of Banks are about morning to evening 5.00 pm. He denied the other suggestions.
19. One Sri.Srinivasa Rao P. has examined as DW-2 and he deposed that the seal contained on Ex.D.2 is belongs to his Bank, but he is not sure about signature found on Ex.D.2. Prior to July 2021 he was not working in the said Bank. The Bank account number shown in Ex.D.2 belongs to accused and cheques numbers shown in the Ex.D.2 also 9 C.C.No.30201/2018 belongs to accused. He further deposed that on 23.02.2018 accused has issued intimation to Stop Payment for the cheque bearing Numbers 02114444 and 02114445.
20. In the cross-examination of DW-2, he has deposed that MICR code and bank details code are available in all the cheques CBS entry purpose only number of cheque in the middle of cheque has to mention cheque numbers shown in the middle of Ex.P.1 and P.2 are 8 digit numbers. Cheque numbers shown in the Ex.D.2 contains only 7 digit numbers. As per request of accused only bank as stopped the payment pertaining to cheques of accused. He denied other suggestions.
21. In this case the accused has specifically contended that he never borrowed any amount from the complainant and he never issued cheques to the complainant. He had lost his cheques and the complainant has misused the same by filing false case against him. To prove the same, the accused has produced two documents and same has been marked at Ex.D.1 and D.2. As per Ex.P.1 cheque date is 14.08.2018 and same has been returned on 16.08.2018. As per Ex.D.1 the accused has filed complaint before the police on 16.08.2018 and in that date of lost of cheques shown as 15.07.2018. Ex.D.2 is the intimation to Bank for Stop payment on 23.02.2018. As stated above cheque dated 14.08.2018 and same has been presented on 14.08.2018 and same has been returned on 10 C.C.No.30201/2018 16.08.2018, but the accused has issued intimation to the Bank on 23.02.2018 i.e., after presenting of cheques by the complainant. As per accused he lost his cheques in the month of July itself but he has not chosen to lodge complaint immediately and also not chosen to issue intimation to Bank also immediately. The accused has not explained that why he has not informed the same to the Bank immediately.
22. At the time of cross-examination of DW-1 Advocate for complainant has questioned the DW-1 that cheque numbers shown in the evidence of DW-1 and cheque numbers in the Ex.D.2 are not one and the same but DW-1 denied that suggestion. At the time of cross-examination of DW-2 also he admits that accused has given intimation to stop payment with regard to cheque bearing No.02114444 and cheque bearing No.02114445. The cheques produced in this case are pertaining to cheque bearing No.114445 and cheque bearing No.114444. It shows that cheques produced by the complainant in this case and cheque numbers shown in the Ex.D.2 are not one and the same. The accused has not given any intimation with regard to stop payment pertaining to Ex.P.1 and P.2 but he has issued intimation with regard stop payment pertaining to other cheques. Moreover the accused has not intimated with regard to lost of his cheques to the police or bank immediately. It probabalises that after presentation of cheque by the complainant, the accused has received message through his 11 C.C.No.30201/2018 phone then immediately he has lodged complaint before the police only to escape from his liability. Otherwise, the accused could have filed complaint before the police immediately after lost of his cheque.
23. It is the further contention of accused is that notice issued by the complainant has not been served. On the other hand, the complainant has contended that he had send the notice to accused with correct address and also send the notice through whatsapp also. The complainant has shown the address of accused in the complainant as No.51/23/2, 21st Main, 22nd Cross, Near Maruthi Mandir, Vijayanagar, Bengaluru. In the evidence of accused also he has shown the same address. It clears the complainant send the notice with correct address. As per Section 27 of General Clauses Act notice sent to correct address has to consider as deemed service. In this also notice has been sent to correct address and also send through Whatsappa also, hence it is considered as deemed service. Hence the accused cannot take contention that notice has been served to him.
24. The another contention taken by the accused is that the complainant has no financial capacity to lend such a huge amount to him. The complainant has clearly stated in his evidence and complaint also that he had obtained loan from the bank to purchase house and said amount was in his hands and he lend the same to the accused. In the 12 C.C.No.30201/2018 cross-examination of PW-1 also nothing has been elicited by the accused. Admittedly the complainant is working as Research Scholar and getting salary of Rs.50,000/- per month. It shows that the complainant had sufficient income. Ex.P.12 is the Bank statement of complainant and it shows that there was a Rs.32,85,000/- amount in the account of complainant on 27.01.2016. It also shows that he had obtained loan from the Bank. Ex.P.3 is the agreement between the complainant and accused shows that the accused had borrowed amount of Rs.12,00,000/- from the complainant and to discharge the same only he had issued Ex.P.1 and P.2 cheques. All these documents and evidence of complainant shows that the complainant had financial capacity and he lend the same to the accused.
25. Here the conduct of accused is very important. At the time of cross-examination of PW-1, advocate for accused has suggested that signatures and handwriting found in Ex.P.1 and P.2 are not pertaining to accused. It shows that the accused is denying the signatures and handwriting of cheques but he has not chosen to take steps against the complainant for alleged misuse of cheques.
26. The accused has not denied the signatures found in agreement marked at Ex.P.13. Here the complainant has produced Ex.P.13 to show that he and accused were entered into an agreement with regard to money transaction between themselves. In the said document, it is clearly 13 C.C.No.30201/2018 shown that accused has issued Ex.P.1 and P.2 to discharge his liability. Though complainant has produced Ex.P.13 in support of his case but at the time of cross-examination, advocate for accused not suggested single question with regard to said document. It shows that accused has admits the Ex.P.13. If really accused has not entered into an agreement with the complainant and not signed to the said document, then he would have dispute the said document or he would have send the said document for handwriting expert. Here the accused has not denied the said document and signature found in said document. It shows that accused admits the transaction and Ex.P.13 and only to escape from his liability now he is disputing the transaction.
27. The version of accused is not at all acceptable one. Because, no ordinary person will simply sit after lost of signed cheques. In this case as per accused he had lost cheques in the month of July itself, but he has filed complaint before the police on 16.08.2018 and he has informed the same to Bank on 23.02.2018. As per Ex.D.1 the accused has lost his cheques on 15.07.2018, if that is so how can the accused had informed the same to bank for stop payment on 23.02.2018. Ex.D.2 shows that before lost of cheques itself the accused has informed to the bank for stop payment. The accused has not explained that why he had informed the bank stop payment on 23.02.2018. If really accused had lost his cheques on 23.02.2018 or prior to that, then why he has not inform the same to the police 14 C.C.No.30201/2018 immediately. He has also not explained that why the accused has informed the same to police on 16.08.2016. All these aspects creates doubt regarding Ex.D.1 and D.2 and also version of accused. As discussed above the complainant has presented the cheques on 14.8.2018 and same has been returned on 16.08.2018 for the reason "Funds Insufficient". It shows that accused might have receive message from bank also with regard to dishonour of his cheques, then only he has informed the same to the police to escape from his liability. If really accused has intimated the bank with regard to lost of his cheques on 23.02.2018, then bank would have issued endorsement as payment stopped by the drawer. Here no such endorsement has been issued by the bank but cheques returned for the reason Funds Insufficient. It also probablises that the accused has given intimation to the bank for stop payment with regard to other cheques and not pertinent to Ex.P.1 and P.2.
28. Though DW-2 has deposed with regard to Ex.D.2 but in the cross-examination he has deposed that he has stopped the payment with regard to Ex.P.1 and P.2 as per intimation given by the accused. Ex.P.3 and P.4 shows that cheques have been returned for the reason "Funds Insufficient" and not for stop payment. The evidence of DW- 1 and DW-2 and Ex.D.1 and D.2 are inconsistent with each other. The accused has not chosen to explain that why he has not informed about lost of his cheques to the police on 15 C.C.No.30201/2018 23.02.2018. In the evidence also accused has deposed that he has not informed about the lost of his cheques to the police on 23.02.2018 or immediately after 23.02.2018. He has also not explained that why he has narrated in Ex.D.1 as he lost his cheques on 15.07.2018. It shows that accused himself is not sure that when he had lost his cheques. All these aspects also create doubt with regard to version of accused.
29. As stated above the accused has not chosen to sent Ex.P.13 to handwriting expert. Once he has deposed in his evidence that he lost his signed cheques but at the time of cross-examination advocate for accused suggested to the PW-1 that signature and handwriting found in the Ex.P.1 and P.2 are not belongs to accused. This version also inconsistent with each other. The accused has contended that he was not doing real estate business but he was running medical shop, but no material has been placed before the Court to show that he is running medical shop. In the complaint given by the accused before also he has not stated that he lost blank cheques. It is not the case of the accused that he lost blank cheques and someone else signed in the cheques. As stated above the accused has once admits that he lost signed cheques and sometimes he has stated that he lost blank cheques. These versions of accused also creates doubt with regard to case of accused and it is not acceptable one.
16 C.C.No.30201/201830. Advocate for accused has produced authorities reported in (2007) 6 SCC 555 in CC.Alavihaji Vs.Palapatti Mohammed and another. In that Hon'ble Apex Court held that if notice returned as unserved, there should be averments in the complaint. In the case on hand also notice returned as unserved and same has been stated in the complaint. Moreover it is further stated that notice sent through whatsapp has been served. Hence accused cannot take contention that notice has not been served.
2020 (3) KCCR 2373 in Vishal Vs.Prakash Kadappa Heggannawar. In that Hon'ble Apex Court has held that complainant has to prove initial burden. It is true that in the cases of 138 of N.I.Act initial burden is always on the complainant. In this case the complainant has proved his initial burden.
2017 (1) DCR 17 Rajan Athmaram Vs.Celebrate Screens Pvt Ltd. In that case Hon'ble High Court of Madras held that when the complainant had not established his case against the accused beyond all reasonable doubt, then accused is entitled for acquittal. In the case on hand, the complainant has established his case.
2013 (1) DCR 417 Kulvinder Singh. Vs.Kafeel Ahmed. In that case Hon'ble High Court of Delhi held that when the complainant had not established his case against the accused beyond all reasonable doubt, then accused is entitled for acquittal. In the case on hand, the complainant 17 C.C.No.30201/2018 has established his case. The facts and circumstances of those cases and case on hand are not one and the same. Hence ratio held in above authorities not applicable to case on hand.
31. The decision reported in AIR 2010 SC 1898 (Rangappa V/s. Mohan), the Honorable Apex Court held that once execution of Negotiable instrument is either proved or admitted, then the court shall draw a presumption to the effect that the said negotiable instrument has been drawn for valid consideration and the legally recoverable debt was in existence.
32. Keeping in view this position of law, now I proceed to discuss that whether the cheque and signature found in Ex.P.1 is belongs to accused or not. In this case accused has admits the signature in cheque but denied the transaction.
33. In the authority reported in Crl.A.No.636 2019 (Basalingappa V/s. Mudibasappa); The Hon'ble Apex Court in the above judgment held that when the financial capacity of the complainant was questioned the burden is on the complainant to prove her financial capacity. In this case also the question of financial capacity is involved. The complainant is Research Scholar and he was getting sufficient salary. Moreover, Bank statements produced by the complainant shows that he had obtained loan from the 18 C.C.No.30201/2018 bank to purchase house and said amount was in his account. It shows that the complainant had financial capacity to lend amount to the accused.
34. In the authority reported in 2001 SC 2895 in K.N.Beena V/s. Muniyappan in that Hon'ble Apex Court held that as per Sec.139 of NI Act the court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge in whole or in part of a debt or liability. In this case the complainant has proved his initial burden. Though there is a presumption U/Sec.139 of NI Act but it can be rebuttable. In this case the accused has failed to rebut the presumption.
35. The complainant has proved that accused had issued cheques towards discharge of his legally recoverable debt or liability. The complainant has also proved that he had lend amount to accused and in turn accused has issued cheques to him. The accused has fails to prove that there is no legally recoverable debt or liability. Hence, in view of the above discussion, this court is of the opinion that the complainant has proved his case. On careful perusal of materials on record I am of the opinion that there is a legally recoverable debt or liability. All these aspects show that accused had issued cheque to the complainant towards discharge of his liability. Considering the facts and circumstances of the case the version of complainant appears to be true. The ingredients required to fulfill 19 C.C.No.30201/2018 Sec.138 of NI Act also proved. Hence, I hold that there are no materials available on record to conclude that accused has committed an offence U/Sec.138 of NI Act, hence I answered Point no.1 in the Affirmative.
36. Point No.2:- In view of the aforesaid reasons, I proceed to pass the following :-
-: ORDER :-
By invoking the power conferred under section 255(2) of Cr.P.C.,The accused is found guilty for the offence punishable under section 138 of Negotiable Instruments Act.
Accused is sentenced to pay a fine of Rs.12,00,000/- (Rupees Twelve Lakhs only) and the accused shall undergo simple imprisonment for 6 months. In default to pay the fine, accused shall undergo simple imprisonment for a period of six months.
Further, acting under Sec.357(1)(b) of Cr.P.C., on recovery of sum of Rs.11,95,000/- (Rupees Eleven Lakhs Ninety Five Thousand only) shall be paid to the complainant as compensation and Rs.5,000/- shall be remitted to the state exchequer.
20 C.C.No.30201/2018Supply free copy of this order to the accused forthwith.
(Dictated to stenographer directly on my computer, after clerical additions by him, script revised, corrected and pronounced by me in the Open Court on this the 09 th day of September 2024) (Smt.Asha K.S,) XXIII ACJM, Bengaluru.
ANNEXURE
1) List of Witnesses examined for complainant:-
PW.1 : Sri.Sunilkumar
2) List of documents marked on behalf of complainant: -
Ex.P.1 & 2 : Two cheques
Ex.P.1(a) & P2a : Signatures of accused,
Ex.P.3 & P4. : Bank Endorsement,
Ex.P.5 & P.6 : Legal Notice,
Ex.P.7 & P.8 : Two Postal receipts,
Ex.P.9 & P.10 : Returned registered postal covers
Ex.P.11 : Private complaint.
Ex.P.12 : Bank Statement.
Ex.P.13 : e-stamp Agreement.
3) List of witness examined on behalf of the Accused :-
DW-1 : T.V.Mohanraju.
DW-2 : Srinivas Rao.P.
21 C.C.No.30201/2018
4) List of documents marked on behalf of the Accused:-
Ex.D.1 : Lost Article Report.
Ex.D.2 : Letter to the Bank Manager.
(Smt.Asha K.S,)
XXIII ACJM, Bengaluru.