Bangalore District Court
Sri. Shanthakumar B.S vs Sri. Rakesh. C on 7 July, 2018
1 C.C.No.11080/16 J
THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 7th day of July, 2018
Present: Smt. Saraswathi.K.N, B.A.L., LL.M.,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.11080/2016
Complainant : Sri. Shanthakumar B.S,
S/o. Sri. Srikanta B.P.
Aged about 23 years,
Residing at No.2,
3rd Cross,
Chikkanna Garden,
Shankarapuram,
Bengaluru -560 004.
(Rep. by Sri.G.Devaraj & Ors.,
Advs.,)
- Vs -
Accused : Sri. Rakesh. C
Father's name not known,
Aged about 30 years,
Residing at No.29/9,
3rd Floor,
Flat No. TF-TA,
Hara Vijaya Apartment,
2nd Block,
Ravi Hill View Layout,
Ittamadu, B.S.K. III Stage,
Bengaluru -560 085.
(Rep.by Sri. M/s. Nag Associates,
Advs.,)
Case instituted : 21.4.2016
2 C.C.No.11080/16 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 : 7.7.2018
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, the Accused and he are known to each other since several years and maintained a very good cordial relationship between them. The Accused explained his financial difficulties and his domestic problems to him and sought his help to provide a hand loan of Rs.6 Lakhs in the second week of April 2015. He yielded to the said demand and agreed to pay him the said amount to maintain the same relationship with the Accused and sought two weeks time to arrange he said amount. Thereafter as per the request of the Accused, he arranged the said amount and lent Rs.6 Lakhs to him in the first week of May 2015 and at that time, the Accused voluntarily assured that, he would repay the said amount to him with interest at the rate of 24% p.a., and that he would repay the same to him within 10 to 11 months from the date of borrowing.
3 C.C.No.11080/16 J3. The Complainant has further submitted that, the Accused has failed to repay the said amount to him within the stipulated period as agreed and he kept quite for the entire act of the Accused on the ground that, he would repay the amount to him at the earliest. However, after the expiry of the aforesaid period, when he approached the Accused and demanded for the repayment of the said loan and interest, upon his repeated requests and remainders, the Accused expressed his inability to pay the interest part and requested to waive out the interest part and agreed to pay the principal loan amount. Considering the financial position of the Accused, he agreed to waive out the interest part and towards the discharge of his liability, the Accused issued a cheque bearing No.040834 dated: 3.3.2016 for Rs.6 Lakhs drawn on the Central Bank of India, Gandhinagar Branch, Bengaluru. At that time, the Accused had assured that the said cheque would be duly honoured on it's presentation on the due date.
4. The Complainant has further submitted that, as per the instructions of the Accused, when he presented the said cheque for encashment through his banker, the same came to be returned dishonoured as "Payment Stopped by Drawer"
vide bank endorsement dated: 4.3.2016. Thereafter when he informed the Accused about the same, the Accused instructed him to re-present the cheque and accordingly, when the same was re-presented by him, again the same 4 C.C.No.11080/16 J came to be dishonored for the same reason as "Payment stopped by Drawer". Thereafter left with other alternative, he got issued a legal notice to the Accused through RPAD on 30.3.2016 calling upon him to pay the cheque amount to him within 15 days from the date of the receipt of the said legal notice and though the said legal notice has been duly served upon Accused, he has neither replied nor has repaid the cheque amount to him. Hence the present complaint.
5. The Complainant submits that, the dishonour of the cheque by the Accused has been malafide, intentional and deliberate. Feeling aggrieved by the conduct of the Accused, he has filed the present complaint praying that he be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
6. The Complainant has led his pre-summoning evidence. He has filed his affidavit-in-lieu of his sworn statement by examining him as C.W.1, in which, he has reiterated the complaint averments.
7. In support of his oral evidence, C.W.1 has produced and relied upon the documentary evidence as per Ex.C1 to C6, which is as follows:-
The cheque dated 3.3.2016 as per Ex.C1, the signature on the said cheque identified by C.W.1 as that of the Accused as per Ex.C1 (a), the Bank Memos as per Ex.C2 and C.3, the 5 C.C.No.11080/16 J office copy of the Legal Notice as per Ex.C4, the Postal Receipt as per Ex.C5 and the Postal Acknowledgement as per Ex.C6.
8. Prima-facie case has been made out against the Accused and he has been summoned vide the order of the same date.
9. The Accused has appeared before the court on and he has been enlarged on bail and the substance of the accusation has been read over to him, to which he has pleaded not guilty and has stated that he has his defence to make.
10. In his post summoning evidence, the Complainant has examined him as PW.1 and has filed his affidavit in which he has reiterated the Complaint averments.
11. In support of the case of the Complainant, his father by name Sri. Srikanta is examined as P.W.2 and he has filed his affidavit, in which he has corroborated the case of his son i.e., the Complainant herein.
12. PW.2 has sworn in his affidavit that, he knows the Accused through his son and he is doing the business of buying and selling of cars on Commission basis. His son had intimated to him that, the Accused had requested him for a financial assistance of Rs.6 Lakhs from him and at that time, 6 C.C.No.11080/16 J his son had informed that, he had a liquid cash of Rs.3 Lakhs with him and requested him to provide a sum of Rs.3 Lakhs, so as to lend a total loan of Rs.6 Lakhs to the Accused. According to P.W.2, he always used to keep the liquid cash with him for his business purpose and as per the request made by his son, he paid Rs.3 Lakhs to him in the last week of April 2015 and his son had informed him that, he lent Rs.6 Lakhs to the Accused in the first week of May 2015 and that the Accused had promised to repay the aid loan to his son within 10 months from the date of borrowing.
13. P.W.2 has further deposed that, after his son had approached the Accused after the expiry of the said period, the latter has handed over the cheque in question towards the discharge of his liability towards the repayment of the hand loan amount and the said cheque, upon its presentation is returned as "Payment Stopped by Drawer".
14. P.W.1 and PW.2 have been cross-examined extensively by the learned Defence Counsel.
15. The statement of the Accused u/Sec.313 of Cr.P.C. is recorded. He has denied the incriminating evidence found against him and has chosen to lead his defence evidence.
16. The Accused is examined as D.W.1 and he has filed his evidence affidavit, which is accepted by this court, as per 7 C.C.No.11080/16 J the direction of our Hon'ble High Court in the case of Afzal Pasha V/s. Mohamed Ameer Jan, reported in LAWS (KAR) 2016 (8) 131, in which, the acceptance of the affidavit of the Accused is permitted by our Hon'ble High Court in accordance with the direction of the Hon'ble Apex Court in the case of the Indian Bank Association Vs., Union of India, reported in (2014) 4 SCC 590.
17. The gist of the defence of the Accused in his affidavit is that, he knows the Complainant since the wife of the former was working in the same company where the Complainant was working. The Complainant had promised to get him a loan from any Nationalized Bank by mortgaging the house standing in the name of the former (Accused) and he had also collected the papers pertaining to his house.
18. Further according to the Accused, as he was in financial crisis, the Complainant had lent a loan of Rs.1 Lakhs to him. The Complainant had promised him that, he would adjust the said amount of Rs.1 Lakh from the loan, which he had to get from the bank and he had also collected the copies of his house documents for the purpose of the said loan. However inspite of his repeated requests, the Complainant did not get him the house loan, but started demanding the repayment of Rs.1 Lakh with interest at 10% p.m., and when he denied to pay the same, by using his 8 C.C.No.11080/16 J influence to secure his presence, the Complainant got collected the signed blank cheque from him in the Shankarapuram Police Station with the help of the police. Immediately he went to his banker and caused stop payment instructions towards the said cheque, as the said cheque was not issued by him to the Complainant towards the repayment of any debt and that it was forcefully collected for him.
19. Therefore According to D.W.1, his cheque had been got collected by the police forcefully and handed over to the Complainant. However, he could not proceed against the said action legally, since the Complainant was a highly influential person and the former was afraid of the police officials.
20. According to D.W.1, after giving stop payment instructions to his banker, he had informed the Complainant that he had made stop payment and the latter had also acknowledged the same.
21. Further according to the Accused, he has not at all been served with the legal notice and as such he has not committed any offence and hence on this ground also, he has prayed for his acquittal.
22. In support of his oral evidence, D.W.1 has relied upon the documentary evidence at Ex.D.1, being his Bank 9 C.C.No.11080/16 J Passbook and the relevant entry dated: 17.8.2015, as per Ex.D1(a) in support of his defence version.
During his cross-examination the statement of Accused is marked as Ex.C.7.
23. The learned counsel for the Complainant has addressed his arguments, during the course of which, he has prayed for the conviction of the Accused on the following grounds:-
i) The acquaintance between the parties is not in dispute and likewise there is no dispute with regard to the fact that the cheque in dispute belongs to the Accused with his signature on it;
ii) The Accused has denied that he has availed a loan of Rs.6 Lakhs from the Complainant and issued the subject cheque to him towards the discharge of the said liability.
iii) No doubt, the moment the Accused admits his acquaintance with the Complainant as well as his signature on the cheque in dispute and the issuance of the same by him in favour of the Complainant, the statutory presumptions u/Sec.118 and 139 should be extended in favour of the Complainant;
iv) However the said presumptions, being rebuttable in nature, the Accused can rebut the same by 10 C.C.No.11080/16 J raising a probable defence and by creating serious doubts in the case of the Complainant. In such circumstance, the benefit of the doubt in the case of the Complainant should always be extended to the Accused;
v) According to the Complainant, he has arranged a sum of Rs.6 Lakhs by way of his own savings of Rs.3 Lakhs and with the assistance of his father to the tune of Rs.3 Lakhs. Though the Accused has disputed the financial capacity of the Complainant, he has not disputed that, the Complainant was working for a monthly salary of Rs.20,000/=, as well as about the business of his father/P.W.2;
vi) The only defences of the Accused in this case is that, there is no service of the legal notice and the loan amount is not to the tune of Rs.6 Lakhs and that the cheque in dispute was collected as a signed blank cheque from him in the Shankarapuram Police Station by coercion and that he has not issued the cheque towards the repayment of the loan of Rs.6 Lakhs;
vii) Though the Accused has claimed that, he had a monthly income of Rs.30,000/= to 35,000/= at the relevant point of time, the Accused has admitted 11 C.C.No.11080/16 J that he had the financial necessity, for which, he claims to have avail a loan of Rs.1 Lakh from the Complainant;
viii) In his cross-examination, the Accused has claimed that, he wanted a loan of Rs.40 Lakhs and for the said purpose he had approached the Complainant so as to secure him a mortgage loan on the basis of his house documents. However, this contradictory version in the defence of the Accused clearly goes to show that, he has not come up with a probable defence;
ix) The Accused has admitted in his cross-
examination that, till date, he has not taken any action against the Complainant alleging that, he has misused his signed blank cheque;
x) Though the Accused claims that, he has lodged a complaint against the Complainant as well as the Shankapuram Police Station before the COP, he admits that, he has no proof of the same;
xi) On the contrary, the Complainant had lodged a complaint against the Accused on 11.12.2015, in pursuance of which, the Accused has given a statement before the police as per Ex.C.7, in which he clearly admits his liability to the tune of Rs.6 12 C.C.No.11080/16 J Lakhs and in fact the Accused has admitted having given his statement before the police as per Ex.C.7 as well as his signature in the said statement. This clearly goes to show that the defence of the Accused is not a probable one;
xii) Though the Accused has raised the technical defence of the non-service of the legal notice, he has admitted in his cross-examination that, the address to which the legal notice has been caused to him is his permanent address and that his address shown in the legal notice as well as in the complaint and in his statement at Ex.C.7 and in his Bank Pass book at Ex.D.1 are one and the same;
xiii) Moreover the date of the opening of the Account by the Accused as per Ex.D.1 is 26.5.2015 and the legal notice at Ex.C.4 is dated: 30.3.2016. Though the Accused claims that, as on that day, he was not residing in the said address, he has not produced any proof to show his different address as on the date of the said legal notice. Therefore this technical defence is also not available to the Accused;
xiv) According to the Accused, the Complainant might have collected his cheque on the 10th or 11th of 13 C.C.No.11080/16 J August 2015, whereas he has not produced the copy of the Stop Payment Letter said to have been issued by him to his bank on 17.8.2015. Moreover there is no proof of the fact that, the stop payment instructions was given by the Accused to his bank on 17.8.2015 only in respect of the cheque in dispute;
xv) The document at Ex.D.1 and the entry at Ex.D.1(a) goes to show that, the stop payment instructions given by the Accused is only in respect of the cheques bearing No.072015 to 092015 and not in respect the cheque in dispute. As such it clearly goes to show the cheque in dispute has been issued by the Accused to the Complainant after the issuance of the stop payment instructions by him. This clearly proves his malafide intention to cheat the dispute.
24. In support of his arguments, the learned Counsel for the Complainant has relied upon the following decisions:-
1. In Rangappa Vs., Sri.Mohan, reported in (2010) 11 SCC 441;
2. In Lalji S/o. Bansanarayan Choubey vs., Jiyalal Chavan andanother., reported in 2009 (2) DCR 132;
3. In K.N.Beena Vs., Muniyappan and another., reported in (2001) 8 SCC 458;14 C.C.No.11080/16 J
4. In Raghunathan Vs., Selvarajan., reported in 2002 Crl.L.J.3848;
5. In Hitten P. Dalal Vs., Bratindranath Banerjee., reported in 2001 SCC 3897;
6. In K. Bhaskaran Vs., Sankaran Vaidhyan Balan and another., reported in AIR 1999 SC 3762;
7. In M/s. Agency Real Margao Pvt.Ltd., Panaji Goa Vs., Subhash K.Parab., reported in 2015 Crl.L.J.2336;
8. In M/s.Jayaram and Company, Chennai V.s, T.Ravichandran, reported in 2003 Crl.L.J.2890;
9. Judgment in of the Hon'ble High Court of Judicature at Madras in Crl.Appeal No.506/2006 Accordingly he has prayed for the acquittal of the Accused.
25. Per contra, the learned Defence Counsel has orally addressed his arguments, during the course of which, he has prayed for the acquittal of the Accused on the following grounds:-
i) The Complainant has failed to prove the existence of the legally enforceable debt on the part of the Accused;
ii) The defence of the Accused is that his liability towards the Complainant was only to the tune of Rs.1 Lakh, out of which, he has paid Rs.70,000/= to the Complainant and the 15 C.C.No.11080/16 J Complainant claims that, the said amount of Rs.70,000/=was only for interest. Therefore the Accused was summoned to the Police Station, wherein the cheque in dispute was forceably collected from him in the Police Station by coercion;
iii) There is no service of the legal notice on the Accused and the Postal Acknowledgement at Ex.C.6 does not contain the signature of the Accused. The Complainant has not examined any Postal authorities in order to prove the alleged service of the legal notice on the Accused. As such it is clearly proved by the Accused that, there is no service of the legal notice on him;
iv) The Complainant has failed to establish his financial capacity and though he has examined his father as a witness on his behalf as P.W.2, his evidence does not corroborate the case of the Complainant;
v) The Complainant has admitted that he has filled up the contents of the cheque in dispute and there is no proof of funds with the Complainant so as to accept his claim that, he had the savings of Rs.3 Lakhs, with which, he claims to 16 C.C.No.11080/16 J have lent the loan amount of Rs.6 Lakhs to the Accused;
vi) The Complainant has relied upon the statement of the Accused as per Ex.C.7 and has argued that, by virtue of the said statement, the Accused has admitted his liability to the tune of Rs.7 Lakhs. However, the said document goes to show that, it not only shows the name of the Complainant, but also the name of one Chethan.
There is no proof led by the Complainant to prove, as to, who the said Chethan is? As such the claim of the Complainant that Ex.C.7 proves the liability of the Accused to the extent of Rs.6 Lakhs cannot be accepted by this court;
vii) The secured loans are regulated by the Money Lenders Act and as per the case of the Complainant, the Accused had allegedly agreed to repay the loan amount to him at the rate of 24% p.a., which is clearly an illegal rate of interest and as such, the loan amount claimed by the Complainant cannot be termed as a legally recoverable amount;
viii) As on 2015, the maximum interest for the secured loans under the Money Lender's Act was only 15% p.a., 17 C.C.No.11080/16 J
ix) The Accused has also proved that, the cheque in dispute was not given by him to the Complainant under free consent and as such, there is no legally recoverable debt by the Complainant from the Accused;
x) Hence both on merits as well as on technicalities, the Complainant has failed to prove his case beyond unreasonable doubt and as such the Accused deserves to be acquitted.
Accordingly, he has prayed for the acquittal of the Accused.
26. I have considered the submissions and perused the record carefully. I have also carefully gone through the written arguments filed by the learned Counsel for the Complainant as well as the decisions relied upon by him.
27. Sec.138 of the Negotiable Instruments Act has been enacted to lend credibility to the financial transactions.
The main ingredients of the offence under Sec.138 of the Negotiable Instruments Act are:-
(i) Drawing up of a cheque by the Accused towards payment of an amount of money, for the discharge, in whole or in part, of any debt or any other liability;
(ii) Return of the cheque by the Bank as unpaid;18 C.C.No.11080/16 J
(iii) The drawer of the cheque fails to make the payment of the said amount of money within 15 days of the receipt of the notice under the proviso (b) to Section
138.
The Explanation appended to the Section provides that, the "debt or other liability" for the purpose of this Section means a legally enforceable debt or other liability.
28. Apart from this, Sec.139 of the Negotiable Instruments Act lays down a presumption in favour of the holder of cheque in the following terms:-
"It shall be presumed, unless the contrary is proved, that:-
The holder of a cheque received the cheque, of the nature referred to in Sec. 138, for the discharge, in whole or in part, of any debt or other liability".
29. Also, Sec.118 of the Negotiable Instruments Act states, "Until the contrary is proved, the following presumptions shall be made:-
(a) That every Negotiable Instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration."19 C.C.No.11080/16 J
30. Thus, the Act clearly lays down presumptions in favour of the Complainant with regard to the issuance of the cheque by the Accused towards the discharge of his liability in favour of the Complainant.
31. Under the scheme of the Act, the onus is upon the Accused to rebut the presumptions in favour of the Complainant by raising a probable defence.
32. It is a well settled position of law that, the defence of the Accused, if in the nature of a mere denial of the case of the Complainant will not be sufficient to hold it as a probable defence. The bare denial of the passing of consideration apparently does not appear to be any defence. Something which is probable must be brought on record for getting the benefit of shifting the onus of proof to the Complainant.
33. It is also a well settled position of law that, once the cheque is proved to be relating to the Account of the Accused and he accepts and admits the signature on the said cheque, then the initial presumption as contemplated under Sec. 139 of the N.I.Act has to be raised by the courts in favour of the Complainant. The presumption referred to in Sec.139 of the N.I.Act is a mandatory presumption and not a general presumption, but the Accused is entitled to rebut the said presumption. What is required to be established by the Accused in order to rebut the presumption is different from 20 C.C.No.11080/16 J each case under given circumstance. But the fact remains that a mere plausible explanation is not expected from the Accused and it must be more than a plausible explanation by way of rebuttal evidence. The defence raised by the Accused by way of rebuttal evidence must be probable and capable of being accepted by the court.
34. No doubt the initial mandatory statutory presumptions under Sec.118 and 139 of the N.I.Act are in favour of the Complainant. However they are rebuttable presumptions and the Accused is expected to rebut the presumptions by raising a probable defence.
35. Such being the legal position, it would be pertinent to refer to the defences raised by the Accused to rebut the presumptions in favour of the Complainant in this case.
36. No doubt in the present case, there is no dispute between the parties with regard to their acquaintance with each other and there is also no dispute with regard to the fact that the cheque in dispute belongs to the Accused with his signature on it. However the Accused has denied that, he has availed a loan of Rs.6 Lakhs from the Complainant and has issued the subject cheque to him towards the discharge of the said liability.
37. No doubt the moment, the Accused admits his acquaintance with the Complainant as well as his signature 21 C.C.No.11080/16 J on the cheque in dispute and the issuance of the same by him in favour of the Complainant, the statutory presumptions u/Sec.118 and 139 should be extended in favour of the Complainant. However the said presumptions, being rebuttal in nature, the Accused can rebut the same by raising a probable defence and by creating serious doubts in the case of the Complainant. In such circumstance, the benefit of such doubts in the case of the Complainant should always to be extended to the Accused.
38. Now keeping in mind the aforesaid well settled principles of law, it is necessary to consider the case of the Complainant.
39. However in this regard, before discussing the matter on merits, it is necessary to consider the technical defence of the Accused with regard to the alleged non-service of the legal notice on him, since it touches the very maintainability of a very Complaint.
40. It is a settled position of law that, the service of the legal notice on the Accused as contemplated u/Sec.138 (b) of the N.I.Act is a mandatory pre-requisite in order to enable the Complainant to succeed in his case.
41. In this regard, as per the complaint averments, the Complainant is said to have caused the legal notice to the 22 C.C.No.11080/16 J Accused on 30.3.2016 through RPAD to the address of the Accused. However, as per the complaint averments, it is pleaded that the said legal notice is duly served upon the Accused on 31.3.2016.
42. In support of this contention, the Complainant has relied upon the documentary proof in the form of the Postal Receipt as per Ex.C.5 and the Postal Acknowledgement as per Ex.C.6 which contains the signature of some receiver of it. By relying upon the same, it is the claim of the Complainant that the legal notice has been duly served upon the Accused.
43. However, the defence of the Accused which is evident both in the cross-examination of the Complainant as well as in his rebuttal evidence in this regard is that, the signature found on the Postal Acknowledgement at Ex.C.6 is not his and that he has not at all received any such legal notice.
44. It is pertinent to note that, during the cross- examination of the Complainant, the Accused has reiterated the said defence by claiming that, he was not residing in the address shown in the complaint as well as in the legal notice since 2015 and that he is a resident of J.P.Nagar and not the resident of the address shown in the Complaint as well as in the legal notice.
23 C.C.No.11080/16 J45. However, according to the Complainant, the J.P.Nagar address of the Accused is that of the residence of his brother and not that of him (Accused).
46. In this regard, it could be seen that, even in the course of the further cross-examination of the Complainant, the Accused has claimed that, the signature of the receiver found on the Postal Acknowledgement at Ex.C.6 is not his signature and that there is a difference in the signature at Ex.C.1(a), when the same is compared with that found on the Postal Acknowledgment at Ex.C.6.
47. In this regard, though it is argued by the learned counsel for the Complainant that, despite the denial of the signature of the receiver on the Postal Acknowledgement at Ex.C.6 by the Accused, the Complainant has failed to examine the concerned Postman so as to prove the service of the legal notice on him.
48. No doubt this argument may be found to be acceptable to this court, but it could be seen that, even in his chief-examination affidavit, the Accused has claimed that, there is no service of the legal notice on him and if the same was served upon him, he would have replied to the same, then and there.
24 C.C.No.11080/16 J49. However, this defence version of the Accused has been disproved by the Complainant in the cross-examination of the Accused, wherein it is elicited from the former (Accused) that, he is residing in the address shown in his affidavit along with this wife and son since 2 to 2 ½ years and that the address, which he has shown in his affidavit is the address of his permanent house, which he has purchased during the year 2013 or 2014.
50. Likewise, it is further elicited from the Accused in his cross-examination that, he has been granted anticipatory bail by the Hon'ble Sessions Court in C.Mis.No.1341/16, in a complaint lodged against him by the Complainant before the Shankarapuram Police Station in C.R.No.68/15 and that even in the said bail application, he had shown his address, which is the same as that shown by the Complainant in the present case.
51. Likewise, it is also elicited from the Accused that even in Bank Pass Book that he has produced before the court as per Ex.D.1, his address which is shown therein is the same, as that, to which the legal notice has been caused by the Complainant to him through RPAD.
52. Therefore even the documentary evidence at Ex.D.1, being his Bank Passbook, which is relied upon by the Accused goes to show that as on 26.5.2015 and 25 C.C.No.11080/16 J subsequently there to, he has been residing in the same address.
53. Even otherwise, when the Complainant claims that, the Accused was residing in a particular address at the relevant point of time, but the same is denied by the Accused and the Accused claims contrarily that, he was residing elsewhere, the onus of proving the said fact would be upon the Accused and not upon the Complainant.
54. Moreover, it could be seen that, in the present case, except the denial of the fact that, as on the date of the legal notice, he was not residing in the address shown in the legal notice as well as in the complaint and that he was residing elsewhere, there is no proof furnished by the Accused before this court in the form of other documentary proof evidencing his alleged different address at the relevant point of time. In such circumstance, such a claim made by the Accused would be barred under Sec.27 of the General Clauses Act as well. As such, the technical defence of the Accused to the effect that he has not been served with the legal notice is not a tenable one and as such, the same cannot be accepted by this court.
55. In such circumstance when the Accused has failed to put forth a different address than the one to which he had been caused with the legal notice, the necessity for the 26 C.C.No.11080/16 J Complainant to examine the concerned postman would not arise and no fault could be found in the Complainant in not having done so.
56. As such for the reasons aforesaid, I have no hesitation to conclude that, though the Accused has been duly served with the legal notice, he has come up with a false technical defence by denying the service of the same on him.
57. Now, coming to the next defence of the Accused with regard to his acquaintance with the Complainant.
58. It is interesting to note that, as per the complaint averments, the Accused and the Complainant are said to have been acquainted to each other since several years and as such, both of them are said to have maintained a very good cordial relationship with each other.
59.However, the Accused has denied such acquaintance with the Complainant. In this regard, it is suggested to the Complainant in his cross-examination that, he had no acquaintance with the Accused, for which, the Complainant has answered that, he had the acquaintance with the Accused through the wife of the former (Accused).
60. It is seen that this defence of the alleged non- acquaintance between the parties is also given a complete go 27 C.C.No.11080/16 J bye by the Accused in the cross-examination of the Complainant itself, wherein, the former (Accused) has admitted that, his wife and the Complainant were colleagues working in the same company and that, he had also approached the Complainant for arranging a loan by mortgaging his house documents.
61. In such circumstance, if the Complainant, according to the Accused was a total stranger to him, then the Accused could not be believed to have parted with the documents pertaining to his house property with him. Therefore without seriously dwelling into said aspect, it can be concluded that this is a highly improbable defence raised by the Accused.
62. Even otherwise, it is seen that, even in his affidavit, the Accused has clearly admitted that, he knows the Complainant, since his wife was working in the same company where the Complainant was working.
63. Likewise even in this cross-examination, it is elicited from the Accused that his wife was working in a company by name Needs Man Power Solutions and that the Complainant was also working in the same company. It is further elicited from the Accused that that, when his wife was working in the said company, he came in contact with the Complainant through her. He has also admitted the suggestion that, ever 28 C.C.No.11080/16 J since he came in contact with the Complainant, till the date of the filing of the present case by the latter, both of them were in friendly terms with each other.
64. Thus it could be seen that, these admissions elicited from the Accused are sufficient to believe the claim of the Complainant that, he and the Accused were well known to each other and they shared a cordial relationship with each other and as such the alleged non-acquaintance between the parties has not been proved by the Accused. Therefore this defence raised by the Accused is also a highly untenable one.
65. Now coming to the financial capacity of the Complainant, no doubt the cheque amount involved in the case is a huge amount of Rs.6 Lakhs and except the cheque in dispute, admittedly, there is no other document produced by the Complainant in support of his source of funds to the tune of Rs.6 Lakhs.
66. Moreover for the first time in his cross-examination, the Complainant has come up with a claim that, he could arrange Rs.3 Lakhs out of Rs.6 Lakhs from out of his business savings and Rs.3 Lakhs from his father. No doubt, there was no impediment for the Complainant to plead this fact earlier in this case.
67. However, in the cross-examination it is elicited from the Complainant that, he is working in a Company by name 29 C.C.No.11080/16 J Needs Man Power Solutions, since 8 years for a monthly salary of Rs.12,000/= during the year 2015 and thereafter he was getting a monthly salary of Rs.20,000/=.
68. No doubt though the Complainant had deposed that, he had no impediment to produce the relevant documents in support of his claim, he has not chosen to produce any such documentary evidence in this regard.
69. Thereafter during course of his further cross- examination, the Complainant has introduced a new theory that, he had received Rs.3 Lakhs from his father and with the assistance of his father, he could arrange Rs.6 Lakhs so as to lend the same to the Accused. Though the Complainant had deposed that he does not remember, the date on which, he claims to have received Rs.3 Lakhs from his father, subsequent to his cross-examination, he has examined his father as P.W.2, who has corroborated the claim of his son by claiming that, he has paid Rs.3 Lakhs to his son/P.W.1 for the purpose of lending the same to the Accused.
70. No doubt, in this regard, the Complainant has not produced his Bank Statement pertaining to his salary account, to show that, he had withdrawn amount from his account so as to lend the same to the Accused as claimed by him, as well the documentary proof on the part of P.W.2 in support of his claim that, he has advanced Rs.3 Lakhs to his 30 C.C.No.11080/16 J son, so as to lend the same to the Accused. But this omission on the part of the Complainant and his father by themselves do not render the case of the Complainant doubtful, since his case has to be considered by this court in the light of the entire evidence and not on the basis of any single omission.
71. Though it appears to be uncommon to find a situation, wherein the Complainant as well as his father claim to have possessed Rs.3 Lakhs each at the relevant point of time, but both of them fail to produce the documents in support of this respective claims, but the fact that, the cordial relationship between the parties is admitted and it is also admitted that, the Accused had approached the Complainant during the time of his financial crisis, goes to show that the Accused has not seriously disputed the financial capacity of the Complainant and on the contrary he has indirectly admitted the same.
72. It is interesting to note that, the only defence of the Accused with regard to the transaction in question is that, he had not availed a loan of Rs.6 Lakhs from the Complainant and on the other hand, his loan was only to the tune of Rs.1 Lakh, that too for an interest of 10% p.m., in February 2014. Though this defence version has been suggested to the Complainant in his cross-examination, he has specifically denied the same. However, the same defence version has been reiterated by the Accused even in his affidavit filed in 31 C.C.No.11080/16 J lieu-of his chief evidence, wherein he has claimed that, the Complainant had promised to get him the loan from any Nationalized Bank by mortgaging the house standing in the name of the former and at that time, the Complainant had also collected the papers pertaining to his house and as, he was in financial crisis, at that time, the Complainant had lent Rs.1 Lakh to him.
73. It is interesting to note that, according to the Accused, he has only repaid Rs.70,000/=, out of the said loan of Rs.1 Lakh in favour of the Complainant. But in this regard, when the same is suggested to the Complainant in his cross-examination, he has denied the suggestion that during the month of August 2015, when the Accused did not pay an interest at the rate of 10 % per month, he collected the amount of Rs.70,000/= towards interest from him though his account by threatening him.
74. Even this defence version has been given complete go bye by the Accused in his cross-examination, wherein he claims that, he had not availed any loan of Rs.1 Lakh from the Complainant and that, the said amount was paid by him to the Complainant, so as to enable him to secure a bank loan to him. Though the Accused admits that, his affidavit has been prepared as per his instructions given to his counsel, he has contradicted himself by claiming at one instance, that the said amount of Rs.1 Lakh was availed by 32 C.C.No.11080/16 J him from the Complainant as a loan and at the second instance by denying said amount as a loan amount.
75. In this regard, it is pertinent to note that, according to the Accused, he had requested the Complainant to arrange in securing a loan of Rs.40 Lakhs to him and for the said purpose, the Complainant had collected the copies of the sale Agreement, the Khatha extract, Tax paid receipt and his Bank Account Statements. However, he has claimed in his earlier cross-examination that, during the year 2015, he had an approximate monthly income of Rs.30,000/= to 35,000/= from his real estate business that he was doing from 2012 to 2015, but he has admitted the suggestion that, there is no documentary proof regarding the same.
76. Therefore when at the one instance, the Accused claims that he had a monthly income of Rs.30,000/= to 35,000/= from his real estate business in the year 2015, while at the other place, he claims that, as he was in financial crisis, for which, the Complainant had advanced a loan of Rs.1 Lakh to him, this could be sufficient to conclude that, as on 2015, the financial status of the Accused was not sound and as such, he was in need of financial assistance.
77. Moreover, the Accused has admitted in his cross- examination that, though according to him, all the documents relating to his house property are still in the 33 C.C.No.11080/16 J custody of the Complainant, as on this date, he has not taken any legal action against the Complainant for the purpose of taking return of his property documents.
78. Likewise it is also elicited from the Accused that, he has not even caused any legal notice to the Complainant or lodged any police complaint against him, alleging that, he is in possession of the property documents belonging to the former and that though he had assured to secure the loan to him, he had not done so. The conduct of the Accused in claiming so also leads to an adverse inference against him as well as creates a serious doubt in the mind of this court about his conduct. Therefore it cannot be believed that the Accused, being an educated person, would have kept quite for years together, even when his property documents continued to be in the custody of the Complainant, though no loan was got sanctioned to him by the Complainant as was assured to him. The conduct of the Accused in claiming so, goes to show that, it is not the conduct which is found or expected from a person of ordinary prudence in the normal course of events. Therefore this defence version also creates a serious doubt in his defence version.
79. It is further pertinent to note that, according to the Accused, as the Complainant started harassing him for the purpose of the repayment of the Rs.1 Lakh and that for the same purpose, the Complainant had got him summoned to 34 C.C.No.11080/16 J the Shankarapuram Police Station and in the presence of the Police Official by name Rajanna, the Accused claims his signed blank cheque i.e., the cheque in dispute was collected from him by the Complainant through the concerned police in the police station forcefully.
80. In this regard, though the Accused claims that, he has lodged a complaint against the Shankarapuram Police Station as well as the Complainant in this regard, the Complainant has pleaded ignorance to the same. In such circumstance, the onus of proving the said fact would be shifted in favour of the Accused.
81. It could be seen that, though the Accused has reiterated the same defence even in his evidence before the court, he has admitted in his cross-examination that, he has not lodged any complaint against the Complainant as well as the Shankarapuram Police Station alleging that, they had collected the cheque in dispute from him forcefully and he has also admitted the suggestion that, he has not filed any private complaint against the Complainant before any court in this regard.
82. However, the defence of the Accused in this regard has not been consistent, since during course of his further cross-examination, he has claimed that, he has no documentary proof in support of his claim that, he has 35 C.C.No.11080/16 J lodged a complaint before the Commissioner of Police against the Complainant and the Shankarapuram Police, alleging that, they had collected the cheque in dispute from him forcefully as alleged by him.
83. Therefore in the absence of the relevant documentary proof in this regard by the Accused also goes to show that, it is also an improbable defence raised by the Accused.
84. Now coming to the defence of the Accused with regard to the alleged issuance of the cheque in dispute, at the cost of repetition, it is necessary to discuss here that, it is his defence that, the cheque in dispute was collected from him as a signed blank cheque from him by the Complainant with the help of the Shankarapuram Police Station.
85. According to the Accused after the cheque in dispute was allegedly collected from him by the Complainant in the Shankarapuram Police station, he gave stop payment instructions to his bank on 17.8.2015. Though according to the Accused, he had informed the Complainant about the stop payment instructions said to have been given by him in respect of the cheque in dispute, in his cross-examination, he has admitted suggestion that, he had not informed the Complainant in writing about the same and that he had not informed the Complainant in writing not to present the 36 C.C.No.11080/16 J cheque, in view of such stop payment instructions said to have been given by him to his banker on 17.8.2015.
86. It is interesting to note that, according to the Accused, he had not given a letter in writing to his banker for the stoppage of the payment on the ground that the Complainant had collected cheque in dispute from him forcefully in the Police Station and he has voluntarily claimed, that he had informed his banker through online. However there is no proof led by the Accused to show that he had given any such stop payment instructions though through online as claimed by him.
87. No doubt, the Accused has relied upon the documentary proof as per Ex.D.1, being his Bank Passbook, in which the relevant entry dated: 17.8.2015 as per Ex.D.1
(a), goes to show that, the payments were stopped by him in respect of his cheques from No.072015 to 092015, but admittedly the cheque in dispute is not covered in the said serial number of the cheques, in respect of which, it appears that there was stop payment instructions given by the Accused to his banker.
88. Therefore only by relying upon Ex.D.1 (a), it cannot be inferred that, there was stop payment instruction given by the Accused in respect of the subject cheque. This has been admitted even by the Accused in his cross-examination.
37 C.C.No.11080/16 J89. Therefore it is clear that though the Accused has claimed to have given stop payment instructions to his banker in respect of the cheque in dispute, there is no reliable and cogent proof to prove the same.
90. It is pertinent to note that, for the first time, in his cross-examination, the Accused has also raised the plea of the forgery of his signature by the Complainant in the said cheque. However, the position of law in this regard is well settled that, whenever any party to the proceeding raises the plea of forgery, the onus of proving the same would be upon the party who raises such plea.
91. However, in the present case, though the plea of forgery is raised by the Accused, though only in the cross- examination of the Complainant and the same is denied by the latter (Complainant), the Accused has not taken any steps in order to prove the said plea. Hence it is clear that, the Accused has raised all possible defences so as to defeat the claim of the Complainant.
92. Lastly it is to be seen that the conduct of the Complainant in having presented the cheque in dispute twice for encashment has also been seriously commented to by the Accused.
38 C.C.No.11080/16 J93. The defence of the Accused in having in the cross- examination of the Complainant, wherein it is suggested to him that, even for the first time when the cheque was presented for payment, there was sufficient his account, but it came to be returned because of the stop payment instructions given by him is highly untenable, since, as per the complaint averments, the cheque in dispute had been presented for the first time for encashment on 3.3.206 and it returned dishonoured as "Payment stopped by Drawer" on 4.3.2016.
94. When this complaint averment is considered by this court in the light of the documentary evidence at Ex.D.1 and its relevant entries concerning the period 3.3.2016, it could be seen that, the balance in the account of the Accused was only a sum of Rs.5,727.15/= and as such, his defence that, as on that date, there was sufficient funds in his account, sufficient to honour the cheque in dispute is highly misconceived.
95. It is further pertinent to note that, during the course of his arguments, the learned Defence Counsel has argued that as per the complaint averments, the Accused is alleged to have agreed to repay the loan amount to the Complainant with interest at 24 % per annum. However as on 2015, the maximum interest that could be charged as per 39 C.C.No.11080/16 J the Money Lenders Act was only 15 % and as such the alleged loan is not a legally recoverable debt.
96. This argument on the part of the learned Defence Counsel is also not tenable, firstly because it is not the case of either parties that the Complainant is a licensed Money Lender and as such the provisions of the Money Lenders Act is not applicable to him and secondly because when the Accused himself has admitted his loan transaction with the Complainant, be it be to the tune of Rs.1 Lakh and claims that he has also paid Rs.70,000/= to the Complainant, he is no estopped now from raising this plea.
97. Even otherwise, if the Accused has any such grievance against the Complainant about the rate of interest claimed by the latter, he could very well agitate about the same before the competent forum, but not in the present proceeding, as this court has no authority to adjudicate about the same. As such the argument of the learned Defence Counsel in this regard is also untenable and unacceptable to this court.
98. Therefore, viewed from any angle it could be observed that, the defence of the Accused suffers from serious self contradictions and highly improbable defence versions and as such, not sufficient to rebut the 40 C.C.No.11080/16 J presumptions available in favour of the Complainant u/Sec.118 and 139 of the N.I.Act.
99. No doubt, the only weakness in the case of the Complainant is the non-production of the requisite material before the court with regard to his source of funds, but the fact that the financial capacity of the Complainant has not been seriously disputed by the Accused is sufficient to come to the conclusion that, the case of the Complainant is proved beyond reasonable doubt and on the contrary, the Accused has failed to disprove the case of the Complainant.
100. Further the decisions relied upon by the learned counsel for the Complainant is partly applicable to the case on hand and as such, I have no hesitation to hold that the Complainant has proved his case beyond reasonable doubt and on the other hand, the Accused has failed to come out with a probable defence. Accordingly, I proceed to pass the following:-
ORDER By exercising the power-conferred u/s 255(2) of Cr.P.C., the Accused is hereby convicted of the offence punishable u/s 138 of the Negotiable Instruments Act.
He is held liable to pay a fine of Rs.6,50,000/= (Rupees Six Lakhs and Fifty Thousand Only).41 C.C.No.11080/16 J
If the fine amount is so realized, Rs.6,40,000/= (Rupees Six Lakhs and Forty Thousand Only) is ordered to be paid to the Complainant as Compensation and the balance of Rs.10,000/= (Rupees Ten Thousand only) is ordered to be adjusted towards cost to the State Exchequer.
In default of payment of such compensation, he shall undergo Simple Imprisonment for 6 (six) months.
His bail bond stand discharged.
Issue free copy of the Judgment to the Accused forthwith.
(Dictated to the Stenographer, transcribed by her and print out taken by her, verified, corrected and then pronounced by me in the open court on this the 7th day of July, 2018).
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri.Shantakumar B.S; PW.2 : Sri. Srikanta
2. List of documents exhibited on behalf of the Complainant:-
Ex.C-1 : Original Cheque;
Ex.C-1(a) : Signature of the Accused;
Ex.C-2 & C.3 : Bank Memos;
Ex.C-4 : Office copy of the Legal Notice;
Ex.C-5 : Postal Receipt;
Ex.C-6 : Postal Acknowledgement;
Ex.C-7 : Statement of the Accused
(Marked through D.W.1)
3. List of witness/s examined on behalf of the Accused:-42 C.C.No.11080/16 J
D.W.1 : Sri.Rakesh .C;
4. List of documents exhibited on behalf of the Accused:-
Ex.D1 : Bank Passbook;
Ex.D1(a) : Relevant Entry.
(SARASWATHI.K.N),
XVI ACMM, Bengaluru City.
43 C.C.No.11080/16 J
7.7.2018 Judgment pronounced in the open court vide separate order.
ORDER By exercising the power-
conferred u/s 255(2) of Cr.P.C., the Accused is hereby convicted of the offence punishable u/s 138 of the Negotiable Instruments Act.
He is held liable to pay a fine of Rs.6,50,000/= (Rupees Six Lakhs and Fifty Thousand Only).
If the fine amount is so realized, Rs.6,40,000/= (Rupees Six Lakhs and Forty Thousand Only) is ordered to be paid to the Complainant as Compensation and the balance of Rs.10,000/= (Rupees Ten Thousand only) is ordered to be adjusted towards cost to the State Exchequer.
In default of payment of such compensation, he shall undergo Simple Imprisonment for 6 (six) months.
His bail bond stand discharged.
Issue free copy of the Judgment to the Accused forthwith.
XVI ACMM, B'luru.