Bangalore District Court
Sri.G.Lourduswamy vs John Bisser Albert on 8 June, 2018
IN THE COURT OF LVII ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL UNIT, BENGALURU
-: PRESENT :-
PADMA PRASAD, BA (Law), LLB.
LVII ADDL. CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED THIS THE 8TH DAY OF JUNE, 2018.
C.C.No.55337/2015
COMPLAINANT : Sri.G.Lourduswamy
S/o. Gnanaprakash,
Aged about 43 years,
R/at. 446, 1st Main Road,
New Binny Layout, Binnypet,
Bangalore - 560 023.
.Vs.
ACCUSED : John Bisser Albert
S/o. Anthony.J.
Aged about 31 years
R/at. No.122, 5th Cross,
Opp. GBJ Park,
HAL Quarters, Marathahalli Post,
Bangalore - 560 037.
And also at
No.26, ED Air Force,
Technical Area, HAL
Bangalore.
Sy. No. 1PA, No.42282,
Account Section.
****
2 C.C.No.55337-2015
JUDGMENT
The complainant filed this complaint against the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
2. The complaint case in nutshell is that in the 1st week of August 2014 the accused approached the complainant for a hand loan of Rs.2,00,000/-. Accordingly in the 2nd week of August 2014 the complainant advanced a sum of Rs.2,00,000/- to the accused. The accused agreed to repay the same within 3 months and issued a post dated cheque bearing No.026092 dtd:17.11.2014 for Rs.2,00,000/- drawn on ICICI Bank, Indiranagar Branch. When the complainant presented the said cheque for encashment, that has been returned with bank memo dtd:03.12.2014 stating "Account Closed". Thereafter, the complainant caused a legal notice to the accused dtd:26.12.2014 through registered post to the office address as well as residential address. The notice sent to the accused to the office address has been duly served on 30.12.2014 and the notice sent to the residential address has been returned with postal endorsement stating "addressee left". Inspite of that the accused failed to comply with the notice. Hence, the complainant filed this complaint.
3. After filing the complaint, sworn statement of the complainant has been recorded and on perusing the materials on record i.e., cheque, bank endorsement, legal notice and documents for having been caused the notice to the accused, the court has been taken the cognizance of offence and issued summons to the accused.
3 C.C.No.55337-20154. In response to the summons, the accused appeared through his counsel and he was on court bail. Plea has been recorded; accused pleaded not guilty and claimed to be tried.
5. To prove the case, the complainant got examined himself as P.W.1 and got marked documents at Ex.P.1 to P.9.
6. On closure of complainant side evidence, the accused statement has been recorded under Sec.313(1)(b) of Cr.P.C., by placing the incriminating evidence appeared against the accused that are denied by the accused.
7. The accused in support of his case examined himself as D.W.1 wherein he claimed that complainant is totally stranger to him and while shifting the house he has lost 5 cheques bearing No.026090 to 026094 of ICICI Bank. Hence, he has closed his bank account in the year 2009 itself. Apart from that the accused also disputed the service of notice. The accused totally denied the transaction as well as issuance of cheque in favour of the complainant and prayed for dismissal of the complaint and also got marked document at Ex.D.1.
8. On the basis of above, the point for consideration is that;
"Whether the complainant has proved that the accused has committed the offence punishable under Sec.138 of Negotiable Instruments Act?"4 C.C.No.55337-2015
9. Heard the arguments and perused the materials on record. On that basis my finding on the above point is in the "Affirmative" for the following;
REASONS
10. The specific case of the complainant is that in the 1st week of August 2014 the accused approached the complainant for a hand loan of Rs.2,00,000/-. Accordingly in the 2nd week of August 2014 the complainant advanced a sum of Rs.2,00,000/- to the accused. The accused agreed to repay the same within 3 months and issued a post dated cheque bearing No.026092 dtd:17.11.2014 for Rs.2,00,000/- drawn on ICICI Bank, Indiranagar Branch. When the complainant presented the said cheque for encashment, that has been returned with bank memo dtd:03.12.2014 stating "Account Closed". Thereafter, the complainant caused a legal notice to the accused dtd:26.12.2014 through registered post to the office address as well as residential address. The notice sent to the accused to the office address has been duly served on 30.12.2014 and the notice sent to the residential address has been returned with postal endorsement stating "addressee left". Inspite of that the accused failed to comply with the notice. Hence, the complainant filed this complaint.
11. The accused in support of his case examined himself as D.W.1 wherein he claimed that complainant is totally stranger to him and while shifting the house he has lost 5 cheques bearing No.026090 to 5 C.C.No.55337-2015 026094 of ICICI Bank. Hence, he has closed his bank account in the year 2009 itself. Apart from that the accused also disputed the service of notice. The accused totally denied the transaction as well as issuance of cheque in favour of the complainant and prayed for dismissal of the complaint and also got marked document at Ex.D.1.
12. The complainant in support of his case got examined himself as P.W.1 by filing evidence affidavit wherein he stated in consonance with the complaint case. The complainant also produced documents at Ex.P.1 to 9. Ex.P.1 is the cheque, Ex.P.2 is the bank memo, Ex.P.3 is the office copy of the legal notice, Ex.P.4 are 2 postal receipts, Ex.P.5 is the un served postal cover, Ex.P.6 is the postal acknowledgment, Ex.P.7 is the judgment passed in C.C.no.9797/2012, Ex.P.8 is the deposition of one Niranjan R in C.C.No.9797/2012 and Ex.P.9 is the deposition of this accused in C.C.no.9797/2012. Accordingly on the basis of above said document, the complainant claims that the accused has committed the offence punishable under Sec.138 of N.I.Act. On perusal of material on record, it is clear that the cheque has been presented for encashment within its validity and legal notice issued in time and also complaint is in time. Hence, certainly the initial presumption under Sec.139 of N.I.Act certainly can be drawn in favour of the complainant.
13. The accused totally disputed the transaction, issuance of the cheque as well as service of notice. Hence, the heavy burden is on 6 C.C.No.55337-2015 the complainant to prove the transaction claimed in the complaint as well as issuance of the cheque by the accused in his favour and service of notice. The definite case of the complainant is that the accused approached in the 1st week of August 2014 for a hand loan and he has advanced the same in the 2nd week of August 2014. It is relevant to note that the accused claimed that the complainant is a stranger and there is no transaction whatsoever between the complainant and the accused. In order to disprove the said fact the complainant totally relied on the documents at Ex.P.7 to 9 i.e., the judgment and deposition in C.C.No.9797/2012. As per said documents, one Niranjan R filed a cheque bounce case against this accused. As per Ex.P.7 this accused has been convicted for the offence punishable under Sec.138 of N.I.Act in the said case. Ex.P.8 is the deposition of Niranjan R who is the complainant in C.C.no.9797/2012 wherein this accused was the complainant. In the said case while cross-examining the said witness on 31.03.2015 at 2nd paragraph this accused specifically suggested to said Niranjan R that reads as;
"It is not correct to suggest that, on 22.06.2008 the accused has given a signed blank cheques to Lourd Swamy in relation to a sum of Rs.1,00,000/- borrowed by the accused."
14. The complainant in this case is Lourduswamy. Hence, in a separate legal proceedings this accused himself admitted that he has 7 C.C.No.55337-2015 borrowed a sum of Rs.1,00,000/- from this complainant Lourduswamy and he has issued a cheque in favour of the complainant. The aforesaid suggestion in separate litigation sufficiently falsifies the claim of the accused that the complainant is totally stranger and also falsifies his contention that he has not borrowed any money or issued any cheque. The aforesaid claim of the accused in the said case sufficiently establishes that the accused knows the complainant very well and also he has borrowed the money from the complainant and also admitted the issuance of the cheque. Of course the accused claimed that the transaction is of the year 2008. To substantiate the said fact the accused has not produced any documents. Per-contra, the aforesaid suggestion totally falsifies the defense of the accused. It is argued by the defense counsel that the Lourduswamy stated in the Ex.P.8 is different and the complainant in this case is different. Of course the complainant in this case is described as G.Lourduswamy. The initial has not been suggested to the complainant in C.C.No.9797/2012 while cross-examination. Apart from that the accused has not produced any material on record to show that Lourduswamy stated in the said case is different from this complainant. If it were so, this accused would have suggested to this complainant that the transaction is not between the complainant and G.Lourduswamy but between the accused and Lourduswamy. In the absence of any such evidence or case, it has to be accepted that the Lourduswamy stated in Ex.P.8 is the complainant in this case. Therefore, the complainant 8 C.C.No.55337-2015 sufficiently proved the transaction claimed by him and also established the issuance of cheque.
15. In view of the aforesaid discussion, it is clear that the accused admitted the issuance of the cheque in favour of the complainant. The accused not disputed his signature in the cheque. Of course the accused claimed that he has lost 5 cheques while shifting the house but it is not his case that he has lost his signed blank cheques while shifting the house. If at all he has kept any signed blank cheques, he must show the reason why or under what circumstances he has kept the signed blank cheques. Absolutely there is no material on record to show that there is any necessity for the accused to keep the signed blank cheques. Admittedly the accused is not a business man and there is no compelling reason for him to keep the signed blank cheques with him. Apart from that for what reason he has kept the signed cheques with him is without any explanation. Apart from that the specific suggestion to the complainant during his cross- examination that the accused has issued the blank cheque certainly falsifies the claim of accused that he has lost the cheques while shifting the house. Further in order to prove the clam of loosing the cheques while shifting the house not placed any materials before the court. If really the complainant has lost his cheques he would have lodged the complaint to the police or at least would have issued the stop payment instructions to his banker immediately. In the absence of any such material before the court, certainly the claim of the accused that he lost his cheques cannot be accepted. Therefore, it is 9 C.C.No.55337-2015 clear that the complainant has sufficiently proved that the accused has issued the cheque in his favour hence, the presumption under Sec.139 of N.I.Act has to be drawn in favour of the complainant that the cheque has been issued towards the discharge of legally enforceable debt. The accused has not given any rebuttal evidence so that the court can disbelieve the complaint case.
16. The accused has taken one more defense in the case that no demand notice has been served to him. The complainant claimed that he has sent the demand notice to the working place as well as residence of the accused. The complainant specifically claims that notice sent to the working place has been duly served on the accused. It is true that there is a difference of signature found in postal acknowledgment as well as Ex.P.1 cheque but that itself is not a ground to disbelieve the complaint case or why the court can accept that the notice has not been served on the accused. The address stated in the Ex.P.3 notice is admitted by accused during his cross-examination at page No.3, 2nd paragraph. When the accused admitted his address of working place, it has to be accepted that the complainant has posted the notice to the correct address. Hence, in view of the settled principle of law, it has to be accepted that the notice has been duly served on the accused. Of course the notice sent to the residential address of the accused has been returned with postal endorsement stating "addressee left". When the notice sent to the working place has been duly served, the return of notice sent to the residential address will not make any difference and the court has 10 C.C.No.55337-2015 to accept that the notice has been duly served to the accused. As such the accused also failed to prove that no notice has been served on him.
17. The accused though disputed the issuance of cheque during his evidence but while cross-examining the complainant / P.W.1 on 13.11.2017 at page No.2, 14th line onwards put the suggestion to the complainant/P.W.1 that reads as;
"It is false to suggest that the accused issued blank cheque to me. The witness volunteers that the accused brought the filled up cheque and signed the cheque in my presence and thereafter handed over the cheque to me".
18. Even this contention shows that this accused has issued the cheque to the complainant otherwise it would not have been suggested to the complainant during his cross-examination that accused has issued a blank cheque to the complainant. When the accused put such suggestion, the complainant has given a specific answer stating that the accused brought a filled up cheque and signed in his presence and thereafter handed over the cheque. The false defense taken by the accused regarding the issuance of the cheque as well as transaction and service of notice certainly probablise the argument of the complainant that the accused has taken a false defense and falsely claimed that he has issued a blank cheque. Apart from that the aforesaid suggestion totally falsifies the 11 C.C.No.55337-2015 claim of accused that he has lost the cheques while shifting his house. Therefore, it is clear that the complainant sufficiently established that he has advanced a sum of Rs.2,00,000/- to the accused and towards the discharge of said debt, this accused has issued the cheque in favour of the complainant but that has been bounced and thereby accused has committed the offence punishable under Sec.138 of N.I.Act. The accused totally failed to make out a probable defense in the case. As such the court left with no option than to accept the complaint case that the complainant proved his case beyond reasonable doubt.
19. In this case, the complainant has claimed compensation. As per Section 357 of Criminal Procedure Code and as per the ruling reported in; 2001 Cri.L.J. 950 (SC), (Pankajbai Nagibai Patel V/s State of Gujarath), the court can award compensation and there were no limits for the same. As such, the court has to consider how much compensation could be awarded in this case. As per Section 80 of Negotiable Instruments Act, the interest at 18% P.A. can be granted when there is no agreed rate of interest. As per the proved facts of the case, the accused has issued cheque towards the legally enforceable debt, the accused has issued a cheque dated 17.11.2014 as per Ex.P.1 and thus, the accused has to pay interest on the cheque amount from the date of cheque and so, the accused has to pay interest for about 3 years 6 months till this date. If the interest is calculated at 18% P.A. to the cheque amount for the above period, certainly, the complainant is entitled for the suitable 12 C.C.No.55337-2015 compensation to the cheque amount as per Section 80 of Negotiable Instruments Act. The cheque amount in this case is Rs.2,00,000/- and if the interest is calculated for 42 months, the accused shall pay the interest to the complainant at 18% P.A. that amounts to Rs.1,26,000/-. The case is pending nearly about 3 years, the conduct of the accused also discloses that one or other reason he tried to prolong the matter by filing unnecessary applications and also not paid the costs imposed by the courts. As per order sheet the accused is liable to pay the cost of Rs.5,000/- imposed on various application, as such in the case on hand certainly court has to impose suitable cost. Considering all these fact it is fit case to impose cost of Rs.7,500/- and if the cost and interest is added to the compensation, it will comes to Rs.3,33,500/- (Cheque amount is Rs.2,00,000/-, interest is Rs.1,26,000/- and cost Rs.7,500/-). Hence, this court is of the humble opinion that in all the complainant is entitled for compensation amount of Rs.3,33,500/-. Further as per the ruling reported in 2000 Cri.L.J 1793(b) SC - (State of Karnataka V/s Krishnappa) wherein it is held that while imposing sentence, the courts are expected to properly operate sentence system, it should be impose such sentence for code offence which serve as detention of commission of like offences by others - Socio economic status, prestige, race, caste or creed of accused or victim are irrelevant considerations in sentencing policy. Hence, in this case also, if the accused is punished with simple imprisonment for one year and pay compensation to the complainant. Anyhow the object of Sec.138 of 13 C.C.No.55337-2015 N.I.Act is to have accountability in the business transaction and the intention of the complainant is only to get his money back. The complainant certainly not interested in sentencing the accused for any imprisonment. Further, the offence is punishable with imprisonment or fine. Anyhow the object of Sec.138 of N.I.Act is to have accountability in the business transaction and the intention of the complainant is only to get his money back. The complainant certainly not interested in sentencing the accused for any imprisonment. Further, the offence is punishable with imprisonment or fine. Hence, in this case after awarding the compensation certainly imposing of fine to the accused is sufficient sentence.
20. As per the ruling reported in 2002 Cri.L.L. 1003, SC (Suginthi Suresh Kumar V/s Jagadishan). Where in it is held at page no.1005, at para 5 that:
"In the said decision this court reminded all concerned that it is well to remember the emphasis laid on the need for making liberal use of Section 357(3) of the Code. This was observed by reference to a decisions of this Court in 1988 (4) SCC 551 Hari Singh v. Sukhbir Singh. In the said decision this court held as follows:
"The quantum of compensation may be determined by taking into account the nature of crime, the justness of the claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also very depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by installments, 14 C.C.No.55337-2015 may also be given. The court may enforce the order by imposing sentence in default."
21. In view of the aforesaid precedent of Hon'ble Apex Court, if the accused is ordered to further imprisonment of a year in default to pay the compensation will make the ends of justice. Accordingly I answer the above point in "Affirmative". In the result, following;
ORDER Acting under Section 255(2) of Cr.P.C., the accused is hereby convicted for the offence punishable under Sec.138 of N.I.Act and sentenced him to pay a fine of Rs.5,000/-. In default to pay the fine amount the accused shall undergo simple imprisonment for 3 months.
Acting under Section 357 of Cr.P.C., the compensation is awarded and the accused shall pay compensation of Rs.3,33,500/- to the complainant. In default to pay compensation, the accused shall undergo simple imprisonment of a period of 1 year.
Office to furnish free copy of this judgment to the accused forthwith.
(Dictated to the Stenographer, transcript thereof is corrected and then pronounced by me in the open court on this the 8th day of June, 2018) (PADMA PRASAD), LVII ACMM, BENGALURU.
15 C.C.No.55337-2015ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Sri.G.Lourduswamy
2. Documents marked on behalf of complainant:
Ex.P.1 : Cheque
Ex.P.1(a) : Signature of the accused
Ex.P.2 Bank Return Memos
Ex.P.3 : O/c of the legal notice
Ex.P.4 : 2 Postal Receipts
Ex.P.5 : Unserved postal cover
Ex.P.5(a) : Unserved notice
Ex.P.6 : Postal acknowledgment
Ex.P.7 : Judgment in C.C.No.9797/2012
Ex.P.8 : Certified copy of deposition of one
Niranjan R in C.C.No.9797/2012 in
C.C.No.9797/2012
Ex.P.9 : Certified copy of deposition of accused in
C.C.No.9797/2012
3. Witnesses examined on behalf of Accused:
D.W.1 : Sri.John Bisser Albert
4. Documents marked on behalf of Accused:
Ex.D.1 : HAL quarters allotment letter
dtd:16.12.2009
(PADMA PRASAD)
LVII ACMM, BENGALURU.