Bangalore District Court
Sri. Harish. T vs Sri. Yogesh Kumar. S.V on 20 September, 2017
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITON
MAGISTRATE, BENGALURU CITY
Present: Smt. HEMA PASTAPUR
B.A., LL.B.,
XXII Addl. Chief Metropolitan Magistrate,
Bengaluru.
Dated this the 20th day of September 2017
C.C.No.29001/2015
Judgment under section 355 of Code of Criminal Procedure
Complainant : SRI. HARISH. T.,
S/o Eraiah. T.C.,
Aged about 34 years,
Working as Software,
R/at No.543, II B Main Road,
11th Block, Nagarabhavi II Stage,
Bengaluru - 560 072.
(By Shri C. C. Narayana, Advocate)
V/s.
Accused : SRI. YOGESH KUMAR. S.V.,
S/o Venkatesh,
Aged about 28 years,
Working as Business,
Hema Provision Store,
Channasandra Main Road,
2 CC.No.29001/2015
Rajajeshwarinagar,
Bengaluru - 560 098.
(By Smt. Jyothi. C., Advocate)
JUDGMENT
That, the complainant has filed the private complaint under section 200 of Code of Criminal Procedure, against the accused for taking action against him for the offence punishable under section 138 of Negotiable Instruments Act.
That, the brief facts of the present case are as under:
1. That, the accused and complainant are friends and well known to each other from several years. That, the accused during the last week of September 2014 had approached the complainant and requested him for giving him sum of Rs.3,00,000/- for improving his provision store business and the complainant considering the need of the accused, on 03.10.2014 had paid him sum of Rs.3,00,000/- by way of cash and the accused at the time of availing the said loan amount had agreed to repay the same within six months from the date said availment. That, the accused after availing the said loan amount 3 CC.No.29001/2015 had failed to repay the same to the complainant and after on repeated requests and demands made by the complainant the accused to discharge his legally enforceable debt had issued in favour of the complainant three cheques i.e., one cheque bearing No.061973 dated:-13.06.2015, and another cheque bearing No.061972 dated:-19.06.2015 and another cheque bearing No.061971 dated:-25.06.2015 each for sum of Rs.1,00,000/- and drawn on Cauvery Kalpatharu Grameena Bank, Channasandra Branch, Bengaluru- 98 and when the complainant on 09.09.2015 had presented the said cheques for encashment in State Bank of Mysore, Nagarabhavi Branch, Bengaluru-560 072, on 15.09.2015 the complainant had received the endorsements as Funds Insufficient in the account of the accused. That, when the complainant had intimated the accused about the dishonour of said cheques and asked him for repaying his said loan amount then the accused went on dogging the matter on one or other false pretext. That, the complainant for aforesaid acts of the accused, on 14.10.2015 had issued the legal notice to him and the same was served on him on 16.10.2015 and the accused inspite of receiving said 4 CC.No.29001/2015 notice had failed to repay the said loan amount. That, in view of the same the complainant has constrained to knock doors of justice.
2. That, on complaint being lodged by the complainant, this court had registered the case in concerned register and after considering the materials placed on record took the cognizance for the offence punishable under section 138 of Negotiable Instruments Act and thereafter, recorded the sworn statement of the complainant and after satisfying with the materials placed on record, registered the case against the accused in Register No. III and issued the summons to the accused. That, the accused in pursuance of said summons, appeared before this court through his Learned counsel and he was enlarged on bail. That, the substance of accusation of the accused has recorded and read over to him in language known to him and he has not pleaded guilty and claimed to be tried. That, after completion of the complainant side evidence, the statement of the accused as contemplated under section 313 of Code of Criminal Procedure, has recorded and read over to him and he denied all incriminating evidence appearing against him. 5 CC.No.29001/2015
3. That, I have heard the arguments and perused the materials placed on record. That, the accused has filed written arguments and I have gone through the same. That, the following points arise for My consideration and determination:
1. Whether the complainant has proved that, the accused to discharge his legally enforceable debt had issued in his favour three cheques bearing No.061973 dated:- 13.06.2015, 061972 dated:- 19.06.2015 and 061971 dated:- 25.06.2015 each for sum of Rs.1,00,000/- drawn on Cauvery Kalpatharu Grameena Bank, Channasandra Branch, Bengaluru - 98?
2. Whether the complainant has further proved that, the aforesaid cheques were dishonoured for insufficient funds in the account of the accused and thereby the accused has committed the offence punishable under section 138 of the Negotiable Instruments Act?
3. What order?
4. That, the complainant to substantiate his contentions has deposed himself as PW1 and got marked the documents at EXs.P1 to 11 and closed his side.6 CC.No.29001/2015
That, the accused to substantiate his contentions has deposed himself as DW1 and got marked the documents at EX.D1 to 4 and closed his side.
5. That, My answer to the aforesaid points are as under:-
Point No.1 :- In the AFFIRMATIVE Point No.2 :- In the AFFIRMATIVE Point No.3:- As per the final order for the following:-
REASONS
6. Point No.1:- It is case of the complainant that, he and the accused are friends and well known to each other from several years.
It is to be noted here that, the accused in his examination-in-
chief has contended that he do not know the complainant at all.
It is to be noted here that, the accused in his cross-
examination at page no.5 at first line has specifically admitted that he, complainant and one Niranjan Gowda are friends.
It is to be noted here that, from the said admission of the accused it clearly appears that he and the complainant are friends and well known to each other. It is to be noted here that, in view of the said admission of the accused his said contention do not hold water.
7 CC.No.29001/20157. It is pertinent to note here that, the complainant has specifically contended that in the last week of September 2014 the accused had approached and requested him for lending him sum of Rs.3,00,000/- for improving his provision store business and considering the need of the accused, on 03.10.2014 he paid him sum of Rs.3,00,000/- by way of cash and at the time of availing the said loan amount the accused had agreed to repay the same within six months from the date of said availment.
That, the complainant has further contended that the accused after availing the said loan amount had failed to repay the said loan amount to him and on repeated requests and demands made by him the accused to discharge his legally enforceable debt had issued in his favour three cheques i.e., cheque bearing No.061973 dated:- 13.06.2015, 061972 dated:- 19.06.2015 and 061971 dated:- 25.06.2015 each for sum of Rs.1,00,000/- drawn on Cauvery Kalpatharu Grameena Bank, Channasandra Branch, Bengaluru - 98.
It is to be noted here that, the complainant to substantiate his contentions has deposed himself as PW1 by filing his examination-in-chief in lieu of affidavit and got marked the 8 CC.No.29001/2015 aforesaid cheques i.e., cheque bearing No.061973 dated:-
13.06.2015 for sum of Rs.1,00,000/- at EX.P1, 061972 dated:-
19.06.2015 for sum of Rs.1,00,000/- at EX.P2 and 061971 dated:- 25.06.2015 for sum of Rs.1,00,000/- at EX.P3.
8. It is to be noted here that, the accused in his examination-
in-chief has specifically deposed that during the year 2013-14 he was studying in Sai Vidya Institute of Technology College, Rajanukunte, Bengaluru, in fourth semester and as he was not cleared one subject in second semester, his admission to fifth semester was declined and on alleged time he was preparing for examination and apart from that on part time basis he joined as a Sales Executive in the office of SLN Developers, Channasandra, Rajajeshwarinagar, Bengaluru. It is pertinent to note here that, the accused has further deposed that one Shri Niranjan Gowda was his college mate and the said Niranjan Gowda uses to travel in the college bus everyday and both of them became friends and the said Niranjan Gowda uses to visit his house and during the month of November and December 2014 the said Niranjan Gowda had visited his house and thereafter, the said Niranjan Gowada shifted his house and stopped to visit his house. That, 9 CC.No.29001/2015 the accused has further deposed that as he was doing said job, he opened S.B. account in Cauvery Kalpathuru Grameena Bank, Channasandra, Bengaluru. That, the accused has further contended that his father by name Shri Venkatesh S.N. was residing at Sanughatta Village, Kunigal Taluk and he is looking after arecanut garden for which he left three blank cheques duly signed by him and it appears that the said Niranjan Gowda after stealing the said cheques handed over the same to the complainant to make illegal gains. That, the accused has further deposed that he has not availed any amount from the complainant and he has not issued in favour of the complainant the said cheques- EXs.P1 to 3.
It is to be noted here that, the accused in his evidence has got marked his Identity card issued by Sai Vidya Institute of Techonology, Rajanukunte, Bengaluru -64 at EX.D1, Certificate of Employment issued by the SLN Developer, Bengaluru dated:-
09.11.2016 at EX.D2, RTC pertaining to land bearing Sy.No.26/2 measuring 07 acres 03 guntas 08 annas for the relevant year 2016-17 sitauted at Sanughatta Village at EX.D3. It is to be noted here that, from perusal of EX.D3 it appears that out of 07 acres 10 CC.No.29001/2015 03 guntas 08 annas of land, 01 acre of land is in possession and enjoyment of Shri Rajanna s/o Chinnappa- the father of the accused under khata bearing No.56. That, the accused in his evidence has also got marked the MR bearing No.H34 at EX.D4.
9. It is to be noted here that, the accused in support of his contentions has placed his reliance on following decisions.
1. M.S. Narayana Menon @ Mani -vs- State of Kerala and another, reported in (2006) 6 Supreme Court Cases 39, wherein it has held that, A. Negotiable Instruments Act, 1881, - Ss. 118(a) and 138 and 139 - Presumption under, that negotiable instrument was drawn for "consideration" - Held, court has to presume a negotiable instrument to be for consideration unless the existence of consideration is disproved - That is unless on consideration of matter before it the court either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist - Meaning of words "proved" and "disproved" as defined under the Evidence Act, applied in this regard -
11 CC.No.29001/2015Evidence Act, 1872, Ss.4, 3 and 114 III.(c) - Words and phrases-"proved", "disproved"
B. Negotiable Instruments Act, 1881, - Ss. 118(a), 139 and 138 - Dishonour of cheque, a negotiable instrument
- Presumption under Ss.118 and 139 as to issuance of the said instrument for consideration and in discharge of debt - Raising of - Rebuttal thereof - Burden of proof - Nature of said proof - Held, initial burden of proof is on accused to rebut the said presumptions by raising a probable defence - If he discharges the said burden, the onus thereafter shifts on the complainant to prove his case - Whether the initial burden has been discharged by accused is a question of fact - Burden of proof on accused is not heavy - He need not disprove the prosecution case in its entirety - He can discharge its burden on the basis of preponderance of probabilities through direct or circumstantial evidence - For said purpose, he can also rely upon evidence accused by complainant - Appellant P doing share transactions through R (complainant), a sharebroker - Dishonour of cheque issued by P in favour of R due to insufficient funds in account - Complaint filed under S.138 alleging that cheque was issued towards amount due to R in relation to share transactions - Defence taken that said cheque was given to R by way of loan to tide over his financial difficulties - Held, evidence adduced by parties showed that P succeeded in 12 CC.No.29001/2015 discharging his initial burden which then shifted to R who failed to discharge the same - Adverse inference drawn against R due to non-production of his statutory books of accounts in relation to transactions in question, itself sufficient to rebut presumption under S.118 - Therefore, conviction of P under S.138, held, not sustainable - Evidence Act, 1872, Ss.114 IIs.(c) & (g), 4, 3 and 101 to
103. C. Evidence Act, 1872 - Ss.101 to 103 - Onus of proof on accused, held, is not as heavy as that of the prosecution - Such onus compared with that of a defendant in civil proceeding.
2. Krishna Janardhan Bhat -vs- Dattaraya G. Hegde, reported in AIR 2008 Supreme Court 1325(1), wherein it has held that, A. Negotiable Instruments Act (26 of 1881), S.139 - Presumption under -S.139 merely raises presumption in favour of holder of cheque that same has been issued for discharge of any debt or other liability - Existence of legally recoverable debt - Is not a matter of presumption u/s.139.
C. Negotiable Instruments Act (26 of 1881), S.139 - Presumption under - Rebuttal - Duty of Court - Presumption of innocence as human rights and doctrine of reverse burden introduced by S. 139 - Should be 13 CC.No.29001/2015 delicately balanced - It largely depends on factual matrix of each case.
3. Kumar Exports -vs- Sharma Carpets, reported in (2009)2 Supreme Court Cases 513, wherein it has held that, A. Negotiable Instruments Act, 1881 - Ss.139 and 138
-Presumption that cheque was issued in discharge of debt or liability - Presumption how to be displaced - Declaration made by the complainant himself to the Sales Tax Department that no sale had taken place - Accepted as a valid proof that cheques were not issued by accused in discharge of any debt or liability to complainant - Accused therefore by producing this evidence, held to have displaced the presumption under S.139 and therefore offence under S.138 not proved against accused.
4. Vijay -vs- Laxman and another, reported in (2013) 3 Supreme Court Cases 86, wherein it has held that, when the accused offers a plausible explanation in the face of usual facts pleaded by appellant, was able to displace presumption against him, acquittal of the accused is sustainable.
5. John K Abraham -vs- Simon C Abraham and another, reported in 2014 AIR SCW 2158, wherein it has held that, Negotiable Instruments Act (26 of 1881), S.138, S.118, S.139 - Dishonour of cheque - Complainant alleging that 14 CC.No.29001/2015 accused borrowed a sum of Rs.1,50,000/- from him and issued a cheque for said sum which was dishonoured - For drawing presumption under S.118 r.w. S.139 burden is heavily upon complainant - Complainant not sure as to who wrote cheque nor aware as to when and where existing transaction took place for which cheque was issued by accused - Defects in evidence of complainant as noted by trial court brushed aside by High Court without assigning any valid reason - Conviction of accused therefore, not proper.
6. Sanjay Mishra -vs- Ms. Kanishka Kapoor @ Nikki and another, reported in 2009 CRI.L.J. 3777, wherein it has held that, A. Negotiable Instruments Act (26 of 1881), Ss.138, 139 - Dishonour of cheque - Presumption as to legally enforceable debt - Rebuttal of - Amount advance by complainant to accused was large amount not repayable within few months - Failure by complainant to disclose the amount in his Income-Tax Return or Books of Accounts - Sufficient to rebut presumption under S.139.
7. Smt. Lakshmi Subramanya -vs- Sri. B. V. Nagesh, reported in 2013(3) KCCR 1940, wherein it has held that, A. NEGOTIABLE INSTRUMENTS ACT, 1881 - Sections 138 and 139 -Presumption arising out of dishonour of cheque - Rebuttal of - Standard of proof - Is one of preponderance of probabilities.
15 CC.No.29001/20158. L. Raju -vs- Gurappa Reddy, reported in 2015(5) Kar. L.J. 457, wherein it has held that, A. NEGOTIABLE INSTRUMENTS ACT, 1881 - Section 138 - Existence of debt and liability of accused towards the complainant is to be established by complainant by cogent and convincing evidence - On facts and circumstances - Complainant failed to prove the existence of debt.
9. A. M. Govindegowda -vs- B.V. Ravi, reported in 2015(5) Kar. L.J. 472, wherein it has held that, NEGOTIABLE INSTRUMENTS ACT, 1881, Section 138 - Criminal Procedure Code, 1973, Section 378(4) - Complainant to prove and establish that accused wad due to payment a certain sum to the complainant and to clear the said liability he issued a cheque - On facts - Held - From evidence placed on record - Accused has been able to establish his defence that he has not taken any loan - Whereas complainant has not been able to place on record any evidence to establish the existence of liability
- Order of Trial court acquitting the accused is upheld.
10. Criminal Appeal No.1594/2012 in Mother Marykutty
- vs - Reni C Kottaram and another, decided on 12.10.2012, wherein it has held that presumption drawn under a statute has only an evidentiary value. Presumptions are raised in terms of the Evidence Act. Presumption drawn in respect of one fact may be an 16 CC.No.29001/2015 evidence even for the purpose of drawing presumption under another.
11. Shanti. C -vs- Mary Sherly, reported in Laws (KER)- 2011-6-19, wherein it has held that, A. Evidence Act, 1872 - S.45, S.67, S.73 - Negotiable Instruments Act, 1881 - S.138, S.5, S.6(A), S.7 - Dishonour of cheque - Execution is not proved - Acquitted - Legality Challenged. - Held: For a successful prosecution of offence under Section 138 of the Act, Complainant must allege and prove that the cheque was "drawn" or executed by the accused - In the absence of an allegation in the complaint that the cheque was drawn by the accused and in the absence of proof of such fact, an accused cannot be convicted for offence under Section 138 of the Act, (Para 19) - "Execution" is different from "Issuance" of cheque. "Issue" means, to "Give something to somebody" - Issuance of cheque does not mean drawing of cheque - Issuance and execution are different acts. - Proof of issuance or giving of cheque by accused to complainant along will not suffice to constitute offence under Section 138 of the Act.
12. Amzad Pasha -vs- H. N. Lakshman, reported in 2011 Cri. L. J. 552 wherein it has held that where the complainant not produces the evidence to show his financial capacity and loan transaction then the accused is liable to be acquitted.
17 CC.No.29001/201510. It is pertinent to note here that, as stated above the complainant has pleaded that he paid sum of Rs.3,00,000/- to the accused as a hand loan and the accused to discharge his legally enforceable debt had issued in his favour EXs.P1 to 3 and whereas, the accused has denied the said contentions of the complainant.
It is pertinent to note here that, though, the accused has denied the contention of the complainant, but, in his cross-
examination at page no.6 at 3rd line has specifically deposed that:- F ¥ÀæPÀgÀtzÀ°ègÀĪÀ «ªÁ¢vÀ ZÉPïUÀ¼ÀÄ £À£ÀßzÉ, CªÀÅUÀ¼À ªÉÄðgÀĪÀ ¸À» £À£ÀßzÉ.
It further is pertinent to note here that, accused in his evidence has specifically deposed that the said Niranjan Gowda by stealing EXs.P1 to 3 had handed over to the same to the complainant for making wrongful gain.
It is pertinent to note here that, the accused in cross-
examination of PW1 has made the suggestions that:- ªÉÄÃ¯É ºÉýzÀ £À£Àß ¸ÉßûvÀ ¤gÀAd£ï ¥sÉïï DzÀgÀªÀ£ÀÄß ¥Á¸ï ªÀiÁr¸ÀÄvÉÛãÉAzÀÄ «zÁåyðUÀ¼À §½ ZÉPÀÄÌUÀ¼ÀÄ, ºÀt vÉUÉzÀÄPÉƼÀÄîwÛzÀÝ JAzÀgÉ ¸ÀļÀÄî. CzÉà 18 CC.No.29001/2015 jÃw F DgÉÆæ¬ÄAzÀ ¸ÀºÀ F ¥ÀæPÀgÀtUÀ¼À°ègÀĪÀ 3 ZÉPÀÄÌUÀ¼À£ÀÄß vÉUÉzÀÄPÉÆArzÀÝ JAzÀgÉ ¸ÀļÀÄî.
It is significant to note here that, from the said evidence of the accused it clearly appears that he has taken various defenses and the same are not consistent.
11. It is pertinent to note here that, the accused has filed an application under section 73 of the Indian Evidence Act, with a prayer for comparing the handwriting appearing in EXsP1 to 3 with the admitted hand writing of the accused and draw its opinion. It is to be noted here that, as stated above the accused himself has admitted his signatures on EXsP1 to 3 and if such being the case the question of comparing the said handwriting by this Court do not arise at all.
It is to be noted here that, in the instant case from perusal of entire evidence of the accused it clearly appears that, he availed the said loan amount from the complainant for his necessities and to discharge his debts had issued in favour of the complainant EXsP1 to 3. It is significant to note here that, when the complainant proves the execution of the instruments, then 19 CC.No.29001/2015 the burden shifts on the accused to rebut the same. It is pertinent to note here that, the accused has failed to rebut the said contentions of the complainant. It is pertinent to be noted here that, in view of My above all findings and without much discussion I hold that, the complainant has convincingly proved that the accused to discharge his legally enforceable debt had issued in his favour EXsP1 to 3. In view of the same, point no.1 is answered in the AFFIRMATIVE.
12. Point No.2:- It is specific contention of the complainant that, when he presented the Cheques- EXs.P1 to 3 for encashment in State Bank of Mysore, Nagarabhavi Branch, Bengaluru-560 072, on 15.09.2015 he received the endorsements as funds insufficient in the account of the accused and on 14.10.2015 he issued the legal notice to him and the said notice was served on him on 16.10.2015 and the accused inspite of receiving the said notice had failed to repay him the said loan amount.
It is to be noted here that, the complainant to substantiate his aforesaid contentions has got marked the Memo's issued by 20 CC.No.29001/2015 the State Bank of Mysore at EXs.P4 to 6, Legal notice issued to the accused on 14.10.2015 at EX.P7, Postal receipt at EX.P8 and Postal acknowledgement at EX.P9.
13. It is to be noted here that, at this juncture I have gone through provisions section 146 of the Negotiable Instruments Act and which contemplates as under:-
Bank's slip prima-facie evidence of certain facts:
The Court shall, in respect of every proceedings under this Chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such facts is disproved.
It is to be noted here that, in the instant case from perusal of EXsP4 to 6 it clearly appears that the Cheques-EXsP1 to 3 have dishonoured for insufficient funds in the account of the accused. It is pertinent to note here that, the accused has failed to rebut the presumptions envisaged in section 146 of Negotiable Instruments Act. It is to be noted here that, in view of My findings and without much discussion I hold that, the complainant 21 CC.No.29001/2015 has successfully proved that the accused has committed the offence punishable under section 138 of Negotiable Instruments Act. In view of the same, point no.2 is answered in the AFFIRMATIVE.
14. Point No.3:- That, as discussed on points No.1 and 2, I proceed to pass the following:-
ORDER That, acting under section 255(2) of Code of Criminal Procedure, the accused is convicted for the offence punishable under section 138 of Negotiable Instruments Act.
That, the accused shall deposit fine amount of Rs.3,00,000/- and if he fails to deposit the said fine amount, then he shall undergo simple imprisonment for three months.
That, out of total fine amount of Rs.3,00,000/-, Rs.2,98,000/- shall be paid to the complainant as a compensation as provided under section 357(1) of Code of Criminal Procedure and sum of Rs.2,000/- shall be remitted to the State Exchequer.22 CC.No.29001/2015
That, the bail and surety bonds of the accused are stands cancelled.
That, the Office is to furnish the copy of this Judgment to the accused forthwith at free of cost.
(Dictated to Stenographer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 20th day of September 2017) (HEMA PASTAPUR) XXII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of witnesses examined on behalf of complainant:-
PW.1 : Harish T. s/o Eraiah T. C. List of exhibits marked on behalf of complainant:-
Exs.P1 to 3 : Three Original Cheques;
Exs.P1(a) to 3(a) : Signatures of the
accused;
Exs.P4 to 6 : Memos issued by Cauvery Kalpatharu
Grameena Bank, Bengaluru;
Ex.P7 : Legal notice dated:- 14.10.2015;
Ex.P8 : Postal receipt;
23 CC.No.29001/2015
Ex.P9 : Postal acknowledgement;
Ex.P10 : HDFC Bank Statement of the
complainant and
Ex.P11 : Letter of Capgemini dated 01.12.2008.
List of witnesses examined on behalf of the accused:-
DW.1 : Yogesh Kumar S. V s/o Venkatesh.
List of documents marked on behalf of the accused:-
Ex.D1 : ID card issued by Sai Vidya Institute of Technology, Bengaluru;
Ex.D2 : Certificate of employment issued by SLN Developer, Bengaluru dated 09.11.2016;
Ex.D3 : RTC pertaining to land bearing
Sy.No.26/2 and
Ex.D4 : Mutation Register Extract.
XXII Addl. Chief Metropolitan Magistrate, Bengaluru.