Bangalore District Court
Sri. K. Muniraj vs Sri. K. Prasad on 18 May, 2018
IN THE COURT OF THE XVI ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE, BENGALURU CITY
Dated: This the 18th day of May, 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.552/2017
Complainant : SRI. K. MUNIRAJ,
S/o. Late Krishnappa,
Aged about 53 Years,
R/at No.7/1, 1st Main,
II Block, Thyagaraj Nagar,
Bengaluru - 560 028.
(Rep. by Sri. M.V. Revanasiddaiah, Adv.,)
- Vs -
Accused : SRI. K. PRASAD,
S/o. Late Ramanjaneyulu,
Aged about 55 Years,
"Sri Krishna-Nidhi,
No.445, Flat No. G-1,
33rd Cross, 7th Main,
4th Block, Jayanagar,
Bengaluru - 560 011.
(Rep. by Sri. Vijayakumar Prakash, Adv.,)
Case : 22.12.2016
instituted
Offence : U/s 138 of N.I Act
complained of
Plea of : Pleaded not guilty
Accused
Final Order : Accused is convicted
Date of order : 18.5.2018
2 C.C.No.552/2017 J
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 is very well acquainted to him since many years and he was having financial transactions with him. The Accused used to borrow loans from him frequently and repay the same with interest. Accordingly the Accused was due in a sum of Rs.6,00,000/= to him as loan and Rs.1,62,000/= towards interest at 18% per annum as on 16/11/2016. The Accused did not pay the said amount punctually as agreed and thereafter he demanded both orally and through messages many times to the Accused seeking the repayment of the loan amount. Accordingly he sent a message from his mobile No.9379171885 to the Accused mobile No.9448886181 on 16/11/2016 at 1.01 p.m., Thereafter on 18/11/2016, the Accused gave a cheque bearing No.748992 dated: 21/11/2016 for Rs.1,00,000/= towards the interest dues and he had also assured him that, he will see the said cheque is honoured on 21/11/2016 positively and accordingly, he assured him that, he would clear the entire loan and the remaining interest at the earliest.
3. The Complainant has further submitted that, as per the instructions of the Accused, when he presented the said cheque for collection through his Banker on 21/11/2016, the same came 3 C.C.No.552/2017 J to be returned dishonored for the reason "Funds Insufficient"
vide Bank Endorsement dated 22/11/2016. Though immediately thereafter, he brought this fact to the knowledge of Accused, the latter did not respond to the same.
4. The Complainant has further submitted that, thereafter left with no other alternative, he got issued a legal notice to the Accused through RPAD calling upon him to pay the cheque amount to him within 15 days from the date of the receipt of the said legal notices. Despite the receipt of the same, the Accused has neither replied nor has he 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 the Accused be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
6. The Complainant has led his pre-summoning evidence on 05/01/2017 by examining him as C.W.1 and he has filed his affidavit-in-lieu of his sworn statement, 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 C5 which are as follows:-
4 C.C.No.552/2017 JEx.C1 is the cheque, in which the signature identified by C.W.1 as that of the Accused as per Ex.C1(a), the Bank Challan as per Ex.C.2, the Bank memo as per Ex.C3, the office copy of the legal Notice as per Ex.C4 and the Postal Acknowledgment as per Ex.C5.
8. The Accused has appeared before this court on 01/06/2017. He has been enlarged on bail. The substance of the accusation has been read over to him, to which, he has pleaded not guilty and has claimed the trial.
9. As per the direction of the Hon'ble Apex Court in the decision of Indian Bank Association Vs., Union of India, reported in 2014 (5) SCC 590, after recording the plea of the Accused, as he intended to set out his defence, the case came to be posted for the cross-examination of the Complainant. The Complainant has been cross examined by the learned Defence Counsel.
10. The statement of the Accused under Sec.313 of the Cr.P.C., has been recorded 11/01/2017. He has denied the incriminating evidence found against him and has not chosen to lead his rebuttal evidence.
11. The learned counsel for the Complainant has filed his written arguments, in which, he has prayed for the conviction of the Accused on the ground that the Complainant has proved his case both through oral as well as the documentary evidence and 5 C.C.No.552/2017 J nothing is elicited in his cross-examination by the Accused. As such the Complainant has discharge his initial burden and on the contrary the Accused has not rebut the presumption U/s. 139 of the N.I. Act. Accordingly he has prayed for the conviction of the Accused.
12. On the contrary, the learned Defence Counsel has addressed his arguments, during the course of which, he has prayed for the acquittal of the Accused on the ground that, there is no date of lending pleaded in the complaint and the Complainant has admitted that, the contents of the cheque in dispute are in his hand writing and he has failed to prove the existence of the legally payable debt by the Accused in his favour. The Complainant has failed to prove his source of funds and except the cheque, there is no documentary proof led by the Complainant in support of his case and as such, the Accused is entitled to be acquitted. Accordingly he has prayed for the acquittal of the Accused.
13. In support of his argument the learned defence counsel has relied upon the following decisions:-
i) K. Subramani V/s K. Damodara Naidu reported in (2015) 1 SCC 99;
14. I have considered the submissions and perused the record carefully.
6 C.C.No.552/2017 J15. 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;
(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.
16. 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".
17. 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 7 C.C.No.552/2017 J accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration."
18. 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.
19. 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.
20. 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.
21. 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.
22. 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 8 C.C.No.552/2017 J 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 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.
23. 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 rebuttal presumptions and the Accused is expected to rebut the presumptions by raising a probable defence.
24. It is pertinent to note that there is no dispute with regard to the acquaintance between the parties as well as with regard to the fact that the cheque in dispute belongings to the Accused with his signature on it, though it is denied that the contents of the said cheque as well as the bank Challan at Ex.C2 are in his handwriting. Except the said dispute, there is no serious dispute in respect of the transaction in question by the Accused.
25. No doubt, as rightly pointed out by the learned Defence Counsel, both in the cross-examination of the Complainant as 9 C.C.No.552/2017 J well as in his arguments, there is no pleading with regard to the exact date on which the Accused had allegedly availed the loans from him and particularly even with regard to the transaction in question as claimed by the Complainant. However it could be seen that, through out the cross-examination of the Complainant there is no serial denial of the fact that, the Complainant had sent a message to him through his mobile phone to the mobile phone of the Accused claiming that a sum of Rs.6,00,000/= and Rs.1,62,000/= as interest at 18% per annum as on 16/11/2016 was due to him.
26. Moreover the amount covered under the cheque in dispute is Rs.1,00,000/=, which according to the Complainant came to be issued by the Accused to him on 18/11/2016, with a promise to clear the remaining loan amount and the interest at the earliest. No doubt, the defence of the Accused is that, the name of the payee on the cheque in dispute is in the hand writing of the Complainant and likewise the name of the payee on the cheque in dispute and the contents of the bank Challan at Ex.C2 are in the same hand writing. Though this defence version is denied by the Complainant, he has admitted that, the contents of the bank Challan at Ex.C2 are in his hand writing.
27. However one important point to be noted in this regard is that, the hand writing in respect of the contents of the Challan at Ex.C2 is immaterial so as to decide the liability of the Accused under the subject cheque, since, when the Complainant presents the cheque for clearance, then obviously the bank Challan should 10 C.C.No.552/2017 J be filled up either by him or by someone else on his instruction and there can be no doubt or fault found with him, in having filled up the bank challan in his hand writing.
28. Likewise, even if it is assumed for a moment that, even the contents of the subject cheque are in the handwriting of the Complainant, that by itself does not invalidate the cheque, since the Complainant is authorized to do so as contemplated U/s.20 of the N.I.Act.
29. However if the Accused is able to substantiate before this court that, he has not at issued the cheque in dispute to the Complainant, then the onus of proving the fact that, he was authorized to fill up the contents of subject cheque by the Accused is shifted in favour of the Complainant. However the only defence of the Accused with regard to possession of his cheque with the Complainant is that, he came in contact with one Srinivas through the former and that there had been further transactions between the said Srinivas and the Complainant and though there has been no financial transactions between the Complainant and him, the former has misused the cheque in dispute through the said Srinivas.
30. However, except this bald defence version, there is absolutely no cogent and probable defence version led by the Accused in order to substantiate the said defence version.
11 C.C.No.552/2017 J31. It is a well settled principle of law that, a mere bald defence raised by the Accused is not sufficient to rebut the case of the Complainant. Something probable has to be brought out by the Accused in order to enable this court to come to the conclusion that, there is rebuttal of the presumption available in favour of the Complainant. However in the absence of such probable defence led by the Accused, it is not able to accept the mere plausible explanation offered by the Accused in respect of the cheque in dispute. Therefore, I have no hesitation to conclusion that the Complainant has proved his case beyond reasonable doubt and on the other hand the Accused has failed to rebut the presumption available in favour of the Complainant U/s. 118 and 139 of the N.I. Act.
32. Therefore by appreciating the entire evidence available on record, it can be easily inferred that, the Complainant has proved his case beyond reasonable doubt and on the contrary, the Accused has failed to probabalize his defence by leading a probable defence, which is capable of rebutting the presumptions available in favour of the Complainant under Sec.118 and 139 of the N.I.Act. 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 Negotiable Instruments Act.
He is sentenced to pay a fine of Rs.1,15,000/- (Rupees One Lakh and Fifteen Thousand only) and in default of payment of fine, he shall undergo simple imprisonment for 3 (Three) months.12 C.C.No.552/2017 J
Out of the fine amount so collected, Rs.1,10,000/- (Rupees One Lakh and Ten Thousand Only) is ordered to be paid to the Complainant as Compensation and the balance of Rs.5,000/- (Rupees Five thousand only) is ordered to be adjusted towards cost to the State Exchequer.
The bail bond of the Accused stands discharged.
Issue free copy of the Judgment to the Accused forthwith.
(Dictated to the Stenographer, transcribed and print out taken by her, verified, corrected and then pronounced by me in the open Court on this the 18thday of May, 2018).
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
PW.1 : Sri. K. Muniraj;
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 : Bank Challan; Ex.C-3 : Bank Memo; Ex.C-4 : Office Copy of the Legal Notice; Ex.C-5 : Postal Acknowledgement;
3. List of witness/s examined on behalf of the Accused:-
- Nil -
4. List of documents exhibited on behalf of the Accused:-
- Nil -13 C.C.No.552/2017 J
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.14 C.C.No.552/2017 J
18/5/2018 Complainant Accused For Judgment. Judgment pronounced in 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 Negotiable Instruments Act.
He is sentenced to pay a fine of Rs.1,15,000/- (Rupees One Lakh and Fifteen Thousand only) and in default of payment of fine, he shall undergo simple imprisonment for 3 (Three) months.
Out of the fine amount so collected, Rs.1,10,000/-(Rupees One Lakh and Ten Thousand Only) is ordered to be paid to the Complainant as Compensation and the balance of Rs.5,000/- (Rupees Five 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 3 (Three) months.
The bail bond of the Accused stands discharged.
Issue free copy of the Judgment to the Accused forthwith.
XVI ACMM, B'luru.
15 C.C.No.552/2017 J