Bangalore District Court
Sri.M.Suresh Kumar vs Sri. K.Gopalaraju on 9 January, 2019
1 C.C.No.21765/2016 J
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated:- This 9th day of January, 2019
Present:- Smt. Saraswathi.K.N, B.A.L.,LL.M.,
XVI Addl.CMM., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.
Case No. : C.C.No.21765/2016
Complainant : Sri.M.Suresh Kumar
S/o. Muniswamy Naidu,
Aged about 38 Years,
R/at No.305, 8th Cross,
Poorna Prajna Layout,
Bengaluru - 560 061.
(Rep.by Sri.A.Ganesh, Adv.,)
- Vs -
Accused : Sri. K.Gopalaraju,
S/o.K.Changamaraju,
Aged about 50 years,
Residing at Pent House,
"Sri Sai Sagar Apartments"
17th Cross, 15th Main,
5th Phase J.P.Nagar,
Bengaluru - 560 078.
(By Sri.M.S.Vinayak, Adv.,)
Case instituted : 23.9.2016
Offence complained : Sec.138 of the N.I. Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 9.1.2019
2 C.C.No.21765/2016 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 had represented to him that, he had obtained Government Contract work and to execute the said work, he was required to deposit Earnest Money, furnish bank guarantee and arrange necessary funds for working capital and that for commencing the said work, he required huge money, which could not be immediately arranged by him and that on execution of the said contract work, he will earn good profit and that if the said sum was not arranged, he would lose the contract. On such representations, the Accused had requested him to help him by arranging at least Rs.25,00,000/= by pleading that, if he arranged the said amount, he would repay the same with interest at 18% p.a. within the period of three months.
3. The Complainant has submitted that, on such representations and repeated requests, he, with much difficulty, could arrange a sum of Rs.10 Lakhs and paid a sum of Rs.10 Lakhs to the Accused on 2.12.2015. At the time of the receipt of the said money, the Accused 3 C.C.No.21765/2016 J had promised him that, he would repay the same with interest at 18% p.a. within a period of three months. However, having received the said amount of Rs.10 Lakhs from him, the Accused failed to repay the same as agreed. Ultimately, on 6.5.2016, when he approached the Accused demanding for the repayment of the debts, he issued a cheque bearing No.105586 dated:- 15.7.2016 drawn on the Central Bank of India, Sarakki Layout branch, Bengaluru, for a sum of Rs.10 Lakhs, towards the repayment of the aforesaid sum, promising that, he would arrange sufficient funds in his account so as to honour the said cheque.
4. However, upon presentation, the said cheque came to be returned dishonoured as "Payment Stopped by Drawer" vide Bank Endorsement dated:- 19.7.2016.
5. The Complainant has submitted that, thereafter he got issued the legal notice dated:- 10.8.2016 through RPAD and Courier and though after the service of the same, the Accused has got issued the reply notice, he has failed to comply with the demand made therein. Hence the present complaint.
6. The Complainant submits that, the dishonour of the cheque by the Accused has been malafide, 4 C.C.No.21765/2016 J 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.
7. The Complainant has led his pre-summoning evidence by having filed his affidavit-in-lieu of his sworn- statement, in which, he has reiterated the complaint averments.
8. In support of his evidence, P.W.1 has produced and relied upon the documentary evidence as per Ex.C1 to C.7, which is, as follows:-
Ex.C.1 is the Original Cheque dated:- 15.7.2016, in which the signature is identified by C.W.1 as that of the Accused as per Ex.C1 (a), the Bank Memo as per Ex.C.2, the office copy of the Legal Notice as per Ex.C.3, the Courier Receipt as per Ex.C.4, the Postal Receipt as per Ex.C.5, the Postal Acknowledgement as per Ex.C.6 and the Reply Notice as per Ex.C.7.
9. Prima-facie case has been made out against the Accused and he has been summoned vide the order of the same date.
5 C.C.No.21765/2016 J10. The Accused has appeared before the court 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.
11. As per the direction of the Hon'ble Apex Court in the decision of the 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.
12. P.W.1 has been cross-examined by the learned counsel for the Accused.
13. The statement of the Accused as required under Sec. 313 of the Cr.P.C. has been recorded. He has denied the incriminating evidence found against him and has chosen to lead his rebuttal evidence through his GPA holder i.e., his wife who is examined as D.W.1.
14. In support of the defence of the Accused, the wife of the Accused/D.W.1 filed her affidavit, which is accepted by this court, as per the direction of our Hon'ble High Court in Afzal Pasha V/s. Mohamed Ameer Jan, 6 C.C.No.21765/2016 J 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.
15. The gist of the defence of D.W.1 in her affidavit is as follows:-
i) That, she is the GPA holder of her husband, who is the Accused in the present case and that due to road accident, her husband suffered serious ribs, shoulder and head injuries and that as he has undergone bypass surgery, he is not mentally in a position to remember the several details about the matter and for the same reason, he has executed the GPA in her favour;
ii) That, since 3 years, her husband is not keeping well and as such, she is looking after the affairs of his business;
iii) That, she is personally aware of the entire matter and also about the present case, 7 C.C.No.21765/2016 J having been filed against her husband by the Complainant herein;
iv) That, the alleged loan transaction of Rs.10 Lakhs dated:- 2.12.2015 by her husband by way of cash with the Complainant is denied;
v) That, the alleged promise made by her husband to the Complainant to repay the said loan amount of Rs.10 Lakhs with interest at 18% p.a. within a period of two months is also denied;
vi) That, the alleged issuance of the cheque in dispute by her husband on 6.5.2016 as a post dated cheque in favour of the Complainant is also denied;
vii) That, from 2007 to 2016, the father-in-law of the Complainant Sri.Kumar had availed a sum of Rs.1,74,40,224/= and Rs.40,50,000/= all put together, Rs.2,14,90,224/= from her husband and that, he had also agreed to pay interest at the rate of 24% p.a. on the said loan liability;
viii) That, inspite of the repeated demands and personal approaches by her husband, the said 8 C.C.No.21765/2016 J Kumar/father-in-law of the Complainant failed to clear the said loan amount;
ix) That, the details of the loans paid to the father-in-law of the Complainant by her husband are as follows:-
i) Hand loan of Rs.7 Lakhs on 15.4.2007 through cheque bearing No.484257 drawn on the Vijaya Bank, South End Road Branch, Bengaluru;
ii) Hand loan of Rs.30 Lakhs on 17.8.2017 by way of cheque bearingNo.828886 drawn on the Vijaya Bank, South end Road Branch, Bengaluru;
iii) Hand loan of Rs.52,00,056/= on 3.7.2014 by way of RTGS and Cheque bearing No.101734 through Central Bank of India, Sarakki Layout Branch, Bengaluru;
iv) Hand loan of Rs.20,00,055/= on
16.12.2014 by way of NEFT and Cheque bearing No.101749 through Central Bank of India, Sarakki Layout Branch, Bengaluru;
9 C.C.No.21765/2016 Jv) Hand loan of Rs.40,00,056/= on 11.4.2015 by way of NEFT and Cheque bearing No.105564 through Central Bank of India, Sarakki Layout Branch, Bengaluru;
vi) Hand loan of Rs.40,000/= on 11.5.2015 by way of NEFT and Cheque bearing No.023508 through Central Bank of India, Sarakki Layout Branch, Bengaluru;
vii) Hand loan of Rs.25,00,057/= on 15.7.2015 by way of RTGS and Cheque bearing No.105582 through Central Bank of India, Sarakki Layout Branch, Bengaluru;
viii) Hand loan of Rs.25,50,000/= on 16.4.2012 by way of Cheque bearing No.866078 through the Karnataka Bank Limited, Sarakki Layout Branch, Bengaluru;
ix) Hand loan of Rs.15,00,000/= on 14.8.2013 by way of Cheque bearing No.950417 through Karnataka Bank 10 C.C.No.21765/2016 J Limited, Sarakki Layout Branch, Bengaluru;
x) That, the aforesaid amounts have been credited to the O.D.Account of the said Kumar/father-in-law of the Complainant maintained by him in the Karnataka Bank of Basavanagudi Branch, Bengaluru;
xi) That, the said Kumar/ father-in-law of the Complainant is liable to repay the loan of Rs.2,14,90,224/= to her husband and the said fact of having availed the loan from her husband is admitted by the said Kumar/ father-in-law of the Complainant in his cross- examination in C.C.No.21764/2016;
xii) That, in the month of May 2016, she and her husband came to know that, the cheques bearing No.105584 to 105588 and the cheques bearing No.105592 to 105596, which were kept in the office room of their residence were misplaced and her husband had informed the said fact to the Central Bank of India, Sarakki Layout Branch, Bengaluru requesting his bank authorities to make stop payment of the above said 10 cheques;
11 C.C.No.21765/2016 Jxiii) That, all the said 10 cheques were drawn on the Central Bank of India, Sarakki Layout Branch, Bengaluru and her husband had lodged a complaint in the said bank on 10.5.2016 and the bank authorities have received the said complaint through Acknowledgement dated:- 10.5.2016;
xiv) That, her husband had received three legal notices of date:- 10.8.2016 in respect of the following three cheques:-
a) Cheque bearing No.105585 for
Rs.58,00,000/=;
b) Cheque bearing No.105584 for
Rs.52,50,000/=;
c) Cheque bearing No.105586 for
Rs.10,00,000/=;
xv) That, the said Kumar/father-in-law of the Complainant herein has presented the aforesaid two cheques for Rs.58 Lakhs and Rs.52,50,000/= in the name of his partnership firm M/s. V.S.V Builders and the third cheque for Rs.10 Lakhs has been presented in the name of the Complainant herein, who is the son-in-law of the said Kumar/Complainant of C.C.No.21764/2016;
12 C.C.No.21765/2016 Jxvi) That, on receipt of the said three legal notices, her husband learnt that, the Complainant herein has stolen his 10 cheque leafs from the office room of their residence and has misused the same, by filling up said three cheques and got issued three legal notices through his advocate to her husband;
xvii) That, her husband has given a Reply dated:-
13.9.2016 to the said legal notices dated:-
10.8.2016, by putting forth his defence version;
xviii) That, the father-in-law of the Complainant herein Mr.Kumar has misused the said cheques, by filling up the same and got issued three legal notices to her husband with an intention to make wrongful gain;
xix) That, after the filing of this complaint, the father-in-law of the Complainant Mr.T.Kumar had also presented another cheque bearing No.105587 by filling up the amount of Rs.37 Lakhs and filled the date as 30.1.2017 through his son-in-law by Mr. Sathish Kumar and he also got issued the legal notice dated:-
1.4.2017 through a different counsel, to 13 C.C.No.21765/2016 J which, her husband has given reply dated:-
25.4.2017;
xx) That, Mr.T.Kumar has got filed a complaint in C.C.12882/2017 through his son-in-law Mr.Sathish Kumar before this court, which is now transferred to the court of SCCH -8;
xxi) That, Mr.T.Kumar has presented another cheque bearing No.105588, by filling up the amount of Rs.22,50,000/= and the date as 8.3.2017 and presented the same through one B.Balasubramanyam and he has got issued the legal notice dated:- 25.3.2017 through a different counsel, even to which, her husband has caused the reply notice;
xxii) That, Mr.T.Kumar/ the father-in-law of the Complainant herein has well planned the move by engaging different advocates for his own son-in-law and one B.Balasubramanyam;
xxiii) That, neither she nor her husband have ever seen the Complainant herein or his brother M.Sathish Kumar or the said B.Balasubramnaym in their life time and that, they are utter strangers to them and they have never transacted with those persons;
14 C.C.No.21765/2016 Jxxiv) That, her husband has never borrowed any loan from the Complainant or from Mr.T.Kumar or from his partnership firm M/s.VSV Builders or from his Son-in-law's brother M.Sathish Kumar or from B.Balasubramanyam at any point of time;
xxv) That, the Complainant and the aforesaid persons have filed false cases against her husband by misusing the stolen cheques by presenting the same through different persons;
xxvi) That, the father-in-law of the Complainant/Mr.T.Kumar has misused 5 cheques in all, out of 10 cheque leafs, stolen by him and he is wrongfully with-holding the remaining 5 cheque leafs in his custody and there is every likelihood of misuse of the said cheques by him in future;
xxvii) That, in the month of May 2016, Mr.T.Kumar/ father-in-law of the Complainant, along with his other rowdy elements had come to their Pent house and wrongfully demanded to register the said Pent House in his name;
15 C.C.No.21765/2016 Jxxviii) That, Mr.T.Kumar/father-in-law of the Complainant, further threatened and warned them that, he will teach a lesson, if her husband failed to register the said pent house to his name, wherein, they are presently residing;
xxix) That, in the month of December 2016, he and her husband met Mr.T.Kumar/ father-in-law of the Complainant and asked him, as to, why he has stolen the 10 cheque leafs of her husband, for which, he threatened that, he would take action against them;
xxx) That, Mr.T.Kumar/father-in-law of the Complainant, has given a Letter of Undertaking dated:- 19.1.2017, undertaking to withdraw the said 3 cases filed against her husband and further undertook to pay a sum of Rs.55 Lakhs, due to her husband by him within 6 months;
xxxi) That in the said letter, Mr.T.Kumar/ father-
in-law of the Complainant has undertaken to return the remaining 7 cheque leafs to her husband immediately;
16 C.C.No.21765/2016 Jxxxii) That, inspite of such undertaking letter and promise, Mr.T.Kumar/father-in-law of the Complainant, failed to keep up his promise and presented the two other cheques of her husband through his son-in-law Mr.Sathish Kumar/Complainant herein and one B. Balasubramanyam;
xxxiii) That, the original Letter of Undertaking dated:- 19.1.2017 is already produced before this court and marked as Ex.N.1 through P.W.1 in C.C.No.21764/2016;
xxxii) That, the Complainant has filed this false case against her husband and he has not produced any supporting documents, since the said cheque leafs were stolen and misused, though in fact, no loan has been obtained by her husband either from the Complainant or from Mr.T.Kumar/father-in-law of the Complainant or from his partnership firm or from any one as the Complainant is unable to produce any documents to establish the alleged loan.
Accordingly, she has prayed for the acquittal of her husband.
17 C.C.No.21765/2016 J16. In support of her evidence, D.W.1 has produced the following documentary evidence:-
Ex.D.1 : The certified copy of the GPA dated:-
6.1.2018 executed by the Accused in favor of his wife;
Ex.D.2 : The certified copy of the Letter allegedly executed by the Complainant of C.C.No.21764/2016 in favor of the Accused;
Ex.D.3 : The certified copy of the Complaint of C.C.No.26593/2016;
Ex.D.4 : The certified copy of the deposition of the Complainant of C.C.No.26593/2016; Ex.D.5 : The certified copy of the complaint of C.C.No.21764/2016;
Ex.D.6 and D7 : The Certified copies of the cheque dated 14.7.2016 and it's Return memo;
Ex.D8 : The certified copy of the Chief-
examination affidavit of the Complainant in C.C.No.21764/2016;
Ex.D.9 : The certified copy of the chief-
examination affidavit of P.W.2 of C.C.No.21764/2016;
Ex.D.10 : The Certified copy of the office copy of the legal notice dated 10.8.2016;
Ex.D.11 : The Certified copy of the Reply Notice dated 13.9.2016;
Ex.D.12 : The certified copy of the complaint of C.C.No.12882/2017;
Ex.D.13 : The certified copy of the cheque dated 30.1.2017;
Ex.D.14 : The certified copy of the Cheque return memos;
18 C.C.No.21765/2016 JEx.D.15 : The certified copy of the office copy of the legal notice dated 1.4.2017;
Ex.D.16 : The Certified copy of the Postal Receipts; Ex.D.17 : The certified copy of the Postal Acknowledgment;
Ex.D.18 : The certified copy of the Track Result; Ex.D.19 : The Office copy of the Reply Notice dated 25.4.2017.
17. D.W.1 has been cross-examined by the learned counsel for the Complainant.
18. I have heard the arguments of the learned counsel for the Complainant. The learned Defence Counsel has addressed his oral arguments as well as filed his written arguments.
19. In support of his arguments, the learned Defence Counsel has relied upon the following decisions:-
i) In Shreenath & Another Vs., Rajesh & Others., decided by the Hon'ble Apex Court on 13.4.1998;
ii) In Afzal Pasha Vs., Mohamed Ameerjan, in Crl.Petition No.1634/2016., decided by the Hon'ble High Court of Karnataka;
19 C.C.No.21765/2016 J iii) In A.C.Narayanan Vs., State of Maharashtra & Anr., in Crl.Appeal No.73/2007 clubbed with Shri.G.Kamalakar Vs., M/s. Surana
Securities Ltd., & Anr., in Crl. Appeal No.1437/2013, decided by the Hon'ble Supreme Court of India;
iv) In K. Rudrappa Vs., Shivappa., reported in 2005(6) Supreme 420;
v) In Hindalco Industries Ltd., Vs., Union of India and others., reported in (1993) SUPP.3 SCR;
vi) In K. Subramani Vs., K. Damodara Naidu., in Crl.Appeal No.2402/2014, decided by the Hon'ble Supreme Court of India;
viii) In John K. Abraham Vs., Simon C.Abraham & Another in Crl. Appeal No.2043/2013., decided by the Hon'ble Supreme Court of India;
ix) In Krishna Janardhan Bhat Vs., Dattatraya G. Hegde., in Crl. Appeal No.518/2006., decided by the Hon'ble Supreme Court of India;20 C.C.No.21765/2016 J
x) In Smt.Manjula G Vs., Smt. Manjula B.T, in Crl. Appeal No.436/2010, decided by the Hon'ble High Court of Karnataka;
xi) In Sri.N.Harish Vs., Ashok K. Jain, in Crl.
Appeal No.845/2010, decided by the Hon'ble High Court of Karnataka;
xii) In Sri. B. Girish Vs., S. Ramaiah, in Crl.Appeal No.1371/2007, decided by the Hon'ble High Court of Karnataka;
xiii) In Sanjay Mishra Vs., Ms. Kanishka Kapoor @ Nikki & Anr., in Crl.Appeal No.4694/2008;
20. I have gone through the above aforesaid citations. I have considered the submissions and perused the record carefully.
21. 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, 21 C.C.No.21765/2016 J 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 Sec.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.
22. 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".
23. Also, Sec.118 of the Negotiable Instruments Act states, "Until the contrary is proved, the following presumptions shall be made:-
22 C.C.No.21765/2016 J(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."
24. 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.
25. 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.
26. 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.
27. It is also a well settled position of law that, once the cheque is proved to be relating to the Account of the 23 C.C.No.21765/2016 J 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 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.
28. 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.
29. Such being the legal position, it would be pertinent to refer to the defences raised by the Accused 24 C.C.No.21765/2016 J to rebut the presumptions in favour of the Complainant in this case.
30. Admittedly, there is dispute with regard to the acquaintance between the parties though there is no dispute with regard to the fact that, the cheque in dispute belongs to the Accused with his signature on it. However, there is a dispute on the part of the Accused with regard to the existence of the alleged loan transaction of Rs.10 Lakhs and that, he has issued the cheque in dispute in favour of the Complainant towards the discharge of his legally payable debt. In such circumstance, though the presumptions u/Sec. 118 and 139 of the N.I.Act are in favour of the Complainant, the onus of proving the existence of the legally payable debt by the Accused in his favour by discharging his initial burden is upon the Complainant.
31. In this regard, it is pertinent to note that, according to the Complainant, he is the supplier of the building materials since 5 years and that his annual turnover during the last three years might be about Rs.10 Lakhs to Rs.15 Lakhs.
32. It is interesting to note that P.W.1 has also given explanation with regard to the source of his having 25 C.C.No.21765/2016 J arranged funds to the tune of Rs.10 Lakhs so as to lend the same to the Accused. Though he has been cross- examined with regard to the same, it is not seriously disputed by the Accused that P.W.1 had such source of funds with him at the relevant point of time.
33. It is further pertinent to note that, P.W.1 has also deposed that, at the time of his lending of the loan to the Accused, Kumar Naidu @ Kumar and his site Supervisor by name Ramesh were present. He has also claimed that on that day, the Accused gave him his one cheque.
34. No doubt the defence of the Accused is that, he has not borrowed any loan from the Complainant, who according to him is a stranger to him and that he has not issued the cheque in question to the Complainant and that the cheque in question is one among his ten signed blank cheques, which were allegedly stolen by the father-in-law of the Complainant herein viz., Kumar/Complainant of C.C.No.21764/2016.
35. However it is interesting to note that, though P.W.1 has been cross-examined by the learned Defence Counsel partly, thereafter though the former was ready to tender for his further cross-examination, the learned Defence Counsel has not utilized such opportunities.
26 C.C.No.21765/2016 JThis conduct on the part of the Accused raises a serious doubt in the mind of this court about his defence version.
36. However it is pertinent to note that, in the portion of the cross-examination of P.W.1, it is suggested to him that, he is working as an employee under T.Kumar/Complainant of C.C.No.21764/2016 and that he has not lent any loan to the Accused.
37. However it is interesting to note that, though during the course of the cross-examination of the Complainant, the Accused claims that the Complainant is the employee under T.Kumar/Complainant of C.C.No.21764/2016, during the stage of his evidence, the Accused who is represented by his wife as his GPA Holder/D.W.1 has claimed that the Complainant herein is the son-in-law of T.Kumar/Complainant of C.C.No.21764/2016. Thus these inconsistent stands taken by the Accused in this regard would also render his defence an improbable and doubtful one.
38. Further it could be seen that, in pursuance of the service of the legal notice, the Accused has put forth his defence first in point of time by having caused the Reply notice to the counsel for the Complainant as per Ex.C.7, in which, apart from having denied the claim of 27 C.C.No.21765/2016 J the Complainant in Para No.7, he has come up with a specific defence by claiming that, from 15.4.2007 to 15.7.2015, the latter has borrowed a total sum of Rs.1,74,40,224/= from him, assuring to repay the same, with interest at the rate of 24% p.a and that, after his repeated requests and demands, he allegedly repaid part of the amount to him, while he still owes some loan amount in his favour.
39. However, according to the Accused, such hand loans are said to have been advanced by him to him only through cheques and RTGS.
40. It is interesting to note that, in Para No.7 of the Reply Notice, there is reference to the alleged hand loans between T.Kumar and the Accused and it is also claimed in the said Reply notice that, the Complainant is liable to pay the balance amount to him with interest at 24% p.a. within 15 days from the date of the receipt of the said reply notice.
41. Another line of defence, which is put forth by the Accused in his reply notice is that, since 2 years from the date of the said reply notice, he was not keeping well and hence his wife Smt. Indira was looking after his affairs of business and in view of the same, he used to 28 C.C.No.21765/2016 J keep his signed cheques in his residence, so as to enable his wife to look after his business affairs and bank transactions.
42. That, in the month of May, he came to know that, his signed 10 blank cheques bearing No.105584 to 105588 and 105592 to 105595 were misplaced in his residence and with regard to the same, he gave stop payment instructions in respect of his 10 cheques to his banker on 10.5.2016. Therefore, the Accused has alleged that, subsequent to such stop payment instructions issued by him to his banker, surprisingly he received the three legal notices dated:- 10.8.2016, in respect of the cheque in dispute of the present case and the cheque bearing No.105584 for Rs.52,50,000/=, which are presented in the name of T.Kumar/father-in-law of the Complainant and another cheque bearing No.105586 for Rs.10 Lakhs, which is presented in the name of the Complainant herein.
43. Therefore, it is the specific defence of the Accused put forth by him in his reply notice that, on receipt of the said three legal notices, he learnt that, the said T.Kumar/Complainant of C.C.No.21764/2016 herein has stolen his cheques from his house and has 29 C.C.No.21765/2016 J misused the same by having filled them up and getting issued three legal notices to him.
44. Therefore the gist of the defence of the Accused, which is evident from his reply notice is that, he claims that, it is he, who has lent the loan to T.Kumar/the Complainant of C.C.No.21764/2016 and that, his 10 signed blank cheques have been allegedly stolen by the said T.Kumar.
45. In the light of these specific defences, P.W.1 has been cross-examined by the learned Defence Counsel.
46. It is pertinent to note that, there is no dispute with regard to the fact that, the ingredients of Sec.138 of the N.I. Act has been complied with by the Complainant.
47. However, during the course of the cross- examination of the Complainant, the main defence raised by the Accused is with regard to the alleged existence of the loan transaction in question and the alleged lending of the loan amount of Rs.10 Lakhs by the Complainant to him.
48. However, the defence of the Accused which is evident is that, he claims that, T.Kumar/the 30 C.C.No.21765/2016 J Complainant of C.C.No.21764/2016 has repaid his earlier loan amount partly by paying him Rs.58 Lakhs as stated by him in the complaint of his case, towards the loan that he had availed from the former (Accused).
49. But it is interesting to note that, though the wife of the Accused has examined her as D.W.1 and she has also reiterated in her evidence affidavit that, from 2007 to 2016, T.Kumar/the Complainant of C.C.No.21764/2016 had availed a sum of Rs.1,74,40,224/= and Rs.40,50,000/=, all together Rs.2,14,90,224/=, from her husband, agreeing to repay the same with interest at the rate of 24% p.a. Subsequently, she has claimed that, the said T.Kumar is liable to repay the total loan amount of Rs.2,14,90,224/= to her husband.
50. However, in this regard, during her cross- examination, it is elicited from D.W.1 that, she does not know the purpose, for which, the Complainant had allegedly availed the hand loans from her husband has sworn by her in her affidavit in Para No.5 (a), but she has claimed that, at that time, the Complainant of C.C.No.21764/2016 has admitted the same in his cross- examination in the case filed by him.
31 C.C.No.21765/2016 J51. Therefore it is important to note that, if, according to the Accused, it was T.Kumar/Complainant of C.C.No.21764/2016, who had in fact, borrowed the loan amount from the Accused over a period of 8 years from 2007 to 2015, then, nothing prevented the former (Accused) from taking appropriate legal action against the said T.Kumar for the recovery of the said amount.
52. However, the Accused has miserably failed to establish the fact that, since 2007 to 2015, he had the financial capacity of advancing any such amount to the said T.Kumar.
53. It is important to note that, though D.W.1 has deposed in her cross-examination that, the annual income of her husband during the year 2007-08 was Rs.2 Crores to Rs.3 Crores and that, her husband has his account in the Vijaya Bank, Syndicate Bank, Indian Overseas Bank and the Central Bank of India, admittedly as on this day, neither she nor her husband has produced any documentary proof in support of their claim that, the Accused had such financial capacity to advance any such loan amounts to T.Kumar.
54. Moreover, it is also elicited from D.W.1 in her cross-examination that, they have not taken any legal 32 C.C.No.21765/2016 J action against T.Kumar for the purpose of the recovery of the said amount of Rs.55 Lakhs and she claims that, the amount of Rs.55 Lakhs is not relating to any particular transaction and that, it is the amount that the said T.Kumar had offered to pay to her husband as a settlement amount.
55. Moreover, even if the defence of the Accused that, T.Kumar himself has borrowed loans from him is believed to be true, then it cannot be believed that, he would have kept quite all these years, without initiating any action against the Accused for recovering such huge amount, which also is claimed to have been lent by him to the said Kumar without charging any interest. Therefore, the conduct of the Accused in this regard also gives rise to a suspicious circumstance in his defence version.
56. Moreover, though the amount of loan claimed by the Complainant from the Accused is a huge sum of Rs.10 Lakhs, it could be seen that, there is no serious challenge with regard to the financial capacity of the Complainant.
57. Moreover, it could be seen that, according to the Complainant, at the time of his lending of the said loan 33 C.C.No.21765/2016 J amount of Rs.10 Lakhs to the Accused, T.Kumar and his site in-charge by name Ramesh was present and the same has not at all been denied by the Accused.
58. Now coming to the other defence of the Accused, which is his chief defence on the basis of his alleged "Cheque lost theory". He has claimed both in his reply notice as well as in the evidence of his wife D.W.1 that, due to his ill health, since the past 2 years, he used to keep his signed blank cheques in the table drawer of his house and accordingly, he has allegedly lost his 10 signed blank cheques from the table drawer of his house and immediately after he came to know about the same, he gave stop payment instructions in respect of such 10 cheques on 10.5.2016 to his banker.
59. No doubt, it is true that, the Accused has proved that, he has caused the stop payment instructions in respect of his 10 cheques on 10.5.2016. However, it is pertinent to note that, the said stop payment letter does not indicate the reason, due to which, such stop payment instructions have been issued by the Accused to his banker.
60. Therefore, if at all the claim of the Accused that, he had lost his 10 cheque leafs was really true, then 34 C.C.No.21765/2016 J nothing prevented him from disclosing the said reason in the said stop payment letter.
61. Moreover, in this regard, when the Complainant has been cross-examined on the ground that, he has allegedly stolen the said 10 cheque leafs, he has clearly denied the same. On the other hand, when D.W.1 has been cross-examined with regard to such alleged theft of the 10 cheque leafs of her husband, she has deposed that, she had kept her cheques in dispute in the table drawer of her house and when she found that they were misplaced, for the reason, she gave stop payment instructions in respect of the said cheques.
62. Moreover, D.W.1 herself has deposed that, T.Kumar/the Complainant of C.C.No.27164/2016 used to visit their house in order to enquire about the well being of her husband and during her absence he has stolen the said cheques from the table drawer of her house. However, she has pleaded ignorance about the date, on which, the said T.Kumar has stolen the cheques in dispute from her house, but she has voluntarily claimed that, as soon as she has noticed about the same, she has given the stop payment instruction in respect of the said cheques.
35 C.C.No.21765/2016 J63. However, it is interesting to note that, it is admitted by the Accused as well as by D.W.1 that, till date, they have not initiated any legal action against the said Kumar, alleging the theft of the 10 signed cheques leafs of the Accused. Therefore the conduct of the Accused and his wife, in having remained silent, even after coming to know that, the 10 cheque leafs of the former were allegedly stolen by the said T.Kumar would clearly indicate that, it is a bald defence raised by the Accused in his unsuccessful attempt of dis-proving the case of the Complainant.
64. Moreover, the Accused and his wife have claimed that, they had gone to the J P Nagar Police Station to lodge a complaint against T.Kumar in this regard, but their complaint was not entertained and that, there is a copy of the complaint that the Accused intended to lodge against the said T.Kumar and the same was not received by the police.
65. However, except such self asserting claims made by the Accused and his wife, there is absolutely no proof regarding the same.
66. It is further pertinent to note that, for the first time in her cross-examination, D.W.1 has come up with 36 C.C.No.21765/2016 J a new claim that, her husband had kept totally 12 cheques signed and that, she has not used any of such signed blank cheques of her husband for his business and that, other than the 12 cheques of her husband, she used to write in his other cheques.
67. Moreover, she has claimed that, she used the cheques of her husband for the purpose of making the labour payments and material payments when her husband was under depression. However she has deposed that, she could not recollect any particular transaction, for which, she used the cheques of her husband. However, if this defence version of D.W.1 is taken into consideration, it clearly goes contrary to what is deposed by D.W.1 in her affidavit, as well as in the reply notice of the Accused, wherein it is alleged that, 10 cheque leafs of the Accused were allegedly stolen by T.Kumar from the house of the former.
68. Moreover, even if such defence version of the Accused is accepted by this court, then it is the burden of the Accused, to explain about the details of his two other cheques, which were allegedly kept signed by him in the table drawer of his house.
37 C.C.No.21765/2016 J69. However, neither in the reply notice nor in the evidence, has the Accused disclosed the details of two other cheques, which were allegedly kept by him with his signatures on them.
70. Moreover, it is pertinent to note that, when D.W.1 claims that, other than the 12 cheques of her husband, she used to write in his other cheques, which, she claims to have used for the purpose of making labour payments and material payments, when her husband was under depression, then the burden of explaining, as to, how her husband had signed on the said cheques is shifted in favour of D.W.1. In such circumstance, the claim of D.W.1 that, she used to write the other cheques of her husband cannot be accepted by this court, since such cheques could not have been used by her, unless they were signed by her husband.
71. It is interesting to note that, it is not the defence of the Accused that, the cheques in dispute relate to the joint account of his wife and him and in such circumstance, even if certain payments were required to made by the Accused to his labour or towards the material payments, he could not have done so, only with his signature on his cheques and there was no possibility for D.W.1 to use the cheques of her 38 C.C.No.21765/2016 J husband for the said purpose. Therefore even on this ground, the defence of the Accused is liable to be unaccepted by this court.
72. It is further pertinent to note that, for the first time in her affidavit, D.W.1 has come up with a claim that, in the month of May 2016, T.Kumar, along with his other rowdy elements had come to their pent house in JP Nagar and wrongfully demanded from them so as to register the said pent house to his name and at that time, the said T Kumar had also threatened them with dire consequences of life.
73. That, thereafter in the month of December 2016, when, she along with her husband met T.Kumar and questioned him about his conduct, he admitted, having stolen the said 10 cheques from their residence and he also admitted the said act with an intention to avoid his aforesaid liability of Rs.2,14,90,224/=.
74. However, as per the pleading and the proof of the Complainant, the date of the issuance of the cheques in dispute is on 14.7.2016. Therefore even if the date of the stop payment letter issued by the Accused to his banker is taken into consideration, which is on 10.5.2016, it is possible that, after the Accused has 39 C.C.No.21765/2016 J issued the cheque in dispute in favour of the Complainant on 6.5.2016, immediately thereafter, he has issued the stop payment instructions to his banker with an intention not to honour the cheque in dispute.
75. It is interesting to note that, for the first time, during the cross-examination of the Complainant in C.C.No.21764/2016, a document sought to be a letter alleged to have been executed by the said Complainant in favour of the Accused is confronted to the Complainant and the same came to be marked as Ex.N.1 in C.C.No.21764/2016, while the certified copy of the said document is marked as Ex.D2 in this case through D.W.1.
76. It is seen that, on the basis of the said document, it is the claim of the Accused that, T.Kumar has clearly admitted that, he is in possession of the 10 cheques of the former (Accused), inclusive of the cheque in dispute and that, he would undertake to return the remaining 7 cheques to him immediately and that, he would not misuse the same.
77. However, merely because the said document is on the Letter Head of the Complainant of C.C.No.21764/2016, the same has not been admitted in 40 C.C.No.21765/2016 J evidence with the consent of the said Complainant and on the contrary, the same is taken into record only for the purpose of identification as Ex.N.1 in C.C.No.21764/2016.
78. Moreover, the said Complainant has categorically denied having executed any such letter in favour of the Accused. Further, no reliance could be placed by this court on the said document at Ex.N.1 dated:- 19.1.2017, since if the said document was really in the custody of the Accused, then nothing prevented him from pleading about the said document earlier atleast in the Reply Notice.
79. No doubt on the basis of the letter dated:-
19.1.2017 at Ex.D2, it may be the defence of the Accused that, the said document was executed by the said Complainant only on 19.1.2017, which is admittedly much after the issuance of the reply notice as per Ex.C7.
However, such said argument or defence on the part of the Accused cannot be accepted by this court, since the Complainant T.Kumar has clearly denied having executed any such letter in favour of the Accused.
80. Therefore, the appreciation of the evidence on record clearly goes to show that, the Complainant has 41 C.C.No.21765/2016 J successfully proved his case beyond reasonable doubt and on the contrary, the Accused has failed to rebut the presumptions available in favor of the Complainant u/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 the Negotiable Instruments Act.
He is sentenced to pay a fine of Rs.11,00,000/= (Rupees Eleven Lakhs only).
If the fine amount is so realized, Rs.10,90,000/= (Rupees Ten Lakhs and Ninety 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 1 (One) years.
His bail bond and surety bond stands discharged.
Issue free copy of the Judgment to the Accused forthwith.
42 C.C.No.21765/2016 J(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her, verified, corrected and then pronounced by me in the open Court on this the 9th day of January, 2019).
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
PW.1 : Sri.Suresh Kumar; 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 Memo; Ex.C.3 : Office Copy of Legal Notice; Ex.C.4 : Courier Receipt; Ex.C.5 : Postal Receipt; Ex.C.6 : Postal Acknowledgement; Ex.C.7 : Reply Notice.
3. List of witness/s examined on behalf of the Accused:-
DW.1 : Smt. Indira Gopalaraju;
4. List of documents exhibited on behalf of the Accused:-
Ex.D.1 : The certified copy of the GPA dated:-
6.1.2018 executed by the Accused in favor of his wife;
Ex.D.2 : The certified copy of the Letter allegedly executed by the Complainant of 43 C.C.No.21765/2016 J C.C.No.21764/2016 in favor of the Accused;
Ex.D.3 : The certified copy of the Complaint of C.C.No.26593/2016;
Ex.D.4 : The certified copy of the deposition of the Complainant of C.C.No.26593/2016; Ex.D.5 : The certified copy of the complaint of C.C.No.21764/2016;
Ex.D.6 and D7 : The Certified copies of the cheque dated 14.7.2016 and it's Return memo;
Ex.D8 : The certified copy of the Chief-
examination affidavit of the Complainant in C.C.No.21764/2016;
Ex.D.9 : The certified copy of the chief-
examination affidavit of P.W.2 of C.C.No.21764/2016;
Ex.D.10 : The Certified copy of the office copy of the legal notice dated 10.8.2016;
Ex.D.11 : The Certified copy of the Reply Notice dated 13.9.2016;
Ex.D.12 : The certified copy of the complaint of C.C.No.12882/2017;
Ex.D.13 : The certified copy of the cheque dated 30.1.2017;
Ex.D.14 : The certified copy of the Cheque return memos;
Ex.D.15 : The certified copy of the office copy of the legal notice dated 1.4.2017;
Ex.D.16 : The Certified copy of the Postal Receipts; Ex.D.17 : The certified copy of the Postal Acknowledgment;
Ex.D.18 : The certified copy of the Track Result; Ex.D.19 : The Office copy of the Reply Notice dated 44 C.C.No.21765/2016 J 25.4.2017.
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.
45 C.C.No.21765/2016 J9.1.2019 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 sentenced to pay a fine of Rs.11,00,000/= (Rupees Eleven Lakhs Only).
If the fine amount is so realized, Rs.10,90,000/= (Rupees Ten Lakhs and Ninety 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 1 (One) year.
His bail bond and surety bond stands discharged.
Issue free copy of the Judgment to the Accused forthwith.
XVI ACMM, B'luru.