Bangalore District Court
G Kumuda vs S Jaya Kumar on 1 August, 2024
KABC020027602020
IN THE COURT OF THE XXII ADDL. JUDGE, COURT OF
SMALL CAUSES AND ADDL. CHIEF JUDICIAL
MAGISTRATE, BENGALURU CITY (SCCH24).
Presided Over by Smt. Roopashri, B.Com., LL.B.,
XXII ADDL., SCJ & ACJM,
MEMBER - MACT,
BENGALURU.
Dated: On this 1st day of August 2024
CC NO.691/2020
1. Sl.No. of the Case : C.C.No.691 of 2020.
2. The date of : 22012020
commission of the
offence
3. Name of the : Smt. G.Kumuda,
Complainant W/o R.V Dinesh,
Aged about 47 years,
R/at Door No.825,
17th "F" main, 5th block,
Rajajinagar,
Bangalore 560 010.
(By Sri.Punith Ramakrishna,
Advocate)
SCCH-24 2 C.C.691/2020
4. Name of the : Sri. S Jaya Kumar
Accused S/o S.Sinnakanni,
Aged about 60 years,
Proprietor of
M/s Shakthi Traders,
No.51/C, II main road,
APMC Yard, Yeshwanthpura,
Bangalore 560 022.
(By Sri.Harisha T,
Advocate)
5. The offence complained : Under Section 138 of the
of or proves Negotiable Instrument Act.
6. Plea of the accused and : Pleaded not guilty.
his examination
7. Final Order : Accused is found guilty
8. Date of such order for : 01082024
the following
JUDGMENT
This complaint is filed under Sec. 200 of Cr. P. C. for the offence punishable under Section 138 of the Negotiable Instruments Act.
02. It is contended that, the complainant is the absolute owner of the property bearing No.51/C, Lorry SCCH-24 3 C.C.691/2020 stand and Godown Layout, Yeshwanthpur, Bangalore and the accused is the tenant of the complainant from several years. The accused has not paid the rent as on 01012018. The rent due was approximately Rs.14, 00,000/. In the month of August 2019 the accused has assured to the complainant that the accused will pay the rent. As per the assurance, the accused has issued cheque bearing No.021309 for Rs.10, 00,000/ drawn on the National Cooperative Bank Ltd., Yeshwanthpur Branch, Bangalore dated 03122019. As per the instruction of accused, the complainant had presented the said cheque for collection through Karur Vysya Bank, Rajajinagar Branch, and Bangalore. But, same was returned with an endorsement "Exceeds Arrangements" on 04122019. In spite of repeated requests and demands made by the complainant the accused did not turn up. Thereafter, the complainant got issued a legal notice dated: 16122019. The said notice was duly served to the accused without demure and also issued reply notice through his advocate. But the accused did not repaid the said amount to the complainant. Accordingly, the accused has committed offence punishable under Sec.138 of N.I Act.
SCCH-24 4 C.C.691/20203. After recording the sworn statement of the complainant and also verifying the documents, cognizance was taken against the accused for the offence punishable under Sec. 138 of N.I. Act. The accused on receiving the summons appeared before this Court through his counsel and he was enlarged on bail and his plea was recorded. The accused pleaded not guilty and claimed to be tried. Hence, the case was posted for evidence of the complainant.
4. The complainant got examined himself as PW.1 and got marked documents as Exs.P1 to 7. Then, the case was posted for recording the statement of accused under Sec.313 Cr.P.C. In the statement U/s 313 Cr.P.C. the accused has denied all the incriminating evidence appearing against him and claimed to be tried. The accused did not adduce defence evidence. Hence, the case was posted for arguments.
5. Heard the arguments of both side and pe rused the records.
6. The following points arise for my consideration:
SCCH-24 5 C.C.691/20201. Whether the complainant proves that accused has committed an offence punishable under Sec.138 of N.I. Act?
2. What order?
7. My findings on the above points are as under
Point No.1: In the Affirmative Point No.2: As per final order, for the following:
: R E A S O N S :
8. POINT NO.1: This is a private complaint filed under Section 200 of Cr.P.C. for the offence punishable under Section 138 of N.I. Act.
9. It is the case of the complainant that, he is the absolute owner of the property bearing No.51/C, Larry stand and Godown layout, Yeshwanthpur, Bangalore (here in after called the schedule property) and accused is the tenant of the schedule property since several years. He has not paid the rent from 2015 till the date. As on 01012018, the rent due was approximately Rs.14,00,000/. To discharge the legally enforceable debt the accused has issued cheque SCCH-24 6 C.C.691/2020 bearing No.021309 for Rs.10,00,000/ dated 0312 2019 and when the cheque was presented for encashment same was returned with endorsement "Exceeds Arrangements". Though the said fact was brought to the notice of the accused by issuing legal notice but accused has failed to repay the cheque amount
10. To substantiate the contention, the complainant got examined herself as PW1. In the examination in chief the Pw1 has reiterated the averments made in the complaint. Ex.P1 is the cheque bearing No. No.021309 for Rs.10,00,000/ dated 03 122019, Ex.P2 is the cheque return memo which indicates that cheque is returned for the reason "Exceeds Arrangement'', Ex.P3 is the demand notice issued by the complainant to the accused through his Advocate calling upon the accused to make payment of the cheque amount, Exp4 is the postal receipt, ExP5 is the Postal acknowledgment. Ex.P6 is the reply notice, Ex.P.7 is the Track consignment.
SCCH-24 7 C.C.691/202011. Though the accused has not adduced his defence evidence but he has given reply to the legal notice and has cross examined the PW.1. If the reply notice at Ex.P6 and the line of cross examination done to the PW.1 is perused, the accused has categorically disputed the relationship of landlord and tenant between him and the complainant and denied the cheque as per Ex.P.1 issued by him to the complainant towards the arrears of rent. It is the defence taken by the accused that he was the tenant under one Venkatagiri Gowda on behalf of S. Jayakumar proprietor of Sri Shanthi Traders and lease agreement dated 15011994 was executed by Venkatagiri Gowda on behalf of the said firm and one more lease agreement dated 01121994 was executed by Venkatagiri Gowda on behalf of Thilak Traders and that complainant is not the legal representative of Venkatagiri Gowda hence complainant is not having any right to give legal notice to the accused and that the accused has not given any cheque to the complainant. It is further submitted that when there was no lease agreement between the complainant and accused the question of the accused paying rent to the SCCH-24 8 C.C.691/2020 complainant does not arise. It is further contended that the accused and his wife were paying rent to the complainant for the purpose of avoiding income tax of R.V Dinesh and the said R.V Dinesh is the legal representative of Venkatagiri Gowda and that the blank signed cheque was issued by accused to the husband of complainant on 27102016 and the said cheque was misused by the complainant and presented the same and the said cheque was honoured in the month of December 2019. Hence, the present legal notice is not maintainable.
12. The accused further submitted that he has filed complaint against the complainant and her husband on 08112016 and 18112017 and that the cheque in question was issued prior to 08112016 but not in the month of August 2019. The accused further submitted about the suit in OS No.4434/2017 filed by the complainant and her husband against him before the Hon'ble CCH14 for the relief of eviction and damages and also the suit in OS No.7840/2016 filed by him for the relief of permanent eviction.
SCCH-24 9 C.C.691/202013. When the accused has admitted the cheque and his signature in the Ex.P1, now the court has to analyze and appreciate whether the complainant has succeeded in proving the guilt of the accused beyond all reasonable doubt and whether the materials placed on record probablise the defense taken by the accused in his reply notice.
14. In catena of decision it was time and again observed by the Hon'ble High court and Supreme Court that "The Statutory presumption mandated by sec.139 of the Act, does indeed include the existence of a legally enforceable debt or liability. However, the pre sumption U/S 139 of the Act is in the nature of a rebut table presumption and it is open for the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested".
15. In view of the above decision, once the cheque is admitted, the statutory presumption would auto matically falls in favour of the complainant that the al leged cheque was issued for discharge of an existing legally enforceable debt or liability against the accused SCCH-24 10 C.C.691/2020 and the burden will shift on to the accused to rebut the same.
16. If the line of cross examination done to the Pw1 by the accused and the averments of the reply notice is perused, at the cost of repetition, the accused has not disputed the cheque as per Ex.P1 issued by him and his signature in the Ex.P1 but contended that the said cheque was issued on 27102016 as security in favour of the husband of the complainant and the said cheque was misused by the complainant and filed false case against him.
17. The accused has seriously disputed the landlord and tenant relationship between him and the complainant and disputed the title and ownership of the complainant over the schedule property in which the accused was the tenant. Though the accused has disputed the relationship between him and the complainant as the landlord and tenant so also disputed the title of the complainant over the schedule property but this case being a criminal case the aforesaid disputed point cannot be decided in this SCCH-24 11 C.C.691/2020 proceedings. The accused has not disputed the suit in OS No.4434/2017 filed by the complainant and her husband against him for eviction and damages as accused has referred about the said suit in the reply notice as per Ex.P6 given by him. Even though it is beyond the scope of this court in this proceedings to consider the disputed point as to landlord and tenant relationship but for the sake of discussion, if the judgment and decree passed in OS No.4434/2017 is perused, the said suit was filed by complainant and her husband against the defendant and his wife for the relief of Ejectment and damages. In the said case, the plaintiffs therein had contended that the schedule property was belonging to Venkatagiri Gowda who is the father in law of the complainant and that the said Venkatagiri Gowda had bequeathed the schedule property in favour of his son i.e., the husband of complainant by virtue of Will dated 30011996 and that by virtue of the said document the husband of the complainant became the absolute owner of the said property and that subsequently during family settlement the schedule property was allotted to the share of plaintiff no.2 i.e., complainant. The Hon'ble SCCH-24 12 C.C.691/2020 Court in OS No.4434/2017 had considered the said facts pleaded by the plaintiffs and observed that earlier plaintiff no.1 was the owner and subsequently due to the family settlement, the plaintiff no.2 became the owner of the said property. In the said case, the plaintiffs have categorically contended that defendant/ accused was paying rent of Rs.30, 000/ per month and since December2015 he was due of rent. From the judgment and decree passed in OS No4434/2017 it can be gathered that the said suit was filed for recovery of arrears of rent of Rs.5, 70,000/ and on merit the said suit was decreed and court had directed the defendants/accused and his wife to evict the schedule premises and handover the vacant possession of schedule premises to the plaintiff no.2. The Hon'ble court has given further direction to the defendant to pay the arrears of rent of Rs.5, 70,000/ with interest at the rate of 6% per annum from the date of suit till the payment of entire amount to the plaintiffs. It was further directed to pay Rs.30, 000/ per month from the date of suit till they vacate the suit premises towards damages. The said suit was filed on 30062017. Hence, as per the judgment and decree, SCCH-24 13 C.C.691/2020 the defendants apart from paying the arrears of rent of Rs.5,70,000/ with interest at 6% were also bound to pay Rs.30,000/ from 01062017 till they evict the schedule property.
18. As per the evidence of complainant the accused evicted the schedule premises without bringing to their knowledge in the month of March 2022. As per the evidence of PW.1 the cheque in question was issued in the month of August 2019 towards arrears of rent till 112018.
19. The learned defence counsel bent upon posed suggestion to the PW.1 that the disputed cheque was issued not to the complainant but to the husband of the complainant in the year 2016 and complainant has misused the said cheque in the year 2019. Even in the reply notice also the very same defence was taken by the accused. The accused by relying upon the judgment and decree passed in OS No.4434/2017 has bent upon posed suggestion to the PW.1 that as per the judgment it was ordered to pay only Rs.5,70,000/ SCCH-24 14 C.C.691/2020 and accused is not liable to pay Rs.10,00,000/ towards arrears of rent.
20. So far as the aforesaid defence taken by the accused is concerned, it is true that OS No.4434/2017 was decreed for Rs.5,70,000/ towards arrears of rent but as the order portion of the judgment is reproduced in the supra para, the accused and his wife were ordered to pay Rs.5,70,000/ with interest at the rate of 6% per annum from the date of suit till the payment of entire amount to the plaintiff and they have also been directed to pay Rs.30,000/ per month from the date of suit till they vacate the suit premises. Hence, when suit was filed on 30062017 and the amount of Rs.5,70,000/ claimed by the plaintiffs in the said suit was only towards the arrears of rent from 2015 till 01 062017 and when the disputed cheque as per Ex.P1 was issued in the month of August 2019, the cheque amount includes not only the arrears of rent from the year 2015 till 01062017 as stated in the judgment but also from 01062017 till 1.1.2018 . Hence, it can be said that the cheque in question was issued towards part satisfaction of the arrears of rent.
SCCH-24 15 C.C.691/202021. It is the suggestion posed to the PW.1 that since Pw1 is not the owner of the schedule property she is not entitled to recovery the rent amount. But the judgment and decree passed in OS No.4434/2017 itself is the answer to the said question because in the said civil suit the Hon'ble Court has clearly observed that because of the family settlement complainant/ plaintiff no 2 is the owner of the schedule property.
22. During the cross examination of PW.1 it was the suggestion posed to the PW.1 that on 27102016 itself the accused had paid entire arrears of rent to the husband of complainant and it was further suggested that on 27102016 the complainant and her husband had taken Ex.P1 as security from the accused.
23. When as per the case of the accused he had paid entire arrears of rent to the husband of complainant on 27102016, the question of giving the disputed cheque as security does not arise so also the question of filing the civil suit by the complainant and her husband for recovery of arrears of rent from 2015 SCCH-24 16 C.C.691/2020 till filing the suit in the year 2017 would also does not arise.
24. It is the suggestion posed to the PW.1 that on 08112016 the accused had lodged complaint against the complainant and her husband alleging of their misused the Ex.P1. The PW.1 denied the said suggestion. If really, the accused had lodged any such complaint nothing prevented the accused from producing the said document. But the accused till this date has not produced the said document.
25. It is relevant to state here that the accused having posed suggestion to the PW.1that they have received disputed cheque from the accused on 2710 2016 towards security but in the further cross examination have posed suggestion that the complainant and her husband have forcibly taken the disputed cheque from the accused for the reason of accused refused to vacate the schedule premises. The accused is not definite about his own case. At one breath he states that he issued cheque as security and at another breath states that the said cheque was forcibly taken by the complainant from the hands of SCCH-24 17 C.C.691/2020 the accused. Further the accused having contended that the complainant has no right in the schedule property and that he never had given rent to the complainant, but in the reply notice has stated that in order to avoid the payment of income tax by R.V Dinesh i.e the husband of complainant, he had given rent to the complainant. It is further submitted by the accused in the reply notice that the cheque issued to the complainant was honoured in the month of December 2019. If cheque was honored the question of bankers issuing endorsement as Insufficient Fund would not arise and if cheque issued by the accused was honored, then he would have produced his bank statement to substantiate the same . The accused bent upon contended that he had paid entire arrears of rent and there is no arrears of rent due by him. If that being the case the accused could have produced the document to prove that subsequent to the judgment and decree passed in the above suit for ejectment and recovery of arrears of rent, the accused had paid the entire arrears of amount. It is not in dispute that subsequent to the judgment and decree passed in the above suit the complainant and her husband as decree SCCH-24 18 C.C.691/2020 holder had filed execution petition for execution of judgment and decree. If really the accused had complied the order of civil court by paying the arrears of rent, the question of filing the execution petition by the complainant would also not arise. Hence as observed supra, the accused has taken inconsistent defense to adjust his false claim and the defense taken by the accused is contradictory to one another.
26. It is further relevant to state here that throughout the cross examination of PW1, the accused has posed suggestion to the effect that the disputed cheque was issued by him in the year 2016 in favour of the husband of the complainant and he has not issued the disputed cheque in the year 2019. But during the further cross examination of PW.1 the accused has posed suggestion that since accused used to pay the rent amount through DD to the account of the husband of complainant, he has not issued cheque as per Ex.P1 in favour of the husband of the complainant.
27. As per the evidence of complainant the accused is due of nearly Rs.23,00,000/ towards SCCH-24 19 C.C.691/2020 arrears of rent and according to her if decree amount in OS No.4434/2017 is calculated it comes around Rs.23,00,000/.
28. Though the accused in his reply notice and by cross examining the PW.1 has taken the defence that he had paid entire arrears of rent and there is nothing due to the complainant and her husband and that the disputed cheque was issued as security in the year 2016 in favour of the husband of complainant but not in the year 2019 and that the said cheque was not issued in favor of the complainant, but the accused has utterly failed to prove the said defence. He even has not adduced his oral evidence and there by not substantiated the defense and thereby failed to rebut the presumption.
29. Now at this juncture it would be relevant to refer here the judgment rulings relied by the learned counsel for complainant reported in 2015 AIR SCW 3040 between T.Vasanthkumar Vs. Vijayakumar, the Hon'ble Supreme Court held that "Cheque as well as signature on in not disputed by accused presumption SCCH-24 20 C.C.691/2020 U/S.139 would be attracted. Story brought out by the accused that, cheque was given to complainant long back as security to a loan, the loan was repaid, but complainant did not return security cheque is unworthy of credit apart from being unsupported by any evidence".
30. In AIR 2014 SC 2528 between Indian Bank Association Vs Union of India wherein it is held that "Accused cannot simply say "I am innocent" of "I pleaded not guilty".
31. In the back ground of aforesaid observation, when complainant has proved that accused has issued cheque as per ExP1 then presumption under section 139 of NI Act can be raised. Though presumption under section 139 NI Act is rebuttable presumption but accused for the reason stated above failed to probablise the defense and there by rebut the presumption and there by failed to prove how the cheque relating to his account signed by him reached the hands of the complainant. The defense that the cheque was issued as security in favour of the husband in the year 2016 and it was misused by the SCCH-24 21 C.C.691/2020 complainant in the year 2019 was completely without basis. In the light of the discussion herein above, this court is of the considered opinion that complainant has proved that accused has committed offence punishable under Section 138 of Negotiable Instruments Act. Accordingly, I answer point No.1 in the affirmative.
32. POINT No.2 : The Negotiable Instruments Act is a Special Enactment, and the provisions of the Act prevail over the general provisions contained in Code of Criminal Procedure. Therefore, keeping the relevant provisions of the Act in mind the sentence is to be passed. In the light of the reasons on the point No.1, I proceed to pass the following;
ORDER Acting under Sec.255(2) of Cr.PC, the accused is found guilty of the o/p/u/s 138 read with section 142 of NI Act and he is sentenced to pay fine of Rs.10,10,000/ (Rupees Ten Lakh Ten Thousand only) out of which Rs.10,05,000/ shall be paid as compensation to the complainant under SCCH-24 22 C.C.691/2020 Sec.357 of CRPC and Rs.5,000/ shall be payable to the State.
In the event of default in payment within a period of 3 months, the accused shall be convicted to simple imprisonment for a period of 3 months.
The bail bond of accused and that of surety stands cancelled.
Office to furnish the copy of this judg ment, free of cost to the accused.
(Typed by P.O. on laptop, print taken, signed and then pronounced in open court on this the 1st day of August, 2024).
(ROOPASHRI) XXII Addl. SCJ & ACJM Bengaluru.
:ANNEXURE:
LIST OF WITNESSES EXAMINED ON BEALF THE COMPLAINANT P.W.1 : Smt.G.Kumuda SCCH-24 23 C.C.691/2020 LIST OF DOCUMENTS MARKED ON BEHALF OF COMPLAINANT:
Ex.P.1 : Original Cheque given by accused Ex.P.1(a) : Signature of the accused.
Ex.P.2 : Bank endorsement Ex.P.3 : Copy of legal notice Ex.P.4 : Postal Receipt Ex.P.5 : Postal acknowledgement Ex.P.6 : Reply Ex.P.7 : Postal Track consignment
LIST OF WITNESSES EXAMINED BY THE ACCUSED
-NIL-
LIST OF DOCUMENTS MARKED ON BEHALF OF
ACCUSED:
-NIL-
XXII Addl. SCJ & ACJM
Bengaluru.