Bangalore District Court
Smt.Shobha vs Sri.Ananda.C on 15 February, 2020
IN THE COURT OF THE XVIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
PRESENT: MANJUNATHA.K.P, B.A.L, LL.B.
XVIII ADDL.C.M.M., BENGALURU
DATED : THIS THE 15th DAY OF FEBRUARY 2020
C.C.NO: 12678/2017
COMPLAINANT:- Smt.Shobha,
W/o.Late M.S.Srinivas,
Aged about 38 years,
R/at No.33, 6th cross,
Amruth Nagar, "A'Sector,
Sahakaranagara Post,
Bengaluru-560 092.
(Reptd by Shri.TDR, Advocate)
V/s.
ACCUSED:- Sri.Ananda.C.
S/o Chinnagiraiah,
Aged about 39 years,
R/at Avverahalli Village & post,
Kailancha Hobli,
Ramanagara Taluk & District,
And also
R/at No.515, 1st Main, 3rd cross,
S.V.G. Nagar, Moodalapalya,
Nagarabhavi Main Road,
Bangalore-560 072.
(Repted by Sri.PHN., Advocate)
JUDGMENT
The complainant has presented the complaint under Section 200 of Cr.P.C against the accused for the alleged offence punishable under Section 138 of N.I. Act. 2 C.C.12678/2017
2) The brief facts of the complainant's case is that:-
The complainant and accused are known to the complainant since long time and the accused is relative of husband of complainant . During the course of his acquaintance with the complainant the accused approached the complainant during the month of August 2016 and requested to complainant to accommodate hand loan of Rs.2,50,000/- for his urgent financial difficulties and purchasing of cab and sought for the hand loan. Believing his honest, assurance and promise the complainant has lent and paid a sum of Rs.2,50,000/- to the accused, at the time of availing the hand loan the accused assured the complainant that he would return the said loan within six months from the date of the borrowal. After lapse of six months, the accused failed to repay the said amount. When the complainant demanded the accused to repay, he issued a cheque bearing No:733431 dated 22/1/2017 for Rs.2,50,000/- drawn on ING Vysya Bank Ltd., Vijayanagara Branch, Bengaluru. When the complainant presented the cheque for encashment, it was dishonored with an endorsement " Account closed " on 27/2/2017. Thereafter the complainant issued legal notice on 17/3/2017 calling upon the accused to make payment of the dishonoured cheque amount and the said notice was duly served 3 C.C.12678/2017 on the accused. In spite of service of notice, the accused has not complied the same. Hence, complainant is constrained to file this private complaint for the said relief.
3) After receipt of complaint, this court has taken cognizance of the alleged offence and sworn statement of complainant was recorded and process was issued to the accused. He was appeared through his counsel and enlarged on bail and all papers were supplied to him. The substance of plea was recorded and read over and explained in Kannada language to the accused, to which he pleads not guilty and claims to be tried. Hence, posted the case for complainant evidence.
4) In order to prove the complainant case, complainant was examined as P.W.1 and she exhibited Ex.P.1 to Ex.P.9 documents and closed his side. Thereafter, the statement of accused under Section 313 of Cr.P.C is recorded, read over and explained in Kannada language to which accused has denied the entire incriminating evidence which appears against him. Per contra, accused examined as D.W.1 and he exhibited Ex.D.1 document and thereafter posted the case for arguments.
5) Heard the arguments on both sides and perused the entire papers.4 C.C.12678/2017
6) Now, the following points that arises for my consideration are:-
1) Whether the complainant has made out all the ingredients of Section 138 of N.I. Act to prove the guilt of the accused person?
2) What order?
7) My answer to the above points are as follows:-
POINT NO.1 : In the Affirmative.
POINT NO.2 : As per final order, for the following:-
REASONS
8) POINT NO.1:- As the brief facts of the complainant's case as already stated above, hence I need not repeat the same facts once again to avoid the repetition of the same facts.
9) To bring home guilt against the accused, the complainant/prosecution must prove the following ingredients of Section 138 of N.I. Act.
i) That there is a legally enforceable debt.
ii) That the cheque was drawn from account of Bank for discharge in whole or in part of any debt or other liability which presuppose a legally enforceable debt;
iii) Cheque so issued had been returned due to insufficiency of funds.5 C.C.12678/2017
10) To prove the aforesaid ingredients of Section 138 of N.I. Act, the complainant filed her chief affidavit and was examined as P.W.1. In her chief examination affidavit she reiterated the entire averments of the complaint. In support of her case she has exhibited Ex.P.1 to Ex.P.9 documents. Ex.P.1 is the cheque, Ex.P.2 is the Bank endorsement, Ex.P.3 legal notice, Ex.P.4 Postal receipt and Ex.P.5 complaint given to postal Department, Ex.P.6 reply notice, Ex.P.7 RPAD cover, Ex.P.8 cheque , Ex.P.9 Bank endorsement.
11) On careful perusal of the entire oral and documentary evidence, the admitted facts are that there is no dispute that Ex.P.1 cheque is belongs to the accused and it was dishonoured as per Ex.P.2 endorsement and notice has been issued as per Ex.P.3 and it was duly served on accused and reply also issued by the accused as per Ex.P.6. Per contra, accused examined as D.W.1 and in his evidence he stated before the court that in the year 2010 he lost seven cheques, for which he made complaint as per Ex.D.1 and there is no debts between the complainant and accused and prays to dismiss the case. To substantiate the accused case he exhibited Ex.D.1 document 6 C.C.12678/2017
12) During the course of arguments complainant counsel Sri. TDR vehemently argued that complainant has proved her case by way of oral and documentary evidence and admissions in the mouth of D.W.1 and prays to convict the accused. Per contra, Sri. PHN resisted the said arguments and argued that absolutely there is no debts between the complainant and accused and Ex.P.1 cheque has been lost in the year 2010 and accused has also made complaint to the Upperpet Police station as per Ex.D.1 document. The said cheque has misused by the complainant and prays to acquittal of the accused .
13) On careful perusal of the entire oral and documentary evidence and arguments addressed by the counsels, the admitted facts are that there is no dispute that cheque is belongs to the accused and it was dishonoured as per Ex.P.2 endorsement and notice has been issued as per Ex.P.3 and it was duly served on accused and reply also issued by the accused as per Ex.P.6. Further, to substantiate the complainant case she exhibited Ex.P.9 bank endorsement and Ex.P.8 one cheque issued in the name of B.V.Shivashankar Reddy dated 13/7/2010. Further, on perusal of the Ex.D.1 document the said document containing date of 8/7/2010 in the said complaint the present cheque No. 733431 and Ex.P.8 cheque No. 733435 7 C.C.12678/2017 numbers also mentioned . At the stage it is necessary to reproduce the admissions of D.W.1 for the sake of convenience N £Á£ÀÄ mÁåQì qÉçʪÀgï, zÀÆgÀÄzÁgÀgÀÄ £À£ÀUÉ ¸ÀA§A¢üPÀgÁUÀ¨ÉÃPÀÄ , zÀÆgÀÄzÁgÀgÀÄ £À£Àß ºÉAqÀwUÉ CwÛUÉ DUÀ¨ÉÃPÀÄ JAzÀgÉ ¸Àj . £Á£ÀÄ 2005jAzÀ mÁåQì qÉçʪÀgï DV PÉ®¸À ªÀiÁqÀÄwÛzÉÝÃ£É ªÉÆzÀ®Ä mÁåQì Nr¸ÀÄwÛzÉÝ JAzÀgÉ ¸Àj .
¤¦1 ZÉPÀÄÌ £À£Àß SÁvÉAiÀÄzÀÄ ªÀÄvÀÄÛ ¸À» ¸ÀºÀ £À£ÀßzÀÄ. £À£Àß ªÉÄÃ¯É ¨ÉÃgÉ ¨ÉÃgÉ £Áå.UÀ¼À°è PÉøÀÄUÀ¼ÀÄ EªÉ JAzÀgÉ ¸Àj . ²ªÀ±ÀAPÀgï gÉrØ J£ÀÄߪÀªÀgÀÄ ¹¹25230/2012gÀAvÉ PÉøÀÄ ºÁQzÁÝgÉ JAzÀgÉ ¸Àj. ¸ÀzÀj PÉøÀ£ÀÄß ¢B5.11.2015gÀAzÀÄ gÁfà ªÀiÁrPÉÆArzÀÝ JAzÀgÉ ¸Àj . CzÉà jÃw 23£Éà J¹JAJA £Áå.zÀ°è «.Dgï.gÁªÀÄÄ J£ÀÄߪÀªÀgÀÄ ¹¹ £ÀA.17241/2016gÀAvÉ PÉøÀÄ ºÁQzÁÝgÉ JAzÀgÉ ¸Àj ¢B5.7.2018 gÀAzÀÄ ¸ÀzÀj PÉøÀ£ÀÄß gÁfà ªÀiÁrPÉÆArzÉÝ JAzÀgÉ ¸Àj .
2017gÀ°è F PÉù£À £ÉÆÃn¸ï eÁjAiÀiÁVzÉ £ÉÆÃn¸ï eÁjAiÀiÁzÀ £ÀAvÀgÀ £Á£ÀÄ zÀÆgÀÄzÁgÀgÀ «gÀÄzÀÞ AiÀiÁªÀÅzÉà PÀæªÀÄ vÉUÉzÀÄPÉÆAr®è ¸ÁQë ªÀÄÄAzÀĪÀgÉzÀÄ j¥ÉíÊ PÉÆnÖzÉÝÃ£É JAzÀÄ ºÉüÀÄvÁÛgÉ zÀÆgÀÄ PÉÆqÀ®Ä ªÀÄvÀÄÛ ¦¹Dgï ºÁPÀ®Ä vÉÆAzÀgÉ EgÀ°®è So, on perusal of the aforesaid admissions of D.W.1 it is clear that Ex.P.1 cheque is belongs to him and signature also pertaining to him and he also admitted that about the filing of the several cases against him by the different persons and he also admitted that he got compromised the case which was filed by Shivashankar Reddy in CC.25230/2012 and also admitted 8 C.C.12678/2017 that service of notice on accused and he also admitted that he has not taken any action against the complainant for misuse of cheques etc., Admittedly, the case those filed by the Shivashankar Reddy V.B on Ex.P.8 has been compromised by the accused and Ex.P.8 cheque number also mentioned in Ex.D.1 document and present case cheque number also mentioned in Ex.D.1 complaint. Admittedly to substantiate the Ex.D.1 document , accused has not placed either FIR nor charge sheet nor any other proceedings which have been initiated by the Sub-Inspector of Upparpet police station an Ex.D1 document. So, in the absence of other corroborative materials, it is not possible to believe the Ex.D1 alone document as argued by the accused counsel. On the other hand, the admissions of the D.W.1 corroborates the complainant case is that Ex.P1 cheque is belongs to the accused and it was dishonoured as per Ex.P.2 and notice has been issued as per Ex.P.3 and it was duly served on accused and reply also issued by the accused. Of course, P.W.1 also admitted the following points in her cross-examination they are For purpose of cab purchase I paid the amount. Accused has purchased the car. I do not know the date on which he has purchased the car. I paid the amount in my medical store by cash and I am unable to say the denomination.
9 C.C.12678/2017
£Á£ÀÄ DgÉÆæUÉ ºÀt PÉÆqÀĪÁUÀ AiÀiÁªÀ ¨ÁåAPï¤AzÀ «xï qÁæ ªÀiÁrzÉÝãɪÀÄä JAzÀgÉ ¸ÁQë CªÁvÀÄÛ ºÀt £ÀUÀzÀÄ EvÀÄÛ JAzÀÄ ºÉüÀÄvÁÛgÉ ªÉÄrPÀ¯ï ±Á¥ï£À°è JµÀÄÖ ºÀt vÉUÉ¢AiÀĪÀÄä JAzÀgÉ ¸ÁQë ¤RgÀªÁV ºÉüÀ®Ä DUÀĪÀÅ¢®è JAzÀÄ ºÉüÀÄvÁÛgÀà £Á£ÀÄ MqÀªÉAiÀÄ£ÀÄß CqÀªÀiÁ£À ªÀiÁr gÀÆ.5 ®PÀë ,a®ègÉà ºÀt ¥ÀqÉ¢zÉÝ CzÀgÀ°è DgÉÆæUÉ JµÀÄÖ ºÀt PÉÆmÉÖ ªÀÄvÀÄÛ ªÉÄrPÀ¯ï ±Á¥ïUÉ JµÀÄÖ ºÀt vÉÆÃqÀV¹zÉ JAzÀgÉ ¸ÁQë J¯Áè ºÀt EvÀÄÛ DgÉÄÁæUÉ gÀÆ.2.50.000/- ºÀt PÉÆmÉÖ JAzÀÄ ºÉüÀÄvÁÛgÉ amï ºÀtzÀ §UÉÎ ªÀÄvÀÄÛ CqÀªÀiÁ£À ªÀiÁrzÀ §UÉÎ zÁR¯É PÉÆqÀÄvÉÛÃ£É £À£Àß ªÉÄrPÀ¯ï ±ÀÁ¥ï §UÉÎ zÁR¯É PÉÆqÀ§ºÀÄzÀÄ ¤¦1gÀ°è DgÉÆæAiÀÄ ¸À» ©lÄÖ G½zÀ §gÀªÀuÉUÉ DgÉÆæAiÀÄzÀ®è JAzÀgÉ ¸ÀjAiÀÄ®è ¤¦1gÀ°è DgÉÆæAiÀÄ ¸À» ªÀÄvÀÄÛ EvÀgÉ §gÀªÀtôUÉAiÀÄ EAPÀÄ ªÀåvÁì¸À EzÉ JAzÀgÉ ¸Àj The said admissions indicates to the court that complainant has not known the date on which accused has purchased the car and she has no impediment to produce the mortgage documents and she also obtained Rs.3,75,000/- with the Gokulam Chits Pvt Ltd and there is a difference between accused signature and other handwritings ink on Ex.P.1 cheque and she also admitted that about given of complaint by the accused about lost of Ex.P.1 cheque, but the said admissions only confers to the court that about given of Ex.D.1 complaint by the accused on point of lost of Ex.P.1 cheque and other cheques. But the said document as stated supra, needs to 10 C.C.12678/2017 be corroboration. Further, accused has not taken any action against the complainant for misuse of his lost cheques and also he has not placed any substantiate documents as well as corroborative documents to believe the Ex.D1 document i.e, either FIR nor charge sheet, mahazar nor other documents . So, in the absence of said materials Ex.D.1 alone is not sufficient to disbelieve the entire case of the complainant. Further, to substantiate the complainant case she also placed one bank statement along with memo dated 9/10/2019. The said bank statement indicates to the court that about credit and withdrawl of several amounts in the account of complainant. So, the said bank statement indicates to the court that about the source of income and transaction of complainant. Accordingly, any amount of arguments addressed by the accused counsel as stated supra have no merits, because admittedly the case those filed by the Shivashankar Reddy on Ex.P.8 is compromised by the accused. The said case cheque number is also mentioned in Ex.D1 document. The said admissions indicates to the court that definitely accused has issued Ex.P.1 cheque in favour of complainant knowingly after account closed. It is nothing but a conduct to deceive the complainant from the amount those received by the accused. So, the materials placed as per Ex.P.1 to 9 and oral evidence of P.W.1 having in corroborative manner 11 C.C.12678/2017 about existence of debts between the complainant and accused and issuance of cheque by the accused to discharge the legally recoverable debts. But surprisingly the said Ex.P.1 cheque was came to be dishonoured as per Ex.P.2 endorsement and notice has been issued and it was duly served on accused and reply also issued by the accused as per Ex.P.6. Per contra, except taking of some independent defence that he lost the cheque etc he has not proved the said fact before the court. So, in the absence of proof of said fact merely Ex.D1 complaint given to the police station is not sufficient to disbelieve the complainant case .Accordingly I am of the considered opinion that accused is liable to be convicted for the offence punishable under Section 138 of N.I. Act and I answer this Point No.1 in the affirmative.
14) POINT NO.2:- In view of my discussions as stated supra and my findings on Point No.1., I proceed to pass the following.
ORDER
Acting under Section 255 (2) of Cr.P.C,
accused is convicted for the offence
punishable under Section 138 of Negotiable Instruments Act 1881. The accused is sentenced to pay fine of Rs.4,60,000/-
12 C.C.12678/2017(Rupees Four Lakhs Sixty Thousand Only) and in default shall undergo simple imprisonment for a period of Two (2) years.
Acting under Section 357 (1) (b) of
Cr.P.C, out of the fine amount the
complainant is entitled for Rs.4,50,000/-
(Rupees Four Lakhs Fifty Thousand Only) fine amount as compensation.
Acting under Section 357 (1) (a) of Cr.P.C, the balance amount of Rs.10,000/- (Rupees Ten Thousand Only) is defrayed to the State for the expenses incurred in the prosecution.
(Dictated to the Stenographer, transcribed by her, corrected, revised and signed then pronounced by me in the open court on this the 15th day of February 2020 ).
(MANJUNATHA.K.P) XVIII A.C.M.M., BENGALURU.
ANNEXURE
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : Shobha.
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1 : Cheque.
Ex.P.1(a) : Signature of the accused.
Ex.P.2 : Bank endorsement.
Ex.P.3 : Office copy of demand notice.
Ex.P.4 : Postal receipt.
Ex.P.5 : complaint given Postal Dept
Ex.P.6 : Reply notice
13 C.C.12678/2017
Ex.P.7 : RPAD cover
Ex.P.8 : Cheque
Ex.P.9 : Bank endorsement.
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:-
D.w1 : Anand
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED: -
Ex.D.1 : Complaint
XVIII A.C.M.M., BENGALURU.
15/2/2020
Judgment
(Judgment pronounced in Open Court vide a separate Order) 14 C.C.12678/2017 ORDER Acting under Section 255 (2) of Cr.P.C, accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act 1881. The accused is sentenced to pay fine of Rs.4,60,000/- (Rupees Four Lakhs Sixty Thousand Only) and in default shall undergo simple imprisonment for a period of Two (2) years.
Acting under Section 357 (1) (b) of Cr.P.C, out of the fine amount the complainant is entitled for Rs.4,50,000/- (Rupees Four Lakhs Fifty Thousand Only) fine amount as compensation.
Acting under Section 357 (1) (a) of Cr.P.C, the balance amount of Rs.10,000/- (Rupees Ten Thousand Only) is defrayed to the State for the expenses incurred in the prosecution. The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
XVIII A.C.M.M., BENGALURU.
15 C.C.12678/2017