Bangalore District Court
Ashok Kumar Baburao Sheelavath vs Shri Avinash on 14 January, 2019
C.C.NO.18896/2017
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
Present: Smt. HEMA PASTAPUR
B.A., LL.B.,
XXII Addl. Chief Metropolitan Magistrate,
Bengaluru.
Dated this the 14th day of January 2019
C.C.No.18896/2017
Judgment under section 355 of Code of Criminal Procedure
Complainant : Ashok Kumar Baburao Sheelavath,
s/o Baburao Sheelvant,
Company Employee,
Aged about 38 years,
Residing at No.748,
Sri Venkateshwara Nilaya,
13th cross, Chandra Layout,
Bengaluru - 560 072.
(By Shri Prabhugouda. V. B, Advocate)
V/s
Accused : Shri Avinash,
s/o Shivaraj Poladas,
Gym trainer,
Aged about 26 years,
Residing at near Mahadev Temple,
Koliwada, Humnabad Taluk,
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C.C.NO.18896/2017
Bidar District.
(By Shri Chandrashekar. P. Patil, Advocate)
JUDGMENT
That, the complainant has filed the private complaint under section 200 of Code of Criminal Procedure, for taking action against the accused for the offence punishable under section 138 of the Negotiable Instruments Act.
That, the brief facts of the present case are as under:-
1. That, the complainant and accused are known to each other since five years and the accused in the month of June 2016 had requested the complainant for advancing him a sum of Rs.2,00,000/- to invest the same in gym equipments and the complainant considering the said needs of the accused on 10.07.2016 had advanced him the said amount in cash. That, the accused at the time of availing the said loan amount though, had agreed to return the same within six months from the date of its availment but, failed to do so and on persistent demands made by the complainant issued in favour of the complainant a cheque bearing No.000004 dated:-15.03.2017 for a sum of Rs.2,00,000/- 2
C.C.NO.18896/2017 drawn on HDFC Bank, Humnabad. That, the complainant had presented the said cheque for encashment in State Bank of India, Chandralayout branch, Bengaluru and on 17.03.2017 the said cheque was returned with the shara as 'Funds Insufficient'. That, the complainant for the aforesaid acts of the accused on 03.04.2017 had issued the legal notice to him and the said notice was duly served upon him. That, as the accused in spite of receiving the said notice failed to comply with the terms of the same the complainant has constrained to knock the doors of justice.
2. That, on complaint being lodged by the complainant, this court registered the case in concerned register and took the cognizance for the offence punishable under section 138 of the Negotiable Instruments Act and thereafter, recorded the sworn statement of the complainant and after satisfying with the materials placed on record registered the case against the accused in Register No. III and issued summons to him. That, in pursuance of said summons the accused appeared before this Court through his learned counsel and he was enlarged on bail. That, the substance of accusation 3 C.C.NO.18896/2017 of the accused has recorded and read over him in language known to him and he has not pleaded guilty and claimed to tried. That, after completion of complainant side evidence the statement of the accused as contemplated under section 313 of Code of Criminal Procedure, has recorded and read over him in language known to him and he denied all incriminating evidence appearing against him.
3. That, I have perused the materials placed on record. That, the accused has submitted his written arguments and I have gone through the same. That, the following points arise for My consideration and determination:-
1. Whether the complainant has proved that, the accused to discharge his legally enforceable debt had issued in his favour a Cheque bearing No.000004 dated:-15.03.2017 for a sum of Rs.2,00,000/- drawn on HDFC Bank, Humnabad?
2. Whether the complainant has further proved that, the said cheque was dishonoured as 'Funds Insufficient' and thereby the accused has committed the offence punishable under section 138 of the Negotiable Instruments Act? 4
C.C.NO.18896/2017
3. Whether the complainant has complied with the provisions of section 138(b) of the Negotiable Instruments Act?
4. What order?
4. That, the complainant to substantiate his aforesaid contentions has deposed himself as PW1 and got marked the documents at EXs.P1 to 5 and closed his side.
That, the accused to substantiate his contentions has deposed himself as DW1 and not adduced any documentary evidence on his behalf and closed his side.
5. That, My answer to the aforesaid points are as under:-
Point No.1 :- In the AFFIRMATIVE Point No.2 :- In the AFFIRMATIVE Point No.3 :- In the AFFIRMATIVE Point No.4 :- As per the final order for the following:-
REASONS
6. Point No.1:- It is specific contention of the complainant that, the accused in the month of June 2016 had requested him for advancing him a sum of Rs.2,00,000/- to invest the same in gym equipments and considering the 5 C.C.NO.18896/2017 said needs of the accused on 10.07.2016 he advanced him the said amount in cash.
7. It is pertinent to note here that, the accused has taken a specific defenses that he do not know the complainant, he had not availed any loan amount from him and the complainant is having no capacity to pay him a sum of Rs.2,00,000/-.
8. It is significant to note here that, the burden lies upon the complainant to probabalise that on 10.07.2016 he was possessed with him a sum of Rs.2,00,000/- and he advanced the same to the accused in cash. It is pertinent to note here that, the complainant in his cross - examination in page No.1 has specifically deposed that he is working in a Blufer International Company as a South Incharge. It is pertinent to note here that, the complainant in his cross - examination in page No.5 has specifically deposed from his savings he paid a sum of Rs.2,00,000/- to the accused in cash. It is pertinent to note here that, the accused though, has cross - examined the complainant in length but, not elicited anything about his source. It is pertinent to note here that, from the said 6 C.C.NO.18896/2017 conduct of the accused it clearly appears that on 10.07.2016 the complainant was possessed with him a sum of Rs.2,00,000/-.
It is pertinent to note here that, the accused as stated above has taken a defense that he had not availed any loan amount from the complainant but, in contrary to his said defense in cross - examination of the complainant at page No.2 makes a suggestion that there was no impediment for advancing the said amount to him in cheque. It is significant to note here that, the said suggestion of the accused itself reveals that he known the complainant and on 10.07.2016 had availed from him a sum of Rs.2,00,000/- in cash. It is significant to note here that, the said suggestion of the accused itself has devoid the defenses put forth by him. It is pertinent to note here that, the complainant has convincingly proved the existence of legally recoverable debt.
9. It is pertinent to note here that, the complainant has specifically contended that the accused to discharge his legally enforceable debt had issued in his favour a Cheque 7 C.C.NO.18896/2017 bearing No.000004 dated:-15.03.2017 for a sum of Rs.2,00,000/- drawn on HDFC Bank, Humnabad - EX.P1.
10. It is pertinent to note here that, the accused has taken a specific defenses that he and one Shri Sagar Jaji are close friends and he used to take from said Jaji Rs.5,000/- to 10,000/- and once he availed from him a sum of Rs.50,000/- and at the time of advancing him said amount of Rs.50,000/- the said Jaji had obtained from him his two blank unsigned cheques and in said cheques, one cheque was bearing No.00004 drawn on HDFC Bank, Humnabad.
11. It is significant to note here that, the burden lies upon the complainant to substantiate that the accused to discharge his legally enforceable debt had issued in his favour the EX.P1. It is pertinent to note here that, the accused as stated above has taken a specific defense that ones he had availed a sum of Rs.50,000/- fro said Sagar Jaji. It is pertinent to note here that, the accused has not specifically mentioned when he availed the said amount from the said Sagar Jaji and to substantiate his aforesaid contention has not produced before the Court any 8 C.C.NO.18896/2017 document. It is pertinent to note here that, mere plausible explanation is not sufficient for rebuttal evidence but, proof of explanation is necessary. It is pertinent to note here that, in absence of any cogent, reliable and material evidence the said contention of the accused cannot be accepted and believed.
It is pertinent to note here that, the accused as stated above has taken a further defense that the said Sagar Jaji while advancing him a sum of Rs.50,000/- had obtained from him his two blank and unsigned cheques and in said cheques, one cheque was bearing No.00004 drawn on HDFC Bank, Humnabad. It is significant to note here that, the accused in contrary to his said version in his cross - examination in page No.5 at 10th line has specifically deposed that he cannot remember the numbers of his said two cheques. It is pertinent to note here that, no one can probe hot and cold at the same time. It is significant to note here that, the evidence of the accused has completely devoid the defense put forth by him. It is pertinent to note here that, from the said evidence of the accused it can be 9 C.C.NO.18896/2017 clearly gathered that to discharge his legally enforceable debt he had issued in favour of the complainant the EX.P1.
It is significant to note here that, the accused has taken a further specific defense that he had not signed on said cheques and the complainant had forged his signature on EX.P1. It is pertinent to note here that, if at all the complainant had forged the signature of the accused on EX.P1 then the question arises why the accused has not taken any appropriate action against him?. It is significant to note here that, the conduct of the accused plays a vital role. It is pertinent to note here that, from the said conduct of the accused an adverse inference can be drawn that as he had issued the EX.P1 in favour of the complainant he had not taken any action against him.
It is significant to note here that, if at all the accused had not signed on EX.P1 as alleged by him then the questions arise that why the accused has not made any attempt for referring the EX.P1 for FSL and also why he has not summoned the concerned Bank Manager?. It is pertinent to note here that, at this juncture the conduct of the 10 C.C.NO.18896/2017 accused plays a vital role and the said conduct of the accused clearly reveals that as he had issued the EX.P1 in favour of the complainant he had not made any attempt for referring the EX.P1 for FSL and also not summoned the said Bank Manager. It is pertinent to from entire evidence of the accused and from his said conduct it clearly appears that to discharge his legally enforceable debt he had issued in favour of the complainant the EX.P1. It is pertinent to note here that, in view of My above all findings and without much discussion I hold that, the complainant with all preponderance of probabilities has proved that the accused to discharge his legally enforceable debt had issued in his favour the EX.P1. In view of the same, point No.1 is answered in the AFFIRMATIVE.
12. Point No.2:- It is specific contention of the complainant that, he presented the EX.P1 for encashment in State Bank of India, Chandralayout branch, Bengaluru and on 17.03.2017 the EX.P1 was returned with the shara as 'Funds Insufficient'.
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C.C.NO.18896/2017 It is pertinent to note here that, the complainant to substantiate his aforesaid contentions in his evidence has got marked the Cheque return memo issued by the said Bank at EX.P2. It is pertinent to note here that, from perusal of EX.P2 it appears that the EX.P1 was dishonoured as 'Funds Insufficient'.
13. It is to be noted here that, at this juncture I have gone through the provisions of section 146 of Negotiable Instruments Act and which contemplates as under:-
Bank's slip prima facie evidence of certain facts:-
The Court shall, in respect of every proceeding under this Chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has, been dishonoured, presume the fact of dishonor or such cheque, unless and until such fact is disproved.
It is to be noted here that, in the instant case the accused has failed to rebut the presumptions envisaged in section 146 of the Negotiable Instruments Act. It is to be noted here that, in view of My above findings and without 12 C.C.NO.18896/2017 much discussion I hold that, complainant has convincingly proved that the accused has committed the offence punishable under section 138 of Negotiate Instruments Act. In view of the same, point No.2 is answered in the AFFIRMATIVE.
14. Point No.3:- It is pertinent to note here that, the accused in cross - examination of the complainant has taken a specific defense that he had not received the Legal notice issued by the complainant.
15. It is pertinent to note here that, the complainant has specifically contended that 03.04.2017 he issued the legal notice to him and the said notice was duly served upon him. It is pertinent to note here that, the complainant to substantiate his aforesaid contentions has got marked the Legal notice issued by him to the accused dated:-03.04.2017 at EX.P3, two Postal receipts at EX.P4 and Track consignment at EX.P5.
16. It is significant to note here that, the accused as stated above has taken a defense that he had not received the Legal notice issued by the complainant. It is significant to 13 C.C.NO.18896/2017 note here that, the accused has not disputed his address mentioned in EX.P3. It is pertinent to note here that, the said conduct of the accused clearly reveals that the complainant had dispatched the EX.P3 to his correct address. It is pertinent to note here that, in view of My findings and without much discussion I hold that, the complainant has complied with the provisions of section 138(b) of the Negotiable Instruments Act. In view of the same, point No.3 is answered in the AFFIRMATIVE.
17. Point No.4:- That, as discussed on points No.1 to 3, I proceed to pass the following:-
ORDER That, acting under section 255(2) of Code of Criminal Procedure, the accused is convicted for the offence punishable under section 138 of the Negotiable Instruments Act.
That, the accused shall deposit a fine amount of Rs.2,00,000/- and if he fails to deposit the said fine amount, he shall undergo a simple imprisonment two months. 14
C.C.NO.18896/2017 That, out of total fine amount of Rs.2,00,000/-, Rs.1,98,000/- shall be paid to the complainant as a compensation as provided under section 357(1) of Code of Criminal Procedure and Rs.2,000/- shall be remitted to the State Exchequer.
That, the office is to furnish the free copy of this Judgment to the accused forthwith. (Typed and corrected by Me and then pronounced in the open Court on this 14th day of January 2019) (Hema Pastapur) XXII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of witnesses examined on behalf of the complainant [ PW1 : Ashok Kumar Baburao Sheelavath s/o Baburao Sheelavant.
List of documents marked on behalf of the complainant EX.P1 : Original Cheque;
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C.C.NO.18896/2017
EX.P1(a) : Signature of the accused;
EX.P2 : Cheque return memo;
EX.P3 : Legal notice dated:-03.04.2017;
EX.P4 : Two Postal receipts and
EX.P5 : Track consignment.
List of witnesses examined on behalf of the accused DW1 : Avinash s/o Shivaraj Poldas.
List of documents marked on behalf of the accused
- Nil -
XXII Addl. Chief Metropolitan Magistrate, Bengaluru.
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