Bangalore District Court
To Lend Him Rs.5 vs Agreed To Pay Interest @ 18% P.A on 6 November, 2015
SCCH-14 1 CC No.15667/2013
IN THE COURT OF THE XL ADDL.CHIEF METROPOLITAN
MAGISTRATE, BANGALORE CITY.
SCCH-14
PRESENT: Basavaraj Chengti., B.Com.,LL.B.,(spl)
XL ACMM,
BANGALORE.
C.C.No.15667/2013
Dated this the 6th day of November 2015
1. Sl.No. of the case: C.C. No.15667/2013
2. The date of Institution : 10.05.2013
3. The date of commencement
of the evidence: 11.07.2014
4. Name of the Complainant: E.MUNIYAPPA
S/o Eerasandrappa
Aged about 45 years
R/at No.2415,
18th main road,
(Sy no.34, Govinayakanahalli)
Kumaraswamy Layout,
2nd stage, ISRO Layout main road,
J.P Nagar Post, Bangalore-78.
(By pleader Sri BR)
5. Name of the Accused: SOMASHEKAR.M.M
S/o Mallappa
Aged about 45 years,
# 160, 6th cross,
Nela Maheswari Temple main road,
T.Dasarahalli, Bangalore-59.
(By pleader Sri MSM)
6. The offence complained of or
proved: Under Sec.138 of N.I. Act.
7. Plea of the accused on his
examination: Pleaded not guilty
8. Final Order : Accused is convicted
9. Date of such order : 06.11.2015
SCCH-14 2 CC No.15667/2013
JUDGMENT
This is a complaint filed by the complainant against the accused for the offence punishable U/Sec.138 of Negotiable Instruments Act (hereinafter called the Act).
2. Brief averments of the complaint are as under:
The complainant, the accused and one Anand are known to each other. The accused approached the complainant, representing that he was doing the business of vegetable vending through HOPCOMS and he suffered loss in the year 2010 and in order to meet his urgent requirement, he borrowed money from said Anand who was pressing for repayment for his urgent requirement and in order to repay the debt of said Anand, the accused requested the complainant to lend him Rs.5,00,000/-. The complainant has expressed his inability to arrange Rs.5,00,000/- and he has agreed to lend whatever money he had by that time and would give cheque to the accused, but the accused requested that presenting the cheque and clearness in the bank would take considerable time and hence, he has requested to pay money by cash. Therefore, the complainant has immediately made arrangement to withdraw money from his bank and also the cash he had with him, he has paid a sum of Rs.3,90,000/- on 18.05.2012 in cash in presence of Anand. After receiving the amount, the accused issued a cheque bearing No.601440 dt.27.03.2013 for Rs.3,90,000/- drawn on South Indian Bank Ltd., Malleswaram Branch, Bangalore-03. Since, the complainant and the accused are friends and said Anand is a relative of the accused. All are well known to each other, the complainant did not insist for interest, however the SCCH-14 3 CC No.15667/2013 accused agreed to pay interest @ 18% p.a., in the event of delay in making payment after 27.03.2013. The accused has requested to the complainant to present the said cheque on or after its due date. The complainant has presented the said cheque on 27.03.2013 through his banker i.e., The Janatha Co-Op Bank, Malleshwaram, Bangalore, but the cheque was returned dishonored on 28.03.2013 with reason "Account closed". Therefore, the complainant got issued a legal notice to the accused on 09.04.2013, calling upon him to pay the amount of cheque. The notice was duly served upon the accused. After service of notice, the accused has sent reply dt.25.04.2013 by taking baseless and false defence. Inspite of service of notice, the accused has not paid the amount of cheque and thereby committed an offence punishable U/s 138 of the Act. Hence, the complainant has filed this complaint and sought for convicting the accused and punishing him as per law.
3. Cognizance of offence was taken on the basis of complaint and PCR No.10576/2013 was registered. Then, sworn statement of the complainant was recorded. After perusing records, the Court found sufficient material to issue process for the offence punishable U/s 138 of the Act and hence, this criminal case came to be registered and process against the accused was issued for the offence punishable U/s 138 of the Act. Initially, the complaint was presented before 13th ACMM Bangalore and it was made over to 19th ACMM Bangalore. Later, the case came to be transferred to this Court. In pursuance of the summons, the accused has appeared before Court through his counsel and was enlarged on SCCH-14 4 CC No.15667/2013 bail. The substance of accusation was read over and explained to the accused. He has pleaded not guilty and hence, the case has seen the stage of trial.
4. During the trial, the complainant has examined himself as PW.1 and got marked documents as Ex.P1 to Ex.P9. Then, statement of the accused was recorded. The accused has examined himself as DW.1 and examined two witnesses as DW.2 and 3. He got marked documents as Ex.D1 to 10.
5. Heard the arguments. The counsel for the accused has filed written argument. I have gone through the said written arguments and perused the records.
6. Now the points arise for my consideration are:
1. Whether the complainant has proved that the accused has issued Ex.P-1 cheque in his favour towards discharge of legally enforceable debt without maintaining sufficient balance in his bank account and failed to pay the amount of cheque within time inspite of service of demand notice?
2. What order?
7. My findings are:
POINT NO.1 : In affirmative.
POINT NO.2 : As per final order.
REASONS
8. POINT NO.1: It is the case of the complainant that he lent Rs.3,90,000/- to the accused on 18.05.2012 and in turn, the accused has issued a cheque bearing No.601440 dt.27.03.2013 for SCCH-14 5 CC No.15667/2013 Rs.3,90,000/- drawn on The South Indian Bank Ltd., Malleswaram Branch, Bangalore in his favour towards discharge of debt, but the said cheque came to be dishonoured on 28.03.2013 and inspite of service of demand notice, the accused has failed to pay the amount of cheque and thereby committed the offence punishable U/Sec.138 of the Act. In order to prove his case, the complainant has examined himself as PW.1 and got marked documents namely cheque, bank endorsement, legal notice, reply notice, pass book, notice of HOPCOMS, enquiry report, office order, and blank cheque for Rs.20,000/- as Ex.P1 to 9. Among these documents mentioned above, Ex.P6 to 9 are got marked during cross examination of DW.1.
9. The accused has denied all incriminating evidence appearing against him as false during statement. However, he has admitted the service of demand notice and contended that he is not liable to pay the amount of cheque to the complainant. He has entered his defence and examined himself as DW.1 and examined 2 witnesses as DW.2 and 3. He has got marked documents namely endorsement, letter of Bank, notice to Anand, postal receipt, acknowledgment, copy of complaint, acknowledgment, copy of office order, attendance particulars of the complainant and of Anand as Ex.D1 to 10. Among the said documents, Ex.D9 and 10 are produced by DW.3.
10. PW.1 Muniyappa is the complainant and he has deposed as per the averments of the complaint. In cross- examination, he has stated that the accused was introduced to him by his friend Anand, that the accused approached to him for SCCH-14 6 CC No.15667/2013 loan about two months prior to 18.05.2012, that he paid Rs.3,90,000/- to the accused on 18.05.2012 at about 06.30 P.M., in the house of Anand situated at 2nd stage of BTM Layout, that it was a Friday, that he gave him two bundles of Rs.1,000/- and four bundles of Rs.500/- and out of one bundle of Rs.500/-, there was short of Rs.10,000/-, that some of the bundles have bank seal, that Anand was there at the time of transaction, that the accused issued him cheque on the same day, that the cheque was filled by him as per the instruction of the accused and thereafter he signed it. He has denied the suggestions that he does not know the accused that there was no chance for the accused to issue Ex.P1 cheque in his favour as he lost it about 20 months back, that the cheque is misused by him and Anand to file this complaint. Looking to the cross-examination of PW.1, it can be said that the accused has denied his acquaintance with the complainant as well as the alleged money transaction with him and issuance of cheque in question. However, he has admitted that the cheque in question belongs to him and it bears his signature. He has put forward a specific defence that he had kept the cheque in question duly signed in his purse on 10.08.2011 with an intention to deliver it to 2- wheeler dealer, that he lost his purse in RMC yard, that he lodged complaint regarding same on the very day and closed his bank account on the next day. He has further contended that one Anand is his relative and he approached said Anand for financial assistance of Rs.65,000/- who obtained his blank signed cheque assuring him to arrange the same, but he failed to arrange the amount, that he got issued notice dt.25.03.2014 to Anand SCCH-14 7 CC No.15667/2013 demanding him to return the cheque, that the said Anand started threatening him over phone and therefore, he filed complaint against Anand on 02.04.2014, that after filing of said complaint by him, the said Anand got filed this case by misusing Ex.P1 cheque. But, the accused has not made clear during cross-examination of PW.1 as to how the cheque at Ex.P1 reached the hands of Anand and of the complainant.
11. Ex.P1 is the cheque in question. Admittedly, it is drawn on the account of the accused maintained in South Indian Bank. The complainant is the payee named in the cheque. It is dated 27.03.2013 for Rs.3,90,000/-. As per Sec.118 of the Act, it is deemed to be drawn on 27.03.2013. Ex.P2 is bank memo dt.28.03.2013 under which cheque at Ex.P1 was dishonoured for reason "Account closed". There was no delay in presenting the cheque for encashment. The reason for its dishonour also attracts penal provisions of Sec.138 of the Act. Ex.P3 is copy of legal notice and Ex.P4 is reply given by the accused to such notice. These two documents disclose that the complainant has got issued legal notice to accused on 09.04.2013 calling upon him to pay the amount of cheque. The said notice was within 30 days from the date of dishonour of cheque. It was served on the accused and such service is admitted by the accused expressly and impliedly. Ex.P4 reply confirms the service of notice. The complainant has not produced postal receipt or acknowledgment. Hence, it is deemed that the notice was served on the accused after 3 days ie., on or about 12.04.2013. There was 15 days time for the accused to pay the amount. He has issued reply as per Ex.P4 denying his SCCH-14 8 CC No.15667/2013 liability to pay the amount. 15 days time expired on 27.04.2013. Cause of action arose on 28.04.2013. This complaint is filed on 16.05.2013 which is well within time. Thus, the complainant has complied all requirements of Sec.138 and 142 of the Act. By his oral evidence and documentary evidence at Ex.P1 to 4, the complainant has discharged his primary burden to prove his case. Therefore, legal presumptions U/Sec.118 and 139 of the Act come into play. The court has to draw presumptions that the cheque at Ex.P1 is issued by the accused in favour of the complainant for consideration and towards discharge of legally enforceable debt or liability. PW.1 Muniyappa has stated about existence of debt and issuance of Ex.P1 cheque by the accused in his favour towards discharge of debt. The said cheque was discharged for reason "Account closed". The accused has admitted that his account was closed on the date of presentation of Ex.P1 cheque for encashment. Ex.D2 confirms the closure of his account on 11.08.2011. The accused has received legal notice, but he has not paid the amount of cheque.
12. The presumptions drawn in favour of the complainant are rebuttable presumptions. The accused has to rebut the presumptions by probable defence. He can prove his defence by preponderance of probability. The accused has disclosed his defence in his reply dt.25.04.2013. He has contended that there was no occasion for him to borrow Rs.3,90,000/- from the complainant, that on 10.08.2011, he lost his purse containing signed cheque at Ex.P1 for which he lodged complaint before RMC yard police on the same day and thereafter, he closed his account SCCH-14 9 CC No.15667/2013 pertaining to said cheque on 11.08.2011, that in view of Sec.269SS of Income Tax Act, question of payment of more than Rs.20,000/- in cash does not arise and any such payment will attract penalty and punishment. In order to prove his defence, the accused has relied upon evidence of DW.1 to 3 and documents at Ex.D1 to 10. He has also placed reliance on the contents of Ex.P5.
13. DW.1 Somashekar is the accused and he has stated that he was working in HOPCOMS upto 22.09.2010 and thereafter, he was unemployed, that know he is working as an Autorickshaw driver since 2012, that he does not know the complainant and he never borrowed Rs.3,90,000/- from him, that the say of the complainant in that regard he false, that the said Anand is his relative, that on 10.08.2011, he went to RMC yard for purchasing coconuts and there he lost his purse containing blank signed cheque at Ex.P1, that he gave complaint regarding it to RMC yard police, that he met father of Anand near RMC yard on 10.08.2011, that he closed his bank account on the next day, that the father of Anand might have found his lost purse and might have given it to Anand, that the complainant might have obtained his signed cheque from Anand, that relationship between him and Anand is strained since one year, that Anand troubled him and hence, he gave complaint against Anand, that two days prior to 26.08.2010, he sought for financial assistance of Rs.65,000/- from Anand to meet out his medical expenses and Anand assured him to get a loan from his friend, that with the said assurance, Anand obtained a blank signed cheque from him for Rs.65,000/- on 26.08.2010 drawn on RDCC Bank, HOPCOMS Branch, Bangalore, but he SCCH-14 10 CC No.15667/2013 failed to arrange the loan for him, that the said Anand did not return his cheque inspite of demand, that at the time of service of summons, said Anand came to his house with police, that on 25.03.2014, he wrote a letter to Anand demanding him to return his signed cheque for Rs.65,000/-, but Anand threatened him over phone and therefore, he filed complaint against Anand on 02.04.2014, that in order to take revenge, the said Anand gave his cheque to the complainant and got this case filed against him. In cross-examination, he has stated that he has not retained copy of complaint pertaining to Ex.D1, that he does not know the action taken by the police regarding Ex.D1, that he borrowed loan from said Anand on 26.08.2010 and issued cheque of Rs.65,000/- in his favour for repayment and the said cheque is different from the cheque involved in this case, that he resides in the address shown in Ex.D3, that he signs in Kannada, in English and sometimes, he puts his initial to documents, that he has not informed the police that his cheque is secured by the father of Anand and it is misused by the complainant with the help of Anand and his father, that he has not filed any complaint against the complainant alleging misuse of his cheque, that he is having account in RDCC Bank, Karnataka Bank and Canara Bank, that he has closed his account in South Indian Bank. He has admitted that the cheque at Ex.P9 belongs to him and it bears his signature. He has denied the suggestions that he borrowed Rs.3,90,000/- from the complainant on 18.05.2012 and issued Ex.P1 cheque in his favour for repayment of loan, that he is liable to pay the amount of cheque at Ex.P1 to the complainant, that he borrowed amount from Anand SCCH-14 11 CC No.15667/2013 and Dharma and issued cheques in their favour, that he is in habit of borrowing money from various persons and issuing them cheques of his closed accounts. The accused has not produced copy of complaint given to police on 10.08.2011 regarding missing of his purse containing a signed cheque and copy of letter addressed to bank to close his account. He has not explained as to why he kept quite from 2010 to 2014 to issue notice to Anand for demanding return of cheque.
14. DW.2 Ananda is the relative of the accused. He is the colleague of the complainant and works in BOSCH. His house is situated in II stage of BTM layout, Bangalore. He was on duty on 18.05.2012 from 2.00 P.M., to 10.00 P.M., He has deposed against the accused and stated that the accused borrowed Rs.3,90,000/- from the complainant on the month of May-2012 and issued Ex.P1 cheque for repayment of amount. He has denied suggestions that he assured the accused to advance a loan of Rs.65,000/- and obtained a blank signed cheque from him, that he has neither advanced loan to the accused nor returned his singed cheque, that after issuance of notice by the accused, he filled the cheque and got filed this complaint through the complainant, that he was making threatening calls to the complainant and stopped doing so after filing complaint by the accused, that he went to the house of the accused to serve summons in this case and he used to come to Court on each and very date of hearing, that the accused has not borrowed Rs.3,90,000/- from the complainant and not issued any cheque in his favour, that in order to take revenge, he got misused blank signed cheque of the accused and got filed this complaint to SCCH-14 12 CC No.15667/2013 have wrongful gain, that on the alleged date of loan at 06.30 to 07.30 P.M., he and the complainant were on duty.
15. DW.3 Seenappa Gowda is the HR Manager of BOSCH and he has produced attendance particulars of the complainant and DW.2 which are marked as Ex.P9 and 10. He has stated that Ex.D9 and D10 are attendance particulars of the complainant and Anand, that an employee will have an opportunity to come out of the factory premises during duty hours with valid permission and no such permission is necessary during lunch hour, that the employee shall produce his ID card before security to go out during lunch hour. He has further stated that the complainant was in the nigh shift on 18.05.2012 and Anand was on duty on that day from 01.53 P.M., to 10.02 P.M.,
16. Ex.P5 is the pass book of the complainant which reveals that the complainant was having a balance of Rs.4,60,196.23 in his account as on 05.04.2012, that the complainant has withdrawn Rs.1,00,000/- on 08.04.2012, Rs.50,000/- on 11.04.2012, Rs.1,00,000/- on 12.04.2012, Rs.10,000/- on 15.05.2012, Rs.35,000/- on 16.05.2012 and Rs.10,000/- on 18.05.2012 leaving a balance of Rs.47,196.23 on 18.05.2012.
17. Ex.P6 is copy of notice issued by HOPCOMS, Ex.P7 is copy of enquiry report, Ex.P8 is copy of office order which collectively reveal that the accused is dismissed from service on 27.06.2012 after conducting Departmental Enquiry for misappropriation of funds. The accused has impliedly admitted the said order, but he has contended that dismissal order is under SCCH-14 13 CC No.15667/2013 challenge. However, he has admitted that there is no stage in respect of his dismissal order.
18. Ex.P9 is a cheque for Rs.20,000/- drawn on South Indian Bank Ltd., Malleshwaram, Bangalore. The accused has admitted that the said cheque pertains to his account and it bears his signature. Payee and date column in the cheque are left blank. This indicates that the accused used to borrow money from friends and relatives by issuing cheques without mentioning name of the payee and date.
19. Ex.D1 is the endorsement issued by Sub-inspector of Police, RMC yard police station and it reveals that the accused went to police station on 10.08.2011 for complaining missing of his purse containing a cheque in the series of 601431 to 601440 pertaining his SB account No.10057. Ex.D2 is a certificate dated 24.04.2013 issued by South Indian Bank, Malleshwaram Branch, in which it is mentioned that account No.0279053000010057 was closed on 11.08.2011. Ex.D3 is copy of letter, Ex.D4 is postal receipts and Ex.D5 is acknowledgment. On perusal of Ex.D3 to 5, it reveals that the accused has issued a letter on 25.03.2014 to said Anand calling upon him to return his cheque bearing No.435763 for Rs.65,000/- drawn on BBR & RDCC Bank Ltd., HOPCOMS Branch, Bangalore, that the said notice was duly served upon the said Anand. Ex.D6 is copy of complaint and Ex.D7 is the endorsement issued by Peenya Police regarding filing of complaint. These two documents disclose that the accused has lodged a complaint against Anand regarding his failure to return his cheque and regarding threat given to him, that the police have SCCH-14 14 CC No.15667/2013 registered the said complaint in NCR No.975/2014. DW.2 Anand has admitted the service of such notice, but the cheque in question is different from the cheque mentioned in the letter and the letter was written after more than 3½ years. There is no evidence as to action taken by the police regarding complaint against Anand. Therefore, Ex.D3 to 7 are not helpful to the accused to prove his defence.
20. Ex.D8 is copy of an order dt 22.09.2010. It reveals that stall No.16 of HOPCOMS was given to the custody of one M.M.Dharma Kumar in the absence of the accused. The said order reveals that the accused was not available to run the business of said stall in the month of September-2010, but the said document is no way helpful to establish the defence of the accused.
21. I have careful gone through the oral and documentary evidence adduced by both the parties and perused the written arguments of the accused. The offence punishable U/Sec.138 of the Act is a technical offence. Cheque is a negotiable instrument. The cheque at Ex.P1 is of the accused and it bears his signature. The cheque is drawn in favour of the complainant for Rs.3,90,000/-, but it is dishonoured for reason "Account closed". Dishonour of cheque and closure of bank account pertaining to Ex.P1 are admitted by the accused. Ex.P6 to 8, Ex.D8 disclose that the accused is dismissed from service on the ground of misappropriation of funds. He was suspended from service on 22.09.2010. It means, the accused was in financial crisis in the year 2010. The say of the complainant that the accused was in need of money in 2012 is probable and believable. Ex.P5 pass book SCCH-14 15 CC No.15667/2013 does not corroborate the evidence of PW.1 as to drawing of amount from bank before he lent Rs.3,90,000/- to the accused, but it reveals that the complainant was capable of lending Rs.3,90,000/- to the accused as on 18.05.2012. Hon'ble Supreme Court in 'Rangappa Vs., Mohan' has held that presumption U/Sec.139 of the Act is also for the existence of debt. There is discrepancy in the evidence of DW.2 as to his presence at the time of transaction. The distance between the house of DW.2 and his factory is about 7-9 Kms. For a stranger, traveling such a distance both way may take 30-60 minutes, but a person who travels daily may cover the distance in shorter period by taking short cuts. Therefore, the presence of DW.2 in his house between 6.30 P.M., and 7.00 P.M., on 18.05.2012 was not impossible.
22. Evidence of DW.1 is as per his defence taken in reply at Ex.P4 and during cross-examination of PW.1, but his version as to presence of father of Anand in RMC yard when he lost his purse is a material improvement. His evidence regarding securing of his purse by father of Anand, giving it to Anand, misuse of his signed cheque by Anand and getting the complaint filed through the complainant is imaginary and improbable. Issuance of notice by the accused to Anand on 25.03.2014 as per Ex.D3 and filing of complaint by him against Anand as per Ex.D6 are after thought and are intending to misguide the court. Evidence of DW.1 regarding dispute with Anand is self contradictory and unbelievable. The cheque mentioned in Ex.D3 is different from the cheque involved in this case. Ex.P9 indicates the nature of the accused that he used to get loan from friends and relatives by SCCH-14 16 CC No.15667/2013 issuing cheques. He was having account in 3 different banks. The said fact and Ex.P9 support the contention of the complainant that the accused was in the habit of obtaining loan from several persons by issuing cheques.
23. Ex.D1 and 2 are posed as primary evidence to rebut the presumptions drawn in favour of the complainant. Ex.D1 reads as under:
¹éÃPÀÈw PÀ£ÁðlPÀ gÁdå ¥ÉÇ°Ã¸ï £ÀªÀÄÆ£É ¸ÀA.76 J
1. ¸ÀAzÀ±ÀðPÀgÀ-¦AiÀiÁðzÀÄzÁgÀgÀ DºÁ餸À¯ÁzÀ ¸ÀÆZÀPgÀ À ºÀɸÀgÀÄB ¸ÉÆêÀıÉÃgÀAiÀÄå JA.JA
2. ¢£ÁAPÀ ªÀÄvÀÄÛ ªÉÃ¼É B 10-08-11 gÀAzÀÄ ¥À¸ïð PÀ¼ÉzÀÄ ºÉÆÃVzÀÄÝ CzÀgÀ°è J¸ïL© CAPËAmï £ÀA.10057 gÀ 601431 jAzÀ 601440 gÀ ªÀgÉV£À ZÉPïUÀ¼À°è
3. ¸ÀAzÀ±Àð£ÀzÀ GzÉÃÝ ±ÀB 1 ZÉPï PÀ¼ÉzÀÄ ºÉÆÃzÀ §UÉÎ.
4. ¸ÁéUv À ÀPÁgÀgÀ ¸À»B SUB-INSPECTOR OF POLICE (Law & Order) ¸ÀܼÀB B.M.C. Yard Police Station Bangalore City.
Similarly, Ex.D2 reads as under:
TO WHOMSOEVER MAY CONCERN This is to certify that Mr.Somasekhariah M M. A/c No.0279053000010057 stands closed as on 11.08.2011.SCCH-14 17 CC No.15667/2013
This certificate is issued at request of
customer.
Yours faithfully,
For The South Indian Bank Ltd.,
Asst.Manager
Br.B'.ore Malleshwaram
Ex.D1 does not make it clear that Ex.P1 was the cheque which was kept in the purse and was lost on 10.08.2011. On careful perusal of Ex.D1, it reveals that one of the cheques in the series of 601431 to 601440 is lost. Similarly, Ex.D2 does not reveal that the account pertaining to Ex.P1 was closed at the instance of the accused. Copy of complaint which lead the police to issue Ex.D1 and copy of letter which made the bank to close the account are not produced by the accused before the Court. The accused has not given proper explanation as to non production of said documents. Even Ex.D1 is silent regarding filing of any complaint or application regarding missing of purse containing a signed cheque. It only indicates visit of the accused to the police regarding missing of his purse containing a signed cheque. Explanation given by the accused regarding keeping of signed cheque in the purse is not satisfactory. No prudent man will keep a cheque duly signed in his purse. There is no evidence to believe that the accused has intimated his banker as to loss of Ex.P1 cheque and requested him to close the account. If the accused had lost his signed cheque, he would have filed complaint before police in writing and would have issued stop payment order to bank. Ex.D1 and 2 are not sufficient to believe that the accused has done so and acted like a prudent man.SCCH-14 18 CC No.15667/2013
24. Secondly, the accused has received demand notice on or about 12.04.2013. He got issued reply on 25.04.2013, but he did not take any legal action either against the complainant or against Anand for misuse of his cheque. He all along denies borrowing of loan from Anand and made allegation that the said Anand has obtained blank signed cheque from him by making assurance that he will arrange for a loan, but failed to make such an arrangement. The said event is stated to be of 2010, but the accused initiates action against Anand only on 25.03.2014. His silence for about 4 years indicates that he is making false allegation against Anand. Moreover, he himself has admitted in cross-examination that he borrowed Rs.65,000/- from the said Anand (page No.5 of deposition). Therefore, oral evidence of DW.1 and contents of Ex.D1 to 10 are not sufficient to rebut the presumptions U/Sec.118 and 139 of the Act. Evidence of DW.2 goes in favour of the complainant. His evidence and that of DW.3 is not helpful to the accused to prove his defence.
25. The defence of the accused that he lost his signed cheque in RMC yard on 10.08.2011, that said cheque was secured by the father of Anand who gave it to Anand, that Anand and the complainant colluded together to cause loss to him, that dispute arose between him and Anand, that misuse of signed cheque by Anand and filing of this case through the complainant is highly improbable and unbelievable. There is no evidence to establish the said defence. Ex.D1 and 2 are incomplete documents which are not sufficient to rebut the presumptions. The accused has not produced material documents namely copy of complaint filed SCCH-14 19 CC No.15667/2013 before police on 10.08.2011 and copy of application filed before bank on 11.08.2011. His conduct is not of a prudent man. He has not proved that the complainant has obtained Ex.P1 by illegal means. On the other hand, evidence of PW.1 and contents of Ex.P1 to 4 establish that the complainant has obtained the cheque by lawful means. The accused has failed to rebut the presumptions by preponderance of probability. Presumptions U/Sec.118 and 139 of the Act remained unrebutted. Evidence of PW.1 and contents of Ex.P1 to 9 collectively establish the averments of the complaint. Though, there are some contradictions and discrepancies in the evidence of PW.1, DW.2, but they are minor contradictions and discrepancies which are not sufficient to disbelieve the case of the complainant. I am of the opinion that the complainant has proved his case by oral and documentary evidence. The accused has failed to prove his defence. He has not paid the amount of cheque to the complainant inspite of service of demand notice. Dishonour of cheque and closure of account is admitted. Hence, the accused is guilty for the offence punishable U/Sec.138 of the Act and I answer the point in affirmative.
26. POINT No.2: In view of the above discussion and finding, I proceed to pass following :
ORDER The accused is found guilty and is convicted U/s 255(2) of Cr.P.C. for the offence punishable U/s 138 of the Negotiable Instruments Act. The accused is sentenced to pay a fine of Rs.4,00,000/-. In default of payment of fine amount, the accused has to undergo SI for 6 months.SCCH-14 20 CC No.15667/2013
Out of fine amount, Rs.3,95,000/- shall be paid to the complainant as compensation.
The bail bond of accused stands cancelled.
(Dictated to the Stenographer, directly on computer and then corrected by me and pronounced in the open court, on this the 6th day of November 2015.) BASAVARAJ CHENGTI XL ACMM, BANGALORE SCCH-14 21 CC No.15667/2013 LIST OF WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT:
PW.1 - E.Muniyappa
[
LIST OF DOCUMENT MARKED ON BEHALF OF THE
COMPLAINANT:
Ex.P1 - Cheques
Ex.P1(a) - Signatures of accused.
Ex.P2 - Bank endorsements
Ex.P3 - Copy of Legal notice
Ex.P4 - Reply notice
Ex.P5 -pass book
Ex.P6 - notice of HOPCOMS
Ex.P7 -enquiry report
Ex.P8 -office order
Ex.P9 -blank cheque
LIST OF WITNESSES EXAMINED ON BEHALF OF THE ACCUSED:
DW.1 - Somashekar.M.M
DW.2 - Ananda N.S
DW.3 - Seenappa Gowda
LIST OF DOCUMENT MARKED ON BEHALF OF THE ACCUSED:
Ex.D1 - Endorsement given by RMC yard police Ex.D2 - Letter of Bank Ex.D3 - Copy of Letter issued to Anand Ex.D4 - Postal Receipt Ex.D5 - Acknowledgment Ex.D6 - Copy of complaint to Peenya Police Ex.D7 - Acknowledgment Ex.D8 - Copy of Charge Handing over of HOPCOMS.
Ex.P9 Attendance particulars of the complainant Ex.P10 Attendance particulars of the Anand XL ACMM, BANGALORE.SCCH-14 22 CC No.15667/2013
Dt;06.11.2015 C-BR A-VD For Judgment Order pronounced in open court vide separate judgment.
ORDER The accused is found guilty and is convicted U/s 255(2) of Cr.P.C. for the offence punishable U/s 138 of the Negotiable Instruments Act. The accused is sentenced to pay a fine of Rs.4,00,000/-. In default of payment of fine amount, the accused has to undergo SI for 6 months.
Out of fine amount, Rs.3,95,000/- shall be paid to the complainant as compensation.
The bail bond of accused stands cancelled.
XL ACMM, BANGALORE SCCH-14 23 CC No.15667/2013 ORDER ON IA U/O 16 RULE 1 AND 2 R/W 151 OF CPC This IA is filed by the petitioner for an order to issue summons to Circle Inspector of police, Doddaballapura Circle, Doddaballar to produce chargesheet in Cr.No.36/2014 of Doddabelavangala Police Station and to give evidence.
The counsel for the respondent no.1 has no objection to allow the IA.
Heard both sides and perused the records.
The IA is not accompanied that affidavit or memo of facts. Hence, IA is not accordance with Civil Rule of practice and is liable to be rejected with lime.
The petitioner is seeking for an order to issue to summons to directing the concern police officer to produce chargesheet in Cr.No.36/2014 of Doddabelavangal Police Station before the court and to give evidence in that regard. It is settled principle of law that the court cannot directed the police officer to file chargesheet in particular case. The proposed witness is public servant and he is authorised to issue copy of chargesheet. The petitioner has to obtained copy of SCCH-14 24 CC No.15667/2013 chargesheet and to produce it before the court. They may apply copy of document under RTA Act. If the public servant refused and fail to issue copy of document, then he may be directed to produce copy of the said document. There are no ground to summon the proposed witness to produce document i.e., chargesheet in Cr.No.36/2014, Doddabelavangala Police Station and to give evidence. Therefore, I pass following:
ORDER U/O 16 RULE 1 AND 2 R/W 151 OF CPC filed by the petitioners is dismissed without cost.
XVI Addl. Judge, Court of Small Causes, Bangalore.
ORDER IAS U/SEC.151 OF CPC These IAs are filed by the petitioners for reopening of their side and for permission to adduce further evidence. It is stated in the memorandum of facts filed with IA that one more witness is to examined, that evidence of I.O of Doddaballapura Traffic Police Station is SCCH-14 25 CC No.15667/2013 necessary and document is required to be marked. Hence, the petitioners have sought for reopening of their side and to permission to adduce further evidence.
The counsel for the respondent no.1 has no objection to allow the IAs.
Heard the both sides and perused the records. Ordersheet reveals that the petitioners have examined PW.1 to 3 and got marked 27 documents as Ex.P1 to 27. The respondents have not adduced any evidence on their behalf. Now, the case is posted for arguments. At this junction, the petitioners have come up with this IAs seeking for permission to reopening of their side and for permission to adduce further evidence. Their IA U/O 16 rule 1 and 2 r/w 151 of CPC is already dismissed. There prays for directing investigation officer to produce copy of chargesheet is already declined. There is no ground for the petitioners to examine the investigation officer. The evidence of said witness and production of document by him is unwarranted. Therefore, I am of the opinion that there are no grounds to reopening side of the petitioners and permission cannot be granted to the petitioners to produce evidence. Consequently, I pass following :SCCH-14 26 CC No.15667/2013
ORDER IAS U/SEC.151 OF CPC filed by the petitioners is dismissed.
No cost.
For arguments by