Bangalore District Court
Sri. Somashekar. T.M vs Sri. Akshay Kumar.B on 13 November, 2019
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
:: PRESENT ::
SRI. NAGARAJEGOWDA.D., B.Com, L.L.B.,
C/C. XII A.C.M.M., Bengaluru
C.C.NO.13654/2017
Dated: This the 13th Day of NOVEMBER -2019
COMPLAINANT/S: Sri. Somashekar. T.M.,
S/o. Madappa,
Aged about 41 years,
R/at.No:16, 1st Cross,
1st Main, Siddartha Layout,
Vivekananda Nagar,
Kathriguppe Main Road,
BSK 3rd Stage,
Bengaluru - 560 085.
ACCUSED: Sri. Akshay Kumar.B,
S/o. Boraiah,
Aged about 32 years,
R/at.No:14, 3rd Main Road,
Raghavendra Block,
Srinagar,
Bengaluru-560 034.
Offence Under Section 138 of Negotiable
Instruments Act
Plea of the accused Pleaded not guilty
Final Order Convicted
**
JUDGMENT 2 CC.No:13654/2017
:: JUDGMENT ::
The complainant filed this private complaint under Section 200 of Cr.P.C alleging that, the accused has committed an offence punishable under Section138 of Negotiable Instruments Act.
2. The brief facts of the complainant case reads as follows:
The complainant and accused are close friends and both of them are well known to each other for the past several years. The accused running a business under the name and style of VKS Exports. In the month of October 2015, the accused approached the complainant for seeking financial help for development of business and other requirements and after considering the friendship and badly need of amount, the complainant has given Rs.20,00,000/- by way of cash and later again the accused approached the complainant in the month of November 2015 and borrowed Rs.15,00,000/- and totally the accused borrowed a sum of Rs.35,00,000/- from the complainant. The accused assured the complainant that he will repay JUDGMENT 3 CC.No:13654/2017 the said amount within a year. After lapse of one year, the complainant approached the accused and demanded to repay the said amount of Rs.35,00,000/-, but the accused for one or the other reasons postponing the same and later after several requests of the complainant, the accused got issued two cheques bearing No:023341 and 023342 dated 21/03/2017 respectively drawn on Rajajinagar Co- Operative Bank, Rajajinagar, Bengaluru for discharge of his liability. The complainant presented the said cheques on 22/03/2017 through his Banker Canara Bank, Hanumanthanagar Branch, Bengaluru, but the said cheques were returned unpaid with an endorsement on 23/03/2018 as "Funds insufficient". The same is intimated to the accused, but the accused did no responded at all. Hence, the complainant lodged the complaint against the accused before Hanumanthanagar Police station on 01/04/2017 and the police have registered in NCR No:156/2017. After lodging the complaint on 05/04/2017, the accused appeared in the Police station and given his statement by admitting the issuance of cheque and sought to some more time to repay the said loan amount to the JUDGMENT 4 CC.No:13654/2017 complainant. Hence, there is no other alternative, the complainant issued legal notice through his counsel to the accused on 07/04/2017 sent by RPAD and the said notice is duly served to the accused on 10/04/2017. Instead of repaying the cheque amount to the complainant, the accused has given evasive reply notice dated 17/04/2017 and he did not comply the terms of notice and thus the accused has committed an offence punishable under Section 138 of Negotiable Instruments Act and punish the accused in accordance with law by awarding compensation under Section 357 of Cr.P.C in the interest of justice and equity.
3. After recording the sworn statement of the complainant with documentary evidence, this court has registered the case against the accused for the offence punishable under Section 138 of Negotiable Instruments Act. Summons issued to the accused. The accused appeared through his counsel and enlarged on bail. There afterwards, plea of accusation read over and explained to the accused in the JUDGMENT 5 CC.No:13654/2017 language known by him and he pleaded not guilty and claims to be tried.
4. In support of the case of the complainant, earlier the complainant given his sworn statement as PW-1 and got marked Ex.P.1 to Ex.P.11 and after appearance of the accused permitted to cross-examination of PW-1 and hence the complainant lead his side further evidence and got marked Ex.P.12 to Ex.P.14 and thus PW-1 has been fully cross-examined by the accused counsel and thus the complainant closed his side evidence.
5. There afterwards, accused person examined under Section 313 of Cr.P.C statement, in which he totally denied the entire case of the complainant. In support of his denial, the accused examined himself as D.W.1 and got marked Ex.D.1 to Ex.D.3 and thus D.W.1 has been fully cross-examined by the complainant counsel and thus the accused closed his side evidence.
6. In support of the case of the complainant, the learned counsel for the complainant submitted written arguments JUDGMENT 6 CC.No:13654/2017 by narrating the facts and circumstances of the case and submits that the complainant had fulfilled all the ingredients of the offence punishable under Section 138 of Negotiable Instruments Act and hence convict the accused in accordance with law.
7. In support of the case of the accused, the learned counsel for the accused also submitted written arguments by narrating the facts and circumstances of the case and submits that the accused had given an rebuttable evidence to the case of the complainant and in support of his contention, the learned counsel for the accused relied on citations reported in
(i) Criminal Appeal No.838/2008, 1483-1484 of 2009 (Ebay India Pvt Ltd V/s. State and another) in which Hon'ble Supreme Court of India held that Section 138 and 141 - dishonour of cheque - offence of company - the prosecution of Director without company being assigned as an accused
- Company is a juristic person - Concept of corporate criminal liability is attracted to the corporation and company etc. JUDGMENT 7 CC.No:13654/2017
(ii) Further relied on decision reported in Criminal Appeal No.636/2019 (Basalingappa V/s. Mudibasappa) in which Hon'ble Supreme Court of India held that this court satisfied that the accused has raised probable defence and the finding of the Trial court that the complainant failed to prove his financial capacity are based on evidence led by the defence - Appeal allowed.
(iii) Further relied on decision reported in Criminal Appeal No.518/2006 (Krishna Janardhan Bhat V/s. Dattatraya G. Hegde) in which Hon'ble Supreme Court of India held that Section 138 of N.I.Act. The complainant has fulfilled all the ingredients as per Section (a), (b) and (c) and the accused had given a rebuttable evidence and hence the accused is entitled for acquittal.
(iv) Further relied on decision reported in Criminal Appeal No.2043 of 2013 (John.K.Abraham V/s. Simon C.Abraham and another) in which Hon'ble Supreme Court of India held that when exactly and where exactly the transaction took place for which the cheque came to be issued by appellant
- conviction and sentence set aside. Appeal allowed.
(v) Further relied on decision reported in Criminal Appeal No.1522 of 2014 (Ramdas V/s. Krishnanad) in which Hon'ble Supreme Court of India held that the impunged judgment of High Court set aside and judgment of Trial court restored.
JUDGMENT 8 CC.No:13654/2017
(vi) Further relied on decision reported in Criminal Appeal No.2045 of 2008 (Kumar Exports V/s. Sharma Carpets) in which Hon'ble Supreme Court of India held that dishonour of cheque - accused has discharged the onus of proving that cheques were not received by holder for discharge of a debt or liability.
Hence the learned counsel for the accused prays for acquittal of the accused in accordance with law.
8. On the basis of the aforesaid facts and circumstances, the following points arises for my considerations:
POINTS
1. Whether the complainant proves beyond all reasonable doubts that in the month of October 2015 and November 2015, the accused had borrowed loan amount of Rs.20,00,000/- and Rs.15,00,000/-
respectively for a total amount of Rs.35,00,000/- from the complainant and the accused assured to repay the said amount within a year. Accordingly, he issued two cheques bearing No:023341 and 023342 dated 21/03/2017 drawn on Rajajinagar Co-
Operative Bank, Rajajinagar, Bengaluru. The JUDGMENT 9 CC.No:13654/2017 complainant presented the said cheques on 22/03/2017 through his Banker Canara Bank, Hanumanthanagar Branch, Bengaluru, but the said cheques were returned unpaid with an endorsement on 23/03/2018 as "Funds insufficient". There afterwards the complainant lodged the complaint before Hanumanthanagar Police station against the accused and the accused appeared before the police and given his statement by admitting the issuance of cheque and sought to some more time to repay the said loan amount to the complainant. There afterwards the complainant issued legal notice to the accused on 07/04/2017 sent by RPAD and the said notice is duly served to the accused on 10/04/2017. But instead of repaying the cheque amount to the complainant, the accused has given evasive reply notice dated 17/04/2017 and he did not comply the terms of notice and thus the accused has committed an offence punishable under Section 138 of Negotiable Instruments Act?
2. What order?
9. My answer to the above points are as under:
JUDGMENT 10 CC.No:13654/2017
Point No.1: In the Affirmative,
Points No.2: As per the final order,
for the following.
REASONS
10. POINT No.1: In support of the case of the complainant the complainant filed his sworn statement as PW-1, in which he stated that in the month of October 2015, he paid Rs.20,00,000/- and in the month of November 2015 he paid Rs.15,00,000/-, totally Rs.35,00,000/- to the accused and both are close friends and in order to repay the said loan amount which was undertaken by the accused, issued Ex.P.1 and Ex.P.2 cheques and identified the signature of the accused as Ex.P.1(a) and Ex.P.2(a). This Ex.P.1 and Ex.P.2 has been disputed by the accused counsel stating that the accused is a Proprietor of VKS Exports and issued the said cheques and hence the complainant has not made the company as necessary party and filed this complaint and filed affidavit by way of chief-examination as PW-1. He never stated that he paid the loan amount of Rs.35,00,000/- to the accused company. As such, the decisions relied by the accused counsel is not applicable to JUDGMENT 11 CC.No:13654/2017 the case on hand. Ex.P.1 and Ex.P.2 cheques are dishonoured due to "Funds insufficient" as per Ex.P.3 and Ex.P.4. For repayment of the loan amount to the complainant, the complainant given a police complaint to Hanumanthanagar Police station as per Ex.P.9, in which this accused due for sum of Rs.35,00,000/- and he did not repaid the said loan amount. After receipt of the said Ex.P.9 complaint lodged by the complainant, the police have acknowledged as per Ex.P.10 and Ex.P.11 is the statement of one Ashok Kumar who is the accused in this case by name Akshay Kumar S/o. Boraiah. But in his statement it is mentioned as Ashok Kumar S/o. Boraiah, in which he undertaken to repay the loan amount of Rs.35,00,000/- to the complainant or else the complainant can taken legal action against him. Ex.P.5 is the copy of legal notice. The notice has been sent to the accused as per Ex.P.6 postal receipt. The said notice is duly served to the accused as per Ex.P.7 Postal acknowledgement. Instead of complying the terms of notice, the accused issued untenable reply stating that this complainant deliberately and dishonestly suppressed the true and JUDGMENT 12 CC.No:13654/2017 material facts and mislead and issued false and frivolous notice etc. Further stated that this accused has not at all received any loan amount from the complainant for Rs.20,00,000/- and Rs.15,00,000/-, totally Rs.35,00,000/- and agreed to repay the said loan amount within one year. For that after lapse of one year, in order to discharge the loan, he had issued two cheques bearing No:023341 and 023342 dated 21/03/2017 drawn on Rajajinagar Co- Operative Bank, Rajajinagar, Bengaluru in favour of the complainant all are denied by this accused and this accused had lost both the cheques mentioned in the month of October 2016 along with other cheque books and in this regard he lodged a police complaint on 14/10/2016 to the Circle Inspector of police, Hanumanthanagar, Bengaluru and in this regard the alleged cheques are said to be stolen by the complainant and claiming falsely against him etc. As per the contents of Ex.P.8 reply notice, the complainant has not issued any rejoinder by admitting or denying the facts stated in the reply notice. But in the complaint itself he has stated that the accused had given an evasive reply and as per Ex.P.8(a) is the postal cover ie., the reply notice JUDGMENT 13 CC.No:13654/2017 sent to the advocate for the complainant and Ex.P.12 is the statement of accounts of Canara Bank, Hanumanthanagar Branch, Bengaluru, stands in the name of the complainant and during the year 2014 he made several Bank transactions and in which he had Bank balance of Rs.35,33,156/-. Ex.P.13 is the another Bank statement of accounts of The National Co-Operative Bank Ltd., Basavanagudi Branch, Bengaluru, stands in the name of the complainant, in which during the year 2010 he made the Bank transaction and by way of self on 31/07/2010 his bank account debited to Rs.20,00,000/- and Ex.P.14 is the another Bank statement of the same Bank in which during the year 2010 mentioned the same thing. On the basis of the oral and documentary evidence of the complainant, prima facie the complainant had sufficient amount with him, but the complainant has not specifically stated on which date he paid the loan amount to the accused, except he has stated that in the month of October 2015 and November 2015 etc. In the reply notice, the accused has denied the entire case of the complainant. In support of his contention, the accused counsel cross-
JUDGMENT 14 CC.No:13654/2017 examined PW-1. In the cross-examination, he trying to elicit that the complainant is not having capacity to pay huge amount of Rs.35,00,000/- to the accused and in the demand notice and also in the chief-examination, he has not stated in which date he advanced the loan amount to the accused and on the relationship of the accused orally asked for repayment of the loan amount and by way of said cheques on 31/07/2010 withdrawn Rs.20,00,000/- from his bank account. But these things are not stated in the complaint or in his chief-examination and also he admitted that the alleged Ex.P.1 and Ex.P.2 cheques of the VKS Exports company. But the said company is not made as a party to this case and on 06/05/2017 he presented the complaint on 05/04/2017 itself Ex.P.11 complaint was given, but it was given due to apprehension etc. In order to appreciate the case of the complainant, at Page No.17, the relevant portion is in Kannada which reads as follows "¥ÁågÁ £ÀA.3 gÀ°è ¸ÀzjÀ ZÉPÀÄÌUÀ¼° À è ¥Àæ¸ÀÄÛvÀ ¤¦.1 ªÀÄvÀÛÄ 2 ZÀÉPÀÄÌUÀ¼ÀÄ G½PÉ ZÉPÀÄÌUÀ¼ÀÄ £Á£Éà ZÉPÀÄÌUÀ¼ÀÄ£ÀÄß PÀzÀÄÝPÉÆAqÀÄ JUDGMENT 15 CC.No:13654/2017 ºÉÆÃVgÀÄvÉÛãÉAzÀÄ GvÀgÛ z À À £ÉÆÃn¹£À°è ºÉýgÀ§ºÀÄzÀÄ JAzÀÄ ¸ÁQë £ÀÄrAiÀÄÄvÁÛ£É".
But in order to show as per the suggestion made by the accused counsel, the complainant has not produced any complaint lodged to the police about the missing of cheques and he has not specifically stated except in Ex.P.1 and Ex.P.2 cheques other cheques were lost by the accused and in order to show in the month of November 2015 he had Rs.15,00,000/- with him, for that he has not produced any documentary evidence, but he had paid the loan amount to the accused by way of cash and the same is with him etc. He had denied about any amount of Rs.20,000/- and above has to be made with the help of cheque or DD. Except total denial of the contention of the complainant, the accused has not given any instructions to the Bankers about loss of his cheque and the same has been misused by this complainant etc.
11. As per the defence taken by the accused, the accused filed affidavit by way of chief-examination as D.W.1, in JUDGMENT 16 CC.No:13654/2017 which he stated as per the contents of his reply notice and he denied that he has not at all obtained any loan amount of Rs.35,00,000/- from the complainant and he did not issue Ex.P.1 and Ex.P.2 cheques for repayment of the said loan amount and the signature found on Ex.P.1(a) and Ex.P.2(a) are not belongs to him etc. Hence, he prays for acquittal from this case and got marked Ex.D.1 is the E-stamp bond paper alleged to be issued by the accused in favour of Hanumanthanagar Police station on 16/09/2016 about missing of cheque leaves etc. For that the police have given Lost Article Report as per Ex.D.2. But till today what had happed in that case, for that the accused has not produced any cogent and convincing evidence to support his contention. Except got marked Ex.D.3 is the application under Section 91 of Cr.P.C filed by the accused. In the cross-examination of DW-1, he denied the entire case of the complainant stating that this accused has not at all obtained any loan amount from the complainant, but he admitted the relationship with the complainant, but in the reply notice he has stated about how Ex.P.1 and Ex.P.2 cheques are misused by the JUDGMENT 17 CC.No:13654/2017 complainant and also he has stated that Ex.P.1 and Ex.P.2 cheques are not at all issued for discharge of any liability towards the complainant and he has stated that as per Ex.D.1 he lost the cheque book, for that he had given a complaint to the police etc. But till today the police have not taken any steps for securing the cheques and after noticing these facts, this accused has not at all given any notice to this complainant for misusing of Ex.P.1 and Ex.P.2 cheques. As such, the written arguments submitted by the counsel for accused and the rulings relied by him as stated above are not applicable to the case of the accused to show that the accused had given rebuttable evidence to the case of the complainant. But the complainant counsel submitted written arguments by narrating the facts and circumstances of the case, which clearly establishes that the complainant had successfully proved the alleged guilt of the accused beyond all reasonable doubts. Hence, the complainant is entitled for recovery of Rs.35,00,000/- with simple interest at the rate of 1% per annum from the date of cheque till its realization. Accordingly, the accused is to JUDGMENT 18 CC.No:13654/2017 be convicted. Accordingly, I answered Point No.1 in the affirmative.
12. POINT NO.2: From the forgoing reasons, I proceed to pass the following:
ORDER Acting under Section 255(2) Cr.P.C the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentenced to pay a fine of Rs.35,00,000/- (Rupees Thirty Five Lakhs only) with simple interest at the rate of 1% per annum from the date of the cheque till its realisation. The same shall be paid by the accused within a period of 30 days from the date of this order.
Out of the said fine amount, a sum of Rs.34,50,000/- (Rupees Thirty Four Lakhs and Fifty Thousand only) with simple interest at the rate of 1% per annum from the date of the cheque till its realization has been awarded to JUDGMENT 19 CC.No:13654/2017 the complainant as compensation under Section 357 of Cr.P.C. In default of payment of fine amount, the accused shall undergo simple imprisonment for 1 (one) year.
The rest of Rs.50,000/- (Fifty Thousand Only) is adjusted towards the state as fine. (Dictated to the stenographer, corrected and then pronounced by me in the open court on this the 13th day of November 2019) (NAGARAJEGOWDA.D) C/C. XII Addl. C.M.M., Bengaluru.
ANNEXURE Witness examined on behalf of the complainant:
PW-1 : Sri. Somashekar. T.M. Documents marked on behalf of the complainant:
Ex.P.1 and Ex.P.2 : 2 cheques.
Ex.P.1(a) and Ex.P.2(a): Signatures of the accused.
Ex.P.3 and Ex.P.4 : 2 Bank endorsements.
Ex.P.5 : Legal notice
Ex.P.6 : Postal receipt
JUDGMENT 20 CC.No:13654/2017
Ex.P.7 : Postal acknowledgement
Ex.P.8 : Reply notice.
Ex.P.8(a) : Postal cover
Ex.P.9 : Complaint given to the Police
station.
Ex.P.10 : Police acknowledgement
Ex.P.11 : Copy of statement of the
accused before the police.
Ex.P.12 to Ex.P.14 : Bank account statements
Witness examined on behalf of the accused:
DW-1 : Sri. Akshay Kumar.B Documents marked on behalf of the accused:
Ex.D.1 : E-stamp issued by the accused in favour of Hanumanthanagar Police station.
Ex.D.2 : Lost Article Report. Ex.D.3 : Application under Section 91 of Cr.P.C filed by the accused. (NAGARAJEGOWDA.D) C/C. XII Addl. C.M.M., Bengaluru. * Accused copy furnished. JUDGMENT 21 CC.No:13654/2017 13/11/2019 Complainant - SNS Accused - KS Judgment
(Judgment pronounced in the open court vide separate order) ORDER Acting under Section 255(2) Cr.P.C the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentenced to pay a fine of Rs.35,00,000/- (Rupees Thirty Five Lakhs only) with simple interest at the rate of 1% per annum from the date of the cheque till its realisation. The same shall be paid by the accused within a period of 30 days from the date of this order.
Out of the said fine amount, a sum of Rs.34,50,000/- (Rupees Thirty Four Lakhs and Fifty Thousand only) with simple interest at the JUDGMENT 22 CC.No:13654/2017 rate of 1% per annum from the date of the cheque till its realization has been awarded to the complainant as compensation under Section 357 of Cr.P.C. In default of payment of fine amount, the accused shall undergo simple imprisonment for 1 (one) year.
The rest of Rs.50,000/- (Fifty Thousand Only) is adjusted towards the state as fine.
Supply a free copy of this Judgment to the accused.
(NAGARAJEGOWDA.D) C/C. XII Addl. C.M.M., Bengaluru.
Ex.P.1 : Cheque. Ex.P.1(a) : Signature of the accused Ex.P.2 : Bank Endorsement. Ex.P.3 : Legal notice Ex.P.4 : Postal receipts JUDGMENT 23 CC.No:13654/2017 Ex.P.5 : Unserved postal cover