Bangalore District Court
Sri.Ravi.H vs Sri.E.Kumar Elumalai on 22 January, 2020
THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY.
Dated this the 22nd day of January, 2020.
PRESENT: SRI MADHVESH DABER, B.COM.,L.L.B(SPL).,
XIX ADDL.C.M.M., BENGALURU.
Case No: C.C.No.28030/2017
Complainant: SRI.RAVI.H
S/o. Hanumanthappa,
Aged about 40 years,
R/at House No.845,
6th Main Road, 3rd Cross,
Kamalanagar,
Bengaluru-560079.
(By M/s Legal Combat., Advocates)
V/S
Accused: Sri.E.KUMAR ELUMALAI
S/o Elumalai,
Aged about 38 years,
R/at 65, 1st Main,
Near 96D Bus Stop,
Kamalanagar,
Basaveshwaranagar,
Bengaluru-560079.
Offence complained of: U/s.138 of N.I.Act.
Plea of accused: Pleaded not guilty.
Opinion of the Judge Accused found guilty.
Date of order: 22nd January, 2020.
2 C.C.No.28030/2017
JUDGEMENT
The complainant has filed this complaint U/s.200 of Cr.P.C. against the accused for the offence punishable U/s.138 of N.I. Act.
2. The brief facts of the complaint are that; The complainant contends that, he is one of the partners in "Manjunatha Enterprises" dealing in water tank cleaning established along with his brother. The accused is known to the complainant for many years and he is resident of Kamalanagar area. He runs a "Om Saravana Engineering and Wielding works" and carries on business of manufacturing Iron and Steel Gates, Grills and other designing works for residential and commercial establishments. Since, the accused was under
financial crisis due to heavy loss in the business, and complainant being known person to the accused, he requested him to lend a hand loan of Rs.2,00,000/- in February 2017. He assured the complainant that he would repay the same within six months and also agreed to pay interest on the said amount. When complainant demanded the accused to pay back his money, the accused issued cheque bearing No.000029 dated 3 C.C.No.28030/2017 07.09.2017 for Rs.2,00,000/-(Rupees Two Lakhs Only) drawn on Punjab & Maharashtra Co-operative Bank, Basaveshwaranagar Branch, Bengaluru. However on presentation the said cheque was dishonored for the reason "Payment Stopped by Drawer". Thereafter, the complainant got issued a Legal Notice to the accused on 21.09.2017 calling upon the accused to make payment of Rs.2,00,000/-. Despite service of the notice, the accused has failed to make payment of the said amount. However he has issued a false and frivolous reply notice through his advocate denying the averments made in the legal notice. Thereby accused has committed offence under Section 138 of Negotiable Instruments Act. Hence this complaint.
3. Soon after filing of the complaint, cognizance of the offence was taken. Matter was registered as P.C. After recording of sworn statement of the complainant, the Private Complaint lodged by the complainant was registered as a Criminal Case. Summons was issued as against the accused. The Accused appeared through his Counsel and he was enlarged on bail. 4 C.C.No.28030/2017 Substance of accusation was read over to the Accused. The Accused pleaded not guilty and claimed to be tried.
4. The complainant has been examined as PW-1 and documents Ex.P-1 to Ex.P-12 were got exhibited and closed his side. One Chandra.H S/o Hanumanthaiah has been examined as PW-2 and document Ex.P.13 was got exhibited.
5. After closure of the complainant side evidence, accused Statement u/Sec.313 of Cr.P.C. was recorded. The accused denied the incriminating evidence in toto. The accused has been examined as DW-1 and documents Ex.D1 to Ex.D9 were got exhibited.
6. Heard Arguments.
7. Now, the points that arise for my consideration are as under:
i) Whether the Complainant proves that the accused in discharge of legally enforceable debt, issued a cheque for Rs.2,00,000/-(Rupees Two Lakhs Only) which on presentation came to be dishonoured and he has failed to honour the notice and not paid the amount and thereby, committed offence u/Sec.138 of N.I. Act ?
ii) What order ?
5 C.C.No.28030/2017
8. My findings to the above points for consideration 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 ::
9. Point No.1:- In order to prove his case, the Complainant viz., SRI.RAVI.H entered into the witness-box and filed an affidavit in lieu of examination-in-chief and reiterated the complaint averments and got examined himself as PW-1 and documents Ex.P-1 to Ex.P-12 were got exhibited and closed his side. One Chandra.H S/o Hanumanthaiah has been examined as PW-2 and document Ex.P.13 was got exhibited. The accused has been examined as DW-1 and documents Ex.D1 to Ex.D9 were got exhibited.
10. During arguments the learned Counsel for Complainant argued that, in this case the issuance of cheque is not disputed. The dishonor of the cheque also not disputed. After dishonor of the cheque all legal formalities have been complied by the complainant. The accused received Rs.2,00,000/- from the complainant in February 2017. For repayment of the said amount he issued the cheque which on 6 C.C.No.28030/2017 presentation came to be dishonored for the reason "Payment Stopped by Drawer". In the reply notice accused has admitted borrowing of the amount. But he contended that the complainant has taken up blank stamp paper and cheque and later on misused them. But in this regard no action is taken by the accused. No legal notice was issued to the complainant. The police complaint is also not filed. On the other hand the complainant has produced voluminous documents which support the case of the complainant. In the cross examination of complainant no question was put regarding the defence of the accused and no evidence was led. The complainant has proved his financial capacity. On perusal of the cross examination of DW-1 it appears that there are so many infirmities which rendered his version doubtful. Moreover the evidence of PW-2 is also not fit to be disbelieved. It is further contended that the complainant lodged complaint against the accused on 09.08.2017 to Basaveshwaranagar Police Station but accused lodged complaint through post on 30.08.2017. The complainant did not know about the accused lodging complaint against him. Moreover no legal action was taken by accused and no defence was taken as to why the cheque was with the complainant for one year. The transaction and payment is not 7 C.C.No.28030/2017 denied. The issuance of cheque is also not denied. It is not forthcoming why stop payment direction was not issued one year ago. Moreover with regard to issuance of Stop payment direction Bank Manager is not examined. If the cheque and signature are admitted, nothing prevented the accused from referring the cheque to handwriting expert with regard to contents of the cheque. Moreover the accused has not led any evidence with regard to payment of Rs.92,000/-. The learned counsel for complaint further contended that the accused has admitted his financial crisis. Hence, the learned counsel for complainant prayed to convict the accused.
11. In support of his arguments, the learned Counsel for the complainant relied upon the following rulings; No typed
1. AIR 2019 Supreme Court 1876 Rhohitbhai Jivanlal Patel v/s State of Gujarat and Anr.
2. 2001 Supreme Court 3897 Hiten P.Dalal v/s Bratindranath Banerjee.
3. AIR 2002 Supreme Court 182 M/s M.M.T.C. Ltd. and another v/s M/s Medcl Chemicals and Pharma (P) Ltd.,
4. In the court of Supreme Court of India Criminal Appeal No.1545 of 2019 Uttam Ram v/s Devinder Singh Hudan & Anr.
8 C.C.No.28030/2017
5. (1996) 2 Supreme court Cases 739 Electronics Trade & Technology Development Corpn., Ltd., Secunderabad v/s Indian Technologists & Engineers and Another.
6. (2013) 3 Supreme Court Cases 86 Vijay v/s Laxman and Another.
7. In this High Court of Karnataka Criminal Appeal No. 3514 of 2010 M.Pundalik Rao v/s Vijayakumar.
8. In the Supreme Court of India Criminal Appeal Nos.230-231 of 2019 Bir Singh v/s Mukesh Kumar.
9. 2010 AIR SCW 2946 Rangappa v/s Mohan.
12. On the other hand the learned counsel for accused argued that, the complainant has not produced any document with regard to Partnership Firm. The balance in the bank account of complainant as on 02.02.2017 was Rs.56,169/-. So it is improbable that the complainant paid a sum of Rs.2,00,000/- to accused. In the Ex.P.1 the handwriting and signature are different. With regard to Ex.P.4 nothing has been stated in the legal notice by the complainant. The learned counsel for accused further argued that the true facts are narrated in the reply legal notice. In the cross examination of complainant there are several infirmities which render the case 9 C.C.No.28030/2017 of the complainant improbable and probabalise the case of the accused. The evidence of DW1 is supportive to the case of the accused. Nothing much was elicited in the cross examination of DW-1 to be supportive to the case of the complainant. It is argued that as per Ex.D1 and Ex.D2 it appears that before presentation of cheque compliant was lodged by complainant. So the accused by producing the documents probabalised his case. Hence the learned counsel for accused prayed to acquit him.
13. I have carefully gone through the principles of above rulings relied upon by the learned counsel for complainant. Keeping in mind the principles of above rulings, I have examined the evidence on record.
14. It is trite principles of law that the presumption u/Sec.139 of N.I. Act is initially in favour of the Complainant that the cheque was issued for discharge of a legally recoverable debt or liability. However, the said presumption is rebuttable presumption. The Accused has to rebut the said presumption by taking a probable defence. The presumption can be rebutted even by eliciting facts from the cross-examination of PW1 or by 10 C.C.No.28030/2017 leading defence evidence. For that Accused need not enter into the witness-box. Even the question of legally recoverable debt or liability can also be contested. Whether the presumption is rebutted or not? depends on facts and circumstances of each case. This principle is laid down by Hon'ble Supreme Court in AIR 2010 SC 1898 Rangappa v/s. V. Mohan. In the light of above principles of law now I have to see whether the presumption is rebutted or not? and Complainant has proved his case or not?
15. The brief facts of the case of the complainant are that, there was business transaction in between complainant and accused. In the business transaction, since the accused was under financial crisis due to heavy loss in the business establishment, the accused borrowed a sum of Rs.2,00,000/- from the complainant in February 2017. For repayment of the said amount accused issued the cheque No.000029 for Rs.2,00,000/- dated 07.09.2017 which on presentation came to be dishonoured for the reason "Payment Stopped by drawer". Thereafter, the complainant complied all the legal formalities and filed this complaint against the accused. 11 C.C.No.28030/2017
16. On the other hand the case of the accused is that he had borrowed a loan of Rs.92,000/- from the complainant on 28.07.2016 and at the time of borrowing the loan amount complainant has obtained Pan Card, Aadhaar Card, Election Identity Card, Passport, Blank Stamp paper of Rs.100/- without filling the contents and also obtained a Blank cheque without filling the date and amount for security purpose. It is further contended that even though the accused had repaid entire amount along with interest and demanded for return of all the above documents which were kept as security, but the complainant has informed that he had misplaced them and he would return them after searching. In this regard he had requested and demanded him to return the above said things. But the complainant instead of returning the above documents, demanded excess amount of Rs.70,000/- for which accused has refused and later on he has given a complaint before his banker not to honour cheque No.20,22,23 and 24. So it is the contention of the accused that in spite of giving complaint before the Bank Manager the complainant misused the cheque and filed a false complaint against him. Even he used to pass filthy language against him for which accused filed a complaint 12 C.C.No.28030/2017 before the Police and also Human Rights Commissioner and in this regard Human Rights Commission has directed enquiry against the one Srinivas in HRC No.5118/2010/31/2017[B2] dated 11.09.2017. Hence, the accused prayed to dismiss the complaint filed by complainant.
17. In this case on perusal of the cross examination of the accused it appears that, the accused has admitted the cheque and signature over the cheque. So heavy burden is upon the accused to prove the defence taken by him, in order to rebut the presumption under Section 139 of Negotiable Instruments Act. On perusal of evidence of accused it appears that he has deposed inconsonance with stand taken by him. Further he has produced his Bank Passbook as per Ex.D1 to show that the cheques which were allegedly given as a security to the complainant were dishonoured on 24.10.2016 and the stop payment charges were levied. Further, he has produced the copy of the compliant lodged to the Police Commissioner, Police Sub-inspector, Basaveshwaranagar Police Station and Human Rights Commissioner as per Ex.D2 to Ex.D4. It is the contention of the accused that in response to the complaint 13 C.C.No.28030/2017 given by him, with regard to misuse of the cheques, the Human Rights Commission has ordered for an enquiry against the Police Constable Srinivas who was unnecessarily interfering in the monetary transaction between complainant and accused. In this regard the copy of the order is produced at Ex.D9. Further he has produced the Postal receipts Ex.D5 to Ex.D7 and Postal Acknowledgment as per Ex.D.8.
18. However in the cross examination he has denied that he has received Rs.2,00,000/- from the complainant. It is pertinent to note that in the passbook Ex.D1 there is no mention of cheque No.29 which is the cheque of the present case. In Ex.D2, Ex.D3, Ex.D.4 the copies of complaint lodged before various authority, the cheque No.20 and 22 only mentioned. There is no mention of the cheque No.29 which is cheque of the present case. So it is abundantly clear that the cheque of the present case is not subject matter of the complaint lodged before various authorities. In the cross examination of DW1 he has denied receiving Rs.1,00,000/- and issuance of the cheque Ex.P1. However he has admitted that he has given stop payment direction to the banker not to honor the 14 C.C.No.28030/2017 cheque. It is not his case that the complainant was harassing for the payment of more money in respect of the transaction of Rs.92,000/- and obtained the cheque of the present case. Nowhere in the documents produced, the accused has mentioned the cheque of the present case bearing No.29.
19. That apart on perusal of the reply notice Ex.P.7 it is not stated that the cheques Nos.20,22,23 and 24 have been obtained by complainant and misused by him. But in the reply notice Ex.P.7 the accused has taken contention that the complainant received cheque No.000029 and misused the same with regard to the transaction for Rs.92,000/-. On the other hand in the documents produced by the accused i.e., complaint before various authorities the accused has taken contention that the complainant has received cheques No.20 and 22 and misused them. There is no mention of misuse of cheque No.23 and 24 in the documents produced by the accused. If at all the complainant had misused the cheque No.000029 nothing prevented the accused from mentioning the same in the complaint lodged before various authorities. So I am of the opinion that the accused has taken a false plea of misuse of 15 C.C.No.28030/2017 cheque No.000029 by the complainant. Moreover there is no cogent and convincing evidence regarding obtaining loan of Rs.92,000/- from complainant and handing over the present cheque along with photos, Xerox copies, I.D. Card, Pan card, Blank Stamp paper of Rs.100/- and On Demand Promissory Note and Consideration Receipt. Under such circumstances, I am of the opinion that the contention of the accused regarding misuse of the cheque No.29 by the complainant is not probable.
20. On the other hand on perusal of the cross examination of accused and the document at Ex.P.8 it appears that the accused has given evidence in C.C.No.28033 of 2017 wherein he has taken a plea that he has borrowed a sum of Rs.50,000/- from complainant and handed over the blank signed cheque No.20 and blank Promissory Note with a signature and misused the same which is total contradictory to the stand taken by the accused in the present case. In respect of cheque No.20 once he has taken a contention that he has given the said cheque for transaction of Rs.92,000/- whereas, in C.C.No.28033 of 2017 he has taken another contention that the said cheque has been given while borrowing loan of 16 C.C.No.28030/2017 Rs.50,000/- which is quite contradictory and cannot be accepted. Hence, looking from any angle it appears that the stand taken by the accused in regard to the misuse of the cheque by the complainant is improbable and unacceptable. It appears that apprehending issuance of the notice by the complainant, the accused might have filed complaint before various authorities as per Ex.D2 to Ex.D4, in order to escape from clutches of the law. So, I am of the opinion that the accused has failed to probabalise his case and rebut the presumption under Section 139 of Negotiable Instruments Act is not rebutted.
21. That apart on perusal of cross examination of the accused it appears that he has admitted that he filed compliant before the commissioner of Police and other authorities through his advocate and as per the information given by his advocate. So it appears that the contention of the accused is not genuine. Moreover with regard to transaction for Rs.92,000/- the accused has not led cogent and convincing evidence. He has not examined one Ramesh who has given to the money to the complainant and not produced the Rent Agreement before the 17 C.C.No.28030/2017 court. So it appears from the records the version of the accused is not acceptable one and does not inspire confidence in his case.
22. These being the facts on perusal of cross examination of complainant it appears that there are several infirmities in his evidence. However in the light of the accused failing to rebut the presumption under Section 139 of Negotiable Instruments Act, I am of the opinion that the question of the complainant proving his source of income does not arise at all. In this regard I would like to rely upon ruling reported in AIR 2019 SC 1876 CRIMINAL APPEAL NO.508 OF 2019 ROHITBHAI JIVANLAL PATEL V/S STATE OF GUJARAT AND ANR.
23. The complainant has elaborately stated regarding payment of amount of Rs.2,00,000/- to accused. He has stated that out of Rs.2,00,000/- Rs.1,00,000/- was with him whereas another Rs.1,00,000/- was paid by his brother which cannot be disbelieved. It is contended that in the passbook of the complainant as on the date of the transaction he had only Rs.56,169/- which is admitted by complainant. However I am 18 C.C.No.28030/2017 of the opinion that the above infirmity does not go to the root of the case. Since the complainant himself has stated that Rs.1,00,000/- was paid by him and Rs.1,00,000/- was paid by his brother, merely because of the above infirmity the case of the complainant cannot be disbelieved. Merely because of accused lodging complaint before the various authorities, it cannot be said that the version of the accused is true. Because whatever the complaint lodged before the various authorities was not in respect of the cheque of the present case. Moreover, there is every possibility of accused filing complaint before various authorities apprehending issuance of notice by the complainant. So merely because of the complainant filing the complaint before the various authorities, it cannot be said that the version of the accused is acceptable one.
24. It is to be noticed that in this case legal notice was issued by the complainant on 21.09.2107. The accused has lodged complaint before various authorities on 30.08.2017. The reply notice was given by accused on 26.09.2017. If at all the case of the accused was true, nothing prevented the accused from mentioning the real facts in reply notice Ex.P.7. The reply 19 C.C.No.28030/2017 notice is confined only to Ex.P1 i.e., cheque No.29 . So I am of the opinion that the accused has lodged complaint before various authorities only for the purpose of evading payment of money to the complainant. So I am of the opinion that there is nothing in the cross examination of complainant to disbelieve his version. So the documents produced by accused in support of his case are not at all supportive to his case.
25. The complainant has examined his younger brother viz., Chandra who has stated that he had given Rs.1,00,000/- to the complainant. He was cross examined at length. However in the cross examination nothing much has been elicited to disbelieve his version. It is true that there is discrepancy in the name of his father. But same is not supportive to the stand taken by the accused in his defence. Moreover merely because of none mentioning of word 'Late' before his father name itself is not a ground to discard his valuable evidence. In the cross examination of PW-2 nothing has been elicited to disbelieve his version regarding payment of the Rs.1,00,000/-. If at all there is any violation of law regarding payment of Rs.1,00,000/-, the competent authority 20 C.C.No.28030/2017 was at liberty to take legal action against him. For that reason it cannot be contended that the evidence given by him is false and unacceptable one.
26. Hence looking to the entire oral and documentary evidence on record, I am of the opinion that the complainant has proved his case to the satisfaction of the court. The accused has failed to rebut the presumption under Section 139 of Negotiable Instruments Act. When he has failed to rebut the presumption under Section 139 of Negotiable Instruments Act, onus is not shifted upon the complainant to prove his case to the satisfaction of the court. Under such circumstances, I am of the opinion that accused is liable for conviction. Accordingly I, answer point No.1 in the Affirmative.
27. Point No.2:- In view of my findings on the above point and the reasons stated therein, I proceed to pass the following:
ORDER Acting u/Sec.255 (2) of Cr.P.C., the accused is hereby convicted for the offence punishable u/Sec. 138 of N.I.Act.
The accused is sentenced to pay a fine of Rs.4,00,000/- (Rupees Four Lakhs 21 C.C.No.28030/2017 only), in default accused shall undergo simple imprisonment for 3 (three) months.
Out of fine amount, a sum of Rs.3,90,000/-(Rupees Three Lakhs and Ninety Thousand only) shall be paid to the complainant after appeal period is over.
Remaining fine amount of Rs.10,000/- shall be forfeited to State.
The bail bonds and surety bonds of the accused stand cancelled.
Office to furnish free copy of the Judgment to the accused forthwith.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by him is verified and then pronounced by me in the Open Court on this the 22nd day of January, 2020.) (MADHVESH DABER) XIX ADDL.C.M.M., Bengaluru.
ANNEXURE:
Witnesses examined on behalf of the Complainant:
PW.1 RAVI.H PW-2 CHANDRA.H
Witnesses examined on behalf of the Accused:-
DW.1 E.KUMAR ELUMALAI.
Documents marked on behalf of the Complainant:
Ex.P.1 Cheque.
Ex.P.1(a) Signature of the Accused.
Ex.P.2 Bank Pay In Slip.
Ex.P.3 Bank Endorsement.
Ex.P.4 Office copy of the legal notice.
Ex.P.5 Postal Receipt.
Ex.P.6 Postal Acknowledgment.
22 C.C.No.28030/2017
Ex.P.7 Reply Notice.
Ex.P.8 Examination in Chief of DW-1 by way of
Affidavit in C.C.No.28033 of 2017.
Ex.P.9 & Ex.P.10 Bank Passbooks.
Ex.P.11 & Ex.P.12 Pamphlet/Brochure and Visiting Card of the Manjunatha Enterprises.
Ex.P.13. Aadhaar Card of the DW-1.
Documents marked on behalf of the Accused:-
Ex.D.1 Bank Passbook.
Ex.D.1(a) Entries Dated 24.10.2016.
Ex.D.2 to Ex.D.4 Police Complaint and Human Rights
commission complaint copies.
Ex.D.5 to Ex.D.7 Postal Receipts.
Ex.P.8 Postal Acknowledgment.
Ex.P.9 Copy of Order passed by Karnataka State
Human Rights Commission, Bengaluru in
H.R.C.No.5118/10/31/2017(b-2).
(MADHVESH DABER)
XIX ADDL.C.M.M., Bengaluru.
23 C.C.No.28030/2017
22.01.2020
Judgment
(Judgment pronounced in the open court vide separate order) ORDER Acting u/Sec.255 (2) of Cr.P.C., the accused is hereby convicted for the offence punishable u/Sec. 138 of N.I.Act.
The accused is sentenced to pay a fine of Rs.4,00,000/- (Rupees Four Lakhs only), in default accused shall undergo simple imprisonment for 3 (three) months.
Out of fine amount, a sum of Rs.3,90,000/-(Rupees Three Lakhs and Ninety Thousand only) shall be paid to the complainant after appeal period is over.
Remaining fine amount of Rs.10,000/- shall be forfeited to State.
The bail bonds and surety bonds of the accused stand cancelled.
Office to furnish free copy of the Judgment to the accused forthwith (MADHVESH DABER) XIX ADDL.C.M.M., Bengaluru.
24 C.C.No.28030/2017************ Corrected************