Bangalore District Court
Sri.J.M.Sampath vs Sri.K.J.Harish Gowda on 17 July, 2018
1 C.C.No.29449/2015 J
THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 17thday of July, 2018
Present: Smt. Saraswathi.K.N, B.A.L., LL.M.,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.29449/2015
Complainant : Sri.J.M.Sampath,
S/o. J.V.S. Mani Rao,
Aged about 55 years,
A/at No.302, 2nd Floor,
Santhoj Cottage, No.107,
Surveyor Street,
Basavanagudi,
Bengaluru -560 004.
(Rep.by Sri.M.N.Satya Raj,
Advs.,)
- Vs -
Accused : Sri.K.J.Harish Gowda,
S/o.K.Jagannath,
Major,
No.13, 3rd Main Road,
R.M.V. Extension,
Dollors Colony,
Bengaluru -560 094.
(Rep. by Sri. C.P.Praveen., Adv.,)
Case instituted : 23.7.2015
Offence complained : U/s 138 of N.I Act
of
2 C.C.No.29449/2015 J
Plea of Accused : Pleaded not guilty
Final Order : Accused is Convicted
Date of order : 17.7.2018
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, the Accused represented himself as a dealer in marble and granite and agreed to get the Italian Marble directly imported from Italy for his building purpose and in that connection, the Accused received totally a sum of Rs.17,50,000/= on three different dates.
3. The Complainant has submitted that, the Accused took the first payment of Rs.10 Lakhs from him on 17.1.2015 by way of cash and Rs.2,50,000/= by way of cash on 19.1.2015 and Rs.5,00,000/= through cheque on 10.2.2015. The Accused had agreed to get the marble directly from Italy within fifteen days to one month and after the lapse of the said promised period, time to time, when he contacted the Accused for the supply of marble, he was postponing the same on pretext or the other.
4. The Complainant has further submitted that, after almost five months, the Accused informed him that, he was 3 C.C.No.29449/2015 J not in a position to get the supply of the marble and in part payment of the amount received by him, he has issued the cheque for Rs.10 Lakhs vide cheque bearing No.000008 dated 9.6.2015 drawn on the HDFC Bank drawn in his favor, with an assurance that the same would be duly honored on its presentation on the due date.
5. The Complainant has further submitted that, as per the instructions of the Accused, when he presented the said cheque for encashment, the same cheque came to be dishonored as "Funds Insufficient" Vide Bank Endorsement dated: 10.6.2015. Thereafter he got issued a legal notice to the Accused on 19.6.2015 through RPAD calling him to pay the amount covered under the cheque within15 days from the date of the receipt of the said legal notice. Despite the service of the same, the Accused has neither replied nor has he complied with the demand made in the said legal notice. Hence the present complaint.
6. The Complainant submits that, the dishonour of the cheque by the Accused has been malafide, intentional and deliberate. Feeling aggrieved by the conduct of the Accused, he has filed the present complaint praying that they be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
4 C.C.No.29449/2015 J7. The Complainant has led his pre-summoning evidence on 16.12.2015. He has filed his affidavit-in-lieu of his sworn statement, in which, he has reiterated the complaint averments. Prima-facie case has been made out against the Accused and he has been summoned vide the order of the same date.
8. The Accused has appeared before the court on 8.11.2016. He has been enlarged on bail and the substance of the accusation has been read over to him, to which he has pleaded not guilty and has stated that he has his defence to make.
9. In his post summoning evidence stage, the Complainant has examined as P.W.1 and he has filed his affidavit, in which he has reiterated the complaint averments.
10. In support of his oral evidence, P.W.1 has produced and relied upon the documentary evidence as per Ex.P1 to P7 which is as follows:-
The Original Cheque dated 9.6.2015 as per Ex.P1, the signature on the said cheque identified by C.W.1 as that of the Accused as per Ex.P1 (a), the Bank Memo as per Ex.P.2, the office copy of the Legal Notice as per Ex.P.3, the signature on the said document as that of the wife of the Accused as per Ex.P.3(a), the un-served legal notice dated 16.5.2016 as per Ex.P4, the Postal Envelope as per Ex.P5, 5 C.C.No.29449/2015 J the Postal Receipt as per Ex.P6 and the Postal Acknowledgement as per Ex.P.7.
11. The statement of the Accused u/Sec.313 of Cr.P.C. is recorded. He has denied the incriminating evidence found against him and has chosen to lead his defence evidence.
12. The Accused is examined as D.W.1 on oath and the gist of his defence is that he knows the Complainant and he came in contact with him, as the former had approached him for the purpose of purchasing the granites for his house construction purpose. He had got purchased granites worth Rs. 3.5 Lakhs to him through a person known to him. Apart from this, as the Complainant was in requirement of granites and he could not arrange for the same, he got it supplied to him through someone else. The Complainant had paid Rs.5 Lakhs to him, out of which he had got supplied granites worth Rs.3.5 Lakhs to him and he was liable to return the balance amount of Rs.1.5 Lakhs to him. He had not charged any commission amount for this transaction from the Complainant. Inspite of it, the Complainant had got him summoned to the Sadashivanagar Police Station and got a statement in writing from him by way of admitting his liability for Rs.17 Lakhs. Such statement was got recorded from him in the police station forcibly by using his influence in the Police Station and his six cheques were collected in the Police Station.
6 C.C.No.29449/2015 J13. Further according to D.W.1, as he was liable to return to him only Rs.1.5 Lakhs, he has transferred Rs.50,000/- to his account through account transfer after one week from then. He had paid him the remaining amount of Rs.1 Lakh in the Police Station itself. After he paid the entire of Rs.1.5 Lakhs to the Complainant, he sought for the return of his six cheques. However instead of returning them to him, the Complainant told him that he was going to file case against him.
14. It is the further defence of the Accused that, he has not been served with any legal notice said to have been got issued by the Complainant to him and that he was served with the summons of this court in the Police Station, where he was summoned. As he has already supplied granites worth Rs.3.5 Lakhs and returned Rs.1.5 Lakhs to the Complainant, he is not liable to pay him any amount. Accordingly, he has prayed for his acquittal.
15. D.W.1 has been cross-examined extensively by the learned counsel for the Complainant.
16. It is seen that, during the cross-examination of D.W.1, the following documents have been marked through him by confronting them to him:-
i) The Diary as per Ex.P8 and the signature of the Accused on the page with the date 17.1.2015 as 7 C.C.No.29449/2015 J per Ex.P8(a) and the signature on the page with date 28.6.2015 as per Ex.P8(b);
ii) The two Bank/Cash Vouchers dated 19.1.2015 and 17.1.2015 as per Ex.P9 and P10 and the signatures on the said vouchers identified and admitted by the Accused as his signatures as per Ex.P9(a) and 10(a) respectively;
17. The learned counsel for the Complainant has filed his written arguments, in which, he has prayed for the conviction of the Accused on the following grounds:-
i) The Complainant has fulfilled the ingredients of Sec.138 of the N.I.Act;
ii) The Complainant has examined him as P.W.1 and has relied upon the documentary evidence as per Ex.P1 to P10 in support of his case;
iii) During the cross-examination of the Complainant, nothing is elicited from his mouth, so as to disbelieve his evidence;
iv) The Accused has led his evidence and he has examined as D.W.1, but there is no proof of his defence version;
v) The Accused has admitted in his cross-
examination that, he has no document to show that he is doing granite business on commission basis and that during the year 2014-15, no 8 C.C.No.29449/2015 J company existed and that he had no registered place of his business;
vi) Though the Accused has claimed that there is no service of the legal notice on him, he had admitted in his cross-examination that, his address shown in the legal notice is correct and that his wife has received the legal notice;
vii) The Accused has admitted that he has not made any payments to the Company which supplied the granites to the Complainant. He has also admitted that he has not caused any notice to the Complainant specifying the name of the company which has supplied the granites to him as well as the quantity of the granites supplied and the price of such granites supplied to the company;
viii) The Accused has admitted in his cross-
examination that, a sum of Rs.5 Lakhs was transferred to his account by the Complainant through RTGS of 10.2.2015 and so far as the other two payments for concerned, he has admitted his signatures on the two Bank/Cash Vouchers dated:-19.1.2015 and 17.1.2015 as per Ex.P9(a) and 10(a) and he has also admitted the fact that, he was in due and in discharge of the said dues, 9 C.C.No.29449/2015 J he has made the endorsement in a diary which has been identified and admitted by him;
ix) The only defence of the Accused is that, the Complainant had summoned him to the Sadashivanagar Police Station and obtained his signatures on blank papers in the house of his Manager, but he has stated in his cross-
examination that, till date, he has not caused either a personal notice or a legal notice to the Complainant with regard to the alleged obtaining of his signatures on the blank white papers in the house of the Manager by the Complainant and the signatures alleged to have been obtained from him in the Police Station forcibly as claimed by him;
x) The Accused has admitted that till date, he has not taken any criminal action against the Complainant alleging that, the latter (Complainant) had obtained his signatures on blank documents;
xi) The entire cross-examination of the Accused put together will falsify his defence and the Complainant has proved his case. The admissions elicited from the Accused clearly establish the case of the Complainant and as such, as the Accused failed to prove his defence, he is liable to be 10 C.C.No.29449/2015 J punished for the offence punishable u/Sec.138 of N.I.Act.
Accordingly he has prayed for the conviction of the Accused.
18. Per Contra, the learned Defence Counsel has also filed his written arguments, in which, he has prayed for the acquittal of the Accused on the following grounds:-
i) The main point of argument is with regard to the transfer of cheques. According to the Accused, as he was not having the entire range of Italian marbles, for which, he had introduced the Complainant to some other dealers, from whom, the Complainant got the Italian Marbles and the respective payments were directly made to the said persons/dealers by the Complainant himself;
ii) The Accused had supplied the marbles to the sum of Rs.3,50,000/= to the Complainant out of the amount that he had received and he has returned the balance amount of Rs.1,50,000/= to the Complainant, which he has acknowledged in his evidence during his cross-examination;
iii) The Complainant has forcefully collected few cheques from the Accused in the Sadashivanagar Police Station and the police had threatened the 11 C.C.No.29449/2015 J Accused to comply with such illegal demands made by the Complainant and by having the fear that the police may file false cases against him, the Accused gave the documents in the Police Station and also handed over few cheques to the Complainant and hence he has given the cheque in question to the Complainant;
iv) The Complainant has clearly establishes that, Ex.P.1 cheque was not voluntarily issued by the Accused to him to cover a legal liability;
v) There is no valid service of legal notice, since the Postal Envelope at Ex.P.5 goes to show that, the legal notice has been returned as "Insufficient Address" and later the notice as per Ex.P.3 was delivered to the wife of the Accused with the help of the police;
vi) The Complainant has also clearly admitted that the legal notice has not been served upon the Accused, while another notice is served on the wife of the Accused. Hence, as per the decision of the Hon'ble Apex Court in the case of M.D.Thomas Vs. P.S.Jaleel and another, reported in 2010 (I) SCC 1387, there is no valid service of legal notice and hence on this ground alone, the complaint is liable to be dismissed;12 C.C.No.29449/2015 J
vii) The complaint is also not maintainable, since there is no valid legal notice got issued by the Complainant, since the prayer column in the office copy of the legal notice at Ex.P.3 clearly differs from the prayer column in the returned notice at Ex.P.4 and in such circumstance, the Complainant has not explained, as to why he has made such insertion in the prayer column in the legal notice at Ex.P.4. Hence on this ground also the Accused deserves to be acquitted;
viii) The Complainant has produced a Diary as per Ex.P.8, in which, the Accused has only admitted his signature, but the Complainant has failed to examine the person to whom, the said Diary belongs to?
ix) Moreover, there is no reason assigned by the Complainant for the non-production of the said diary along with the complaint and there is no pleading with regard to the same and this also creates a serious doubt about the documentary evidence at Ex.P.8;
x) During the cross-examination of the Accused, the Complainant has produced the Two Vouchers at Ex.P.9 and P.10, which are the Vouchers of the "Sri.Dharma". But the Complainant has failed to 13 C.C.No.29449/2015 J explain as to why he has produced the said documents and their relevancy to the present case.
Moreover the Complainant has failed to examine the person who whom the said documents belong to;
xi) There is no reason assigned by the Complainant for the non-production of the said vouchers at the earlier stage of hearing. Hence the said documentary evidence also creates a serious doubt in the case of the Complainant;
xii) The defence of the Accused is that, the cheque in dispute was not given by him to the Complainant towards any debt or liability and the Complainant has failed to prove that there was any debt or other liability as against the Accused;
xiii) The Accused has probablized his defence and he has satisfactorily rebutted the presumptions available in favour of the Complainant;
xiv) The Accused has completely disproved the case of the Complainant and nothing is elicited from him in his cross-examination by the counsel for the Complainant;
Accordingly he has prayed to acquit the Accused.
14 C.C.No.29449/2015 J19. In support of his arguments, the learned Defence Counsel has relied upon the following decisions:-
1. In V.A.Sivaraman Vs., Vasu & Anr., reported in 2003 (2) DCR 464;
2. In M.D. Thomas Vs., P.S.Jaleel and another., reported in 2009 - 14 - SCC -398;
3. In M.S.Narayana Menon @ Mani Vs., State of Kerala & Anr., reported in 2006 (2) DCR 305;
4. In M/s. New Tech Pesticides Limited Vs., M/s. Pavan Commercial Corporation and another., reported in 2005 (2) DCR 675;
5. In M/s. Ganesh Flour Mills Vs., Jeewan Kumar and another., reported in 2004 (2) DCR 574;
6. In Kamalammal Vs., C.K. Mohanan & Anr., reported in 2006 (2) DCR 494;
7. In Kundal lal Rallaram Vs., Custodian Evacuee Property, Bombay., reported in AIR 1961 SC 1316;
20. By way of reply arguments, the learned counsel for the Complainant has argued that, though the Accused has taken the technical defence of the non service of the legal notice in his cross-examination, he has clearly admitted the correctness of his address and that his wife has received the said legal notice and he has also admitted that his wife has informed him about the same. Therefore this is sufficient to hold that, there is a valid service of the legal notice.
15 C.C.No.29449/2015 J21. It is argued that, though in the returned legal notice at Ex.P.4, the amount written in handwriting as Rs.10 Lakhs is highlighted by the learned Defence Counsel, by pointing out that, such hand written insertion is not found in the office copy of the legal notice at Ex.P.3, the amount of Rs.17,50,000/= claimed in the legal notice at Ex.P.3 is inclusive of the cheque amount of Rs.10 Lakhs. Therefore it is argued that, there is no merit in the argument advanced by the learned Defence Counsel in this regard.
22. It is argued that, the argument canvassed by the learned Defence Counsel with regard to the Diary at Ex.P.8 is also not sustainable, since the Diary at Ex.P.8 is the one maintained in respect of the transaction between two private individuals and as such, there is no necessity that the writings in the said diary should be in a particular format or in the form of writings in the letter heads as could be found in the official correspondence/s. Therefore the Diary at Ex.P.8 is a conclusive piece of evidence.
23. It is also argued that, the Accused has admitted his signature as well as the signature of his wife in the Diary at Ex.P.8 and as such he is estopped from denying his awareness about the contents of the said diary.
24. It is not the defence of the Accused that his signatures in the diary at Ex.P.8 were obtained by the 16 C.C.No.29449/2015 J Complainant forcefully and the allegation of coercion with regard to his signatures by the Accused is only in respect of cheques and not in respect of his signature in the Diary. Therefore when the Accused has clearly admitted his signatures in the Diary at Ex.P.8 to P.10, there is no reason for this court to disbelieve the said documentary evidence and as such the Complainant has proved his case beyond reasonable doubt. Accordingly, he has prayed for the conviction of the Accused.
25. The learned Defence Counsel has also addressed his reply arguments, during the course of which, he has argued that, even during the course of his reply arguments, the learned counsel for the Complainant does not say as to, to whom the Diary at Ex.P.8 belongs to? and even if the said Diary is taken into consideration by this court, it proves the clearance of the liability of the Accused to the tune of Rs.5 Lakhs and the entry in Ex.P.8 to the effect that, the Accused has cleared his liability of Rs.5 Lakhs is sufficient to consider the said documentary evidence as a proof in support of the defence of the Accused. Accordingly he has argued that the documentary evidence at Ex.P.8 is not a reliable piece of evidence and as such the Accused deserves to be acquitted. Accordingly he has prayed for the acquittal of the Accused.
26. I have considered the submissions and perused the record carefully. I have also carefully gone through the 17 C.C.No.29449/2015 J written arguments filed by the learned Counsel for the Complainant.
27. Sec.138 of the Negotiable Instruments Act has been enacted to lend credibility to the financial transactions.
The main ingredients of the offence under Sec.138 of the Negotiable Instruments Act are:-
(i) Drawing up of a cheque by the Accused towards payment of an amount of money, for the discharge, in whole or in part, of any debt or any other liability;
(ii) Return of the cheque by the Bank as unpaid;
(iii) The drawer of the cheque fails to make the payment of the said amount of money within 15 days of the receipt of the notice under the proviso (b) to Section
138.
The Explanation appended to the Section provides that, the "debt or other liability" for the purpose of this Section means a legally enforceable debt or other liability.
28. Apart from this, Sec.139 of the Negotiable Instruments Act lays down a presumption in favour of the holder of cheque in the following terms:-
"It shall be presumed, unless the contrary is proved, that:-
The holder of a cheque received the cheque, of the nature referred to in Sec. 138, for the discharge, in whole or in part, of any debt or other liability".18 C.C.No.29449/2015 J
29. Also, Sec.118 of the Negotiable Instruments Act states, "Until the contrary is proved, the following presumptions shall be made:-
(a) That every Negotiable Instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration."
30. Thus, the Act clearly lays down presumptions in favour of the Complainant with regard to the issuance of the cheque by the Accused towards the discharge of his liability in favour of the Complainant.
31. Under the scheme of the Act, the onus is upon the Accused to rebut the presumptions in favour of the Complainant by raising a probable defence.
32. It is a well settled position of law that, the defence of the Accused, if in the nature of a mere denial of the case of the Complainant will not be sufficient to hold it as a probable defence. The bare denial of the passing of consideration apparently does not appear to be any defence. Something which is probable must be brought on record for getting the benefit of shifting the onus of proof to the Complainant.
19 C.C.No.29449/2015 J33. It is also a well settled position of law that, once the cheque is proved to be relating to the Account of the Accused and he accepts and admits the signature on the said cheque, then the initial presumption as contemplated under Sec. 139 of the N.I.Act has to be raised by the courts in favour of the Complainant. The presumption referred to in Sec.139 of the N.I.Act is a mandatory presumption and not a general presumption, but the Accused is entitled to rebut the said presumption. What is required to be established by the Accused in order to rebut the presumption is different from each case under given circumstance. But the fact remains that a mere plausible explanation is not expected from the Accused and it must be more than a plausible explanation by way of rebuttal evidence. The defence raised by the Accused by way of rebuttal evidence must be probable and capable of being accepted by the court.
34. No doubt the initial mandatory statutory presumptions under Sec.118 and 139 of the N.I.Act are in favour of the Complainant. However they are rebuttable presumptions and the Accused is expected to rebut the presumptions by raising a probable defence.
35. Such being the legal position, it would be pertinent to refer to the defences raised by the Accused to rebut the presumptions in favour of the Complainant in this case.
20 C.C.No.29449/2015 J36. Admittedly there is no dispute with regard to the fact of the acquaintance between the parties as well as with regard to the business relationship between them and also the purpose for which the Complainant had approached the Accused. Likewise, there is also no dispute with regard to the fact that, the Accused had helped the Complainant in securing the Italian Marbles and the granite for the purpose of the building of the latter (Complainant) and that the cheque in dispute belongs to the Accused with his signature on it and that he has issued the same in favour of the Complainant.
37. However, there is a serious dispute between the parties with regard to the liability of the Accused under the subject cheque for the amount covered under the said cheque and also a serious dispute with regard to the total amounts said to have been received by the Accused from the Complainant.
38. In this regard, it is pertinent to note that, before considering the matter on merits, the Accused has raised the technical defence of the non-service of the legal notice and as the finding to be given on this point decides about the very maintainability of the Complainant, it is necessary to consider this defence of the Accused as the first and foremost point for consideration.
21 C.C.No.29449/2015 J39. In this regard, it is pertinent to note that, as per the complaint averments, in pursuance of the dishonour of the cheque in dispute, the Complainant is said to have caused the legal notice to the Accused on 19.6.2015 through RPAD which is returned back with a shara "Insufficient Address"
and thereafter the Complainant is said to have personally delivered the notice on the wife of the Accused on 27.6.2015 and inspite of it, the Accused is alleged to have neither replied nor paid the amount covered under the said cheque to the former.
40. In support of this pleading, the Complainant has reiterated the same facts even in his affidavit and he has produced the documentary evidence at Ex.P3, which is the office copy of the legal notice dated: 19.6.2015 and the returned RPAD Envelope along with the notice in it, the Postal Receipt and the Postal Acknowledgement as per Ex.P.4 to P.7 respectively. As could be seen from the Postal Shara at Ex.P.5, the said legal notice is returned un-served as "Insufficient Address, returned to sender".
41. Therefore it is not in dispute that, the legal notice caused to the Accused through RPAD is returned un-served due to in complete address. However, the Complainant has relied upon the office copy of the legal notice at Ex.P.3, on the basis of which, he claims that, the same has been duly served upon the wife of the Accused, which is received by her 22 C.C.No.29449/2015 J with her signature on it as per Ex.P.3(a) on 27.6.2015 at 5.20 p.m.
42. This fact is in fact elicited even from the Accused in his cross-examination. Further the Accused has also clearly admitted in his cross-examination that, his wife has brought to his knowledge about the said legal notice and that he has not issued any reply notice to the same.
43. In this regard, the learned Defence Counsel has relied upon the decision of the Hon'ble Apex Court in M.D.Thomas Vs. P.S.Jaleel and another reported in2010 (I) SCC Cri.1387, wherein it had been clearly held that:-
"The notice of the demand served upon the wife of the Accused, therein cannot be held to be a valid notice and there is no escape from the conclusion that the Complainant had not complied with the requirement of giving notice in terms of Clause (b) proviso of Sec.138 of N.I.Act".
44. No doubt, even in the present case, the legal notice is admittedly served upon the wife of the Accused, but other than having produced the office copy of the legal notice at Ex.P.3, which contains the signature of the wife of the Accused for having received the same as per Ex.P.3(a), the further admission elicited from the Accused in this regard 23 C.C.No.29449/2015 J that, his wife has informed him about the said legal notice is sufficient to come to the conclusion that, the Accused cannot successfully claim the technical defence of the non-service of the legal notice upon him.
45. Even otherwise, in this regard I rely upon the following decision of the Hon'ble apex Court in CC Alavi Haji Vs., Palapetty Muhammed and ano., reported in 2007 AIR SCW 3578, wherein it had been clearly held that:-
" The Accused is permitted to deposit the cheque amount within 15 days from the date of his appearance before the court, even if his defence is that he was not served with the legal notice".
46. Therefore, it cannot be the sole defence of the Accused that, there is no service of the legal notice on him and that even if it was served upon him personally, the situation would have been different. Thus, it is clear that, though the Accused has tried to take the technical defence of the alleged non-service of the legal notice on him, he has failed to establish the same successfully before this court.
47. Now coming to the case on merits, there is no dispute in so far as the transaction to the extent of Rs.5 Lakhs through RTGS by the Complainant to the Accused on 10.2.2015 is concerned. In fact, the Accused has admitted 24 C.C.No.29449/2015 J the same even in his cross-examination. However, the Accused would seriously dispute his liability in respect of the alleged balance amount of Rs.12,50,000/= by claiming that, apart from the aforesaid amount of Rs.5 Lakhs that has been transferred to him through RTGS by the Complainant, he had also received a sum of Rs.10 Lakhs on 17.1.2015 and Rs.2.5 Lakhs on 19.1.2015 as per Ex.P.9 and P.10 and the relevant entries at Ex.P.9 (a) and P.10 (a) respectively.
48. However, though initially the Complainant has neither pleaded nor proved with regard to the existence of the Vouchers as per Ex.P.9 and P.10 either in the legal notice or in the complaint or in his affidavit, during the course of the cross-examination of the Accused, the said two vouchers have been confronted to him, in respect of which, the Accused has only admitted his signatures as per Ex.P.9(a) and P.10(a) respectively, but has denied the contents of the same.
49. Therefore, according to the Accused, though he has signed on the vouchers at Ex.P.9 and P.10, he has not at all received any of the amounts shown in the respective vouchers and as such the claim of the Complainant based upon the said vouchers is false according to him.
50. Further, it is pertinent to note that, during the cross-examination of the Accused, a Diary consisting of 25 C.C.No.29449/2015 J entries in the few pages said to have been made by the Accused in his own hand writing is marked as Ex.P.8 and the entry in the said Diary dated:-17.1.2015 along with his signature have been confronted him and he has identified and admitted only his signature as per Ex.P.8(a) in the said document.
51. But it is pertinent to note that, as rightly pointed out by the learned counsel for the Complainant, the defence of the Accused with regard to his signatures having been allegedly forcibly obtained from him in the Sadashivanagar Police Station is only in respect of the cheques and some blank documents and not in the Dairy at Ex.P.8. In such circumstance, when the Accused does not allege that his signatures in the Diary as per Ex.P.8 (a), P.8(b) and on the Vouchers as per Ex.P.9(a) and P.10(a) were obtained from him forcibly in the Police Station, there cannot be any reason for this court to come to the conclusion that, the allegation of the Accused with regard to his signatures having been obtained in the Police Station forcibly on the documents do not apply to the signatures found in the Diary at Ex.P.8 and on the Vouchers at Ex.P.9 and P.10.
52. In such circumstance, when it is not the defence of the Accused that, his signatures in Ex.P.8 were obtained from him forcibly by the Complainant, then it is for the Accused to convince this court, as to, under what 26 C.C.No.29449/2015 J circumstance, he was made to sign in the relevant pages of the Diary at Ex.P.8. In this regard, it is also elicited from the Accused that, generally he does not sign on any blank papers at the say of any one.
53. In such circumstance, when the Accused claims that the contents found written on the relevant pages of the Diary at Ex.P.8 dated: 28.6.2015 has not been written by him, then he has to explain as to, why he has signed on the relevant pages at Ex.P.8 as per Ex.P.8 (a) and P.8 (b) respectively. But interestingly there is no explanation offered by the Accused in this regard. Moreover, the Accused is not a lay person and as such his silence and failure to offer explanation in this regard cannot be believed by this court to be his innocence.
54. Further the Accused has claimed that, he has signed as per Ex.P.8 (a) in the house of the Manager of the Complainant by name Prasad in Girinagar about 2 ½ years back from now and he has not alleged that, at that time, there was either any threat or compulsion on him to sign in the said Diary at Ex.P.8.
55. In such circumstance, the mere denial on the part of the Accused with regard to the contents of the relevant pages of the Diary at Ex.P.8 as well as the Vouchers at 27 C.C.No.29449/2015 J Ex.P.9 and P.10 cannot be considered to be a valid defence sufficient to rebut the case of the Complainant.
56. Moreover, the Accused has clearly admitted during course of his cross-examination that, till date, he has not taken any action against the Complainant alleging that, the latter has obtained his signatures on blank documents and though he has denied that, he had no impediment to cause either the notice to the Complainant or to take legal action against him for his aforesaid alleged acts, he has failed to come out with an explanation, as to, what was the impediment on his part to take such action against the Complainant.
57. Moreover, any person of ordinary prudence placed in the situation of the Accused would not have kept quite even after having allegedly issued his 6 cheques in the Police Station without taking appropriate legal action either against the concerned police or against the Complainant in this regard. Therefore the mere explanation offered by the Accused that, due to the fear of the police and apprehending that, if he did not listen to the Police, they would have lodged several cases against him cannot be a valid explanation that could be accepted by this court.
58. Even otherwise, even if the defence of the Accused that, his 6 cheques were collected forcibly in the 28 C.C.No.29449/2015 J Sadashivanagar Police Station is believed by this court for a moment to be true, then nothing prevented the Accused from immediately causing stop payment instructions in respect of his cheques to his bank. However, as could be seen from the cheque return memo at Ex.P.2, the cheque in dispute is returned as "Funds Insufficient" and not for any other reason.
59. Therefore, it clearly goes to show that, when the Accused had the clear knowledge of the fact that, his alleged signed blank cheques were in the custody of the Complainant illegally as claimed by him, there was no reason for the Accused to have kept quite by ignoring to take steps as a man of ordinary prudence would have done in a similar facts situation. Therefore the conduct of the Accused in this regard also clearly leads to an inference that his defence is not a probable one.
60. Moreover, it is pertinent to note that, though in his chief-evidence, the Accused has alleged that, his 6 cheques were collected in the Police Station forcibly, during the cross- examination of the Complainant, it is suggested to him that, he has collected the cheque in question, cheque with no.000009 and 6 other cheques from him. Thereafter it is further suggested to the Complainant that, 8 cheques were collected from the Accused with the intervention of the police by him.
29 C.C.No.29449/2015 J61. This clearly goes contrary to the defence of the Accused between what is claimed by him in his chief evidence, wherein he has claimed that, his 6 cheques were collected in the Police Station, while in the cross-examination he claims that his eight cheques were collected in the Police Station. Therefore this contradiction also creates a serious doubt in the defence of the Accused.
62. Further, it could be seen that, during the course of his arguments, the learned Defence Counsel has argued that, the Complainant has not pleaded about the documents at Ex.P.8 to P.10 either in the legal notice or in the complaint or in his affidavit. However, the right of the confronting the document/s is available to a party to the proceeding without the production of the same earlier and without pleading about the particular document and by way of confronting the same to the adversary, during the course of the cross- examination of the latter. Therefore there cannot be a general rule applicable in all the cases to accept that the Complainant should have pleaded about the documents that were confronted by him to the Accused and in the present case about the documents at Ex.P.8 to P.10 by the Complainant either in the complaint or in his affidavit.
63. Moreover, the production of the documents i.e., the Vouchers at Ex.P.9 and P.10 by the Complainant does not 30 C.C.No.29449/2015 J lead to a doubtful circumstance in his case, since even as per Ex.P.9 and P.10, the respective amounts which are shown to have been paid to the Accused under them is by way of cash and for the same reason, the said documents are shown as Bank/Cash Vouchers. This clearly corroborates the pleading in the complaint that, the respective payments of the amount of Rs.12,50,000/= were made by the Complainant to the Accused through cash.
64. Therefore, there cannot be any doubt in the case of the Complainant only because of the fact that, the Diary at Ex.P.8 and the Vouchers at Ex.P.9 and P.10 came to be produced by the Complainant only during the course of cross-examination of the Accused and not before. Therefore the argument of the learned Defence Counsel in this regard holds no water.
65. It is further pertinent to note that, the Accused himself has admitted even in his cross-examination that, he has not made any payment to the suppliers of the granites to the Complainant and it is in fact even the case of the Complainant that, he has made payments to the person who has supplied the granites to him.
66. Thus, when the entire evidence on record is carefully appreciated by this court, it clearly leads to an inference that, the only defence of the Accused is that, the 31 C.C.No.29449/2015 J Complainant has collected the cheques and the other documents from him in the Police Station forcibly with the intervention of the police and that in fact, there is no liability on his part under the subject cheque.
67. However, when the Complainant has been able to place reliable and cogent material in support of his claim that, he has paid a total sum of Rs.17,50,000/= to the Accused, the Accused has failed to probabalize his defence and as such though the Accused has made his serious efforts to rebut the case of the Complainant, he has failed in his attempt to do so and as such, the Complainant is entitled to the benefit of the presumptions u/Sec.118 and 139 of the N.I.Act. Accordingly, I proceed to pass the following:-
ORDER By exercising the power-conferred u/s 255(2) of Cr.P.C., the Accused is hereby convicted of the offence punishable u/s 138 of the Negotiable Instruments Act.
He is held liable to pay a fine of Rs.10,50,000/= (Rupees Ten Lakhs and Fifty Thousand Only).
If the fine amount is so realized, Rs.10,40,000/= (Rupees Ten Lakhs and Forty Thousand Only) is ordered to be paid to the Complainant as Compensation and the balance of Rs.10,000/= (Rupees Ten Thousand only) is ordered to be adjusted towards cost to the State Exchequer.32 C.C.No.29449/2015 J
In default of payment of such compensation, he shall undergo Simple Imprisonment for 1 (one) year.
His bail bond stands discharged.
Issue free copy of the Judgment to the Accused forthwith.
(Dictated to the Stenographer, transcribed by her and print out taken by her, verified, corrected and then pronounced by me in the open court on this the 17th day of July, 2018).
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri.J.M.Sampath;
2. List of documents exhibited on behalf of the Complainant:-
Ex.P-1 : Original Cheque;
Ex.P-1(a) : Signature of the Accused;
Ex.P-2 : Bank Memo;
Ex.P-3 : Office Copy of the Legal Notice;
Ex.P-3(a) : Signature of the wife of the Accused;
Ex.P-4 : Un-served legal notice;
Ex.P-5 : Postal Envelope;
Ex.P-6 : Postal Receipt;
Ex.P-7 : Postal Acknowledgement.
(Marked through the Accused)
Ex.P8 : Dairy;
Ex.P.8 (a) & (b) : Signatures of the Accused;
Ex.P.9 & P.10 : Cash Vouchers;
Ex.P9(a) & : Signatures of the Accused.
10(a)
33 C.C.No.29449/2015 J
3. List of witness/s examined on behalf of the Accused:-
D.W.1 : Sri.K.J.Harish Gowda
4. List of documents exhibited on behalf of the Accused:-
- Nil -
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.34 C.C.No.29449/2015 J
17.7.2018 Judgment pronounced in the open court vide separate order.
ORDER By exercising the power-conferred u/s 255(2) of Cr.P.C., the Accused is hereby convicted of the offence punishable u/s 138 of the Negotiable Instruments Act.
He is held liable to pay a fine of Rs.10,50,000/= (Rupees Ten Lakhs and Fifty Thousand Only).
If the fine amount is so realized, Rs.10,40,000/= (Rupees Ten Lakhs and Forty Thousand Only) is ordered to be paid to the Complainant as Compensation and the balance of Rs.10,000/= (Rupees Ten Thousand only) is ordered to be adjusted towards cost to the State Exchequer.
In default of payment of such compensation, he shall undergo Simple Imprisonment for 1 (one) year.
His bail bond stands discharged.
Issue free copy of the Judgment to the Accused forthwith.
XVI ACMM, B'luru.