Bangalore District Court
Krishna Tower vs R/At No.42 on 30 July, 2018
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 30th DAY OF JULY, 2018
PRESENT
Sri. Shridhar Gopalakrishna Bhat, LL.B
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.57415/2017
TATA Capital Financial Services Ltd.,
Having its Office at No.82/1, 2nd Floor,
COMPLAINANT Krishna Tower, Near Wakf Board, Richmond
Road, Bengaluru - 560 025.
Reptd by its Authorized Signatory -
Mr. Ajay Kumar K.B
Mr. P. Veera Kumar
ACCUSED R/at No.421, 3rd 'B' Main, 3rd Block, HRBR
Layout, Kalyan Nagar, Bengaluru - 043.
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused is acquitted
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU
2 C.C. No.57415/2017
JUDGMENT
The complainant Company has approached this court through its Authorized Signatory with this complaint under Sec.200 Cr.PC against the accused for the offence punishable under Section 138 of Negotiable Instruments Act. (herein after referred as N.I. Act)
2. The case of the complainant is that, the accused had approached Complainant Company for availing loan facility vide loan agreement No.7000379374. While availing the loan, the accused had also executed various loan forms agreeing to abide by the terms and conditions of repayment of the loan amount in equated monthly installments. Towards discharge of the part liability of the loan amount, the accused had issued cheque bearing No.561718 dated 19.05.2017 for Rs.17,06,800/- drawn on Union Bank of India in favour of the complainant company.
3. It is further case of the complainant that the complainant presented the said cheque for encashment through its banker - HDFC Bank, Richmond Road, Bengaluru and the said cheque was returned dishonoured for the reason "funds insufficient" as per memo dated 24.05.2017. Thereafter the complainant company got issued legal notice dtd.09.06.2017 to the accused by RPAD intimating the dishonour of cheque and calling upon the accused to pay the cheque amount within stipulated period. Though the said notice was served on the 3 C.C. No.57415/2017 accused on 13.06.2017, the accused did not comply with the lawful demand made in the said notice and thereby intentionally committed the offence punishable U/s.138 of N.I. Act. Under these attending circumstances, the complainant company is constrained to file the present complaint and accordingly prayed for conviction of the accused and for grant of compensation in its favour in accordance with law in the interest of justice and equity.
4. After filing of this complaint, cognizance was taken for the offence punishable U/s.138 of N.I. Act. Sworn statement of the representative of the complainant company was recorded. This court was satisfied as to prima facie case made out by the complainant for issuance of the summons to the accused and accordingly Criminal Case was registered against the accused for the offence punishable U/s.138 of N.I. Act and summons was ordered to be issued to the accused.
5. In pursuance of the summons issued by this court, the accused has put up his appearance through his counsel and enlarged on bail. Thereafter plea was recorded. The accused has denied the substance of accusation and claimed for trial.
6. In order to prove the case of the complainant, the representative of the complainant company is examined as CW.1 and got marked as many as six documents as per Ex.P1 to P6 and closed his evidence. After closure of the complainant's 4 C.C. No.57415/2017 side evidence, statement of the accused as provided U/s.313 of Cr.PC was recorded. The accused had denied the incriminating circumstances found in the evidence of CW.1. The accused himself examined as DW.1 and got marked two documents as per Ex.D2 & D3 and got marked one document as per Ex.D1 during cross-examination of CW.1 and thereby evidence of the parties concluded.
7. Heard the arguments of the learned counsels for respective parties.
8. On perusal of the entire material available on file and also on hearing the arguments of the learned counsels, the points that would arise for consideration are:-
1) Whether the complainant proves that the accused had issued cheque in question in discharge of the legally recoverable debt as contended?
2) Whether the complainant further proves that the accused has committed the offence punishable under Section 138 of Negotiable Instrument Act?
3) Whether the complainant is
entitled for the relief as prayed
in the complaint?
4) What Order?
5 C.C. No.57415/2017
9. The above points are answered as under;
Point Nos.1 to 3 : In negative,
Point No.4 : As per the final order,
for the following.......
REASONS
10. Point Nos. 1 to 3 : Since these points are inter
linked and to avoid repetition they are taken together for discussion. Before peeping into the disputed facts, it is appropriate to refer the undisputed facts at this stage itself, which can be gathered from the material placed before this court. On going through the rival contention of the parties, oral and documentary evidence, it is clear that the accused is not disputing the status of the complainant company and its nature of business and so also the authority of CW.1 to file and prosecute the case on behalf of the complainant company. The accused also admitted the availment of the vehicle loan on 27.09.2016 from the complainant company and terms of repayment of the said loan in 36 equal installments at Rs.61,520/- each. It is also clear that even the accused had paid nine installments towards loan amount and the installment was commenced from 15.10.2016. It is also not in dispute that the accused had surrendered the vehicle (car) to the complainant company on 09.05.2017 and the said car was auctioned by the complainant company on 31.05.2017. The 6 C.C. No.57415/2017 accused has also admitted that the cheque in question belonged to him and the same was signed by him. Admittedly the complainant presented the cheque in question for encashment and the same was dishonoured for the reason "funds insufficient" on 24.05.2017 and thereafter the complainant got issued legal notice dtd.09.06.2017 on 10.06.2017 to the accused in that regard and the said notice was served on the accused on 13.06.2017 for which the accused neither issued any reply nor complied with the demand made in the said notice.
Further it is clear from the evidence available on file that the accused is not disputing the compliance of requirements of Sec.138 of N.I. Act in filing the present complaint by the complainant company.
11. With the above admitted facts, now the facts in issue are analyzed, as already stated the accused has denied the entire case of the complainant as to commission of the offence punishable U/s.138 of N.I. Act while recording his plea for the said offence and also denied the incriminating circumstances found in the evidence of CW.1 at the time of recording his statement U/s.313 of Cr.PC. On going through the statement of the accused, cross-examination of CW.1 and evidence of the accused, it is found to be the specific defence of the accused that the complainant company had taken five signed blank cheques of the accused at the time of granting the loan for security purpose and now the complainant company misused the 7 C.C. No.57415/2017 one of the said cheques by filling up the excess amount than due and filed false case and accordingly prayed for his acquittal in the interest of justice and equity.
12. Relying on the oral and documentary evidence, the learned counsels for respective parties vehemently argued as to the contention of the parties. It is needless to say that the proceeding U/s.138 of N.I. Act is an exception to the general principle that the accused is presumed to be innocent until the guilt is proved beyond all reasonable doubt. In the proceedings initiated U/s.138 of N.I. Act, proof beyond all reasonable doubt is subjected to presumption envisaged U/s.139 of N.I. Act. Once the requirement of section 138 of N.I. Act is fulfilled, then it has to be presumed that the cheque was issued for discharge of the legally recoverable debt or liability. The presumption envisaged U/s.139 of N.I. Act is mandatory in nature and it has to be raised in all the cases on fulfillment of the requirements of Sec.138 of the said Act. In the ruling rendered by Hon'ble Apex Court in the case of Rangappa Vs. Mohan reported in AIR 2010 (SC) 1898 by relying on several rulings rendered by the Hon'ble Apex Court including the case of Krishna Janardhan Bhat Vs. Dattathraya G. Hegde reported in AIR 2008 (SC) 1325, it was held that "Existence of legally recoverable debt or liability is a matter of presumption U/s.139 of N.I. Act". The Hon'ble Apex Court disapproved the principle laid down in Krishna Janardhan Bhat's case that "Initial burden of 8 C.C. No.57415/2017 proving existence of the liability lies upon the complainant". In the case of Sri.B.H.Lakshminarayana Vs. Smt.Girijamma reported in 2010 (4) KCCR 2637, it is held that "the presumption that the cheque was issued for legally recoverable debt is to be presumed". Further recently the Hon'ble Apex court in Crl. A. No.803/2018 - (Krishna Rao Vs Shankare Gowda) reiterated the above principle. Further as provided U/s.118 of N.I. Act, it is to be presumed that the cheque in question was issued for consideration on the date found therein.
13. In the light of the rival contention of the parties at the out set it is to be determined as to whether the complainant had complied with all the requirements of Sec.138 of N.I. Act as contended. In this regard as already stated the accused has not disputed as to compliance of requirements of Sec.138 of N.I. Act. The representative of the complainant being CW.1 reiterated the complaint averments in his sworn statement by way of affidavit which itself is treated as examination-in-chief in view of the decision of reported in (2014) 5 SCC 590 - Indian Bank Association and others Vs Union of India and others - [W.P. (civil) No.18/2013]. In addition to that, the CW.1 has also produced notarized copy of the power of attorney, cheque dtd.19.05.2017, bank endorsement dtd.09.06.2017, office copy of legal notice dated 09.06.2017, postal receipt dtd.10.06.2017 for having sent notice to the accused, postal acknowledgement 9 C.C. No.57415/2017 dtd.13.06.2017 for having service of notice on the accused as per Ex.P1 to P6 respectively to substantiate his contention.
14. As already stated it is admitted fact that Ex.P2-cheque belonged to the accused, signed by him and the same was dishonoured for the reason "funds insufficient" as found in Ex.P3. The contents of Ex.P4 to P6 are analyzed, it is clear that after dishonour of Ex.P2-cheque as found in Ex.P3, the complainant got issued legal notice dtd.09.06.2017 as per Ex.P4 on 10.06.2017 to the accused by registered post and the said notice was served on the accused on 13.06.2017. The complainant company has presented the present complaint on 27.07.2017 i.e after lapse of 15 days from the date of service of the registered notice and within 30 days thereafter as required under law. Therefore on going through these documents, it is clear that the complainant had presented the cheque for encashment within its validity and got issued statutory notice after dishonour of the cheque within statutory period and presented the complaint within prescribed time. Therefore prima facie the complainant had complied with the technical requirements of Sec.138 of N.I. Act in presenting the complaint. Therefore on conjoint reading of the entire oral and documentary evidence, their remains no doubt that the complainant had complied with all the requirements of Sec.138 of N.I. Act. This being the fact, as discussed earlier, in the light of the dictum of the Hon'ble Apex Court, it goes without saying 10 C.C. No.57415/2017 that the presumption available U/s.139 of N.I. Act is required to be drawn and shall presume that the accused had issued the cheque as per Ex.P2 towards discharge of legally recoverable debt. It is also to be presumed that cheque was issued for consideration on the date as mentioned therein.
15. It is well settled principle of law through catena of decisions that, though the statutory presumptions available U/ss.118 and 139 of N.I. Act are mandatory in nature, they are rebuttable one. It is needless to say that when the complainant proves the requirements of Sec.138 of N.I. Act, the onus of proof shifts and lies on the shoulder of the accused to rebut the presumptions available in favour of the complainant. It is the accused who has to rebut the presumptions with all preponderance of probability with clear, cogent and convincing evidence though not beyond all reasonable doubt. The accused has to make out probable defence by producing convincing acceptable evidence and thereafter only burden shifts shoulder of the complainant. It is also well settled law that to rebut the presumption, the accused can also rely upon presumptions available under the Evidence Act. It is also well settled principle that in order to rebut the presumption it is not imperative on the part of the accused to step into the witness box and she may discharge her burden on the basis of the material already brought on record and on the basis of the facts elicited in the cross-examination of the complainant. It is also equally true 11 C.C. No.57415/2017 that, if the accused places such evidence so as to disbelieve the case of the complainant, then the presumptions stand rebutted. This view is also supported with the decision of the Hon'ble Apex court reported in (2006) 3 SCC (Crl.) 30 - (Tamilnad Mercantile Bank Ltd., Vs M/s.Subaiah Gas Agency and others), ILR 2009 (2) 1633 - (Kumar Exports Vs Sharma Carpets), AIR 2008 (SC) 1325 (Krishna Janardhan Bhat Vs. Dattathraya G. Hegde), 2013 SAR (CRI) 373 - (Vijay Vs Laxman and another), AIR 2010 (SC) 1898 -
(Rangappa Vs. Mohan) and also in recent decision of the Hon'ble Apex court in Crl. A. No.803/2018 - (Krishna Rao Vs Shankare Gowda). Now the question that would arise is whether the accused has rebutted the statutory presumptions available in favour of the complainant.
16. In view of the defence taken by the accused, as against the claim of the complainant, now the evidence available on behalf of the accused is analyzed, the accused himself examined as DW.1 in support of his defence and also produced repossessed vehicle inventory list, the letter dtd.02.10.2016 issued by the complainant company along with its enclosures and copy of the statement of account sent by the complainant company through e-mail as per Ex.D1 to D3. In this case it is pertinent to note that the accused has not disputed any other aspect except the due amount claimed by the complainant company. On going through the evidence of the accused, it is 12 C.C. No.57415/2017 found that the accused claims that he had taken loan of Rs.17,52,850/- and whereas the evidence of the CW.1 reveals that complainant company claims that the accused had availed loan of Rs.18 lakhs. There is no dispute as to date of availment of loan, purpose of loan, its repayment schedule. The document produced by the accused himself reveals that the accused had availed vehicle loan of Rs.18 lakhs from the complainant company. The documents produced by the accused as per Ex.D1 to D3 are concerned there is no dispute. As already stated Ex.D1 was marked during cross-examination of CW.1 and the contents of Ex.D1 to D3 are not disputed.
17. In the light of the defence taken by the accused, the evidence placed before this court is analyzed, as argued by the learned counsel for the accused, nowhere the complainant, either in the legal notice or in the complaint or in the examination-in-chief of CW.1 has not stated as to what was the actual loan availed, for what purpose and what was the amount repaid except stating that the accused had issued cheque for Rs.17,06,800/- towards discharge of his part liability for the loan availed. However during the course of cross-examination, CW.1 has stated that the accused had availed Rs.18 lakhs. Further in Ex.D2 & D3 there is reference as to availment of Rs.18 lakhs by the accused from the complainant company. But it is pertinent to note that admittedly the complainant company had lent the amount on the basis of the loan agreement bearing 13 C.C. No.57415/2017 No.7000379374, but the complainant company has not opted to produce the said loan agreement before the court. However the document produced by the accused himself as per Ex.D2 discloses the nature of loan, repayment schedule and other particulars. Admittedly, the loan availed by the accused to be paid in 36 equal monthly installments of Rs.61,520/- each. The evidence of CW.1 reveals that the accused had paid nine monthly installments. This being the fact from Ex.D2 it is clear that the due amount ought to have been Rs.14,12,263.32 and not Rs.17,06,800/- as claimed by the complainant company. It is not the case of the complainant company that the accused was irregular in payment of installment amount till the date of Ex.P2-cheque. If the date of cheque and admitted payment of installment are analyzed, prima facie the amount claimed by the complainant company at Rs.17,06,800/- is excessive than the real due amount. It is not understood on what basis as on 19.05.2017 the complainant company has calculated the due amount at Rs.17,06,800/-. In this regard it is pertinent to note that though the accused has disputed the due amount the complainant company which is bound to maintain statement of accounts relating to loan transaction, for the reason best known to the complainant company it has not opted to produce statement of account and thereby to show the exact due amount from the accused as claimed by it. The non- production of the said available material document definitely goes against the claim of the complainant. The adverse inference has to be 14 C.C. No.57415/2017 drawn in that regard with regard claim made by the complainant. Absolutely there is no material made available to show the due amount claimed by the complainant company. On the other hand the admitted fact/document itself reveals that there was no due of Rs.17,06,800/- as put up by the complainant.
18. Along with the above aspects, it is also pertinent to note that admittedly as found in Ex.D1 the accused had surrendered the vehicle to the complainant company on 09.05.2017 and the said vehicle was auctioned by the complainant company on 31.05.2017. It is pertinent to note that legal notice as per Ex.P4 was issued on 10.06.2017 i.e subsequent to auctioning of the vehicle, but nowhere the complainant has stated in that regard either in the legal notice or in the complaint or even in the evidence of CW.1. As stated by CW.1 himself, when the vehicle was auctioned, the amount recovered from the auction has to be credited to the loan account. This being the fact as on the date of issuance of legal notice there was no due amount from the accused to the extent claimed by the complainant company. It is not understood for what reason these material facts have not been stated by the complainant company that too which occur prior to the occurrence of the cause of action for filing the complaint.
19. As already stated the accused has taken a specific contention that the complainant company had taken his five 15 C.C. No.57415/2017 blank cheques and one of the said cheques is being used by filling up more amount than the due amount. It is pertinent to note that the accused is not disputing the existence of due amount but quantum of due amount is seriously disputed by him. The accused has specifically stated that after auctioning of the vehicle, he was liable to pay only Rs.3,40,000/- to the complainant company and he was in due of Rs.14,56,000/- at the time of surrendering of the vehicle. It is also the evidence of the accused that the vehicle was auctioned for Rs.11,10,000/- . The complainant company has not disputed the auctioning of the car for the amount stated by the accused. Further as already discussed if the contents of Ex.D2 is analyzed, the due amount of Rs.14,56,000/- as stated by the accused is to be accepted. Further the contents of Ex.D2 is analyzed, it is clear that the complainant company had taken 5 cheques of the accused bearing Nos.561716 to 561720. The said document further disclose that the cheques bearing Nos.561716 and 561717 are dtd.15.10.2016 and 17.10.2016 they are for Rs.61,520/- each. The cheque bearing No.561718 to 561720 are found to be security PDC cheques i.e post dated cheques for security purpose. It is also interesting to note that Sl. No.3 cheque i.e cheque bearing No.561718 is the cheque involved in this case. The said cheque is dated 15.12.2016 and the same is post dated security cheque. With this aspect now the contents of Ex.P2-cheque is analyzed, it is dtd.19.05.2017. It is not understood how the cheque date became 19.05.2017 if it was 16 C.C. No.57415/2017 dated as 15.12.2016 as found in Ex.D2 being post dated cheque. The amount is also found to be not stated with regard to the said cheque being the post dated security cheque. Therefore it is clear that the cheque is being filled-up by the complainant company to suit its claim. Even there is no correction with regard to the date mentioned in Ex.P2. This aspect clearly probabalized the defence taken by the accused.
20. Therefore on going through the entire evidence on record, it is clear that the complainant company has not produced available documents to show that the accused was in due of Rs.17,06,800/- as claimed by it. On the other hand the admitted fact itself reveals contrary to the claim of the complainant. As argued by the learned counsel for the complainant on going through the contents of Ex.P2 to P6 and date of filing the present complaint are analyzed, it is clear that the complainant company had complied with all the technical requirements of Sec.138 of N.I. Act in filing the present complaint and in that regard there is no dispute. The accused has also admitted that Ex.P2-cheque belonged to him and his signature found therein. In this angle, no doubt the complainant company is entitled for statutory presumptions U/s.139 and 118 of N.I. Act. Therefore it has to be presumed that the cheque in question was issued by the accused towards discharge of legally recoverable debt on the date mentioned therein. But it is pertinent to note that there is no presumption as to due amount 17 C.C. No.57415/2017 is concerned. When the complainant claims specific amount as due from the accused, the complainant has to establish the said due amount, that too when the accused disputed the due amount as claimed by the complainant.
21. In this case as discussed above, the complainant company has not opted produce the available relevant document in that regard and definitely the non-production of available material documents goes to the root of the claim of the complainant. In this regard, this court is also being guided by the ruling of the Hon'ble High Court of Rajasthan reported in I (2013) BC 433 (Ashok Leylond Finance Ltd., Vs State of Rajastan and another), wherein it was held that - since the complainant has failed to produce the material and essential documentary evidence, the presumption against the accused stands rebutted. Therefore this court is of the considered view that the complainant company has failed to prove the due amount as claimed by it as against the accused and so also issuance of Ex.P2-cheque in that regard as put up by it. Further even the complainant in the legal notice, complaint or in the evidence of CW.1 has not stated as to when exactly the accused had issued cheque in question. Further the suggestion put to the mouth of the accused during cross-examination is also found to be inconsistent with the case of the complainant. During cross- examination it was suggested to the accused that accused had issued Ex.P2-cheque with an intention to get back the 18 C.C. No.57415/2017 surrendered vehicle, but it is not the case of the complainant at all. The complainant company has also failed to prove the due amount as claimed by it and issuance of cheque by the accused towards discharge of the said amount. In the light of the existing evidence, this court is of the considered view that the defence taken by the accused cannot be totally overruled and the defence is found to be probable. In the ruling of our Hon'ble High Court reported in 2013 (1) DCR 326 - (Nandini Agro Fertilizers Vs D. Satish) - it is held that - "If there are circumstances to prove the probable defence, that itself is sufficient to dismiss the complaint". Thus considering all these aspects, this court is of the considered view that the complainant company has failed to prove point nos.1 & 2 in his favour as contended. It is needless to say that when the complainant company failed to prove point nos.1 and 2, it goes without saying that the complainant company cannot be granted with any relief as sought for in this case. Hence, point Nos.1 to 3 are required to be answered in negative and answered accordingly.
22. Point No.4: For the reasons discussed in connection with Point Nos.1 to 3 this court proceed to pass the following....
19 C.C. No.57415/2017ORDER Acting under Section 255(1) of Cr.PC accused is hereby acquitted for the offence punishable under Section 138 of Negotiable Instrument Act.
The bail bond of accused stands cancelled.
The cash security is deposited by the accused is ordered to be refunded in his favour in accordance with law.
(Dictated to the stenographer, typed by him, transcript corrected by me and pronounced in the open court on this the 30th Day of July, 2018) (SHRIDHAR GOPALAKRISHNA BHAT) XIV ADDL. C.M.M., BENGALURU 20 C.C. No.57415/2017 ANNEXURE Witnesses examined for the complainant:
CW.1 : Sri. K.B. Ajay Kumar
Witnesses examined for the defence:
DW.1 : Sri. P. Veerakumar
Documents marked for the complainant:
Ex.P1 : Notarized copy of Power of Attorney
Ex.P2 : Cheque
Ex.P3 : Bank endorsement
Ex.P4 : Legal Notice
Ex.P5 : Postal receipt
Ex.P6 : Postal acknowledgment
Documents marked for the defence:
Ex.D1 : Repossessed vehicle inventory list
Ex.D2 : Letter dated 02.10.2016
Ex.D3 : Statement of account
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU