Bangalore District Court
Mr. P.V. Seshadrinathan vs Mr. Giridhar Srinivas on 26 February, 2015
IN THE COURT OF THE XXII ADDL.CHIEF ETROPOLITON
MAGISTRATE, BANGALORE CITY
Dated this the 26th day of February 2015
PRESENT: SRI. NAGARAJEGOWDA.D, B.Com., LL.B.,
XXII Addl. C.M.M., Bangalore City.
JUDGMENT U/S 355 OF Cr.P.C.
Case No. : C.C No. 24453/2012
Complainant : Mr. P.V. Seshadrinathan,
S/o. P.H.Vydyanath,
Aged about 64 years,
R/at.No. A-1201,
"AMODA VALMARK"
Doddakammanahalli (PO)
Gottigere,Bangalore-560083.
(By Sri. Venkatesh.C.Malabadi., Adv.)
Accused : Mr. Giridhar Srinivas,
S/o. Age; Adult,
Proprietor,
Metro City,
Builders & Developers,
No. 50, Church Street,
Bangalore.
(By S. N. Ramaprasad, Adv.,)
Date of Institution : 09/10/2012
Offence complained of : U/s 138 of N.I.Act.
Plea of the accused : Pleaded not guilty.
Final Order : Accused is convicted
Date of Order : 26.02.2015.
2 C.C.No.24453/2012
The complainant filed the private complaint u/s 200 of
Cr.P.C alleging that, the accused person has committed an
offence punishable u/s 138 of N.I.Act.
2. The brief facts of the complainant case is as follows:-
The complainant entered into business transaction of
Investment with the accused in the accused firm's Project temple
View at village Thyalagere, Sonnenahalli and Koduguriki at
Devanahalli and various other. The accused approached the
complainant introducing himself as the sole Proprietor of " Metro
City Builders and Developers" and sought for investment at
various projects of his office and also mentioned about
requirement of great financial support of the complainant. The
accused personally explained the complainant on the projects
and guaranteed of returns with profits, the accused also
personally followed up and insisted and promised profits to the
complainant. The complainant herein who was working at
company abroad, on his voluntary retirement saved his earning
for his retirement and it was only upon repeated pursuance and
assurance of profits by the accused, the complainant agreed the
proposal of the accused and accordingly the complainant
initially invested Rs. 35,00,000/- for various projects mentioned
above of the accused. That on 1/4/2007, the accused
approached the complainant and requested to invest Rs.
3 C.C.No.24453/2012
2,50,000/- towards the 'Temple view' project and promised that
the said amount will be returned along with the profits. The
complainant further submits that the accused received 2
cheques in favour of accused i.e., cheque No. 746081, drawn on
ICICI Bank Ltd., Bangalore and another cheque No. 927284,
drawn on Bank of Baroda, Bangalore. Accused received the
same and acknowledged by receipt dt: 2/4/2007 and issued
Cheque No. 722127 dt: 2/10/2007 along with profits of the
project amounting to Rs. 6,25,000/- drawn on State Bank of
India, Bangalore. On 18/5/2007 accused approached the
complainant and requested to invest Rs. 5,00,000/- towards the
expansion and further development of Temple view project and
promised that the said amount will be returned along with the
greater profit of Rs. 7,50,000/- on 15/8/2007. By believing the
words of the accused, the complainant issued cheque in his
favour cheque bearing No. 843121, drawn on HDFC Bank Ltd.,
Indiranagar Branch, Bangalore for a sum of Rs. 5,00,000/- and
the accused received the same and acknowledged by the receipt
dt: 18/5/2007 and issued cheque drawn on The Federal Bank
Ltd., dt: 15/8/2007 along with profits of the project amounting
to Rs. 7,50,000/-. The complainant submits that on 31/5/2007
the accused approached the complainant and requested to
invest Rs. 2,00,000/- towards Temple view project and
promised that the said amount will be returned along with
4 C.C.No.24453/2012
profit and accused received the same and acknowledged by
receipt dt: 31/5/2007 and issued cheque bearing No. 880166
drawn on State Bank of India dt: 31/8/2007 along with profits
of the project amounting to Rs. 2,60,000/-. The accused made
the complainant to believe that Temple view project, which is
Mega five star projects and which includes all amenities and
that the said project requires some more financial requirement.
The accused also ensured the complainant in this instance that
he will get highest profit out of it and also promised that he will
be secured without any risk. The accused pleased the
complainant. The complainant being a retired person felt happy
that by the said project and its profits rest of his life will be
totally secured, In such situation complainant believed his
words and decided to further invest Rs. 12,50,000/- i.e, Rs.
6,00,000/- cash on 16/8/2007 and accused issued receipt on
16/8/2007 for said amount and issued cheque bearing No.
880167 dt: 15/2/2008 along with profit for the investment for a
sum of Rs. 8,40,000/-, drawn on Federal Bank of India. Also Rs
2,50,000/- by cash on 31/8/2007 and accused issued receipt
on 31/8/2007 for said amount and issued cheque bearing No.
415438 dt: 03/01/2008 along with profit for the investment for
a sum of Rs. 3,50,000/-, drawn on ING Vysya Bank. Also Rs
4,00,000/- by cash on 08/10/2007 and accused issued receipt
on 08/10/2007 for said amount and issued cheque bearing No.
5 C.C.No.24453/2012
415443 dt: 02/03/2008 along with profit for the investment for
a sum of Rs. 5,60,000/-, drawn on ING Vysya Bank. The
accused issued several cheques from 07/09/2008 of various
banks i.e., from the Federal Bank Ltd, Yes Bank and ADC Bank
respectively. The accused was insisted to further invest further
by various cheques. Again the accused 2 cheques in favour of
complainant and his wife bearing No. 232426 for a sum of Rs.
2,00,000/- and cheque bearing No. 232343, for a sum of Rs.
5,00,000/- in favour of complainant as part payment of profit
and they were returned with memo stating that Insufficient
Funds. The said reason was undoubtedly shocked and surprised
to this complainant. The said intimation was immediately
informed to the accused and the accused assured of payment of
the same. On 20/12/2010 accused issued a letter to the
complainant that Rs. 9,00,000/- will be paid to the
complainant in different dates and requested for complainant's
cooperation. The accused issued letter dt: 31/01/2011 stating
that cheque No. 233344, dt: 26/11/2010 for a sum of Rs.
5,00,000/- payment will be made on 10/2/2011. However, no
payments were made by the accused as assured and thereby
committed the offence of breach of trust. The act of accused
clearly shows the malafide intention of the accused to play fraud
to the complainant and gain illegal profit. On repeated follow-
ups and reminders, infact on strict demand of the complainant
6 C.C.No.24453/2012
upon making the accused repeatedly aware of the fact that the
complainant is already aged and would like to see the returns
and profits in his life term itself, issued 2 cheques and Cheque
No. 170910 and cheque bearing No. 170916, dt: 16/8/2012
drawn on ING Vysya Bank Ltd., M.G.Road Bangalore, for Rs.
1,50,000/-. The complainant further submits that afore
mentioned cheque bearing No. 170910 dt: 25/07/2012 drawn
on ING Vysya Bank Ltd., M.G. Road, branch, Bangalore for a
sum of Rs. 7,50,000/- was presented to their Bankers i.e.,
HDFC Bank, Richmond road branch, Bangalore on giving
information and taking consent of the accused on 30/8/2012.
But the said cheque returned unpaid with endorsement to the
effect that 'Account closed". Thereafterwards the complainant
got issued legal notice dt: 17/9/2012 by RPAD calling upon the
accused payment due, which the accused is liable to pay
towards the above said cheque. The said notice came to be
delivered on accused on 18/9/2012. For that the accused got
issued reply notice by denying all the allegations made against
him are all false. But he did not comply with the terms of legal
notice and thus, the accused has committed an offence
punishable under Sec. 138 of N.I. Act and punish the accused in
accordance with law by awarding double the cheque amount of
Rs. 7,50,000/- as compensation to complainant in accordance
with law in the interest of justice and equity.
7 C.C.No.24453/2012
3. After presenting this case, this court has taken
cognizance of the offence and after recording the sworn
statement of the complainant's side, this court registered the
criminal case against the accused alleging that, he has
committed an offence punishable U/s 138 of N.I. Act. Summons
issued to the accused. The same is served upon the accused.
The accused appeared through his counsel, enlarged on bail and
he denied the entire case of the complainant at the time of
recording his plea of accusation and case to be tried.
4. In support of the case of the complainant, the
complainant adduced his oral evidence as PW.1 and got marked
Ex.P1 to P7 and this PW-1 has been fully cross-examined by the
accused counsel and thus, complainant closed his side evidence.
5. Thereafter, the accused person examined under Sec.
313 Cr.P.C, in which, he totally denied the entire case of
complainant. Thereafter, in support of denial case of accused,
the accused lead his oral evidence as DW-1on oath and this
DW1 has been fully cross-examined by the complainant counsel
and thus, accused closed her side evidence.
6. I have heard the arguments of complainant counsel on
merits and the complainant counsel relied on the following
decisions reported in :
8 C.C.No.24453/2012
1) 1999(4) SCC 253,
2) Appeal No. 1902/2011,
Accordingly, prays to convict the accused in accordance
with law.
7. On behalf of accused, the learned accused counsel
also vehemently argued before this court and in support of his
contention he has relied on the following decisions:-
1) ILR 2008 Kar 4629
2) 2013(3) KCCR 1940
3) AIR (SCW) 2008 738,
4) 2006 (3) KCCR 1779
Accordingly, he prays for acquittal of the accused in
accordance with law.
8. On the basis of the aforesaid facts and circumstances,
the following points arise for my consideration:
1) Whether the complainant proves that, beyond
all reasonable doubt for repayment of the
loan advanced by the complainant, accused
issued cheque bearing No. 170910 dt:
25/07/2012 drawn on ING Vysya Bank Ltd.,
M.G. Road, branch, Bangalore for a sum of
Rs. 7,50,000/- in favour of complainant. The
same were dishonoured due to 'Account
9 C.C.No.24453/2012
closed, in spite of issuance of legal notice,
the accused did not comply the notice and
thus, he has committed an offence
punishable u/s 138 of N.I. Act?
2) What Order?
9. My answer to the above points are as follows:
1) In the Affirmative.
2) As per final Order,
For the following:
REASONS
10. POINT NO. 1: In support of the case of the
complainant, the complainant adduced his oral evidence as
PW.1 filed by way of affidavit, in which, he reiterated the
complaint contention and got marked Ex. P1 cheque alleged to
be issued by the accused and identified the signature of the
accused as Ex. P-1.a. This issuance of cheque in favour of
complainant for discharge of legal liability has been disputed by
the accused,. Further got marked Ex.P-2 is the endorsement
issued by the Banker stating that the Ex.P1 cheque is
dishonoured due to 'Account closed' and Ex.P-3 is another
endorsement issued by the Banker stating that the Ex.P1
cheque is dishonoured due to 'Account closed'. Ex.P4 is the
copy of legal notice, this notice has been sent to the accused as
per Ex.P5 the RPAD postal receipt and this notice was duly
10 C.C.No.24453/2012
served on the accused as per Ex.P6 postal acknowledgement.
Ex.P7 is the reply notice issued by the accused through his
counsel, he denied the entire contents of complainants notice in
para No. 12 to 18 of the notice are all false and frivolous.
Further contended that there is no question of issuance of
cheque to unknown persons. There is no transaction between
the complainant and accused, hence the question of issuance of
cheque for a sum of Rs. 7,50,000/- to complainant does not
arise for consideration. The notice is not at all sustainable and
bad in law, and hence advice the complainant not to issue
such type of legal notice and to return the above said cheques
immediately forthwith or otherwise the accused constrained to
file case against the complainant in this regard. The Civil rules
and Criminal Rules of Practice has not permit the complainant
to claim such exorbitant charges of legal notice etc.,
11. On the basis of the aforesaid oral and documentary
evidence the complainant has prima-facie proved that the
complainant had paid amount to accused by way of cheques
with respect of transaction taken between them and for
repayment of said amount, accused issued the cheque in
question, same is dishonoured etc.,
11 C.C.No.24453/2012
12. The accused has denied the entire case of
complainant, at the time of recording plea of accusation and also
at the time of recording 313 Cr.P.C statement. In support of
their denial case, the accused counsel cross-examined PW-1, in
the cross-examination, he tried to elicit that there is no
transaction taken between the complainant and accused as
alleged in the complaint. The accused was introduced to the
complainant at the time of doing real estate marketing agent
through one Jose. During the year 2007 onwards this
complainant goes on paying amount to the accused on various
dates, for that accused produced Bankers statement, but he
denied that there is no such documents produced. Further for
source of income of complainant, it is elicited that complainant
obtained said amount when he was working in Saudi Arabia
through salary for that he has not produced any documentary
evidence and also he has not produced any income tax returns
to show that he paid so much of amount to accused, but the
Bankers statement produced by the complainant are clearly
established the way in which complainant paid the amounts to
accused on various dates through the cheques, except total
denial to the case of complainant, the accused failed to disprove
the case of complainant. In support of defence taken by
accused, the accused lead his evidence as DW-1, he denied the
signature found on cheque is not belongs to him, whereas at the
12 C.C.No.24453/2012
time of cross-examination, he admitted that Ex.P1.a. signature
is belongs to him. But he denied some other documents
produced on behalf of complainant and letter issued by accused
in his name are not belongs to this accused etc., Except total
denial to the case of complainant contention, the accused failed
to give rebuttal evidence to the case of complainant. Further he
admitted at page 4 of his cross-examination that he
compromised the case in C.C. No. 35641/2010 and do not know
when he was closed down his Bank account. Though the letter
issued as per Ex.P12 to P14 belongs to this accused company
transaction, but he denied the said letters are not issued to this
complainant etc., In support of case of complainant, the
complainant counsel vehemently argued before this court that
for discharge of legal liability towards complainant the accused
issued the cheque in question, same is dishonoured. Hence,
presumption under Sec. 139 of NI Act can be drawn in favour of
complainant, the accused has taken untenable contention
without giving corroborative evidence. Hence, this court can very
well presume in favour of complainant for discharge of legal
liability the accused has issued the said cheque in question.
13. In support of his contention he has relied on the
following decisions reported in:
13 C.C.No.24453/2012
1) 1999(4) SCC 253 NEPC MICON Ltd & Ors. .Vs. Magma
Leasing Ltd., Wherein it is held:
The cheque was dishonoured as the amount of money
standing to the credit of " That account" was 'B Nil' at the
relevant time apart from it being closed. Closure of the account
would be an eventuality after the entire amount in the account
is withdrawn. It means that there was no amount in the credit
of 'That account" on that relevant date when the cheque was
presented, for honouring the same.
2) R. Vijayan .Vs. Baby & Anr. Crl. Appeal No.
1902/2011, wherein it is held:
After trial the learned magistrate by judgment dt:
30/11/1996 found the accused guilty under Sec. 138of NI Act
and sentenced her to pay a fine of Rs. 2000/- and in default to
undergo imprisonment for one month. He also directed the
accused to pay Rs. 20,000/- as compensation to the
complainant and in default to under go Simple imprisonment for
3 months.
On the basis of the citations coupled with oral and
documentary evidence, the complainant has established their
case beyond all reasonable doubt. The accused failed to gave
rebuttal evidence to the case of complainant.
14 C.C.No.24453/2012
14. In support of case of accused the learned counsel for
accused vehemently argued before this court that complainant
failed to prove that he has paid huge amount of Rs. 20,00,000/-
to accused for repayment of said loan amount accused issued
said cheque in question, same is dishonoured. Hence
presumption under Sec. 139 of NI Act can be drawn in favour of
accused and in support of his contention, he has relied on the
following decisions reported in :-
1) ILR 2008 Karnataka 4629 (Shivamurthy .Vs. Amruthraj),
wherein it is held;
Negotiable Instrument Act (26 of 1881),S. 138 Offence
under - complaint- Conviction and sentence Confirmed in
Appeal - Revision against Production of additional documents
before the appellate court non consideration of - Existence of
legally enforceable debt. Failure of complainant to prove-
Presumption drawn merely on the basis of the conduct of the
accused - Legality of- Held the courts below more particularly,
the Appellate court before whom the additional documents were
produced has not directed itself in this regard to find out as to
whether the complainant has proved the existence of legally
enforceable debt. Both the trial court and the appellant court
have mainly proceeded to consider the conduct of the accused.
15 C.C.No.24453/2012
Before considering the conduct of the accused to find out as to
whether or not he has been able to rebut the statutory
presumption available under Sec. 139, the courts ought to have
considered as to whether the complainant has proved the
existence of legally enforceable debt. It is only after satisfying
that the complainant has proved existence of legally enforceable
debt or liability, the Courts could have proceeded to draw
presumption under Section 139 of the N.I Act" and thereafter
find out as to whether or not the accused has rebutted the said
presumption. Judgment of conviction and sentence are liable to
be set-aside- Accused is acquitted.
2) 2013(3) KCCR 1940 between Smt. Lakshmi
Subramanya .Vs. D.V. Nagesh in which the Hon'ble High court
held that Negotiable Instruments Act, 1881-Sec. 138- Acquittal-
Factum of lending- complainant not reflecting in his IT return-
After appreciation of evidence Magistrate justified in acquitting
accused.
3) AIR (SCW) 2008 738 (Krishna Janardhan Bhat vs.
Dattatraya G. Hegde), wherein it is held;
Negotiable Instrument Act (26 of 1881),S. 138 - "Dishonour
of cheque-Defence-Proof- Accused not required to step into
16 C.C.No.24453/2012
witness box - he may discharge his burden on basis of
materials already brought on record- Question whether
statutory presumption rebutted or not-Must be determined in
view of other evidences on record.
4) 2006 (3) KCCR 1779, Between M/s. Shreyas Agro
Services Private Ltd., .Vs. Chandrakumar. S.B. wherein it is
held :
Negotiable Instrument Act (26 of 1881), S. 138- Sec. 138 of
Negotiable Instrument Act should be interpreted to mean
current existing or past ascertained liabilities- The cheque
issued in respect of future liabilities not in existence as on the
date of cheque would not attract prosecution under Sec. 138
Negotiable instrument Act.
On the basis of the aforesaid citations, the learned
counsel for accused prays for acquittal of accused.
15. When the case posted for arguments of case further,
at this juncture, without arguing the case further, the accused
counsel filed an application under Sec. 311 of Cr.P.C. seeking
permission to lead further cross-examination of PW-1 on the
source of income to complainant, same has been objected by
the complainant counsel. After contest, this court was rejected
the said application and the accused counsel submits that he is
17 C.C.No.24453/2012
going to challenge the order of this court, but he did not
addressed further arguments on merits. Hence, their side
further arguments taken as nil and posted this case for
judgment.
16. On the basis of the aforesaid facts and circumstances,
the accused failed to give rebuttal evidence to the case of
complainant. The complainant proved the guilt of accused
beyond all reasonable doubt. Hence, the accused is liable for
conviction. The complainant is entitled to the compensation
only to the extent of cheque amount with nominal interest at the
rate of 6 % P.A. on the cheque amount. Accordingly, I answer
point No.1 in Affirmative.
17. POINT NO. 2: For the above said reasons, I proceed
to pass the following:
ORDER
Acting u/s 255(2) of Cr.P.C., the accused is convicted for the offence punishable u/s 138 of N.I.Act and sentenced to pay fine of Rs. 7,55,000/- (Seven lakhs and Fifty five thousand only).
18 C.C.No.24453/2012If fine is realized, pay a sum of Rs. 7,50,000/- (Seven lakh Fifty thousand only) to the complainant as compensation, along with nominal interest at the rate of 6% P.A. from the date of cheque till its realization, the same shall be paid to him within the period of 30 days.
The rest of the amount Rs.5,000/-(Five thousand only) is ordered to be adjusted to the State Exchequer.
In default of payment of this compensation amount, the accused shall undergo simple imprisonment for Two (2) Years.
Office is directed to furnish the copy of this Judgment at free of cost to the accused.
(Dictated to the judgment writer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 26th day of February 2015) (NAGARAJEGOWDA.D) XXII Addl. Chief Metropolitan Magistrate, Bangalore City.
ANNEXURE Witnesses examined for the Complainant:
PW.1 .Mr. P.V.Sheshadrinathan.19 C.C.No.24453/2012
Witness examined for the accused:
DW.1. Giridhar Srinivas List of Documents marked for the Complainant: Ex.P1. Cheque Ex.P1(a) Signature of accused Ex.P2 & P3. 2 Endorsements. Ex.P4. Copy of Legal notice. Ex.P5. Postal receipt. Ex.P6. Postal Acknowledgement. Ex.P7. Reply notice.
List of Documents marked for the accused:
-Nil-
XXII ACMM, Bangalore.20 C.C.No.24453/2012
26/2/2015 Com:
Ac:
For judgment:
Judgment pronounced in open court vide separate Judgment. Operative portion reads as :
ORDER Acting u/s 255(2) of Cr.P.C., the accused is convicted for the offence punishable u/s 138 of N.I.Act and sentenced to pay fine of Rs. 7,55,000/- (Seven lakhs and Fifty five thousand only).
If fine is realized, pay a sum of Rs. 7,50,000/- (Seven lakh Fifty thousand only) to the complainant as compensation, along with nominal interest at the rate of 6% P.A. from the date of cheque till its realization, the same shall be paid to him within the period of 30 days.
The rest of the amount Rs.5,000/-(Five thousand only) is ordered to be adjusted to the State Exchequer.
In default of payment of this compensation amount, the accused shall undergo simple imprisonment for Two (2) Years.
Office is directed to furnish the copy of this Judgment at free of cost to the accused.
XXII ACMM, Bangalore.
21 C.C.No.24453/2012