Bangalore District Court
R/At Flat No.76 vs R/At No.2 on 2 January, 2017
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 2nd DAY OF JANUARY, 2017
PRESENT
Sri. Shridhar Gopalakrishna Bhat, LL.B
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.35622/2010
Sri. Kartik Kalevar
S/o. Late Mukund Kalevar
COMPLAINANT R/at Flat No.76, 7th Floor, Shalimar
Apartment, No.3, C.J.D'Souza Road,
Bengaluru - 560 025.
Sri. A. Sreenivasalu
S/o. Late T.M. Anjineyalu
ACCUSED R/at No.2, Pazeold Road, Richord's Town,
Bengaluru - 560 084
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.35622/2010
JUDGMENT
The complainant has approached this court with this complaint under Sec.200 Cr.PC against the accused for the offence punishable under Section 138 r/w Sec.142 of Negotiable Instruments Act. (herein after referred as N.I. Act)
2. The case of the complainant is that, the accused had taken hand loan of Rs.3 lakhs from the complainant on 28.8.1996 agreeing to repay the same with interest at the rate of 5% per month. The accused had paid interest from time to time till October 2004. Thereafter the accused did not pay any amount and was in due of Rs.9,18,000/- till November 2009 including principle and interest. When the complainant had demanded for repayment of the said amount, the accused had issued two cheques bearing Nos.281049 and No.564983 dated 10.10.2009 for Rs.3 lakhs and Rs.2 lakhs respectively drawn on Canara Bank, Fraser Town, Bengaluru towards part payment of the due amount, leaving balance of Rs.4,18,000/-.
3. It is further case of the complainant that believing the assurance of the accused, the complainant presented the said cheques for encashment on the same day through his 3 C.C. No.35622/2010 banker -Indian Overseas Bank, ISRO View, Bengaluru and the said cheques were returned for the reason "funds insufficient" with memo dated 15.10.2009. Thereafter the complainant got issued legal notice dated 3.11.2009 to the accused calling upon him to pay the cheques amount within 15 days from the date of receipt of the said notice. The accused had received the legal notice and sent untenable reply dated 11.11.2009 and still he did not pay any amount and thereby committed the offence punishable U/s.138 of N.I. Act. Therefore the complainant is constrained to file the present complaint and accordingly prayed for maximum punishment to the accused and also for grant of compensation out of the fine amount in his favour 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 complainant 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.
4 C.C. No.35622/20105. In pursuance of the summons issued by this court, the accused has put up his appearance through his counsel and enlarged on bail. In the mean time the accused had challenged the order of issuance of process before the Hon'ble High Court in Crl. Pet. No.4719/2011 and obtained stay order. Thereafter since no further stay order has been produced, the plea of the accused was recorded on 1.2.2012. The accused had denied the substance of accusation made against him and claimed for trial. It is clear from the order of the Hon'ble High Court that the criminal petition filed by the accused in Crl. Pet. No.4719/2011 came to be dismissed on 13.4.2015.
6. In order to prove the case of the complainant, the complainant himself examined as PW.1 and got marked as many as 9 documents as per Ex.P1 to P9 and closed his evidence. After closure of the complainant's side evidence, statement of the accused as provided U/s.313 of Cr.PC was recorded. The accused had denied the evidence of the complainant which is found against him. The accused himself examined as DW.1 and got marked one document as per Ex.D1 and closed his evidence and thereby evidence of the parties concluded.
5 C.C. No.35622/20107. The learned counsel for the complainant has filed his detail written arguments. Heard the arguments of the learned counsel for the accused. The counsel for the complainant has relied upon the decisions reported in 1) 2007 CRI. L.J. 583 - (H.Narasimha Rao Vs. Venkataram .R),
2) 2007 CRI.L.J. 586 - (S.Parameshwarappa and another Vs. S.Choodappa), 3) III (2003) BC 241 (DB) - Kerala High Court (Ramakrishnan Vs. Parthasaradhy), 4) Crl. Appln. No.2933/2007 Bombay High Court - (Mr.Dinesh B. Chokshi Vs. Rahul Vasudeo Bhatt) and 5) 2008 (2) DCR 226 - Andhra Pradesh High Court - (V.Satyanarayana Raju Vs. G.B.Gangadhara Reddy & another) in support of the arguments. Similarly the counsel for the accused had relied upon the following decisions ;
1) 2014 (3) DCR 462 - (K.Yashoda Vs. K.Venkatesh),
2) 2014 (2) DCR 481 - (Sneh Jain Vs. Vijay Kalra), 3) 2014 (1) DCR 13 - (Parmesh Singh Negi Vs. Ganga Singh Matiyali), 4) 2014 (1) DCR 31 - (Bharatbhai J. Patel Vs. State of Gujarat and another), 5) 2014 (3) DCR 572 - (Gerard Kollian Vs. M/s. Weis Electronics & Industrial Services Pvt. Ltd., and three others), 6) 2014 (1) DCR 539 - (Brajgopal Singh Swarnkar Vs. Girish Raisen) and 7) 2014 6 C.C. No.35622/2010 (1) DCR 578 - (Arvind Kumar Vs. Punjab National Bank) in support of the arguments.
8. On perusal of the entire material available on file and also on hearing the arguments, the points that would arise for consideration are:-
1) Whether the complainant proves that the accused had issued two cheques in question in discharge of the legally recoverable debt as contended by him?
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?
9. The above points are answered as under;
Point Nos.1 to 3 : Negative,
Point No.4 : As per the final order,
for the following.......
7 C.C. No.35622/2010
REASONS
10. Point Nos. 1 to 3: Since these points are inter linked and to avoid repetition they are taken together for discussion. At the very out set, it is to be noted that on going through the contention of the parties, oral and documentary evidence, it is clear that there is no dispute that Ex.P1 and P2-cheques were belonged to the accused and Ex.P1(a) and Ex.P2(a) are his signatures. Further it is admitted fact that the complainant and accused are known to each other since several years being friends. It is also undisputed fact that after dishonour of the cheques as stated by the complainant, the complainant got issued legal notice as per Ex.P5 which was served on the accused and the same was replied by the accused as per Ex.P9. However 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. Further the accused has specifically denied the evidence of the complainant while recording his statement U/s.313 of Cr.PC. But at the time of recording 313 statement the accused has not put up any positive case on his behalf except denying the evidence of the complainant which is found against him as to commission of the offence 8 C.C. No.35622/2010 punishable U/s.138 of N.I. Act. However on going through the evidence of the accused available on file and also the cross-examination of the complainant, it is clear that the accused has denied the monitory transaction as put up by the complainant and also issuance of cheques as per Ex.P1 and P2 towards discharge of any legally recoverable debt. The accused has also disputed the very presentation of the cheques for encashment as put up by the complainant. Further it is the specific defence of the accused that he had availed a sum of Rs.2 lakhs from the complainant in the year 1996 and the complainant had collected interest from him at the rate of 5% per month which is against to the Money Lending Rules, R.B.I guidelines and public policy. The complainant had collected excess amount from him. Further the cheques which are produced by the complainant were earlier dated of the year 1996 and complainant made correction in the cheques in the date column without obtaining the signature and manipulated the cheques to suit his claim by misusing the earlier cheques for wrongful gain after lapse of more than 15 years. It is also stated in his evidence that even the complainant had no capacity to lend the money and filed the present false complaint though 9 C.C. No.35622/2010 there was no any enforceable debt/liability existing in his favour from the accused.
11. With the above background, if we analyze the material on record, in order to prove the case of the complainant, the complainant himself examined as PW.1 reiterating the complaint averments in his examination-in- chief by way of affidavit and produced two cheques, two bank endorsements, copy of the legal notice, two postal receipts, postal acknowledgement and reply notice got issued by the accused as per Ex.P1 to P9 respectively. The complainant has also got marked the signature of the accused found in Ex.P1 and Ex.P2-cheques as per Ex.P1(a) and Ex.P2(a) and in that regard there is no dispute.
12. Relying on the oral and documentary evidence placed before this court, the learned counsel for the complainant filed detail written argument put forwarding the case of the complainant along with the citations in support of the same. Per contra, the learned counsel for the accused relying on the oral and documentary evidence meticulously argued as to the defence taken by the accused in detail. He has forcefully submitted as to non-existence of any legally enforceable /recoverable debt as the accused had paid excess amount, as to charging of unreasonable exorbitant 10 C.C. No.35622/2010 interest by the complainant, as to alteration of the cheque by the complainant to suit his claim, as to misuse of the old cheques which were with the complainant in filing this complaint claiming un-existing time barred amount. The learned counsel has also taken notice of this court as to non- presentation of the cheque and creation of bank endorsements and also as to non-examination of the Manager of the concerned bank in that regard. He has also relied upon Ex.D1 in this regard and accordingly prayed for acquittal of the accused as the defence taken by the accused is more prabable, acceptable as against the claim of the complainant.
13. 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 the statutory 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 11 C.C. No.35622/2010 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 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 as provided U/s.118 of N.I. Act, it is to be presumed that the cheques in question were issued for consideration on the date as found therein.
14. In the light of the rival contention of the parties at the out set it is to be determined whether the complainant had complied with all the requirements of Sec.138 of N.I. Act as contended. It is admitted fact that Ex.P1 and P2- cheques belonged to the accused. Along with Ex.P1 and P2, 12 C.C. No.35622/2010 the contents of Ex.P3 and P4 i.e bank endorsements are looked into, it is clear that as stated by the complainant, the complainant got presented the cheques for encashment and the same were dishonoured on 15.10.2009 for the reason "funds insufficient" as found therein. But in this regard it is pertinent to note that the accused has specifically disputed Ex.P3 and P4 as put up by the complainant. The contents of Ex.P5 i.e legal notice dated 3.11.2009, Ex.P6 and P7 i.e postal receipts dated 3.11.2009 for having sent notice by registered post and UCP, Ex.P8-postal acknowledgement are looked into, it is clear that after dishonour of the cheques, the complainant got issued legal notice on 3.11.2009 i.e within one month from the date of dishonour of the cheque and the same was served on the accused. The contents of Ex.P9 i.e reply notice dated 11.11.2009 got issued by the accused makes it very clear that the notice got issued by the complainant was served on the accused and the same was replied by the accused denying the claim of the complainant. The complainant has filed the present complaint on 17.12.2009 i.e after expiry of the 15 days from the date of service of notice and within 30 days thereafter. Thus on plain reading of these documents, it is clear that the 13 C.C. No.35622/2010 complainant had complied with all the requirements/ingredients of Sec.138 of N.I. Act.
15. Be the things as it may, as already stated the accused has specifically disputed the very presentation of the cheques for encashment. As argued by the learned counsel for the accused, in the reply notice itself, the accused has specifically contended that the bank endorsement is invalid. In this regard if the contents of Ex.P3 and P4 - bank endorsements are looked into, as argued by the learned counsel for the accused Ex.P3 is found to be altered and in Ex.P4 there is no seal of the bank also. The case of the complainant is that the accused had issued cheques and the same were presented through Indian Overseas Bank, ISRO View, Bengaluru, but the complainant has not produced any letter issued by his banker in this regard. The contents of Ex.P3 and P4 do not disclose as to whom it was addressed with clarity. As argued by the learned counsel for the accused, it is crystal clear that in Ex.P3 the cheque number and cheque date of Ex.P1 are inserted by rounding some other cheque number and cheque date and in that regard there is no proper authentication. Further in the said document, it is also noticed that the cheque amount was also rectified. No doubt in the said 14 C.C. No.35622/2010 document where the corrections are made, there is seal and signature of the Chief Manager of the drawer bank, but there is no authenticated signature at the end of Ex.P3. Similarly Ex.P4 is looked into, once again it is found to be unauthenticated one. As per the version of the complainant both cheques were presented for encashment on the same day, but the signature of the Supervisor found in Ex.P3 and P4 are found to be totally different and the same are not even authenticated. In these regard, no convincing and acceptable evidence is placed before this court on behalf of the complainant. In this case, though the accused in the reply notice itself disputed the bank endorsements, the complainant has not opted to examine the authorized person of the bank who had issued Ex.P3 and P4 and there is no explanation from the complainant as to the correction made in Ex.P3.
16. With the above aspects, now the documents placed on behalf of the accused is looked into, accused has produced statement of account issued by his banker relating to his account for the period 10.10.2009 to 6.11.2009 as per Ex.D1. The contents of Ex.D1 are looked into, there is no reference as to presentation and dishonour of cheques in question. If at all Ex.P1 and P2-cheques were presented for 15 C.C. No.35622/2010 encashment as put up by the complainant, the same should have been entered in Ex.D1 by banker. The complainant contended that cheques were presented for encashment on 10.10.2009 and the same were returned dishonoured on 15.10.2009. This period is covered under Ex.D1. There are no reasons for disbelieving Ex.D1. The complainant has also not disputed Ex.D1 in any manner. Under these attending circumstances, there arises doubt as to very presentation of the cheques for encashment. The contents of Ex.D1 disclose that there was no sufficient amount to honour the cheques as on the date of presentation of cheques for encashment. But on that account it cannot be held that the cheques were presented for encashment and the same were dishonoured as put up by the complainant.
17. As provided U/s.146 of N.I. Act, the court shall presume as to fact of dishonour of cheques on production of bank's slip or memo having thereon official mark denoting that the cheques has been dishonoured unless and until such fact is disproved. However as discussed supra, from the evidence placed before this court, the very presentation of the cheques for encashment itself found to be doubtful. On going through the contents of Ex.P3 and P4, it cannot be said that the said bank endorsement were issued by the 16 C.C. No.35622/2010 drawee bank itself as described in Ex.P1 and P2. Under these attending circumstances, the complainant ought to have placed convincing and acceptable evidence in this regard. In the light of the specific reply issued by the accused and also in view of the contents of Ex.P3 and P4 the complainant ought to have examined the proper person so as to prove the contents of Ex.P3 and P4. The non- examination of the material witness in this regard goes to the very root of the case of the complainant. Therefore this court found substance in the contention of the accused and it cannot not be held that the complainant had complied with all the requirements of Sec.138 of N.I. Act.
18. As discussed supra, since the complainant has failed to prove the requirements of Sec.138 of N.I. Act, it goes without saying that the presumption cannot be drawn in favour of the complainant as provided U/s.139 of N.I. Act. The accused has specifically disputed the existence of any liability or any debt in favour of the complainant contending that he had paid excess amount to the complainant and there is no due at all. The complainant contends that the accused had taken hand loan of Rs.3 lakhs on 28.8.1996 undertaking to repay the same with interest at the rate of 5% per month and paid interest from time to time till 17 C.C. No.35622/2010 October 2004 only and thereafter the accused was in due of Rs.9,18,000/- till November 2009 including principle and interest. On the other hand accused has contended that he had availed a sum of Rs.2 lakhs only from the complainant in the year 1996 and the complainant collected interest at 5% per month which is against to law and in all collected Rs.14,44,000/- from 1996 to 2004 after adjusting the alleged sum of Rs.3 lakhs.
19. In this regard the available evidence is considered, as stated by the complainant himself except the present transaction there was no any other transaction between himself and the accused. The complainant in his cross- examination specifically admitted the suggestions put to his mouth that he had collected Rs.15,000/- per month as interest since 1996 to 2004; he had collected Rs.14,44,000/- as interest from the accused and as per calculation, apart from principle amount of Rs.3 lakhs he had collected Rs.11,44,000/-. Thus from the evidence of the complainant it is very certain that he had paid Rs.3 lakhs to the accused and collected interest at the rate of 5% per month and in all collected Rs.14,44,000/- from the accused within a span of seven years. Apparently the interest charged by the complainant is exorbitant, unreasonable and 18 C.C. No.35622/2010 against to the Interest Act and the claim of the complainant is not all acceptable one. Admittedly, the complainant had collected more than three and half time of the principle amount lent in addition to the principal amount of Rs.3 lakhs (Rs.11,44,000/- + Rs.3,00,000/-) within seven years. No where the complainant either in his complaint or in his notice stated as to amount paid by the accused, except claiming that the accused was still in due of Rs.9,18,000/- till November 2009 since October 2004. These aspects are considered as argued by the learned counsel for the accused, the claim of the complainant as to due amount is not at all acceptable, reasonable and opposed to law. Therefore in the light of the evidence of the complainant himself, one cannot accept any due or enforceable debt from the accused in favour of the complainant. Hence, under this attending circumstances, it cannot be held that there exists any enforceable debt as put up by the complainant and the claim of the complainant is found to be opposed to law also.
20. The another limb of contention of the accused is that he had issued cheques in the year 1996 and the complainant himself filled up name, date and amount and misused and manipulated the cheques to his own advantage after lapse of more than 15 years. In the light of this 19 C.C. No.35622/2010 defence, the contents of Ex.P1 and P2-cheques are looked into, as argued by the learned counsel for the accused, there is clear alteration in date column of Ex.P1. '19' is altered as '20' and the said alteration is not signed by the drawer. Further it is also noticed from the evidence of the complainant himself that admittedly in Ex.P1 and P2- cheques name is written in one handwriting and the amount in the different handwriting. In the light of the existing evidence, the contents of Ex.P1 and P2 cheques are analyzed meticulously, defiantly they probabalise the defence taken by the accused and the same is more convincing and acceptable as against the contention of the complainant.
21. The learned counsel for the accused has placed another contention that the claim of the complainant is also time barred and the same cannot be enforced by invoking the provision of Sec.138 of N.I. Act. In this regard the case of the complainant is looked into, the complainant himself stated that the accused had availed hand loan on 28.8.1996 and paid interest up to October 2004 and thereafter he did not pay any amount. It is further case of the complainant that towards partial discharge of due amount, the accused had issued Ex.P1 and P2 cheques on 10.10.2009. Thus the 20 C.C. No.35622/2010 date of due and date of issuance of cheques as put up by the complainant are considered, no doubt, the claimed debt/due is time barred. In this regard, it is also noticed that the accused had filed criminal petition as per Crl. Pet. No.4719/2011 before the Hon'ble High Court praying for quashing of the proceedings initiated U/s.138 of N.I. Act on the ground that the claim of the complainant is time barred debt. But the said petition came to be dismissed keeping open to the accused to set up all legally available defences before this court itself. So far as this defence is concerned, in the light of the various rulings relied by the learned counsel for complainant including the decisions of our Hon'ble High Court, this court is of the considered view that this defence of the accused is not sustainable. Just because the claim of the complainant is with regard to the time barred debt, in view of the provision of Sec.25(3) of the Contract Act, that defence of the accused is not sustainable. But as discussed earlier, in this case, since the claim of the complainant as to existence of debt itself is found to be unacceptable, the question of enforcing the same does not arise.
22. At this stage, this court is also being guided by the various rulings relied by the learned counsels. But on going 21 C.C. No.35622/2010 through the said decisions along with the facts of the present case and available evidence, this court is of the considered view that none of the decisions are applicable to the facts of the present case either to accept the case of the complainant or to up hold the defence taken by the accused. As discussed earlier, in this case the complainant has failed to prove the very presentation of the cheques for encashment and also existence of any debt/liability as against the accused. On the other hand the defence taken by the accused is found to be more probable, convincing and acceptable one. Therefore this court is of the considered view that, the complainant has failed to prove his contention as against the accused as to commission of the offence punishable U/s.138 of N.I. Act. It is needless to say that when the complainant has failed to prove his case as against the accused as contended by him, he is not entitled for any relief sought for in this case. Hence, Point Nos.1 to 3 are required to be answered in negative and answered accordingly.
23. Point No.4: For the reasons discussed in connection with Point Nos.1 to 3 this court proceed to pass the following....
22 C.C. No.35622/2010ORDER 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 the accused and that of his surety stands cancelled.
(Dictated to the stenographer, typed by him, transcript corrected by me and pronounced in the open court on this the 2nd Day of January, 2017) (SHRIDHAR GOPALAKRISHNA BHAT) XIV ADDL. C.M.M., BENGALURU 23 C.C. No.35622/2010 ANNEXURE Witnesses examined for the complainant:
PW.1 : Sri. Kartik Kalevar Witnesses examined for the defence: DW.1 : Sri. A. Sreenivasalu Documents marked for the complainant: Ex.P1 & P2 : Two Cheques
Ex.P1(a) & P2(a): Signature of the accused Ex.P3 and P4 : Bank endorsements Ex.P5 : Legal Notice Ex.P6 : Postal receipt Ex.P7 : UCP receipt Ex.P8 : Postal acknowledgement Ex.P9 : Reply notice Documents marked for the defence:
Ex.D1 : Statement of account
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU