Bangalore District Court
Smt.Sunandha vs Mr.Mahender Singh on 11 February, 2021
IN THE COURT OF XXXIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, MAYO HALL UNIT,
BENGALURU
: PRESENT :
M.Vijay, BA (Law), LLB.
XXXIII ADDL.CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED THIS THE 11TH DAY OF FEBRUARY, 2021.
C.C.No.51850/2016
COMPLAINANT : Smt.Sunandha,
W/o Srinivasa Reddy,
Aged about 38 years,
R/at No.73/2, 9th Cross,
Vidhya Jyothi School Road,
Nagasandrda, Bengaluru.
.Vs.
ACCUSED : Mr.Mahender Singh,
S/o Narayana Singh,
Aged about 39 years,
R/at No.27, 2nd Floor,
7th Cross, 2nd Main,
Indiranagar I Stage,
Bengaluru - 560 038.
JUDGMENT
The complainant has filed this private complaint U/s.200 of Cr.P.C., against the accused for the offence punishable U/s 138 of Negotiable Instrument Act.
2C.C.No.51850/2016
2. The brief facts of the case are as follows: The nutshell averments of the complaint is that, the complainant had owned an immovable property bearing No.106, situated at Roopena Agrahara, Beguru Hobli, Bengaluru South Taluk, her family was under financial crises, during that time, the accused known to her family had approached her and her husband during the 3rd week of November 2009 and induced her to sell the above property to him for sale consideration of Rs.1,10,00,000/. She agreed for the same, as per the sale talks, the accused promised to pay her part of sale consideration i.e., Rs.40,00,000/ and agreed to pay the remaining balance at the time of registration of the sale deed through cheques. As per this agreement, believing the words of the accused, she agreed to sell her property to the accused for Rs.1,10,00,000/. As per it, the accused paid her Rs.40,00,000/ cash and requested for some time to pay the balance amount.
Subsequent to payment of advance of Rs.40,00,000/, the accused postponed the registration on one or the other reasons. However,
during the last week of May 2011, the accused 3 C.C.No.51850/2016 insisted her to execute the registered sale deed in favour of one P.Mohan S/o. Balaraju and promised he would pay the balance amount of Rs.70,00,000/ through agreed cheques soon after the completion of registration formalities.
3. Accordingly, since the accused is very much known to her family and having cordial relationship with the accused, she believed the accused and executed a registered sale deed in favour of Mohan as nominated by the accused. Thereafter, the accused started neglecting to pay the balance amount of Rs.70,00,000/ despite she made request and demands on several times. However, finally the accused had issued 3 cheques in her favour i.e., cheque bearing Nos.310896, 310897 & 310898 all cheques are dtd:30.01.2015 for Rs.25,00,000/, Rs.25,00,000/ & Rs.20,00,000/ respectively, all are drawn on Indian Bank, New Thippasandra, Bengaluru and requested her to present it for encashment. Believing the words of the accused, she presented all 3 cheques in her banker i.e., Kotak Mahindra Bank, Bengaluru, but, all the cheques were 4 C.C.No.51850/2016 dishonoured for "Insufficient Funds" in the account of the accused. In this regard her banker has issued a return memo on 17.04.2015. Immediately, she approached the accused and intimated the dishonour of the cheques, but, the accused postponed the payment on one or the other reasons. As such, finally as she had no other alternative, she constrained to issue a legal notice to the accused on 12.05.2015 through RPAD calling upon the accused to pay the remaining balance amount as agreed by the accused, it was returned with unserved shara "Door Lock". Despite it dispatched to the proper address, the accused neither paid the cheque amount nor issued the reply notice. As such, she alleges that the accused who had issued 3 cheques for part of sale consideration i.e., balance amount towards sale of her property Rs.70,00,000/ to one Mohan as nominated by the accused, were bounced as the funds in the account of the accused were not sufficient to honor all the cheques presented for encashment and alleges the accused, in order to cheat her deliberately have issued all these 3 cheques without maintaining proper amount for encahment.
5C.C.No.51850/2016 Hence, she alleges the accused has committed the offense punishable under Sec.138 of N.I.Act., and prayed to convict the accused in accordance with law and for compensation under Sec.357 of Cr.P.C.
4. Based on the complaint, the sworn statement affidavit, the documents placed by the complainant along with the complaint the court took cognizance of an offense punishable under Sec.138 of N.I.Act and ordered to register a criminal case against the accused for the offense punishable under Sec.138 of N.I.Act.
5. In pursuance of summons, the accused appeared through his counsel and he was on court bail. Plea has been recorded; accused pleaded not guilty and claimed to be tried.
6. To prove the case, the complainant got examined herself as P.W.1 and got marked documents at Ex.P.1 to P.16.
6C.C.No.51850/2016
7. On closure of complainant side evidence, the accused was examined under Sec.313(1)(b) of Cr.P.C., he denied the incriminating materials on record and adduced his defence evidence by examining himself as D.W.1 and got marked Ex.D.1 to 3 documents on his behalf. He specifically denied the sale transaction with the complainant and claimed that he has not executed the agreement dtd:21.01.2009, denied alleged payment of advance amount of Rs.40,00,000/, alleged nomination or insistence of one Mohan and specifically contended he had issued the Ex.P.1 to 3 to his friend Jyothiram for nominal purpose just to show the creditors of the complainant that he was going to purchase the property of the complainant for Rs.1,10,00,000/ accordingly, he claimed to be an innocent and not liable to pay any amount as claimed by the complainant as he is not purchaser of the property held by the complainant. On these grounds, he claims to be innocent.
8. Heard both the sides. The learned counsel for the accused has filed written arguments and in support of his argument, he placed reliance on 7 C.C.No.51850/2016 2019(2) Kar. L.R 683 (SC). Perused the materials on record, the following point arises for my determination;
"Whether the complainant proves beyond all reasonable doubt that, the accused had issued cheques bearing Nos.(1) 310896 dtd:30.01.2015 for Rs.25,00,000/ (2) 310897 dtd:30.01.2015 for Rs.25,00,000/ (3) 310898 dtd:30.01.2015 for Rs.20,00,000/ for legally recoverable debt and same were bounced for Insufficient Funds and despite of demand notice, the accused failed to pay the legally recoverable debt or liability, thereby the accused has committed the offence punishable under Sec.138 of Negotiable Instruments Act?"
9. On that basis my finding on the above point is in the "Affirmative" for the following;
REASONS
10. It is the specific case of the complainant that the accused is known to her family, upon knowing the financial crises of her family, the accused had come forward to purchase her immovable property bearing 8 C.C.No.51850/2016 property No.106, situated at Roopena Agrahara, Beguru Hobli, Bengaluru South Taluk for sale consideration of Rs.1,10,00,000/ and promised her to pay Rs.40,00,000/ and assured remaining balance would be paid through cheques, as per it, the accused has allegedly paid Rs.40,00,000/ cash to her and during the last week of May 2011, the accused nominated one Mr.Mohan S/o. Balaraju and requested her to execute sale deed in favour of Mohan. Due to cordial relationship with the accused, she executed the sale deed in favour of Mohan by believing the accused would pay the balance amount of Rs.70,00,000/, but, soon after the registration of sale deed in favour of Mohan, the accused neglected to pay the balance amount of Rs.70,00,000/, on demand, allegedly issued cheques bearing No.310896 & 310897 dtd:30.01.2015, drawn on Indian Bank, New Thippasandra each for sum of Rs.25,00,000/ and cheque bearing No.310898 dtd:30.01.2015 drawn on Indian Bank, New Thippasandra for Rs.20,00,000/, on its presentation all the cheques were dishonoured for the remarks of "Insufficient Funds", she demanded the payment through legal 9 C.C.No.51850/2016 notice, but, despite intimation delivered the accused neither paid the amount nor replied to her notice. Accordingly, she alleges the accused has committed an offense.
11. Percontra, the accused denied the service of legal notice, alleged transaction, payment of Rs.40,00,000/ to the complainant in the year 2009, issuance of Ex.P.1 to 3 cheques for part of sale consideration, nomination of B.Mohan and specifically contended one Jyothiram is his friend and his friend Jyothiram told him that one lady by name Sunandha-complainant was under financial crises, therefore, he requested him to agree nominally to purchase the property of the complainant for Rs.1,10,00,000/ to show the creditors of the complainant that he is going to purchase the property and would pay the amount. Accordingly, he issued 3 signed blank cheques to his friend Jyothiram in the year 2009, but, he is now absconding despite he requested for return of those cheques from Jyothiram, not returned the same, but, now with active collusion of complainant and husband of the 10 C.C.No.51850/2016 complainant, Jyothiram has filed this complaint. Therefore, he is not liable to pay any amount, he does not have any nexus with Mr.Mohan. However, he admits the Ex.P.1 to 3 cheques are pertaining to his account and signatures found thereon i.e., Ex.P.1(a), Ex.P.2(a), Ex.P.3(a) are belongs to him and also signatures on the Ex.P.15 the mutual agreement found on each page belongs to him. But, he specifically contended that cheques were obtained by his friend Jyothiram, but, not issued for the alleged sale consideration. So, considering the rival contentions of the parties, it is clear that the compliance of Sec.138(b) i.e., service of notice, transaction, issuance of cheque for alleged sale transaction, liability has been seriously disputed or challenged by the accused. So, it is burden on the complainant to prove the compliance of Sec.138(a) to
(c).
12. In order to prove the compliance of Sec.138(b), the complainant herself examined as P.W.1 and placed reliance on the postal receipt, returned cover, legal notice and vehemently stated, as per last known 11 C.C.No.51850/2016 address she caused legal notice soon after the dishonour of the cheques within the stipulated time to the last known address i.e., D.No.27, 2 nd Floor, 7th Cross, 2nd Main, Indiranagar 1st Stage, Bengaluru38. The said notice was returned as unserved with a remarks of "door lock or left". On the other hand, the accused vehemently cross examined the P.W.1 and 2 wherein he only suggested to the P.W.1 that postal shara returned by the postal authority on Ex.P.9 with a remarks of "party left" and also he suggested the address referred in the cause title as well as the returned cover Ex.P.9 is false and he is residing in Thippasandra since 2013. But, the P.W.1 categorically stated the accused was residing from 2009 to 13 at Indiranagar but, not Thippasandra.
13. The husband of the complainantP.W.2 also stated the accused was residing at Indiranagar. During the course of cross examination, it is elicited from his mouth by the accused that he could not find the address of the accused and accused was not residing in the address shown in the cause title as per postal authority. Based on this admission, the 12 C.C.No.51850/2016 learned counsel for the accused vehemently argued in his written argument contending that the complainant has not complied the provisions of Sec.138(a) to (c), as the complainant and her husband does not know the correct address and whereabouts of the accused. The Ex.P.7 was returned with shara "Party Left" which supports his defense that, the address shown in the cause title is a wrong address, even the summons addressed by this court was not served on the accused for almost 3 years, the accused was produced before this court, only on 28.06.2019, he came to know about the filing of this case over phone from Police Constable of CCB and subsequently, the accused was produced before this court under execution of warrant. As such, the address given in the cause title of the accused is false. Hence, Sec.138(b) has not been complied.
14. On the other hand, the learned counsel for the complainant has vehemently argued that, the postal cover returned with shara or remarks of "Left, Door Lock" which is deemed service under Sec.27 of 13 C.C.No.51850/2016 General Clauses Act. Accordingly, the complainant has complied Sec.138(b).
15. Considering the rival submission and materials on record, the accused D.W.1 during the course of cross examination has clearly admitted that;
"It is true to suggest that, I had my office at No.27, 2nd Floor, 2nd Main, Indiranagar, 1st Stage. It is true to suggest that the address shown in the cause title of the complaint is my correct address."
16. So, as per his admission, the address shown in cause title has been unequivocally admitted by the accused. However, he specifically stated that since 2013 he has been residing in New Thippasandra, but, not in the address shown in the cause title. So, considering his testimony, it is very clear that earlier he was staying and running the office in the address shown in the cause title and and which is a correct address. Therefore, the contention of the accused is that the address given in the cause title is a false 14 C.C.No.51850/2016 address, non service of notice cannot be acceptable because, in view of decision of Hon'be Apex Court in Bhaskaran's case giving notice within stipulated time to the correct address is sufficient and even the postal shara returned by the postal authority with a remarks that "left or door lock" which clearly implies that, the address given in cause title is a correct address but not false. So, once it is dispatched to the correct address, it deems that as per Sec.27, the service of notice was proper and sufficient on the party to whom it was addressed. As such, the contention of non compliance of Sec.138(b) of accused cannot be acceptable as there is no dispute with regard to filing of complaint within time and legal notice was caused within stipulated time. Therefore, the complainant has complied Sec.138(a) to (c).
17. So far as sale transaction and issuance of Ex.P.1 to 3 cheques towards the balance consideration of Rs.70,00,000/ is concerned, the initial burden is on the complainant.
15C.C.No.51850/2016
18. In order to prove the alleged sale transaction and issuance of cheques, the complainant got herself examined as P.W.1 and also she examined her husband as P.W.2. The P.W.1 reiterated the complaint averments and specifically stated on oath that, she owned an immovable property at Roopena Agrahara in BBMP Khatha No.106/8/3, the accused had agreed to purchase her property for sale consideration of Rs.1,10,00,000/. As per sale talks, the accused paid Rs.40,00,000/ to her by cash and assured her to pay remaining balance of Rs.70,00,000/ through cheques. Believing the words of the accused as assured, the accused promised her to pay the remaining balance immediately after executing the sale deed he would pay the balance amount of Rs.70,00,000/ through cheques. Further, believing the promise and representation of the accused, she executed the registered sale deed in favour of one Mohan as nominated by the accused in the last week of May'2011 but, as promised by the accused soon after executing the sale deed in favour of Mohan as nominated by the accused, the accused postponed 16 C.C.No.51850/2016 the payment of balance amount with one or the other reasons, but, finally on her several requests and demand, the accused had issued 3 cheques bearing Nos.310896, 310897 drawn on 30.01.2015 each for Rs.25,00,000/ and another cheque bearing No.310898 for Rs.20,00,000/ drawn on 30.01.2015 and requested her to present it. But, on its presentation of the cheques issued by the accused towards the sale consideration was dishonoured due to the Insufficient Funds in the account of the accused. Immediately, she caused notice to the accused but, it was returned with remarks that the addressee left or door lock despite of it, the accused neither replied nor paid the balance sale consideration. Accordingly, she deposed that the accused has cheated her with the false promise and issued the Ex.P.1 to 3 cheques towards the balance sale consideration of Rs.70,00,000/ as agreed. In order to prove the sale transaction between her and the accused, she placed reliance on the Ex.P.1 to 3 cheques returned memos, mutual agreement Ex.P.15 and she also relied upon the copies of the complaint 17 C.C.No.51850/2016 filed against the accused before Madiwala Police Station as well as to CCB, Bengaluru.
19. The accused has totally denied the alleged sale agreement, sale transaction and nomination of one Mohan as alleged by the complainant and contended that he has no nexus with the purchaser Mohan but, allegedly have purchased the property of the complainant and suggested to the P.W.1 during the course of cross examination that one Jyothiram who is a common friend of him and husband of the P.W.1 and denied the Ex.P.15 agreement and suggested that with active collusion of Jyothiram, the complainant and husband of the complainant Ex.P.15 has been created. Further, he himself suggested the signature of Jyothiram found on Ex.P.15 which is marked through confrontation as Ex.P.15(a). Further, he suggested the complaint filed by her before CCB and Madiwala Police against him was closed and also he suggested the P.W.1 also made complaint not only against the accused but also against the Jyothiram and specifically suggested, he had issued 3 signed blank cheques to one Jyothiram 18 C.C.No.51850/2016 as requested by the Jyothiram in the year 2009. Later on, Jyothiram, husband of the P.W.1 and P.W.1 by colluding with each other have created a false story and filed this false case. Therefore, he is not liable to pay any amount to the complainant. But, the complainantP.W.1 has specifically denied all these suggestions and stated that, as per the say of the accused, she sold the house to one Mohan and admitted there is no recital in the sale deed executed in favour of Mohan that the cheques involved in this case has been issued towards the payment of part sale consideration and admitted the accused is not a signatory to the sale deed Ex.P.16. But, specifically stated, the accused made the Jyothiram to sign as witness on a sale deed Ex.P.16. So, on considering the testimony of P.W.1, she specifically stated though she has not executed any sale deed in favour of accused directly but as per the instruction of the accused, the accused nominated the Mohan and promised her to pay the remaining balance. That apart, the accused does not disputes the cheques and signature found on the Ex.P.1 to 3.
19C.C.No.51850/2016
20. Further, the complainant examined her husband P.W.2, P.W.2 stated on oath that the accused nominated one Mohan and requested the complainant to execute the sale deed in favour of Mohan as per the mutual agreement held in between the complainant and accused on 21.09.2009 and promised his wife to pay remaining balance of Rs.70,00,000/ soon after executing the registered sale deed in favour of Mohan, but despite registration the accused prolonged for payment. However, finally had issued the Ex.P.1 to 3 cheques for balance of Rs.70,00,000/, on its presentation it was bounced and stated accused has cheated to his wife. The accused vehemently cross examined the P.W.2 wherein he specifically suggested Jyothiram is friend of P.W.2 and Ex.P.15 has been created by P.W.2 Jyothiram and the complainant and denied the sale transaction as alleged by the complainant.
21. The accused during his examination in chief itself on oath specifically stated one Jyothiram is his friend, in the year 2008 his friend Jyothiram told him that one Sunandha had financial problems, the 20 C.C.No.51850/2016 creditors of the complainant were torturing the complainant for repayment of loan borrowed from several persons. Accordingly, his friend Jyothiram requested him to issue 3 signed cheques for nominal sake, just to show he was intended to purchase the house property pertaining to the complainant and assured him he would not misuse the cheques. Based on that assurance, he issued 3 signed blank cheques i.e., Ex.P.1, 2 for Rs.25,00,000/ each and Ex.P.3 for Rs.20,00,000/ for its security, his friend Jyothiram has issued one signed blank cheque belongs to Jyothiram. Later on, he requested his friend to return all his cheques but, not returned the same and he learnt that when the police have arrested him and brought before this court on execution of body warrant, his friend Jyothiram, complainant and husband of the complainant by colluding with each other have filed this false case by misusing his cheques issued in favour of Jyothiram for a nominal sake and specifically stated he has no nexus with the Mohan, he never had a transaction with the complainant what so ever either to purchase the property belongs to the complainant or he never 21 C.C.No.51850/2016 nominated Mohan for to get the sale deed registered. So considering the testimony of accused and the evidence of P.W.1 and 2 on record, it is clear that the cheques Ex.P.1 to 3 and signature found thereon and writings or contents of the cheques written by the accused and issued to one Jyothiram, so the cheques Ex.P.1 to 3 i.e., questioned cheques are pertaining to the account of the accused and signature found thereon i.e., Ex.P.1(a) to Ex.P.3(a) are belongs to the accused, but, he specifically stated it was issued nominally to one Jyothiram. So, in view of the admission, it is relevant to note the decision of the Hon'ble Supreme Court i.e. Rangappa .Vs. Mohan wherein, the Apex Court has held that;
"Once the cheque relates to the account of the accused and he accept and admit the signature on the said cheque, then initial presumption as contemplated under Sec.139 of N.I.Act has to be raised by the court in favour of the complainant. The presumption referred to in Sec.139 of N.I.Act is a mandatory presumption and not a general 22 C.C.No.51850/2016 presumption, but the accused is entitled to rebut the said presumption."
22. So, once it is proved, the presumption shall be drawn in favour of the complainant that the cheques in questions were issued by the accused for consideration as per Sec.139, 118A of N.I.Act. However, it is a rebuttable presumption, the onus is on the accused to disprove or rebut the presumption that there is no debt or liability is exists as alleged by the complainant.
23. The accused in order to rebut the presumption got examined himself as D.W.1 and placed reliance on blank signed cheque said to have belongs to his friend Jyothiram, issued for security purpose for having been issued 3 cheques by him for nominal sake to show the creditors of the complainant that, he is going to purchase the property of the complainant. However, during the course of cross examination it is elicited from the mouth of the accused by the complainant that, he knew his friend Jyothiram who is doing realestate profession since 23 C.C.No.51850/2016 2008. Further, he did not enquire before issuing Ex.P.1 to 3 cheques to his friend for nominal sake that whether Sunandha i.e., complainant really had a financial problem and he cannot say the exact date of issuance of 3 cheques to his friend Jyothiram, but, it was issued in the year 2009, further he stated except issuance of Ex.P.1 to 3 cheques he has not executed any documents in favour of one Jyothiram. However, the complainant has confronted the signatures found on each page of mutual agreement relied by the complainant i.e., Ex.P.15 is of accused only, the accused admitted all his signatures found on each page and same has marked on behalf of the complainant as Ex.P.15(a) to (c) but, specifically stated, he had no knowledge of initiating any legal proceedings against his friend Jyothiram for having misusing of the alleged cheques in collusion with the complainant. So, on this testimony of the accused, it is clearly manifests that he issued Ex.P.1 to 3 cheques to Jyothiram in the year 2008 though he specifically alleged his friend Jyothiram has misused his cheques which was allegedly issued for nominal sake with contents written by him in the year 2009 24 C.C.No.51850/2016 he did not make any enquiry, whether really the complainant was in great financial trouble. Therefore, the said contention of the accused cannot be acceptable because, he himself admitted the signatures Ex.P.15(a) to (c) found on Ex.P.15, in contrary to his evidence i.e., in chief he has stated except issuance of Ex.P.1 to 3 cheques he has not executed any documents in favour of Jyothiram, but, he admitted the signatures Ex.P.15(a) to (c) and later, in contrary, he deposed that his friend Jyothiram has also obtained his signatures on blank stamp paper. But, when Cheques Ex.P.1 to 3 were issued and the stamp paper with his signature, before whom for that absolutely there is no evidence on record. Further, as per the accused his friend Jyothiram is absconding however he produced Ex.D.1 the blank Cheque said to have pertaining to the account of his friend Jyothiram. But, same has denied by the complainant. To prove the alleged issuance of Cheque and Cheque is pertaining to Jyothiram the accused has not at all examined his friend Jyothiram about the issuance of Ex.D.1 and the Cheque is pertaining to Jyothiram. So, in the absence of that 25 C.C.No.51850/2016 evidence, mere producing of blank Cheque without proof to show the Cheque is pertaining to said Jyothiram and issuance cannot be acceptable without proof to that effect because, it is specific case of the complainant that in collusion with the Jyothiram the accused have cheated her. When such being the case, the accused has to produce a plausible evidence to accept his defense that he had issued Ex.P.1 to 3 Cheques and a stamp paper only nominal purpose and that too Jyothiram in the year 2009. For that, there is absolutely no evidence on record to believe his contention. On the other hand, the complainant has produced the Ex.P.15 which clearly discloses the stamp paper was purchased by the accused and the Ex.P.15 clearly discloses that there is a clear recital that;
"The first party herein undertakes that he shall pay to the second party of the sum of Rs.70,00,000/ towards the purchase of schedule property by paying via Cheque bearing No.310896, 310897 and 310898 respectively."26
C.C.No.51850/2016
24. The very same Cheques as undertaken by the accused in mutual agreement Ex.P.15 had issued subsequent to sale deed Ex.P.16. But, despite of his admission of signatures found on each page of Ex.P.15 the accused taken a specific defense that he signed only on stamp paper as per the assurance of his friend Jyothiram was not entered into an agreement with the complainant, but, the said contention without any proof about issuance of stamp paper without the examination of his friend Jyothiram to prove its issuance for nominal purpose cannot be acceptable because as per the Ex.P.15, P.W.2 & Jyothiram are attesting witness to the agreement. As stated by the accused, his friend Jyothiram is absconding, the another witness of Ex.P.15 who is none other than the husband of the complainant deposed that the accused had entered into an agreement with his wife as per Ex.P.15 on 21.11.2009 and agreed to pay the balance amount through Cheques Ex.P.1 to 3, P.W.2 identified the signatures of accused at Ex.P.15(a) to (c) and deposed the sale transaction held in between the accused and his wife. Therefore, the complainant has proved the 27 C.C.No.51850/2016 execution of agreement Ex.P.15 and its contents as such, any oral evidence contradicting, varying to the recitals of an agreement is not permissible under Sec.92 of Evidence Act. Therefore, the contention of the accused that he had signed on blank stamp paper and only for the nominal sake to show the creditors of the complainant he issued to his friends Jyothiram as insisted by his friend cannot be acceptable.
25. Further, the accused has suggested during the course of crossexamination of P.W.1 that one Jyothiram has given the signed blank Cheques to the complainant on that basis this case has been foisted against him. However, he improved his suggestion in a different manner to the husband of the complainant who is attesting witness to the agreement has suggested that in the year 2009, his friend Jyothiram approached him and told him that the complainant was in great financial difficulties, accordingly, the complainant asked him to execute a memorandum of understanding and issue the Cheques in order to show the same to the creditors of the complainant, the same has been misused. Considering these 28 C.C.No.51850/2016 suggestions which are quiet contradictory to each other, in one breath he suggested signed blank stamp paper obtained by his friend, obtaining the same, the complainant with collusion of his friend, got filled up, but, in another breath he suggested that only in order to show the creditors of the complainant he entered into a MOU and issued the Cheques, which shows both these recitals as suggested by the accused does not found place in Ex.P.15. Even. His suggestions cannot be acceptable because, he being a B.Com graduate and having a knowledge of bank affairs, value of negotiable instruments, consequence of issuance of cheque, only in order to show the creditors he issued these 3 signed blank Cheques and a signed stamp paper to a rustic woman cannot be acceptable, because no prudent man would issue 3 signed blank Cheques and a signed stamp paper just for nominal sake to show the creditors of woman that too a unknown woman based on the request of friend. Therefore, in the absence of recital in Ex.P.15 & in the absence of proof about issuance of signed blank Cheques and a signed stamp paper to his friend 29 C.C.No.51850/2016 Jyothiram in the year 2009, the defence of the accused is not probable, believable, credible.
26. Further, so far as Ex.D.1 is concerned the complainant has specifically stated and placed reliance on copies of complaint Ex.P.10, 12, 13 complaint against the accused herein Jyothiram, Mohan and some others about non payment of balance sale consideration to her is concerned, as per the complaint the accused and his friend Jyothiram by colluding each other have cheated her by obtaining the sale deed registered, the accused has failed to return the remaining balance as agreed under Ex.P.15. But, the accused deposed that towards the security of issuance of Cheques and stamp paper his friend Jyothiram has issued a blank Cheque Ex.D.1 as a security, but, there is no explanation from the side of the accused that when it was issued & before whom it was issued. Further, as per the accused own version the said Jyothiram is absconding. Therefore, without examining his friend Jyothiram his defense cannot be acceptable about surety as the accused has failed to prove the very 30 C.C.No.51850/2016 prime material that he issued Ex.P.1 to 3 and signed blank stamp paper to his friend. Therefore, the Ex.D.1 cannot come to his rescue because, the complainant has specifically alleged the accused, Jyothiram, Mohan and others actively colluded with each other and cheated her in this regard she complained to Madivala Police and CCB Bengaluru which is not disputed by the accused. When such being the case, without proof about defense cannot be acceptable.
27. The learned counsel for the accused vehemently argued by relying upon Ex.P.16 sale deed executed by the complainant in favour of one Mohan that to believe the claim of the complainant as per the instruction, as nominated, as insisted by the accused she executed sale deed in favour of one Manu. But, in the said sale deed Ex.P.16 there is no reference of Ex.P.15, balance consideration, neither the accused is the purchaser of the property nor the signatory as such, only in case if the accused has purchased the property legally enforceable debt would be in existence but, the accused is not a purchaser nor 31 C.C.No.51850/2016 nominated the purchase Manu, therefore, as the accused is not the purchaser issuance of these Cheques for legally enforceable debt or liability does not arise as such, he vehemently argued the complainant has failed to prove the existence of debt or liability of the accused.
28. Further, the learned counsel for the accused vehemently argued that by highlighting the recital in Ex.P.16 that in para 4 of second page of sale deed i.e., "Whereas the vendor executed the registered sale deed in favour of the purchase and the same was registered as document No.4687/200910 of book No.1, C.V.No.BMHV 388 dtd:23.11.2009 registered in the office of the SubRegistrar, Bommanahalli, Bengaluru."
29. That the said recital would clearly discloses that the accused neither nominated the purchaser nor the purchaser. Therefore, when there is no proof to that effect of sale of property to the accused, as alleged by 32 C.C.No.51850/2016 the complainant there is no legal debt or liability is in existence and prayed for acquittal by relying upon the decision reported in; 2019(2) KLR SC 683.
30. On the other hand, the counsel for the complainant vehemently argued that since the accused had nominated the purchaser Manu and believing the words of the accused that he would pay the balance amount of Rs.70,00,000/ through Cheques as referred in Ex.P.15, the complainant have executed the sale deed in favour of Manu thereafter, the accused have issued the Cheques referred in an agreement towards the balance sale consideration, though the sale deed is not in the name of the accused but as nominated and insisted the complainant has executed the sale deed as such, mere non reference about the Cheques, sale agreement entered between the accused and the complainant which does not itself proof that the liability of debt was not in existence, as the complainant has executed the sale deed in favour of Mohan as insisted by the accused, as such, in view of presumption he prayed to convict the accused as the 33 C.C.No.51850/2016 accused have admitted the Cheques and signature is pertaining to the accused.
31. Considering the rival contention with the materials on record, it is true that as per Ex.P.16 the accused is not a purchaser on record however, the accused has not denied the property referred by the complainant in property No. 106 situated at Roopena Agrahara Begur Hobli, Bengaluru South Talukh was belongs to the complainant or ownership of the complainant. But, he simply denies the claim of the complainant that he nominated or insisted the complainant to execute the sale deed in favour of one Mohan. However, he has not probablised his defense how his Cheques Ex.P.1 to 3 and signed stamp paper gone into the hands of the complainant. In the absence of proof to that effect, unless the contrary is proved the presumption is to be drawn in favour of the holder of the Cheque as per Sec.118A and 139 every holder of the Cheques issued for consideration or for legally recoverable debt. Of course agreement of sale doesn't amounts to sale or completes the sale transaction. However, merely because the sale deed 34 C.C.No.51850/2016 is not in the name of the accused the defence of the accused cannot be acceptable, because, it is not the case of the complainant that sale deed executed in favour of the accused but it is her specific case is that as nominated by the accused, she executed the sale deed Ex.P.16 believing the assurance of the accused to pay the remaining balance through Cheques as agreed in Ex.P.15.
32. In Ex.P.15, the accused clearly admitted the signatures Ex.P.1(a) to (c) are belong to him but, denies the contents of the document. However, he failed to probablise the issuance of signed blank stamp paper to Jyothiram. In contrary the complainant has examined her husband P.W.2 the attesting witness has clearly stated the sale transaction held in between his wife and the accused on 21.11.2009. When such being the case, the agreement held in between the complainant and the accused on 21.11.2009 has been proved by the complainant. Therefore, the contention of the accused that he has not purchased the property in pursuance of agreement dtd:21.11.2009 cannot be 35 C.C.No.51850/2016 acceptable, though it is not purchased in the name of the accused, because, it is the specific case of the complainant that the accused has nominated one Mohan and requested her to execute sale deed in favour of one Mohan. But, the accused denies the nexus in between the Mohan and him, if so, he could have examine or summon the purchaser Mohan to prove that he does not have any nexus with Mohan to overcome or rebut the specific case of the complainant about alleged nomination. Therefore, the accused failed to disprove the assertion of the complainant that the accused only nominated one Mohan and requested the complainant to execute the sale deed. Even the sale consideration of Ex.P.16, is only Rs.47,00,000/ but not Rs.1,10,00,000/ that too it has been executed in the year 2011 just after 2 months of mutual agreement between the complainant and the accused which clearly discloses though the accused is not the purchaser but, he only nominated the purchaser and requested the complainant to execute the same which is clear evident as the Ex.P.15 held in between the accused and the complainant, as such, the nomination or 36 C.C.No.51850/2016 insistence to execute the sale deed by the accused in favour of Mohan cannot be ruled out unless the accused able to prove that he has no nexus with the Mohan and he had no sale transaction with the complainant as per Ex.P.15. Therefore, the contention of the accused cannot be acceptable accordingly, I do not found any substance or valid force in the arguments of the accused and does not hold any water as there is presumption in favour of the holder of the Cheques unless its contrary is proved, the presumption shall be drawn in favour of the complainant in view of Ex.P.15, the accused owed or liable to pay the balance sale consideration soon after the execution of sale deed in favour of one Mohan. Therefore, the decision relied by the accused cannot come to his rescue as in that case there was no written agreement produced to show the transfer of property through registered sale deed but, here in this case the Ex.P.15 document is a written document, wherein the accused agreed to purchase the property for Rs.1,10,00,000/ subsequently he nominated another man and requested the complainant to execute the sale deed in favour of one 37 C.C.No.51850/2016 Mohan which clearly discloses the accused was liable to pay the balance sale consideration to the complainant.
33. As such, considering the entire materials on record, the accused though taken a specific defense about issuance of signed 3 blank Cheques, 1 signed blank stamp paper to his friend one Jyothiram, he failed to probablise his defence with proof about issuance of the Ex.P.1 to 3, and blank stamp paper Ex.P.15 to his friend Jyothiram for only nominal sake just to show the creditors of the complainant that he was going to be purchase the property pertaining to the complainant which cannot be acceptable evidence. Therefore, the accused has failed to discharge his onus with plausible evidence to believe his defence. Accordingly, in view of his admission the Cheques and signatures found on the Cheques are pertaining to the accused and the complainant has proved the issuance of these Cheques in pursuance of Ex.P.15 and 16 towards the sale of her property to one Mohan as nominated by the accused.
38C.C.No.51850/2016
34. Further, the accused despite initiating of proceedings by the complainant against him and complaint lodged before the CCB, Madiwala Police Station, the accused neither taken any legal action against his friend Jyothiram or the complainant to substantiate his defence that he issued the Ex.P.1 to 3 Cheques for nominal sake just to show the creditors of the complainant that he would pay Rs.1,10,00,000/ by purchasing the property belongs to the complainant which cannot be acceptable as the accused is not a layman because he is a B.Com graduate and aware of consequences of issuance of Negotiable Instruments. In the absence of that the complainant has proved the issuance of Cheques towards the legally recoverable liability i..e, sale consideration and all the Cheques Ex.P.1 to 3 totallying to Rs.70,00,000/ were bounced with the remarks of Insufficient Funds despite the legal notice served on the accused failed to pay the claimed amount to the complainant. Therefore, the complainant has proved the ingredients of Sec.138, accordingly, the accused found guilty of an offense punishable under Sec.138 of N.I.Act.
39C.C.No.51850/2016
35. So far as sentence and compensation is concerned, the material on record clearly revealed that the Cheques were issued towards the balance consideration of sale of a residential house situated in Roopena Agrahara, in pursuance of agreement Ex.P.15 and sale deed Ex.P.16, so, it is a sale transaction of an immovable property. Therefore, considering the nature of transaction and period of pendancy of this case, I am of the opinion that if the accused is sentenced to pay a fine of Rs.82,55,000/ that would meet the ends of justice. Therefore, the accused is sentenced to pay a fine of Rs.82,55,000/ out of the fine amount received the complainant is entitled for Rs.82,50,000/ as a compensation under Sec.357(1) of Cr.P.C. and remaining amount of Rs.5,000/ is to be appropriated to the State. In case of default, the accused shall under go simple imprisonment for a period of 6 months. Accordingly I answer the above point in "Affirmative". In the result, following;
40
C.C.No.51850/2016
ORDER
Acting under section 255(2) of
Criminal Procedure Code, the accused is convicted of the offence punishable U/s 138 of Negotiable Instrument Act, The accused is sentenced to pay a fine of Rs.82,55,000/ (Rupees Eighty Two Lakhs Fifty Five Thousand) in default, the accused shall undergo simple imprisonment for a period of six months.
Out of the fine amount received, Rs.5,000/ is to be appropriated to the State and by way of compensation as per the provision U/s 357(1) of Cr.P.C. the complainant is entitled for Rs.82,50,000/.
The bail bonds and surety bond of the accused shall stand cancelled.
Office is directed to furnish a free copy of the judgment to the accused.
(Dictated to the Stenographer directly on computer, typed by her, corrected, signed and then pronounced by me in the open court, on this the 11th day of February, 2021) 41 C.C.No.51850/2016 (M.Vijay), XXXIII ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Smt.Sunandha P.W.2 : Srinivas Reddy
2. Documents marked on behalf of complainant:
Ex.P.1 to 3 : Original cheque
Ex.P.1(a) to : Signature of the accused.
3(a)
Ex.P.4 to 6 : Bank return memo.
Ex.P.7 : Office copy of the legal notice
Ex.P.8 : Postal receipt
Ex.P.9 : Returned postal cover
Ex.P.9(a) : Returned postal cover opened in the open court
and notice therein marked
Ex.P10 : Copy of the complaint
Ex.P11 : Police endorsement
Ex.P12 to : Complaints
14
Ex.P15 : Mutual Agreement
Ex.P15(a) : Signatures of the accused
to (c)
Ex.P.16 : Sale deed dtd:28.05.2011
3. Witnesses examined on behalf of Accused:
D.W.1 : Mahendra Singh
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C.C.No.51850/2016
4. Documents marked on behalf of Accused:
Ex.D.1 : Original Cheque
Ex.D.1(a) : Signature of Jyothi Ram
Ex.D.2 : Notice issued by the CCB Police
Ex.D.3 : Copy of application dtd:23.11.2020
(M.Vijay),
XXXIII ACMM, BENGALURU.