Bangalore District Court
Mr. R. Dwarakinath vs ) Sri. Rakesh.R on 7 December, 2021
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
Dated: This the 7th day of December 2021
Present : Sri Siddaramappa Kalyan Rao, B.A., LL.B.,
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
CC.No.2664 of 2019
COMPLAINANT/S: Mr. R. Dwarakinath,
S/o. Late. N. Ramarao,
Aged about 65 years,
R/at: Flat No.405,
D.S.Max Status Apartment,
Near BMS IT,
Avalahalli,
Doddaballapura Road,
Bengaluru - 560 064.
Since the complainant is dead,
represented by his LR
Smt. Sharavati Dwarkinath,
W/o. Late R. Dwarakinath,
Aged about 64 years,
R/at: Flat No.405,
D.S.Max Status Apartments,
Near BMS IT,
Avalahalli,
Doddaballapura Road,
Bengaluru - 560 064.
(By. Ms. Hemavathi.A.V.,
Advocate)
- Vs -
ACCUSED: 1) Sri. Rakesh.R,
Represented by Proprietor and
2 CC.No.2664/2019
Director of R.V.Technologies.
2) R.V.Technologies,
No:20/3, Koushik Plaza,
2nd Floor, 80 Feet Road,
2nd Stage,
Basaveshwaranagar,
Bengaluru - 560 079.
(By. Sri. Shashidhar.K.N.,
Advocate)
Offence Under Section 138 of Negotiable
Instruments Act
Plea of the accused Pleaded not guilty
Final Order Convicted
******
JUDGMENT
This complaint is filed under section 200 of Cr.P.C for the offence punishable under section 138 of Negotiable Instruments Act. 1881.
2. The brief facts of the complainant case is that:
The accused has given the add for installation of mobile tower. The complainant by seeing the add approached the accused stating that in his property they can install the mobile tower.3 CC.No.2664/2019
3. It is further contended that for the installation of the said tower, complainant have to pay a sum of Rs.2,65,000/- to accused company and for that accused will pay monthly rent of Rs.65,000/- for a period of 15 years and increase the rent for 9% per annum and forced the complainant to pay the said amount and said that from that month onwards accused company will pay the rent to the complainant and accused informed the complainant that they are the channel partner of Airtel.
4. It is further contended that, as per the instructions of accused, complainant paid a sum of Rs.1,75,000/- as on 11/05/2017 through DD and on 04/06/2017 paid a sum of Rs.90,000/- by way of NEFT to the accused company.
5. It is further contended that after receiving the above said amount, accused promised that after 45 to 90 days i.e., on or before 15/09/2017, accused company will complete the mobile tower installation project, but from the said company nobody came and started the mobile tower 4 CC.No.2664/2019 installation project. When complainant requested the same, accused and accused company told that they have to enter into an agreement, after that, they will start the work and postponed the days.
6. It is further contended that finally complainant asked accused and accused company that let them install the mobile tower or return the amount which was paid by complainant. Hence, the accused issued a cheque bearing No:848785 dated for a sum of Rs.1,25,000/- drawn on State Bank of India, Vidyanagar Branch, Ramnagar and assured to complainant that it will be honoured on its presentation to the Bank.
7. It is further contended that when the complainant presented the said cheque through his Banker Canara Bank, Yelahanka Branch, Bengaluru, it was dishonoured for the reasons "Funds insufficient" on 09/05/2018.
8. Thereafter, the complainant got issued legal notice to the accused on 18/05/2018 by way of RPAD and it is 5 CC.No.2664/2019 duly served to accused No.1 and 2 on 19/05/2018. Thereafter, accused No.1 has not paid the cheque amount nor issued any reply notice. Hence, the present complaint is filed.
9. After filing of the complaint, this court has taken the cognizance of offence under section 138 of N.I Act and registered a Private complaint. After recording the sworn statement of the complainant, this court has registered the case against the accused for the offence punishable under Section 138 of Negotiable Instruments Act. Summons issued to the accused. The Accused No.1 appeared through his counsel and enlarged on bail. There afterwards, plea of accusation was read over and explained to Accused No.1 in the language known to him and he pleaded not guilty and claims to be tried.
10. In view of defence raised by accused, this court had directed the accused to deposit 20% of the cheque amount on 05/03/2021. The accused has not deposited 20% of the cheque amount, even after lapse of 6 months. 6 CC.No.2664/2019 Hence, as per order dated 18/09/2021, this court has taken the cross-examination of PW-1 by accused as nil. In this regard, I rely upon the decision of Hon'ble High Court of Karnataka reported in Crl.Petition No:462/2020 dated 13/10/2020 between Ravi V/s. A.N.Moggannagowda, wherein at Para No:8.4 it has been held as under:-
"Thus point No.2 is answered by holding that merely because an application is filed under Section 145(2) of the Negotiable Instruments Act, the accused would not automatically be entitled to cross-examine complainant's witness, such accused in order to claim a right to cross-examine would have to have complied with any order that might have been passed requiring his compliance, without complying with such order including any order passed under Section 143 (A) of the Negotiable Instruments Act, the accused cannot be permitted to cross-examine the Complainant's witness".7 CC.No.2664/2019
Hence, until and unless the order passed by this court under Section 143(A) of N.I.Act is complied by accused, he cannot be permitted to cross-examine PW-1. The statement of the Accused No.1 under Section 313 of Cr.P.C is recorded on 29/09/2021 and Accused No.1 denied the entire incriminating statement recorded against him. In spite of giving sufficient opportunities, the Accused No.1 has not chosen to lead defence evidence, hence the defence evidence is taken as nil as per order dated 22/10/2021.
11. During pendency of case complainant died and the wife of the complainant being the L.R. was brought on record on 08/01/2019. Hence, in order to prove the case of the deceased complainant, the L.R. of the complainant is examined as PW-1 and got marked the documents from Ex.P.1 to Ex.P.8.
12. Heard the arguments of complainant counsel on 29/10/2021. The accused counsel remained absent. Hence, the arguments of accused counsel is taken as nil as 8 CC.No.2664/2019 per order dated 10/11/2021. Perused the entire oral and documentary evidence placed on record.
13. The following points arose for my consideration:
1. Whether the complainant proves that there is existence of legally recoverable debt as stated in the complaint?
2. If so, whether the complainant proves that Ex.P.1 cheque is issued towards discharge of legally recoverable debt by the accused?
3. Whether the complainant proves that the accused has committed an offence under Section 138 of Negotiable Instruments Act?
4. What order?
14. My findings to the above points are as under:
Point No.1 : In the affirmative;
Point No.2 : In the affirmative;
Point No.3 : In the Affirmative
Point No 4 : As per final order,
for the following:
REASONS
POINTS NO.1 AND 2:
15. These points are taken together for common 9 CC.No.2664/2019 discussion in order to avoid repetition of facts.
16. It is a specific case of the complainant that Accused No.1 is the Proprietor and Director of Accused No.2 Company by name R.V.Technologies. The accused have given the add for installation of mobile tower. The complainant by seeing the add approached the accused No.1 stating that in his property they can install the mobile tower. For installation of the said tower, accused said to complainant, that he has to pay a sum of Rs.2,65,000/- to accused No.2 company and for that accused No.1 will pay monthly rent of Rs.65,000/- for a period of 15 years and increase the rent for 9% per annum and forced the complainant to pay the said amount and said that from that month onwards accused company will pay the rent to the complainant. The accused informed the complainant that they are the channel partner of Airtel. As per the instructions of accused, complainant paid a sum of Rs.1,75,000/- on 11/05/2017 through DD and on 04/06/2017 paid a sum of Rs.90,000/- by way of NEFT to the accused company. After receiving the above said 10 CC.No.2664/2019 amount, Accused No.1 promised that after 45 to 90 days i.e., on or before 15/09/2017, accused company will complete the mobile tower installation project, but from the said company nobody came and started the mobile tower installation project. When complainant requested the same, accused and accused company told that they have to enter into an agreement, after that, they will start the work and postponed the days. Finally, complainant asked accused and accused company that let them install the mobile tower or return the amount which was paid by complainant. Hence, the accused issued Ex.P.1 cheque bearing No:848785 dated for a sum of Rs.1,25,000/- drawn on State Bank of India, Vidyanagar Branch, Ramnagar and assured to complainant that it will be honoured on its presentation to the Bank. When the complainant presented the said cheque through his Banker Canara Bank, Yelahanka Branch, Bengaluru, it was dishonoured for the reasons "Funds insufficient" on 09/05/2018 as per Ex.P.2 memo.
17. To substantiate the above said contention, the 11 CC.No.2664/2019 LR of the complainant is examined as PW-1 and has marked the documents from Ex.P.1 to Ex.P.8.
Ex.P.1 is the cheque of State Bank of India, Vidyanagar Branch, Ramanagaram bearing No:848785 dated 25/04/2018 for a sum of Rs.1,25,000/- issued to R.Dwarakinath i.e., the deceased complainant and it is issued by Accused No.2 company R.V.Technologies and signed by Accused No.1 as Proprietor of the said company. Ex.P.2 is the memo issued by Canara Bank dated 09/05/2018 with respect to cheque bearing No:848785 for a sum of Rs.1,25,000/- and the above said cheque is dishonoured for the reasons "Funds insufficient". Ex.P.3 is the office copy of legal notice issued to accused dated 18/05/2018. Ex.P.4 and Ex.P.5 are the postal receipts. Ex.P.6 and Ex.P.7 are the Postal acknowledgements. Ex.P.8 is the Death certificate of the complainant R.Dwarakinath who died on 13/08/2018.
18. Hence, to substantiate the above said contention, the LR of the deceased complainant who is examined as 12 CC.No.2664/2019 PW-1 has reiterated the facts as stated in the complaint averments in her affidavit evidence. Among all the documents produced by the complainant from Ex.P.1 to Ex.P.8, on perusal of Ex.P.3 which is the legal notice issued by the complainant counsel to accused No.1 and 2 dated 18/05/2018, it reveals that accused had given the add for installation of mobile tower and complainant by seeing the said add had approached the accused No 1 to install the said mobile tower in his property. It is also contended in the legal notice that the accused had told the complainant that they are channel partners of Airtel and for installation of the said tower complainant has to pay a sum of Rs.2,65,000/- to accused company and for that accused will pay monthly rent of Rs.65,000/- for a period of 15 years and increase the rent for 9% per annum and forced the complainant to pay the said amount and said that from that month onwards accused company will pay the rent to the complainant. Complainant also paid Rs.1,75,000/- by way of cheque Rs.90,000/- by way of NEFT to the accused company. After receiving the above said amount, Accused No.1 promised that after 45 to 90 13 CC.No.2664/2019 days i.e., on or before 15/09/2017 accused company will complete the mobile tower installation project, but from the said company nobody came and started the mobile tower installation project. When complainant requested the same, Accused No.1 and accused company told that they have to enter into an agreement, after that, they will start the work and postponed the days. Finally complainant asked Accused No.1 and accused company that let them install the mobile tower or return the amount which was paid by complainant, at that time Accused No.1 issued Ex.P.1 cheque bearing No:848785 dated for a sum of Rs.1,25,000/- drawn on State Bank of India, Vidyanagar Branch, Ramnagar and assured to complainant that it will be honoured on its presentation to the Bank. When the complainant presented the said cheque through his Banker Canara Bank, Yelahanka Branch, Bengaluru, it was dishonoured for the reasons "Funds insufficient" on 09/05/2018 as per Ex.P.2 memo. Though sufficient opportunity was given to the counsel for accused, he has not chosen to cross-examine PW-1 and also not deposited 20% of the cheque amount.
14 CC.No.2664/2019
19. Hence, there are no reasons to disbelieve the oral and documentary evidence produced by PW-1. As per Section 139 of N.I.Act, unless and until the contrary is proved, this court has to presume that Ex.P.1 cheque has been issued by the accused No.1 for discharge of liability. In the present case there are no any reasons to disbelieve the oral and documentary evidence produced by PW-1. Hence, I believe that the above said oral and documentary evidence produced by the complainant as true and correct and Ex.P.1 cheque has been issued by the accused No.1 on behalf of Accused No.2 Company in favour of complainant towards non-installation of tower in the land of complainant. Hence, the above said liability obtained by the accused is a legally recoverable debt.
20. Further, I rely upon the decision reported in Crl. Appeal No:230-31 of 2019, decided between Bir Singh V/s. Mukesh Kumar dated 06/02/2019 wherein at Para No:40 it has been clearly held that :-
15 CC.No.2664/2019
"Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt".
Hence, the complainant has proved that for discharge of debt, accused No.1 has issued Ex.P.1 cheque in favour of complainant. Hence, in view of my above discussion, I answer Point No.1 and 2 in the "Affirmative". POINT No.3:-
21. It is the specific contention of the complainant that accused No.2 has given the add for installation of mobile tower. The complainant by seeing the add approached the accused No.1 stating them to install the mobile tower in his property. It was agreed that for installation of mobile tower, complainant has to pay a sum of Rs.2,65,000/- to accused No.2 company and later accused No.1 will pay monthly rent of Rs.65,000/- for a period of 15 years and increase the rent for 9% per annum. 16 CC.No.2664/2019 Complainant also paid the said amount by way of cheque as well as NEFT. Since the Accused No.1 has not installed the mobile tower in the complainant's property, hence in discharge of the said debt, the accused issued Ex.P.1 cheque bearing No:848785 dated 25/04/2018 for Rs.1,25,000/- drawn on State Bank of India, Vidyanagar Branch, Ramanagaram. When the complainant presented the said cheque through his Banker Canara Bank, Yelahanka Branch, Bengaluru, the cheque was dishonoured for the reasons "Funds insufficient" on 09/05/2018 as per Ex.P.2 memo. Thereafter, the complainant got issued legal notice as per Ex.P.3 dated 18/05/2018 and it was sent to the accused No.1 and 2 as per Ex.P.4 and Ex.P.5 postal receipts. The notice is duly served on accused No.1 and 2 on 19/05/2018. Thereafter, accused No.1 and 2 have not paid the cheque amount. Hence, the present complaint is filed.
22. In this regard, it is relevant to peruse Section 138 of the Negotiable Instrument Act, which reads as under:-
17 CC.No.2664/2019
"Dishonour of cheque for insufficiency, etc., of funds in the account.--Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:
23. Provided that nothing contained in this section shall apply unless--
a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and 18 CC.No.2664/2019
c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
24. Explanation.--For the purposes of this section, "debt of other liability" means a legally enforceable debt or other liability.
25. On going through the said provision of law, it is clear that in order to establish and to prove the fact that the accused No.1 and 2 have committed an offence under section 138 of N.I.Act, the essential requirements i.e., legally recoverable debt, issuance of the cheque, presentation of the said cheque within the stipulated period for encashment, the dishonour of the said cheque and the issuance of the legal notice within the stipulated period calling upon the accused No.1 and 2 in making the payment of the said cheque amount is within the stipulated period are to be proved by the complainant. 19 CC.No.2664/2019
26. On going through the facts and circumstances of the case, it is clear that the accused No.1 has issued Ex.P.1 cheque bearing No:848785 dated 25/04/2018 for Rs.1,25,000/- and the said cheque was dishonoured for the reasons "Funds insufficient" vide Ex.P.2 memo dated 09/05/2018. The complainant has issued the Ex.P.3 legal notice through his advocate on 18/05/2018 and the said notice is sent to the accused No.1 and 2 as per Ex.P.4 and Ex.P.5 postal receipts. The legal notice sent to the accused is duly served on the accused No.1 and 2 on 19/05/2018 as per Ex.P.6 and Ex.P.7 Postal acknowledgements. The evidence placed on record shows the failure of the accused No.1 to pay the above said cheque amount within stipulated period as per section 138(c) of the Act. The present complaint has been filed well within the period of limitation. In view of this, the complainant has satisfied the entire requirements of section 138 of N.I.Act.
27. On going through the entire oral and documentary evidence and as observed supra, the complainant has proved the existence of legally recoverable 20 CC.No.2664/2019 debt and issuance of cheque towards discharge of the said debt and also issuance of the legal notice within stipulated period and the failure of the accused No.1 and 2 to make payment of the said cheque amount within stipulated period. Under such circumstances, I hold that the complainant has clearly proved the existence of legally recoverable debt and also the issuance of cheque towards the discharge of said debt.
28. When the complainant proved that accused No.1 and 2 have issued cheque towards his liability, Accused No.1 is liable to pay the money as provided U/Sec.138 of N.I.Act, the accused No.1 can be punishable with imprisonment for a term which may be extended upto 2 years or with fine which may be extended to twice the amount of the cheque or with both. The accused No.1 and 2 are liable to pay the cheque amount of Rs.1,25,000/- in discharge of their liability. I feel that if the cheque amount is ordered as compensation to the complainant, it would meet the justice to both the parties. Hence accused No.1 is 21 CC.No.2664/2019 liable to pay the cheque amount in favour of complainant. Hence in view of my above discussion, I answer Point No.3 in "Affirmative".
POINT No.4:-
29. In the result I proceed to pass the following:
ORDER Acting under Section 255(2) of Cr.P.C., the accused No.1 is hereby convicted for the offence punishable under Section 138 of N.I. Act.
Accused No.1 is sentenced to pay a fine of Rs.1,25,000/- (Rupees One Lakh Twenty Five Thousand Only) for the offence punishable under Section 138 of N.I. Act. The same shall be paid by the accused within a period of 30 days from the date of this order.
Out of the said fine amount, a sum of Rs.1,20,000/- (Rupees One Lakh Twenty Thousand Only) has been awarded to the complainant as compensation under Section 357 of Cr.P.C.22 CC.No.2664/2019
In default of payment of fine amount, the accused shall undergo simple imprisonment for 6 (Six) months.
The rest of Rs.5,000/- (Rupees Five Thousand only) is ordered to be adjusted to the State as fine.
The cash surety amount of
Rs.3,000/- already deposited by the
accused on 23/09/2020 is forfeited to the State.
Office is directed to supply copy of Judgment to the accused free of cost forthwith.
(Dictated to the Stenographer on computer, print out taken by her is verified, corrected and then Pronounced by me in the Open Court on this the 7th day of December 2021).
(Siddaramappa Kalyan Rao) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 : Smt. Sharavati Dwarkinath.23 CC.No.2664/2019
List of documents exhibited on behalf of the complainant:
Ex.P.1 : Cheque.
Ex.P.1(a) : Signature of the accused.
Ex.P.2 : Bank endorsement.
Ex.P.3 : Legal notice.
Ex.P.4 and Ex.P.5 : 2 Postal receipts.
Ex.P.6 and Ex.P.7 : 2 Postal acknowledgements.
Ex.P.8 : Death Certificate of the
deceased complainant.
List of witnesses examined on behalf of the accused :
- None -
List of documents exhibited on behalf of the accused :
- Nil -
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.24 CC.No.2664/2019
07/12/2021 Complainant - HAN Accused - SKN Judgment 25 CC.No.2664/2019 (Judgment pronounced in the open court vide separate order) ORDER Acting under Section 255(2) of Cr.P.C., the accused No.1 is hereby convicted for the offence punishable under Section 138 of N.I. Act.
Accused No.1 is sentenced to pay a fine of Rs.1,25,000/- (Rupees One Lakh Twenty Five Thousand Only) for the offence punishable under Section 138 of N.I. Act. The same shall be paid by the accused within a period of 30 days from the date of this order.
Out of the said fine amount, a sum of Rs.1,20,000/- (Rupees One Lakh Twenty Thousand Only) has been awarded to the complainant as compensation under Section 357 of Cr.P.C.
In default of payment of fine amount, the accused shall undergo simple imprisonment for 6 (Six) months.26 CC.No.2664/2019
The rest of Rs.5,000/- (Rupees Five Thousand only) is ordered to be adjusted to the State as fine.
The cash surety amount of Rs.3,000/- already deposited by the
accused on 23/09/2020 is forfeited to the State.
Office is directed to supply copy of Judgment to the accused free of cost forthwith.
XII A.C.M.M., Bengaluru.