Bangalore District Court
Sri. Ravi.H.S vs Sri. Siddaramaiah.R on 29 December, 2021
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
Dated: This the 29th day of December 2021
Present : Sri Siddaramappa Kalyan Rao, B.A., LL.B.,
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
CC.No.20218 of 2020
COMPLAINANT/S: Sri. Ravi.H.S,
S/o. Late Shivalingaiah.,
Aged about 39 years,
R/at:No.84, 5th Cross,
2nd Main, Bovipalya,
Mahalakshmipuram,
Bengaluru - 560 086.
(By. Sri. G.T.Rudramurthy.,
Advocate)
- Vs -
ACCUSED: Sri. Siddaramaiah.R,
S/o. Late Rachaiah,
Aged about 56 years,
R/at:No.55,
"Sree Kalabyraveshwara Nilaya",
11th Cross, Bovipalya,
Mahalakshmipuram,
Bengaluru - 560 086.
(By. Sri. C.B.Madhusudhan.,
Advocate)
Offence Under Section 138 of Negotiable
Instruments Act
Plea of the accused Pleaded not guilty
Final Order Convicted
2 CC.No:20218/2020
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 complainant and his wife were searching for a house on lease basis. The accused came forward and promised that he is constructing a new residential house in which accused is going to lease out one of the premises to be constructed. Based on his promise and assurance, complainant has entered into a lease agreement dated 08/02/2019 by paying a sum of Rs.4,05,000/- to the accused on installment basis in the presence of his wife in the following manner.
a) Rs.5,000/- is paid by way of cash.
b) Rs.3,00,000/- is paid on 24/05/2019 through RTGS No:UTR-VIJBH1944035599.
c) Rs.50,000/- is paid on 17/06/2019
through RTGS No:UTR-
VIJBH19168001176.
3 CC.No:20218/2020
d) Rs.50,000/- is paid on 02/08/2019
through RTGS No:UTR-
VIJBH19214077810.
3. It is further contended that thereafter accused failed to provide house to the complainant and failed to hand over the premises after completion of the new building. When the complainant requested for refund of payments, the accused kept on dragging for one or the other reasons. Finally after several requests and demands made by the complainant, the accused issued a cheque bearing No:213251 dated 18/11/2019 for Rs.4,00,000/-
drawn on State Bank of India, ISRO Branch, Bengaluru and assured to complainant that the said cheque will be honoured on its presentation to the Bank.
4. It is further contended that believing the words of accused, the complainant presented the said cheque through his Banker Bank of Baroda, MSRIT Branch, Bengaluru. The said cheque came to be dishonoured for the reasons "Funds insufficient" on 04/02/2020. The 4 CC.No:20218/2020 cheque was dishonoured for the same reasons on 2 occasions on19/11/2019 and 19/12/2019.
5. Thereafter, the complainant having no other choice got issued legal notice to the accused on 10/02/2020 by way of RPAD and also through courier. The RPAD sent to the office address of the accused is duly served on the accused. The notice sent through RPD to the residential address of the accused is returned unserved as "Door locked, intimation dropped, no such number in this address". In spite of receipt of legal notice, the accused has neither replied to the notice nor paid the cheque amount. Hence, the present complaint is filed on 04/03/2020.
6. 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 5 CC.No:20218/2020 issued to the accused. The accused appeared through his counsel and enlarged on bail. There afterwards, plea of accusation was read over and explained to accused in the language known to him and he pleaded not guilty and claims to be tried.
7. In view of defence raised by accused, this court had directed the accused to deposit 20% of the cheque amount on 04/02/2021 and to comply section 143(A) of N.I Act. The accused has not deposited 20% of the cheque amount in spite of lapse of more than 6 months. Hence, as per order dated 16/09/2021, this court has taken the cross-examination of PW-1 by accused as nil. Further, 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, 6 CC.No:20218/2020 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".
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 under Section 313 of Cr.P.C is recorded on 30/11/2021 and accused has denied the entire incriminating statement recorded against him. The accused has not chosen to lead defence evidence, hence the defence evidence is taken as nil as per order dated 07/12/2021.
7 CC.No:20218/2020
8. In order to prove the case, the complainant is examined as PW-1 and got marked the documents from Ex.P.1 to Ex.P.20.
9. Heard the arguments of complainant counsel. The accused counsel remained absent. Hence, the arguments of accused counsel is taken as nil as per order dated 20/12/2021. Perused the entire oral and documentary evidence placed on record.
10. 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.2 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?
11. My findings to the above points are as under: 8 CC.No:20218/2020
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:
12. These points are taken together for common discussion in order to avoid repetition of facts.
13. It is a specific case of the complainant that the complainant and his wife were searching for a house on lease basis. The accused came forward and promised that he is constructing a new residential house in which accused is going to lease out one of the premises to be constructed. Based on his promise and assurance, complainant has entered into a lease agreement dated 08/02/2019 by paying a sum of Rs.4,05,000/- to the accused on installment basis by way of cash and also by way of RTGS. Thereafter accused failed to provide house to the complainant and failed to hand over the premises after 9 CC.No:20218/2020 completion of the new building. When the complainant requested for refund of payments, the accused kept on dragging for one or the other reasons. Finally after several requests and demands made by the complainant, the accused issued Ex.P.2 cheque bearing No:213251 dated 18/11/2019 for Rs.4,00,000/- drawn on State Bank of India, ISRO Branch, Bengaluru and assured to complainant that the said cheque will be honoured on its presentation to the Bank. Believing the words of accused, the complainant presented the said cheque through his Banker Bank of Baroda, MSRIT Branch, Bengaluru. The said cheque came to be dishonoured for the reasons "Funds insufficient" on 04/02/2020 as per Ex.P.2 memo.
14. To substantiate the above said contention, the complainant is examined as PW-1 and has marked the documents from Ex.P.1 to Ex.P.20.
Ex.P.1 is the lease agreement dated 08/02/2019 entered into between Ravi.H. S/o. Shivaligaiah i.e., the accused as lessee and Siddaramaiah S/o. Rachaiah who is 10 CC.No:20218/2020 the owner i.e, the accused with respect to H.No.55 situated at Mahalaksmipuram on lease basis. Ex.P.1(a) is the signature of the accused and Ex.P.1(b) is the signature of the complainant. Ex.P.2 is the cheque of State Bank of India, ISRO Branch, Airport Raod, Bengaluru bearing No:213251 dated 18/11/2019 for a sum of Rs.4,00,000/- issued to Ravi.H.S. i.e., the complainant and it is issued by Siddaramaiah.R i.e, the accused. Ex.P.3 to Ex.P.5 are the Bank deposit vouchers of Vijaya Bank dated 24/05/2019, 02/08/2019 respectively. Ex.P.2 cheque has been dishonoured on 3 occasions as per Ex.P.6 to Ex.P.8 Bank memo dated 19/11/2019, 19/12/2019 and 04/02/2020. Ex.P.9 is the complaint lodged by Rani W/o. Ravi.H.S i.e., the complainant in this case dated 23/01/2020 against the accused Siddaramaiah for non-return of lease amount to the complainant. Ex.P.10 is also another complaint lodged by the complainant against the accused Siddaramaiah. Ex.P.11 is the Police acknowledgement. Ex.P.12 is the FIR copy in Crime No:23/2020 lodged at Mahalakshmipuram Police station against the accused for the offence punishable under Section 506, 504, 420 and 354 of IPC. 11 CC.No:20218/2020 Ex.P.13 is the office copy of legal notice issued to accused dated 10/02/2019. Ex.P.14 and Ex.P.15 are the postal receipts. Ex.P.16 and Ex.P.17 are the courier receipts sent to the accused. Ex.P.18 is the Postal acknowledgement which is duly served to accused address on 17/02/2020. Ex.P.19 is the letter cover of the accused address which is returned unserved. Ex.P.20 is the statement of account of the complainant for the period from 01/05/2019 to 11/12/2019.
15. Hence, to substantiate the above said contention, the complainant who is examined as PW-1 has reiterated the facts as stated in the complaint averments in his affidavit evidence. Among all the documents produced by the complainant from Ex.P.1 to Ex.P.20, on perusal of Ex.P.1 which is the lease agreement taken place between the Ravi.H. S/o. Shivaligaiah i.e., the accused as lessor and Siddaramaiah S/o. Rachaiah who is the owner i.e, the accused in the presence of witnesses with respect to H.No.55 situated at Mahalaksmipuram of a constructing of a new house and the lease amount for the 2nd floor house 12 CC.No:20218/2020 is Rs.6,00,000/- and the complainant Ravi.H.S has paid a total amount of Rs.4,05,000/- and remaining amount of Rs.1,95,000/- is agreed to be given after completion of the construction of house. Ex.P.9 is also a complaint lodged by the wife of the complainant Smt. Rani against the accused Siddaramaiah at Mahalakshmi Layout Police station for not paying the lease amount and to have threatened the wife of the complainant. Ex.P.10 is also another complaint lodged by the complainant Ravi.H.S. against the accused Siddaramaiah at Mahalakshmi Layout Police station with respect to not paying the lease amount to the complainant. Ex.P.13 is the office copy of legal notice issued to the accused Siddaramaiah dated 10/02/2019 wherein it is stated that the complainant's wife Smt. Rani was searching for house on lease and the accused came forward and promised to lease them his newly constructing house premises on lease. The complainant had entered into a lease agreement dated 08/02/2019 by paying a sum of Rs.4,05,000/- in the presence of his wife by way of cash of Rs.5,000/- and Rs.3,00,000/- on 24/05/2019 by way of RTGS and 13 CC.No:20218/2020 another sum of Rs.5,000/- by way of RTGS on 17/06/2019 and another sum of Rs.50,000/- by way of RTGS on 02/08/2019. Since the accused has not let the house on lease, accused has issued Ex.P.2 cheque bearing No:213251 dated 18/11/2019 for Rs.4,00,000/- drawn on State Bank of India, ISRO Branch, Bengaluru towards discharge of liability and the said cheque was dishonoured on 3 occasions on 19/11/2019, 19/12/2019 and on 04/02/2020 respectively. On perusal of the all the 3 documents marked at Ex.P.1, Ex.P.10 and Ex.P.11 complaints lodged by the wife of the complainant and the complainant respectively and the Ex.P.13 which is the office of legal notice goes to show that the accused has promised the complainant to let out his house on lease basis and failed to keep up his promise and in discharge of his liability has issued Ex.P.2 cheque and the said cheque is dishonoured on 3 occasions as per Ex.P.6 to Ex.P.8 memos.
16. Though sufficient opportunity was given to the counsel for accused, he has not chosen to cross-examine 14 CC.No:20218/2020 PW-1 and also not deposited 20% of the cheque amount. Hence, there are no reasons to disbelieve the oral and documentary evidence produced by the complainant. As per Section 139 of N.I.Act, unless and until the contrary is proved, this court has to presume that Ex.P.2 cheque has been issued by the accused for discharge of debt or liability. In the present case there are no any reasons to disbelieve the oral and documentary evidence produced by the complainant. Hence, I believe that the above said oral and documentary evidence produced by the complainant as true and correct and Ex.P.2 cheque has been issued by the accused in favour of complainant towards return of lease amount. Hence, the above said liability obtained by the accused is a legally recoverable debt.
17. 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:20218/2020
"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".
The above case law rightly applies to the facts of the present case. Hence, the complainant has proved that for discharge of debt, accused has issued Ex.P.2 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:-
18. It is the specific contention of the complainant the complainant and his wife were searching for a house on lease basis. The accused came forward and promised that he is constructing a new residential house in which accused is going to lease out one of the premises to be constructed. Based on his promise and assurance, complainant has entered into a lease agreement dated 16 CC.No:20218/2020 08/02/2019 by paying a sum of Rs.4,05,000/- to the accused on installment basis. In discharge of the said liability, accused issued Ex.P.2 cheque bearing No:213251 dated 18/11/2019 for Rs.4,00,000/- drawn on State Bank of India, ISRO Branch, Bengaluru and assured to complainant that the said cheque will be honoured on its presentation to the Bank. Believing the words of accused, the complainant presented the said cheque through his Banker Bank of Baroda, MSRIT Branch, Bengaluru. The said cheque came to be dishonoured for the reasons "Funds insufficient" on 04/02/2020 as per Ex.P.6. The cheque was dishonoured for the same reasons on 2 occasions on19/11/2019 and 19/12/2019 as per Ex.P.7 and Ex.P.8 Bank memo. Thereafter, the complainant having no other choice got issued legal notice to the accused on 10/02/2020 as per Ex.P.13. The said notice was sent by way of RPAD as per Ex.P.14 and Ex.P.15 postal receipts and also through courier as per Ex.P.6 and Ex.P.17. The RPAD sent to the office address of the accused is duly served on the accused on 17/02/2020. In spite of receipt of legal notice, the accused has neither 17 CC.No:20218/2020 replied to the notice nor paid the cheque amount. Hence, the present complaint is filed on 04/03/2020.
19. In this regard, it is relevant to peruse Section 138 of the Negotiable Instrument Act, which reads as under:-
"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:
20. 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 18 CC.No:20218/2020 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
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.
21. Explanation.--For the purposes of this section, "debt of other liability" means a legally enforceable debt or other liability.
22. On going through the said provision of law, it is clear that in order to establish and to prove the fact that the accused has 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 19 CC.No:20218/2020 encashment, the dishonour of the said cheque and the issuance of the legal notice within the stipulated period calling upon the accused in making the payment of the said cheque amount is within the stipulated period are to be proved by the complainant.
23. On going through the facts and circumstances of the case, it is clear that the accused has issued Ex.P.2 cheque bearing No:213251 dated 18/11/2019 for a sum of Rs.4,00,000/- and the said cheque is dishonoured for the reasons "Funds insufficient" vide memo dated 19/12/2019, 19/11/2019 and 04/02/2020 as per Ex.P.6 to Ex.P.8 Bank memos respectively. The complainant has issued the legal notice through his advocate on 10/02/2019 and the said notice is sent to the accused as per Ex.P.4 and Ex.P.5 postal receipts. The legal notice sent to the accused is duly served as per Ex.P.18 Postal acknowledgement on 17/02/2020. Thereafter, the accused has not paid the cheque amount. The evidence placed on record shows the failure of the accused to pay the above said cheque amount within stipulated period as per section 20 CC.No:20218/2020 138(c) of the Act. The present complaint has been filed on 04/02/2020 which is well within the period of limitation. In view of this, the complainant has satisfied the entire requirements of section 138 of N.I.Act.
24. On going through the entire oral and documentary evidence and as observed supra, the complainant has proved the existence of legally recoverable 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 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.
25. When the complainant proved that accused has issued cheque towards his liability, accused is liable to pay the money as provided U/Sec.138 of N.I.Act, the accused can be punishable with imprisonment for a term which 21 CC.No:20218/2020 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 is liable to pay the cheque amount of Rs.4,00,000/- in discharge of his 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 is 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:-
26. In the result I proceed to pass the following:
ORDER Acting under Section 255(2) of Cr.P.C., the accused is hereby convicted for the offence punishable under Section 138 of N.I. Act.
Accused is sentenced to pay a fine of Rs.4,00,000/- (Rupees Four Lakh Fifty Thousand Only) for the offence punishable under Section 138 of N.I. Act. The same shall be paid by the accused within a 22 CC.No:20218/2020 period of 30 days from the date of this order.
Out of the said fine amount, a sum
of Rs.3,95,000/- (Rupees Three Lakh
Ninety Five 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.
The rest of Rs.5,000/- (Rupees Five Thousand only) is ordered to be adjusted to the State as fine.
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 29th day of December 2021).
(Siddaramappa Kalyan Rao) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
23 CC.No:20218/2020ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 : Sri. Ravi.H.S. List of documents exhibited on behalf of the complainant:
Ex.P.1 : Lease agreement.
Ex.P.1(a) : Signature of the accused.
Ex.P.1(b) : Signature of the complainant.
Ex.P.2 : Cheque.
Ex.P.2(a) : Signature of the accused.
Ex.P.3 to Ex.P.5 : Bank Vouchers.
Ex.P.6 to Ex.P.8 : 3 Bank endorsements.
Ex.P.9 : Complaint lodged by the wife
of the complainant against the
accused to the Police station.
Ex.P.10 : Complaint lodged by the
complainant against the
accused.
Ex.P.11 : Police acknowledgement.
Ex.P.12 : Copy of FIR.
Ex.P.13 : Legal notice.
Ex.P.14 and Ex.P.15 : Postal receipts.
Ex.P.16 and Ex.P.17 : Courier receipts.
Ex.P.18 : Postal acknowledgement.
Ex.P.19 : Postal cover of accused
address.
24 CC.No:20218/2020
Ex.P.20 : Statement of account of the
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.25 CC.No:20218/2020
29/12/2021 Complainant - GTR Accused - CBN Judgment 26 CC.No:20218/2020 (Judgment pronounced in the open court vide separate order) ORDER Acting under Section 255(2) of Cr.P.C., the accused is hereby convicted for the offence punishable under Section 138 of N.I. Act.
Accused is sentenced to pay a fine of Rs.4,00,000/- (Rupees Four Lakh Fifty 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.3,95,000/- (Rupees Three Lakh
Ninety Five 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.
27 CC.No:20218/2020The rest of Rs.5,000/- (Rupees Five Thousand only) is ordered to be adjusted to the State as fine.
Office is directed to supply copy of Judgment to the accused free of cost forthwith.
XII A.C.M.M., Bengaluru.