Bangalore District Court
Sri. Srinivas.V vs Sri. Nagaraja.R on 26 February, 2020
1 C.C.No.16079/2018 J
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 26th day of February 2020
Present: Sri.S.B.HANDRAL, B.Sc., L.L.B(SPL).,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.16079/2018
Complainant : Sri. Srinivas.V,
S/o.Venkatachala,
Aged about years,
Transform Road,
Lakshmipura,
Near St.Michel English
School,
Kanakapura,
Ramanagara District.
(Rep.by Sri. Kumar and
Anjan Kumar C.R., Advs.,)
- Vs -
Accused : Sri. Nagaraja.R,
S/o. Sri Ramanna,
Aged about years,
Pipe Line, 6th Cross,
Sunkadakatte,
Sreenivasnagar,
Bengaluru -560 091.
Working at :
Sri. Nagaraja R,
S/o. Sri Ramanna,
2 C.C.No.16079/2018 J
Driver, BMTC Depot No.13,
BSK 3rd Stage, Kathriguppe,
Opp. Kamakya Theatre,
Bengaluru -560 085.
(Rep.by Sri.Ananda Raju and others
Advs.,)
Case instituted : 6.3.2018
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 26.2.2020
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, the Accused and he working together and are friends, in that connection the Accused is known to him and the Accused being a worker and friend has approached him for financial assistance to meet his domestic needs and assured him that he will repay the amount within 6 months and he has paid a sum of Rs.3 Lakhs by way of cash on 12.8.2015 and the 3 C.C.No.16079/2018 J Accused has agreed to repay the amount within 6 months, unfortunately the Accused has not repaid the amount as agreed and he demanded the Accused to repay the amount and after repeated request, the Accused has issued a cheque dated:2.1.2018, bearing No.526378 for Rs.3 Lakhs drawn on Syndicate Bank, Kathriguppe Branch, Bengaluru and believing the words of the Accused, he presented the said cheque for encashment through his banker, the same came to be returned dishonoured as "Funds Insufficient" vide bank endorsement dated:
4.1.2018, thereafter he got issued a legal notice dated:27.1.2018 to the Accused through RPAD demanding the cheque amount, and the notice sent through RPAD returned with a shara "Absent, Intimation delivered" "Unclaimed" and "Incomplete address". Hence he has filed the present complaint praying that, the Accused be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
3. The Complainant has led his pre-summoning evidence and he has filed his affidavit-in-lieu of his sworn statement, in which, he has reiterated the 4 C.C.No.16079/2018 J complaint averments. In support of his oral evidence has relied upon the documentary evidence as per Ex.P.1 to P.11 i.e., Original cheque dated:- 2.1.2018 are as per Ex.P.1, the signature of the accused on the disputed cheque identified by the complainant are at Ex.P1(a), Bank memo as per Ex.P.2, office copies of the copy of legal notice as per Ex.P.3, two postal receipts as per Ex.P.4 and P.5 respectively, returned legal notices as per Ex.P.6 and P.7 respectively, postal covers as per Ex.P.8 and P.9, postal receipts as per Ex.P.10 and P.11 respectively, subsequently he has produced and marked the documents i.e. On Demand Promissory note and consideration receipt dated:12.8.2015 as per Ex.P.12, signatures of the Accused on the said pronote as per Ex.P.12(a) to P.12(c) respectively, Loan Agreement dated: 12.8.2015 as per Ex.P.13 and signatures of the Accused and complainant on the said agreement as per Ex.P.13(a) and 13(b) respectively.
4. Prima-facie case has been made out against the Accused and has been summoned vide the order of the same date.
5 C.C.No.16079/2018 J5. The Accused has appeared before the court and he has been enlarged on bail and the substance of the accusation has been read over to him, to which he has pleaded not guilty and has stated that, he has the defence to make after recording the plea of the Accused, as he intended to set out his defence.
6. As per the direction of the Hon'ble Apex Court in the decision of the Indian Bank Association Vs., Union of India, reported in 2014 (5) SCC 590, after recording the plea of the Accused, as he intended to set out his defence, the case came to be posted for the cross-examination of complainant.
7. Thereafter the Accused remained absent inspite of issuing NBW's against him, hence the bail bond executed by the Accused forfeited and on 4.1.2020 it is ordered that, in view of non disclosing of defence by the accused at the stage of recording of the plea by the court, and in view of non cross- examination of the complainant and non discloser of the defence, it is relevant here to mention that, as per the principles of law laid down by the Hon'ble 6 C.C.No.16079/2018 J Apex Court in the case of "Indian Bank Association VS., Union of India reported in 2014(5) SCC 590" and in the judgment of Hon'ble High Court of Karnataka decided in "Crl.RP.No.437/2010 dated 28/06/2012 in the case of RV Kulkarni Vs., Dakshina murhty"
wherein the Hon'ble High Court of Karnataka held that, " there is no justification of the appellate court having that, there is failure of justice on account of statement of the accused not having been recorded under sec.313 of Cr.P.C. having due regard to the fact that this was a summons case and the respondent himself was blame for non compliance with the said provision. No fault could be found either with the petitioner or that the trial court". The recording of accused statement under Sec.313 of the Cr.P.C dispensed with since in the present case also the accused did not cross examine the PW.1 and disclosed his defence by adducing his evidence and inspite of sufficient opportunities given to the accused to avail opportunity to explain his statement against the incriminating circumstances appearing against him in the evidence of the prosecution but 7 C.C.No.16079/2018 J the accused did not come forward to avail that opportunity, in such circumstance the recording of accused statement dispensed with as per the principles of law laid down by Hon'ble Apex Court of India and High Court of Karnataka in the above referred decisions. Thereafter the defence evidence taken as nil and matter was posted for arguments.
8. Heard the arguments of the counsel for the Complainant, who has prayed for the conviction of the Accused on the ground that, even though the Accused has denied the accusations against him in his plea, for the reasons best known to him, he has failed to bring on record any cogent evidence in order to prove his defence.
9. It is further argued that, the signature on the cheque in question and the issuance of the cheque as the entire case as claimed by the Complainant has remained undisputed and unchallenged and it is lastly argued that, the presumptions under Sec.118 r/w.139 of the N.I.Act is in favour of the Complainant and thus the 8 C.C.No.16079/2018 J Accused be convicted for the offence punishable under Sec.138 of the N.I. Act.
10. Inspite of given sufficient opportunities, the Defence Counsel has not even addressed his arguments.
11. On the basis of complaint, evidence of complainant and documents and having heard the arguments of both learned counsels for the complainant and the accused, the following points that are arise for my consideration are:
1. Whether the complainant proves that the accused has issued cheque bearing No.526378 dated:
2.1.2018 for sum of Rs.3,00,000/-
drawn on Syndicate Bank,
Kathriguppa, Bengaluru, to
discharge legally recoverable debt to the complainant and when the complainant has presented the cheque for encashment through his banker but the said cheque has been dishonoured for the reasons "Funds Insufficient" on 4.1.2018, and the complainant issued legal notice to the accused dated:-27.1.2018 and inspite of it the accused has not paid the cheque amount within prescribed period there by the accused has 9 C.C.No.16079/2018 J committed an offence U/s.138 of the Negotiable instruments Act?
2. What Order?
12. The above points are answered as under:
Point No.1: In the Affirmative Point No.2: As per final order for the following:
REASONS
13. Point No.1: Sec.138 of the Negotiable Instruments Act has been enacted to lend credibility to the financial transactions.
The main ingredients of the offence under Sec.138 of the Negotiable Instruments Act are:-
(i) Drawing up of a cheque by the Accused towards payment of an amount of money, for the discharge, in whole or in part, of any debt or any other liability;
(ii) Return of the cheque by the Bank as unpaid;
(iii) The drawer of the cheque fails to make the payment of the said amount of money within 15 days 10 C.C.No.16079/2018 J of the receipt of the notice under the proviso (b) to Section 138.
The Explanation appended to the Section provides that, the "debt or other liability" for the purpose of this Section means a legally enforceable debt or other liability.
14. Apart from this, Sec. 139 of the Negotiable Instruments Act lays down a presumption in favour of the holder of cheque in the following terms:-
"It shall be presumed, unless the contrary is proved, that:-
The holder of a cheque received the cheque, of the nature referred to in Sec. 138, for the discharge, in whole or in part, of any debt or other liability".
15. Also, Sec. 118 of the Negotiable Instruments Act states, "Until the contrary is proved, the following presumptions shall be made:-
(a) That every Negotiable Instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, 11 C.C.No.16079/2018 J negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration."
16. Thus, the Act clearly lays down presumptions in favour of the Complainant with regard to the issuance of the cheque by the Accused towards the discharge of his liability in favour of the Complainant.
17. Under the scheme of the Act, the onus is upon the Accused to rebut the presumptions in favour of the Complainant by raising a probable defence.
18. It is a well settled position of law that, the defence of the Accused, if in the nature of a mere denial of the case of the Complainant will not be sufficient to hold it as a probable defence. The bare denial of the passing of consideration apparently does not appear to be any defence. Something which is probable must be brought on record for getting the benefit of shifting the onus of proof to the Complainant.
12 C.C.No.16079/2018 J19. It is also a well settled position of law that, once the cheque is proved to be relating to the Account of the Accused and he accepts and admits the signature on the said cheque, then the initial presumption as contemplated under Sec. 139 of the N.I.Act has to be raised by the courts in favour of the Complainant. The presumption referred to in Sec.139 of the N.I.Act is a mandatory presumption and not a general presumption, but the Accused is entitled to rebut the said presumption. What is required to be established by the Accused in order to rebut the presumption is different from each case under given circumstance. But the fact remains that a mere plausible explanation is not expected from the Accused and it must be more than a plausible explanation by way of rebuttal evidence. The defence raised by the Accused by way of rebuttal evidence must be probable and capable of being accepted by the court.
20. No doubt the initial mandatory statutory presumptions under Sec.118 and 139 of the N.I.Act are in favour of the Complainant. However they are rebuttable presumptions and the Accused is 13 C.C.No.16079/2018 J expected to rebut the presumptions by raising a probable defence.
21. Such being the legal position, it would be pertinent to refer to the defences raised by the Accused to rebut the presumptions in favour of the Complainant in this case.
22. In the present case the complainant himself examined as PW.1 by filing his affidavit evidence in lieu of oral evidence, wherein he has reiterated the entire averments of the complaint. In support of his oral evidence has produced and marked the documents as per Ex.P.1 to P.11 i.e., original cheque dated:- 2.1.2018 are as per Ex.P.1, the signature of the accused on the disputed cheque identified by the complainant are at Ex.P1(a), Bank memo as per Ex.P.2, office copies of the copy of legal notices as per Ex.P.3, two postal receipts as per Ex.p.4 and P.5 respectively, returned legal notices as per Ex.P.6 and P.7 respectively, postal covers as per Ex.P.8 and P.9, postal receipts as per Ex.P.10 and P.11, subsequently he has produced and marked the documents i.e. the pronote and consideration receipt dated: 12.8.2015 as per Ex.P.12, signatures 14 C.C.No.16079/2018 J of the Accused on the said pronote as per Ex.P.12(a) to P.12(c) respectively, Loan agreement dated:
12.8.2015 as per Ex.P.13 and signatures of the Accused and complainant on the said agreement as per Ex.P.13(a) and 13(b) respectively.
23. Hence on perusal of Ex.P.1 to P.13, it appears that, the Accused has not denied his signature on the cheque and also cheque belong to his account and also not denied the lending of loan amount by the complainant and towards discharge of the said loan amount the cheque in question has been issued infavour of the complainant. It is also not disputed by the Accused after dishonour of the cheque in question the complainant has issued notice to him and the said notice was returned with an endorsement of "Absent, Intimation delivered"
"Unclaimed" and "Incomplete address". It is also not in dispute by the Accused that, the address mentioned by the complainant in the legal notice and the RPAD cover and postal acknowledgement is not of his address, hence an adverse inference can be drawn against the Accused that he has admitted the fact that, the legal notice issued by the 15 C.C.No.16079/2018 J complainant was to his correct address and the said notice was returned to him with postal endorsement of "Absent, Intimation delivered" "Unclaimed" and "Incomplete address", in such circumstances, it can be held that, if the notice is sent to the correct address of the Accused through the registered post it can be presumed that, the said notice has been served on him U/s.27 of General Clauses Act. Apart from that, it is relevant here to refer the decision of Hon'ble High Court of Karnataka reported in 2011 ACD 1572 (KAR) in the case of Jayamma Vs. Lingamma, wherein the Hon'ble High Court held that, "Notice sent at correct address returned unclaimed - is deemed to be served. In another decision reported in 1998 KAR 1841 in the case of Shridhar M.A. Vs. Metalloy Steel Corporation and 1999 Cri.L.J. 4606 "K. Bhaskaran Vs. Vaidhanbalan wherein the Hon'ble Apex Court was concerned with the question as to when the service of notice could be inferred and it was held that if there is an endorsement like 'not available in the house' 'house locked' 'shop closed' 'unclaimed' the service should be deemed to have been effected. It is also relevant here to 16 C.C.No.16079/2018 J refer the decision reported in 2008(4) Civil code cases 027 (SC) "M/s. Indo Automobiles Vs., M/s. Jai Durga Enterprises and others." wherein the Hon'ble Apex Court held that, notice sent by registered post with acknowledgement to a correct address-service of notice has to be presumed. Therefore in view of the principles of law in the above decisions, it can be safely held that, the service of notice on accused in this case is presumed to have been served on him since in this case also the complainant has issued notice to the accused to his correct address through registered post and the said notice was returned with an endorsement of "Absent, Intimation delivered" "Unclaimed" and "Incomplete address", hence, the notice issued by the complainant through registered post is held to be proper service and for the above said reasons, the contentions taken by the learned counsel for the accused that, the notice issued by the complainant was not served on the accused and the complainant has not complied the mandatory requirements of Sec.138(b) of N.I.Act and complaint is not maintainable cannot be acceptable and are not sustainable.17 C.C.No.16079/2018 J
24. Therefore on careful perusal of the oral and documentary evidence produced by the complainant it goes to show that the complainant has established his case by producing oral and documentary evidence that, the Accused has issued the cheque in question i.e Ex.P.1 to him towards repayment of the loan amount received by the accused and has also proved that, the signature appearing on the cheque are also that of the accused and the cheque in question was presented within the prescribed period of time and the said cheque was returned unpaid as "Funds Insufficient" and thereafter complainant got issued legal notice dated:27.1.2018 calling upon the Accused to pay the a sum of Rs.3,00,000/- through RPAD to the address of the Accused but the said notice was returned as "Absent, Intimation delivered"
"Unclaimed" and "Incomplete address". Therefore the complainant has discharged his initial burden by complying mandatory requirements of sec.138 of negotiable Instrument Act. Therefore a presumption can be drawn in his favour as available U/s.118 and 139 of N.I.Act, that the cheque in question was 18 C.C.No.16079/2018 J issued by the Accused towards discharge of legally recoverable debt.
25. It is pertinent to note that, the Accused in the present case has failed to discharge the onus of rebutting the presumption available in favour of the Complainant by raising a probable defence. It is pertinent to note that, oral as well as the documentary evidence of the Complainant has not been subjected to cross-examination by the defence counsel, even though sufficient opportunities have been given to him. Hence the oral and documentary evidence of the complainant remained as unchallenged. It is settled law that, the unchallenged evidence of the witness cannot be discarded unless it is rebutted. Therefore in view of the unchallenged oral and documentary evidence of the complainant it can be held that, the accused has not disputed the cheques belongs to him and his signature appearing on the said cheques and he has issued the said cheques to the complainant towards discharge of legally recoverable debt in favour of the complainant. In this regard it is relevant here to refer a decision reported in 2003(1) SCC 240 in the case of 19 C.C.No.16079/2018 J Sarwan Singh Vs. State of Punjab., wherein the Hon'ble Apex Court of India held that, "In respect of appreciation of the evidence in criminal trial that, generally whenever the deponent declines to avail himself of the opportunity to put his cross-examination, in must follow that the evidence tendered on that issue ought to be accepted". Hence by applying the said principles of law to the facts and circumstances of the present case, it can be held that, whatever the version of the complainant i.e., PW.1 is to be accepted in toto as true because admittedly the accused has not cross examined the PW.1 or denied the contents of the affidavit of the PW.1 and documents produced by the complainant in support of his oral evidence.
26. It is a well settled principle of law that, if either of the parties to the proceedings, even after knowing the status of her/his case, does not choose either to prosecute or to defend the case, as the case may be, an adverse inference is liable to be drawn against such a party.
20 C.C.No.16079/2018 J27. Even in the present case, the entire case of the Complainant has remained unchallenged and un-rebutted. It is not the situation that, in the present case, the Accused is not aware of the accusations leveled against him by the Complainant, since this court has recorded his plea. The defence of the Accused that is evident in his plea is one of entire denial.
28. No doubt the defence version claimed by the Accused in his plea stage could be considered as his defence as envisaged in the decision of the Hon'ble Apex Court in the Indian Bank Association Vs., Union of India and others, reported in 2014 (5) SCC 590. However during the subsequent stages of the proceedings, the Accused has failed to substantiate his defence version.
29. Moreover when the Accused has not specifically denied the oral and the documentary evidence relied upon by the Complainant in this case, it clearly leads to an inference that, indirectly, he has admitted the accusations made against him by the Complainant. Therefore it is clear that, except having denial of the case of the Complainant in his 21 C.C.No.16079/2018 J plea, the Accused has not taken any interest so as to prove his defence.
30. No doubt, it is a well settled principle of law that, an Accused need not enter witness box so as to defend his case, but it is sufficient, if he is able to establish his defence by relying upon the materials placed on record by the Complainant.
31. But in the present case, it is pertinent to note that, the Accused has failed to make use of even his right of the cross-examination of P.W1. As a result, the conduct of the Accused clearly goes to show that his defence is one of bare denial and he has not taken any interest in order to defend him.
32. Moreover the Accused has also not denied or disputed that the cheques in question as well as the signatures therein do belongs to him and he has failed to explain as to how his cheques have come to the possession of the Complainant. This would also give rise to an adverse inference against him.
33. Therefore, in the absence of any dispute or challenge to the unchallenged testimony of P.W.1, 22 C.C.No.16079/2018 J this court has no hesitation to hold that the Complainant is entitled to the benefit of the presumptions available U/s.118 and 139 of the N.I.Act. Therefore for the above said reasons this point is answered in the Affirmative.
34. Point No.2 : In the light of discussions made at above and answer to the above points, it is just and proper to proceed to pass the following:-
ORDER By exercising the power-
conferred u/s 255(2) of Cr.P.C. the Accused is hereby convicted of the offence punishable u/s 138 of the Negotiable Instruments Act.
The Accused is held liable to pay a fine of Rs.3,05,000/= (Rupees Three Lakhs and Five Thousand only) within one month from the date of order, in default he shall under go simple imprisonment for a period of (3) three months for the offence punishable U/s.138 of the NI Act.
Further acting under sec.357(1) of Cr.P.C. out of the fine amount on recovery a sum of Rs.3,00,000/= (Rupees Three 23 C.C.No.16079/2018 J Lakhs only) shall be paid as compensation to the Complainant.
Further acting under sec.357(1)(a) of Cr.P.C. out of fine amount on recovery a sum of Rs.5,000/= (Rupees Five Thousand only) is ordered to be adjusted towards cost to the State Exchequer.
The bail bond of the Accused stands cancelled.
Issue free copy of the
Judgment to the Accused
forthwith.
(Directly dictated to the Stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open Court on this the 26th day of February 2020).
(SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri.Srinivas.V;
2. List of documents exhibited on behalf of the Complainant:-
Ex.P.1 : Original Cheque;
Ex.P.1(a) : Signature of the Accused;
24 C.C.No.16079/2018 J
Ex.P.2 : Bank Memo;
Ex.P.3 : Office copy of legal notice;
Ex.P.4 & P.5 : Postal receipts;
Ex.P.6 & P.7 : Returned Legal Notices;
Ex.P.8 & P.9 : RPAD covers;
Ex.P.10 & : Postal Receipts;
P.11
Ex.P.12 : Pronote and consideration receipt dated:
12.8.2015
Ex.P.12(a) to : signatures of the Accused
(c) Ex.P.13 : Loan agreement dated: 12.8.2015; Ex.P.13(a) & : signatures of the Accused and
(b) complainant on the said agreement
3. List of witness/s examined on behalf of the Accused:-
- Nil -
4. List of documents exhibited on behalf of the Accused:-
- Nil -
(SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.25 C.C.No.16079/2018 J
26.2.2020 Judgment pronounced in the open court vide separate order.
ORDER By exercising the power-
conferred u/s 255(2) of Cr.P.C. the Accused is hereby convicted of the offence punishable u/s 138 of the Negotiable Instruments Act.
The Accused is held liable to pay a fine of Rs.3,05,000/= (Rupees Three Lakhs and Five Thousand only) within one month from the date of order, in default he shall under go simple imprisonment for a period of (3) three months for the offence punishable U/s.138 of the NI Act.
Further acting under sec.357(1) of Cr.P.C. out of the fine amount on recovery a sum of Rs.3,00,000/= (Rupees Three Lakhs only) shall be paid as compensation to the Complainant.
Further acting under sec.357(1)(a) of Cr.P.C. out of fine amount on recovery a sum of Rs.5,000/= (Rupees Five Thousand only) is ordered to be adjusted towards cost to the State Exchequer.
The bail bond of the Accused stands cancelled.
26 C.C.No.16079/2018 JIssue free copy of the Judgment to the Accused forthwith.
XVI ACMM, B'luru.