Bangalore District Court
Sri. Pradeep Sharma vs Sri. Narayan Kumar Nirala on 26 September, 2018
1 C.C.No.11548 /17 J
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This 26th day of September, 2018
Present:- Smt. Saraswathi.K.N, B.A.L.,LL.M.,
XVI Addl.CMM, Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.11548/2017
Complainant : Sri. Pradeep Sharma,
Age Major,
S/o.Late Sri.Rajendra Sharma,
Residing at: 46/B,
8th Main, 10th Cross,
Kumaraswamy Layout, 2nd Stage,
Bengaluru - 560 111.
(Rep. by Sri.R.R.Desai., Advs.,)
- Vs -
Accused : Sri. Narayan Kumar Nirala,
Age : Major,
R/at # 50, Bikasipura,
Vittal Nagar,
ISRO Layout,
Bengaluru - 560 111.
(Rep. by Sri.C.Jayadev, Adv.,)
Case instituted : 15.4.2017
Offence complained of : U/s 138 of the N.I. Act
Plea of Accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 26.9.2018
.
2 C.C.No.11548 /17 J
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. The brief case of the Complainant is that, he is a carpenter by profession hailing from Begusarai in Bihar and presently working in Bengaluru, earning for his livelihood. The Accused had let out to him on 20.3.2015 his shop premises at No.50, Bikasipura, Vittal Nagar, 2nd Main Road, Near ISRO Layout, Bengaluru, measuring 15 X 8 feet at a mutual agreed upon monthly rent of Rs.3,000/= to be paid by the former to him initially for a period of 11 months excluding the electricity charges.
3. The Complainant has submitted that, the Accused had also received an interest free refundable advance amount (deposit) of Rs.50,000/= from him through a cheque bearing No. 606286 drawn on the SBI, ISRO Layout Branch, Bengaluru on 19.3.2015.
4. The Complainant has submitted that the Accused had entered into a shop rental agreement with him with mutual consent on 20.3.2015 initially for a period of 11 months. The said Shop Rental Agreement had other mutually agreed upon usual terms and conditions and the 3 C.C.No.11548 /17 J said shop premise was meant to be used for business purpose in the name of APS Interiors.
5. The Complainant has submitted that the Accused had entered into a new Shop Rental Agreement on 18.4.2016 for a further period of 11 months with an enhanced mutually agreed upon monthly rent of Rs.3.300/= to be paid by the former and excluding the electricity charges. The earlier interest free and refundable advance amount of Rs.50,000/= was allowed by mutual consent to continue with the Accused and the other terms and conditions being similar to that of the earlier shop rental agreement dated 20.3.2015.
6. The Complainant has submitted that he used to pay the agreed rent to the Accused was being paid by him through cheques drawn on the SBI, ISRO Layout Branch, Bengaluru from 25.4.2015 to 23.8.2016. Subsequently on the persistence insistence of the Accused on his forceful plea of some tax implications for himself, the monthly rent of Rs.3,300/= for five months from September 2016 to January 2017 was paid to him by cash on 23.9.2016, 27.10.2016, 24.11.2016, 22.12.2016 and 25.1.2017 respectively.
4 C.C.No.11548 /17 J7. The Complainant has submitted that, the Accused has not issued any cash receipts for having received the said monthly rentals of Rs.3,300/= from September 2016 to January 2017 by way of cash. The request of the Accused was acceded to by him absolutely in good faith. Prior to the period of 11 months mentioned in the new Shop Rental Agreement dated 18.4.2016 was to get over on 17.3.2017 and he vacated the shop of the Accused on 2.3.2017 with prior verbal intimation to the Accused and handed over the possession back to the Accused on the same date.
8. The Complainant has submitted that while refunding the interest free advance amount of Rs.50,000/= received and held by the Accused in trust to the former, the Accused resorted arbitrarily to pay to the former a sum of Rs.20,000/= in cash on 2.3.2017 and issued a cheque bearing No. 446358 dated 2.3.2017 for Rs.15,000/= in his favor drawn on the SBM, Vikramnagar Branch, Bengaluru.
9. The Complainant has submitted that, for the reasons known to him, the Accused argued and insisted upon arbitrarily that the monthly rents for the rented premises was in arrears from him amounting to Rs.14,850/= which was utterly false and fallacious. In fact the monthly rent of Rs.3,300/= was due only for the month 5 C.C.No.11548 /17 J of February 2017 which too was required to be adjusted while refunding the non-interest bearing deposit of Rs.50,000/= to him. The Accused ought to have issued a cheque for Rs.26,700/= towards the balance amount legitimately due from him to the former. As both of them are from the same place in Bihar the former did not want to stretch further the unnecessary controversy raised by the Accused and out of sheer helplessness, he was compelled to accept the said cheque for the reduced amount of Rs.15,000/= instead of the actual amount of Rs.26,700/= legitimately owed by the Accused to him. further on the forceful and persistent insistence of the Accused, he was compelled to write on a copy of the Shop Rental Agreement as if an amount of Rs.14,850/= was in arrears of the monthly rent. This was done under coercion and threat and primarily with a view to avoid any confrontation with the dishonest and recalcitrant Accused, who is a wealthy and locally influential person.
10. The Complainant has submitted that when he presented the aforesaid cheque for encashment through his banker, the same came to be returned dishonored as "Payment Stopped by drawer" on 3.3.2017. Thereafter, though he brought this fact to the notice of the Accused, the latter did not respond to the same. Hence, left with no other option, he got issued a legal notice to the Accused on 6 C.C.No.11548 /17 J 17.3.2017 through RPAD calling upon him to pay the said cheque amount to him within 15 days from the date of receipt of the said legal notice. Though the said legal notice has been duly served upon him, the Accused has neither replied nor has he paid the cheque amount to him. Hence the present complaint.
11. The Complainant submits that, the dishonour of the cheque by the Accused has been malafide, intentional and deliberate. Feeling aggrieved by the conduct of the Accused, he has filed the present complaint praying that he be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
12. 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 complaint averments.
13. In support of his oral evidence, the Complainant has produced and relied upon the following documentary evidence:-
Ex.C1 is the Original Cheque dated:-2.3.2017, in which the signature is identified by P.W.1 as that of the Accused as per Ex.C1(a), the Bank Memo as per Ex.C2, the office copy of the Legal Notice as per Ex.C3, the Postal Receipt as per Ex.C4, the Postal Acknowledgement as per 7 C.C.No.11548 /17 J Ex.C.5 and the Statement of Accounts of the joint account of the Complainant and his wife as per Ex.C.6.
14. Prima-facie case has been made out against the Accused and he has been summoned vide the order of the same date.
15. 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 claimed the trial.
16. P.W.1 has been cross-examined by the learned Defence Counsel.
17. The statement of the Accused as required under Sec. 313 of the Cr.P.C. has been recorded. He has denied the incriminating evidence found against him and has chosen to lead his rebuttal evidence.
18. The Accused has examined him as D.W.1 on oath under Sec.315 of the Cr.P.C. in which the gist of his defence is as follows:-
i) That the Complainant and are from Bevusarai District of Bihar and that the Complainant had 8 C.C.No.11548 /17 J approached him for his shop on rental basis on 18.03.2015;
ii) That from the said date, the Complainant was a tenant in his shop and after the closure of the term of 11 months from the date of the first rental agreement, there was a renewal of the rental agreement for a period of another 11 months;
iii) That the Complainant had paid the advance amount to him through cheque and likewise he also used to make the rental payments to him only through cheques;
iv) That there are entries pertaining to such payments made by the Complainant to him through cheques in his bank Passbooks, which he has produced;
v) That on 02.03.2017, the Complainant had approached him urgently by stating that he was vacating the shop and immediately he paid Rs.20,000/- to him by way of cash in the presence of two witnesses by names Nagaraju and Mahesh and Rs.15,000/- by way of cheque;
vi) That after the issuance of the said cheque by him in favour of the Complainant, upon 9 C.C.No.11548 /17 J verification, he found that there was arrears of 8 months' rent from the Complainant to him;
vii) That the Complainant also had to get the shop white washed, while vacating the shop as per the terms of the rental agreement and the details of the same has been noted in the second rental agreement;
viii) That the Complainant has signed on such recitals in the rental agreement and as per the terms of the calculation made by him, the Complainant had to pay him Rs.3,300/- towards the painting charges and Rs.26,700/- towards the arrears of the rent for a period of 8 months to the shop;
ix) That he has paid the electricity bill for the period of one month and as such, he is not liable to pay the cheque amount to the Complainant, since he had issued the cheque in dispute to him out of trust and upon verification, it was found that the Complainant himself owed him a sum of Rs.3,300/- towards the painting charges to the shop and Rs.26,700/- towards the arrears of 8 months' rent towards the shop and as such, he is not liable to pay him any amount;
10 C.C.No.11548 /17 Jx) That for the same reason, he had issued the Letter of Stop Payment Instructions to his banker on 02.03.2017, the copy of which is being produced by him.
19. In support of his oral evidence, he has produced and relied upon the following documentary evidence:-
1. The original Shop Rental Agreement dated
20.03.2015 as per Ex.D-1;
2. The original Shop Rental Agreement dated 18.04.2016 as per Ex.D-2;
3. The shara found on Page No.2 of Ex.D2 in Hindi language is marked as Ex.D-2(a);
4. The signatures found beneath the shara at Ex.D-2(a) identified by the witness as that of the Complainant and as his are as per Ex.D- 2(b) and Ex.D2(c) respectively and Ex.D2(d) and D2(e) as those of D.W.2 and D.W3 respectively identified by them on Ex.D2;
5. The office copy of the letter of Stop Payment dated 02.03.2017 as per Ex.D-3;
6. Two Bank Passbooks of the SBM and one Bank Passbook of the SBI as per Ex.D-4 to 11 C.C.No.11548 /17 J D-6 respectively and the relevant entries in them as per Ex.D-4(a) to D-6(a) respectively.
Accordingly he has prayed for his acquittal.
20. D.W.1 has been cross-examined by the learned counsel for the Complainant.
21. In support of the defence of the Accused, two witnesses by name Nagaraj and Mahesh are examined as DW.2 and DW.3 respectively.
22. Both these witnesses have deposed before the court that, they have signed as the witnesses to the Shop Rental Agreement at Ex.D.2 as per Ex.D.2(d) and D.2(e) respectively. Both of them have further deposed that, the Accused had issued the subject cheque to the Complainant with a direction to furnish his Bank Passbooks and that the cheque was issued by the Accused to the Complainant towards the refund of the advance amount to him.
23. They have further deposed that, the Complainant was paying the rents to the Accused only through cheques and the Complainant did not show his statement of accounts to the Accused, as was instructed to him to do so by the latter. For the same reason, the Accused issued stop 12 C.C.No.11548 /17 J payment instructions in respect of the subject cheque to his banker.
24. Both these witnesses have been cross-examined by the learned counsel for the Complainant.
25. I have heard the arguments of the learned counsel representing the Complainant as well as the Accused and perused the entire materials available on record.
26. The learned counsel for the Complainant as well as the Accused has also filed their written arguments. I have perused the same.
27. I have considered the submissions and perused the record carefully.
28. 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;13 C.C.No.11548 /17 J
(iii) The drawer of the cheque fails to make the payment of the said amount of money within 15 days of the receipt of the notice under the proviso (b) to Sec.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.
29. 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".
30. 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, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration."14 C.C.No.11548 /17 J
31. 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.
32. 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.
33. 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.
34. 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 15 C.C.No.11548 /17 J 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.
35. 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 expected to rebut the presumptions by raising a probable defence.
36. 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.
37. Admittedly, there is no dispute with regard to the fact that, the cheque in dispute belongs to the Accused with his signature on it and likewise, there is no dispute with regard to the jural relationship of landlord and the tenant between the Accused and the Complainant.
16 C.C.No.11548 /17 JHowever, the defence of the Accused with regard to the issuance of the subject cheque by him in favour of the Complainant has not been consistent, since during the stage of the cross-examination of the Complainant, he has alleged that, the latter has stolen the cheque in dispute which was kept on the table of his shop, whereas during his rebuttal evidence, as well as in his cross-examination, he has admitted having issued the subject cheque in favour of the Complainant.
38. However, it could be seen that, the defence of the Accused is the denial of the existence of the alleged liability on his part towards the Complainant as claimed by the latter in the present case. In such circumstance the onus of proving the existence of the legally payable liability on the part of the Accused under the subject cheque in his favor is upon the Complainant.
39. In this regard, it is pertinent to note that, there is no dispute between the parties with regard to the fact that, upon the completion of the period of tenancy under the first rental agreement, which was for a period of 11 months, both of them entered into a new Shop Rental Agreement for a further period of 11 months on 18.4.2016. It is also not in dispute that, during the existence of the tenancy under the first rental agreement, the monthly rent 17 C.C.No.11548 /17 J of the shop was Rs.3,000/= with a refundable advance of Rs.50,000/=, whereas under the Second Shop Rental Agreement dated: 18.4.2016, the monthly rent of the shop of the Complainant was enhanced with mutual agreement between the parties to Rs.3,300/=, excluding the electricity charges and that the earlier interest free and refundable advancement of Rs.50,000/= was to be continued with the Accused and the other terms and conditions, being the similar to the earlier Shop Rental Agreement dated:-
20.3.2015.
40. In this regard, during his chief evidence as DW.1, the Accused has produced the two original Rental Agreements as per Ex.D.1 and D.2 respectively. There is no dispute between the parties that, upon the termination of tenancy by the Complainant voluntarily on 2.3.2017, the Accused has refunded Rs.20,000/= to him towards the partial refund of the security deposit amount by way of cash and issued the cheque in dispute for Rs.15,000/=.
41. Likewise the Complainant himself has pleaded both in the complaint as well as in his legal notice that, though the Accused was liable to refund Rs.26,700/= excluding the one month due rent for the month of February 2017 to him, he argued and insisted upon arbitrarily that, the monthly rent for the rental premises 18 C.C.No.11548 /17 J was in arrears from him amounting to Rs.14,850/= falsely and fallaciously.
42. Therefore, according to the Complainant, though the Accused was liable to refund Rs.26,700/= to him towards the balance of the security deposit amount, the latter issued a cheque in his favour for Rs.15,000/= only.
43. Further according to the Complainant, in order to avoid unnecessary complication in the matter and out of his helplessness, he accepted the cheque for the reduced amount of Rs.15,000/= instead of the actual amount of Rs.26,700/=, which was legitimately due to him from the Accused.
44. The Complainant has also pleaded that due to the persistent insistence of the Accused, he was compelled to write on the Shop Rental agreement at Ex.D2, as if, an amount of Rs.14,850/= was in arrears as monthly rental and this was done under coercion and threat and primarily with a view to avoid any confrontation with the dishonest Accused, who is a wealthy and locally influential person. Therefore he was constrained to accept the cheque in dispute for Rs.15,000/= in place of his balance security deposit amount of Rs.26,700/=.
19 C.C.No.11548 /17 J45. It is pertinent to note that, in this regard, the Accused has relied upon the shara on the second Shop Rental Agreement at Ex.D.2 as per Ex.D.2(a), by relying upon which, he claims that, his liability in favour of the Complainant has been completely discharged by him and as such, there is no arrears due from him in favour of the Complainant, towards the refund of the balance security deposit amount.
46. However, it is interesting to note that, the Accused has raised highly inconsistent defences about the issuance of the cheque in dispute by him in favour of the Complainant during the different stages of the proceedings.
47. It is seen that, during the cross-examination of the Complainant, the defence raised by the Accused is that, he is not liable to pay any amount to the Complainant and that the Complainant was due to him his monthly rental for a period of 5 months, at the rate of Rs.3,300/= p.m. and tht the cheque in dispute was kept by him on his table and the same has been stolen by the Complainant and presented for Rs.15,000/=.
48. He has further claimed that, it is for the said reason, that he had given the stop payment instructions in respect of the subject cheque to his banker.
20 C.C.No.11548 /17 J49. However, this defence version with regard to the possession of the subject cheque in the hands of the Complainant has been given a clear go bye by the Accused during his chief-examination, wherein he has admitted, having issued the subject cheque to the Complainant by deposing that, on 2.3.2017, the Complainant had approached him by citing urgency that, he was vacating his shop and hence, immediately he paid Rs.20,000/= to the Complainant by way of cash in the presence of the two witnesses viz., DW.2 and DW.3 and Rs.15,000/= by way of cheque and he has also deposed that, he is not liable to pay the cheque amount to the Complainant, since he had issued the cheque in dispute to the Complainant out of trust.
50. Therefore whatever be the reason cited by the Accused for the issuance of the subject cheque by him in favour of the Complainant, the inference that could be drawn is that, the Accused has clearly admitted that, he has issued the subject cheque for Rs.15,000/= in favour of the Complainant.
51. Likewise, even in his cross-examination, the Accused has deposed that, he has issued the subject cheque to the Complainant out of trust on 2.3.2017, when 21 C.C.No.11548 /17 J the latter had visited his shop in the morning hours and told him that, he was going to vacate the shop.
52. Therefore at this stage, it is clear that, with regard to the issuance of the subject cheque, the Accused has taken total inconsistent defences during the stage of the cross-examination of the Complainant and during his rebuttal evidence before this court.
53. However, in conclusion, it can be inferred that, there is no denial on the part of the Accused in so far as the issuance of the subject cheque by him with the contents in it for Rs.15,000/= in favour of the Complainant is concerned. To this extent, the contrary defences raised by the Accused would render his defence version in this regard an inconsistent one.
54. Now coming to another serious contradiction in the defence of the Accused with regard to the arrears of rent, which was allegedly due to him from the side of the Complainant is concerned, during the cross-examination of the Complainant, the Accused has raised the defence that, the Complainant was due to pay him the monthly rent of Rs.3,300/= for a period of 5 months i.e., from September 2016 to January 2017, whereas in his chief- examination, the Accused has contradicted in this regard 22 C.C.No.11548 /17 J by claiming that, as per the terms of the calculation made by him, the Complainant was in arrears of rent for a period of 8 months, commencing from August 2016 to February 2017 and the painting charges of Rs.3,300/=.
55. That means, according to the Accused, as on 2.3.2017, the Complainant was due to pay him a total sum of Rs.30,000/= (Rupees 26,700/= towards the arrears of rent for five months from September 2016 to January 2017 and Rs.3,300/= towards the painting charges).
56. However, this defence version of the Accused has been proved to be false as per the documentary evidence produced by the Accused himself as per Ex.D6, in which, the relevant entry at Ex.D6(a) dated: 23.8.2016, goes to show that, the monthly rent of Rs.3,300/= has been paid by the Complainant to the Accused through cheque bearing No.606328.
57. Therefore the defence of the Accused that, the Complainant was in arrears of rent for a period of 5 months commencing from August 2016 has been proved to be false with the own documentary evidence relied upon by the Accused as per Ex.D.6, which clearly goes to show that there is payment of the monthly rent of Rs.3,300/= by the 23 C.C.No.11548 /17 J Complainant to the Accused through cheque as per Ex.D6(a).
58. Moreover, for a moment, even if it is assumed that, the claim of the Accused that, the Complainant was in arrears of rent from September 2016 to January 2017 is believed to be true, then, the arrears of the rent should have been only Rs.16,500/= and not Rs.26,700/= as claimed by him in the present case.
59. However, this defence version of the Accused has also been given a complete go bye by him, with his own admission elicited from him in his cross-examination that, the Complainant has paid the rent through his 6 cheques in respect of his tenancy under the 2nd rental agreement and that there was a due of 5 months rent from the complainant towards him.
60. However, it is the specific claim of the Complainant, that, the Accused has received the rents for the period of 5 months from September 2016 to January 2017 by way of cash. Though the Accused has denied the receipt of such cash payment towards the rent for a period of 5 months from the Complainant, it is elicited from the witnesses DW.2 and DW.3 that, the Accused was receiving the rents from them by way of cash.
24 C.C.No.11548 /17 J61. Therefore, it cannot be ruled out that, the Accused was in the habit of receiving the rents from his tenants, not only through cheques, but also by way of cash, for which admittedly there are no receipts with the Complainant.
62. Therefore the claim of the Complainant in this regard is corroborated with the evidence of DW.2 and DW.3, who have deposed that, the Accused was not issuing them any receipt towards their monthly rental payments by way of cash by them to him. They have also voluntarily deposed that, the Accused was issuing such receipts, if he was insisted to do so.
63. Therefore it is clear that, when the Complainant claims that, he was not provided with any receipts towards his cash payments of rents by the Accused, the same cannot be doubted by this court, since the said claim has been corroborated by the evidence of DW.2 and DW.3.
64. Likewise, the Complainant has admitted the receipt of Rs.20,000/= from the Accused by way of cash and the same has been admitted even by the Accused in his cross-examination.
65. It is pertinent to note that, there are also serious contradictions in the defence of the Accused with regard to 25 C.C.No.11548 /17 J the reason for which Stop Payment instruction had been given by him in respect of the subject cheque.
66. It is seen that, during the cross-examination of the Complainant, it is claimed by the Accused that, he gave stop payment instructions in respect of the subject cheque to his bank, since the Complainant had allegedly stolen the subject cheque, which was kept by him on his table, whereas in his chief evidence, the Accused has claimed that, after the issuance of the subject cheque by him in favour of the Complainant out of trust, on verification, it was found that, the Complainant himself owed a sum of Rs.3,300/= to him towards the painting charges of the shop of Rs.26,700/= towards the arrears of 8 months' rent and as such, he was constrained to issue the stop payment instructions.
67. It is pertinent to note that, in this regard, the Accused has produced the office copy of the stop payment letter, which is admittedly issued by him to his banker as per Ex.D.3 on 2.3.2017.
68. However, in the said stop payment instructions the reason assigned by the Accused is that, because of the counting mistake in the shop rent from the Complainant, he was issuing the said stop payment instructions.
26 C.C.No.11548 /17 J69. But it could be seen that, in his cross- examination, the reason assigned by the Accused for having given stop payment instructions in respect of the subject cheque is that, though the Complainant had assured to bring his bank Passbook and show it to him on 2.3.2017, he did not do so and hence having doubted the Complainant, he issued the stop payment instructions.
70. Therefore the defence of the Accused in this regard has also not remained as a consistent one, thereby leading to an inference that, his defence is not a probable one.
71. It is further pertinent to note that, it is for the first time, in the cross-examination of the Complainant that, the Accused has come up with a defence that, there were arrears of rent for a period of 5 months from the Complainant towards him.
72. However, in this regard, it is elicited from the Accused that, he has not taken any action in this regard against the Complainant and that, he has not even caused any reply notice to him in this regard, though interestingly he claims that, the Complainant had not been paying him monthly rent from August 2016.
27 C.C.No.11548 /17 J73. The conduct of the Accused in this regard leads to an inference that, he has failed to substantiate his defence that, there were arrears of rent for a period of 8 months from the Complainant as claimed by him and hence for the same reason, he has not initiated any action against the Complainant in this regard.
74. Moreover, the main claim of the Complainant is that, when according to the Accused, the former himself was in arrears of rent to the tune of Rs.26,700/= for 8 months to him, then there was no necessity for the Accused to issue the subject cheque to him on 2.3.2017.
75. However, the explanation offered by the Accused in this regard is that, he issued cheque in dispute to the Complainant out of trust, as the latter had told him that, he was going to vacate the shop.
76. However, this explanation offered by the Accused cannot be accepted by this court, since no person of ordinary prudence would issue a cheque for whatever be the amount, if there was already arrears of rent due to him from the other person.
77. Moreover, the conduct of the Accused is also evident from his claim that, though he has not caused any 28 C.C.No.11548 /17 J reply notice, for the first time in his cross-examination, he has come up with a new version that, he has replied to the legal notice that was caused by him by the Complainant and he had got issued the same through RPAD through his counsel by name Mr.Jayadev.
78. However, except the self asserting version by the Accused in this regard, there is no proof regarding the same.
79. It is further pertinent to note that, though the Accused has relied upon the shara on the rental agreement at Ex.D.2 as per Ex.D.2(a), which admittedly has been not denied even by the Complainant, the calculation shown in the said sheet does not tally with the defence version pleaded by the Accused in the present case.
80. Therefore it is clear that, when the Accused has clearly admitted the issuance of the subject cheque as well as the contents of the same along with his signature on it and the issuance of the same in favour of the Complainant, there is no reason for this court to disbelieve the case of the Complainant.
81. No doubt, the evidence of the Accused has been corroborated with the evidence of the two witnesses' viz., DW.2 and DW.3. However, the evidence of the said 29 C.C.No.11548 /17 J witnesses cannot be entirely relied upon by this court, since they, being the tenants under the Accused even presently, there interestedness in the defence version of their landlord cannot be ruled out by this court. Therefore the evidence of DW.2 and DW.3 does not in any manner probabalize the defence of the Accused.
82. Therefore, the appreciation of the evidence on record clearly goes to show that, the Complainant has proved his case beyond reasonable doubt and on the other hand, the Accused has failed to rebut the presumptions available in favour of the Complainant u/Sec. 118 and 139 of the N.I.Act.
83. Now coming to the quantum of compensation to be awarded to the Complainant, admittedly the cheque amount is a meager sum of Rs.15,000/=. However, the conduct of the Accused, in having made the Complainant to fight this litigation by spending his valuable time, money and energy is a sufficient ground to impose double the cheque amount as compensation to be paid to the Complainant. Accordingly, I 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.30 C.C.No.11548 /17 J
He is sentenced to pay a fine of Rs.30,000/= (Rupees Thirty Thousand Only).
Out of the fine amount so collected Rs.27,000/= (Rupees Twenty Seven Thousand Only) is ordered to be paid to the Complainant as Compensation and the balance of Rs.3,000/= (Rupees Three Thousand only) is ordered to be adjusted towards cost to the State Exchequer.
In default of payment of such compensation, the Accused shall undergo Simple Imprisonment for 1 (one) Month.
His bail bond stands discharged.
Issue free copy of the Judgment to the Accused forthwith.
(Dictated to the Stenographer, print out taken by her, verified, corrected and then pronounced by me in the open Court on this the 26th day of September, 2018).
(SARASWATHI.K.N), XVI ACMM., Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
PW.1 : Sri. Pradeep Sharma;
2. List of documents exhibited on behalf of the
Complainant:-
Ex.C.1 : Original Cheque;
Ex.C.1(a) : Signature of the Accused;
Ex.C.2 : Bank Memo;
31 C.C.No.11548 /17 J
Ex.C.3 : Office copy of the Legal Notice;
Ex.C.4 : Postal Receipt;
Ex.C.5 : Postal Acknowledgment;
Ex.C.6 : Statement of Accounts;
3. List of witness/s examined on behalf of the Accused:-
D.W.1 : Sri. Narayan Kumar Nirala; D.W.2 : Sri. Nagaraj; D.W.3 : Sri. Mahesh.
4. List of documents exhibited on behalf of the Accused:-
Ex.D1 : Shop Rental Agreement dated:
20.3.2015;
Ex.D.2 : Shop Rental Agreement dated
18.04.2016;
Ex.D.2(a) : The shara found on Page No.2 in the
Hindi language is marked as Ex.D-2(a), Ex.D.2(b) to : The signatures of the Complainant and 2(c) the Accused respectively;
Ex.D.2(d) and : The signatures of D.W.2 and D.W.3
(e) respectively;
Ex.D.3 : Office copy of the letter of Stop Payment dated: 2.3.2017;
Ex.D.4 to D.6 : Bank Pass books of the Accused; Ex.D.4(a) to : Relevant entries in the Passbooks. D.6(a) (SARASWATHI.K.N), XVI ACMM, Bengaluru City.
32 C.C.No.11548 /17 J26.9.2018 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.
He is sentenced to pay a fine of Rs.30,000/= (Rupees Thirty Thousand Only).
Out of the fine amount so collected Rs.27,000/= (Rupees Twenty Seven Thousand Only) is ordered to be paid to the Complainant as Compensation and the balance of Rs.3,000/= (Rupees Three Thousand only) is ordered to be adjusted towards cost to the State Exchequer.
In default of payment of such compensation, the Accused shall undergo Simple Imprisonment for 1 (one) Month.
His bail bond stands discharged.
Issue free copy of the Judgment to the Accused forthwith.
XVI ACMM, B'luru.