Bangalore District Court
Aged About 49 Years vs S/O. Bheeya Ram on 22 April, 2019
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 22nd DAY OF APRIL, 2019
PRESENT
Sri. Shridhar Gopalakrishna Bhat, LL.B
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.58807/2018
Sri. M. Paparaju
S/o. Late Muniyellappa
COMPLAINANT Aged about 49 years, R/at No.60, Austin
Town, Yellappa Garden, Bengaluru - 47.
Sri. Sawai Ram
Aged about 46 years,
ACCUSED S/o. Bheeya Ram,
R/at No.37/14, Akshayanagar, Hulimavu
Begur Main Road, Near DLF New Town,
Bengaluru.
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused is convicted
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU
2 C.C. No.58807/2018
JUDGMENT
The complainant has approached this court with the complaint under Sec.200 Cr.PC against the accused for the offence punishable under Section 138 r/w Sec.142 of Negotiable Instruments Act, 1881. (herein after referred as N.I. Act)
2. The case of the complainant is that, the accused having acquaintance with the complainant approached the complainant for hand loan of Rs.10 lakhs in the month of July 2018 to meet his necessities. Considering the request of the accused, the complainant had paid Rs.10 lakhs by way of cash to the accused, which the accused agreed to return within one month and he had also issued cheque bearing No.325814 dtd.25.08.2018 for Rs.10 lakhs drawn on Indian Overseas Bank, Bilekahalli branch, Bengaluru. Thereafter with prior intimation to the accused, the complainant presented the said cheque for encashment through his banker State Bank of India, Langford Town branch, Bengaluru, but the said cheque was returned dishonoured for the reason "payment stopped by the drawer" vide endorsement dated 28.08.2018.
3. It is further case of the complainant that in spite of the repeated demands made by the complainant, the accused did not make payment of the cheque amount and as 3 C.C. No.58807/2018 such without having any other alternative, the complainant got issued legal notice dtd.15.09.2018 to the accused by RPAD., demanding the payment of the cheque amount. The accused who had prior knowledge about the notice got returned the same with an endorsement "door locked" and the said notice was received back by the counsel for the complainant on 28.09.2018. In spite of that the accused had not opted to comply with the lawful demand made by the complainant and thereby intentionally committed the offence punishable U/s.138 of N.I. Act. Under these attending circumstances, the complainant is constrained to file the present complaint and accordingly prayed for conviction of the accused and for grant of compensation in accordance with law in the interest of justice and equity.
4. After filing of this complaint, cognizance was taken for the offence punishable U/s.138 of N.I. Act. Sworn statement of the complainant was recorded. This court was satisfied as to prima facie case made out by the complainant for issuance of the summons and accordingly Criminal Case was registered against the accused for the offence punishable U/s.138 of N.I. Act and summons was ordered to be issued.
5. In pursuance of the summons issued by this court, the accused has put up his appearance through his counsel and enlarged on bail. Thereafter plea was recorded. The 4 C.C. No.58807/2018 accused has denied the substance of accusation and claimed for trial.
6. In order to prove the case of the complainant, the complainant himself examined as CW.1 and got marked as many as eight documents as per Ex.P1 to P8 and closed his evidence. After closure of the complainant's side evidence, statement of the accused as provided U/s.313 of Cr.PC was recorded. Thereafter the accused himself examined as DW.1 and got marked four documents as per Ex.D1 to D4 and closed his evidence and thereby evidence of the parties concluded.
7. Heard the arguments of the learned counsel for the complainant and accused. The counsel for the complainant has relied upon the following citations.
• 2007 AIR SCW 3578 - (C.C. Alavi Haji V. Palapetty Muhammed and another) • (2017) 5 SCC 737 - (N. Parameswaran Unni V. G.Kannan and another) • LAWS (KER) 2009 7 98 - (Narayanan V. State of Kerala) • (2010) 11 SCC 441 - (Rangappa V. Sri Mohan) • AIR 2003 SC 2035 - (Goaplast Pvt. Ltd., V Shri Chico Ursula D'Souza and another) • LAWS (P & H) 2007 10 10 - (Som Nath V. State of Punjab) 5 C.C. No.58807/2018 • LAWS (MAD) 2009 7 81 - (G. Irusappan V. Santhakumari) Similarly the learned counsel for the accused relied upon the following citations;
• (2002) 9 SCC 415 - (Shakti Travel & Tours Vs State of Bihar and another) • (2014) 2 SCC 236 - (John K. Abraham Vs Simon C. Abraham and another) • AIR 2006 SC 3366 - (M.S. Narayana Menon @ Mani Vs State of Kerala and another) • (2008) 1 SCC 258 - (K. Prakashan Vs P.K. Surenderan) • (2009) 6 SCC 72 - (Raj Kumar Khurana Vs State of (NCT of Delhi) and another)
8. On perusal of the entire material available on file and also on hearing the arguments of the learned counsels with rulings relied, the points that would arise for consideration are:-
1) Whether the complainant proves that the accused had issued cheque in question in discharge of the legally recoverable debt as contended?6 C.C. No.58807/2018
2) Whether the complainant further proves that the accused have committed the offence punishable under Section 138 of Negotiable Instrument Act?
3) Whether the complainant is entitled for the relief as prayed in the complaint?
4) What Order?
9. The above points are answered as under;
Point No.1 : In affirmative,
Point No.2 : In affirmative,
Point No.3 : In affirmative,
Point No.4 : As per the final order,
for the following.......
REASONS
10. Point Nos. 1 and 2: Since theses two points are inter linked and to avoid repetition they are taken together for discussion. Before peeping into the disputed facts, it is appropriate to refer the undisputed facts, which can be gathered from the material placed before this court at this stage itself. On going through the rival contention of the parties, oral and documentary evidence, it is clear that the complainant and accused are known to each other and the complainant was the confirming party to Ex.D1-registered sale agreement dated 22.11.2017. Further admittedly the 7 C.C. No.58807/2018 complainant is doing land business. It is not in dispute that the cheque in question belonged to the accused and signed by him. Further it is clear that the complainant presented the cheque in question for encashment and the same was returned dishonoured for the reason "payment stopped by the drawer". Thereafter the complainant got issued statutory notice to the accused and the same was returned with a postal endorsement "door locked". The accused nowhere disputed the financial capacity of the complainant.
11. With the above referred undisputed facts, now the facts in dispute are analyzed, as already stated the accused has denied the entire case of the complainant as to commission of the offence punishable U/s.138 of N.I. Act while recording his plea for the said offence and denied the incriminating circumstances found in the evidence of CW.1 at the time of recording his statement U/s.313 of Cr.PC. On going through the cross-examination of CW.1 and evidence of the accused, it is found to be a specific defence of the accused that on 22.11.2017 the accused entered into registered agreement of sale with one Muniyappa and his family members to purchase the property from them for sale consideration of Rs.23,10,000/-. Since the complainant was the holder of the previous agreement with the said Muniyappa and his family members with regard to the said property, the accused had paid Rs.7,50,000/- to the 8 C.C. No.58807/2018 complainant and the complainant signed the sale agreement as confirming party. Further at the time of registration of the agreement, the advocate for accused asked him to bring three cheques and accordingly he had brought three cheques bearing Nos.325810, 325813, 325814 and the said cheques were lost. Since the said cheques were lost, the accused had given stop payment letter to his banker on 30.01.2018. The complainant by misusing one of the said lost cheques filed the false complaint though the accused is not liable to pay any amount to the complainant. The accused has also denied the service of statutory notice on him and accordingly prayed for his acquittal in the interest of justice and equity.
12. Relying on the oral and documentary evidence, the learned counsels for respective parties vehemently argued as to the contention of the parties. It is needless to say that the proceeding U/s.138 of N.I. Act is an exception to the general principle that the accused is presumed to be innocent until the guilt is proved beyond all reasonable doubt. In the proceedings initiated U/s.138 of N.I. Act, proof beyond all reasonable doubt is subjected to presumption envisaged U/s.139 of N.I. Act. Once the requirement of section 138 of N.I. Act is fulfilled, then it has to be presumed that the cheques were issued for discharge of the legally recoverable debt or liability. The presumption envisaged 9 C.C. No.58807/2018 U/s.139 of N.I. Act is mandatory in nature and it has to be raised in all the cases on fulfillment of the requirements of Sec.138 of the said Act. In the ruling rendered by Hon'ble Apex Court in the case of Rangappa Vs. Mohan reported in AIR 2010 (SC) 1898 by relying on several rulings rendered by the Hon'ble Apex Court including the case of Krishna Janardhan Bhat Vs. Dattathraya G. Hegde reported in AIR 2008 (SC) 1325, it was held that "Existence of legally recoverable debt or liability is a matter of presumption U/s.139 of N.I. Act". The Hon'ble Apex Court disapproved the principle laid down in Krishna Janardhan Bhat's case that "Initial burden of proving existence of the liability lies upon the complainant". In the case of Sri.B.H.Lakshminarayana Vs. Smt.Girijamma reported in 2010 (4) KCCR 2637, it is held that "the presumption that the cheque was issued for legally recoverable debt is to be presumed". Further recently the Hon'ble Apex court in Crl. A. No.803/2018 - (Krishna Rao Vs Shankare Gowda) reported in 2018 (7) SCJ 300, in Crl. A. No.508/2019 (Rohitbhai Jivanlal Patel Vs. State of Gujarat and another) and in Crl. A. Nos.230-231/2019 - (Bir Singh Vs Mukesh Kumar) reiterated the above principles. Further as provided U/s.118 of N.I. Act, it is to be presumed that the cheque in question was issued for consideration on the date found therein.
10 C.C. No.58807/201813. In the light of the rival contention of the parties at the out set it is to be determined as to whether the complainant had complied with all the requirements of Sec.138 of N.I. Act as contended. In order to prove the case of the complainant, the complainant being CW.1 reiterated the complaint averments in his sworn statement by way of affidavit which itself is treated as examination-in-chief, in view of the decision of the Hon'ble Apex Court reported in (2014) 5 SCC 590 - Indian Bank Association and others Vs Union of India and others - [W.P. (civil) No.18/2013]. In addition to that the complainant has produced cheque dtd.25.08.2018, bank endorsement dtd.28.08.2018, office copy of legal notice dtd.15.09.2018, returned postal envelop containing the notice, two bank statements and one passbook as per Ex.P1 to P8 respectively. As already stated it is not in dispute that Ex.P1-cheque belonged to the accused and the same was signed by him. The contents of Ex.P1 and P2 i.e cheque and bank endorsement are looked into, it is clear that the complainant had presented Ex.P1- cheque for encashment through his banker State Bank of India, Langford Town branch, Bengaluru and the same was returned dishonoured on 28.08.2018 for the reason "payment stopped by the drawer". The contents of Ex.P3 to P5 i.e legal notice, postal receipt and returned RPAD envelop are analyzed, it is clear that after dishonour of Ex.P1-cheque 11 C.C. No.58807/2018 as found in Ex.P2, the complainant got issued legal notice dated 15.09.2018 as per Ex.P4 on 19.09.2018 and the said notice was returned with a postal shara "door locked" on 24.09.2018 as put up by the complainant. The complainant presented the present complaint on 05.10.2018. Admittedly the accused has not complied with the demand made in the statutory notice. Therefore on going through these documents, it is clear that the complainant had presented the cheque for encashment within its validity and got issued statutory notice after dishonour of the cheque within statutory period and presented the present complaint within prescribed time as required under law.
14. Added to the above documentary evidence, the complainant in his evidence by way of affidavit specifically stated as to compliance of requirements of Sec.138 of N.I. Act as contended. At this stage, it is pertinent to note that the accused has disputed the compliance of requirements of Sec.138 of N.I. Act, contending that notice was not served on him. In this regard the complainant has relied upon the returned postal envelop with a postal endorsement "door locked". The accused has not disputed his address as shown in the legal notice. Further the address given by the accused in his examination-in-chief also reveals that notice was sent to the correct address of the accused with all particulars. It is also noticed from the cross-examination of the accused 12 C.C. No.58807/2018 that he is residing in the address given in the complaint i.e the address shown in the legal notice. It is also his evidence that always anyone of his family members will be available in his said address. It is needless to say that when the notice was sent to the correct address of the accused, it shall be deemed to be served on the accused.
15. The contents of Ex.P3 to P5 are analyzed, it is clear that the notice was sent to the correct address of the accused. It is not the case of the accused that notice was sent to the wrong address. When the notice was sent to the correct address of the accused, it is the duty of the accused to receive the notice. Mere denial of the service of notice is not sufficient. The accused has to place such evidence to show that notice was not served on him as contended. Burden is on the accused to show that notice was not served on him. Though the accused has contended that the complainant in colluding with postal authority, intentionally got endorsement "door locked" and had seen that the notice returned back to the sender, there is no supporting material so as to disbelieve the postal endorsement found in Ex.P5. Except mere suggestion to the mouth of the complainant, there is no any other material to support the said contention of the accused. The complainant specifically denied the said suggestion put to his mouth in that regard. It is needless to say that when the notice was sent to the correct address of 13 C.C. No.58807/2018 the accused, when the accused is residing in the same address and when the accused takes up a contention that notice was not served upon him, burden lies upon him to prove the same. In this regard this court is being guided by the various rulings i.e 2007 AIR SCW 3578, (2017) 5 SCC 737, LAWS (P & H) 2007 10 10, LAWS (MAD) 2009 71 81 relied by the learned counsel for the complainant. On going through the said decisions along with the facts and evidence of the present case in hand, it is noticed that except mere denial of the service of notice, the accused has not placed any evidence to show that the postal endorsement found in Ex.P5 was created one.
16. The learned counsel for the accused during his course of argument vehemently argued that there is no proper endorsement in the returned RPAD envelop as to delivery of the intimation and attempt made for delivery of the registered post for seven days. As argued by the learned counsel for the accused, the contents of Ex.P5 are analyzed, there is no entry as to attempt made for delivery of the registered post for seven days, but there is an endorsement as to intimation to the addressee on 20.09.2018 as found in Ex.P5. This being the fact, the accused ought to have received the registered article sent to his address. As already stated the accused has not placed any such convincing and acceptable evidence so as to disbelieve the 14 C.C. No.58807/2018 postal endorsement. At this stage, it is also to be noted that the accused during his cross-examination specifically stated that he had got knowledge of the dishonour of the cheque from his banker. Therefore it is clear that the accused was well aware of the dishonour of the Ex.P1-cheque. The learned counsel for the accused also meticulously argued that there is no clear averments in the complaint as to service of notice on the accused as the complainant has not pleaded that notice was served on the accused. In this regard he has also relied on the decision of the Hon'ble Apex court reported in (2002) 9 SCC 415. This court has considered the judgment relied by the learned counsel for the accused and also considered the factual averments made in the complaint. It is noticed that the complainant in his complaint specifically contended that the accused has managed to sent back the notice with an endorsement as "door locked". Apart from that in the light of the various decisions relied by the learned counsel for the complainant, this court is of the considered view that the ruling relied by the learned counsel for the accused in this regard cannot be accepted so as to hold that the complaint is not maintainable. Hence considering the evidence on record, this court is of the considered view that there is no merit in the contention of the accused as to non-service of notice as contended by him. As argued by the learned counsel for the 15 C.C. No.58807/2018 complainant the notice shall be deemed to be served on the accused in the light of the existing evidence.
17. Therefore on conjoint reading of the entire oral and documentary evidence, their remains no doubt that the complainant had complied with all the requirements of Sec.138 of N.I. Act. This being the fact, as discussed earlier, in the light of the dictum of the Hon'ble Apex Court, it goes without saying that the presumption available U/s.139 of N.I. Act is required to be drawn and shall presume that the accused had issued the cheque as per Ex.P1 towards discharge of legally recoverable debt. It is also to be presumed that cheque was issued for consideration on the date as mentioned therein.
18. As argued by the learned counsel for the accused, it is well settled principle of law through catena of decisions that, though the statutory presumptions available U/ss.118 and 139 of N.I. Act are mandatory in nature, they are rebuttable one. It is needless to say that when the complainant proves the requirements of Sec.138 of N.I. Act, the onus of proof shifts and lies on the shoulder of the accused to rebut the presumptions available in favour of the complainant. It is the accused who has to rebut the presumptions with all preponderance of probability with clear, cogent and convincing evidence though not beyond all 16 C.C. No.58807/2018 reasonable doubt. The accused has to make out probable defence by producing convincing acceptable evidence and thereafter only burden shifts on the shoulder of the complainant. It is also well settled law that to rebut the presumption, the accused can also rely upon presumptions available under the Evidence Act. It is also set in rest that in order to rebut the presumption it is not imperative on the part of the accused to step into the witness box and he may discharge his burden on the basis of the material already brought on record and on the basis of the facts elicited in the cross-examination of the complainant. It is also equally true that, if the accused places such evidence so as to disbelieve the case of the complainant, then the presumptions stand rebutted. This view is also supported with the decision of the Hon'ble Apex court reported in (2006) 3 SCC (Crl.) 30 - (Tamilnad Mercantile Bank Ltd., Vs M/s.Subaiah Gas Agency and others), ILR 2009 (2) 1633 - (Kumar Exports Vs Sharma Carpets), AIR 2008 (SC) 1325 (Krishna Janardhan Bhat Vs. Dattathraya G. Hegde), 2013 SAR (CRI) 373 - (Vijay Vs Laxman and another) and AIR 2010 (SC) 1898 - (Rangappa Vs Mohan) and Crl. A. Nos.230-231/2019 - (Bir Singh Vs Mukesh Kumar). In this regard this court is also being guided by the rulings relied by the learned counsel for the accused reported in AIR 2006 SCC 3366, 17 C.C. No.58807/2018 (2008) 1 SCC 258. Now the question that would arise is whether the accused has rebutted the statutory presumptions available in favour of the complainant.
19. In view of the defence taken by the accused, as against the claim of the complainant, now the evidence available on behalf of the accused is analyzed, in support of the defence of the accused in addition to the cross- examination of the complainant, the accused himself examined as DW.1 and got marked four documents i.e, certified copy of the Memorandum of Sale Agreement dated 22.11.2017, statement of account relating to his account maintained in HDFC Bank, his passbook with Indian Overseas Bank and stop payment letter dated 30.01.2018 as per Ex.D1 to D4 to substantiate his defence. So far as Ex.D1 is concerned, there is no dispute. It is clear from the contents of Ex.D1 that the accused entered into sale agreement with Muniyappa and 12 others to purchase the property stated in the said document and complainant and one R.Lazar are confirming parties to the said document. The contents of Ex.D1 and D2 are analyzed, it is clear that under Ex.D1 the accused had paid Rs.2,50,000/- to the complainant through cheque bearing No.000062 dated 25.09.2017 and the same was credited to the complainant on 05.10.2017 as found in Ex.D2.
18 C.C. No.58807/201820. No doubt the complainant during his cross- examination denied the receipt of the said amount. In this regard even the learned counsel for the complainant relying on Ex.P6 to P8 submitted that the said amount is not credited to the account of the complainant. But on going through the Ex.P6 to P8, it is noticed that Ex.P6 and Ex.P8 are the statement of account and passbook relating to the Savings Bank account of the complainant maintained in State Bank of India, Langford Town branch and Ex.P7 is the statement of account of the complainant relating to his account maintained with State Bank of India, Victoria Road branch. The contents of Ex.P6 and P8 are analyzed, it is clear that there is no entry as to credit of Rs.2,50,000/- to the account of the complainant on 05.10.2017. In Ex.P7 also there is no entry as to credit of Rs.2,50,000/- to the account of the complainant. But it is pertinent to note that Ex.P7 is for a period of 01.11.2017 to 01.06.2018 and not relating to 05.10.2017. It is not understood why the complainant has not produced statement of account relating to his account in S.B.I., Victoriya Road branch for a period October 2017. Further as found in Ex.D1, the complainant is the confirming party and definitely, it has to be held that he is aware of contents of Ex.D1. Therefore in the light of Ex.D1 and D2, it has to be held that a sum of Rs.2,50,000/- was received by the complainant. Though the complainant 19 C.C. No.58807/2018 has denied the crediting of the said amount whom suggested to him, in the light of Ex.D1 and D2, it cannot be held that the said amount was not credited to the complainant. But the contention involved in this case is analyzed, the said aspect is not decisive point and the same was much earlier to the transaction involved in this case.
21. As argued by the learned counsel for the accused, the contents of Ex.D3 are analyzed, it is clear that on 14.11.2017 a sum of Rs.5 lakhs was transferred to the complainant through cheque bearing No.315299, but the complainant has denied the same. In this regard, even the contents of Ex.P6 to P8 are analyzed, there is no entry as to crediting of the said amount to the account of the complainant. In this regard it is pertinent to note that for the first time, the accused has come up with the contention that he had paid Rs.7,50,000/- to the complainant to have the complainant as confirming witness to Ex.D1. But it is pertinent to note that in Ex.D1 there is no whisper as to payment of Rs.7,50,000/- to the complainant as confirming party. On the other hand as already discussed there is an entry as to payment only Rs.2,50,000/- to the complainant through cheque bearing No.000062 and not Rs.7,50,000/-. The accused has not produced any documents before the court to show that the said amount of Rs.5 lakhs as found in Ex.D3 was credited to the account of the complainant.
20 C.C. No.58807/2018Therefore there is no clarity in that regard. Even this aspect is concerned, it is interesting to note that again the alleged payment was in the year 2017 and not relating to the transaction alleged in the present complaint. But one thing is certain that in the year 2017 itself and even prior to Ex.D1 the complainant and accused are known to each other. In this angle, as argued by the learned counsel for the complainant, the evidence of the accused that the complainant was not known to the accused cannot be accepted. Therefore the contents of Ex.D1 to D3 are found to be not helpful to the accused so as to probabalize his defence in any angle.
22. Now the possession of the cheque in the hand of the complainant is analyzed, as already stated the complainant has specifically stated that the accused had issued Ex.P1-cheque towards discharge of legally recoverable debt which was availed by him in the month of July 2018. On the other hand the accused contended that the complainant having obtained one of his lost three cheques, misused the said cheque in filing the present complaint though he is not liable to pay any amount to the complainant. In the light of this contention, now the contents of Ex.D4 are analyzed, it is clear that on 30.01.2018 the accused had given stop payment letter to his banker praying for stop payment of three cheques relating 21 C.C. No.58807/2018 to his account as he had lost cheques bearing Nos.325810, 325813 and 325814. In this case Ex.P1-cheque bearing No.325814 is involved. From the said letter, it is clear that the accused had given stop payment letter to his banker with regard to the cheque in question with other two cheques as he lost the same. Admittedly, as per Ex.P2, Ex.P1 cheque was dishonoured for the reason "payment stopped by the drawer".
23. With the above aspects, now the cross-
examination of CW.1 is analyzed, as argued by the learned counsel for the complainant, the suggestion put to the mouth of CW.1 is found to be totally contrary to the contention of the accused as stated in Ex.D4. In his examination-in-chief the accused has specifically deposed that "£À£Àß ªÀQîgÀÄ ¸À¨ï jf¸ÀÖgï PÀbÀÉÃjUÉ §gÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è £À£ÀUÉ ªÀÄÆgÀÄ ZÉPÀÌ£ÀÄß vÀgÀĪÀAvÉ w½¹zÀÄÝ £Á£ÀÄ 3 ZÉPÀÄÌUÀ¼À£ÀÄß vÀA¢zÉÝ. ¸À¨ï jf¸ÀÖgï PÀbÀÉÃjAiÀÄ°è D 3 ZÉPÀÄÌUÀ¼ÀÄ PÀ¼ÉzÀĺÉÆÃVzÀݪÀÅ. D ªÀÄÆgÀÄ ZÉPÀÄÌUÀ¼À £ÀA§gÀÄUÀ¼ÀÄ 325810, 325813, 325814 DVzÀݪÀÅ. £À¤ßAzÀ PÀ¼ÉzÀĺÉÆÃzÀ ªÀÄÆgÀÄ ZÉPÀÄÌUÀ¼À ¥ÉåQ MAzÀÄ ZÉPÀÌ£ÀÄß ¦gÁå¢zÁgÀgÀÄ G¥ÀAiÉÆÃV¹PÉÆAqÀÄ £À£Àß «gÀÄzÀÞ ¸ÀļÀÄî PÉøÀ£ÀÄß ºÁQgÀÄvÁÛgÉ. £Á£ÀÄ ZÉPÀÄÌUÀ¼ÀÄ PÀ¼ÉzÀĺÉÆÃzÀzÀÄÝ w½zÀ £ÀAvÀgÀ ZÉPÀÌ£ÀÄß £ÀUÀ¢üÃPÀj¸ÀzÀAvÉ £À£Àß ¨ÁåAQUÉ ¸ÁÖ¥ï ¥ÉêÉÄAmï ¥ÀvÀæªÀ£ÀÄß ¢£ÁAPÀ 30.01.2018 gÀAzÀÄ PÉÆnÖzÉÝ." But on the contrary during cross-
examination of the complainant, the counsel for the accused has specifically put a suggestion to the mouth of the 22 C.C. No.58807/2018 complainant to the effect that at the time of executing Ex.D1-agreement, to pay the amount to the 13 persons the accused had brought cheques and out of that three signed cheques were taken by the complainant from the accused and the complainant misused the cheque and filed false case. CW.1 has specifically denied the said suggestion. However the said suggestion put to the mouth of CW.1 makes it very clear that the three cheques stated to be lost in Ex.D4 is false. Further the suggestion is also put to the effect that since the complainant had taken signed blank cheque of the accused and since there is possibility of misusing the same the accused had given stop payment letter to his banker. This suggestion once again makes it very clear that the accused himself delivered the cheque to the complainant and the cheque in question was not lost or misplaced as stated in Ex.D4. Therefore there remains no doubt that the accused has put up false contention.
24. In addition to the above aspects, as argued by the learned counsel for the complainant, it is also noticed that one of the cheques stated in Ex.D4, i.e cheque bearing No.325810 was presented for encashment and the same was found to be returned on 02.02.2018 as found in Ex.D3. Even the accused during his cross-examination specifically stated that "¤.r 4 gÀ°è ºÉýzÀ ZÉPÀÄÌ £ÀA§gÀÄ 325810 ¢£ÁAPÀ 02.02.2018 23 C.C. No.58807/2018 gÀAzÀÄ CªÀiÁ£ÀåUÉÆAqÀÄ »AzÀPÉÌ §A¢zÀÄÝ D PÀÄjvÀÄ £Á£ÀÄ AiÀiÁªÀÅzÉà PÁ£ÀÆ£ÀÄ PÀæªÀĪÀ£ÀÄß vÉUÉzÀÄPÉÆArgÀ°®è. £À£Àß ZÉPÀÄÌUÀ¼ÀÄ PÀ¼ÉzÀĺÉÆÃzÀ PÀÄjvÀÄ £Á£ÀÄ ¥ÉÇð¸ÀjUÉ zÀÆgÀÄ PÉÆnÖ®è." This version of the accused reveals that he had not taken any action against any person in respect of the cheque bearing No.325810 which is stated to be lost, though it was presented for encashment by some person to his own knowledge. If at all the said cheque was also misplaced or given to the complainant, the accused could have produced relevant documents obtaining the same from the bank. The complainant ought to have made enquiry as to who had presented the said cheque. It is not understood, having knowledge of the presentation of the one of the alleged lost cheque, why the accused had not taken legal action in that regard against the concerned person who had presented the said cheque for encashment. Ex.D3 does not disclose that the said cheque was presented by the complainant himself. The accused being a prudent person ought to have taken appropriate steps, if his lost cheque was being misused as contended. Therefore the conduct of the accused himself reveals otherwise. Further it is also noticed from the evidence of the accused that the accused used to enter the name of the person to whom the cheque was given, when it was given for what amount in the cheque book counterfoil. But on the contrary admittedly he had not entered lost three cheques in the cheque book counterfoil.
24 C.C. No.58807/2018When the accused used to enter everything in the cheque book counterfoil as stated above, it is not understood why the accused had not made entry as to loss of three cheques as contended by him. Therefore in this angle also, it is clear that the accused has come up with false contention to his own knowledge and the said defence of the accused cannot be accepted.
25. As already stated it is also noticed from the evidence on record that the accused was well aware as to dishonour of the cheque in question from his banker. This being the fact, if at all his cheque was lost and the same was misused by the complainant, immediately the accused being a prudent person ought to have taken appropriate legal steps in that regard. But as already stated having knowledge of this fact, he had not opted to take any action. Apart from that though the complainant got issued legal notice, after dishonour of the cheque, the accused even has not opted to issue any reply to the legal notice and already discussed the said notice was returned as "door locked". Under these attending circumstances, this court found much substance in the argument of the learned counsel for the complainant. At this juncture, even the cross-examination of CW.1 is analyzed, though the learned counsel for the complainant cross-examined CW.1, he could not elicit anything from his mouth so as to either disbelieve the case 25 C.C. No.58807/2018 of the complainant or to probabalize the defence of the accused in any angle. As already discussed, even the suggestion put to the mouth of CW.1 is found to be contrary to the contents of Ex.D4. No doubt as argued by the learned counsel for accused during cross-examination, the complainant has stated that he had paid Rs.8 lakhs on 26.07.2018 and Rs.2 lakhs on 05.08.2018, but the same is not stated in the legal notice and complaint. However the complainant has stated that total amount lent. In the light of the entire evidence, defence of the accused, this court is of the considered view that only on that evidence, the case of the complainant cannot be disbelieved.
26. Now it is well settled principle of law that the provisions of Sec.138 of N.I. Act is applicable to the case where the cheque is dishonoured for the reason "payment stopped by the drawer". In this regard, this court is also being guided by the decisions relied by the learned counsel for the complainant reported in AIR 2003 SC 2035, LAWS (KERALA) 2009 7 98. Further it is also to be noted that it is not the case of the accused that there was sufficient amount in his account as on the date of presentation of Ex.P1- cheque or as on its dishonour.
27. Thus considering all these aspects, material placed, this court is of the considered view that the accused has 26 C.C. No.58807/2018 totally failed prove or probabalize his defense theory and thereby to rebut the statutory presumptions available in favour of the complainant. It clearly appears from the evidence placed before this court that defence put up by the accused is only after thought without any basis and even found to be too remote to accept its probabilities. The defence put up by the accused is also appears to be a futile effort to escape from the liability, if possible. As already stated unless the accused rebut the statutory presumptions with convincing and cogent evidence, the burden cannot be shifted on the complainant. As discussed the complainant has placed sufficient material to establish his contention as put up by him. The evidence placed before this court is sufficient to accept the case of the complainant that the accused had issued cheque in question towards discharge of legally recoverable debt and the complainant has proved all the requirements of Sec.138 of N.I. Act, so as to constitute the offence against the accused as put up by him. This court is also being guided by the other citations relied by the learned counsel for the accused. But on going through the said decisions along with its facts and circumstances and the facts and circumstances of the present case, existing evidence, this court is of the firm view that none of the decisions relied by the learned counsel for the accused could be set into motion to the facts of the present case, so as to 27 C.C. No.58807/2018 up hold or to believe the contention of the accused in any angle. This court did not find such circumstances to apply the said decision so as to up hold the defence theory put up by the accused. Therefore Point Nos.1 & 2 are required to be answered in affirmative and answered accordingly.
28. Point No.3: As discussed in connection with Point Nos.1 & 2, the complainant has proved his case as to commission of the offence punishable U/s.138 of N.I. Act by the accused. The punishment prescribed for the said offence is imprisonment for a period which may extent to two years or with fine which may extend to twice the amount of the cheque or both. Considering the facts and circumstances of this case, nature, year of the transaction, nature of the instrument involved, provisions of Sec.117 of N.I. Act, cost of litigation, etc., this court is of the considered view that it is just and desirable to impose fine of Rs.11,30,000/- and out of the said amount a sum of Rs.5,000/- has to be remitted to the State and the remaining amount of Rs.11,25,000/- is to be given to the complainant as compensation as provided U/s.357(1) of Cr.PC and accordingly Point No.3 is answered in Affirmative.
28 C.C. No.58807/201829. Point No.4: For the reasons discussed in connection with Point Nos.1 to 3 this court proceed to pass the following......
ORDER Acting under Section 255(2) of Cr.PC accused is hereby convicted for the offence punishable under Section 138 of Negotiable Instrument Act. The accused shall pay a fine of Rs.11,30,000/- for the offence punishable U/s.138 of N.I. Act. In default of payment of fine amount, the accused shall under go simple imprisonment for a period of nine months.
By exercising the power conferred U/s.357(1) of Cr.PC., out of total fine amount of Rs.11,30,000/-, a sum of Rs.11,25,000/- is ordered to be paid to the complainant as compensation and Rs.5,000/- is ordered to be remitted to the State.
The bail bond of the accused and that of his surety stands cancelled.
Supply the free copy of this judgment to the accused forth with.
(Typed to my dictation by the stenographer, directly on computer, corrected, signed and then pronounced by me in the open court on this the 22nd day of April, 2019) (SHRIDHAR GOPALAKRISHNA BHAT) XIV ADDL. C.M.M., BENGALURU 29 C.C. No.58807/2018 ANNEXURE Witnesses examined for the complainant:
CW.1 : Sri. M. Paparaju
Witnesses examined for the defence:
DW.1 : Sri. Sawai Ram
Documents marked for the complainant:
Ex.P1 : Cheque
Ex.P2 : Bank endorsement
Ex.P3 : Legal notice
Ex.P4 : Postal receipt
Ex.P5 : Returned postal cover
Ex.P6 & 7 : Statement of account
Ex.P8 : S.B.I passbook
Documents marked for the defence:
Ex.D1: Certified copy of Memorandum of sale agreement
Ex.D2: Account status
Ex.D3: Indian Overseas Bank passbook
Ex.D4: Copy of stop payment letter
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU