Bangalore District Court
Sri.K.Gangadhar vs Sri.N.Manjunath on 3 November, 2018
IN THE COURT OF LVII ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL UNIT, BENGALURU
-: PRESENT :-
PADMA PRASAD, BA (Law), LLB.
LVII ADDL. CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED THIS THE 3RD DAY OF NOVEMBER, 2018.
C.C.No.55171/2014
COMPLAINANT : Sri.K.Gangadhar
Aged about years,
S/o Krishnappa,
R/near Seetharamanjaneya Temple,
II Cross, NRI Layout, Kalkere,
Horamavu post, Bangalore -
.Vs.
ACCUSED : Sri.N.Manjunath,
Aged about years,
S/o Nanja Revanna
R/at Mission Beedhi Road,
Kalkere Village, Horamavu Post,
Bangalore East Taluk, Bangalore - 43.
****
JUDGMENT
The complainant filed this complaint against the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
2 C.C.No.55171-20142. The complaint case in nutshell is that in the 3rd week of October 2012 the accused approached the complainant for a hand loan amount of Rs.5,00,000/- for the purpose of construction of his house and promised to repay the same within 3 months. Accordingly, the complainant claims that he has advanced a sum of Rs.5,00,000/- to the accused on 03.11.2012 in cash. After the lapse of 3 months when the complainant approached the accused for repayment of loan the accused after mutual discussion on 20.02.2013 has issued a letter of acknowledgment and account payee cheque bearing No.806625 dtd:20.02.2013 for Rs.5,00,000/- drawn on Indian Bank, Doddabanasawadi Branch. The complainant presented the said cheque for encashment on 11.03.2013 though his banker that has been returned without encashment with bank memo dtd:13.03.2013 stating "Funds Insufficient". Thereafter on 27.03.2013 the complainant caused a legal notice calling upon the accused to pay the cheque amount that has been served to the accused on 12.04.2013. The accused instead of complying with the notice has issued untenable reply dtd:17.04.2013. Hence, filed the complaint.
3. After filing the complaint, sworn statement of the complainant has been recorded and on perusing the materials on record i.e., cheque, bank endorsement, legal notice and documents for having been caused the notice to the accused, the court has been taken the cognizance of offence and issued summons to the accused.
3 C.C.No.55171-20144. In response to the summons, the accused appeared through his counsel and he was on court bail. Plea has been recorded; accused pleaded not guilty and claimed to be tried.
5. To prove the case, the complainant got examined himself as P.W.1 and got marked documents at Ex.P.1 to P.7.
6. On closure of complainant side evidence, the accused statement has been recorded under Sec.313(1)(b) of Cr.P.C., by placing the incriminating evidence appeared against the accused that are denied by the accused.
7. The accused in support of his defense examined himself as D.W.1 and also got marked documents at Ex.D.1 to 9. The case made out by the accused during his evidence is that on 03.11.2012 he has arranged a loan of Rs.50,000/- to one Manjunath from the complainant at that time he has issued 2 blank signed cheques to the complainant and also he has received 2 cheques from said Manjunath. The accused further claimed that he has borrowed a sum of Rs.1,50,000/- from the complainant in the year 2008 and he has repaid the said amount on 19.09.2008 through cheque. The accused further claimed that at that time the complainant has received one signed blank paper to the complainant and totally denied the case of the complainant and specifically denied that he has not borrowed any money for the construction of his house and he arranged the money for construction of his house by selling his site property. Accordingly prayed for dismissal of complaint.
4 C.C.No.55171-20148. On the basis of above, the point for consideration is that;
"Whether the complainant has proved that the accused has committed the offence punishable under Sec.138 of Negotiable Instruments Act?"
9. Both the counsels for complainant and accused filed their written arguments with citations. Heard and perused the materials on record. On that basis my finding on the above point is in the "Affirmative" for the following;
REASONS
10. The complaint case in nutshell is that in the 3rd week of October 2012 the accused approached the complainant for a hand loan amount of Rs.5,00,000/- for the purpose of construction of his house and promised to repay the same within 3 months. Accordingly, the complainant claims that he has advanced a sum of Rs.5,00,000/- to the accused on 03.11.2012 in cash. After the lapse of 3 months when the complainant approached the accused for repayment of loan the accused after mutual discussion on 20.02.2013 has issued a letter of acknowledgment and account payee cheque bearing No.806625 dtd:20.02.2013 for Rs.5,00,000/- drawn on Indian Bank, Doddabanasawadi Branch. The complainant presented the said cheque for encashment on 11.03.2013 though his banker that has been returned without encashment with bank memo dtd:13.03.2013 stating "Funds Insufficient". Thereafter on 27.03.2013 the complainant caused a legal notice calling upon the accused to pay 5 C.C.No.55171-2014 the cheque amount that has been served to the accused on 12.04.2013. The accused instead of complying with the notice has issued untenable reply dtd:17.04.2013. Hence, filed the complaint.
11. The accused in support of his defense examined himself as D.W.1 and also got marked documents at Ex.D.1 to 9. The case made out by the accused during his evidence is that on 03.11.2012 he has arranged a loan of Rs.50,000/- to one Manjunath from the complainant at that time he has issued 2 blank signed cheques to the complainant and also he has received 2 cheques from said Manjunath. The accused further claimed that he has borrowed a sum of Rs.1,50,000/- from the complainant in the year 2008 and he has repaid the said amount on 19.09.2008 through cheque. The accused further claimed that at that time the complainant has received one signed blank paper to the complainant and totally denied the case of the complainant and specifically denied that he has not borrowed any money for the construction of his house and he arranged the money for construction of his house by selling his site property. Accordingly prayed for dismissal of complaint.
12. The complainant in support of his case examined himself as P.W.1 by filing evidence affidavit wherein he stated in consonance with the complaint case. The complainant produced documents at Ex.P.1 to 7. The Ex.P.1 is the original cheque, Ex.P.2 is the bank return memo, Ex.P.3 is the office copy of the legal notice, Ex.P.4 is the postal receipt, Ex.P.5 is the postal acknowledgment, Ex.P.6 is the 6 C.C.No.55171-2014 letter of acknowledgment and Ex.P.7 is the reply notice. Though the accused disputed the transaction claimed by the complainant and issuance of the cheque as claimed by the complainant but admitted the issuance of the cheque in favour of the complainant. Hence, the cheque at Ex.P.1 is belongs to the accused. The signature in the cheque is also not in dispute. The cheque has been presented for encashment within its validity, the legal notice has been caused in time and even the complaint is in time. Hence, the initial presumption under Sec.139 of N.I.Act has to be drawn in favour of the complainant that the cheque involved in this case has been issued by the accused in favour of the complainant towards the discharge of legally enforceable debt.
13. When the complainant made out a prima-facie case to draw initial presumption under Sec.139 of N.I.Act, the burden shifts on the accused to prove the contrary to the complaint case and also put forth a probable defense in the case so that the court can disbelieve the complaint case otherwise the case of the complainant has to be accepted.
14. It is the specific defense of the accused that in the year 2012 one Manjunath approached him to provide a loan from the complainant. Accordingly the said Manjunath along with this accused approached the complainant for a loan of Rs.50,000/- and at that time, the complainant has received 2 signed blank cheques from the accused while advancing the loan of Rs.50,000/- to the said 7 C.C.No.55171-2014 Manjunath. The accused also claimed that said Manjunath issued 2 cheques in his name for Rs.25,000/- each. Apart from that the accused also made out one more defense in the case is that in the year 2009 the accused borrowed a loan of Rs.1,50,000/- from the complainant and at that time the complainant has obtained signature of the accused on a blank paper though the accused and aforesaid Manjunath has repaid the money borrowed by them to the complainant. The complainant has not returned the cheque and stamp paper and by misusing the said document filed a false complaint against the accused. The burden of proving all these facts entirely on the accused.
15. The complainant in order to prove his case examined himself as P.W.1. The specific case of the complainant is that in the year 2012 during the 3rd week of October 2012 this accused approached the complainant for a loan of Rs.5,00,000/- in order to complete the construction work of his house. Accordingly, on 03.11.2012 the complainant claims that he has advanced a loan of Rs.5,00,000/- in cash to the accused. Per-contra, the accused claimed that he has completed the construction of his house along with his brothers by selling his site property. In support of said contention, he has produced the certified copy of the absolute sale deed at Ex.D.4 which discloses that the accused sold his site property for a consideration of Rs.3,00,000/- on 08.12.2011. The admission given by the accused during his cross-examination at page No.6 discloses that the accused admitted that he was constructing a house in the year 2012.
8 C.C.No.55171-2014Therefore, the construction of the house by the accused in the year 2012 is an admitted fact. The accused specifically claimed during the cross-examination that in the year 2012 when the construction was about to completed; there was a shortage of money hence he has sold the site property but as per sale deed at Ex.D.4 the said property has been sold in the year 2012 as on 08.12.2011 but the shortage of the money for the accused to complete the construction was in the year 2012. If the property has been sold in the year 2012, the claim of the accused would have been accepted that as there was a shortage of money he has arranged the said shortage of money by selling his property but in the absence of any such document and also in view of the clear cut admission of the accused during the cross-examination that there was a shortage of money to complete the construction in the year 2012, certainly probablise the case of the complainant that the accused was in need of money in the year 2012. Further, there is also no material before the court to show that the construction of work of the accused has been completed in the year 2011 immediately after the selling property at Ex.D.4. Hence, the claim of the accused that he has arranged the money for construction of house by selling the property as on 08.12.2011 certainly cannot be accepted.
16. It is the specific case of the accused that in the year 2012 one Manjunath approached the accused to provide loan to him from this complainant. Accordingly this accused and the said Manjunath together approached the complainant for a loan of Rs.50,000/-.
9 C.C.No.55171-2014Accordingly, the complainant has advanced a loan of Rs.50,000/- to said Manjunath and at that time this complainant has taken 2 cheques as a security for the repayment of money by the said Manjunath claiming that the complainant does not know the said Manjunath and he has advance the money to said Manjunath as he knows the accused. Absolutely there is no material on record to show that there is any loan transaction between the complainant and the one person named as N.Manjunath as claimed by the accused. Further if at all this complainant has advanced any money to the said Manjunath other than the accused Manjunath; certainly this complainant would received at least one cheque from said Manjunath. Further according to the claim of the accused the said Manjunath issued 2 cheques in his favour. If it were so and also if the money has been advanced to said Manjunath this accused would have at least handed over 1 cheque of said Manjunath to the complainant. The natural human conduct is that the document will be received as a security from the person to whom the loan has been advanced. Admittedly this accused has not at all advanced any money to said Manjunath. In spite of that he has collected 2 cheques from said Manjunath. In spite of receiving of 2 cheques, the accused has not at all handed over even a single cheque of Manjunath in his favour though this complainant advanced money to said Manjunath. This fact certainly creates doubt regarding the defense story of the accused.
10 C.C.No.55171-201417. It is true that the accused has produced 2 cheques at Ex.D.6 and 7. The said cheque is a blank signed cheque and wherein the amount of Rs.25,000/- each has been mentioned in the numbers. The said document nowhere discloses that the said cheques have been issued in favour of the accused by the said Manjunath. Further, how this accused retained the said cheque of Manjunath when the said Manjunath has repaid the alleged loan of Rs.50,000/- borrowed by him from the complainant. Apart from that why this accused also not returned back the said cheques to said Manjunath is without any explanation. There is also no material on record to show that this complainant has not returned the Ex.D.6 and 7 cheques to said Manjunath even after the repayment of money. If really the said Manjunath borrowed money from the complainant and issued 2 cheques in favour of the accused, certainly he will ask the accused to return the said cheques. Apart from that when the said Manjunath has borrowed money from the complainant. There is no necessity for the said Manjunath to issue a cheque in favour of the complainant. Apart from that the complainant totally disputed the transaction claimed by accused between him and the Manjunath. The complainant also disputed that the said cheque at Ex.D.6 and 7 are not at all belongs to Manjunath claimed by the accused. Further, the statement produced by accused not tallies with the cheques produced by him. Apart from that even there is no material on record to show that Ex.D.6 and 7 are really belongs to any Manjunath.
11 C.C.No.55171-201418. The accused put forth one more defense in the case is that in the year 2008 he has approached the complainant for a loan of Rs.1,50,000/- and he has repaid the same to the complainant. The accused further claims that while borrowing Rs.1,50,000/- from the complainant, the complainant has received one signed stamp paper. Admittedly the accused claims that he has borrowed Rs.1,50,000/-. If at all this accused is specific about his defence that he has advanced the money to the accused, certainly the complainant would not have obtained a blank stamp paper but he would have received the cheques or other documents for having been advanced the money as well as to see the acceptance of the loan by the accused.
19. It is the definite case of the complainant that this accused has executed a letter of acknowledgment for having been issued the Ex.P.1 cheque in favour of the complainant towards the discharge of debt as per Ex.P.6. On perusal of said document it nowhere gives any impression to the court that the said document is a blank signed document and subsequently created by the complainant. Further, there is also no material on record whatsoever to show that the complainant has criminal antecedent against him so that he has the habit of receiving the cheques of others and misusing the same. Apart from that why this fact has not been stated by the accused in the reply notice is without any explanation. In the reply notice the accused not at all claimed about the borrowing of Rs.1,50,000/- from him in the year 2008 as well as issuance of blank signed paper to the complainant. In the absence of any such case, the case of the 12 C.C.No.55171-2014 complainant has to be accepted that the Ex.P.6 has been issued by the accused in favour of the complainant for having been received the amount of Rs.5,00,000/- from the complainant as well as issuance of said documents in favour of the complainant towards the discharge of debt.
20. The accused also claimed that he has borrowed a sum of Rs.1,50,000/- from the complainant in the year 2008 and he has repaid the same through cheque dtd:19.09.2008. It is true that the complainant has produced his statement at Ex.D.5. The Ex.D.5 nowhere discloses that Rs.1,50,000/- has been encashed by the complainant. Of course it has been mentioned in the document that the cheque has been encashed by one Gangadhar but who is the said Gangadhar is without any explanation. If at all the claim of the accused that he has only borrowed Rs.1,50,000/- and he has repaid the same to the complainant through cheque, certainly he would have put the said case to the mouth of the complainant / P.W.1 during his cross-examination. The entire cross-examination of P.W.1 nowhere discloses the alleged transaction of Rs.1,50,000/- of the year 2008 as claimed by the accused during his evidence. In the absence of any such case, the case of the accused that he has repaid the money to the complainant through cheque cannot be accepted.
21. The accused has taken 2 contradictory defenses in the trial. During the cross-examination of P.W.1 the accused nowhere claimed that he has borrowed a sum of Rs.1,50,000/- from the complainant in 13 C.C.No.55171-2014 the year 2008. Even in the reply notice the accused nowhere claimed that he has received Rs.1,50,000/- from the complainant in the year 2008 and repaid the same through cheque. The accused either in his reply or during the cross-examination of P.W.1 not made out any case to show that he has issued or handed over signed blank paper to the complainant. In the absence of any such case it has to be accepted that this accused voluntarily executed the letter of acknowledgment at Ex.P.6 as on 20.02.2013 as claimed by the complainant. Admittedly, the complainant got marked the Ex.P.6 document as on 06.05.2017, thereafter the accused cross-examined in detail. Omission to claim during the cross-examination that the complainant has received the blank signed paper in the year 2008 from the accused, it has to be accepted that the complainant has not at all obtained any blank signed paper from the accused. Therefore, it is clear that the complainant has proved the execution of Ex.P.6 document. When the complainant proved the execution of Ex.P.6 letter of acknowledgment, then it has to be accepted that the accused has borrowed Rs.5,00,000/- from the complainant as on 03.11.2012 for the purpose of completing the construction of his house and towards the discharge of said debt the accused has issued the Ex.P.1 cheque.
22. The complainant totally disputed the existence of a person namely Manjunatha claimed by the accused. Hence, burden shifts on the accused to prove that there is a person named as Manjunatha to whom he has provided the alleged loan from the complainant.
14 C.C.No.55171-2014Absolutely there is no material whatsoever on record to show that the person claimed by the accused namely Manjunatha is in existence. Of course the accused claimed that said Manjunatha is died but it is not the case of the accused that the said Manjunatha died without any surviving legal heirs. The particulars of the said Manjunath is also not properly explained. Admittedly the accused claimed that he has provided the loan to the said Manjunatha from the complainant. If it were so, this accused is closely associated with the said Manjunatha and he would have chosen to examine any surviving legal heirs or close relative of said Manjunatha to substantiate his defense as well as to prove that Ex.D.6 and 7 cheques were belongs to said Manjunatha. Even all these facts also creates shadow on the defense of the accused.
23. As already stated earlier, when the issuance of the cheque and signature is admitted then the court has to draw presumption under Sec.118 and 139 of N.I.Act that the cheque has been issued towards the discharge of legally enforceable debt unless and until contrary has been proved by the accused. The material on record clearly discloses that the accused has taken a contradictory defense and also failed to examine any person relating to alleged Manjunath. Hence, it has to be accepted that the accused failed to make out a probable defense. When the accused failed to make out a probable defense, the court is left with no option than to accept the complaint case. In view of these facts the decisions relied by the accused reported in; AIR 2011 (NOC) 75 (KAR), 2010 (1) DCR 773, 2011 (1) DCR 3, LAWS 15 C.C.No.55171-2014 (BOM) 2010 3 54 High Court of Bombay (at Nagapur), Cri.Appl.No.627/2006 are certainly not applicable to the facts of this case. Therefore, for the aforesaid reasons this court is of the humble opinion that the complainant proved his case beyond reasonable doubt.
24. In this case, the complainant has claimed compensation. As per Section 357 of Criminal Procedure Code and as per the ruling reported in; 2001 Cri.L.J. 950 (SC), (Pankajbai Nagibai Patel V/s State of Gujarath), the court can award compensation and there were no limits for the same. As such, the court has to consider how much compensation could be awarded in this case. As per Section 80 of Negotiable Instruments Act, the interest at 18% P.A. can be granted when there is no agreed rate of interest. As per the proved facts of the case, the accused has issued cheque towards the legally enforceable debt, the accused has issued a cheque dated 20.02.2013 as per Ex.P.1 and thus, the accused has to pay interest on the cheque amount from the date of cheque and so, the accused has to pay interest for about 5 years 8 months till this date. If the interest is calculated at 18% P.A. to the cheque amount for the above period, certainly, the complainant is entitled for the suitable compensation to the cheque amount as per Section 80 of Negotiable Instruments Act. The cheques amount in this case is Rs.5,00,000/- and if the interest is calculated for 38 months, the accused shall pay the interest to the complainant at 18% P.A. that amounts to Rs.5,10,000/-. The case is pending nearly about 5 years 8 months 16 C.C.No.55171-2014 as such if the cost of Rs.2,000/- is added to the compensation, it will comes to Rs.10,12,000/- (Cheque amount is Rs.5,00,000/-, interest is Rs.5,10,000/- and cost Rs.2,000/-). Hence, this court is of the humble opinion that in all the complainant is entitled for compensation amount of Rs.10,12,000/-. Further as per the ruling reported in 2000 Cri.L.J 1793(b) SC - (State of Karnataka V/s Krishnappa) wherein it is held that while imposing sentence, the courts are expected to properly operate sentence system, it should be impose such sentence for code offence which serve as detention of commission of like offences by others - Socio economic status, prestige, race, caste or creed of accused or victim are irrelevant considerations in sentencing policy. Hence, in this case also, if the accused is punished with simple imprisonment for one year and pay compensation to the complainant. Anyhow the object of Sec.138 of N.I.Act is to have accountability in the business transaction and the intention of the complainant is only to get his money back. The complainant certainly not interested in sentencing the accused for any imprisonment. Further, the offence is punishable with imprisonment or fine. Anyhow the object of Sec.138 of N.I.Act is to have accountability in the business transaction and the intention of the complainant is only to get his money back. The complainant certainly not interested in sentencing the accused for any imprisonment. Further, the offence is punishable with imprisonment or fine. Hence, in this case after awarding the compensation certainly imposing of fine to the accused is sufficient sentence.
17 C.C.No.55171-201425. As per the ruling reported in 2002 Cri.L.L. 1003, SC (Suginthi Suresh Kumar V/s Jagadishan). Where in it is held at page no.1005, at para 5 that:
"In the said decision this court reminded all concerned that it is well to remember the emphasis laid on the need for making liberal use of Section 357(3) of the Code. This was observed by reference to a decisions of this Court in 1988 (4) SCC 551 Hari Singh v. Sukhbir Singh. In the said decision this court held as follows:
"The quantum of compensation may be determined by taking into account the nature of crime, the justness of the claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also very depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by installments, may also be given. The court may enforce the order by imposing sentence in default."
26. In view of the aforesaid precedent of Hon'ble Apex Court, if the accused is ordered to further imprisonment of a year in default to pay the compensation will make the ends of justice. Accordingly I answer the above point in "Affirmative". In the result, following;
18 C.C.No.55171-2014ORDER Acting under Section 255(2) of Cr.P.C., the accused is hereby convicted for the offence punishable under Sec.138 of N.I.Act and sentenced the accused to pay a fine of Rs.5,000/-. In default to pay the fine amount the accused shall undergo simple imprisonment for 3 months.
Acting under Section 357 of Cr.P.C., the compensation is awarded and the accused shall pay compensation of Rs.10,12,000/- to the complainant. In default to pay compensation, the accused shall undergo simple imprisonment of a period of 1 year.
Office to furnish free copy of this judgment to the accused forthwith.
(Dictated to the Stenographer, transcript thereof is corrected and then pronounced by me in the open court on this the 3rd day of November, 2018) (PADMA PRASAD), LVII ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Sri.K.Gangadhar
2. Documents marked on behalf of complainant:
Ex.P.1 : Original Cheque
Ex.P.1(a) : Signature of the accused
19 C.C.No.55171-2014
Ex.P.2 : Bank return memo
Ex.P.3 : O/c of the legal notice
Ex.P.4 : Postal receipt
Ex.P.5 : Postal Acknowledgment
Ex.P.6 : Letter of acknowledgment dtd 20.02.2013
Ex.P.7 : Reply dtd: 17.04.2013
3. Witnesses examined on behalf of Accused:
D.W.1 : Sri.N.Manjunath
4. Documents marked on behalf of Accused:
Ex.D.1 : Copy of the reply notice
Ex.D.2 : Postal receipt
Ex.D.3 : Postal acknowledgment
Ex.D.4 : Copy of Absolute sale deed
Ex.D.5 : Bank Statement
Ex.D.6 & : 2 cheques
Ex.D.7
Ex.D.8 : Death Certificate
Ex.D.9 : Bank Statement
(PADMA PRASAD)
LVII ACMM, BENGALURU.