Bangalore District Court
Sri. Chikkanna vs Sri. N. Narasegowda on 23 March, 2015
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITON
MAGISTRATE, BANGALORE CITY
Dated this the 23rd day of March 2015
PRESENT: SRI. NAGARAJEGOWDA.D, B.Com., LL.B.,
XXII Addl.C.M.M., Bangalore City.
JUDGMENT U/S 355 OF Cr.P.C.
Case No. : C.C No. 12452/2012
Complainant : Sri. Chikkanna,
S/o. Late Mariyappa,
Aged about 57 years,
R/at;No. 315, 6th Main,
Meenakshinagara,
Kamakshipalya,
Bangalore-560079.
(By Sri. Gangaiah., Adv.)
Accused : Sri. N. Narasegowda,
Driver,
C/o. Smt. Parvathamma,
R/at. No. 57, Ist Main,
13th cross, MTS Layout,
80feetroad,Opp:Garden
School, Kengeri Sattellite
town, Bangalore. 60.
(By Sri. S.Manjunatha, Adv.)
Date of Institution : 30/03/2012
Offence complained of : U/s 138 of N.I.Act.
Plea of the accused : Pleaded not guilty.
Final Order : Accused is convicted.
Date of Order : 23.03.2015.
2 C.C.No.12452/2012
The complainant filed the private complaint u/s 200 of
Cr.P.C alleging that, the accused person has committed an offence
punishable u/s 138 of N.I.Act.
2. The brief facts of the complainant case is as follows:-
As per Ex.P11 complaint, the complainant contended that the
accused is well known to this complainant for the past several
years. That on 3/11/2009 the accused took hand loan of Rs.
3,00,000/- from the complainant for his family necessities with an
assurance to repay the same within 2 years. After the lapse of
stipulated period of 2 years in the Ist week of December 2011,
when the complainant demanded the accused for repayment of the
said hand loan, at that time towards clearance of the said hand
loan, the accused issued cheque bearing No. 357155, dt:
10/12/2011, drawn on Central Bank of India, Kamalanagara
Extension branch, Bangalore-79, for a sum of Rs.3,00,000/- in
favour of the complainant and assured that the same will be
honoured on its presentation. Believing the promise and
assurance and also as per the instructions of accused, the
complainant was presented the said cheque on the said date
3 C.C.No.12452/2012
through his Banker 'The Karnataka State Co-operative Apex Bank
Account at Janatha seva Co-operative Bank, Moodalapalya
Branch, Bangalore, but the said cheque is bounced back and
returned unpaid with endorsement to that effect 'Funds
Insufficient' endorsement dt: 17/1/2012. same was intimated to
the complainant on 19/1/2012 by Valsala Credit Co-operative
Society Ltd., Basaveshwar nagar, Bangalore., Immediately the
complainant informed the same to the accused about dishonour of
cheque, at that time the accused requested the complainant to re-
present the said cheque in the second week of February 2012 as
per request of accused, the complainant presented said cheque for
encashment through Shamrao vital Co-operative Bank Ltd.,
Basaveshwar nagar branch, Bangalore. But once again the said
cheque is returned un paid with endorsement 'Account closed'
endorsement dt: 22/2/2012. Immediately the complainant
approached the accused and appraised for dishonour of cheque
for second time and also demanded the accused to pay the amount
covered under the said cheque and accused had drag on the same
on one pretext or other. The complainant left with no other
alternative on 7/3/2012 issued legal notice through his counsel to
both addresses of the accused by RPAD and same have been duly
served on the accused on 8/3/2012. But so far the accused
4 C.C.No.12452/2012
neither paid the amount covered under the cheque nor replied to
the notice, as such the accused has committed an offence
punishable under Sec. 138 of N.I. Act and punish the accused in
accordance with law by awarding compensation under Sec. 357 of
Cr.P.C. to the complainant in the ends of justice and equity.
3. After presenting this case, this court has taken cognizance
of the offence and after recording the sworn statement of the
complainant's side, this court registered the criminal case against
the accused alleging that, he has committed an offence punishable
U/s 138 of N.I.Act. Summons issued to the accused. The same is
served upon the accused. The accused appeared through his
counsel, enlarged on bail and he denied the entire case of the
complainant at the time of recording his plea of accusation and
case to be tried.
4. In support of the case of the complainant, the
complainant adduced his oral evidence as PW.1 and got marked
Ex.P1 to P12 and this PW1 has been fully cross-examined by the
accused counsel and thus, complainant closed his side evidence.
5 C.C.No.12452/2012
5. Thereafter, the case was posted for recording statement of
accused person under Sec. 313 Cr.P.C, in which, the accused
totally denied the entire case of the complainant and in support of
their denial case, he adduced his oral evidence as DW-1 on oath
and at the time of cross-examination of PW1 got marked Ex.D1
and at the time of chief examination of DW1, got marked
documents at Ex.D2 to D14 and this DW-1 has been fully cross-
examined by the complainant counsel and thus, accused closed
his side evidence.
6. I have heard the arguments of the complainant and accused
counsels on merits.
7. In support of contention of accused, the accused counsel
relied on the following decisions reported in:-
1) 2008 (1) DCR 151.
2) 2012(3) KCCR 2057.
3) 2014 AIR SCW 2158.
Accordingly, accused counsel prays for acquitting the accused
in accordance with law.
6 C.C.No.12452/2012
8. On the basis of the aforesaid facts and circumstances,
the following points arise for my consideration:
1) Whether the complainant proves that, beyond all
reasonable doubt for payment of loan advanced
by the complainant, the accused issued a
cheque bearing No. 357155, dt: 10/12/2011,
drawn on Central Bank of India, Kamalanagara
Extension branch, Bangalore-79, for a sum of
Rs.3,00,000/-, in favour of the complainant the
same is dishonoured due to 'Insufficient funds'
and 'Account closed' and in spite of issuance of
legal notice, the accused did not comply the
notice and thus, he has committed an offence
punishable u/s 138 of N.I.Act?
2) What Order?
9. My answer to the above points are as follows:
1) In the Affirmative.
2) As per final Order,
For the following:
REASONS
10. POINT NO.1: In order to show that complainant had
paid an amount of Rs. 3,00,000/- to accused, in support of his
contention, the complainant adduced his oral evidence as PW-1,
filed by way of affidavit, in which, he reiterated the contents of
complaint and got marked Ex. P1 is the cheque alleged to be
issued by the accused and identified the signature of the accused
7 C.C.No.12452/2012
as Ex.P1.a. This issuance of the cheque in favour of the
complainant has been disputed by the accused. Further got
marked Ex.P-2, P-3 and P-4 are the endorsements issued by the
Banker, in which, stating that Ex.P1 cheque is dishonoured due to
'Insufficient Funds' at the early stage and later it was returned
with an endorsement 'Account closed'. Ex.P-5 is the copy of legal
notice, this legal notice has been sent to accused as per Ex.P6 and
P7 RPAD postal receipts, said notice was duly served on the
accused as per Ex.P8 and Ex.P9 are the postal acknowledgements.
After receipt of legal notice, the accused through his counsel sent
reply as per Ex.P10. In his reply he denied the entire contention
of the complainant and he contended that this accused is one of
the member of the Valsala Credit Co-operative Ltd., and this
complainant assured this accused that he obtain loan from the
said society. Accordingly on 8/2/2001, he advanced loan amount
of Rs. 50,000/- and on 28/5/2009 Rs. 20,000/- and at the time
of advancing the said loan for the security purpose the accused
has issued cheque bearing No. 357155, the said cheque issued
in the year 2001, except the signature, the contents are not filled
by this accused. This accused has not committed any offence, only
in order to give trouble to this accused, the complainant filed this
case etc., Ex.P11 is the complaint is under dispute. Further in
8 C.C.No.12452/2012
order to show the amount has withdrawn from complainant
Valsala Souharda credit Co-operative society got marked Ex.P12 is
the Statement of account of said credit cooperative Bank, in which
Ex.P12.a. on 3/11/2009 cash of Rs. 4 lakhs was withdrawn by
this complainant and out of the said 4 lakhs the complainant
contended that he paid Rs. 3 lakhs to this accused as hand loan.
These things are clearly establish the case of complainant prima-
facie the complainant had paid said amount by way of cash to the
accused, but the accused taken untenable contention.
11. In support of denial case of accused, the accused lead
his oral evidence as DW1, in which, he admitted that he knows
this complainant, both of them are taxi drivers in the Vathsala
travels from year 2000 to 2012 and thereafterwards in the year
2000 the complainant and one Dinesh started Valsala Credit
Cooperative Ltd., and this accused is taken as shareholder of the
said society. In the year 2001, this accused obtained hand loan of
Rs. 50,000/- and at that time, he issued Ex.P1 cheque as security,
except signature other contents are blank and at that time this
complainant was Director of said society and he repaid said loan
amount in the year 2005. In the year 2006, he once again took
loan of Rs. 20,000/- and he repaid said amount in the year 2007
9 C.C.No.12452/2012
and after repayment of said loan amount, he asked the
complainant to return his blank signed security cheque, but the
complainant told that said cheque was destroyed. Thereafterward
in the year 2009, he obtained loan of Rs. 20,000/- once again at
that time, they asked for security. Accordingly, he issued a cheque
bearing No. 587711, except signature, it was given in blank and he
repaid said amount in the year 2010 and once again in the year
2011, he obtained loan amount of Rs. 20,000/- and for security to
said loan amount, he issued cheque bearing No. 587712, the said
loan is still pending. Thereafterards in the year 2012, he received
notice from the complainant for dishonour of Ex.P1 cheque, for
that he given his reply as per Ex.P10 and also he contacted the
manager of said Valsala Co-operative society by name K.C.
Balakrishna was told that the cheque given in the year 2001 has
been destroyed. Thereafterwards, in the year 2013, he received
one more notice from one Manjunatha with respect of cheque
bearing No. 587711 and he contacted the Manager of the society
and the manager of society has issued an endorsement stating that
they have returned the said cheques and he issued reply to the
said notice. Thereafterwards in the year 2013 he went to Kengeri
police station to lodge complaint against the complainant, but the
10 C.C.No.12452/2012
police have not received the said complaint. Hence he sent the
complaint by post.
12. To substantiate the case of accused contention, at the
time of cross-examination PW1, the accused counsel got marked
Ex.D1 is the notarised copy of personal loan application stands in
the name of accused, as per this document the accused has
applied for loan from Valsala Souharda credit Co-operative Ltd.,
amounting to Rs. 15,000/- loan in the year 2007. Further got
marked Ex.D2 is the pass book of said bank. Ex.D3 is the letter
issued by the said Valsala Souharda credit Co-operative Ltd., on
28/3/2012 in which they have mentioned whatever the cheques
issued by accused, except the cheque mentioned in the letter,
there is no cheque as per Ex.P1, further got marked Ex.D4 is the
copy of letter dt: 18/7/2013 issued by the accused to said Valsala
Souharda credit Co-operative Ltd, he sought regarding details of
cheque number with their bank by mentioning the present cheque
at Ex.P1 also. Ex.D5 is the RPAD receipt. Ex.D6 is the letter
issued by said Valsala Souharda credit Co-operative Ltd., on
20/7/2013 to this accused regarding the information sought by
accused with their Bank. They have clearly mentioned the cheque
received by the accused as security is other than Ex.P1 cheque.
11 C.C.No.12452/2012
Ex.D7 is the copy of legal notice issued by one K.C.Manjunatha to
this accused regarding bouncing of cheque bearing No. 587711.
Ex.D8 is reply notice issued to Ex.D7 notice, in which, he similarly
contended that the alleged cheque i.e., present Ex.P1 cheque was
issued in the year 2001, at the time of obtaining loan from the
society as security. Ex.D9 is the copy of complaint given by the
accused to Kengeri police station and this complaint does not
contain the date on which he lodged complaint and there is no seal
of police station. But as per case of accused, the police have not
received the written complaint, hence he sent the complaint by way
of post. For that got marked Ex.D10 RPAD postal receipt. Ex.D11
is the down load copy of the postal department to show that said
complaint is duly served on police station. Ex.D12 is Private
complaint lodged by this accused against present complainant
herein and also one K.C.Manjunath and Balakrishna for misusing
of his cheque. The said private complaint is lodged on 11/12/2014
i.e., subsequent to the transaction. Ex.D13 is the letter issued by
Valsala Souharda credit Co-operative Ltd to this court stating that
as per Sec. 91 of Cr.P.C. application filed, they have given details of
cheques and loan amount borrowed from them by this accused
and there is no mentioning of Ex.P1 cheque is concerned, except 2
other cheques. Ex.D14 is the letter of undertaking given by
12 C.C.No.12452/2012
accused to Valsala Souharda credit Co-operative Ltd., saying that
they obtained loan amount of Rs. 50,000/-. This DW1 has been
cross-examined by complainant counsel, in the cross-examination
he admitted that documentary evidence produced by accused are
not pertaining to Ex.P1 cheque, but he admitted that Ex.P1 cheque
and signature found on cheque is belongs to him. But he
voluntarily stated that said cheque issued as security to the bank
in the year 2001, but in order to show in the year 2001 he issued
the cheque in question has not produced any documentary
evidence, but he has taken untenable contention that rest of the
cheques are belongs to accused mis-used by the Manjunath and
another oneetc., but not to this present complainant in this case.
In support of denial of case of complainant, the accused counsel
cross-examined PW1, in the cross-examination, he trying to elicit
that the amount given to accused, he has drawn from the Bank for
that he has not produced any documentary evidence etc., But at
later stage, he produced Bank statement to show that on
3/11/2009, he has drawn amount of Rs. 4 lakhs from his Bank
account Valsala Souharda credit Co-operative Ltd., out of it, he
paid Rs. 3 lakhs to accused by way of cash as per Ex.P12 & 12(a).
Except denial of case of complainant, the accused failed to give
rebuttal evidence to the case of complainant.
13 C.C.No.12452/2012
13. In support of case of accused, the accused counsel relied
on the following decisions reported in;-
1) 2008 (1) DCR 151. Between K. Prakashan .Vs. P.K.
Surendran. where in it is held:
(a) Negotiable Instruments Act (26 of 1881)S. 138- Indian
Evidence Act (1872-Sec. 3- Complaint for dishonour of cheque-
Accused not come into the witness box-Effect of- Held- Having
regard to the definition of terms 'Proved" and 'Disproved" as
contained in Sec. 3 of Evidence Act as also the nature of said
burden upon prosecution vis-à-vis on accused it is not necessary
that accused must step into the witness box to discharge the
burden of proof in terms of provision under Sec. 138 of NI Act.
2) 2012(3) KCCR 2057. 2012(3) KCCR 2057 between
Veerayya vs. G.K.Madivalar, wherein it is held:
Negotiable Instrument Act (26 of 1881),S. 138 Offence under
- Revision against conviction and sentence under Sec. 397 and
401 of Cr.P.C. Complainant case that, he had lent Rs.2,00,000/- to
accused and that the cheque was issued in discharge of debt-
Except cheque no other document-Complainant running a
Tailoring shop on foot path with a tin shed - At no point of time
14 C.C.No.12452/2012
had a bank balance of more than Rs.50,000/- No proof as to other
source of income form land-No evidence that he had a bank
balance of Rs.2 lakhs on the day he has alleged to have advanced
the loan- His Civil suit was dismissed as not proved - Accused's
contention that cheque given to his counsel was misused by
complainant and his advocate."
3) 2014 AIR SCW 2158. 1) 2014 AIR SCW 2158, between John
K. Abraham .Vs. Simon C. Abraham and another, where in it is
held:
Negotiable Instruments Act (26 of 1881) Ss. 138,118, 139-
Dishonour of cheque- Complainant alleging that accused borrowed
a sum of Rs. 1,50,000/- from him and issued a cheque for said
sum which was dis-honoured- For drawing presumption under S.
118 R/w S. 139 burden is heavily upon complainant - complainant
not sure as to who wrote cheque nor aware as to when the where
existing transaction took place for which cheque was issued by
accused- Defects in evidence of complainant as noted by trial court
brushed aside by High Court without assigning any valid reason-
Conviction of accused therefore, not proper.
15 C.C.No.12452/2012
Accordingly, accused counsel prays for acquitting the accused
in accordance with law.
14. On the basis of the aforesaid decisions coupled with
defence taken by accused, which are not squarely applicable to the
case of accused contention and the accused has not given rebuttal
evidence to the case of complainant. On the other hand the
complainant has proved the alleged guilt of the accused beyond all
reasonable doubt and for repayment of loan amount borrowed from
the complainant, the accused has issued Ex.P1 cheque in question
same is dishonoured due to 'Insufficient Funds' and 'Account
closed' and in spite of issuance of legal notice, the said notice duly
served on accused, the accused not at all complied the notice, he
given reply to notice, without giving any corroborative evidence.
Hence, accused is not approached this court with clean hands and
he failed to prove the defence taken by him by producing cogent
and convincing evidence before this court. In the circumstances,
the complainant has proved the guilt of the accused beyond all
reasonable doubt. The accused is liable for conviction in
accordance with law. The complainant has not claimed any
interest on the cheque amount. Hence, the complainant is entitled
compensation to the extent of cheque amount along with simple
16 C.C.No.12452/2012
interest at the rate of 6% P.A. from the date of cheque till
realization of the said sum. In the circumstances. I answer point
No.1 in Affirmative.
15. POINT NO.2: For the above said reasons, I proceed to
pass the following:
ORDER
Acting u/s 255(2) of Cr.P.C., the accused is convicted for the offence punishable u/s 138 of N.I.Act and sentenced to pay fine of Rs. 3,05,000/- (Three Lakhs and Five thousand only).
If fine is realized, pay a sum of Rs. 3,00,000/- (Three lakhs only) to the complainant as compensation, along with interest at the rate of 6 % P.A. from the date of cheque till the realization of the entire cheque amount to the complainant. The same shall be paid to him within the period of 30 days.
The rest of the amount Rs. 5,000/- (Five thousand only) is ordered to be adjusted to the State Exchequer.
In default of payment of this compensation amount, the accused shall undergo simple imprisonment for One (1) year.
17 C.C.No.12452/2012Office is directed to furnish the copy of this Judgment at free of cost to the accused.
(Dictated to the judgment writer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 23rd day of March 2015) (NAGARAJEGOWDA.D) XXII Addl. Chief Metropolitan Magistrate, Bangalore City.
*** ANNEXURE Witnesses examined for the Complainant:
PW.1 Sri. Chikkanna.
Witness examined for the accused:
DW.1 Sri. Narasegowda.
List of Documents marked for the Complainant:
Ex.P1. Cheque Ex.P1(a) Signature of accused Ex.P2 to P4. 3 Endorsements.
Ex.P5 Legal notice.
Ex.P6 & P7. RPAD Receipts.
Ex.P8 & P9. Postal Acks.
Ex.P10. Reply notice. Ex.P11. Complaint.
Ex.P12. Bank statement.18 C.C.No.12452/2012
List of Documents marked for the accused: Ex.D1. Xerox copy of personal loan application, Ex.D2. The pass book of said bank. Ex.D3. The letter issued by the said Valsala Souharda credit Co-operative Ltd., Ex.D4. The copy of letter dt: 18/7/2013. Ex.D5. The RPAD receipt. Ex.D6. The letter dt: 20/7/2013. Ex.D7. The copy of legal notice. Ex.D8. The reply notice. Ex.D9. The copy of complaint. Ex.D10. RPAD postal receipt. Ex.D11. The down load copy of complaint. Ex.D12. Private complaint dt:11/12/2014 Ex.D13. The letter issued by Valsala Souharda credit Co-operative Ltd to this court. Ex.D14. The letter of undertaking.
XXII ACMM, Bangalore.19 C.C.No.12452/2012
20.03.2015 Compt.
Accd.
For Judgment Judgment pronounced in the open court (vide separate order with the following operative portion ORDER XXII ACMM, Bangalore.