Bangalore District Court
Manjunath N L vs Manuunath on 5 February, 2025
KABC0C0272662019
IN THE COURT OF XXXIII ADDL. CHIEF JUDICIAL
MAGISTRATE, MAYO HALL UNIT, BENGALURU
-: PRESENT:-
Sri P.S. Santhosh Kumar, M.Com., LL.M.,
XXXIII ADDL.CHIEF JUDICIAL MAGISTRATE,
BENGALURU.
DATED THIS THE 5TH DAY OF FEBRUARY 2025
C.C.NO.57764/2019
COMPLAINANT : Sri. Manjunath N.L.,
S/o Lokanath,
Aged about 34 years,
R/at 42/2,
Mahika Enterprises,
Krishna Theater,
Basavanapura,
Bangalore-560036,
Mob:9742224448.
Vs.
ACCUSED : Sri. Manjunath,
S/o Konappa Reddy. B.,
Aged about 35 years,
R/at R/at Poolaguntapalli
Village,
Marasanapalli Post,
Srinivasapura Taluk,
Kolar District-563161.
Mob:7996839591,
9900692490.
2
C.C.NO.57764/2019
J U D G M E N T
The complainant has filed this private complaint U/s.200 of Cr.P.C., against the accused for the offence punishable U/s 138 of the Negotiable Instruments Act.
2. The factual matrix of the case are as follows:-
The accused and the complainant known to each other for the past many years. In August 2016, the accused wanted to start a Mineral Water Plant and approached the complainant for financial help of Rs.10,00,000/-. Believing his words, the complainant gave him Rs.10,00,000/- on many occasions. After receiving the loan, the accused assured that he would repay it within six months. After the stipulated time, when the complainant approached the accused for repayment, he kept on giving one or the other reasons for repayment of the loan. After many requests and demands, the accused entered into an agreement of repayment of the loan amount on 09.01.2019 and during that time, the accused issued 3 C.C.NO.57764/2019 cheque bearing No.201410 dated 12.03.2019 for Rs.10,00,000/- drawn on State Bank of India, Gownipalli branch, Royalpad Hobli, Srinivaspura Taluk, in favour of the complainant. The complainant presented the said cheque for encashment through his banker State Bank of India, Akshaya Nagar branch, Bangalore. But, it came to be dishonored for the reason "Funds Insufficient" vide memo dated 14.03.2019. Thereafter, the complainant informed the said fact to the accused, but he gave evasive answers.
Thereafter, the complainant got issued legal notice to the accused on 05.04.2019 calling upon him to pay the cheque amount. Inspite of service of said notice, the accused did not pay the cheque amount. Hence, the accused has committed the offence punishable U/s.138 of Negotiable Instruments Act.
3. Based on the complaint, the sworn statement affidavit, the documents etc., the court took cognizance of an offence punishable under Sec.138 of the Negotiable Instruments Act by following the 4 C.C.NO.57764/2019 guidelines of Apex Court issued in Indian Bank Association case and ordered to register a criminal case against the accused for the offence punishable U/ s.138 of Negotiable Instruments Act.
4. In pursuance of summons, the accused appeared through his counsel, he was enlarged on court bail, further, substance of plea was recorded, the accused pleaded not guilty and he claimed to be tried. In order to prove his case, the complainant was examined as PW1 and got marked Ex.P1 to P7. Upon closure of complainant's side evidence, the court examined the accused U/s 313 of Cr.P.C, the accused denied the incriminating materials appearing against him and the accused got examined himself as DW1 and got marked no documents and closed his side.
5. Heard both the sides. I have gone through a following decisions relied upon by the learned counsel for the complainant.
5C.C.NO.57764/2019
1. AIR 2019 SC 1876, between Rohitbhai Jivanlal Patel Vs. State of Gujrat and Another of the Hon'ble Supreme Court of India.
2. AIR 2020 SC 945, between APS Forex Services Pvt. Ltd., Vs. Shakti International Fashion Linkers and Others of the Hon'ble Supreme Court of India.
3. Crl.A.No.1191/2011, between Sri. K.A. Ananda Vs. Sri. N. Gangadhara of the Hon'ble High Court Karnataka.
4. AIR 2000 Karnataka 169, between Maregowda and etc. Vs. Thippamma and Others of the Hon'ble High Court Karnataka.
5. (2021) 5 SCC 283, between Kalamani Tex and Another Vs. P.Balasubramanian of the Hon'ble Supreme Court of India.
6. AIR 2023 SC 5018, between Rajesh Jain Vs. V. Ajay Singh of the Hon'ble Supreme Court of India.
7. 2022 (3) KCCR SN 235, between Narasimha Vs. State of Karnataka of the Hon'ble High Court Karnataka.
8. 2021 (2) KCCR SN 119 (DB), between Seetharama Gowda A Vs. Isubu Kunhammade of the Hon'ble High Court Karnataka.
9. 2021 (2) KCCR SN 136, between Muralidar Rao Vs. P. Nagesh Rao of the Hon'ble High Court Karnataka.
10. 2007 (5) Supreme (SC) 277, between C.C. Alavi Haji Vs. Palapetty Muhammed & Another of the Hon'ble Supreme Court of India.
11. 2019 (1) KCCR 750, between Sri. Yogesh Poojari Vs. Sri. K. Shankara Bhat of the Hon'ble High Court Karnataka.
6C.C.NO.57764/2019
12. (2009) 2 Supreme 513, between Kumar Exports Vs. Sharma Carpets of the Hon'ble Supreme Court of India.
I have gone through a following decisions relied upon by the counsel for the complainant.
1. 2023 (4) AKR 627: AIR Online 2023 KAR 1447, between S.P. Rajkumar Vs. M. J. Prabhakar of the Hon'ble High Court of Karnataka.
2. 2024 (1) AKR 99: AIR Online 2023 KAR 1744, between Khaleel Khan P. Vs. Shankarppa of the Hon'ble High Court of Karnataka.
3. 2023 (4) AKR 638: AIR Online 2023 KAR 1500, between Charles Harry Vs. Prveen Jain of the Hon'ble High Court of Karnataka.
4. (2019) 5 SCC 418, between Basalingappa Vs. Mudibasappa of the Hon'ble Supreme Court of India.
5. AIR 1979 SC 1408, between Suraj Mal Vs. The State (Delhi Administration) of the Hon'ble Supreme Court of India.
6. (2014) 2 SCC 236, between Jhon K. Abraham Vs. Simon C. Abraham and Another of the Hon'ble Supreme Court of India.
7. (2015) 1 SCC 99, between K. Subramani Vs. K. Damodara Naidu of the Hon'ble Supreme Court of India.
8. 2009 Crl.L.J. 3777, between Sanjay Mishra Vs. Ms. Kanishka Kapoor @ Nikki and Another of the Hon'ble High Court of Bombay.
9. 2012 (2) DCR 741, between Baiku G. Nath, Laiju Nivas Vs. Girija Krishna Kumar of the Hon'ble High Court of Kerala.
7C.C.NO.57764/2019 Perused the materials available on record.
6. The following points would arise for my consideration:-
1. Whether the complainant proves beyond all reasonable doubts that the accused has committed an o/p/u/s 138 of the Negotiable Instruments Act?
2. What Order?
7. My findings on the above points are as follows;
Point No1: In the Affirmative, Point No.2: As per final order, for the following, R E A S O N S
8. POINT No.1: I have gone through the materials available on record. The case of the complainant is that the accused had availed loan of Rs.10,00,000/- from the complainant on various dates assuring the 8 C.C.NO.57764/2019 complainant that he would return it within six months and the complainant when approached the accused for the repayment of it after lapse of the said period, the accused entered into an agreement dated 09.01.2019 towards repayment for the loan in favour of the complainant and issued the cheques in question and on their presentation, said cheques came to the dishonored for the reason "funds insufficient" and thereafter, though the complainant got issued legal notice to the accused intimating the said fact and calling upon him to pay the amount of the cheques in question, the accused did not pay the cheques amount and hence, the accused has committed the alleged punishable U/Sec.138 of Negotiable Instruments Act.
9. The complainant, who has been examined as PW.1, has reiterated the facts stated in his complaint in his chief examination also. In addition to it, he has produced 7 documents which are marked as Ex.P1 to
7. 9 C.C.NO.57764/2019
10. Ex.P1 is the cheque in question dated No.201410 drawn on State Bank of India, Gownipalli branch, Royalpad Hobli, Srinivaspura Taluk, for Rs.10,00,000/- and Ex.P2 is the bank endorsement dated 14.03.2019 which goes to show that the cheque in question came to be returned with a shara "Funds Insufficient". Ex.P3 is the legal notice dated 05.04.2019 said to have been issued by the complainant to the accused intimating the fact of dishonour of the cheque in question and calling upon him to pay the cheque amount. Ex.P4 is the postal receipt and Ex.P5 is the postal acknowledgment which goes to that the legal notice sent to the accused has been duly served. Ex.P6 is the reply notice said to have been given by the accused to the complainant in response to legal notice. Ex.P7 is the agreement dated 09.01.2019 said to have been executed by the accused in favour of the complainant wherein the accused agreed to have borrowed the amount of Rs.10,00,000/- on number of occasions in cash and 10 C.C.NO.57764/2019 towards repayment of the same, he has issued the cheque in question in favour of the complainant.
11. It is relevant to mention here that the accused though issued reply notice to the legal notice issued by the complainant, in his chief-examination DW1 has contended that the legal notice has not been served on him. The accused has not disputed the fact that the cheque in question pertians to his account and the signature appearing in on belongs to him. Such being the case, when once the accused accepts and admits the cheque in question pertains to his account and the singature of the payer on it pertains to him, the initial presumption as contemplated U/S 139 of the N.I Act has to be raised by the court in favour of the complainant, however, the accused is entitled to rebut the said presumptions as held in the case of Sri Rangappa Vs. Sri Mohan by the Hon'ble Supreme Court reported in AIR 2010 SC 1898.
11C.C.NO.57764/2019
12. Once the presumption U/S 139 and 118 of the Negotiable Instruments Act is raised, it is for the accused to rebut the said presumption by adducing cogent evidence in support of his defence. It is relevant to mention here that the specific defence of the accused against the claim made by the complainant is that as he was in need of funds to cultivate Tomato crop in the month of September- 2016, he borrowed handloan of Rs.1,00,000/- from the complainant on interest @ 5% p.m. and he was paying interest regularly and he could not return the said money to the complainant since he had sustained heavy loss and when the complainant approached him for repayment of the said loan in the month of September-2017, he sought for two months time to return the said amount, but said Konappa Reddy refused to give him breathing time and thereafter, on 12.11.2017 said Konappa Reddy came alongwith K.R. Puram Police and forcibly took him to the police station and in the police station, said Konappa Reddy 12 C.C.NO.57764/2019 took his signatures forcibly on various blank documents and white sheets with the help of police and thereafter, in the month of March 2019, he has repaid a sum of Rs.40,000/- out of the above said Rs.1,00,000/- and requested for some time to return the balance amount, but the complainant was arrogant and again with the help of police forcibly took from him signed blank cheques. The accused had paid up to date interest till December 2018 and he has to pay only the balance amount of Rs.60,000/- to him, but said Konappa Reddy has made false claim of Rs.6,80,000/-. Said Konappa Reddy has also filed a suit in O.S.No.498/2022 before the Hon'ble CCH-18 on the basis of the cheque involved in the present complaint. He has further taken a defence that the complainant through one Sri.Manjunath N.L., who is his friend, has filed this complaint against him Rs.10,00,000/-. The accused has never borrowed the above said money from the complainant and as there were life threatening to him and his family, he was 13 C.C.NO.57764/2019 not in a position to take any legal steps against the complainant. The accused never agreed to pay any interest. The complainant is a stranger to him. Further the accused though stated that he was regularly paying the interest on the amount of Rs.1,00,000/- borrowed from said Konappa Reddy in the year 2016 upto December 2018, he did not adduce any cogent oral and documentary evidence in support of his said defence and further he has also failed to elicit anything in support of it from the mouth of PW1 during his cross-examination. Further it is relevant to mention here that it could be seen from his chief-examination itself that the accused was said to be forced by said Konappa Reddy with the help of police in November 2017 and thereby said Konappa Reddy took his signatures to some blank papers and white papers and secondly during December 2018, once again said Konappa Reddy is said to have forcibly taken signed blank cheques from him with the help of police. It is relevant to mention here that 14 C.C.NO.57764/2019 no prudent man could be forced twice and even if anybody is forced twice as stated by the accused, certainly he would have taken necessary legal action against the police and the person concerned on any one of such occassions. Further it is relevant to mention here that the accused being a prudent man would have taken necessary legal steps against the complainant for his illegal acts and use of any such force, but he has not done so for the best reasons known to him. Moreover for the first time, the accused by way of defence has stated in his chief- examination that there was life threatening to him and his family by said Konappa Reddy and by the police concerned and as such, he could not take any appropriate legal steps either against the said Konappa Reddy or complainant. It is relevant to mention here that the accused though has stated so, he has not explained in detail in what manner there was such life threat to him by the complainant and the police for the best reasons known to him. Further the 15 C.C.NO.57764/2019 accused is not a layman to believe the said story since he himself has stated in his chief-examination that he was an agriculturist and had availed loan of Rs.1,00,000/- from said Konappa Reddy when he had necessity to cultivate Tomato crop. The said fact itself is sufficient to say that the accused is a man having knowledge of worldly affairs and such being the case, the story stated by the accused in his defence cannot be believed. Further in support of any of his defence, the accused has failed to elicit anytadmissions from the mouth of PW1 during his cross-examination. Further if at all the said Konappa Reddy had misused the cheque in question by handing it over to the complainant, the accused at least would have issued stop payment instructions to his banker immediately after issuance of said cheque in favour of said Konappa Reddy forcibly, but he has also not done so for the best reason known to him. Further even the accused after appearing before this court and entirely cross-examining PW1, while recording his statement 16 C.C.NO.57764/2019 U/s 313 of Cr.P.C has stated nothing in his defence except denying the incriminating evidence read over to him for the best reasons known to him. Further during the cross-examination of PW1, the accused has made a suggestion to the witness that he has received the cheque in question from the accused after lapse of 2 years 7 months from the advancement of the loan and nowhere in the said suggestion he has suggested they were forcibly collected from him. During the course of cross-examination of PW1, the agreement at Ex.P7 came to be marked on accused admitting the same and his signatures came to be marked as Ex.P7(a) and (b). The said agreement goes to show that the accused has categorically agreed regarding availment of loan of Rs.10,00,000/- in cash to start Mineral Water business and has issued the cheque in question towards repayment of it. The said document at Ex.P7 clearly corroborates with the case of the complainant. Further his signatures on Ex.P7 is categorically admitted by the accused during his cross-
17C.C.NO.57764/2019 examination as Ex.P7(a) and (b). Merely because the complainant has not examined witnesses to Ex.P7, it cannot be said the said document is forged by said Konappa Reddy. There is nothing on record to show that said document at Ex.P7 has been forged by said Konappa Reddy. Further merely because the complainant knows said Konappa Reddy and he came to know that the accused had borrowed loan from him is not a ground to disbelieve the case of the complainant or to believe that the cheque in question issued in favour of said Konappa Reddy has been misused through the complainant.
13. Further as regards the financial capacity of the complainant the accused taken a defence that the complainant had no financial capacity to lend the above said money. But, the contents of Ex.P7 is totally contrary to the said defence of the accused wherein the accused had categorically admitted to have received Rs.10,00,000/- in the manner stated therein. Further the PW1 has categorically stated that 18 C.C.NO.57764/2019 he was doing real estate business in the year 2016 in the name and style of Mahika Enterprises at Margondanahalli and his office was at Margondanahalli at a rented premises and he had annual income from the said business to the tune of Rs.5,00,000/- and apart from it, he had agricultural income from his native village and the said facts have not been specifically disputed by the accused either by denying it or by adducing any cogent oral and documentary evidence contrary to it. No doubt, the complainant did not produce his bank statement for the year 2016, only because he did not produce it, the defence accused cannot be believed in entirety. In the above facts and circumstances, I am of the opinion that the ratio laid down in the abovesaid decisions are not aptly applicable to the present case on hand. Further considering the entire materials on record and keeping in mind the settled principles of law laid down in the abovesaid decisions relied upon by both the sides regarding drawing of presumption 19 C.C.NO.57764/2019 and standard of proof required for the accused to rebut the said presumptions, I am of the opinion that the accused has failed either to raise a probable defence or to rebut the presumptions available in favour of the complainant and on the other hand, the materials on record goes to show that the complainant has proved his case beyond all reasonable doubts and hence, the accused is liable to be convicted for the offence punishable U/Sec.138 of Negotiable Instruments Act.
14. It is relevant to mention here that the accused having issued cheque at Ex.P1 in favour of the complainant has failed to pay the cheque amount and hence, the complainant is to be suitably compensated for the delay caused by the accused in its repayment. Further the punishment prescribed for the offence U/s.138 of Negotiable Instruments Act is imprisonment for a period which may extend to two years or with fine which may extend to twice the amount of the cheque or with both. Considering the facts and 20 C.C.NO.57764/2019 circumstances of this case, nature, year of the transaction, nature of the instrument involved, cost of litigation and the rate of interest proposed by Hon'ble Supreme Court in 2012 (1) SCC 260 (R.Vijayan Vs Baby), I am of the opinion that it is just and desirable to impose fine of Rs.15,75,00,000/- and out of the said amount, it seems to be proper to award a sum of Rs.15,70,000/- as compensation to the complainant as provided U/s.357(1) of Cr.P.C and the remaining sum of Rs.5,000/- shall go to the State towards expenses. With these observations, my findings on Point No.1 is in the Affirmative.
15. Point No.2: In view of my findings on Point No.1, I proceed to pass following;
O R D E R Acting u/s. 255(2) of Cr.P.C., the accused is hereby convicted for the offence punishable u/s.138 of Negotiable Instrument Act,1881.
21C.C.NO.57764/2019 The accused is hereby sentenced to pay a fine of Rs.15,75,000/-. In default, the accused shall undergo simple imprisonment for 6 months.
Out of the fine amount, Rs.5,000/-
shall be paid to the State towards expenses and remaining amount of Rs.15,70,000/- to the complainant as compensation as per the provisions of Sec.357(1) of Cr.P.C..
Further, it is made clear that in view of proviso to Sec.421(1) of Cr.P.C, the accused would not be absolved from his liability to pay compensation amount of Rs.15,70,000/- awarded u/s. 357 of Cr.P.C. even if he undergoes the default sentence.
The bail bond and surety bond of the accused stand hereby continued till the appeal period is over.
22C.C.NO.57764/2019 Office is directed to furnish free copy of this judgment to the accused forthwith.
(Typed to my dictation by the Stenographer, directly over Computer, corrected, signed and then pronounced by me in the open court, on this the 5th day of February 2025) (P.S. SANTHOSH KUMAR) XXXIII ACJM., BENGALURU.
A N N E X U R E
1.Witnesses examined on behalf of Complainant:
P.W.1 : Sri. Manjunath N.L.,
2.Documents marked on behalf of complainant:
Ex.P.1 : Original cheque Ex.P.1(a) : Signature of the accused Ex.P.2 : Bank return memo Ex.P.3 : Office copy of the legal notice Ex.P.4 : Postal receipts Ex.P.5 : Postal acknowledgment Ex.P.6 : Reply notice Ex.P.7 : Loan agreement Ex.P.7(a) : Signature
3.Witnesses examined on behalf of accused:
DW1 : Sri. Manjunath
23
C.C.NO.57764/2019
4.Documents marked on behalf of Accused:
NIL (P.S. SANTHOSH KUMAR) XXXIII ACJM., BENGALURU.