Bangalore District Court
Sri. B.S. Seetharaman vs Sri. Y. Shree Hari Rao on 28 October, 2021
IN THE COURT OF XXXIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, MAYO HALL UNIT,
BENGALURU
: PRESENT :
M.Vijay, BA L, LLB.
XXXIII ADDL.CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED IS THE 28TH DAY OF OCTOBER, 2021.
C.C.No.51696/2019
COMPLAINANT : Sri. B.S. Seetharaman
S/o. Shankar Narayan Rao
Aged about 64 years,
R/at No.15, 'A' Cross, Austin Town,
Bangalore560047
.Vs.
ACCUSED : Sri. Y. Shree Hari Rao
S/o. Madhava Rao
Major in age
No.72, Sai Krupa (Opp. Door No.63)
S.P. Naidu Layout, Vijanapura,
Bangalore560016.
JUDGMENT
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 Negotiable Instrument Act.
2C.C.No.51696/2019
2. The factual matrix of the case are as follows: Complainant averred that, accused well known to him from long time due to this acquaintance accused allegedly approached him for financial assistance of Rs.12,00,000/ in the month of april 2016 to meet his financial constraints and family needs, considering the same the complainant allegedly advanced an hand loan of Rs.12,00,000/ to the accused on 19.04.2016, on receipt of the same, the accused issued a consideration receipt and also executed an on demand promissory note for sum of Rs.12,00,000/ by agreeing to repay it with an interest @ the rate of 1% p.m., within 6 months, however, even after completion of 6 months the accused postponed the payment of loan amount, but, on his repeated request the accused on 19.10.2018 had issued him a cheque bearing No.739804 dated 19.10.2018 drawn on Indus bank Basavanagudi Branch, Bangalore, for sum Rs.15,60,000/ towards discharge of debt with an interest and requested him to present it on 15.11.2018 by assuring him that cheque would be honored on it presentation.
3. Believing the accused, the complainant has presented the cheque for encash through his banker SBI 3 C.C.No.51696/2019 Victoria branch Bangalore on 05.11.2018, but, the cheque was returned as unpaid for "account closed" vide memo dated 06.11.2018, based on it, the complainant was constrained to issue legal notice dated 03.12.2018 to the accused calling upon to pay the cheque amount, same was served duly on the accused on 05.12.2018, the accused denied the obligation in his reply, therefore, the complainant alleges that, the accused knowingfully well that, his account has been closed had issued him a cheque with an intention to cause loss to the complainant and gain to him, accordingly, the complainant alleged that, the accused for an offense punishable under Sec.138 of N.I. Act.
4. In pursuance of 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. To prove the case, the complainant got examined himself as PW.1 and relied upon Ex.P1 to P8, on closure of complainant evidence accused was examined U/Sec.313 Cr.P.C he denied the incriminating materials on record, further the accused examined himself as DW1 and placed reliance on Ex.D1 and 2.
4C.C.No.51696/2019
5. Heard, the counsel for the complainant, further, the complainant and counsel for the accused filed their separate written arguments, the counsel for the complainant relied upon following decisions, Rohit Bai Jeevan Lal Patel Vs. State of Gujrat and another, (2019) SCC 106, Thirumala Agencies and another Vs. Samel Marappa and another, on the other hand, counsel for the accused relied upon following decisions, K.Subramanian Vs. K.Damodhar naidu, Veeraiaha Vs. Madivaller, M.S. Narayan Menon Vs. State of Kerala, Rangappa Vs. Sri. Mohan, Shivamurthi and Amrutharaj, Jhon K.Abrham Vs. Simon K. Abraraham and another.
6. Perused the materials on record, the following points arise for my determination.
1. Whether the complaint proves beyond all reasonable doubt that, accused has committed an o/p/u/s 138 of Negotiable Instruments Act?"
2. What Order?
7. My findings to the above points are follows;
Point No1: In the Affirmative.
Point No.2: As per final order for forgoing;
5C.C.No.51696/2019 REASONS
8. The complainant claims to have advanced the hand loan to the accused for sum of Rs.12,00,000/ by cash on 19.04.2016, on receipt of it, accused being the relative of complainant had issued consideration receipt and also executed an on demand promissory note infavour of the complainant by agreeing to repay it with an interest at the rate of 1% p.m., within 6 months, however, even after completion of agreed period accused for the one or other reasons postponed the payment. But, on his persistent demand, the accused allegedly issued cheque bearing No.739804 dated 19.10.2018 drawn on Indusland Bank Basavanagudi Branch, Bangalore, for sum Rs.15,60,000/ by including interest for hand loan with request to present it on 05.11.2018, accordingly, the complainant claims to have presented it in his banker SBI Victoria road branch, Bangalore on 05.11.2018, but, it was unpaid for "account closed" vide memo dated 06.11.2018, based on it, he caused legal notice denying to pay cheque amount, but, accused issued untenable reply by denying the transaction and liability.
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9. Per contra, the accused admitted the complainant is his relative i.e., husband of his maternal aunts, further, he also admitted cheque in question and signatures on demand promissory note belongs to him, however, he specifically denied the alleged hand loan of Rs.12,00,000/ borrowed from the complainant on 19.04.2016 and issuance of cheque in question and on demand promissory note infavour of the complainant towards alleged loan transaction, however, he specifically contended that, complainant and accused father were cobrothers, jointly doing business to provide loans from bank to needy people as facilitators for that, the complainant had obtained his one signed blank cheque and promissory note for collateral security to one of his clients, as the accused was salaried person, because of trust and relationship, accused had allegedly issued his signed blank cheque and demand promissory note, but, the complainant told him that, cheque and on demand promissory note has been misplaced, accordingly, accused claims to had issued stop payment instruction in the year 2013, and his account was closed in the year 2017 itself, on these grounds, the accused alleged that, by misusing his cheque and on demand promissory note the 7 C.C.No.51696/2019 complainant has filed false case against him, by using the dead cheque, accordingly, claims to be an innocent.
10. So, considering the rival contentions it is clear that, the accused denied the alleged hand loan transaction held on 19.04.2016, therefore, the initial burden is on the complainant to prove the transaction i.e., the existence of legally enforceable debt and issuance of cheque in question to complainant towards discharge of legally enforceable debt, the complainant in order to prove the same got examined himself as PW1, he reiterated the complainant averments in his examination chief and placed reliance on Ex.P1 cheque, Ex.P2 return memo, copy of the legal notice, Ex.P2 reply postal receipt on demand promissory note and consideration receipt Ex.P7 and 8, the accused subjected the PW1 for cross examination, wherein, he does not dispute the Ex.P1 cheque and Ex.P1(a) signature pertains to him, so, the complainant has undoubtedly proved that, Ex.P1 cheque and Ex.P1(a) signature belongs to the accused, but, the accused denied alleged loan transaction and passing of consideration on 19.04.2016, however, in view of accused admission, though he denied existence of legally 8 C.C.No.51696/2019 enforceable debt and consideration, it shall be presumed that unless the contrary is proved Ex.P1 cheque had issued by the accused towards discharge of legally enforceable debt and for consideration as per Sec.139 and 118(a) of N.I Act, as it is mandatory to draw the presumption infavour of the holder of cheque i.e., complainant that Ex.P1 cheque had issued by the accused towards discharge of legally enforceable loan held on 19.04.2016 with interest at the rate of 1% p.m., at this stage, it is relevant to note decision of Hon'ble Apex Court Rangappa Vs.Mohan, "Once the cheque relates to the account of the accused and he accept and admit the signature on the said cheque, then initial presumption as contemplated under Sec.139 of N.I. Act has to be raised by the court in favour of the complainant. The presumption referred to in Sec.139 of N.I. Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption."
The above ratio has been reaffirmed by the Hon'ble Apex Court in Triyambak Hegde Vs. Sripad.
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11. However, it is rebuttal presumption, therefore, the onus is on the accused to rebut the presumptions that, the claimed debt did not exist, cheque in question not issued for legally enforceable debt and accused had issued Ex.P1 for collateral security for others to provide loan in the year 2013, at this stage, it is relevant to state that, the standard of proof to rebut the presumption is not strict proof, but, it is preponderance of probabilities.
12. The accused in order to discharge onus, the counsel for the accused in his written argument contended that, the complainant financially incapable and relied upon admission of PW1 about execution of Ex.P7 and 8 on demand promissory note, further, Ex.D1 and D2 produced, in support of his defence that, when the complainant told him that, his cheque issued for security was misplaced, he had issued stop payment instruction on 13.02.2013 and his account has been closed on 03.02.2017, and PW1 admitted there is no agreement between me and complainant for payment of interest, therefore Ex.D1 and D2 clearly proved to show that custody of cheque was not in custody of accused, accordingly, the counsel for the accused urged that, the 10 C.C.No.51696/2019 accused has proved the probable defence and rebutted the presumption, in support of his arguments the accused has relied upon the decisions K.Subramani Vs. K.Dhamodhara Naidu, Veeraiha M.S. Narayana Menon Vs. State of Kerala, Rangappa Vs. Sri. Mohan and Vijay Vs. Laxman
13. On the contrary, the counsel for the complainant argued that, the accused has not challenged the financial capacity of complainant, Ex.D1 and D2 obtained by a lawyer, but, not the accused, same is concocted as the accused was an exemployee of that bank, the complainant denied the issuance of cheque and on demand promissory note in the 2013 for collateral security, the accused admits signature on cheque and Ex.P7 and 8 demand promissory note, as such, presumptions U/S 139 and 118(a) of N.I Act shall be drawn infavour of the complainant, further, there was no balance in the account of the accused, further, the accused in evidence deposed contrary his defence that, complainant had obtained his 34 cheques, the conduct of accused also pivotal, as the accused not taken legal action against the complainant, that apart, the complainant as proved execution of demand promissory note and 11 C.C.No.51696/2019 issuance of cheque by the accused, on these ground, the complainant urges that, the accused has failed to rebut the presumption, accordingly, urged to convict the accused, In support of his arguments, the complainant has relied upon following decisions,
1. Rohithbai Jeevanla Vs. state of Gujrat
2. Narayan Reddy Vs. N.M. Muniyappa
3. Dinesh C.N Vs. C.G. Mallika
4. M/s. Thirumala Agency and another's Vs. M/s. Samela Mareppa and another
5.SMS Pharmaceuticals Ltd., Vs Neeta Bhalla and another
14. Considering rival contentions of the parties with materials on record, accused in order to rebut the presumption has mainly taken contention that financial incapability of complainant to lent the huge sum of Rs.12,00,000/ on 19.04.2016, he relied upon, the evidence of PW1 i.e., complainant stated that, he was doing the work of accountant at Mandara of Avenue road in the year 2016, he joined the company 5 to 6 years prior to the year 2016 his salary at that time of the said company was of Rs.10,000/ now he retired, in between 12 C.C.No.51696/2019 2009 to 2013, I was working at Calama Pumps Pvt. Ltd., based on this evidence the accused contended that, complainant had no financial capacity to lent alleged loan in the year 2016, accordingly, he probabilised his defence that, the claimed debt was not in existence and complainant has not produced any document to prove his financial capability as on the date of alleged advancement of loan, in support of this point the accused relied upon decision of the Hon'ble Apex Court i.e., K. Subramanian Vs. K. Damodhar Naidu and decision of Hon'ble High Court of Karnataka Veeraiha Vs. Madivalkar and argued that financial capability is pertinent to decide in the cheque bounce case U/s 138 of N.I Act.
15. On this specific contention, I have meticulously examined the materials on record, it is true that, as rightly contended by the accused that, whenever the accused in a proceedings U/S 138 of N.I Act has challenged the financial capability of complainant to lent an hand loan amount, the complainant must establish, the source of money and his capability to lent an hand loan as on the date of advancement of loan, the accused based on the statement of PW1 during the course of cross examination 13 C.C.No.51696/2019 i.e., the relevant evidence is extracted here below, "I was doing the work of accountant at Mandara of Avenue Road in the year 2016. I have joined the said company 56 years prior to the year 2016. My salary at that time in the said company Rs.10,000/, now I am retired in between 2013, I was working at Calama Pumps Pvt., Ltd.," based on this, evidence of PW1 the accused vehemently argued that, the complainant has failed to show that, what was is salary, savings, expenditure in the year 2016 and in the year 2016 the complainant salary was Rs.10,000/, therefore, the complainant failed to prove how he mobalise huge sum of Rs.12,00,000/ to lent to accused, but, herein this case the accused though questioned the PW1 about occupation, salary savings but no where in entire cross examination has denied that, complainant did not have sufficient money to lent as claimed, therefore, merely because questioning occupation, salary does not mean that the accused has denied the financial capacity, even the accused not taken the financial incapability of the complainant in legal notice or he challenged in his evidence, therefore, in absence of specific denial during the course of cross of PW1 or in the evidence of accused the point raised by the accused first time in the written 14 C.C.No.51696/2019 argument about financial incapability of the complainant cannot be considered and also not valid. accordingly, I do not found valid substance in the arguments of the accused.
16. Secondly, so far as, execution of on demand promissory note and consideration receipt, the accused relied upon the admission of Pw1 elicited during the course of cross examination that, "I do not know, who has written the contents of Ex.P1 cheque, it is false to suggest that hand writing I can examine witness of consideration receipt before the court", based on this evidence the accused contends that, consideration was not passed since it was issued for collateral security in the year 2012, accordingly, the PW1 doesn't know that who has written the contents of Ex.P7 and 8, however, the accused does not dispute the signature on Ex.P7 and 8 and issuance of Ex.P7 and 8 infavour of the complainant, but, claims that it was issued for collateral security for some others loan, so, once the accused admits the signature on the on demand promissory note, as per Sec.118(a) of N.I Act court shall presume that the consideration has been passed, even though the accused based on the evidence of PW1 contending that, the complainant does not know who 15 C.C.No.51696/2019 has written the contents of the Ex.P7 and 8, but the accused not denying the signature, therefore, even though the Pw1 deposed that, he do not know who has written the contents of the on demand promissory note, but, that itself not a ground to believe the contentions of the accused, unless and until the accused proves the Ex.P1, 7 and 8 were obtained by the complainant in the year 2012, that apart, an on demand promissory note is not compulsory attested document, so, once signature on promissory note and consideration receipt admitted by the accused then the onus is on the accused to rebut the presumption that, consideration was not passed, but, the accused except posing questions about who written the contents of Ex.P7 and 8, but, not denied his signatures on Ex.P7 and 8, therefore, the complainant also produced the document that 19.04.2016 the alleged loan transaction was held in between him and the accused. Accordingly, non passing the consideration under Ex.P7 and 8 cannot be acceptable, in absence of proof that, Ex.P7 and 8 were in custody of the complainant since 2012, as such, I do not found force in the argument of accused.
16C.C.No.51696/2019
17. Further, the accused so far as custody of the cheque and on demand promissory note, with the complainant is concern, except his suggestions that, his father and complainant were facilitators in between money lender and the borrower, the cheque and promissory note has been given as collateral security for one of the borrowers, but, after closure of loan he asked the complainant to return his documents, but, the complainant told him that, cheque and promissory note was misplaced, so, it is burden on the accused that, he issued the Ex.P1 cheque and an demand pronote infavour of the complainant as a collateral security, but, the accused despite taking specific contention, has failed to prove when and where, for what purpose he issued cheque and on demand to the complainant, which is crucial material to believe his defence, because, the accused claiming that, in the year 2013 he issued stop payment instruction to his banker soon after misplace of the cheque as informed by the complainant, but, in view of Ex.D2 his account was closed in the year 2017 itself, but, failed to produce evidence to that effect that for whose loan he issued security cheque and promissory note for that, there is no explanation from the side of the accused, accordingly, in absence proof to 17 C.C.No.51696/2019 that effect the accused failed to establish the custody of Ex.P1 cheque with the complainant since 2012.
18. That apart, the accused specifically contended by relaying upon Ex.D1 and D2 i.e., Ex.D1 letter issued by Indusind Bank to one Pranav U. Balekundri and the statement of account of the accused, based on these documents, the counsel for the accused argued that, as on 19.10.2018 the Ex.P1 cheque was not in custody and by that time the Ex.P1 cheque is a dead cheque, as intimated by the complainant in the year 2013 itself, he had issued stop payment instruction as the complainant told him that Ex.p1 cheque was misplaced, but, same has been misused by the complainant in order to harass him, accordingly, accused contends that he has probablised his defence that, the custody of the cheque Ex.P1 with the complainant since 2013.
19. On the other hand, the counsel for the complainant argued that, the Ex.D1 is not an admissible piece of document as it is obtained by one Pranav U Balekundri, but not the accused, further, the accused has not produced his letter for stop payment instruction and particulars of 18 C.C.No.51696/2019 the cheques for which he had issued stop payment instruction and why, that apart, there are material contradiction in the case of the accused and the documents Ex.D1 as there is no explanation from the accused about closure of his account on 03.02.2017, after laps of 4 years from the date of alleged issuance of stop payment instruction on 13.02.2013, that apart, the counsel for the complainant also argued the cheque Ex.P1 dishonored for the reason of account closure, but not for stop payment and there was no balance in the account of the complainant even if the contention of accused were true, therefore, Ex.D1 is not admissible document as it is not produced in accordance with law.
20. On this rival submissions of both the sides, I have carefully perused the Ex.D1 and D2 and evidence of the accused which clearly reflects that, according to the accused, he issued the Ex.P1 cheque to the complainant prior to the year 2012 along with demand promissory note as a collateral security for one of the borrowers, when he demands the complainant to return his cheque and promissory note complainant told him that, his cheque and on demand promissory note were misplaced, 19 C.C.No.51696/2019 accordingly, he alleged to had issued stop payment instruction to his banker in view of misplace of his cheque, to substantiate to same the accused relied upon Ex.D1 and D2, as rightly argued by the complainant counsel, whenever, the accused taken the defence of stop payment instruction, the accused must prove as on the date of stop payment instruction, there must be sufficient balance in the account of the accused, at this stage, it is worth to note the decision of Hon'ble Apex Court in M/s M.M.T.C. Ltd., and another V/S Medchil Chemicals and Pharma Pvt. Ltd., held that, "Even though the cheque dishonored by reason of stop payment instruction an offence under section 138 could still be made out. It is held that, the presumption U/S 139 is attracted in such a case also the authority shows that, even in the cheque is dishonored by reason of stop payment instruction by virtue Sec.139 the court as to presume that, the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Offcourse this is a rebuttable presumption. The accused can thus show that the stop payment instruction were not issued because of insufficiency or paucity of funds if the accused 20 C.C.No.51696/2019 shows that in his account there was sufficient funds to clear the amount of cheque at the time of presentation the cheque for encashment at the drawer bank and that stop payment notice had been issued because of other valid causes including that there was no existing that or liability had been issued because of other valid cause including that there was no existing debt or liability at the time of presentation of cheque for encashment, then an o/p/u/s 138 would not be made out".
21. So, the accused first must prove the sufficient balance in his account as on the date of stop payment instruction given by him i.e., on 13.02.2013, but, as per Ex.D1 the balance was Rs.9,543/ in the account, so, on that count the defence of the accused not tenable.
22. Further, the complainant has specifically asked the accused during the course of cross examination about letter of stop payment issued by the accused that when, with respect to which cheques he issued stop payment instruction, what was the reason for issuing instruction, had he specified the name to whom he had issued his signed blank cheques, and who had obtained Ex.D2, the 21 C.C.No.51696/2019 accused despite of specific questions posed by the complainant about genunity of Ex.D1 the accused has not produced the copy of stop payment instruction, given by him to his banker on 13.02.2013, that apart, in Ex.D2 there is a clear reference about "stop cheques multiples", but, there is no reference in Ex.D2 statement the questioned cheques i.e., cheque bearing No.739804 was also requested to stop payment, but, in Ex.D1 discloses that on 30.02.2013 the accused alleged to have requested it's banker closure of account as well as stop payment of cheque through online, but, the copy of his representation made through online has not been produced, in addition to that, even if the accused contention for the sake of arguments is accepted that the accused had issued stop payment instruction pertaining to Ex.P1 cheque on 13.02.2012 along with closure of account as requested by the accused but the account was closed on 3rd february 2017, but, not closed on 13.02.2013, even though the accused requested its banker to stop payment of the cheque as well as closure of his account, but, his account was closed after laps of 4 years from the date of stop payment instruction given by the accused, so, the delay of closure of account not been explained by the accused why 22 C.C.No.51696/2019 his account was not closed on 13.02.2013 itself, which clearly creates reasonable doubt on the genunity of Ex.D1, as the accused admittedly an exemployee of Indusind Bank, therefore, the claim of the complainant that, Ex.D1 obtained by the accused under influence with his earlier colleagues cannot be ruled out in view of non production of the stop payment instruction in particularly the cheque in question on 13.02.2013, when this complainant specifically denied the stop payment instruction with respect to cheque in question, which is crucial document to believe the defence of the accused, because, as admitted by the accused there is a reference in the statement of account Ex.D2 in particularly on 13.02.2013 it is mentioned that, "stop cheque multiple" according to accused the stop multiple cheque means there were multiple instruction to his banker for stop payment on multiple cheques as per him there were 2 multiple cheque and he had issued instructions to stop payment with respect to 2 cheques, but, as elicited by the complainant the accused had issued not only Ex.P1, but, in totally he issued 34 signed blank cheques to the complainant, if so the accused ought to have produced copy of instruction given to his banker specifying the name of complainant in 23 C.C.No.51696/2019 his instruction, but, the accused not produced the same, therefore, mere marking of Ex.D1 itself does not dispense from proof of it's contents, accordingly, the contentions of accused that he had issued stop payment instruction on 13.02.2013 itself cannot be acceptable, in absence of proof to that effect that, either by examining the person who has issued Ex.D1 or any person authorized of the Indusind bank to prove the contends of Ex.D1, but, the accused neither produced copy of online request for stop payment instruction nor examined the author of Ex.D1 or any authorized person of indusind bank to prove the contends, so, in absence of that, as rightly argued by the complainant Ex.D1 cannot be relied upon, therefore, the accused failed to prove his contention that, he had issued stop payment instruction to his banker on 13.02.2013 itself, accordingly, the custody of the cheque was not with the accused since 2013 to 19.10.2018 can not be acceptable.
23. Further, the accused vehemently contended about interest claimed by the complainant by relaying upon the admission of the PW1 during the course of cross examination that, there is no agreement between the 24 C.C.No.51696/2019 complainant and accused with regard to payment of interest that, the claim of the complainant is illegal as there was no agreement with respect to payment of interest, but, it is true that, even Ex.P7 and 8 there is no reference about repayment of loan amount with an interest @ the rate of 1% p.m., however, the complainant specifically stated accused voluntarily agreed to the repay the money with 1% interest, accordingly, issued the cheque for the amount of Rs.15,60,000/ including interest, but, as claimed by the accused merely because no agreement about payment of interest which does not itself is ground to disbelieve the transaction, because, the claimed interest neither exorbitant nor an illegal, as such, on this count the transaction held in between the complainant and accused cannot be doubted.
24. So, considering the entire material on record, the accused admittedly working in a private bank having knowledge about the instruments and affairs of the bank, specifically contended that, he had issued a signed blank cheque and signed blank on demand promissory note to the complainant prior to 2012, as the collateral security, but same has been denied the complainant, even then the 25 C.C.No.51696/2019 accused not bothered to examine for whose loan or liability he issued signed blank cheque and signed on demand promissory note, for that, absolutely there is no materials on record, that apart, the accused by relaying upon Ex.D1 letter claimed that, he had issued stop payment instruction with respect to Ex.P1 cheque on 13.02.2013, Ex.D1 proves the fact of issuance of stop payment instruction with respect to Ex.P1 issued by his banker, but, apart from marking the document as Ex.D1 neither he examined the bank authorized person to prove the contents of Ex.D1 nor produced the copy of letter of instruction dated 13.02.2013 claim to have issued by the accused to his banker specifying the particulars of the cheque and names of the person to whom i.e., (the complainant name) he issued the Ex.P1 cheque in the year 2012, even though, the complainant specifically challenged the genunity of Ex.D1, as such, as held supra mere marking of Ex.D1 does not dispense from proof of it's contents, therefore, the contention of the accused that Ex.P1 cheque is not in custody of accused since 2012 cannot be believable unless and until he proves for whose loan he had issued Ex.P1 cheque as a collateral security before whom it was issued, therefore, in absence of 26 C.C.No.51696/2019 relevant material I do not found valid force in the arguments of the accused as the accused clearly admits till date the accused has not taken any legal action, even after knowing about misuse or about lost of the cheque from the custody of the complainant, this conduct clearly shows that, the defence of the accused nothing but an after thought, since the accused is not layman, admittedly he was an employee of an Indusind Bank having knowledge about consequences of issuance of negotiable instrument with his signatures.
25. So, considering the entire materials on record, the accused though he produced Ex.D1 to prove the Ex.D1 had issued in the year 2013 itself, but, failed to prove the same, as such, there are no probable evidence to believe the defence that, Ex.P1 cheque had issued to the complainant for collateral security for loans of others, the complainant to strengthen his case not only produced the Ex.P1, but also produced Ex.P7 and 8 an on demand promissory note, though the accused admits the issuance of on demand promissory note and signature on the same, but, he has not taken any action to take back is promissory note since 2013, which clearly stands prove that, the 27 C.C.No.51696/2019 accused burrowed the loan of Rs.12,00,000/ from the complainant on 19.04.2016 and issued Ex.P1 cheque on 19.10.2018 by calculating 1% interest on the loan amount, therefore, the accused failed to brought out the materials to dislodge the presumption drawn infavour of the complainant accordingly, absolutely there are no acceptable materials contrary to the case of complainant, accordingly, the complainant has proved the Ingrediants of Sec.138 of N.I Act, hence accused is found guilty of an o/p/u/s 138 of N.I Act.
26. It is well settled law that, Sec.138 of N.I Act is primarily is compensatory in nature, punitive is secondary, on considering this prime object of Sec.138 N.I Act with fact and circumstances of the case, admittedly, complainant and accused are relatives, the complainant has proved that the accused along with interest @ the rate of 1% p.m., for the loan of Rs.12,00,000/ issued cheque for sum of Rs.15,60,000/, so, it is clear that, along with interest the accused issued cheque for Rs.15,60,000/ on 19.02.2018, so, considering the nature of transaction and the duration of pendancy of this case, if the accused sentenced to pay fine of Rs.16,65,000/ that 28 C.C.No.51696/2019 would meets the ends of justice. accordingly, the accused is hereby sentenced to pay a fine of Rs.16,65,000/, out of which the complainant is entitled to a compensation of Rs.16,60,000/ as per Sec.357(1) of Cr.P.C. remaining amount of Rs.5,000/ is to be appropriated to the state, in case of default the accused shall under go simple imprisonment for a period of 6 months. Accordingly I answered the above point in "Affirmative".
27. Point No.2: In view of above finding to Point No.1, I proceed to pass following;
ORDER Acting under section 255(2) of Criminal Procedure Code, the accused is convicted of the offence punishable U/s 138 of Negotiable Instrument Act, The accused is sentenced to pay a fine of Rs.16,65,000/ (Rupees Sixteen lakh sixty five thousand only) in default, the accused shall undergo simple imprisonment for a period of six months. Out of the fine amount received, 29 C.C.No.51696/2019 Rs.5,000/ is to be appropriated to the State and by way of compensation as per the provision U/S 357(1) of Cr.P.C. the complainant is entitled for Rs.16,60,000/.
The bail bonds and surety bond of the accused shall stand cancelled.
Office is directed to furnish a free copy of the judgment to the accused.
(Dictated to the Stenographer directly on computer, typed by her, corrected, signed and then pronounced by me in the open court, on this the 28th day of October, 2021) (M.Vijay), XXXIII ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Sri. B.S. Seetharam
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
30
C.C.No.51696/2019
Ex.P.3 : Office copy of the legal notice
Ex.P.4 : Postal receipt
Ex.P.5 : Postal acknowledgment
Ex.P.6 : Reply notice
Ex.P.7 : Promissory note
Ex.P.8 : Consideration receipt
Ex.P.7(a) & 8(a) : Signature of the accused
3. Witnesses examined on behalf of Accused:
DW1 : Y. Shrihari Rao
4. Documents marked on behalf of Accused:
Ex.D1 : Letter issued by Indusland Bank
Ex.D1(a) : Postal cover of Ex.D1 letter
Ex.D2 : Bank statement
(M.Vijay),
XXXIII ACMM, BENGALURU.