Bangalore District Court
Mahalakshmi vs Sanjay.V on 27 January, 2020
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 27th day of January - 2020
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.14245/2017
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Mahalakshmi,
W/o.Late.A.Ashok Babu,
Aged about 40 years,
R/at No.37, Aswath Katte Main Road,
Kasthuribha Nagar, Mysore Road,
Bengaluru-26.
(Rep. by Sri.K.Honnaiah, Adv.)
V/S
Accused : Sanjay.V,
S/o.Venkatappa,
Aged about years,
R/at. No.86, Ave Maria,
1st Main Road, Chamarajpet,
Bengaluru-18.
(Rep.by Sri.M.K.Venkatesh, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Convicted.
DATE OF ORDER : 27.01.2020.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.No.14245/2017
JUDGMENT
The complainant has presented the instant complaint against the accused on 03.04.2017 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.5 lakhs.
2. The facts raised by the complainant in the present case is as follows:
The accused introduced the complainant through one B.Manjunathaswamy of Kasthuriba Nagar. During 1st week of August, 2016, the accused had approached her for hand loan of Rs.5 lakhs, as he took contract work to make lawn and in that connection, he was in need of money. Believing the words of accused and on the recommendation of B.Manjunathaswamy, the complainant had paid sum of Rs.5 lakhs to the accused on 20.08.2016 to the accused, in the presence of B.Manjunathaswamy. On the very same day, the accused got executed On demand promissory note and consideration receipt in favour of complainant. The complainant paid the said loan amount to the accused out of the amount kept in her home received from her tenants being advance and rentals of the house.
Judgment 3 C.C.No.14245/2017 The complainant has further averred that, when she demanded the accused for repayment of the said loan amount, on 01.01.2017, the accused got issued post dated cheque bearing No.171710, dated:20.01.2017 for sum of Rs.5 lakhs, drawn on Corporation Bank, Chamarajpet Branch, Bengaluru, duly singed by the accused in favour of complainant, towards discharge of the loan with promise that, cheque would be honoured on the date of its presentation to the bank. Thereafter, the accused approached her and requested to present it only after 30.01.2017.
The complainant has further alleged that, at the instruction of the accused, she presented the cheque for encashment on 31.01.2017 through her banker viz., Corporation Bank, Mysore Road Branch, Bengaluru, the as per memo dated:06.02.2017, the same came to be dishonoured stating, "Funds Insufficient".
The complainant has further contended that, later she gave legal notice to the accused by way of R.P.A.D and Courier. The notice sent through R.P.A.D was duly served upon accused on 18.02.2017. After receipt of said notice, the accused came to the house of complainant on 02.03.2017 and he got executed undertaking letter to settle the cheque amount in the month of June, 2017. Complainant if wait till June, 2017, time would be Judgment 4 C.C.No.14245/2017 barred to file the complaint. Thereby, he committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the complaint.
3. After receipt of the private complaint, my predecessor in office took the cognizance and got registered the PCR and recorded the sworn statement. Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process.
4. In response to the summons, the accused appeared through his counsel and obtained the bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to him, wherein, he denied the same and claimed to have the defence.
5. To prove the case of the complainant, she herself choosen to examined as PW.1 and got marked Exs.P1 to P9(a). The PW.1 was subjected for cross-examination by the advocate for the accused.
6. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same and the answer given by him was recorded. In support of the defence, the accused himself was Judgment 5 C.C.No.14245/2017 examined as DW.1 and got marked Exs.D1 to D7 and also subjected for cross-examination by the advocate for the complainant.
7. I have heard the arguments of both side counsels. The complainant counsel has also submitted his detailed written arguments.
8. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:
1) Whether the complainant proves beyond the reasonable doubt that, she paid sum of Rs.5,00,000/- on 20.08.2016 as hand loan to the accused, and in turn, for discharge of legal recoverable debt, the accused issued the Ex.P1 cheque bearing No.171710, dated:20.01.2017 for sum of Rs.5,00,000/- drawn on Corporation Bank, Chamarajpet Branch, Bengaluru?
2) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
9. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Affirmative Point No.2 : In the Affirmative Point No.3 : As per final order, for the following:
Judgment 6 C.C.No.14245/2017
REASONS
10. POINT NOs.1 and 2: Since both the points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
The PW.1 to prove her case choosen to examined herself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P9(a), they are:
a) Ex.P1 is the cheque bearing No.171710 issued by the accused for sum of Rs.5,00,000/-
dated:20.01.2017, drawn on Corporation Bank, Chamarajpet Branch, Bengaluru.
b) Ex.P1(a) is the alleged signature of accused.
c) Ex.P2 is the Bank Memo dated:06.02.2017.
d) Ex.P3 is the Legal Notice dated:17.02.2017.
e) Ex.P4 is the Postal receipt.
f) Ex.P5 is the DTDC Courier Receipt..
g) Ex.P6 is the Postal Acknowledgment Card.
h) Ex.P7 is the undertaking letter dated:02.03.2017 written by accused to complainant.
i) Exs.P8 and P9 are the On demand promissory note and consideration receipt dated:20.08.2016 executed by accused in favour of complainant and
j) Exs.P8(a) and P9(a) are the signatures of accused.
11. The PW.1 was subjected to the cross-examination by the advocate for the accused. In support of her case the complainant Judgment 7 C.C.No.14245/2017 through her counsel has produced the citation and relied upon same, it is;
a) AIR 2010 SC 1898
b) AIR 2015 SC 2240
12. In order to prove the defence of the accused, he himself choosen examined as DW.1 and produced the documents at Exs.D1 to D7. They are:
a) Ex.D1 is the certified copy of Joint Memo in C.C.No.12145/2016 entered in to between one Eswar.G and accused herein on the file of XVI ACMM Court, Bengaluru.
b) Ex.D2 is the certified copy of Award order in C.C.No.12145/2016 on the file of XVI ACMM Court, Bengaluru.
c) Ex.D3 is the certified copy of Vakalath of Eswar.G in C.C.No.12145/2016 on the file of XVI ACMM Court, Bengaluru.
d) Ex.D4 is the certified copy of order sheet in Ex.Case No.121/2018 on the file of Hon'ble CCH-65.
e) Ex.D5 is the certified copy of Vakalath of Eswar.G in Ex.No.12/2018 on the file of Hon'ble CCH-65.
f) Ex.D6 is the certified copy of judgment in C.C.No.11749/2017 on the file of XVI ACMM Court, Bengaluru and
g) Ex.D7 is the certified copy of Vakalath pertaining to one K.L.Krishnegowda on the file of XVI ACMM Court, Bengaluru.
13. While appreciate the materials on records and evidence, this court has gone through the decisions stated supra apart from the other decisions.
Judgment 8 C.C.No.14245/2017
14. The accused has put forth his defence by way of cross- examining the PW.1 orally as well as based on the documents produced by the complainant. After cross-examination of PW.1, the incriminating evidence made against the accused was read over and explained to him as required under Section 313 of Cr.P.C., wherein, he denied the same and gave his statement, that apart, he choosen to entered into witness box and examined as DW.1.
15. The accused has deposed that, complainant known to him and one Krishnegowda had supplied sand for the purpose of construction of building, from whom he asked loan of Rs.5 lakhs during 2015-16. The said Krishnegowda from one G.Eswar provide the loan of Rs.5 lakhs and to the said G.Eswar and Krishnegowda, the accused got issued two singed blank cheques each. The said Krishnegowda took the cheques as security for payment of the said loan.
16. The accused has further alleged that, G.Eswar by misuse one cheque, filed the cheque bounce case for Rs.5 lakhs against the accused in C.C.No.12145/2016 and wherein, the accused got settled the matter and wherein award was passed. In that regard, produced the joint memo, award and vakalath at Exs.D1 to D7.
Judgment 9 C.C.No.14245/2017
17. The accused has also alleged that, based on the said award, G.Eswar had filed execution petition in Ex.No.121/2018 and order sheet pertaining to the same were produced at Exs.D4 and D5. The accused specifically contended that, as per Exs.D1 to D4 proceedings, he paid the entire award amount to G.Eswar.
18. The accused has further alleged that, at the time of obtained signature to the joint memo at Ex.D1, Krishnegowda took two singed blank cheques from the wife of accused by name Dr.Geraldine Sanjay as security, for accepting the joint memo at Ex.D1. If at all, accused failed to pay the said money, the complainant by filled the said cheque in the name of complainant and took signed blank On demand promissory note and consideration receipt as security and filled in the name of complainant herein. Though, he not borrowed loan from Mahalakshmi. Later, the said Krishnegowda against the wife of accused got filed the cheque bounce case for Rs.5 lakhs in C.C.No.11749/2017 and she defended the matter and got acquitted and to that effect, produced the judgment and vakalath at Exs.D6 and D6. The cheque belongs to his wife found at Ex.D6 were given by the accused to Krishnegowda and his wife is the government doctor, he took the said document as security in respect of the loan borrowed from G.Eswar of Rs.5 lakhs, along Judgment 10 C.C.No.14245/2017 with cheque, On demand promissory note and consideration receipt. Krishnegowda, through the complainant herein got filed the false case against the accused. The advocate appeared for complainant herein, Krishnegowda are one and the same. The accused not borrowed loan either from complainant herein or from Krishnegowda, and not executed cheque or any other document as security for the said loan. He only borrowed loan from G.Eswar, as said by Krishnegowda, he took money from him and gave it to the accused by stating G.Eswar gave the said money. He did not see G.Eswar till filing joint memo at Ex.D1. The accused not borrowed loan from Krishnegowda, but said Krishnegowda in the name of G.Eswar projected that, loan lent to the accused and obtained cheques and other documents from him as well as his wife. On behalf of G.Eswar, the accused earlier took the interest at 10% p.m. and the accused not liable to pay money either to complainant or to Krishnegowda. Hence, he claimed not liable to pay the money. The DW.1 was subjected for cross-examination from the side of complainant's advocate.
19. On going through the rival contentions of the parties, the fact that, the accused through Krishnegowda borrowed loan from advocate is not in dispute. In respect of the case filed by advocate in C.C.No.12145/2016 for Rs.5 lakhs, the matter was Judgment 11 C.C.No.14245/2017 compromised and they have filed joint memo at Ex.D1 is not in dispute. The fact that, based on Joint memo, necessary award was passed thereon is not in dispute. The fact that, the said advocate based on the award order filed Execution proceeding sin Ex.No.121/2018 against the accused as found in Exs.D4 and D5 is not in dispute. The fact that, the accused got cleared the said award amount to advocate is not in dispute.
20. The fact that, as found in Exs.D6 and D7, the said Krishnegowda got filed cheque bounce case for Rs.5 lakhs against the wife of accused by name Dr.Geraldine Sanjay in C.C.No.11749/2017 is not in dispute. In the said case, acquitted the accused is not in dispute. The fact that, accused doing business of contracting and doing lawn work is not in dispute. The fact that, the address of the accused made mentioned in the cause title is not in dispute. The fact that, the questioned cheque with signature and fillings is made by the accused is not in dispute. The said cheque as per Ex.P2 came to be dishonoured for the reasons 'insufficient funds' is not in dispute. The fact that, legal notice at Ex.P3 was served on accused is not in dispute. The fact that, after service of legal notice, the accused had approached the complainant and he got executed the Ex.P5 letter in his hand writing is not in dispute subject to proof.
Judgment 12 C.C.No.14245/2017
21. On going through the rival contentions of the parties, it made clear that, based on the questioned cheque, the complainant has filed the present case. Hence, necessary statutory presumption as required under Sections 118 and 139 of Negotiable Instruments Act, is to be drawn in favour of complainant unless and until contrary prove. However, the accused took the defence cited supra, but he clearly admitted the execution of document at Ex.P1, On demand promissory note and consideration receipt as per Exs.P8 and P9 with its signatures and execution of undertaking letter at Ex.P7 dated:02.03.2017 in his hand writing in favour of complainant. But it is him to demonstrate that, those documents were not executed or issued in favour of complainant, as she is stranger, it was given at the instruction of Krishnegowda in connection to the borrowal of loan of Rs.5 lakhs from G.Eswar only. Therefore, it made clear that, as per Sections 118 and 139 of Negotiable Instruments Act, the initial burden on the accused to rebut the case of the complainant.
At this stage this court has gone through the decision reported in AIR 2010 SC 1898 between Rangappa V/s. Mohan, the Hon'ble Apex court is held that:
"The presumption mandated by section 139 of the Act is in the nature of a rebuttable presumption and it is Judgment 13 C.C.No.14245/2017 open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard of proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a Judgment 14 C.C.No.14245/2017 legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own".
22. From the principle laid down in the above decision, it is crystal clear that, when accused has admitted the cheque and signature made on cheque, the burden lies on the accused to prove that, Ex.P1 cheque was not issued for discharge of legally recoverable debt in favour of complainant. To prove this fact accused has choosen to cross-examine PW.1 and also adduced his defence evidence and in support of his defence accused has got marked Exs.D1 and D7. As per the above dictum and defence of the accused, though he admitted the execution and issuance of document cited supra. It is him to demonstrate that, it was not executed in favour of complainant herein but it was executed at the instance of Krishnegowda while he borrowed loan of Rs.5 lakhs from G.Eswar. In that regard, it requires to appreciate the evidence of accused on priorities.
23. In the chief examination of accused, he put forth his defence admitting the filling of cheque and signature found at Exs.P1, P7 to P9 by himself at the instance of Krishnegowa. In Judgment 15 C.C.No.14245/2017 that regard, he deposed in his chief examination earlier that, he does not know the complainant and not borrowed the loan, but in his chief examination, the relevant portion is runs thus:
"¤r-1 dAn ªÉĪÉÆ ¸À°è¸ÀĪÀ ¸ÀAzÀ¨Àsð PÀȵÉÚÃUËqÀgÀÄ, CzÀPÉÌ M¦àPÉƼÀî¨ÉÃPÁzÀ°è, MAzÀÄ ªÉÃ¼É D ºÀt £Á£ÀÄ PÉÆqÀ®Ä «¥Às®£ÁzÀ°è ¨ÀszÀævÉUÁV F ¥ÀæPÀgÀtzÀ ¦AiÀiÁ𢠪ÀĺÁ®Qëäà gÀªÀgÀ ºÉ¸Àj£À°è £Á£Éà §gÉzÀÄ ¨Àswð ªÀiÁr, CzÀgÉÆA¢UÉ MAzÀÄ D£ï-rªÀiÁåAqï ¥ÉÇæ£ÉÆÃl£ÀÄß ªÀÄvÀÄÛ ¥ÀvÀæªÀ£ÀÄß ªÀĺÁ®Qëäà gÀªÀgÀ ºÉ¸Àj£À°è gÀÆ.5 ®PÀë ¸ÀA§AzÀs DPɬÄAzÀ AiÀiÁªÀÅzÉà ºÀt ¥ÀqÉAiÀÄ¢zÀÝgÀÆ PÀÆqÀ ¨ÀszÀævÉUÁV §gÉzÀÄPÉÆnÖzÉÝ£ÀÄ."
24. On going through the said testimony of DW.1, he deposed that, at the time of submit joint memo at Ex.D1, in connection to the case filed by G.Eswar, Krishnegowda, at that point of time, in order to agree for the said joint memo, in the event of accused failed to pay the said amount as per joint memo, as a security at the instance of Krishnegowda, accused got filled the name of complainant, in the On demand promissory note and consideration receipt, though he not borrowed any loan from her. The said piece of evidence clearly manifest that, the accused himself got admitted the due execution of On demand promissory note and consideration receipt in favour of complainant for sum of Rs.5 lakhs. Though, he deposed, not borrowed any loan from Judgment 16 C.C.No.14245/2017 complainant at the instance of Krishnegowda, he got executed the said document. In order to show that, the said document was executed by him in favour of Krishnegowda, in connection to the case filed by G.Eswar in C.C.No.12145/2016, it is the accused need to examine Krishnegowa and G.Eswar, irrespective of result of his evidence, but in that regard, no effort is made by him. It was the case of the accused that, Krishnegowda, by misusing the cheque and documents obtained in the name of complainant, though not borrowed loan from complainant, but borrowed loan fro. G.Eswar, while filed joint memo, took those documents with cheque of him as well as his wife and filed the false case.
25. The DW.1 during his cross-examination, he clearly admitted that, he is an graduate of B.E., incomplete and doing the building lawn contractor work and very particularly he deposes that:
"£Á£ÀÄ ©.E C¥ÀÇtð ªÁå¸ÀAUÀ ªÀiÁrzÉÝãÉ. £À£ÀUÉ PÀ£ÀßqÀ EAVèõï NzÀ®Ä, §gÉAiÀÄ®Ä UÉÆvÀÄÛ. £Á£ÀÄ PÀlÖqÀ ªÀÄvÀÄÛ ¯Á£ï UÀÄwÛUÉzÁjPÉ ªÀiÁqÀÄvÉÛãÉ. £À£ÀUÉ zÁR¯ÉUÀ¼À §UÉÎ CjªÀÅ EzÉ. £Á£ÀÄ AiÀiÁªÀÅzÁzÀgÀÆ zÁR¯ÉUÀ½UÉ ¸À» ªÀiÁqÀĪÁUÀ N¢ w½zÀÄPÉÆAqÀÄ ¸À» ªÀiÁqÀÄvÉÛãÉAzÀgÉ ¸Àj. zÁR¯ÉUÀ¼À£ÀÄß §gÉAiÀÄĪÁUÀ CzÀPÉÌ ¸ÀA§AzÀs¥ÀlÖ «µÀAiÀÄzÀ ¥ÀjeÁÕ£À EzÀÄÝ, £ÀAvÀgÀ §gɬĸÀÄvÉÛãÉAzÀgÉ ¸Àj. ¨ÉÃgÉAiÀĪÀjUÉ zÁR¯ÉUÀ¼À£ÀÄß ¤ÃqÀĪÁUÀ Judgment 17 C.C.No.14245/2017 CzÀgÀ GzÉÝñÀ w½¢gÀÄvÀÛzÉ JAzÀgÉ ¸Àj. zÁR¯ÁwUÀ¼À°è GzÉÝñÀ ¸ÀjAiÀiÁVzÀÝ°è ªÀiÁvÀæ ¸À» ªÀiÁqÀÄvÉÛêÉAzÀgÉ ¸Àj."
26. The DW.1 has stated above, he being qualified, he knew about the documents and whenever he used to sign any document, after knew the same, read over the same and affixed his signature. He also deposed that, he knew the purpose of execution of document, if at all, it is correct, then only used to sign the same. Therefore, it made clear that, the accused is a prudent man and no one can easily cheat him by way of obtaining the documents and signature. Therefore, it clearly reveal that, accused being a prudent man deposed before this court, hence, his evidence is also having substantial value. Therefore, it also require to appreciate his cross-examination in connection to the present case.
27. On going through the said cross-examination of DW.1, he also clearly admitted that, cheque is important document and he had no habit of sign blank cheques, but stated, sometimes used todo so. The accused has stated that, he gave two signed blank cheques to one Krishnegowda, in respect of payment of Rs.5 lakhs. That apart, he also deposed that, his wife was also gave cheque for Rs.2,50,000/- to Krishnegowda and G.Eswar. The Judgment 18 C.C.No.14245/2017 DW.1 has deposed that, except Krishnegowda, he does not gave any cheque to others. But in his further consideration receipt, he clearly admitted that:
"¤¦.1 gÀ ZÉPï ºÁUÀÆ CzÀgÀ°ègÀĪÀ ¸À» £À£ÀßzÉÃ. D ZÉQÌ£À°ègÀĪÀ §gÀªÀtôUÉ PÀÆqÀ £À£ÀßzÉà JAzÀgÉ ¸Àj."
28. As per the say of DW.1, he clearly admitted that, the Ex.P1- cheque is of him and fillings made by his hand writing. Therefore, it made clear that, the questioned cheque is executed by the accused himself.
29. That apart, the accused in his further cross-examination has clearly admitted that:
"¤¦.7 gÀ°ègÀĪÀ §gÀªÀtôUÉ £À£ÀßzÉÃ. CzÀgÀ°ègÀĪÀ ¸À» PÀÆqÀ £À£ÀßzÉÃ. ¤¦.7 gÀ°è ¦AiÀiÁ𢠤ÃrzÀ £ÉÆÃn¸ï £À£ÀUÉ vÀ®Ä¦zÉ, ºÀtzÀ ªÀÄÄUÀÎnÖ¤AzÀ ºÀt ªÀÄgÀ½¸À®Ä ¸ÁzÀså«®è, 4 wAUÀ¼À CªÀ¢ü PÉýzÉÝ JAzÀgÉ ¸Àj. ¤¦.8 ªÀÄvÀÄÛ 9 rªÀiÁåAqï ¥Áæ«Ä¸Àj £ÉÆÃmï ºÁUÀÆ ºÀt ¸ÀAzÀ gÀ²Ã¢AiÀÄ°ègÀĪÀ ºÀ¸ÁÛPÀëgÀ £À£ÀßzÉ. CzÀgÀ°è £Á£ÀÄ LzÀÄ PÀqÉ ¸À» ªÀiÁrzÉÝãÉ. ¸ÀzÀj zÁR¯ÉUÀ¼À°è ¦AiÀiÁð¢AiÀÄ §zÀ°UÉ PÀȵÉÚÃUËqÀ£À ºÉ¸ÀgÀÄ §gÉAiÀÄ®Ä vÉÆAzÀgÉ EgÀ°®è. ¸ÁQëAiÀÄÄ ¸ÀévÀB ªÀÄÄAzÀĪÀgÉzÀÄ, PÀȵÉÚÃUËqÀ CªÀgÀ ºÉ¸ÀgÀ£À°è D zÁR¯ÉUÀ¼À£ÀÄß §gɬĹPÉÆAr®è. ¢£ÁAPÀ 20.08.2016 gÀAzÀÄ ¸ÀzÀj zÁR¯ÉUÀ¼À£ÀÄß §gÉAiÀÄĪÀ ¸ÀAzÀ¨Àsð PÀȵÉÚÃUËqÀ C°è Judgment 19 C.C.No.14245/2017 EgÀ°®è JAzÀgÉ ¸ÀjAiÀÄ®è. ¦AiÀiÁð¢¬ÄAzÀ £Á£ÀÄ gÀÆ.5 ®PÀë ºÀt ¥ÀqÉzÀÄ DPÉUÉ ¸ÀzÀj zÁR¯ÉUÀ¼À£ÀÄß §gÉzÀÄPÉÆnÖzÉÝ JAzÀgÉ ¸ÀjAiÀÄ®è."
30. On going through the said testimony of DW.1, he clearly admitted the Ex.P6 letter written by him, in his hand handwriting, it also includes his signature. More particularly, he clearly admitted that, after receipt of legal notice at Ex.P7, since he suffering from financial difficulties, not able to pay the amount, sought for four months time with the complainant. The said request made by him by way of wrote a letter at Ex.P7, sought time for 4 months is been clearly admitted by the DW.1. More particularly, he also clearly admitted that, the hand writing and signature found in Exs.P8 and P9, which are On demand promissory note and consideration receipt, are of him. Even, he categorically admitted, 5 places he put his signature to those documents. He also made clear that, he had no impediment to mention the name of Krishnegowda, instead of the name of complainant, but he volunteers that, Krishnegowda not asked write his name in those documents. He denied the suggestion that, on 20.08.2016, while prepared those documents, Krishnegowda were not in the place and those documents were executed by the accused for having receipt of Rs.5 lakhs from the complainant. Therefore, it made Judgment 20 C.C.No.14245/2017 clear that, from the evidence of DW.1, he got admitted the signature and fillings of cheque and On demand promissory note and consideration receipt along with undertaking letter at Ex.P7 is made by himself.
31. Even, he not stated anything that, the said Krishnegowda got obtained those documents, either by way of fraud or coercion or any undue influence. If at all, that being the case of the accused definitely, he could have been narrated those compelling circumstances arose to him got execute those document in the name of complainant, if at all, they have secured by illegal means. In that regard, in his further cross-examination, he deposed that, he not lodged any complaint before the jurisdictional Police Station against complainant or Krishnegowda or G.Eswar. Even, he admitted that, he not made any instruction to his bank for making stop payment, as those cheques were not issued by the accused to the complainant. Even at least, after receipt of legal notice inspite of approach the complainant and got execute Ex.P7 undertaking letter to pay the money covered under the cheque, he could have initiate necessary legal action against the wrong doers, but no such effort is made by him. At least could have cause necessary reply in stating so, the same also not been explained. The complainant advocate has clearly suggested to Judgment 21 C.C.No.14245/2017 the accused that, accused borrowed loan of Rs.5 lakhs from the complainant on 20.08.2016, in the presence of the friend of accused by name Manjunathaswamy and in turn, accused got executed Exs.P8 and P9 On demand promissory note and consideration receipt. Wherein, the accused and Manjunathaswamy were singed. When the accused got admitted the execution of Exs.P8 and P9 in favour of complainant, in his own hand writing, those documents are suffice to believe that, complainant gave loan of Rs.5 lakhs. Hence, accused in his own hand writing filled and signed, thereby, executed the said document by acknowledging his liability. Therefore, examination of Manjunathaswamy, either he may be the friend of accused or knowing person to the complainant, in view of prove the execution of those vital documents, the examination of said witness does not warranted.
32. The PW.1 during her cross-examination has stated that, Krishnegowda S/o. Lingegowda is the person, who purchased the property from her. In order to show that, he is having any close relationship with the complainant or family members, who is beyond the back of complainant, the PW.1 has deposed that, except he purchased the property from her, no relationship had. Therefore, brought Krishnegowda to the present case, unless Judgment 22 C.C.No.14245/2017 examine him by the accused, it cannot be accepted that, those document were executed in favour of him and in turn, he got misused the same. If at all Krishnegowda or G.Eswar got misused the questioned cheque and forcibly got obtained the On demand promissory note and consideration receipt, definitely, it was very good ground to the accused to approach the concern police to initiate necessary action, in that regard, no effort is made by him. That apart, it also discloses, the accused after receipt of legal notice, in his hand writing wrote a letter at Ex.P7 undertaking to pay the money, to the complainant, which covers under the Ex.P1-cheque. Therefore, the said undertaking made by accused in his own hand writing with his signature is prove the case of complainant, as to the liability o the accused.
33. The accused utterly failed to prove initial burden and shifted the burden on the complainant to prove her case beyond the reasonable doubt. The clear cut admission made by the accused, in regard to the execution of Exs.P8 and P9 On demand promissory note and consideration receipt and execution of Ex.P7 undertaking letter, to pay the amount covered under the cheque, all the documents stood in favour of complainant, therefore, know the accused cannot take the defence that, he does not know the complainant against his own documentary evidence. Therefore, it Judgment 23 C.C.No.14245/2017 made clear that, accused utterly failed to prove his probable defence, but the complainant has able to prove her case beyond the reasonable doubt, on 20.08.2016, she gave loan of Rs.5 lakhs to the accused, and in turn, he got executed the On demand promissory note and consideration receipt as per Exs.P8 and P9 by the accused himself and got issued questioned cheque for discharge of the said liability. When the said cheque came to be dishonoured, complainant got issued legal notice at Ex.P3, after its service on the accused, himself got executed Ex.P7 undertaking letter in favour of complainant, undertaking to pay the cheque amount. Despite, he made undertaking to pay the amount within 4 months, even after filing of present case and prosecuted the matter all these days, the accused not paid the said money to the complainant. Thereby, he committed the offence punishable under Section 138 of Negotiable Instruments Act.
34. The complainant has complied the mandatory requirement and established her case successfully. Despite that, the accused has not set right the wrong committed by him as per Section 138 of Negotiable Instruments Act. Therefore, the accused is to be convicted by imposing fine in respect of the cheque amount of Rs.5 lakhs. Out of the cheque amount of Rs.5 lakhs, which is to be recover as fine, then, the same for Rs.4,90,000/- has to be Judgment 24 C.C.No.14245/2017 payable to the complainant as compensation and remaining amount of Rs.10,000/- payable to the state as fine amount. If the accused failed to pay the said amount within appeal period, as default sentence, he shall undergo simple imprisonment for 12 months.
35. As discussed above by way of furnishing clear, convincing, corroborative, oral as well as documentary evidence has proved that, the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Therefore, looking into the transaction, it is the considered opinion of this court that, the accused has taken bald, inconsistence defence without any base and failed to prove his improbable defence. Contrary, the PW.1 has established her case beyond the reasonable doubt through oral as well as documentary evidence. Thereby, unnecessarily cause the complainant to approach this court of law, therefore, the accused is liable to be punished by way of imposing fine sentence. Therefore, the accused is to be convicted by imposing the cheque amount as fine. If the accused failed to pay the said amount within appeal period, as default sentence, he shall undergo simple imprisonment for 12 months. Out of the said fine amount, sum of Rs.4,90,000/- shall be payable to the complainant as compensation to the complainant and remaining Judgment 25 C.C.No.14245/2017 amount of Rs.10,000/- shall be payable to the state as fine amount. Accordingly, if the accused fails to pay the whole fine amount within appeal period, the accused shall undergo simple imprisonment for 12 months. Thereby, one more opportunity has provided to the accused to comply the order. Otherwise, the very purpose of filing complaint will be defeated. As discussed above, the complainant has proved her case beyond reasonable doubt. In the result, the accused shall sentence to pay the fine amount as detailed in the order portion. Accordingly, Point Nos.1 and 2 are answered in the Affirmative.
36. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
ORDER Accused found guilty for the offence punishable under Section 138 of Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C.
the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay fine of Rs.5,00,000/-.
Out of the said fine amount, sum of Rs.4,90,000/- shall be payable to the complainant as compensation as per Section Judgment 26 C.C.No.14245/2017 357 of Cr.P.C. Remaining amount of Rs.10,000/- shall be payable to the state as fine amount.
In default of pay the fine amount, the accused shall under go simple imprisonment for 12 (Twelve) Months.
The bail bond and cash security/surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 27th day of January - 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Mahalakshmi List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque
Ex.P1(a) : Signature of accused
Ex.P2 : Bank endorsement
Ex.P3 : Office copy of legal notice
Ex.P4 : Postal receipt
Ex.P5 : DTDC Courier receipt
Ex.P6 : Postal Acknowledgment Card
Ex.P7 : Undertaking letter
Judgment 27 C.C.No.14245/2017
Exs.P8 & P9 : On demand promissory note and
consideration receipt
Exs.P8(a) & P9(a) : Signatures of accused.
List of Witnesses examined on behalf of the defence:
DW.1 : Sanjay.V List of Exhibits marked on behalf of defence:
Ex.D1 : CC of Joint memo
Ex.D2 : CC of award in C.C.No.12145/16
Ex.D3 : CC of vakalath of Eswar.G
Ex.D4 : CC of order sheet in Ex.No.121/2018
Ex.D5 : CC of Vakalath in Ex.No.121/18
Ex.D6 : CC of judgment in C.C.No.11749/2017
Ex.D7 : CC of Vakalath
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 28 C.C.No.14245/2017
27.01.2020.
Comp -
Accd -
For Judgment
Judgment 29 C.C.No.14245/2017
Judgment pronounced in the open court vide separate order.
***** ORDER Accused found guilty for the offence punishable under Section 138 of Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C.
the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay fine of Rs.5,00,000/-.
Out of the said fine amount, sum of Rs.4,90,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.10,000/- shall be payable to the state as fine amount.
In default of pay the fine amount, the accused shall under go simple imprisonment for 12 (Twelve) Months.
The bail bond and cash security/surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.