Bangalore District Court
S/O.Late B.K.Ramachandraiah vs Promised The Complainant To Repay The ... on 5 January, 2016
IN THE COURT OF XIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BANGALORE.
Present: Smt.C.G Vishalakshi, B.A., L.L.B.,
XIII A.C.M.M Bangalore.
C.C. NO.20093/2014
Dated: This the 5th day of January 2015
Name of the Sri.B.R.Krishna Murthy,
complainant S/o.late B.K.Ramachandraiah,
Aged about 67 years,
Door.No.173, in front of
Anjaneya Temple,
Doddkammanahalli,
Gottiger Post,
Bangalore-560 083.
Name of the accused Sri.Ravi Shetty,
S/o.Thammanna Shetty,
Aged about 43 years,
No.347, Plot No.FRF6,
Vijaya Bank Layout,
Bilekahalli,
Bannerughatta Road,
Bangalore-560 076.
Offence U/s.138 of Negotiable
Instruments Act.
Plea of the accused Pleaded not guilty
Final order Convicted
****************
JUDGEMENT
This complaint is filed against the accused U/s.200 of Cr.P.C. for the offence punishable U/s.138 of N.I Act. 2 C.C.No.20093/2014 .
2. The gist of the complaint is as follows; The complainant and accused are known to each other through one Tailor Balu and upon such friendship the accused approached the complainant on 27.11.2013 seeking financial help for development of the garment industry for the daughter of the accused by name Aaradhya and also for tax concerned and sought financial help of Rs.15,00,000/-. On the faith and friendship, the complainant had taken some time for arrangement of funds. Thereafter, he has arranged money of Rs.13,00,000/- and advanced the same in favour of the accused as hand loan on 31.12.2013. The accused promised the complainant to repay the said loan within 3 months without fail. But thereafter, the accused not kept his words. When the complainant demanded for repayment of the hand loan, the accused not paid the same, but sought some more time to repay the said loan amount. Thereafter, also he has not kept his words. Then, he complainant had demanded the accused finally for repayment of the said amount. Then the accused had issued cheque bg.No.028969 dt.15.05.2014 for 3 C.C.No.20093/2014 Rs.13,00,000/- drawn on Canara Bank, Araker Gate Branch, Bangalore. When the said cheque was presented for encashment through his Banker Canara Bank, Nobo Nagar Branch, Bangalore, it was bounced back dishonoured, with an endorsement dt.16.05.2014 as "insufficient Balance". Thereafter, though complainant has brought the fact of dishonour of cheque to the knowledge of the accused. The accused has not paid the cheque amount. Hence, having no other go, the complainant has got issued legal notice against the accused on 23.05.2014 through RPAD. The said notice was served on the accused on 29.05.2014. Inspite of receipt of same, the accused has not come forward for compliance of the said notice nor has paid the cheque amount. Hence, the complainant approached this court contending that, the accused has committed an offence punishable U/s.138 of N.I Act and prays to deal the accused in accordance with law.
3. On presentation of the complaint, this court has taken cognizance of the offence, Sworn statement of the complainant was recorded. On perusal of the 4 C.C.No.20093/2014 documents and on hearing the complainant, process was issued against the accused. In pursuance of the process, the accused appeared before this court and enlarged on bail. Copies of the complaint papers supplied to him. Substance of accusation was readover and explained to the accused. Accused did not pleaded guilty and claims to be tried. Hence, the matter was posted for evidence of the complainant.
4. In order to prove the case of the complainant, he got examined himself as PW.1 & got marked documents as Ex.P.1 to P.6 and closed his side evidence. After completion of the complainant evidence, the accused inspite opportunity has remained absent. Hence, the statement U/s.313 of Cr.P.C is dispensed with.
5. Heard arguments.
6. Upon reading the entire materials on record and on hearing the arguments the following points that arise for my consideration:
(i) Whether the complainant proves
beyond all shadow of doubt that, the
5 C.C.No.20093/2014
accused has committed an offence
punishable U/s.138 N.I Act ?
What order?
7. My answer to the above points are as follows:-
Point No.1: In the Affirmative Point No.2: As per the final order, for the following.
REASONS
8. Point No.i : As the accused did not pleaded guilty the complainant has chosen to examine himself as PW1 and got marked documents as Ex.P.1 to P.6.
9. As per the decision reported in ILR 2008 Kar. Pg. 4629 between Shivamurthy Vs.Amruthraj, and in another decision rendered by the Hon'ble Apex court in AIR 2008 SC 1325 between Krishna Janardharn Bhat Vs. Dattareya G. Hegde, in order to attract Sec.138 of N.I Act, the complainant has to satisfy 3 essential ingredients like, 1) there is legally enforceable debt, 2) that the cheque was drawn from the account of the Bank of the accused for discharge of whole or part of any debt 6 C.C.No.20093/2014 or other liability which pre-supposes to be legally enforceable debt, 3) cheque so issued returned unpaid due to Insufficient of funds.
10. Keeping in view the ingredients of Sec.138 of N.I Act I proceed to discuss the documents of this case.
(a) Ex.P.1 cheque bg.No.028969 dt.15.05.2014 for Rs.13,00,000/- drawn on Canara Bank, Arakere Gate, Bangalore. According to complainant Ex.P.1(a) is the signature of the accused. On perusal of the original complaint, which is marked as Ex.P.6, it is clear that it buttress the stand taken by the complainant herein.
(b) Ex.P.2 is the common pay-in-slip & cheque return memo, which shows that the above said cheque was returned unpaid dt.15.05.2014 because of the reason that, 'insufficient funds.' (c )It must be noted as per Clause (b) proviso to Sec.138 of N.I Act, the complainant was required to make a demand for payment of the said amount within 30 days from the date of receipt of cheque as un-paid. 7 C.C.No.20093/2014
(d) Ex.P.3 is copy of the legal notice dt.23.05.2014, which shows that the complainant made demand in writing calling upon the accused to make repayment of the said cheque amount by issuing notice against him which is within 30 days.
(e) Ex.P.4 is the postal receipt & Ex.P.5 is the postal acknowledgement, reflects that the legal notice was served on accused. As per Clause (C) proviso to Sec.138 of N.I Act, the accused is entitle 15 days time to make payment of money covered under cheque. Further, as per Sec.142 (b) of N.I Act, complaint has to be filed within 30 days from the date of which the cause of action aroses. Therefore, the complainant had filed this complaint well within time.
Thus, the complainant has fulfilled all the ingredients which were required for the completion of the offence punishable U/s.138 of N.I Act.
8 C.C.No.20093/2014
11. Keeping these documents in view, let us proceed to discuss that, whether the cheque in question belongs to the accused and whether the signature found on disputed cheque is that of the accused.
12. On looking the materials on record which shows that, there is no dispute so as to the fact that Ex.P.1 cheque is belongs to the accused Bank account and signature Ex.P.1(a) is belongs to the accused, as it is the specific defence of the accused that, he never borrowed any hand loan from the complainant and he had not issued Ex.P.1 cheque towards discharge of the said loan as claimed by the complainant. On the other hand, the complainant had assured the accused for sanctioning of the loan from the credit co-operative Society and on that time, he had taken signed blank cheques from the accused as security and thereafter by misusing those cheque & other documents has filed this false complaint, though there exists no debt or liability. Thus, there is no dispute so as to the fact that Ex.P.1 9 C.C.No.20093/2014 cheque belongs to the bank account of the accused and Ex.P.1 (a) is the signature of the accused.
13. It is well settled that, admission furnishes best evidence as per the decision laid down in AIR 1981 Pg. 2085.
Thus in my opinion, the admission given by the accused is sufficient to come to conclusion about the execution of N.I Act (Cheque in question) is admitted as well as proved.
14. In view of the decision reported in 2010 SC 1898 between Rangappa Vs. Mohan, once the execution of Negotiable Instruments Act is either proved or admitted, then the court shall draw a presumption U/s.139 of N.I Act, in favour of the complainant to that effect that the said Negotiable Instrument i.e, the disputed cheque has been drawn for valid consideration and it is towards legally recoverable debt and it is drawn for valuable consideration.
10 C.C.No.20093/2014
15. To substantiate his defence though accused cross-examined PW1 but except bare suggestions and denial nothing has been elicited from the mouth of PW1. Because the accused has taken the defence that, the complainant by assuring him that he will get sanctioned loan from Credit Co-operative Society had obtained 2 signed blank cheques and two On Demand Promissory Note and two consideration receipt etc., But he nowhere suggested the status of the complainant in relation to the said Society. Because it is not the defence of the accused that the complainant is an employee of the alleged co- operative Society or an agent to assure the accused for sanctioning of the loan. Further he has not placed any material to show that in what way the complainant is connected to the said Soceity in order to assist him for borrowing loan from the Credit Co-operative Society. On the other hand, PW1 is an retired employee and got retired from his Department during the year 2001 itself. When such being the case, how and on what capacity or on what influence the complainant could assure the accused for grant of loan from the said Society in favour of the accused.
11 C.C.No.20093/2014
16. Further, the accused also not given any particulars from which Co-operative Society the complainant had assured for sanctioning of the said loan in his favour and what sort of loan it is and when he had approached the complainant for loan and for what purpose. No such particulars has been placed by the accused before this court except a bare suggestion. Hence, the defence taken by the accused in explaining the circumstances how the disputed cheques went to the possession of the complainant is not convincing one and it cannot be probable defence.
17. Further, if the accused was to give cheques and other documents as security, then what was the necessity for him to approach the complainant for loan. On the other hand, he could have approached any Bank or financial Institution directly for loan, that too, when the complainant is in noway concerned to the Society in any manner. Hence, the say of the accused that the complainant had obtained his signed blank cheques, Promissory Notes and Consideration receipts as security by assuring him about sanctioning of loan in his favour 12 C.C.No.20093/2014 from the Credit Co-operative Society is not acceptable defence.
18. Further, if the accused is able to give security for the loan then, any Bank of financial Institutions would have advanced loan in his favour without the assistance of any body. When such being the case, why he had approached the complainant for loan when the complainant is not at all concerned to the alleged Credit Co-operative Society.
19. Further, if the accused was intended to obtained loan from the Credit Co-operative Society then why and what was the necessity for the accused to give signed blank cheques and other documents in favour of the complainant. If the defence were to be true, then the accused would have given the said documents as security in favour of the society from which he intends to borrow the loan. Things would have been different if the complainant was stood as guarantor for the loan allegedly obtained by the accused from the said Bank and then, there was chance of obtaining some of the documents from the accused as security under the 13 C.C.No.20093/2014 apprehension that the accused may commit default in repaying the loan to the Society. But it is not the case of the accused and he nowhere taken the defence that the complainant stood as guarantor for any loan transaction. Hence, viewing from any angle the defence taken by the accused is not convincing one.
19. Thus the accused has failed to prove his defence in establishing the fact that how the Ex.P.1 cheque came to the possession of the complainant. On the other hand, by taking the defence of borrowing loan through the credit Co-operative Society. The accused himself indirectly admitted about the fact that he was in need of money i.,e loan. This probabilises the case of the complainant, that accused had borrowed loan of Rs.13,00,000/- from the complainant and the accused is not a stranger but on the other hand, the accused being known person to the complainant had advanced loan in favour of the accused without obtaining any document or charging any interest. Mere the fact that the complainant not placed any documents to show that he had arranged amount from his son and son in law, it cannot be a 14 C.C.No.20093/2014 ground to suspect the entire case of the complainant. Because PW1 clearly explained how he secured the amount in order to advance it as loan in favour of the accused, stating that he had borrowed loan of Rs.4,00,000/-each from his son and son in law and by including Rs.5,00,000/- which was in his possession, he had given Rs.13,00,000/- in favour of the complainant. Further, what sort of document can be expected for having received loan from his son and son in law. Further, it un-disputed fact that PW1 i.e, complainant is an retired employee and doing real estate business. Hence, the say of the accused that, he has not monetary capacity to lend loan in his favour is not an acceptable one.
20. If the accused not borrowed any loan from the complainant and Ex.P.1 cheque was not given in favour of the complainant towards discharge of the debt or liability and on the other hand, he has given Ex.P.1 cheque and other documents in favour of the complainant as security. On the other hand, to get loan from the Credit Co-operative Society etc., then, it is for 15 C.C.No.20093/2014 the accused to explain before this court whether the complainant had assisted him to obtain loan from the Credit-Co-Operative Society or not. If the complainant not assisted him for sanctioning of the loan in his favour then why the accused did not made any attempt to take back his alleged signed cheques and other documents. If the complainant not returned the cheques and other documents, then he did not write any letter to the complainant and if the complainant did not responded for the said letter also, then what was the impediment for him to cause any legal notice against the complainant demanding him to return those cheque and other documents by narrating the circumstances in which he had given those documents in favour of the complainant and on that time secured also, if the complainant has not returned his signed documents, then why he did not lodged complaint against the complainant with the Police. Unless the accused has proved that they have acted as normal prudent man entering into the contract he could not be rebut the presumption which arose in favour of the complainant U/s.139 of N.I Act. Because no prudent man will remain silent without taking any legal steps to 16 C.C.No.20093/2014 collect documents of security. But no such overtact is forthcoming on the conduct of the accused. Hence, the defence taken by the accused that he had given Ex.P.1 cheque along with other signed blank cheques and Pro- notes in favour of the complainant on the assurance of the complainant that he would assist him to obtain loan from the Credit Co-operative Society hold no water.
21. If the defence were to be true then definitely he would have taken such defence in the reply notice by giving necessary reply to the demand notice issued by the complainant on account of dishonor of the cheque. But inspite of service of notice, the accused not made any attempt to give reply to the said notice by taking his defence. On the other hand, he had taken defence of giving the said signed blank cheques & other document infavour of the complainant as security for the sanctioning loan from the Credit- Co-operative Society, for the 1st time before this court and hence, the said defence is nothing but after thought. Hence, the defence is not acceptable one. With all these reasons, I am of the opinion that, complainant has proved that the accused 17 C.C.No.20093/2014 has committed an offence punishable U/s.138 of N.I Act. Hence, I answered Point No.1 in the Affirmative.
22. Point No.iv : In view of my discussions on Point No.1 in the Affirmative I proceed to pass the following.....
ORDER Acting U/s.255(2) Cr.PC, the accused is convicted for the offence punishable U/s.138 of N.I.Act.
The accused shall pay a fine of Rs.14,00,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for Six Months.
Out of the said amount,
Rs.3,95,000/- shall be paid to the
complainant as compensation, as
provided U/s.357 of Cr.P.C. and
Rs.5,000/- shall be remitted to the
state as fine.
(Dictated to the stenographer, transcribed by him, corrected and then pronounced in open court by me on this the 5th day of January, 2016) (C.G.Vishalakshi) XIII A.C.M.M., Bangalore.
18 C.C.No.20093/2014ANNEXURE Witnesses examined on behalf of the complainant:
PW1 : B.R.Krishna Murthy Documents marked on behalf of the complainant:
Ex.P.1 : Cheque Ex.P.2 : Common pay-in-slip Ex.P.3 : Copy of the Legal Notice Ex.P.4 : RPAD receipt Ex.P.5 : RPAD postal acknowledgement Ex.P.6 : Complaint
Witnesses examined on behalf of the accused:
Nil Documents marked on behalf of the accused:
Nil XIII A.C.M.M Bangalore.
• Accused copy furnished.19 C.C.No.20093/2014
(Order typed vide separate Sheet) ORDER Acting U/s.255(2) Cr.PC, the accused is convicted for the offence punishable U/s.138 of N.I.Act.
The accused shall pay a fine of Rs.14,00,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for Six Months.
Out of the said amount, Rs.3,95,000/- shall be paid to the complainant as compensation, as provided U/s.357 of Cr.P.C. and Rs.5,000/- shall be remitted to the state as fine. (C.G.Vishalakshi) XIII A.C.M.M., Bangalore.