Bangalore District Court
K.H.Ramakrishnaiah vs S.Lingaraja on 8 January, 2024
KABC030146502020
Presented on : 26-02-2020
Registered on : 26-02-2020
Decided on : 08-01-2024
Duration : 3 years, 10 months, 11 days
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 8th day of January - 2024
PRESENT: SRI. N.K.SALAMANTAPI, B.A., LL.B.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.3841/2020
Complainant : K.H.Ramakrishnaiah,
S/o.Late Hanumaiah,
Aged about 69 years,
Occupation: Businessman,
R/at Ramohalli Village,
Old Grama Panchayath Building,
Kengeri, Bengaluru-60.
(Rep. by Sri.S.P.Govindaraju, Adv.)
V/S
Accused : S.Lingaraja,
S/o.Not Known,
Aged about 53 years,
R/at No.242, Bazar Street,
Kengeri, Bengaluru-60.
(Rep.by Sri.Rajagopala Naidu, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
Judgment 2 C.C.No.3841/2020
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Convicted.
DATE OF ORDER : 08.01.2024.
(N.K.SALAMANTAPI)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
The complainant has presented the instant complaint against the accused under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act for dishonour of cheque amount of Rs.3,50,000/-.
2. The brief facts of the complaint are as under:
The complainant is a businessman and the accused is acquainted with him since several years and they are friends. The accused has approached and requested the complainant for financial help to meet out his family needs and for his small investments. Believing the words of accused, the complainant paid an amount of Rs.3,50,000/- to the accused by way of cash on 24.05.2018 and on the very same day, the accused had executed a On demand promissory note in his favour and assured to repay the same on or before in the month end of May 2019.
Judgment 3 C.C.No.3841/2020 After expiry of said agreed period, when the complainant demanded the accused for repayment of the said amount, the accused failed to repay the same by giving one or other evasive answers and finally towards discharge of his liability, the accused has issued a cheque bearing No.375135 dated 26.07.2019 for sum of Rs.3,50,000/- drawn on UCO Bank, Kengeri Branch, Bengaluru in favour of complainant. The complainant presented the said cheque for encashment through his banker viz., Indian Bank, Ramohalli Branch, Kengeri, Bengaluru on 26.07.2019, the same came to be dishonoured and returned with an endorsement dated 08.08.2019 stating "Non-CTS cheque not accepted in clearing".
Hence, the complainant got issued legal notice to the accused through his counsel on 26.08.2019 by way of R.P.A.D calling upon him to repay the cheque amount within 15 days from the date of receipt of the legal notice and the same came to be returned on 27.08.2019 with a shara "Refused". Even after grace period of 15 days from the date of return of notice, the accused neither paid the cheque amount nor replied the notice. Thus, the accused committed an offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
Judgment 4 C.C.No.3841/2020
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 bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to accused, wherein, he denied the same and claimed to have the defence.
5. To prove his case, the complainant examined himself as PW.1 and got marked Exs.P1 to P7(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. In support of the defence, the accused himself was examined as DW.1 and got marked Exs.D2 and D3.
The DW.1 was subjected for cross-examination by the advocate for the complainant. In the cross-examination of PW.1, advocate for accused got confronted one document and the was marked as Ex.D1.
Judgment 5 C.C.No.3841/2020
7. Both side counsels have addressed their arguments.
8. On going through the rival contentions, based on the substantial evidence available on record, the following points would arise for determination:
1) Whether the complainant proves beyond all reasonable doubt that towards discharge of legally recoverable debt or liability, the accused has issued Ex.P1 - cheque in his favour and the same came to be dishonoured for the reasons 'Non CTS cheque not accepted in clearing' and even after issuance of notice, the accused has failed to repay the cheque amount and thereby accused has committed an offence punishable under Section 138 of N.I.Act?
2) 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 : As per final order, for the following:
REASONS
10. POINT No.1: The complainant has filed this complaint for an offence punishable under Section 138 of Negotiable Instruments Act against the accused and prayed to punish the Judgment 6 C.C.No.3841/2020 accused for an offence punishable under Section 138 of Negotiable Instruments Act.
11. In support of his case, the complainant filed his affidavit and himself examined as PW.1, wherein, he has reiterated the averments made in the complaint and he relied upon the documents at Exs.P1 to P7(a). Among them, cheque bearing No.375135 issued by the accused for sum of Rs.3,50,000/- dated 26.07.2019, drawn on UCO Bank, Kengeri, Bengaluru is marked as Ex.P1. The signature of accused is marked as Ex.P1(a). Ex.P2 is the Bank Endorsement issued by Indian Bank, the contents of Ex.P2 disclose that the cheque bearing No.375135 drawn for Rs.3,50,000/- was dishonoured for the reasons "Non CTS cheque not accepted in clearing". Ex.P3 is the Legal Notice dated 26.08.2019, the recitals of Ex.P3 disclose that the complainant has issued this notice to the accused through his counsel. By issuing this notice, complainant called upon the accused to repay the cheque amount of Rs.3,50,000/- within 15 days from the date of receipt of notice. Ex.P4 is the Postal receipt. Ex.P5 is the unserved R.P.A.D cover. Ex.P5(a) is the legal notice at Ex.P5. Exs.P6 and P7 are the On demand promissory note and consideration receipt dated 24.05.2018 executed by accused in favour of complainant regarding Judgment 7 C.C.No.3841/2020 availment of loan of Rs.3,50,000/- from the complainant. Exs.P6(a) and P7(a) are the signatures of accused. The PW.1 was subjected to the cross-examination by the advocate for accused.
12. In order to rebut the presumption available under Sections 118(a) and 139 of Negotiable Instruments Act, the accused has filed his affidavit and examined himself as DW.1. In his evidence, he has stated that he was running a medical shop in the name and style of Lingaraj Medicals as proprietor and he had a house property and getting monthly rent of Rs.60,000/- and also getting income from his medical shop and he was economically sound.
He further contended that complainant used to visit his medical shop to purchase medicines and he used to allow the complainant to sit in his medical shop. On occasionally he used to go for purchase of medicines, at that time, he would requested the complainant to stay in his medical shop and in the meantime, he had kept his Non-CTS cheques book in his medical shop, without his knowledge, the complainant had taken disputed cheque bearing No.375135 and misused the same and filed this false case against him.
Judgment 8 C.C.No.3841/2020 He further contended that due to his ill-health, he had closed his medical shop in the month end of December 2016 and let out the said shop on rent and he never stayed in the address shown by the complainant. He did not execute On demand promissory note and consideration receipt in favour of complainant and the signatures appear thereon are not belonging to him. The complainant has no financial capacity to lend alleged money to him. The legal notice sent by complainant was not served on him, he has not received an amount as alleged in complaint from the complainant and he has not issued the disputed cheque to the complainant for discharge of legally enforceable debt and the signature appears thereon was forged by the complainant, hence, he prayed for dismiss the complaint. In support of his contention, he relied upon the documents at Exs.D1 to D3. Among them, Ex.D1 is the unregistered rental agreement dated 07.06.2019 entered in to between accused and one Srinivasa.M. Ex.D1(a) is the signature of accused. Ex.D2 is the another unregistered rental agreement dated 08.12.2017 entered into between accused and one Abdul Rahaman and Ex.D3 is the statement of account for the period from 18.04.2015 till 02.05.2023 pertaining to accused issued by UCO Bank. In Judgment 9 C.C.No.3841/2020 support of defence of accused advocate the accused has relied upon the decisions are as under:
a) Crl.A.No.2402 of 2014 in the case of K.Subramani V/s.
K.Damodara Naidu.
b) Crl.A.No.636 of 2019 in the case of Basalingappa V/s. Mudibasappa.
c) Crl.M.P.No.1499 of 2017 in the case of Dinesh Agarwal @ Dinesh Kumar Agarwal V/s. The State of Jharkhand and another.
d) Appeal (Crl.) 518 of 2006 in the case of Krishna Janardhan Bhat V/s. Dattatraya G Hegde.
13. I have gone through the above decisions. In the above decisions their lordships observed that the complainant should prove his source of income.
14. No doubt, in this case, the compliance of mandatory provision to maintain the present case is not disputed. On going through the instant case presented by the complainant, it is made clear that as per Sections 118(a) and 139 of Negotiable Instruments Act, the initial statutory presumption is in favour of the complainant, which needs to draw the inference that the accused gave the questioned cheque at Ex.P1 for discharge of legally existence of recoverable debt, which covers as enumerated under those provisions, unless and until contrary is proved. Thereby, it is the initial burden shifted on the accused to rebut the statutory Judgment 10 C.C.No.3841/2020 presumption as well as facts placed by the complainant as per Section 139 of Negotiable Instruments Act.
15. The defence of accused is that he kept his Non-CTS cheque book in his medical shop and when the complainant used to stay in his medical shop, at that time, without his knowledge, the complainant had taken the disputed Non-CTS cheque from his medical shop.
16. If it is true the above contention of accused, what prevented him to take legal action against the complainant for misusing his cheque. In this case, I did not find any such action taken by the accused against the complainant for misusing of his Non-CTS blank cheque. It clearly shows that complainant has not taken the alleged cheque without the knowledge of accused.
17. In the cross-examination of PW.1, the accused has taken contention that he has no financial capacity to lend an amount of Rs.3,50,000/- to him. In the present case on hand, the accused has not given any reply notice to the statutory notice of complainant by questioning the financial capacity of complainant. When the accused did not question the financial capacity of complainant by giving reply notice, then he has no right to Judgment 11 C.C.No.3841/2020 question the financial capacity of complainant in the first instance before the court.
At this juncture, it is relevant to cite the judgment of Hon'ble Apex Court in Crl.A.No.362/2022 in the case of Tedhi Singh V/s. Narayan Dass Mahant, wherein, the Hon'ble Apex Court was pleased to observed that, "The trial court and the first appellant court have noted that in the case under Section 138 of the N.I. Act the complainant need not show in the first instance that he had the capacity. The proceedings under Section 138 of Negotiable Instruments Act is not a civil suit. At the time, when the complainant gives his evidence, unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity."
18. Admittedly, in the present case on hand, the accused has not given any reply notice to the statutory notice of complainant. Therefore, the accused cannot say that complainant has no financial capacity to give an amount of Rs.3,50,000/- to him without setting up contention in the reply notice.
19. In order to prove the financial capacity of complainant, the PW.1 has deposed that he had run a finance business in the name and style of Lakshmi Finance by obtaining money lending licence from the concerned authority. Through Lakshmi Finance he lent loans to others by way of cash. He further deposed that due to Covid-19 Pandemic, since 2 - 3 years he stopped his Judgment 12 C.C.No.3841/2020 finance business. His son is doing job in a private company and gave him sum of Rs.20,000/- p.m. The said testimony of PW.1 was not denied / disproved by the accused. It clearly discloses that the complainant was capable to lent loan to the accused. No where in the entire cross-examination, the PW.1 admitted the suggestions made by the learned counsel for accused.
20. Further the accused has denied the receipt of loan amount as well as issuance of disputed cheque to the complainant. Mere denial of loan and mere denial of issuance of disputed cheque by the accused to the complainant for discharge of legally enforceable debt without producing material evidence/documents before the court is not sufficient.
At this juncture, it is worthy to cite the decision reported in ILR 2006 KAR 4672 in the case of J.Ramaraj V/s. Iliyaz Khan, wherein, the Hon'ble High Court of Karnataka was pleased to observed that:
"Mere denial of issuing cheques would not be sufficient as it is time and again noted that once the cheque is issued duly signed by the petitioner, the presumption goes against him as per Section 139 of Negotiable Instruments Act."
Judgment 13 C.C.No.3841/2020
21. No prudent man gives cheque without any liability. Mere denial of the case of complainant by the accused is not sufficient to acquit the accused.
22. Further defence of accused is that the alleged Ex.P1- cheque is belonging to him and signature appears thereon is not belonging to him and he has not executed the Exs.P6 and P7 - On demand promissory note and consideration receipt to the complainant and the signatures appear thereon are not belonging to him. On carefully perusal of the admitted as well as disputed signatures appear on court records i.e, cheque, On demand promissory notice and consideration receipt, Vakalathnama, Plea, statement under Section 313 of Cr.P.C and depositions of accused, it clearly appears that they are in similar manner. Hence, the contention of accused that the signatures appear on Ex.P1(a) and Exs.P6 and P7 are not belonging to him cannot be accepted. If really, the signatures appear on Ex.P1-cheque and Exs.P6 and P7-On demand promissory note and consideration receipt are not belonging to him, what prevented him to adduce the evidence of his bank manager by producing his specimen signature card before the court, which was received by the bank authority at the time of opening of bank account of the accused. Further, the accused has not taken any steps to send the Ex.P1-cheque, Judgment 14 C.C.No.3841/2020 Exs.P6 and P7-On demand promissory note and consideration receipt along with admitted documents to FSL to know the genuineness of signatures appear on Ex.P1, Exs.P6 and P7. In the absence of such materials before the court, it is difficult to accept the say of accused that the signatures appear on the questioned cheque and On demand promissory note and consideration receipt are not belonging to him.
23. The advocate for accused argued that the complainant has not shown the amount which said to be lent to the accused in his income tax returns and he did not produce his income tax returns before the court. Hence, the accused is not liable to pay the cheque amount to the complainant.
24. Only non showing lending amount in the income tax returns is not a ground to disbelieve the case of complainant that the complainant has not given amount to him. Non showing the loan amount in the income tax returns, it is the dispute between complainant and income tax authority. Therefore, only on that ground it is not proper to disbelieve the case of complainant.
25. The advocate for accused has further argued that the Ex.P2-bank endorsement, it discloses that the disputed cheque came to be returned as "Non-CTS cheque not accepted in Judgment 15 C.C.No.3841/2020 clearing". Hence, Section 138 of Negotiable Instruments Act does not attract against the accused and the accused is not liable to pay the cheque amount to the complainant.
26. In the present case on hand, the accused has not taken any steps to hand over the old cheques viz., Non CTS cheques to his banker. It clearly shows that in order to cheat the complainant, the accused has issued Non CTS cheque to him towards discharge of his liability.
It is worthy to cite the judgment of Hon'ble High Court of Judicature at Madras in Crl.M.P.Nos.14124 & 14126 of 2022 decided on 12.09.2022 in the case of B.Venugopal V/s. S.Narayanan, wherein, it was pleased to held that ".........Admittedly, even till now, the account is very much alive. Even assuming that the case of the petitioner is true that the alleged cheque was stolen by the respondent, the petitioner never lodged any complaint as against the respondent. That apart, the petitioner did not take any steps to hand over the old cheques viz., Non CTS cheque to the concerned bank. It would show that after expiry of those cheques in order to cheat the respondent, the petitioner issued Non CTS cheque to the respondent towards repayment of loan availed by him".
In view of the above judgment the accused cannot escape from the liability by saying that the disputed cheque is Non-CTS cheque.
Judgment 16 C.C.No.3841/2020
27. Further the accused has taken contention in his affidavit evidence that the legal notice sent by complainant was not served to him and he never stayed in the address shown in the cause title of complaint and he stayed in the residence of Saivaibhav Apartment. In the entire cross-examination of PW.1, the advocate for accused did not pose any question regarding whether the statutory notice sent by complainant to the address of accused is served or not?. The complainant has stated that he sent demand notice to the correct address of accused and the same was refused by the him. On carefully perusal of Exs.D1 and D2rental agreements, which were relied by the accused, it shows the resident address of accused is No.242, Bazar Stree, Kengeri, Bengaluru560 060. Further on perusal of address mentioned in Exs.D1 and D2, cause title of complaint, legal notice and Ex.P5 Unserved R.P.A.D cover, it appears that the said addresses are all in similar. The accused in his affidavit evidence deposed that he never stayed in the complaint cause title address and he resided in Saivaibhav Apartment. In order to prove the said defence, the accused has not placed any single piece of document before the court. It creates doubt in the mind of this court that the accused has taken false contention in order to Judgment 17 C.C.No.3841/2020 escape from his liability. Further in order to disprove the service of demand notice, the accused did not try to adduce the evidence of concerned post master. Therefore, the accused cannot say that the legal notice was not served on him and he does not aware about the notice sent by the complainant. From which, it made clear that the legal notice as required under Section 138(b) of Negotiable Instruments Act was served upon accused and complainant has complied the Section 138(b) of Negotiable Instruments Act.
28. On overall appraisal of the materials available on record, I am of the opinion that the accused has failed to discharge initial burden to rebut the statutory presumption as well as the facts and circumstances placed by the complainant in the present case. Thereby, the complainant has proved the guilt of the accused that the accused is liable to pay the amount covered under the Ex.P1- cheque. There is no substance in the probable defence of the accused, whereas the complainant has discharged his burden and proved the guilt of the accused beyond all reasonable doubt. Therefore, keeping in the mind of the object of introduction of Negotiable Instruments Act, it appears this court that it is a fit case to convict the accused for an offence punishable under Section Judgment 18 C.C.No.3841/2020 138 of Negotiable Instruments Act. Hence, in view of the above said reasons, I hold point No.1 in the Affirmative.
29. Point No.2: In view of my findings on point No.1, I proceed to pass the following:
ORDER 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 total fine of Rs.3,70,000/-.
Out of the said fine amount, sum of Rs.3,65,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C.
Remaining amount of Rs.5,000/- shall be payable to the state as fine amount.
In default of payment of fine amount, the accused shall under go simple imprisonment for 06 (Six) 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 in free of cost. (Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 8 th day of January - 2024) (N.K.SALAMANTAPI) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 19 C.C.No.3841/2020
ANNEXURE
List of Witnesses examined on behalf of Complainant:
PW-1 : K.H.Ramakrishnaiah 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 : Unserved R.P.A.D cover
Ex.P5(a) : Legal notice at Ex.P5
Exs.P6 & P7 : On demand promissory note and
consideration receipt
Exs.P6(a) & P7(a) : Signatures of accused
List of Witnesses examined on behalf of the defence:
DW.1 : S.Lingaraj List of Exhibits marked on behalf of defence:
Exs.D1 & D2 : Rental Agreements
Ex.D1(a) : Signature of accused
Ex.D3 : Statement of account
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 20 C.C.No.3841/2020
Judgment pronounced in the open court vide separate order.
***** ORDER 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 total fine of Rs.3,70,000/-.
Out of the said fine amount, sum of Rs.3,65,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.5,000/- shall be payable to the state as fine amount.
In default of payment of fine amount, the accused shall under go simple imprisonment for 06 (Six) 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 in free of cost.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 21 C.C.No.3841/2020 Later, the convictee's counsel filed application Under Section 389(3) of Cr.P.C seeking for suspend the sentence for the reasons stated in the application.
Heard.
In the present case, the judgment was pronounced and convicted the accused. In view of the same, the convictee's counsel has prayed that to suspend the sentence by appeal period.
For the reasons stated in the application, for the limited period of prefer appeal only, the application filed by the accused's counsel under Section 389(3) of Cr.P.C. is hereby partly allowed and sentence is suspended till appeal period only.
The convictee is hereby directed to
execute bond for fine amount of
Rs.3,70,000/.
XXIII ACMM, Bengaluru.