Bangalore District Court
Smt. Sheeja Ramesh vs Sri Jijin Lucas on 11 May, 2018
IN THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY
Dated this the 11th day of May, 2018
PRESENT: SRI MADHVESH DABER, B.COM., L.L.B(SPL).,
XIX ADDL.C.M.M., BENGALURU.
Case No: C.C.No.14826/2016
Complainant: Smt. Sheeja Ramesh
D/o. M.G. Sudhakaran,
Aged about 39 years,
R/at No.104, Elegant Legacy,
No.80, Margosa Avenue,
Greeglen Layout, Bellandur,
Bengaluru - 560 103.
Accused: Sri Jijin Lucas,
S/o. P E Lucas,
Aged about 35 years,
R/at No.1037, 2nd Cross,
Kacharakanalli
St. Thomas Town Post,
Bengaluru - 560 084.
Offence complained of: U/s.138 of N.I.Act
Plea of accused: Pleaded not guilty
Opinion of the Judge Accused found guilty
Date of order: 11th May 2018
JUDGEMENT
The complainant has filed this complaint U/s.200 of Cr.P.C. against the accused for the offence punishable U/s. 138 of N.I. Act.
2 C.C.No.14826/2016
2. The brief facts of the complaint are that;
The Complainant contends that she is the Director of Uriah Solutions, Bengaluru which deals with BPO which takes process from companies and runs it effectively and efficiently. The Complainant came to know about the Accused through a common friend and the Accused is the M.D. of Concord Outsource, Bengaluru and deals with providing clients with processes. The Accused approached the Complainant for introducing/providing the clients to Complainant's company for processing their business. For that the Complainant paid Rs.1,50,000/- through online transfer by Complainant's friend namely Sri Ramchand Shah on 24.12.2015 to the account of Accused bearing No. 03621000020617 of Panpose branch. Even prior to above transaction also the Complainant had paid Rs.60,000/- to the Accused out of which Rs.20,000/- in cash and Rs.40,000/- through cheque.
3. The Complainant further submits that the process as agreed by the Accused did not take place. As such, he demanded the Accused to refund the entire amount whatever she paid to the 3 C.C.No.14826/2016 Accused. For that the Accused issued the cheque bearing No.132661 of State Bank of Travancore, HRBR branch, for Rs.1,50,000/-. To the surprise of the Complainant when it was presented for encashment it was dishonoured for the reason "funds insufficient". Thereafter the Complainant called upon the Accused by issuing a Legal Notice dtd.30.4.2016 to pay the cheque amount. Though the cheque was duly served upon the Accused, but he did not make payment or replied the same. Hence, after complying all the legal formalities, the present complaint came to be filed.
4. Soon after filing of the complaint, cognizance of the offence was taken. Matter was registered as P.C. After recording of sworn statement of the complainant, the Private Complaint lodged by the complainant was registered as a Criminal Case. Summons was issued as against the accused. The accused appeared through his Counsel and he was enlarged on bail. Substance of accusation was read over to the accused. The accused pleaded not guilty and claimed to be tried. 4 C.C.No.14826/2016
5. The complainant got examined herself as PW1 and she got produced documents Ex.P1 to Ex.P4, Ex.P.6 and Ex.P.8. Ex.P.7 was confronted to DW1 in his cross-examination. She also got examined a witness from her side as PW2. Ex.P5 and Ex.P.5(a) documents were marked from his end.
6. After closure of the complainant side evidence, Statement of the accused u/Sec.313 of Cr.P.C. was recorded. The accused denied the incriminating evidence in toto and chosen to lead his defence evidence. The Accused got examined himself as DW1 and Ex.D1 to Ex.D3 documents were marked from him and closed his side.
7. Arguments heard. I have perused the entire records.
8. Now, the points that arise for my consideration are as under:
i) Whether the Complainant proves that the accused in discharge of legally enforceable debt, issued a cheque for Rs.1,50,000/-, which on presentation came to be dishonoured and he has failed to honour the notice and not paid the amount and thereby, committed an offence u/Sec.138 of N.I. Act?
ii) What order?5 C.C.No.14826/2016
9. My findings to the above points for consideration are as under:
Point No.1 : In the Affirmative Point No.2 : As per final order for the following:
:R E A S O N S:
10. Point No.1 :- In fact the Complainant Smt. Sheeja Ramesh entered into the witness-box as PW1 and filed an affidavit and reiterated the complaint averments and got examined herself and also got marked documents Ex.P1 to Ex.P4, Ex.P.6 and Ex.P8. Ex.P.7 document was marked through confrontation in the cross-examination of DW1. The Complainant also got examined a witness from her side as PW2 and Ex.P.5 and Ex.P.5(a) were marked from his side. Per contra, the Accused got examined himself as DW1 and 3 documents Ex.D1 to Ex.D3 were marked from his end.
11. During arguments, the learned Counsel for the Complainant reiterated complaint averments and submitted that as per the agreement taken place in-between Complainant and Accused with regard to supply of process, the Complainant paid 6 C.C.No.14826/2016 Rs.1,50,000/- to Accused by RTGS transfer into his account. It is argued that the same is supported by the bank statement Ex.P.5. Similarly, the Accused has sent e-mail messages as per Ex.D6 admitting that he was due to the Complainant at Rs.1,50,000/- . But the defence of the Accused is that the cheque was taken by putting him under threat. But to prove the same no cogent evidence is led. There are so many infirmities in the cross- examination of DW1 which disprove the case of the Accused. Moreover, the Accused has not produced any document to show that the Complainant is due to him at Rs.3,00,000/- . Even the Accused has not taken any action for misuse of the cheque. So learned Counsel for the Complainant submitted that the presumption u/Sec.139 of N.I. Act is not rebutted. Hence, he prayed to convict the Accused.
12. Per contra, the learned Counsel for the Accused argued that the Accused has disputed his signature over the cheque. On perusal of cheque and evidence of Accused, it goes to show that the signature over both of them are totally different. The notice is time-barred one as the endorsement was 7 C.C.No.14826/2016 dtd.2.3.2016 and notice was given after 30 days i.e., on 30.4.2016. So complaint is time-barred. There is wrong entry of account number of Accused. Moreover, the Ex.P.5 belongs to account of Shaw. No amount was transferred from Complainant into the account of Accused. E-mail will not satisfy the requirements of Sec.65(b) of Evidence Act. Even the E-mail is not in accordance with the rules. So Ex.P.6 is a forged document. The Accused has taken a probable defence that the cheque was taken under threat. There are so many infirmities in the cross-examination of PW1 which probabalise case of the Accused. Hence, learned Counsel for the Accused prayed to acquit the Accused.
13. It is trite principles of law that the presumption u/Sec.139 of N.I. Act is initially in favour of the Complainant that the cheque was issued for discharge of a legally recoverable debt or liability. However, the said presumption is rebuttable presumption. The Accused has to rebut the said presumption by taking a probable defence. The presumption can be rebutted even by eliciting facts from the cross-examination of PW1 or by leading defence evidence. For that Accused need not enter into the 8 C.C.No.14826/2016 witness-box. Even the question of legally recoverable debt or liability can also be contested. Whether the presumption is rebutted or not? depends on facts and circumstances of each case. This principle is laid down by Hon'ble Supreme Court in AIR 2010 SC 1898 Rangappa V/s. V. Mohan. In the light of above principles of law now I have to see whether the presumption is rebutted or not? and Complainant has proved his case or not?
14. On perusal of the complaint averments it goes to show that the Complainant has contended that the Accused approached the Complainant for introducing /providing the clients to Complainant's company for processing their business. For that the Complainant transferred Rs.1,50,000/- through online transfer from the friend of Complainant namely Sri Ramchand Shah on 24.12.2015. It is contended that since the process as per agreement proposal did not materialize the Complainant demanded to refund entire amount whatever she paid to the Accused. For that the Accused issued the cheque Ex.P.1 which on presentation came to be dishonoured for the reason "funds insufficient". Accordingly, after complying all the 9 C.C.No.14826/2016 legal formalities, the present complaint came to be filed. On the other hand, on perusal of the cross-examination of Pw1 it appears that the Accused has taken up a defence stating that the Complainant had received signed blank cheque for Rs.1,50,000/- i.e., Ex.P.1 by inducing the Accused that she would provide the BPO process and work to the persons recommended by Accused. The entire transaction alleged to have taken place between Complainant and Accused, is denied. Even some infirmities were extracted from the cross-examination of PW1.
15. In fact the Accused entered the witness-box and gave evidence as DW1. On perusal of evidence of Accused it goes to show that he has deposed that the Complainant approached him with a request for BPO process. He has got her the process from a company in Pondicherry for which she had deputed her staff Anish and Vikas with him to Chennai and Pondicherry. After due verification and being fully satisfied that they took over the process, it was agreed that his service charges of Rs.3,00,000/- shall be paid to him during the course of time. But whatever he demanded for payment of the same, the 10 C.C.No.14826/2016 Complainant avoided on one or the other pretext. The Accused further deposed that the cheque held by the Complainant before this court is illegal and punishable for prosecution for producing false evidence and misusing the process of court. The cheque has been misused by Complainant after obtaining it by using high handed methods and with threats to put his life and lives of his wife and his child in danger. It is also stated by him that no transaction has taken place as alleged by the Complainant and the cheque was not issued for legally recoverable debt. The friend of Complainant namely Sri Ramchand Shah has not paid any money as claimed by her. On the other hand, the Complainant herself is liable to pay him a sum of Rs.3,00,000/- for the work done. It is further stated by him that Complainant and PW2 Sri Ramchand Shah colluded with each other and misused the cheque to make unlawful gain and filed the present case without there being any liability to pay any money to the Complainant.
16. The Accused in addition to giving evidence as DW1, produced sample E-mails Ex.D1 to Ex.D3 to show that the 11 C.C.No.14826/2016 alleged E-mail messages sent by Accused as per Ex.P.6 is falsely created. In fact in the cross-examination DW1 has admitted that there was previous transaction between him and Complainant. He admits giving cheque Ex.P.1 to Complainant. He also admits that account extract of Sri Ramchand Shah as per Ex.P.5. He has denied transfer of Rs.1,50,000/- from the account of Sri Ramchand Shah into his account. But his contention is falsified by the documents Ex.P.5. According to Ex.P.5 bank statement it is abundantly clear that on 24.12.2015 Sri Ramchand Shah has transferred an amount of Rs.1,50,000/- into the account of Accused. Though he denies the same but documentary evidence overrides oral evidence.
17. It is pertinent to note that the Accused has not stated as to under what circumstance the amount was transferred from the account of Sri Ramchand Shah to his account. He has not given explanation as to for what reason Rs.1,50,000/- was transferred from the account of Sri Ramchand Shah into his account. So when Accused has not whispered anything about the reason for transferring Rs.1,50,000/- from the account of Sri 12 C.C.No.14826/2016 Ramchand Shah into his account then it supports the version of the Complainant.
18. That apart, the Ex.P.6 is the E-mail message. According to that E-mail message the Accused himself sought time for payment of Rs.1,50,000/-. No contra evidence is produced to disbelieve the same. Further the Accused admits transaction of Rs.40,000/- from the Complainant account into his account as per Ex.P.7. Moreover, the Accused admits that one Blake Askar Warden who worked with his company had filed a complaint against the company in the website, alleging that the Accused has not regularly given him the salary. So this goes to show that the conduct of the Accused is not proper. Moreover, there is no convincing and supportive evidence to show that the Complainant himself is due to the Accused an amount of R.3,00,000/-.
19. It is not clear as to why the Accused has not given police complaint if at all the cheque has been taken under threat. In this regard no notice is given and civil suit is not filed. There is no explanation why legal action was not taken by the Accused 13 C.C.No.14826/2016 against the Complainant. So all these circumstances go to show that the Accused has failed to rebut the presumption u/Sec.139 of N.I. Act. The Ex.D1 to Ex.D3 are nowhere helpful to the Accused to rebut the presumption u/Sec.139 of N.I. Act. The Complainant evidence is supported by the documents Ex.P.5 and Ex.P.6. Moreover, Sri Ramchand is examined as PW2 and deposed that he himself transferred an amount of Rs.1,50,000/- into the account of Accused on 24.12.2015. The same is supported by Ex.P.5. There is nothing on record to show that the Accused has returned Rs.1,50,000/- to Complainant. Under such circumstances, I am of the opinion that except some minor discrepancies, the evidence of Complainant is acceptable one. There is nothing on record to show that the Complainant has to pay Rs.3,00,000/- to the Accused. No favourable admission extracted form cross-examination of PW1 to be helpful to the Accused.
20. As regards the complaint being barred by time is concerned, it is argued that the Legal Notice was not issued within 30 days from the date of dishonour of the cheque as per 14 C.C.No.14826/2016 Ex.P2. On perusal of Ex.P.2 it goes to show that the cheque was dishonoured on 2.3.2016. As per Ex.P.3 notice was issued on 30.4.2016. So apparently it goes to show that the notice is time- barred. However, during evidence the Complainant has produced Ex.P.8 which goes to show t that the cheque was again presented and endorsement as per Ex.P.8 was issued on 2.4.2016. Similarly, the same is pleaded in para No.6 of the complaint. If same is taken into consideration the notice which was issued on 30.4.2016 is within 30 days from the date of dishonour of the cheque. So there is no substance in the contention of the Accused that notice is not in accordance with law. Hence, above contention cannot be accepted.
21. From overall reading of entire evidence on record, it is abundantly clear that the Complainant has proved her case beyond reasonable doubt. The Accused has failed to rebut the presumption u/Sec.139 of N.I. Act. Hence, the Complainant has proved the point No.1. Accordingly, I answer point No.1 in the Affirmative.
15 C.C.No.14826/2016
22. Point No.2:- In view of my findings on the above point and the reasons stated therein, I proceed to pass the following:
ORDER Acting u/Sec.255 (2) of Cr.P.C., the accused is hereby convicted for the offence punishable u/Sec. 138 of N.I.Act.
The accused is sentenced to pay a fine of Rs.3,00,000/- (Rupees Three Lakhs only), in default he shall undergo simple imprisonment for 3 (three) months.
Out of fine amount, a sum of Rs.2,90,000/- (Rupees Two Lakhs and Ninety Thousand Only) shall be paid to the complainant after appeal period is over. Remaining fine amount of Rs.10,000/- shall be forfeited to State.
The bail bond and surety bonds of the accused stand cancelled.
Office to furnish free copy of the judgement to the accused forthwith.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified and then pronounced by me in the Open Court on this the 11th day of May, 2018) (MADHVESH DABER) XIX ADDL.C.M.M., Bengaluru.16 C.C.No.14826/2016
ANNEXURE:
Witnesses examined on behalf of the Complainant:
PW.1 Smt. Sheeja Ramesh PW.2 Sri Ramchand Shah
Witnesses examined on behalf of the Accused: D.W.1 Sri Jijin Lucas Documents marked on behalf of the Complainant:
Ex.P.1 Cheque Ex.P.1(a) Signature of the Accused Ex.P.2 Bank endorsement Ex.P.3 Copy of the legal notice Ex.P.3(a) Postal Receipt Ex.P.4 Postal Acknowledgement Due Card Ex.P.5 Bank statement Ex.P.5(a) Relevant entry Ex.P.6 Letter Ex.P.7 Bank statement Ex.P.8 Copy of endorsement issued by the bank
Documents marked on behalf of the Accused: Ex.D.1 to Ex.D3 Copies of E-mail messages XIX ACMM, Bengaluru.17 C.C.No.14826/2016