Bangalore District Court
Sri. R.Muniraju vs Sri.K.Kumaraswamy on 15 February, 2016
IN THE COURT OF XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 15th day of February 2016
Present: Smt. Saraswathi.K.N, B.A.L.,LL.M.,
XVI Addl. Chief Metropolitan Magistrate,
Bengaluru.
JUDGEMENT U/S 355 OF Cr.P.C.,
Case No. : C.C. No.205/2014
Complainant : Sri. R.Muniraju,
S/o Sri H.Ramakrishna,
R/at No. 34/14, 9th D Cross,]
SBI Colony, J.P.Nagar 1st Phase,
Bengaluru - 78.
(Rep. by S.Basavaraj., Adv.,)
- VS -
Accused : Sri.K.Kumaraswamy,
S/o Krishnappa,
R/at No. 40/3, Shivalaya,
Ground Floor, 2nd Main,
Adjacent to Children Park,
Behind BBMP Sahayavani Road,
Subramanyapura Post,
Uttarahalli,
Bangalore-61.
Also at Sri.K.Kumaraswamy,
S/o.Krishnappa,
Delivery Branch,
Basavanagudi Head Post Office,
K.R.Road,
Bengaluru -04.
(Rep. by Malleshaiah. Adv.,)
2 C.C. No.205/2014
Case instituted : 12/07/2013
Offence complained of : U/s 138 of N.I. Act
Plea of accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 15.02.2016
JUDGMENT
The Complainant has filed this complaint against the accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. It is the case of the Complainant that, he knows the accused for the past several years. The accused has approached him in the month of March 2011 and requested for hand loan of Rs.2,50,000/-. Considering the request of the accused and having regard to the friendship, he paid Rs.2,50,000/- as hand loan by way of cash from the amount saved by him for his further contingencies and the accused has received the same on 18.03.2011. At the time of availing the said loan the accused assured the complainant that he would return the said amount within one year. The accused also executed an on demand pronote on the same day along with a consideration receipt in favour of the complainant and thereby he is liable to pay a sum of Rs.2,50,000/ to him. When he demanded the accused the said sum of Rs.2,50,000/- on several occasions, ultimately for the repayment of the above said amount, the accused issued a cheque in his favour for Rs.2,50,000/- on 15.05.2013 bearing No.926660 drawn on the Post Office Savings Bank, Bommasandra Industrial Estate 3 C.C. No.205/2014 Branch, Bangalore and requested him to present the cheque for encashment. When the same was presented for collection, it got dishonoured due to the reason of "Insufficiency of Funds" in the account of the accused as per the endorsement dated 18.02.2013. Thereafter he got issued legal notice to the accused calling upon him to make the payment. Inspite of the receipt of legal notice, the accused has neither replied to the notice nor repaid the cheque amount. Hence the present Complaint.
3. After recording the sworn statement of the Complainant, the same was registered as criminal case, summons was issued to the accused, who appeared through his counsel and got enlarged on bail. The substance of the accusation was read over to him, he pleaded not guilty and claimed to be tried.
4. In order to prove his case, the Complainant has examined himself as PW-1 by relying upon the documentary evidence at Ex.P1 to P8.
5. Thereafter, the incriminating evidence found in the evidence of the Complainant has been explained to the accused by recording his statement as required under Sec. 313 of Cr.P.C. He has denied the incriminating evidence and the accused has examined himself as DW-1 and relied upon Ex.D-1 & 2.
6. The counsel for the complainant has filed his written arguments and I have heard the arguments of the counsel for the accused.
4 C.C. No.205/20147. The following points arise for my consideration:-
1. Whether the Complainant has proved beyond reasonable doubt that the accused is guilty of the offence punishable under Sec.138 of the Negotiable Instruments Act?
2. If so, what Order or Sentence?
8. My findings to the above points are as under:-
Point No.1 : In the Affirmative, Point No.2 : As per the final order for the following:-
REASONS
9. POINT No.1:- According to the complainant, he has advanced a sum of Rs.2,50,000/- to the accused by way of cash for the future contingencies of the accused on 18.03.2011, in respect of which, the accused is alleged to have executed an on demand pronote. According to the complainant, towards the repayment of the said loan amount, the accused has issued the cheque in his favour for Rs.2,50,000/- on 15.5.2013 drawn on the Post Office Savings Bank, Bommasandra Industrial Estate Branch, Bangalore. When the same was presented for collection, it got dishonoured due to the reason of "Insufficiency of Funds" in the account of accused. Thereafter inspite of receipt of legal notice the accused has neither replied to the notice nor repaid the cheque amount.
5 C.C. No.205/201410. To substantiate these allegations, the Complainant by examining himself as P.W-1 has filed his affidavit, in which, he has re-iterated the complaint averments.
In support of his oral evidence P.W-1 has produced the following documentary evidence:-
Ex.P-1 is the on-demand pronote and the consideration receipt, in which, P.W-1 has identified his signature as those of the accused as per Ex.P-1(a) and P1(b) respectively. The cheque dated 15.05.2013 as per Ex.P-2, in which, the signature at Ex.P-2(a) has been identified by P.W-1 as that of the accused, the memo issued by the postal department as per the Ex.P-3, two postal receipts as per Ex.P-4 and 5 respectively. The office copy of the legal notice as per Ex.P-6, postal acknowledgment as per Ex.P-7, the complaint as per Ex.P-8 and the signature of P.W-1 on the complaint as per Ex.P-8(a).
11. By relying upon this documentary evidence, during his cross examination, P.W-1 has deposed that, on 3.3.2011 the accused met him seeking loan and he has lent Rs.2,50,000/- to the accused in the presence of his landlord by name Nanjappa and according to P.W-1 the accused was residing in a rented house owned by Nanjappa in Sarakki. On 18.03.2011 he has lent the loan to the accused, but on the same day, he has not obtained the cheque from the accused. According to P.W-1 on the date of the alleged lending of the loan, the accused has issued an on demand pronote which was duly filled up by the accused himself. With regard to these documents, he has been cross examined 6 C.C. No.205/2014 extensively on the ground that on the said documents, except the name of one M.P.Nanjappa, there is no address mentioned with regard to the said Nanjappa, who is shown as a witness to the said transaction.
12. P.W-1 has deposed before the court that, he has no documents to show that in the year 2011, he had Rs.2,50,000/- which is alleged to have been lent by him to the accused and according to P.W-1, the said amount was not withdrawn by him from his bank, while the said amount was in his house by way of cash and he has lent the amount to the accused through the witness Nanjappa, who died in the year 2011. Further according to P.W-1, the accused has vacated his house in the year 2010-11 and at that time, he did not ask Nanjappa to get the cheque from the accused. Further it is deposed by P.W-1 that he could not produce his bank statement and he has denied that the disputed cheque is of the year 2006 and not relating to the year 2013 and the defence of the accused is that whenever P.W-1 used to go to the house of Nanjappa, he has taken away the cheque belonging to the accused without his knowledge. Further it is suggested to P.W- 1 that, since 15.10.2007, the accused is not working and within two months from 15.10.2007, the postal department authorities have taken back all the cheques pertaining to the accused. In this regard P.W-1 has pleaded ignorance. He has also pleaded ignorance to the suggestions that the cheque which are anterior and posterior to the disputed cheques have been negotiated in September 2006. Further he has denied the suggestion that, the 7 C.C. No.205/2014 endorsement which has returned as "late reasons" has been corrected by him as "Insufficient Funds". It is also suggested to P.W-1 that, he has got forged the signature of Nanjappa on the on- demand pronote and he has got it typed written, as per his whims and accordingly he has also created the on-demand pronote, but this defence version is also denied by P.W-1.
13. In order to rebut the presumption available in favour of the complainant, the accused has examined himself as D.W-1 and in his evidence before the court, he has deposed that the complainant used to visit his landlord Nanjappa's house in Sarakki, when he was a tenant under the said Nanjappa from 2005 to 2007 and that he has not done any financial transactions with the complainant. According to D.W-1, Ex.P-2 relates to the year 2006 and in this regard, he has produced two pass books as per Ex.D-1 & D-2 pertaining to account No.992845 and it is his specific defence that he had got two signed blank cheques for the purpose of payment of the insurance to his vehicle, RC book of his two wheeler, one on-demand pronote and two other documents in his house which went missing and he came to know about the same, at the time of vacating his house in the year 2008. According to him, after 2007 he has not done any transactions from the account pertaining to Ex.D-1 and D-2 and that the disputed cheque is no way concerned to him.
14. Further in his cross examination, it is admitted by D.W-1 that the disputed cheque at Ex.P-2 is relating to the account of Ex.D-1 and 2 and that the signature at Ex.P2(a) has been made by 8 C.C. No.205/2014 him and he has also admitted that, at Ex.P-2 it is stated "Muniraju", "Rs.2,50,000/-" and the date is mentioned as 15.05.2013. Further it is also admitted by D.W-1 that the signature at Ex.P-1 is also his signature. He has denied the suggestion that he has not given any information to the postal department alleging that his cheque has been lost, but he has not placed any materials to substantiate the same before the court. Further D.W-1 has deposed that he has not returned the unused cheque leaves to the postal department & that he has not lodged any complaint before the jurisdictional police with regard to the alleged missing of his documents, while vacating his house and that even after the service of summons from the court he has not taken any action against the complainant alleging the misuse of his documents by him.
15. Thus it is pertinent to note that, the accused has admitted that the pronote and consideration receipt which is at Ex.P-1 and also the disputed cheque at Ex.P-2 belongs to him but his defence is that they were lost in his house. Further even if this defence version of the accused is to be believed, then except the sole testimony of D.W-1, there is no reliable and cogent evidence so as to believe the version of the accused. but in his regard, there is no material placed by the accused. In view of the same it cannot be accepted that the defence of the accused is probable and reliable and therefore the same cannot be accepted and believed by this court.
9 C.C. No.205/201416. During the course of arguments the counsel for the Complainant has relied upon the following decisions:-
1. In S.A.Suryanarayana Vs., M.S.Devendrappa, reported in 2013 (1) AKR 252, wherein it been held that:-
"Admission of accused that he signed cheque on the alleged date, statutory presumption arises about the existence of debt in favour of the holder of the cheque".
2. In M.D.Ramakrishnaiah Vs., V.Javaregowda, reported in 2013(3) Kar. L.J.347, wherein it has been held that by our Hon'ble High Court of Karnataka that:-
" If signature on the cheque is admitted, there is no need to get opinion of expert in respect of the other contents of the cheque".
3. In T.Vasanthakumar Vs., Vijayakumari, reported in 2015(3) AKR 147, wherein it has been held that:-
" When the cheque as well as the signature on the cheque is not disputed by the accused, the presumption U/s.139 would be attracted. These story brought out by the accused that the cheque was given to the complainant long back in 1999 10 C.C. No.205/2014 as a security to the loan which was repaid, but the complainant did not return the security cheque, is unworthy of credit, apart from being unsupported by any evidence and mere printed date on cheque by itself cannot be conclusive of the fact that the cheque was issued in 1999".
4. In Mainuddin Abdul Sattar Shaikh Vs., Vijay D.Salvi, wherein the Hon'ble Apex court has awarded compensation to the extent of twice the cheque amount and simple interest thereon at 9% per annum to the complainant by referring to the earlier decision of the Hon'ble Apex court in R.Vijayan Vs., Baby and ano, reported in AIR 2012 SC 528 wherein it has been held that:-
" The court should, unless there are special circumstances, in all cases of conviction, uniformly exercise the power to levy fine upto twice the cheque amount (keeping in view the chque amount and the simple interest thereon at 9% per annum as the reasonable quantum of loss) and direct payment of such amount as compensation".11 C.C. No.205/2014
17. I have gone through all the decisions relied upon by the counsel for the complainant and it could be seen that, the principles of law laid down in these decisions are aptly applicable to the case on hand.
18. On the other hand, during the course of arguments the counsel for the accused has also placed relied upon the following decisions:-
1. In Ramdas Vs., Krishnanand, reported in 2014(3) Crimes 291, where in it has been held that:-
"When the complainant's financial capacity is denied and disputed, it become a relevant factor".
2. In John K.Abraham Vs., Simon.C, reported in AIR 2014 SCW 2158, wherein it has been held that:-
" In the facts of the said case that, when the complainant is not sure as to who wrote cheque nor aware as to when and where the existing transaction took place, for which the cheque was issued by the accused, it amounts to defects in the evidence of the complainant and raises a serious doubt in the case of the complainant".12 C.C. No.205/2014
3. In Shiva Murthy Vs., Amruthraj, reported in ILR 2008 KAR 4629, wherein it has been held that:-
" Before considering the conduct of the accused to find out as to whether or not he has been able to rebut the statutory presumption available U/s.139, the court ought to consider the existence of the legally enforceable debt. It is only after satisfying that the complainant has proved the existence of the legally enforceable debt or liability, the courts could have proceeded to draw presumption u/s.139 of the N.I.Act and thereafter find out as to whether or not the accused has rebutted has rebutted the said presumption".
19. No doubt, even in the present case, the complainant is bound to discharge the initial burden of proving the existence of the legally enforceable debt by the accused and in so far as the financial capacity of the complainant is concerned, though P.W-1 has been questioned in his cross examination by suggesting to him that he has not produced any documents to show that as on the date of his alleged lending of the money to the accused and he has admitted that he no documents to show that he had Rs.2,50,000/- with him in the year 2011, except this suggestions, there is no 13 C.C. No.205/2014 serious dispute with regard to the financial capacity of the complainant. Moreover the accused has admitted the issuance of legal notice by the complainant to him and having received the same which was sent to his office address.
20. By the overall appreciation of the entire evidence placed on record by both the sides, it could be concluded that accused has failed to demolish the case of the complainant and instead he has taken an unbelievable defence and as such it could be concluded that the amount covered under the cheque at Ex.P-1 is a legally recoverable debt and as such the complainant has discharged the initial onus cast upon him and as such the burden has once again shifted to the accused to disprove the presumption available under law in favour of the complainant. Further, the conduct of the accused in not taking any steps against the complainant even after the alleged misuse of his cheque and the pronote by the complainant goes to show that he has only taken a distorted version of defence which is totally unbelievable and un acceptable. In view of the aforesaid reasons and discussions, this point deserves to be answered in the Affirmative.
21. POINT No.2:- In view of the above reasons and discussions, I proceed to pass the following: -
ORDER By exercising the power conferred u/s 265 of Cr.P.C., the accused is hereby convicted for the offence punishable u/s 138 of Negotiable Instruments Act.14 C.C. No.205/2014
He is sentenced to pay a fine of Rs.2,75,000/- (Rupees two lakhs seventy five thousand only) within 30 days from today and in default of payment of fine, he shall undergo simple imprisonment for 6 (six) months.
Out of the fine amount so collected Rs.2,65,000/- is ordered to be paid to the Complainant and the balance of Rs.10,000/-
(Rupees ten thousand only) is ordered to be adjusted towards cost to the State exchequer..
The bail bond and surety bond of the accused stands cancelled.
Issue free copy of Judgment to the accused forthwith.
(Dictated to the stenographer, transcript thereof is computerized and printout taken by her, and then verified, and then pronounced by me in open Court on this the 15th day of February 2016).
(SARASWATHI.K.N), XVI Addl.,Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the Complainant:
PW.1 : R.Muniraju List of documents exhibited on behalf of the Complainant:
Ex.P-1 : On Demand Pronote and Consideration receipt;15 C.C. No.205/2014
Ex.P-1(a)&(b) : Signature of the accused;
Ex.P-2 : Cheque; Ex.P-2(a) : Signature of the accused, Ex.P-3 : Cheque return memo; Ex.P-4 & 5 : Postal receipts; Ex.P-6 : Copy of legal notice. Ex.P-7 : Postal acknowledgment, Ex.P-8 : Original complaint, Ex.P-8(a) : Signature of complainant on Ex.P-8,.
List of witnesses examined on behalf of the accused:
DW-1 : K.Kumaraswamy List of documents exhibited on behalf of the accused:
Ex.D-1 & 2 : Bank Pass Books
(SARASWATHI.K.N),
Date: 15.02.2016 XVI ACMM, Bengaluru City.
16 C.C. No.205/2014
15.02.2016
Judgment pronounced in the open court vide separate judgment.
ORDER By exercising the power conferred u/s 265 of Cr.P.C., the accused is hereby convicted for the offence punishable u/s 138 of Negotiable Instruments Act.
He is sentenced to pay a fine of Rs.2,75,000/- (Rupees two lakhs seventy five thousand only) within 30 days from today and in default of payment of fine, he shall undergo simple imprisonment for 6 (six) months.
Out of the fine amount so collected Rs.2,65,000/- is ordered to be paid to the Complainant and the balance of Rs.10,000/- (Rupees ten thousand only) is ordered to be adjusted towards cost to the State exchequer..
The bail bond and surety bond of the accused stands cancelled.
Issue free copy of Judgment to the accused forthwith.
(SARASWATHI.K.N), XVI Addl.,Chief Metropolitan Magistrate, Bengaluru City.17 C.C. No.205/2014