Bangalore District Court
Sri M. Mohan vs Sri N. Venkatesh on 2 November, 2016
IN THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY
Dated this the 2nd day November, 2016
PRESENT: SMT. ISHRATH JAHAN ARA, B.A.L., L.L.B.,
XIX ADDL.C.M.M.BENGALURU.
Case No: CC No.27009/2014
Complainant: Sri M. Mohan
S/o. Late B.A. Munikrishna,
Aged about 34 years,
R/at No.264/11, 9th Main,
8th Cross, Sampangiram Nagar,
Bengaluru -560 027.
Accused: Sri N. Venkatesh
S/o. Narasimhaiah,
Aged about 41 years,
R/at No.44, 33rd Main,
Narasimhaswamy Badavane,
Jai Maruthi Nagar, Nandini Layout,
Bengaluru -560 096.
Offence complained of: u/Sec.138 of N.I. Act
Plea of accused: Pleaded not guilty
Opinion of the Judge Accused found guilty
Date of order: 2nd November 2016
JUDGMENT
The complainant has filed this complaint u/Sec.200 of Cr.P.C. against the accused for the offence punishable u/Sec.138 of N.I. Act.
2. The brief facts of the complainant that;
The Complainant has stated that the accused had borrowed a hand loan of Rs.10,00,000/- from this Complainant on two occasions 2 C.C.No.27009/2014 i.e., Rs.5,00,000/- each on 1.10.2013 and 25.12.2013 for the purpose of purchase of property and improve his interior decoration and furniture business by agreeing to repay the loan amount along with interest at the rate of 18% per annum and executed an On Demand Promissory Note with Consideration Receipt and agreed to repay the loan amount within a year. Subsequently, the accused failed to keep up his promise by repaying the loan amount. After repeated requests and demand to this Accused to repay loan amount, the accused had issued his cheque bearing No.334893 dtd.11.7.2014 for a sum of Rs.10,00,000/- drawn on State Bank of Mysore, Mahalakshmi Layout branch, Bengaluru with a request to present the said cheque for encasement.
3. It is further submitted by the Complainant that on the assurance of the accused, he presented the said cheque for encashment before his banker State Bank of Mysore, S.R. Nagar branch, Bengaluru on 12.7.2014 but the said cheque returned dishonored with an endorsement ''funds insufficient'' on 15.7.2014 and the same was informed to this accused.
4. It is further submitted by the Complainant that as the accused has failed to make payment of the cheque he got issued a legal notice on 18.7.2014 through RPAD demanding to make payment of the cheque amount within 15 days from the date of receipt of notice 3 C.C.No.27009/2014 and the said notice was duly served upon the accused on 19.7.2014. The accused after receipt of the Legal Notice, has neither chosen to make payment of the cheque amount nor he has sent his reply by denying the transaction. The accused knowing fully well that he has no sufficient balance in his bank account only with an intention to cheat the Complainant, had issued bogus cheque and thereby he has committed an offence punishable u/Sec. 138 of N.I. Act.
5. 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. Plea of accusation was read over to the accused. The accused pleaded not guilty and claims to be tried.
6. The complainant himself got examined as PW1 and he got produced 8 documents marked as Ex.P1 to Ex.P8 and closed his side of evidence.
7. After closure of the complainant side evidence, accused Statement u/Sec.313 Cr.P.C. recorded and read over to the accused in his language. The accused denied the incriminating evidence made against him and he intended to lead his evidence. The accused got 4 C.C.No.27009/2014 himself examined as DW1 and no documents were marked from his side and closed his side of evidence.
8. I have heard the arguments on the both sides and I have also perused the entire records.
9. The only point arise for my consideration is:
1. Whether the Complainant has proved the guilt of the accused u/s 138 of NI Act beyond all reasonable doubts?
2. What order?
10. My findings to the above point are as under:
Point No.1 : In the Affirmative
Point No.2 : As per final order
for the following:
REASONS:
11. Point No.1: The entire burden is on the complainant to prove his case and also to prove the above point. In order to prove the same, the complainant stepped into the witness box, got examined as PW-1 and he filed his affidavit in lieu of the oral evidence by reiterating the complaint averments.
12. PW1 deposed that the accused had borrowed a hand loan of Rs.10,00,000/- from him on two occasions each of Rs.5,00,000/-on 1.10.2013 and 15.12.2013 for the purpose of purchase of property and also to improve his business by agreeing to repay the loan amount along with interest at the rate of 18% per annum and executed an On 5 C.C.No.27009/2014 Demand Promissory Notes with Consideration Receipts and agreed to repay the loan amount within a year and subsequently, the accused failed to keep up his promise and on his repeated requests and demand to this Accused to repay loan amount, the accused had issued his cheque bearing No.334893 dtd.11.7.2014 for a sum of Rs.10,00,000/- drawn on State Bank of Mysore, Mahalakshmi Layout branch, Bengaluru with a request to present the said cheque for encasement.
13. He further deposed that on the assurance of the accused, he presented the said cheque for encashment before his banker on 12.7.2014 but the said cheque returned dishonored with an endorsement ''funds insufficient'' on 15.7.2014 and the same was informed to this accused.
14. He further deposed that as the accused has failed to make payment of the cheque he got issued a legal notice on 18.7.2014 through RPAD demanding to make payment of the cheque amount and the said notice was duly served upon the accused on 19.7.2014. He further deposed that the accused after receipt of the Legal Notice, has neither chosen to make payment of the cheque amount nor he has sent his reply by denying the transaction. He deposed that the accused knowing fully well that he has no sufficient balance in his bank account only with an intention to cheat him, had issued his bogus cheque and thereby he has committed an offence.
6 C.C.No.27009/2014
15. PW1 in order to prove his case got produced the cheque marked as Ex.P1. He deposed that the signature found on Ex.P1 is that of this accused and he got identified the signature of the accused marked as Ex.P.1(a). He got produced the bank endorsement marked as Ex.P2. He got produced the copy of the Legal Notice along with postal receipt marked as Ex.P3 and Ex.P3 (a) respectively. He got produced the postal acknowledgement due card for having served the notice to this accused marked as Ex.P4. He got produced two On Demand Promissory Notes and two Consideration Receipts executed by this accused marked as Ex.5 to Ex.P8 respectively.
16. The accused has denied the entire case of the Complainant and denied the very fact that he had borrowed a hand loan of Rs.10,00,000/- from this Complainant and in order to repay the said loan amount, issued his Ex.P1 cheque and the same was bounced. The learned counsel for the accused subjected PW1 for cross-examination.
17. PW1 in his cross-examination categorically stated that he is working as a LIC Agent and earning Rs.1,90,000/- per annum. He further stated he advanced the total loan amount of Rs.10,00,000/- on two occasions each of Rs.5,00,000/- to this accused on 1.10.2013 and 25.12.2013 by way of cash and he kept the entire loan amount at his house and after receipt of the loan amount, the accused had executed two separate On Demand Promissory Notes and Consideration 7 C.C.No.27009/2014 Receipts as per Ex.P5 to Ex.P8 on two separate dates. He admitted the suggestion that Ex.P5 to Ex.P8 documents are type written documents. However, PW1 has stated that this accused himself on his own, got typed the contents of Ex.P5 to Ex.P8 documents and brought the said document with him to borrow loan and after receipt of the loan amount, he put his signature on the said document in his presence. PW1 stated that the accused has neither paid the principal loan amount nor he paid the interest on the loan amount. He admitted that the Ex.P1 cheque is only for Rs.10,00,000/- and he has not included the interest in Ex.P1. On the contrary, the PW1 has stated that as this accused has undertaken to pay the interest separately he has taken Ex.P1 cheque only for the principle amount. PW1 has categorically stated that the Accused after receipt of the loan amount in order to repay the loan amount, had issued his Ex.P1 cheque.
18. PW1 denied the suggestion that this accused had no any difficulty to borrow loan from him and he was earning sufficient income of his own. He further denied the suggestion that the accused has not issued Ex.P1 cheque towards repayment of the loan amount of Rs.10,00,000/-.
19. Even though the accused denied the issuance of Ex.P1 cheque towards the repayment of the legally dischargeable debt or 8 C.C.No.27009/2014 other liability, however, the accused has categorically admitted the fact that the Ex.P1 cheque is belong to his bank account and even he admitted his signature found on Ex.P1 marked as Ex.P1(a). The accused even did not chosen to deny a fact that his Ex.P1 cheque was bounced with a reason that there was no sufficient funds in his bank account. on its presentation. Likewise, the accused has not chosen to deny a fact that before filing of this complaint, the Complainant had issued Ex.P3 notice calling upon him to pay the cheque amount and the same was duly served upon him. The accused has not chosen to deny the documentary evidence marked as Ex.P1 to Ex.P8. On the contrary, PW1 has categorically deposed that immediately after receipt of Bank endorsement as per Ex.P2 from his Banker, he got issued Ex.P3 notice calling upon the accused to pay the cheque amount and the same was duly served upon this accused.
20. He further deposed that the accused even after receipt of the Legal Notice, has neither chosen to pay the cheque amount nor he has sent his reply by denying the transaction. He has categorically deposed that the accused knowing fully well that he has no sufficient funds in his bank accused, had issued his bogus cheque with an intention to cheat him. The accused did not chosen to deny the documentary evidence. The Ex.P3 and Ex.P4 documents clearly prove that the notice issued as per Ex.P3 u/Sec. 138 (b) of N.I. Act was duly 9 C.C.No.27009/2014 served upon this accused and even inspite of receipt of Legal Notice, the accused has not chosen to make payment of the cheque amount.
21. Likewise, the accused except denying the execution of Ex.P5 to Ex.P8 documents in favour of this Complainant after receipt of the loan amount of Rs.10,00,000/-, has not chosen to deny his signature found on Ex.P5 to Ex.P8 documents. The accused has taken up the defence that the Complainant's friend Sri Basavalingaraju's wife was previously working at Police Commissioner's Office and she by using her influence of the Police Commissioner, unnecessarily summoned the accused to the Police Station and forcefully obtained his signatures on blank cheques and blank On Demand Promissory Notes with Consideration Receipts along with blank stamp papers and subsequently, with an intention to make higher interest under the money-lending business, by assuring this accused that they will assist him to get a loan from the private finance and misused his duly signed blank documents and filed this false complaint based on the created and concocted documents.
22. The accused during the cross-examination of PW1 put his defence by suggesting that his friend's wife with the help of his friend Sri Basavalingaraju, unnecessarily summoned this accused to the Police Station by using the influence of the Police Commissioner and at the police station, forcefully obtained his signatures on blank 10 C.C.No.27009/2014 cheques, blank On Demand Promissory Notes with Consideration Receipts and blank stamp paper with an assurance to get a loan in a private finance.. The said suggestion was categorically denied by PW1. He further denied the suggestion that he colluding with his friend Sri Basavalingaraju and his wife, misused the duly signed blank cheque and blank promissory notes of this accused and created the same as Ex.P1, Ex.P5 to Ex.P8 documents with an intention to make an unlawful gain and to cause loss to this accused, filed this false complaint.
23. PW1 during in his cross-examination denied the entire suggestions put to him and denied that this accused is not liable to pay cheque amount disclosed in Ex.P1. The accused during the cross- examination of PW1, except putting some suggestions that he had issued his duly signed blank cheque and blank duly signed On Demand Promissory Notes with Consideration Receipts with an intention to get a loan from the private financer at Police Station, which has been categorically denied by the PW1, nothing has been elicited from his mouth with respect to his defence. PW1 in his cross- examination denied the entire suggestions put to him and denied that the accused is not liable to pay the cheque amount.
24. In such situation, the burden shift on this accused to prove his defence and also to rebut the presumptions available to this 11 C.C.No.27009/2014 Complainant u/Sec.139 of N.I. Act. The Accused in order to prove his defence, stepped into the witness-box and got examined himself as DW1 and led his evidence by deposing that there was no any loan transaction in-between him with this Complainant and no point of time he had borrowed any loan much less amount of Rs.10,00,000/- from this Complainant. He further deposed that he has not issued his Ex.P1 cheque in favour of this Complainant towards repayment of the loan amount and even he has not executed Ex.P5 to Ex.P8 documents by acknowledging the debt of Rs.10,00,000/-. He deposed that he has not got type-written the contents of Ex.P5 to Ex.P8 documents. He further deposed that the Complainant's friend Sri Basavalingaraju and his wife had lodged a police complaint against him at Police Commissioner's office and for this reason, he left his house and subsequently, when he returned to his house, the police persons took him to the police Station and in the police station, they have forcefully taken his duly signed blank cheque along with duly signed blank promissory notes with Consideration Receipts along with his signatures on blank stamp paper. He further deposed that subsequently, the Complainant colluding with his friend Sri Basavalingaraju and his wife, misused all his duly signed blank documents and within two days, filed this false complaint by creating and concocting the documents and for this reason, he could not able to 12 C.C.No.27009/2014 initiate any separate proceedings either against this Complainant and or against his friend Sri Basavalingaraju. DW1 deposed that he is not liable to pay the cheque amount to this Complainant. Hence, he prays to dismiss the complaint.
25. The Complainant has denied the testimony of DW1 and his learned Counsel subjected DW1 for cross-examination. DW1 in his cross-examination stated that he is not aware of the name of the wife of this Complainant and even he is not aware of the residential address of this Complainant. DW1 categorically admitted that the Ex.P1 cheque is belonged to his bank account and also admitted his signature found on Ex.P1 cheque marked as Ex.P.1(a). He admitted a suggestion that the signature found on Ex.P5 to Ex.P8 documents are that of him and he himself issued these documents in favour of this Complainant. Likewise, he admitted the suggestion that the signature found on Ex.P4 - Postal Acknowledgement Due Card is that of him and he has personally received the notice issued by this Complainant as per Ex.P3 and even inspite of receipt of Legal Notice, he has neither chosen to sent his reply nor he has initiated any legal proceedings either against this Complainant or against his friend Sri Basavalingaraju and his wife.
26. Admittedly, the DW1 except adducing the oral evidence that his friend Sri Basavalingaraju and his wife by using their influence 13 C.C.No.27009/2014 as the wife of Sri Basavalingaraju who was working at Police Commissioner's office, lodged a false complaint against him before Police Commissioner's office and they forcefully taken him to the Police Station and with the help of the police, obtained his duly signed blank cheque along with duly signed blank On Demand Promissory Notes with Consideration Receipts along with duly signed blank stamp papers, has not chosen to prove the same by adducing documentary evidence before this court. Admittedly, the accused even after taking his duly signed blank documents by this Complainant with the help of police personnel at police station, he has not initiated any legal action either against this Complainant or against his friend Sri Basavalingaraju and or against his wife and even against police personnel. Moreover, the DW1 has failed to convince the court why he has not sent his reply immediately after receipt of Ex.P3 notice by denying the contents of the notice and also by denying the issuance of Ex.P1 cheque along with execution of Ex.P5 to Ex.P8 documents.
27. Moreover, DW1 in his cross-examination stated that he has no documents with him to prove that his duly signed blank documents were forcefully taken by this Complainant at police station with the influence of his wife. Though DW1 in his cross- examination denied the suggestion that he had issued Ex.P1 cheque in favour of this Complainant towards repayment of loan amount of 14 C.C.No.27009/2014 Rs.10,00,000/- after he borrowed the loan amount of Rs.10,00,000/- from this Complainant. On the contrary, admittedly, DW1 has not chosen to adduce any piece of document before this court to prove that without any financial transaction, the Complainant with the help of his friend Sri Basavalingaraju and his wife, forcefully taken him to the police station and forcefully taken his duly signed blank documents at police station.
28. The entire cross-examination of DW1 clearly discloses that the accused only with an intention to ran away from his liability to pay the cheque amount to this Complainant, has taken up the false defence that the Complainant with the help of his friend Sri Basavalingaraju and his wife, forcefully taken him to police station and at the police station, forcefully taken his duly signed blank cheque along with duly signed blank On Demand Promissory Notes with Consideration Receipts along with duly signed blank stamp paper and subsequently misused his documents and based on the created documents, filed this false complaint.
29. The accused except adducing the oral evidence that his duly signed blank documents were forcefully taken by this Complainant at police station, which has been categorically denied by the Complainant, has failed to prove his defence to the satisfaction of the 15 C.C.No.27009/2014 court by adducing cogent evidence before this court. There is nothing on record to believe the defence of the accused and to believe his oral testimony.
30. There is no convincing evidence before this court from the side of this accused to believe his defence. In such situation, without any cogent and convincing evidence before this court, it is not possible to believe the defence of the accused that the Complainant with the help of his friend Sri Basavalingaraju and his wife, has forcefully taken the duly signed blank documents of this accused at police station.
31. Even when this accused was question u/Sec. 313 Cr.P.C. by this court except denying the incriminating evidence made against him by PW1, has not put forth any defence from his side and even he has failed to convince this court why he has not taken any legal action either against this Complainant or against his friend Sri Basavalingaraju and even against his wife or even against the police personnel, who have illegally detained him without any registered complaint against him. The accused except denying the incriminating evidence, has not put forth anything with respect to his defence. The accused has failed to rebut the presumptions available to 16 C.C.No.27009/2014 this Complainant u/Sec. 118 of N.I. Act. and also u/Sec. 139 of N.I. Act it reads thus respectively.
32. As per the provisions of Sec.118, which reads thus:
a. Of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
b. As to date - that every negotiable instrument bearing a date was made or drawn on such date;
c. As to time of acceptance - that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
d. As to time of transfer - that every transfer of a negotiable instrument was made before its maturity;
e. As to order of endorsements - that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
f. As to stamps - that a lost promissory note, bill of exchange or cheque was duly stamped; g. That holder is a holder in due course - that the holder of a negotiable instrument is a holder in due course;
33. Likewise, he also failed to rebut the presumption available u/Sec. 139 of N.I. Act which reads:
It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.17 C.C.No.27009/2014
34. The arguments canvassed by the learned Counsel for the accused that the Complainant has misused the duly signed blank cheque along with duly signed blank promissory notes with Consideration Receipts forcefully taken at police station and created the same as Ex.P1, Ex.P5 to Ex.P8 and filed this false complaint and therefore the complaint has to be dismissed and this accused has to be acquitted, is not convinced this court and it holds no merit.
35. As I have discussed supra, the entire burden is on this accused to rebut the presumptions available to this Complainant u/Sec. 139 of N.I. Act. by adducing convincing evidence before this court. Here in this case the accused has not chosen to rebut the presumptions available to this Complainant by adducing cogent convincing evidence before this court. In such situation, the arguments canvassed by the learned Counsel for the accused that the accused need not prove this defence beyond all reasonable doubts and this accused can very well rebutted the presumptions available to this Complainant u/Sec. 139 of N.I. Act by preponderance of probabilities and even by cross-examining PW1 and this accused has successfully rebutted the presumptions available to this Complainant, is cannot be acceptable and it holds no merit..
36. On the contrary, the arguments canvassed by the learned Counsel for the Complainant that this Complainant has followed all the procedures prescribed u/Sec.138 of N.I. Act and this accused even 18 C.C.No.27009/2014 in spite of receipt of legal notice issued u/Sec. 138 (b) of N.I. Act has neither chosen to make the payment of the cheque amount nor he has sent his reply by denying the transaction and also by taking defence from his side. He has argued that the accused only with an intention to ran away from his liability to pay the cheque amount, has taken up the false defence before this court during the stage of trial. He has argued that the accused personally received the notice issued as per Ex.P3 and even after receipt of Legal Notice, neither chosen to make payment of the cheque amount nor he has denied the transaction by sending his reply and therefore, by drawing an adverse inference against the accused, the accused has to be convicted for the offence punishable u/Sec.138 of N.I. Act, is fully convinced this court. Likewise, the arguments canvassed by the learned Counsel for the Complainant that the Complainant by adducing oral and documentary evidence before this court, has proved the guilty of the accused beyond all reasonable doubts, is also convinced this court.
37. The Complainant by adducing oral and documentary evidence before this court, has proved the guilt of the accused beyond all reasonable doubts. There is no any whatsoever doubt in the mind of the court about the case of the complainant. The oral and documentary evidence adduced before this court by the complainant is fully corroborating with each other and convinced this court about his case. The complainant by adducing oral and documentary 19 C.C.No.27009/2014 evidence before this court bring, home the guilt of the accused beyond all reasonable doubts to the satisfaction of the court. Therefore, by taking into consideration the facts and circumstances and evidence available on record, I answer this Point No.1 in affirmative.
38. 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.10,75,000/- (Rupees Ten Lakhs and Seventy-five thousand only). In any default to pay fine amount shall undergo simple imprisonment for 6 months.
Out of fine amount recovered under Section 357 of Cr.P.C. a sum of Rs.10,70,000/- (Rupees Ten Lakhs Seventy Thousand only) shall be paid to the complainant which includes the cheque amount and also cost of the proceedings. Remaining fine amount Rs.5,000/- shall be forfeited to State.
The bail bond and surety bond of the accused stands 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 2nd day of November, 2016) (ISHRATH JAHAN ARA) XIX ADDL.C.M.M., Bengaluru 20 C.C.No.27009/2014 ANNEXURE:
Witnesses examined on behalf of the Complainant:
PW.1 Mr. M. Mohan Witnesses examined on behalf of the Accused: DW.1 Mr. Venkatesh. N.
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 to Ex.P8 On Demand Promissory Notes and Consideration
Receipts
Documents marked on behalf of the Accused:
Nil
XIX ACMM, B'lore.
21 C.C.No.27009/2014