Bangalore District Court
M/S Religare Finvest Limited vs Mr/Mrs. Aditya Ganapa on 30 December, 2022
KABC0C0285302018
IN THE COURT OF XXXIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, MAYO HALL UNIT,
BENGALURU
: PRESENT :
M.Vijay, BAL, LLB.
XXXIII ADDL.CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED THIS THE 30TH DAY OF DECEMBER, 2022.
C.C.NO.58569/2018
COMPLAINANT : M/s Religare Finvest Limited
No.1314, 1st & 2nd Floor,
Double road, HAL, 2nd stage,
Next to KHT Motors, Indiranagar,
Bengaluru560038.
Vs.
ACCUSED 1. Mr/Mrs. Aditya Ganapa
Plot No.81/1, Old Marredpally,
Hyderabad, Andra Pradesh500026.
2. Someshwara Roa Ganapa
Plot No.81/1, Old Marredpally,
Hyderabad, Andra Pradesh500026.
3. Aditya Roa G.
Plot No.81/1, Old Marredpally,
Hyderabad, Andra Pradesh500026.
Note: (A2 and 3 deleted as per the
ordered dated 09.05.2018)
2
C.C.No.58569/2018
JUDGMENT
The complainant has filed this private complaint U/s.200 of Cr.P.C., against the accused for the offence punishable U/s 138 of Negotiable Instrument Act.
2. The factual matrix of the case are as follows: The complainant claims to be a registered NBF Company providing various loans facilities such as business loan, mortgage loan for the benefits of its customers, accordingly, during course its financial service, the A1 to 3 being partners have approached for mortgage loan, upon their representation the complainant claims to have sanctioned loan to the accused by entering into a loan agreement vide bearing No.XMORPAN00028743/Appl. ID No.564563 with the A1 to 3, as per the terms of the agreement the accused supposed to clear the loan amount, but, the accused had an outstanding, as such, towards clearance of outstanding the A1 had issued cheque bearing No.551911 dated 20.01.2016 for sum of Rs.15,17,361/ drawn on the Cosmos Cooperative Bank Ltd., Hyderabad with the mandate to present for encahsment, as per the assurance of the A1, the 3 C.C.No.58569/2018 complainant claims to have presented the cheque through its banker, but, it came to be dishonored for "referred to drawer", vide memo dated 27.01.2016.
3. In pursuance of dishonor, the complainant claims to have issued demand notice on 22.02.2016 calling upon the accused to pay the cheque amount, same was served upon all the accused, but, the accused neither paid the cheque amount nor replied to its notice, accordingly, this complaint, alleging that, the A1 to 3 have committed an o/p/u/s 138 of N.I Act, hence prays to convict A1 to 3
4. Based on the complaint, the sworn statement affidavit, the documents etc., the court took cognizance of an offense punishable under Sec.138 of N.I. Act by following the guidelines of Apex Court issued in Indian Bank Association case and ordered to be registered a criminal case against A1 only for the o/p/u/s. 138 of N.I. Act, A2 and 3 were deleted as per ordered dated 09.05.2018.
5. In pursuance of summons, A1 appeared through his counsel, he was enlarged on court bail, further, substance of plea was recorded, A1 pleaded not guilty and he 4 C.C.No.58569/2018 claimed to be tried, the complainant in order to prove its case got examined its authorized representative Ragini as P.W.2 and placed reliance on Ex.P1 to P12. After closure of complainant side evidence, the court examined the accused U/S 313 of Cr.P.C, but, the accused denied incriminating materials on record and contended that, complainant had collected his blank cheque in the year 2012 that has been allegedly misused, and got examined himself as DW1 and placed reliance on Ex.D1.
6. Heard both the sides, that apart, the learned counsel for the accused filed her written submission with decision reported in, 2002 Live Law (SC) 971 and RBI notification with regard to CTS cheques.
7. Perused the materials on record, the following points arise for my determination.
1. Whether the complaint proves beyond all reasonable doubt that, A1 has committed an o/p/u/s 138 of Negotiable Instruments Act?"
2. What Order?
5C.C.No.58569/2018
8. My findings to the above points are follows;
Point No1: In the Affirmative.
Point No.2: As per final order for forgoing;
REASONS
9. POINT No:1: The complainant claims to be a non banking finance company, had financed sum of Rs.12,00,000/ against the property of accused, but, the accused irregular in repayment of loan amount, as such, accused had outstanding of Rs.15,17,361/, for clearance of the same, accused allegedly issued cheque bearing No.551911 dated 20.01.2016 for sum of Rs.15,17,361/, but, on it presentation, cheque came to be dishonored for "referred to drawer", inspite of service of demand notice, the accused failed to pay the cheque amount, hence, this complaint, per contra, the accused does not denied the mortgage loan availed by him from the complainant, however, he claims to have repaid the entire loan amount by way of cash and contented that, complainant bank has collected his 12 signed blank cheque for security in the year 2012 out of that,the cheque in question has been misused and filed this false case, further, demand notice 6 C.C.No.58569/2018 not been served upon him, accordingly, he claims to be an innocent.
10. So, considering the rival contention, it is crystal clear that, accused does not dispute the availment of loan from the complainant, however, he disputed the existence of liability claimed herein, as well as issuance of cheque on 20.01.2016 for sum of Rs.15,17,361/ and compliance of Sec.138(b) of N.I Act, so, the burden is on the complainant to prove the existence of liability as well as the issuance of cheque in question in its favour for sum of Rs.15,17,361/ and compliance of Sec.138 (a) to (c) of N.I Act.
11. The complainant in order to prove its case,got examined its authorized representative PW2 Smt. Ragini, she reiterated, the complaint averments in her examination chief affidavit that, the complainant company has been merged or amalgamated with India Resurgence ARC Pvt. Ltd., as per assignment deed dated 05.11.2019, the accused borrowed loan of Rs.12,00,000/ against property, thereafter became defaulter as on 20.01.2016, accused had outstanding of Rs.15,17,361/ 7 C.C.No.58569/2018 as per the account Ex.P12, towards clearance of the same, accused issued Ex.P2 cheque but, it got bounced for referred to drawer, despite service of demand notice, the accused failed to pay the cheque amount, the accused subjected the PW2 for cross examination, wherein, he does not denied the availment of loan, but, he mainly focused on locus standi of PW2, but, the PW2 produced Ex.P11 the Power of attorney issued by her company who is assignee of complainant and she categorically stated that, she had personal knowledge about the loan of the accused based upon the documents available with her company and also produced assignment deed dated 05.11.2019, as per it, India Re surgeons ARC Pvt. Ltd., is the assignee of complainant company, therefore, the locus standi of PW2 cannot be doubted, further, by way of suggestion accused claimed that, Ex.P2 cheque was collected by the complainant time of availment of loan, but, nothing has produced to prove that Ex.P2 cheque with the custody of the complainant.
12. Moreover, the accused in his evidence has contended that, he claims to have repaid the entire loan amount by way of cash, but, denied the same, so, once the accused 8 C.C.No.58569/2018 admit the borrowal of loan of Rs.12,00,000/ in the year 2011, he has to prove, when he has repaid, who received it, and documents or receipt with regard to repayment, since, the accused is involving in business having wordly knowledge about banking affairs, inspite of that, he claims to have repaid sum of Rs.12,60,000/, but, no documents with him to substantiate his contention, in absence of that, the oral say of repayment cannot be acceptable, accordingly, alleged discharge of loan by the accused through cash cann't be acceptable.
13. Further, the accused has contended that, complainant had collected Ex.P2 in the year 2012 while availing the loan, the document issued by his banker Ex.D1, clearly substantiate his defence that, Ex.P2 is Non CTS Cheque issued in the year 2011for security, but, not on 20.01.2016 towards clearance of outstanding, the learned counsel for the accused vehemently argued by referring to notification issued by the RBI with respect to Non CTS Cheque that, Ex.P2 is Non CTS as per the RBI notification CTS scheme came in to effect from 18.03.2013, therefore, Ex.P2 evidencing the defence that, Ex.P2 collected by the complainant in the year 2011, on the contrary, the 9 C.C.No.58569/2018 complainant counsel argued that, Ex.P2 issued in the year 2016, therefore, merely based upon notification, the contention of the accused cannot be accepted, so, considering the rival contentions with the materials on record Ex.P2 cheque is Non CTS Cheque, further, as per Ex.D1 the cheque leafs were collected by the accused on 30.05.2011, however, though it is Non CTS Cheque, but, it is not the case of the accused that, he had surrendered the Non CTS Cheque soon after notification issued by the RBI about CTS Cheques, dated 18.03.2013 and it is not the case of the accused that, he had intimated to his banker about issuance of his Non CTS Ex.P2 cheque to the complainant for security, therefore, in absence of relevant material either with respect to surrender of other Non CTS cheque runs in the same series or the intimation about the custody of the Ex.P2 cheque to his banker, so, the alleged issuance of Ex.P2 cheque by the accused cannot be doubted as the issuance of Non CTS cheque to the complainant by the accused cannot be ruled out, hence, same is not tenable and it cannot be held as time barred debt as the Ex.P12 discloses the accused has paid part of the loan amount subsequent to availment of loan.
10C.C.No.58569/2018
14. Further, the learned counsel for the accused in her written argument raised a point of territorial jurisdiction, on the ground that, the entire loan transaction had taken place at Hyderabad, therefore, this court does not have jurisdiction to try this case, but, as per Sec.142(2)of N.I Act, admittedly, the complainant has presented the cheque Ex.P2 at Bangalore for encashment though the loan transaction was held at Hyderabad, as such, this court have jurisdiction to try the case.
15. Further, the accused denied the service of demand notice, however, the complainant produced Ex.P4 copy of demand notice, Ex.P8 to 10 postal receipt Ex.p6 to 8 postal track consignment, accordingly, the complainant claims to have served the demand notice on the accused, on the contrary the learned counsel for the accused argued that, the complainant has not complied Sec.138(b) of N.I Act, as the complainant has not produced acknowledgement about service of notice, but, produced online acknowledgment which cannot be acceptable, however, the accused in his cross examination admitted the his residential address Flat No.81/1 Old Marreddipalli Secundrabad Andrapradesh,according to 11 C.C.No.58569/2018 the accused, the address shown in legal notice is incorrect, as he residing at Secundrabad but not at Hyderabad,however, the court summons issued to very same address was duly served upon the accused and the accused put appearance before the court on service of summons issued to very same address but, now denying the service of notice by claiming that the city name has been wrongly mentioned as Hyderabad instead of Secundrabad, but, the notice caused to the address mentioned in the cause title also delivered to the accused as per Ex.P6 to 8, despite of it, the accused denying the service of notice, on the ground of city name wrongly mentioned, but, to substantiate the same the accused not produced any residential proof, so that to prove the address mentioned by the complainant, the cause title and the notice sent to the incorrect address, so, in absence of that, the service of summons cannot be doubted, since, the court summons issued to very same address served upon the accused, accordingly, the complainant also Complied Sec.138(a) to (c) of N.I Act.
16. So, considering the entire materials on record, the accused even though admitted the availment of loan from 12 C.C.No.58569/2018 the complainant, but, specifically contended he had repaid entire loan amount by way of cash, but, failed to produce receipts or documents to prove the repayment of loan amount, in absence of that, defence of the accused about discharge of loan cannot be acceptable, further, the accused contended that, Ex.P2 cheque collected at the time of availment of loan in the year 2012, but, to substantiate the same nothing has produced before the court to show that, since 2012 the complainant has custody of Ex.P2 cheque, in absence of that, the accused failed to brought out probable material to disprove the out standing Rs15,17,361/ as on 20.01.2016, as such, the complainant admittedly issued Ex.P2 cheque with his signature infavour of the complainant, but, claims to have issued in the year 2011, but, failed to establish the same, therefore, the complainant undoubtedly proved the availment of loan as well as outstanding of Rs.15,17,361/ and issuance Ex.P2 cheque by the A1 who is drawer of the cheque towards clearance of loan, in view of failure to pay the cheque amount, the complainant proved the Ingredient of Sec.138 of N.I Act, accordingly, the A1 being the drawer of the cheque in question is found guilty of o/p/u/s 138 of N.I. Act.
13C.C.No.58569/2018
17. So, far as sentence and compensation is concern, an o/p/u/s.138 of N.I. Act, is a civil wrong and compensatory in nature, punitive is secondary, considering, the above settled principal of law with facts and circumstances of the case, which clearly reveals that, the accused availed loan against property, in other words availed mortgage loan in the year 2011 as per Ex.P12 as on the date of cheque the outstanding balance of the accused was Rs.15,17,361/, however, the complainant not produced the loan agreement specifying the rate of interest, as such, there is no material on record, with regard to interest agreed the accused, therefore considering the nature of transaction, duration of pendency, litigation expenses, I am opinion that, if sentence of fine of Rs.16,55,000/ is imposed that would meet the ends of justice, accordingly, the A1 is hereby sentenced to pay a fine of Rs.16,55,000/, out of that, the complainant is entitled for sum of Rs.16,50,000/, as a compensation as per Sec.357(1) of Cr.P.C., remaining amount of Rs.5,000/, is to be appropriated to the state, in case of default, the A1 shall under go simple imprisonment for a period of 6 months. Accordingly, I answered the above point in "Affirmative".
14C.C.No.58569/2018
18. Point No.2: In view of above finding to Point No.1, I proceed to pass following;
ORDER Acting under section 255(2) of Criminal Procedure Code, the A1 Aditya Ganapa is convicted for an offence punishable U/s 138 of Negotiable Instrument Act.
The A1 Aditya Ganapa is sentenced to pay a fine of Rs.16,55,000 /, (Rupees Sixteen lakh fifty five thousand only) in default, the A1 shall undergo simple imprisonment for a period of six months. Out of the fine amount received, Rs.5,000/, is to be appropriated to the State and by way of compensation as per the provision u/Sec.357(1) of Cr.P.C., the complainant is entitled for Rs.16,50,000/.
The bail bond and surety bond of the accused shall stand cancelled.
15C.C.No.58569/2018 Office is directed to furnish a free copy of the judgment to the accused.
(Dictated to the Stenographer transcribed and typed by her, corrected, signed and then pronounced by me in the open court, on this the 30th day of December, 2022) (M.Vijay), XXXIII ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : M/s Religare Finvest Limited
2. Documents marked on behalf of complainant:
Ex.P.1 : Notarized copy of Power of attorney Ex.P.2 : Original Cheque Ex.P.2(a) : Signatures of the accused Ex.P.3 : Bank return memo Ex.P.4 : Office copy of the legal notice Ex.P.5 to 7 : 3 Postal track copies Ex.P.8 to 10 : Letter to the postal authority Ex.P.11 to 12 : Statement of account
3. Witnesses examined on behalf of Accused:
NIl 16 C.C.No.58569/2018
4. Documents marked on behalf of Accused:
Ex.D.1 : Letter
(M.Vijay),
XXXIII ACMM, BENGALURU.