Bangalore District Court
Aged About 51 Years vs No.394 on 19 July, 2018
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 19th DAY OF JULY, 2018
PRESENT
Sri. Shridhar Gopalakrishna Bhat, LL.B
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.59649/2017
Sri. T. Ramamurthy
S/o. Late T. Krishnaiah
COMPLAINANT Aged about 51 years, R/at No.52, 2nd Main,
2nd Cross, Sri Siddeshwara Nilaya,
Byraweshwara Layout, Hennur Bande,
Kalyanagar Post, Bengaluru - 560 043.
Sri. Benny John
W/o. John Maliekal
ACCUSED No.394, 11th Cross, B.M. Layout,
Venkateshpuram, Arabic College Post,
Bengaluru - 560 045.
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused is convicted
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU
2 C.C. No.59649/2017
JUDGMENT
The complainant has approached this court with the complaint under Sec.200 Cr.PC against the accused for the offence punishable under Section 138 r/w Sec.142 of Negotiable Instruments Act, 1881. (herein after referred as N.I. Act)
2. The case of the complainant is that, towards discharge of legal liabilities, the accused had issued cheque bearing No.423488 dated 05.06.2017 for Rs.9,00,000/- in favour of the complainant. As per the instruction of the accused, the complainant had presented the said cheque for encashment through State Bank of India, Hennur Road branch, Bengaluru on 14.07.2017. But the said cheque was returned dishonoured for the reason "account closed" vide memo dtd.17.07.2017. Thereafter the complainant got issued legal notice dtd.27.07.2017 on 28.07.2017 by RPAD calling upon the accused to clear the cheque amount within 15 days from the date of service of the said notice. Since the complainant had not received postal acknowledgement, he had given complaint to the postal authority on 07.08.2017 and in turn after verification the postal department had given endorsement dated 09.08.2017 stating that the notice was delivered to the addressee on 31.07.2017. In spite of service of notice, the accused neither opted to comply with the demand made in the said notice nor issued any reply and thereby intentionally committed the offence punishable U/s.138 of N.I. Act. Accordingly on these 3 C.C. No.59649/2017 grounds, the complainant has prayed for punishment to the accused in accordance with law to meet the ends of justice.
3. After filing of this complaint, cognizance was taken for the offence punishable U/s.138 of N.I. Act. Sworn statement of the complainant was recorded. This court was satisfied as to prima facie case made out by the complainant for issuance of the summons and accordingly Criminal Case was registered against the accused for the offence punishable U/s.138 of N.I. Act and summons was ordered to be issued.
4. In pursuance of the summons issued by this court, the accused has put up his appearance through his counsel and enlarged on bail. Thereafter plea was recorded. The accused has denied the substance of accusation and claimed for trial.
5. In order to prove the case of the complainant, the complainant himself examined as CW.1 and got marked as many as eight documents as per Ex.P1 to P8 and closed his evidence. After closure of the complainant's side evidence, statement of the accused as provided U/s.313 of Cr.PC was recorded. The accused has denied the incriminating circumstance found in the evidence of the complainant and examined himself as DW.1 and got marked five documents as per Ex.D1 to D5 and closed his evidence and thereby evidence of the parties concluded.
4 C.C. No.59649/20176. Heard the arguments of the learned counsel for the respective parties. The learned counsel for the accused has also relied upon the following citations also;
i) Judgment in Crl. A. No.443/2017 - Delhi High Court -
(M/s. S.S. Diamonds International Vs Nameeta Sharma).
ii) (2015) I SCC 99 - (K. Subramani Vs K.Damodara Naidu)
iii) ILR 2008 KAR 3635 - (K. Narayana Nayak Vs M. Shivarama Shetty)
iv) LAWS (KAR) 2011 3 54 - (H.R. Moodalappa Vs C.A.Chowrappa)
v) 2009 Cr. L.J. 455 - (Ramdas Hanumant Palankar Vs N.D.Vernekar & another)
vi) LAWS (SC) 2006 7 113 - (M.S. Narayana Menon Vs State of Kerala)
vii) LAWS (APH) 2004 11 123 - (New Tech Pesticides Ltd., Vs Pavan commercial Corporaton)
viii) LAWS (P & H) 2004 2 22 - (Ganesh Flour Mills Vs Jeewan Kumar).
7. On perusal of the entire material available on file and also on hearing the arguments of the learned counsels, in the light of the rulings relied, the points that would arise for consideration are:-
a. Whether the complainant proves that the accused had issued cheque in question in discharge of the legally recoverable debt as contended?5 C.C. No.59649/2017
b. Whether the complainant further proves that the accused has committed the offence punishable under Section 138 of Negotiable Instrument Act?
c. Whether the complainant is entitled for the relief as prayed in the complaint?
4) What Order?
8. The above points are answered as under;
Point No.1 : In affirmative,
Point No.2 : In affirmative,
Point No.3 : In affirmative,
Point No.4 : As per the final order,
for the following.......
REASONS
9. Point Nos. 1 and 2: Since these two points are inter linked and to avoid repetition they are taken together for discussion. Before peeping into the disputed facts, it is appropriate to refer the undisputed facts, which can be gathered from the material placed before this court at this stage itself. On going through the rival contention of the parties, oral and documentary evidence, it is clear that there is no dispute that Ex.P1-cheque belonged to the accused and the same is signed by him. Further the accused was having his account with Citibank, N.A., M.G. Road, Bengaluru and the same has been closed. It is admitted fact that the complainant has presented 6 C.C. No.59649/2017 Ex.P1-cheque for encashment and the same was returned for the reason "account closed". It is also clear that after dishonour of the cheque, the complainant got issued legal notice to the accused as required under law.
10. With the above referred undisputed facts now the facts in dispute are analyzed, as already stated the accused had denied the entire case of the complainant as to commission of the offence punishable U/s.138 of N.I. Act while recording his plea for the said offence and also denied the incriminating circumstances found in the evidence of the complainant at the time of recording her statement U/s.313 of Cr.PC. But either at the time of recording plea or at the time of recording statement, the accused has not put up any positive case on his behalf except denying the case of the complainant as to commission of the offence. However on going through the cross-examination of the complainant, and evidence of the accused, it is clear that the accused has denied the monitory transaction, issuance of cheque in favour of the complainant as put up by the complainant in toto. The accused has also denied the service of notice, financial capacity of the complainant to lend the amount and also his acquaintance with the complainant. In addition to the total denial, it is found to be defence of the accused that in the year 2013 his mother was in need of hand loan of Rs.3 lakhs and as such his mother had taken his signed cheque to give the same as a security and though his mother repaid the borrowed amount the cheque was not returned. In that regard even the accused has given stop payment letter to his banker. Now the 7 C.C. No.59649/2017 complainant misused the said cheque by filling up the same and filed false complaint though the accused is not liable to pay any amount to the complainant and accordingly prayed for her acquittal in the interest of justice and equity.
11. Relying on the oral and documentary evidence, the learned counsels for respective parties vehemently argued as to the contention of the parties. It is needless to say that the proceeding U/s.138 of N.I. Act is an exception to the general principle that the accused is presumed to be innocent until the guilt is proved beyond all reasonable doubt. In the proceedings initiated U/s.138 of N.I. Act, proof beyond all reasonable doubt is subjected to presumption envisaged U/s.139 of N.I. Act. Once the requirement of section 138 of N.I. Act is fulfilled, then it has to be presumed that the cheques were issued for discharge of the legally recoverable debt or liability. The presumption envisaged U/s.139 of N.I. Act is mandatory in nature and it has to be raised in all the cases on fulfillment of the requirements of Sec.138 of the said Act. In the ruling rendered by Hon'ble Apex Court in the case of Rangappa Vs. Mohan reported in AIR 2010 (SC) 1898 by relying on several rulings rendered by the Hon'ble Apex Court including the case of Krishna Janardhan Bhat Vs. Dattathraya G. Hegde reported in AIR 2008 (SC) 1325, it was held that "Existence of legally recoverable debt or liability is a matter of presumption U/s.139 of N.I. Act". The Hon'ble Apex Court disapproved the principle laid down in Krishna Janardhan Bhat's case that "Initial burden of proving existence of the liability lies upon the complainant". In 8 C.C. No.59649/2017 the case of Sri.B.H.Lakshminarayana Vs. Smt.Girijamma reported in 2010 (4) KCCR 2637, it is held that "the presumption that the cheque was issued for legally recoverable debt is to be presumed". Further as provided U/s.118 of N.I. Act, it is to be presumed that the cheque in question was issued for consideration on the date found therein.
12. In the light of the rival contention of the parties at the out set it is to be determined as to whether the complainant had complied with all the requirements of Sec.138 of N.I. Act as contended. In order to prove the case of the complainant, the complainant being CW.1 reiterated the complaint averments in his sworn statement by way of affidavit which itself is treated as examination-in-chief in view of the decision of the Hon'ble Apex court in Indian Bank Association and others Vs Union of India and others - [W.P. (civil) No.18/2013]. In addition to that, the complainant has also produced cheque dtd.05.06.2017, bank endorsement dtd.17.07.2017, office copy of legal notice dated 27.07.2017, copy of the postal complaint dtd.07.08.2017, track consignment issued by the postal authority, certified copy of the sale deed dated 16.11.2016, postal receipt dated 28.07.2017 for having sent notice to the accused by RPAD, e-receipt for e-tax payment for the Assessment Year 2017 -18, 2016 - 17 and 2015 - 16 as per Ex.P1 to P8 respectively to substantiate her contention. As already stated it is admitted fact that Ex.P1- cheque belonged to the accused and signed by him and the same was dishonoured for the reason "account closed" as found in Ex.P2. The contents of Ex.P2-bank endorsement reveal that 9 C.C. No.59649/2017 the complainant had presented Ex.P1-cheque for encashment through State Bank of India, Hennur Road branch for encashment and the same was dishonoured on 17.07.2017 for the reason "account closed" as put up by the complainant. The contents of Ex.P3 to P5 and P7 are analyzed, it is clear that after dishonour of Ex.P1-cheque as found in Ex.P2, the complainant got issued legal notice dtd.27.03.2017 as per Ex.P3 to the accused by registered post on 28.07.2017 as found in Ex.P7. It is clear that since either the postal acknowledgement for having service of notice on the accused or returned RPAD envelop was not received, the counsel for the complainant has lodged petition on 07.08.2017 as per Ex.P4 and the postal authority has delivered track consignment as per Ex.P5 stating that the item was delivered on 31.07.2017. The conjoint reading of Ex.P7 and P5, it is clear that Ex.P5 is with reference to the registered post sent under Ex.P7. Therefore as per Ex.P5, it is clear that the registered notice was delivered on the accused on 31.07.2017 as put up by the complainant. The complainant has presented the present complaint on 11.09.2017 i.e after lapse of 15 days from the date of service of notice on the accused and within 30 days thereafter as required under law. Therefore on going through these documents, it is clear that the complainant had presented the cheque for encashment within its validity and got issued statutory notice after dishonour of the cheque within statutory period and presented the complaint within prescirbed time. Therefore prima facie the complainant had complied with 10 C.C. No.59649/2017 the technical requirements of Sec.138 of N.I. Act in presenting the complaint.
13. Added to the above documentary evidence, the complainant in his evidence by way of affidavit specifically stated as to compliance of requirements of Sec.138 of N.I. Act as contended. As already stated in this case the accused has denied the service of notice on him as put up by the complainant. In this regard the learned counsel for the complainant has relied upon Ex.P4, P5 and P7 to show the service of notice on the accused and also taken notice of this court as to service of court summons on the accused on the same address. On the other hand the learned counsel for the accused contended that the notice was actually not served on the accused as the notice was not sent to the correct address of the accused. In this regard the learned counsel has relied upon Ex.D1 to D3 i.e notarized copy of the death certificate of the mother of the accused, notarized copy of the passport and driving license of the accused to show that the address given in the legal notice is not correct. On perusal of the contents of Ex.D1 to D3, it is noticed that the address of the mother of the accused as well as the accused is found to be No.394, 3rd Main, B.M. Layout, Venkateshapuram, Arabic College Post (A.C Post as found in Ex.D3) Bengaluru - 560 045. In the notice the complainant had shown same door number, same layout, same post and same Pincode. But the complainant had shown 11th cross instead of 3rd Main Road. But in this regard it is pertinent to note that the evidence of the complainant during his cross-
11 C.C. No.59649/2017examination reveal that the complainant as well as the accused were residing in the same area when the accused was introduced to him. It is also to be noted that the notice was sent to the same area with specific door number, layout, post and pincode. This being the fact just because there is difference in mentioning the cross instead of main road that does not mean that notice was not served on the accused. On the other hand the postal track consignment clearly reveals as to delivery of the notice on the accused. There are no reasons to disbelieve the postal track consignment issued by the postal department as per Ex.P5. It is also to be noted that nowhere the accused has disputed his address as shown in the legal notice as well as in the complaint except stating that notice was not served on him. Further as argued by the learned counsel for the complainant, it is also noticed that the summons issued by this court to the accused on the same address is found to be served on the accused in person as this court has received postal acknowledgement for having service of court summons. Under these attending circumstances, just because there is error in mentioning the cross/road, it cannot be held that notice was not served on the accused. Further it is clear from the material placed before this court that since postal acknowledgement or RPAD envelop was not returned, the counsel for the complainant lodged petition with the postal authority on 07.08.2017 and in turn the postal authority has given track consignment revealing service of notice on the accused on 31.07.2017 as put up by the complainant. There are no reasons to disbelieve the postal 12 C.C. No.59649/2017 endorsement. Though on behalf of the accused during cross- examination of CW.1, the suggestion was put to the effect that the postman was known to the complainant and the complainant in collusion with the postman, avoided the service of notice on the accused and the said suggestion was specifically denied by the complainant. Absolutely there is no material before this court to accept the said suggestion. Under these attending circumstances, this court did not find any such grounds to hold that notice was not served on the accused. Therefore on conjoint reading of the entire oral and documentary evidence, their remains no doubt that the complainant had complied with all the requirements of Sec.138 of N.I. Act. This being the fact, as discussed earlier, in the light of the dictum of the Hon'ble Apex Court, it goes without saying that the presumption available U/s.139 of N.I. Act is required to be drawn and shall presume that the accused had issued the cheque as per Ex.P1 towards discharge of legally recoverable debt. It is also to be presumed that cheque was issued for consideration on the date as mentioned therein.
14. As argued by the learned counsel for the accused it is well settled principle of law through catena of decisions that, though the statutory presumptions available U/ss.118 and 139 of N.I. Act are mandatory in nature, they are rebuttable one. It is needless to say that when the complainant proves the requirements of Sec.138 of N.I. Act, the onus of proof shifts and lies on the shoulder of the accused to rebut the presumptions available in favour of the complainant. It is the accused who has 13 C.C. No.59649/2017 to rebut the presumptions with all preponderance of probability with clear, cogent and convincing evidence though not beyond all reasonable doubt. The accused has to make out probable defence by producing convincing acceptable evidence and thereafter only burden shifts shoulder of the complainant. It is also well settled law that to rebut the presumption, the accused can also rely upon presumptions available under the Evidence Act. It is also well settled principle that in order to rebut the presumption it is not imperative on the part of the accused to step into the witness box and he may discharge his burden on the basis of the material already brought on record and on the basis of the facts elicited in the cross-examination of the complainant. It is also equally true that, if the accused places such evidence so as to disbelieve the case of the complainant, then the presumptions stand rebutted. This view is also supported with the decision of the Hon'ble Apex court reported in (2006) 3 SCC (Crl.) 30 - (Tamilnad Mercantile Bank Ltd., Vs M/s.Subaiah Gas Agency and others), ILR 2009 (2) 1633 - (Kumar Exports Vs Sharma Carpets), AIR 2008 (SC) 1325 (Krishna Janardhan Bhat Vs. Dattathraya G. Hegde), 2013 SAR (CRI) 373 - (Vijay Vs Laxman and another) and AIR 2010 (SC) 1898 - (Rangappa Vs. Mohan). This view could be seen even in the decision relied by the learned counsel for accused. Now the question that would arise is whether the accused has rebutted the statutory presumptions available in favour of the complainant.
14 C.C. No.59649/201715. In view of the defence taken by the accused, as against the claim of the complainant, now the evidence available on behalf of the accused is analyzed, the accused himself examined as DW.1 in support of his defence and also produced notarized copies of the death certificate of his mother, his passport and driving license, statement of account relating to his account maintained in Citibank and one letter dated 03.01.2018 issued by Citibank as per Ex.D1 to D5 respectively. As already discussed Ex.D1 to D3 are produced to show the address of the accused and not for any other purpose. Accused being DW.1 stated his defence in his evidence. However on going through the cross-examination of CW.1 and evidence of the accused, it is noticed that the accused is not certain as to his own defence. As argued by the learned counsel for complainant, it is found that the defence put up by the accused during cross- examination of the complainant and during his evidence are inconsistent with each other. During cross-examination of the complainant, the accused has come up with specific stand that, the complainant had lent Rs.3 lakhs to the accused in the month of April 2013 and at that time, the complainant had taken Citibank cheque of the accused bearing No.423488 i.e Ex.P1 cheque involved in the present case. Thereafter without returning the said cheque, the complainant by misusing the same filed the false complaint with an intention to harass the accused.
15 C.C. No.59649/201716. The defence put to the mouth of the complainant during his cross-examination as stated supra makes it very clear that the complainant and accused are well known to each other and the accused had taken Rs.3 lakhs from the complainant in the month of April 2013 in respect of which, the accused had issued cheque in question in favour of the complainant. But the complainant has denied the said suggestion put to his mouth and though the learned counsel for the accused cross-examined the complainant in that regard, he could not elicit anything from his mouth to support this version of the accused. With these aspects, now the evidence of the accused is looked into, the accused in his evidence come up with totally different version. In examination-in-chief the accused even went to the extent of denying the acquaintance of the complainant stating that " ¦gÁå¢üzÁgÀgÀ ¥ÀjZÀAiÀÄ £À£ÀV®è. £Á£ÀÄ ¦gÁå¢zÁgÀgÀ£ÀÄß £ÁåAiÀiÁ®AiÀÄzÀ°èAiÉÄà ªÉÆzÀ®Ä £ÉÆÃrzÁÝVgÀÄvÀÛzÉ. ¦gÁå¢zÁgÀjUÀÆ £À£ÀUÀÆ £ÀqÀÄªÉ AiÀiÁªÀÅzÉà ºÀtPÁ¹£À ªÀåªÀºÁgÀ DVgÀĪÀÅ¢®è." This version of the accused is totally contrary to the suggestion put to the mouth of CW.1 as aforesaid. During his evidence, the accused has come up with another theory to explain as to how the complainant had the possession of the cheque with him. In this regard the accused stated that " £À£Àß vÁ¬ÄUÉ 2013 gÀ°è PÉå¸Á®zÀ CUÀvÀå«zÀÄÝzÀjAzÀ ¨ÀszÀævÉUÁV ¤ÃqÀ®Ä CªÀgÀÄ £À¤ßAzÀ ¸À» ªÀiÁrzÀ ZÉPÀÌ£ÀÄß ¥ÀqÉzÀÄPÉÆArzÀÝgÀÄ. £À£Àß vÁ¬ÄAiÀĪÀgÀÄ CªÀjUÉ ªÀÄÆgÀÄ ®PÀë gÀÆ¥Á¬Ä ¸Á® vÉUÉzÀÄPÉƼÀî¨ÉÃPÉAzÀÄ £À£ÀUÉ w½¹zÀÝgÀÄ. £À£Àß vÁ¬ÄAiÀĪÀgÀÄ AiÀiÁjAzÀ ¸Á® ¥ÀqÉzÀÄPÉÆArzÀÝgÀÄ JA§ÄzÀÄ £À£ÀUÉ UÉÆwÛ®è. £Á£ÀÄ PÉýzÁUÀ £À£Àß vÁ¬ÄAiÀĪÀgÀÄ CªÀgÀÄ ¥ÀqÉzÀÄ ¸Á®ªÀ£ÀÄß wÃj¹zÀÄÝ £À£Àß ZÉPÀÌ£ÀÄß ¸Á® ¤ÃrzÀªÀgÀÄ 16 C.C. No.59649/2017 PÉÆnÖ®èªÉAzÀÄ w½¹zÀÝgÀÄ. £ÀAvÀgÀ £Á£ÀÄ ¨ÁåAQUÉ ¸ÁÖ¥ï ¥ÉêÉÄAmï ¥ÀvÀæªÀ£ÀÄß PÉÆnzÉÝ.
" This version of the accused is found to be totally inconsistent with his case during cross-examination of CW.1. During cross- examination of CW.1 nowhere the accused has come up with this theory. It appears that this version of the accused is totally after thought without any substance.
17. It is pertinent to note that the above evidence of the accused reveals that his mother had taken the cheque of the accused to give the same as a security for the loan of Rs.3 lakhs to be availed by her. But the accused himself stated that he does not know from whom his mother had taken loan. In this regard the cross-examination of the accused is analyzed during cross-examination, the accused has stated that "£À£Àß vÁ¬Ä UÀå»tôAiÀiÁVzÀÄÝ AiÀiÁªÀÅzÉà PÉ®¸À ªÀiÁqÀÄwÛgÀ°®è. £À£Àß vÁ¬ÄAiÀĪÀjUÉ AiÀiÁªÀÅzÉà DzÁAiÀÄzÀ ªÀÄÆ®UÀ¼ÀÄ EgÀ°®è. £À£Àß vÁ¬ÄAiÀÄ£ÀÄß £Á£ÀÄ £À£Àß ZÉQÌ£À PÀÄjvÀÄ PÉýzÁUÀ £À£Àß vÁ¬ÄAiÀĪÀgÀÄ ZÉPÀÄÌ «Ä¸ï¥Éèøï DVzÉ JAzÀÄ w½¹zÀÝgÀÄ. J°è ªÀÄvÀÄÛ AiÀiÁªÁUÀ ZÉPÀÄÌ «Ä¸ï¥Éèøï D¬ÄvÀÄ JA§ÄzÀ£ÀÄß £À£Àß vÁ¬Ä £À£ÀUÉ ºÉýgÀ°®è. £À£Àß vÁ¬ÄAiÀĪÀgÀÄ AiÀiÁjAzÀ ¸Á® ¥ÀqÉzÀÄPÉÆArzÀÝgÀÄ JA§ÄzÀÄ £À£ÀUÉ UÉÆwÛ®è. £À£Àß vÁ¬ÄAiÀĪÀgÀÄ CªÀjUÉ ¸Á® ¤ÃrzÀªÀgÀÄ ZÉPÀÌ£ÀÄß «Ä¸ï¥ÉèÃ¸ï ªÀiÁrzÀÝgÀÄ JAzÀÄ w½¹zÀÝgÀÄ. £Á£ÀÄ £À£Àß vÁ¬ÄUÉ ¸Á® ¤ÃrzÀªÀgÀ §½ ºÉÆÃV £À£Àß ZÉQÌ£À PÀÄjvÀÄ «ZÁj¹gÀ°®è. CzÀPÉÌ AiÀiÁªÀÅzÉà «±ÉõÀ PÁgÀt«gÀ°®è. " This evidence of the accused is analyzed, it is clear that the mother of the accused was housewife and she was not doing any work and she had no any source of income. This being the fact, it is not understood as to for what purpose the mother of the accused had availed 17 C.C. No.59649/2017 loan of Rs.3 lakhs as put up by the accused. The accused has not stated anything in this regard. Further the accused even went one step ahead stating that even he does not know from whom his mother had taken loan and though his mother revealed to him as to misplace of cheque he had not bothered even to make an enquiry in that regard. If at all the cheque of the accused was being given as a security and the same was misplaced, being a prudent person the accused should have made proper enquiry with his mother and thereafter with the person from whom his mother had taken loan by giving the cheque of the accused as stated. Admittedly, the accused has not taken any action in that regard. It is clear from the evidence of the accused himself that he is the B.Com., graduate and working in the Standard Chartered Bank as Associate Manager. This being the fact if at all the contention of the accused is true, definitely the accused should have taken appropriate legal steps to prevent misuse of his cheque.
18. As argued by the learned counsel for the accused, the accused in his evidence stated that after information from his mother as to non-returning of the cheque by the lender to her in spite of the clearing of the loan availed, he had given stop payment letter to his banker. But it is pertinent to note that the accused had not opted to produce the stop payment letter given by him to the banker for the reason best known to him. He has not taken any steps to establish the said fact. On the contrary and admittedly cheque was bounced for the reason "account closed". Further the accused during his cross-examination 18 C.C. No.59649/2017 stated that "£Á£ÀÄ ¨ÁåAQ£À°è PÉ®¸À ªÀiÁqÀÄwÛzÀÄÝzÀjAzÀ ZÉPÀÄÌ PÀ¼ÉzÀĺÉÆÃVzÉ JA§ PÀÄjvÀÄ ¨ÁåAQUÉ ªÀiÁ»w PÉÆnÖzÉÝ JAzÀÄ. £Á£ÀÄ K¦æ¯ï 2013 gÀ°è ¨ÁåAQUÉ ZÉPÀÄÌ PÀ¼ÉzÀĺÉÆÃzÀ «ZÁgÀªÀ£ÀÄß w½¹zÉÝ." This version of the accused reveals that the accused had informed as to misplace of the cheque in April 2013 itself. But as already stated the suggestion put to the mouth of CW.1 reveals that in the month of April 2013 itself, the accused himself had given cheque in question to the complainant. Further it is pertinent to note that the cheque was not dishonoured for the reason "stop payment", but it was dishonoured for the reason "account closed". In this regard, the accused has produced letter dated 03.01.2018 issued by his banker i.e Citibank stated that Account bearing No.6096149807 of the accused was closed on 25.01.2017. The said letter again does not reveal as to for what purpose the accused had closed his account. Ex.D5 nowhere support the defence of the accused in any angle.
19. The learned counsel for the accused forcefully argued as to vagueness and baldness of the complaint as well as the notice of the complainant contending that the complainant had not stated as to what was the loan amount, in what mode of the said amount was paid and when exactly cheque was issued. In this regard the contents of the legal notice as well as the complaint and even examination-in-chief of the complainant are analyzed, no doubt as argued by the learned counsel for the accused, the complainant has not stated anything as to when the loan amount was paid, what was the loan amount, in what 19 C.C. No.59649/2017 mode the payment was made, when exactly the accused had issued cheque in question in his favour. The complaint averments in this regard is found to be very vague and not at all clear. But as argued by the learned counsel for the complainant, it is pertinent to note that during the course of cross-examination, the accused has brought out all those things from the mouth of the complainant. During the cross- examination the complainant has specifically stated that the accused, his mother and his sister came to him in the month of November 2016 seeking hand loan of Rs.9 lakhs. He further stated that he had lent Rs.9 lakhs to the accused on 05.12.2016 in cash and the accused had promised to repay the said amount within six months. This evidence of the complainant takes away the lacuna found in the complaint. Under these attending circumstances, just because the complainant has not stated date of loan, amount of loan, mode of payment and issuance of cheque that will not create any doubt as to the case of the complainant so as to accept the version of the accused in any angle. It is also to be noted that as argued by the learned counsel for the accused, the complainant himself stated that the cheque in question was given by the accused as a security for the loan of Rs.9 lakhs. But on that ground it cannot be held that the complainant cannot invoke provisions of Sec.138 of N.I. Act as the cheque in question was issued as a security only. It is needless to say that even if the cheque was given as a security for the loan availed and if the said cheque is bounced, then it attracts the provisions of Sec.138 of N.I. Act.
20 C.C. No.59649/201720. The another limb of the argument of the learned counsel for the accused is that, the complainant has not placed any such evidence to establish his financial capacity as well as the loan transaction. It is vehemently argued by the learned counsel that though the complainant has stated that at the time of giving loan amount his brother-in-law was present, the complainant has not opted to examine him to support the loan transaction. No doubt the evidence of the complainant reveals that at the time of giving loan, the mother and sister of the accused and brother-in-law of the complainant were present. But that does not mean the complainant ought to have examined his brother-in-law in support of the loan transaction. This is because the burden is on the accused to prove his defence and if the accused places such material before this court so as to at least probablize his defence, then the question of shifting the burden on the complainant arises. As already stated in this case, the very defence taken by the accused is found to be totally contradictory and the defence put up by the accused itself found to be not acceptable one. Under these attending circumstances, this court did not find any much substance in the argument of the learned counsel for the accused in this regard.
21. So far as the financial capacity of the complainant is concerned, the learned counsel for the accused has cross- examined the complainant in that regard. The complainant in his evidence specifically stated that he has been earning about Rs.1 lakh per month from the real estate business and he was having income of Rs.25,000/- per month from the house rent.
21 C.C. No.59649/2017Even the complainant has specifically stated that he requires average of Rs.50,000/- per month towards entire expenses of his family. The complainant has also stated that he had money with him in cash as he had sold out the property. In this regard the complainant has produced certified copy of the sale deed executed by him in favour of one Amarnath as per Ex.P6 and e- receipt for e-tax payment for the Assessment Year 2017 - 18 and 2016 - 17 with statement of income as per Ex.P7. On going through the contents of Ex.P6 it is clear that the complainant had sold his property for a consideration of Rs.12 lakhs on 16.11.2016 and received sale consideration in cash and in this regard entry is also found in his income tax statement for the Assessment Year 2017 - 18. No doubt as argued by the learned counsel for the accused, the contents of Ex.P6 reveal that the complainant had sold the property to meet his family legal necessities and not for giving loan to the accused as stated by him. However the contents of Ex.P6 clearly denotes the cash in hand with the complainant at the relevant point of time. Similarly the complainant is found to be income tax assessee and the income tax statement reveals that he had taxable income. Under these attending circumstances, this court is of the considered view that the material placed before this court reveals financial capacity of the complainant. Therefore in this angle also this court did not find much substance in the contention of the accused. Though the learned counsel for the accused has cross-examined the complainant, he could not elicit anything from his mouth so as to support the version of the 22 C.C. No.59649/2017 accused or to disbelieve the evidence of the complainant in support of his case.
22. The learned counsel for the accused has also taken notice of this court as to presentation of the cheque for encashment for second time by the complainant knowing fully well that account was already closed only to create a cause of action for the complaint. In this regard he has also taken assistance of the evidence of the complainant. In this regard the evidence of the complainant is looked into during the cross- examination, the complainant has specifically stated that he had presented the cheque for encashment for two times and when the cheque was presented for encashment for first time, it was dishonoured for the reason "account closed" and thereafter after one month, he had represented the cheque for encashment and at that time also the cheque was dishonoured for the reason "account closed". As argued by the learned counsel for the accused, it is clear from the said evidence that at the time of presenting the cheque for the first time itself the account was closed and even then the complainant had presented the cheque for the second time having knowledge of the closure of the account. But as argued by the learned counsel for the complainant, it is clear that the cheque was presented for encashment within its validity and there is no bar for presenting the cheque for any number of times within its validity and the complainant can take appropriate legal action in that regard if the cheque is dishonoured subsequently also. Therefore just because the complainant had presented the cheque for 23 C.C. No.59649/2017 encashment for second time knowing that account was closed will not defeat the case of the complainant and that will not take away the case of the complainant from the purview of the offence defined U/s.138 of N.I. Act. At this stage, this court is also being guided by the ruling relied by the learned counsel for the accused. But on going through the facts of the said relied case and facts and evidence made available in the present case, this court is of the considered view that the said decisions are no way applicable to the facts of the present case, so as to up hold the defence of the accused.
23. Thus considering all these aspects, evidence on file, this court is of the considered view that the accused has totally failed prove or probabalize his defense and thereby to rebut the statutory presumptions available in favour of the complainant. It clearly appears from the evidence placed before this court that the defence put up by the accused is without any basis and even found to be too remote to accept its probabilities. The defence taken by the accused is found to be only after thought without any basis and only an attempt to escape from the liability, if possible. As already stated unless the accused rebut the statutory presumptions with convincing and cogent evidence, the burden cannot be shifted on the complainant. Mere denial of the case of the complainant is not sufficient to disbelieve the case of the complainant unless the accused places such convincing and acceptable evidence in support of his positive defence at least to make the defence is probable. As discussed, the complainant has placed sufficient material to establish her 24 C.C. No.59649/2017 contention as put up by him. The evidence placed before this court is sufficient to accept the case of the complainant that the accused had issued cheque in question towards discharge of legally recoverable debt and the complainant has proved all the requirements of Sec.138 of N.I. Act, so as to constitute the offence against the accused as put up by him. Therefore Point Nos.1 & 2 are required to be answered in affirmative and answered accordingly.
24. Point No.3: As discussed in connection with Point Nos.1 & 2, the complainant has proved his case as to commission of the offence punishable U/s.138 of N.I. Act by the accused. The punishment prescribed for the said offence is imprisonment for a period which may extent to two years or with fine which may extend to twice the amount of the cheque or both. Considering the facts and circumstances of this case, nature, year of the transaction, nature of the instrument involved, provisions of Sec.117 of N.I. Act, cost of litigation etc., this court is of the considered view that it is just and desirable to impose fine of Rs.12,40,000/- and out of the said amount a sum of Rs.5,000/- has to be remitted to the State and the remaining amount of Rs.12,35,000/- is to be given to the complainant as compensation as provided U/s.357(1) of Cr.PC and accordingly Point No.3 are answered in Affirmative.
25 C.C. No.59649/201725. Point No.4: For the reasons discussed in connection with Point Nos.1 to 3 this court proceed to pass the following......
ORDER Acting under Section 255(2) of Cr.PC accused is hereby convicted for the offence punishable under Section 138 of Negotiable Instrument Act. The accused shall pay a fine of Rs.12,40,000/- for the offence punishable U/s.138 of N.I. Act. In default of payment of fine amount, the accused shall under go simple imprisonment for a period of one year.
By exercising the power conferred U/s.357(1) of Cr.PC out of total fine amount of Rs.12,40,000/-, a sum of Rs.12,35,000/- is ordered to be paid to the complainant as compensation and Rs.5,000/- is ordered to be remitted to the State.
The bail bond of the accused stands cancelled.
The cash security is deposited by the accused is ordered to be continued till expiry of the appeal period.
Supply the free copy of this judgment to the accused forth with.
(Dictated to the stenographer, typed by him, transcript corrected by me and pronounced in the open court on this the 19th day of July, 2018) (SHRIDHAR GOPALAKRISHNA BHAT) XIV ADDL. C.M.M., BENGALURU 26 C.C. No.59649/2017 ANNEXURE Witnesses examined for the complainant:
CW.1 : Sri. Ramamurthy
Witnesses examined for the defence:
DW.1 : Sri.Benny John
Documents marked for the complainant:
Ex.P1 : Cheque
Ex.P2 : Bank endorsement
Ex.P3 : Legal Notice
Ex.P4 : Complaint to the Post Master
Ex.P5 : Postal track consignment
Ex.P6 : Certified copy of Absolute Sale Deed
Ex.P7 : Postal receipt
Ex.P8 : Recipt for e-Tax payment
Documents marked for the defence:
Ex.D1 : Xerox copy of Death Certificate
Ex.D2 : Xerox copy of Valid passport
Ex.D3 : Xerox copy of Driving licence
Ex.D4 : Statement of Account
Ex.D5 : Citibank letter dated 3.1.2018
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU