Bangalore District Court
Sri. B. Raju vs Sri. Venkateshmurthy. B.R on 17 February, 2017
IN THE COURT OF XIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BANGALORE.
:: PRESENT ::
SMT.C.G VISHALAKSHI, B.A., L.L.B.,
XIII A.C.M.M Bangalore.
C.C. NO.24427/2015
Dated: This the 17th day of FEBRUARY - 2017
COMPLAINANT/S: Sri. B. Raju,
S/o. Sri. B. Boraiah,
Aged about 45 years,
R/at. No.66/1, 12th Cross Road,
Agrahara Dasarahalli,
Magadi Main Road,
Bengaluru-560079.
ACCUSED: Sri. Venkateshmurthy. B.R.
S/o. Ramaiah,
Aged about 46 years,
R/at. No.03,8th Main Road,
3rd Cross Road,
Shivanagar, Rajajinagar,
Bengaluru-560010.
Offence U/s.138 of Negotiable
Instruments Act.
Plea of the accused Pleaded not guilty
Final order Convicted
**
JUDGEMENT 2 C.C.24427/2015
JUDGEMENT
This complaint is filed against the accused under Section.200 of Cr.P.C. for the offence punishable under Section.138 of Negotiable Instruments Act.
2. The gist of the complaint is as follows:
The accused is doing business under the name and style of 'Shruthi Off-set Printing Business'. The complainant is also running business in the name and style of 'Sree Sai Sumukh Developers'. The complainant and accused are good friends and known to each other since 15 years. Having such friendship the accused number of times had taken hand loan from the complainant to meet his immediate family needs and returned the said amount to the complainant without any default. Accordingly, the accused had approached the complainant on 15-09-2014 requesting for financial assistance of Rs.1,50,000/- to solve his immediate financial difficulties and business commitments for a period of 2 months with interest at the rate of 2% p.m. The complainant by considering the relationship and good JUDGEMENT 3 C.C.24427/2015 friendship had advanced loan of Rs.1,50,000/- infavour of the accused on 20-09-2014 as hand loan. But the accused has not repaid the said amount in time. On the other hand, the accused had requested for grant of some time. Hence, the complainant waited with fond hope that the accused would arrange the amount etc. But the accused on one or other reason postponing the same without repaying the said amount. On repeated requests and demands, finally the accused had issued cheque bearing No.218147, dated:
25-05-2015, for Rs.1,50,000/- drawn on The Janatha Co- operative Bank, Govindarajanagar Branch, No.1033, 5th Main, 3rd Phase, Basaveshwara Nagar, Bengaluru-560079 infavour of the complainant towards discharge of the said loan amount. As per the assurance, when the complainant has presented the said cheque for encashment through his banker i.e., Apex Co-operative Bank Ltd., Rajajinagar Branch, Bengaluru-560044, it was bounced back unpaid for the reasons 'Funds Insufficient' on 02-06-2015. Thereafter, the complainant got issued legal notice against the accused on 08-06-2015 through his counsel and demanded him to pay the cheque amount by granting JUDGEMENT 4 C.C.24427/2015 statutory time. The notice was sent against the accused for his residential address and it was duly served on him on 10-06-2015. But despite of the same, the accused neither repaid the amount nor replied to the demand notice. Hence, having no other go the complainant approached this court with this complaint against the accused alleging that, the accused has committed an offence punishable under Section.138 of Negotiable Instruments Act and prays to deal the accused in accordance with law.
3. On presentation of the complaint, this court has taken cognizance of the offence, Sworn statement of the complainant was recorded. On perusal of the documents and on hearing the complainant, process was issued against the accused. In pursuance of the process, the accused appeared before this court and enlarged on bail. Copies of the complaint papers supplied to him. Substance of accusation was readover and explained to the accused. Accused did not pleaded guilty and claims to be tried. Hence, the matter was posted for evidence of the complainant.
JUDGEMENT 5 C.C.24427/2015
4. In order to prove the case of the complainant, he got examined himself as PW.1 & got marked documents as Ex.P.1 to P7 and closed his side evidence. After completion of the complainant's evidence, the accused was examined under Section.313 of Cr.P.C. and his statement was recorded. The accused denied all the incriminating evidence appeared against him and chosen to lead his defence evidence. To substantiate his defence and to falsify the claim of the complainant the accused has examined himself as DW.1 and got marked documents at Ex.D1 & D2 on his behalf.
5. Heard arguments.
6. Upon reading the entire materials on record and on hearing the arguments, the following points that arise for my consideration:
PIONTS
1. Whether the complainant proves beyond all shadow of doubt that, the accused has committed an offence punishable under Section.138 Negotiable Instruments Act?JUDGEMENT 6 C.C.24427/2015
2. What order?
7. My answers to the above points are as follows:
Point No.1: In the Affirmative
Point No.2: As per the final order, for the
following.
:: REASONS ::
8. POINT NO.1: As the accused did not pleaded
guilty, the complainant has chosen to examine himself as PW.1 and got marked documents as Ex.P1 to P7.
9. As per the decision reported in ILR 2008 KAR PAGE- 4629 between Shivamurthy V/s Amruthraj and in another decision rendered by the Hon'ble Apex court in AIR-2008 SC-1325 between Krishna Janardharn Bhat V/s Dattareya G. Hegde, in order to attract Sec.138 of N.I Act, the complainant has to satisfy 3 essential ingredients like, 1) there is legally enforceable debt, 2) that the cheque was drawn from the account of the Bank of the accused for discharge of whole or part of any debt or other liability which pre-supposes to be legally enforceable debt, 3) JUDGEMENT 7 C.C.24427/2015 cheque so issued returned unpaid due to Insufficient of funds.
10. Keeping in view the ingredients of Section.138 of Negotiable Instruments Act, I proceed to discuss the documents of this case.
(a) Ex.P1 is cheque bearing No.218147, dated: 25-05-
2015 for Rs.1,50,000/-, drawn on The Janatha Co- operative Bank Ltd., Govindarajanagar Branch, Bangalore. According to complainant Ex.P1(a) is the signature of the accused. On perusal of the original complaint i.e., Ex.P7, it is clear that it buttress the stand taken by the complainant herein.
(b) Ex.P2 is the cheque return memo, it shows that the above said cheque i.e., Ex.P1 was returned unpaid dated:
02-06-2015 because of the reason that 'Funds Insufficient'.
(c) It must be noted as per Clause (b) proviso to Section.138 of Negotiable Instruments Act, the complainant was required to make a demand for payment JUDGEMENT 8 C.C.24427/2015 of the said amount within 30 days from the date of receipt of cheque as un-paid.
(d) Ex.P3 is copy of the legal notice dated: 06-06-2015, which shows that the complainant made demand in writing calling upon the accused to make repayment of the said cheque amount by issuing notice against him which is within 30 days.
(e) Ex.P4 is the postal receipt and Ex.P5 is the postal acknowledgement card, which shows that notice was sent against the accused was duly served.
As per Clause (C) proviso to Section.138 of N.I Act, the accused is entitle 15 days time to make payment of money covered under cheque. Further, as per Sec.142 (b) of N.I Act, complaint has to be filed within 30 days from the date of which the cause of action aroses. Therefore, the complainant had filed this complaint well within time.
Thus, the complainant has fulfilled all the ingredients, which were required for the completion of the JUDGEMENT 9 C.C.24427/2015 offence punishable under Section.138 of Negotiable Instruments Act.
11. Keeping these documents in view, let us proceed to discuss that, whether the cheque in question belongs to the accused and whether the signature found on disputed cheque is that of the accused.
12. On perusal of the entire materials on record, it shows that, there is no dispute so as to the fact that Ex.P1 cheque is belongs to the bank account of the accused and Ex.P1(a) is his signature. But it is the defence of the accused that the complainant was doing chit transaction under the name and style Sree Sai Sumukh Developers and the accused was one of the subscriber in the said chit transaction and during the year 2011 the accused was member of chit for a sum of Rs.5,00,000/- on monthly subscription of Rs.20,000/- and it was for a period of 25 months. He had bid 15th chit. Thereafter he had paid the entire installments to the complainant. At the time of settling his chit amount, the complainant had obtained his signed blank cheque for security. Though he had repaid JUDGEMENT 10 C.C.24427/2015 the entire monthly subscriptions towards chit and insisted the complainant to return his signed blank cheque, but the complainant without returning the said cheque but by misusing the same, has filed this false complaint against him, though he never borrowed any loan from the complainant.
13 Thus, there is no dispute so as to the fact that Ex.P1 cheque is belongs to the bank account of the accused and Ex.P1(a) is his signature.
14. It is well settled that, admission furnishes best evidence as per the decision laid down in AIR-1981 PAGE- 2085.
Thus in my opinion, the admission given by the accused is sufficient to come to conclusion about the execution of Negotiable Instruments Act (Cheque in question) is admitted as well as proved.
15 In view of the decision reported in 2010 SC 1898 between Rangappa V/s Mohan, once the execution of JUDGEMENT 11 C.C.24427/2015 Negotiable Instruments Act is either proved or admitted, then the court shall draw a presumption under Section.139 of Negotiable Instruments Act, in favour of the complainant to that effect that the said Negotiable Instrument i.e., the disputed cheque has been drawn for valid consideration and it is towards legally recoverable debt and it is drawn for valuable consideration. Thus, it is the burden of the accused to rebut the presumption, which arose infavour of the complainant with necessary probable defence.
16. To substantiate his defence though accused counsel cross-examined PW.1 and elicited some admission from the mouth of PW.1 that the that complainant was one of the Director of Sree Sai Sumukh Developers and accused was one of the member in the said chit for Rs.5,00,000/- and the duration of the said chit was 25 months and accused had bid 15th chit and obtained amount etc., but not elicited any material admission from the mouth of PW.1 about obtaining this disputed cheque in blank from the accused as security at the time of taking the chit amount, as PW.1 denied each and every suggestion of the accused JUDGEMENT 12 C.C.24427/2015 made in that regard. Further the accused has not produced any material evidence before this court to show that the complainant was in the habit of collecting signed blank cheque as security at the time of settling the chit amount from its member and accordingly he had obtained this signed blank cheque also as security in connection to the chit transaction etc.
17. No doubt the accused has proved the fact that he was one of the member for the chit run by one Suresh, wherein the complainant was one of the Director by placing Ex.D1 document and about obtaining of chit amount by the accused by bidding 15th chit and about payment of monthly installments, but not proved the fact of obtaining disputed cheque as security by the complainant in connection to the said chit transaction and about misuse of the same by placing any material evidence before this court.
18. Further though accused at one stretch stated that he had paid amount towards chit to the tune of Rs.2,85,000/- and Rs.1,35,200/- through cheque in respect to the said JUDGEMENT 13 C.C.24427/2015 chit transaction etc. When such being the case if at all was there any circumstance of giving this disputed cheque to the complainant as security to the chit transaction though in blank etc, then there was no impediment for the accused to give such signed blank cheque in the name of Sumukh Developers by mentioning the name of chit fund. Because, as per the contention of the accused, the complainant had collected her signed blank cheque as security to the chit transaction i.e., towards balance monthly subscription amount payable by the accused towards chit transaction etc. When such being the case, if really was there any circumstance of giving blank cheque as security towards chit transaction etc., then the accused certainly would have given the cheque in the name of firm and there was no impediment for him to mention the name of chit fund in the cheque allegedly given as security. Hence, the say of the accused that he had given this disputed cheque in blank to the complainant as security in relation to the chit transaction is not convincing.
19. Further if the defence of the accused were to be true and he had issued this disputed cheque infavour of the JUDGEMENT 14 C.C.24427/2015 complainant towards chit transaction as security etc., then after repayment of the installments to the complainant chit and in case if the complainant did not returned his signed blank cheque inspite of his demand etc., then certainly the accused would have written any letter to the complainant requesting him to return his signed blank cheque by mentioning the fact of repayment of entire subscription amount due to the complainant with respect to his chit and in case if the complainant had not considered his request, then the accused would have caused legal notice against the complainant demanding him to return his signed blank cheque by narrating the circumstance in which he had given the said blank cheque infavour of the complainant as security and inspite of his notice, if the complainant had not returned his signed blank cheque, then he would have lodged police complaint against the complainant for non-return of his signed blank cheque or atleast he would have given necessary stop payment instruction to the bank authorities, requesting them not to honour the said cheque in case of its presentation by mentioning the fact of issuance of this cheque in favour of JUDGEMENT 15 C.C.24427/2015 complainant as security etc. But as per the admission, the accused not made any such attempt to take any legal action against the complainant for non-return of his signed blank cheques.
20. Unless the accused has proved that he has acted as normal prudent man he could not rebut the presumption which arose in favour of the complainant under Section.139 of Negotiable Instruments Act. Because, no prudent man will remain silent without taking any legal steps to collect back his security documents if really he had given any documents are available as security in connection to any transaction even after completion of the same. Hence, the defence taken by the accused is not convincing one.
21. Further at one stretch the accused made an attempt to say that Ex.P1 cheque is non-CTS cheque etc., with this the accused made an attempt to say that there was no loan transaction in between himself and the complainant during the year 2014 and he never borrowed any loan from the complainant in the year 2014 and on the other hand, the JUDGEMENT 16 C.C.24427/2015 cheque was given infavour of the complainant during the year 2012 in connection to chit transaction as security etc. But PW.1 has deposed about issuance of Ex.P1 cheque only by the accused etc., in his favour. Further though accused made an attempt to say that Ex.P1 cheque was issued towards security in connection to the chit transaction by taking advantage of the fact that Ex.P1 cheque is not a cheque issued after introduction of CTS system. If that was so, then the cheque allegedly given to the complainant as security must be also of CTS cheque only. Because, as per the defence of the accused he was one of the member of the chit group for a sum of Rs.5,00,000/- with the complainant in the year 2011 and he had bid the 15th chit i.e., subsequent to the year 2011. As per the say of the accused, the complainant had collected his signed blank cheque as security at the time of settling the chit amount i.e., towards remaining monthly subscriptions payable by the accused to the said chit etc., as security, then the alleged cheque must be of CTS cheque only. Because, as per RBI Guidelines, the CTS system has been introduced in the year 2010. When such JUDGEMENT 17 C.C.24427/2015 being the case, if the theory of the accused is true, then the disputed cheque allegedly given to the complainant as security must be a CTS cheque only, but as per Ex.P1 cheque it is a non-CTS cheque. This clearly goes to show that either the accused knowingly the fact that Ex.P1 cheque is not CTS cheque had given to the complainant just to take such defence and to escape from the liability. Further there was no such mandatory that non-CTS cheque should not be used in any subsequent transaction after introduction of CTS system i.e., after 2010. On the other hand, as per the RBI Guidelines there was some time given to the account holder to get exchange of non-CTS cheques to the CTS cheques. Hence, mere the fact that Ex.P1 cheque is non-CTS cheque, it cannot be said that it was not given by the accused infavour of the complainant during the 2015. Further, the Ex.P1 cheque was not returned from the Bank and dishonoured for the reason as non-CTS cheque/Stale cheque. On the other hand, as per the Ex.P2 endorsement, the said cheque was dishonoured for the reason 'Funds Insufficient'. Hence, the defence taken by the accused in that regard holds no water. JUDGEMENT 18 C.C.24427/2015
22. Further, if the defence of the accused were to be true then he would have taken such defence on earliest occasion by causing necessary reply to demand notice of the complainant. Because, as per the case of the complainant soon after dishonour of the cheque, he had caused notice to the accused by narrating the fact of dishonour of the cheque and demanded him to pay the cheque amount and the said notice was duly served on the accused as per Ex.P5 postal acknowledgment and despite of the same the accused not come forward to settle his cheque amount etc. Hence, he maintained this complaint. But the accused has denied the fact of service of demand notice against him by taking the defence that the signature found on Ex.P5 cheque is not the signature of his son namely Akash, though he has admitted that his son name is Akash. Further, he has taken the defence that he is resident of Door No.3, 8th Cross, 8th Main, Rajajinagar, Bangalore. To substantiate the said fact he has produced document like passbook, stands in the joint name of himself and his wife which are marked as Ex.D1 and D2. But it is elicited from the mouth of accused that he is JUDGEMENT 19 C.C.24427/2015 running printing press since 20 years at prime locality i.e., Basaveshwara Nagar Main Road and he is well known to the complainant also since 6 years according to his defence. When such being the case, the accused is known personality in the said locality and as such the postman might have served the notice against the accused as per Ex.P5 postal acknowledgement, since the other particulars of the address of the accused are correct except Cross Road. Since the demand notice was sent by the complainant to the residential address of the accused as Door No.3, 3rd Cross, 8th Main, Rajajinagar, Bangalore and as per the say of the accused, he is resident of Door No.3, 8th Cross, 8th Main, Rajajinagar, Bangalore. Hence, the defence taken by the accused about non-service of demand notice is not tenable one.
Even otherwise, as per the decision reported in (2007) 6 Supreme Court Cases 555, wherein it is held as follows:
"Course open to drawer where he claims not to have received the notice sent by post by received copy of the complaint with the summons - Held, he can within 15 days of the receipt of the summons make payment of the JUDGEMENT 20 C.C.24427/2015 cheque amount. Hence, he cannot contend that there was no service of notice."
23. Hence, the defence taken by the accused in this regard holds no water. When such being the case if the defence of the accused were to be true, then certainly he would have taken such defence on earliest occasion by casing necessary reply to the demand notice of the complainant. But no such steps have been taken by the accused. Hence, the defence taken by the accused is not probable one to dispel the burden, which arose infavour of the complainant under Section.139 of Negotiable Instruments Act. Hence, with all these reasons, this court is of the opinion that though the accused made an attempt to disprove the case of the complainant by taking the defence that Ex.P1 cheque was given to the complainant as security in connection to the chit transaction during the year 2011 etc., and not towards discharge of any debt or liability infavour of the complainant during the year 2015 etc., but he failed to prove the same with necessary evidence. On the other hand, the complainant has proved the fact that Ex.P1 cheque was issued by the accused in JUDGEMENT 21 C.C.24427/2015 his favour towards discharge of the debt of Rs.1,50,000/- and the said cheque on its presentation was bounced back unpaid for the reason 'Funds Insufficient' and despite of issuance of demand notice, since the accused has not come forward to settle the cheque amount. He maintained this complaint. Thus, the complainant has proved all the essential ingredients of Section.138 of Negotiable Instruments Act to bring home the guild of the accused. Hence, I answered Point No.1 in the Affirmative.
24. POINT NO.2: In view of my discussions on Point No.1 as above, I proceed to pass the following:
ORDER Acting under Section. 255(2) Cr.P.C., the accused is convicted for the offence punishable under Section.138 of Negotiable Instruments Act.
The accused shall pay a fine of Rs.2,15,000/-. In default of payment of said JUDGEMENT 22 C.C.24427/2015 fine amount, the accused shall undergo simple imprisonment for Six Months.
Out of the said amount, accused shall be paid Rs.2,10,000/- to the complainant as compensation, as provided under Section.357 of Cr.P.C. and Rs.5,000/- shall be remitted to the state as fine.
(Dictated to the stenographer, transcribed by him, corrected and then pronounced in open court by me on this the 17th day of February-2017) (C.G. Vishalakshi) XIII A.C.M.M., Bengaluru.
ANNEXURE Witnesses examined on behalf of the complainant:
PW.1 : Sri. B. Raju Documents marked on behalf of the complainant:
Ex.P1 : Cheque
Ex.P2 : Bank Endorsement
Ex.P3 : Legal Notice
Ex.P4 : Postal Receipt
Ex.P5 : Postal acknowledgement
Ex.P6 : Track Details
Ex.P7 : Complaint
JUDGEMENT 23 C.C.24427/2015
Witnesses examined on behalf of the accused:
DW.1 : B.R. Venkateshmurthy Documents marked on behalf of the accused:
Ex.D1&D2 : Bank Passbooks
(C.G. Vishalakshi)
XIII A.C.M.M., Bangalore.