Bangalore District Court
M/S.Kotak Mahindra Bank vs Dilleappa H Meanakatti on 29 April, 2015
IN THE COURT OF THE XXVI ADDL.CHIEF
METROPOLITON MAGISTRATE, BANGALORE CITY
Dated this the 29th day of April 2015
PRESENT:SMT.SUMANGALA S.BASAVANNOUR B.Com. LL.M
XXVI Addl.C.M.M., Bangalore City.
JUDGMENT U/S 355 OF Cr.P.C
Case No. : C.C No.16226/2014
Complainant : M/s.Kotak Mahindra Bank,
Having its office at
Shop No.58 & 59,
2nd Floor, Sree Complex,
Bhavani HSG Co-op. Society
Ltd. T Block,
Banashankari 3rd Stage,
Bangalore - 560 085
Represented by its
Authorised Signatory/
GPA Holder
Sri. B. Ravi Kumar
(By Sri.SM, Adv.)
Accused : Dilleappa H Meanakatti
Medleri Village,
Ranebennur Taluk,
Haveri - 581 115
Chandrappa Dilleappa
Meanakatti,
AccusedP. Medleri J
9 Ranibennur Dist Haueri
Haveri - 581 115
(By Sri.SA Adv.)
Offence complained of : U/s 138 of N.I.Act.
Plea of the accused : Pleaded not guilty.
Final Order : Accused is Convicted.
Date of Order : 29/04/2015.
2 C.C.No.16226/2014
JUDGEMENT
The complainant filed the private complaint u/s 200 of Cr.P.C alleging that, the accused person has committed an offence punishable u/s 138 of N.I.Act.
2. The brief facts of the complainant's case are as follows:
The Complainant is the Private Sector Bank registered under Companies Act 1956 engaged in the business of extending Finance facility to its customers. The Accused has availed Vehicle loan on 30.10.2010 for Rs.3,30,147/-
from the Complainant under Loan A/c No. 780620 and agreed to repay the loan amount with interest in monthly installments, at the time of availing the loan. Accused No.2 has issued cheque bearing No. 000001 dated 25.11.2013 drawn on Kotak Mahindra Bank, Thippasandra Branch, for Rs.2,96,298/- and assured prompt encashment on its presentation for collection. As per the instruction of the Accused the Complainant has presented the aforesaid cheque for collection. But to the utter surprise of the Complainant, the said cheque has been dishonoured with endorsement "Funds Insufficient'" on 27- 3 C.C.No.16226/2014
11-2013. Immediately they have tried to contact the Accused personally and all their efforts ended in vain. Therefore the Complainant got issued a legal notice dated 24.12.2013 to the Accused, calling upon him to repay the cheque amount within 15 days. The notice sent through RPAD has been duly served on the Accused. Insptie of the same, the Accused failed to comply with the demands made in the notice. Hence the present complaint.
3. After presenting this case, this court has taken cognizance of the offence and after recording the sworn statement of the complainant's side, this court registered the criminal case against the accused alleging that, he has committed an offence punishable u/s 138 of N.I.Act. Summons issued to the accused. The same is served upon the accused. The accused appeared through his counsel, enlarged on bail and he denied the entire case of the complainant at the time of recording his plea of accusation and case to be tried.
4. In support of the case of the complainant, its Recovery Manager Sri. Ravi Kumar examined as PW.1 and 4 C.C.No.16226/2014 and got marked Ex.P1 to P6 and this PWs.1 has been fully cross-examined by the accused counsel and thus, the complainant closed his side evidence.
5. Thereafter, the statement of accused u/s 313 Cr.P.C is recorded, in which, he totally denied the entire case of the complainant. In support of the denial of the case of the accused, he has not chosen to led his defense evidence and his side evidence.
6. In support of the case of complainant, the complainant counsel submitted his written arguments by narrating both parties case.
7. Hears both sides
8. On the basis of the aforesaid facts and circumstances, the following points arise for my consideration:
1) Whether the complainant proves that, beyond all reasonable doubt for repayment of the loan advanced by the complainant, the accused No.2 issued a cheque bearing No.000001 dated 25.11.2013 for a sum of Rs.2,96,298/- drawn on Kotak Mahindra Bank, Thippasandra Branch, Bangalore, the same is dishonoured for want of 5 C.C.No.16226/2014 sufficient funds and inspite of issuance of legal notice, the accused did not comply or reply to the notice and thus, he has committed an offence punishable u/s 138 of N.I.Act?
2) What Order?
9. My answer to the above points are as follows:
1) In the Negative,
2) As per final Order, For the following:
REASONS
10. POINT NO.1: It is the case of the complainant, the Accused has availed vehicle loan on 30.10.2010 for Rs. 3,30,147/- from the Complainant under Loan A/c No. 780620 and agreed to repay the loan amount with interest in monthly installments, at the time of availing the loan. To discharge his part loan liability Accused No.2 had issued the cheque bearing No. 000001 dated 25.11.2013 drawn on Kotak Mahindra Bank, Thippasandra Branch, for Rs. 2,96,298/-. As per the instruction of the Accused the Complainant has presented the aforesaid cheque for collection. But to the utter surprise of the Complainant, the said cheque has been dishonoured with endorsement 6 C.C.No.16226/2014 "Funds Insufficient'" on 27-11-2013. Therefore the Complainant got issued a legal notice dated 24.12.2013 to the Accused, calling upon him to repay the cheque amount within 15 days. The notice sent through RPAD has been duly served on the Accused. Insptie of the same, the Accused failed to comply with the demands made in the notice.
11. The complainant to substantiate its case, examined its Recovery Manager Sri. Ravi Kumar as PW1 and got marked Ex-P1 to P6. PW1 in his evidence reiterated the averments of the complaint and got marked Original board resolution at Ex.P1, Original cheque vide No. 000001 At Ex-P2, Signature of the accused at Ex-P2(a), Cheque Return memo issued by Kotak Mahindra Bank at Ex-P3, Office copy of the legal notice at Ex-P4, Postal receipts two in numbers at Ex-P4 (a) and P4(b), Un-served RPAD cover at Ex-P5, Notice at Ex-P5(a), Complaint at Ex- P6.
12. During the course of cross-examination PW1 deposed that, in this case loan amount has to be repaid in 48 months payable in half yearly installments. Each 7 C.C.No.16226/2014 installment is Rs. 60,000/-. At the time of filing of this complaint the Accused had paid only two installments. The Accused Chandrappa issued a cheque in the year 2013 at the time of recovery proceedings, when the cheque was issued a three installments were due. The Accused had issued the disputed cheque to pre-closure the account. And he has not produced the statement of account to shows that Rs.4,14,626/- was due as on 20.06.2014 and he also admitted he has not produced loan documents and auction proceedings documents. Due to auction proceeding they got Rs.2,20,000/- But the Accused not adduced any oral or documentary evidence.
13. Before considering the evidence on record, I would like to discuss on maintainability of the complaint against Accused No.1. In this case Complaint baldly discloses that, Accused has availed vehicle loan on 30.10.2010 for Rs, 3,30,147/- and it also discloses that to discharge his part liability, Accused No.2 issued a cheque bearing No. 000001 dated 25.11.2013.
8 C.C.No.16226/2014
14. On the other hand in written argument Complainant counsel stated that, to discharge the Accused No.1's part loan liability, co-borrower Accused No.2 has issued the cheque. Perused ExP2 cheque it reveals that, one Chandrappa signed the cheque. As per the instant case the Chandrappa is Accused No.2 and according to the Complainant, Accused No.2 is a co-obligant.
15. Ex-P4 office copy of the legal notice also does not discloses who is the borrower and who is the co-obligant and the averments of the complaint and evidence of PW1 and documents placed before this court does not discloses any allegation against Accused No.1. Admitted Accused No. 1 is not signatory to cheque Ex-P1 and as above stated the Complainant has not placed any allegation against the Accused No.1 to hold that, the Accused No.1 has committed an offence punishable under section 138 of NI Act.
16. In order to constitute an offence under section 138 of the NI Act, Hon'ble SC held in Jugesh Shgal vs. shamsher Sing Gogi, (2009) 14 SCC 683, 9 C.C.No.16226/2014 A person must have drawn a cheque on an account maintained by him in a bank, for payment of a certain amount of money to another person from out of that account.
It is also held, the considering the language used in section 138 and taking note of background agreement pursuant to which the Accused is issued by more than one person, we are of view that, it is only the "drawer" of the cheque who can be made liable to penal action under the provisions of NI Act.
17. In the case in hand, we are concerned with criminal liability on the account dishonour of the cheque. It primarily falls on drawer of the cheque. In the case in hand, the Chandrappa i.e. Accused No.2 is the drawer of the cheque. And admittedly Accused No.1 is not signatory to Ex-P1 cheque and there is no specific allegation against the accused No.1 in complaint. And complainant Bank failed to produce the document to show that accused No.1 is committed an offence u/s. of N.I Act. Hence cannot be prosecuted. Hence, I hold that, the complaint is not maintainable against Accused No1.
Now I would like to consider evidence placed before this court.
10 C.C.No.16226/2014
18. The Ex.P.2 is the cheque bearing No.000001 dated 25.11.2013 for Rs.2,96,298/- drawn on Kotak Mahindra Bank, Thippasandra Branch, Bangalore.
19. The Ex.P.3 is the cheque return memo issued by Kotak Mahindra Bank , which shows that the aforesaid cheque has been dishonoured on 27.11.2013 with reasons "funds insufficient" in the account of the accused herein.
20. It must be noted that as per clause (b) of proviso to section 138 of NI Act the complainant was required to make a demand for repayment of the said amount within 30 days from the date of receipt of cheque as unpaid. The Ex.P.4 show that complainant made a demand, in writing, calling upon the accused to make repayment of the said loan amount by issuing notice dated 24.12.2013, which is within 30 days from the date of receipt of cheque as unpaid.
11 C.C.No.16226/2014
21. The Ex.P.5 and Ex-P7 un-served RPAD shows that RPAD returned with endorsement dated 30.12.2013 as "not claimed" It is clear that, the Accused purposely not claimed the notice hence it deemed as served the notice. As per clause (C) of proviso to section 138 of NI Act the accused was entitled to have 15 days time to make the repayment of aforesaid loan amount. Further as per section 142(b) of NI Act the complaint is to be filed within 30 days from the date on which the cause of action arises. Admittedly the complaint was filed 07.02.2014 so the complaint is filed within a time prescribed. As per Sec.142(b).
22. In this case, the burden is casted upon the complainant to prove beyond all reasonable doubt that, Ex.P.2 cheque bearing No. 000001 dated 25.11.2013 for Rs.2,96,298/- drawn on Kotak Mahindra Bank, Thippansandra Branch, Bangalore t towards the discharge of the legally recoverable debt. It is fundamental basic principle which has been preponderance by different ruling of the Apex Court and High Courts that proof should be required by the court by complainant in order to get the 12 C.C.No.16226/2014 case convicted must be beyond all reasonable doubt. On the other hand, to rebut the case of the complainant on any presumption under law. The accused need not be called upon to prove his case beyond all reasonable doubt. But if he places some material before the courts which are sufficed to discharge lodged the presumption by means of preponderance of probabilities that would be suffice the responsibility of the accused in discharge his liability. Therefore, in this case, the court has to see whether the accused has places sufficient materials to come to the conclusion that by means of preponderance of probabilities the accused has successfully rebutted the presumption raised under Sec. 139 of N.I Act.
23. According to the PW1 to discharge his part loan liability the co-obligant Accused has issued cheque bearing No. 000001 dated 25.11.2013 drawn on Kotak Mahindra Bank, Thippasandra Branch, for Rs. 2,96,298/-. As per the instruction of the Accused the Complainant has presented the aforesaid cheque for encashment. But, the 13 C.C.No.16226/2014 said cheque has been dishonoured with endorsement "Funds Insufficient'" on 27-11-2013.
24. Perused Ex-P2 it discloses that, signature of Chandrappa. As per the complaint Chandrappa is Accused No.2 and Ex-P2 cheque also reveals that, this cheque issued in favour of Kotak Mahindra Bank Ltd. loan Account Dilleappa H. Meanakatti for Rs. 2,96,298/-. As per the complaint Dilleappa H. Meanakatti is Accused No.1. In this case, complainant failed to produce the loan documents to shows that accused No.1 borrowed theloan and accused No.2 stood as a surety. PW1 deposed that accused has paid down payment of Rs.1.80,000/- to purchase the vehicle.
25. PW1 clearly stated that, when the cheque was issued three installments were due. The Accused had issued the disputed cheque to pre-closure of the account. PW1 evidence discloses that, on the receipt fo the notice Accused failed to come forward to settle the dues, hence vehicle was repossessed on 16.06.2014 and the notice was issued on 20.06.2014 to make the payment of dues of Rs. 4,14,626/- payable by the Accused. But the Accused failed 14 C.C.No.16226/2014 to comply for the same and hence the Complainant has auctioned the vehicle on 10.09.2014 for Rs.2,20,000/- for the best quote received and intimated the Accused to pay the balance amount of Rs.1,94,626/- as loss on sale.
26. The averment of the complaint discloses that, Accused No.2 issued a cheque No.000001 dated 25.11.2013 for Rs.2,96,298/- drawn on Kotak Mahindra Bank, Thippasandra Branch, Bangalore towards discharge of part loan liability. The evidence of PW1 discloses that, on receipt of the notice Accused is failed to come forward to settle the dues so the vehicle was repossessed on 16.06.2014 and notice was issued on 20.06.2014 to make the payment of dues of Rs. 4,14,626/- payable by the Accused. But Accused failed to comply for the same hence the complaint has auctioned the vehicle on 10.09.2014 for Rs.2,20,000/-. And intimated the Accused to pay the balance of Rs.1,94,626/-.
27. In the instant case, except oral evidence of PW1 the Complainant has not placed any documents before this court to shows that, accused No.1 is the borrowed and accused No.2 is surety. And also not produced document to 15 C.C.No.16226/2014 show that they have issued the auction notice to the accused. And conducted the auction on 10.09.2014 for Rs.2,20,000/- and also not produced any documents to shows that, dues of Rs. 4,14,626/- as on 20.06.2014. Though, the defense counsel raised objections, that the complainant has not produced the statement of account to substantiate the dues as on 20.06.2014 and also substantiate Rs.2,20,000/- is credited to the Accused loan account and balance amount is Rs.1,94,626/- . In the absence of these documents, this court cannot hold that the Accused is liable to pay Rs.1,94,626/- .
28. In this regard I relied the decision reported in III (2006) BC 248 (DRAT/DRT) Debts Recovery Appellate Tribunal
- Mumbai in the case of Dena Bank vs. Bankim Mehta & Ors.
"That statement did not bear certificate required to be furnished under Banker's Book Evidence Act and not admissible in evidence - Once statement of accounts excluded, nothing on record from which liability of defendant No.1 could be ascertained - Applicant - Bank failed in proving certain amount was outstanding on date of filing of application"
7. It was pointed out that it was against the guidelines issued by Hon'ble Supreme Court in 16 C.C.No.16226/2014 the case of Central Bank of India v. Ravidndra I (2002) BC 150 (SC) =VII(2001) SLT 400=IV (2001) CIT 127(SC) = AIR 2001 SC 3095. It was pointed out that the statement did not even bear the certificate, which was required to be furnished under the Bankers Book Evidence Act. It was, therefore contended that the said statement of account as not admissible at all.
8. It appears that the applicant bank adopted very casual approach. This attitude of the applicant bank leaves much to be desired. c. Once the statement of account was excluded, there was nothing on record from which the liability of the defendant No.1 could be ascertained or it could be said that a certain amount was due on the date of filing of the application.
29. In the present case admittedly Complainant failed to produce the statement of account inspite of suggestion by the defense counsel. So, there is no documents placed before this court to shows that, on the date of insurance of cheque the Accused is liable to Rs.2,96,298/- and also failed to prove that the Accused is liable to Rs.4,14,626/- on 20.06.2014. Once the statement of account was not produced there was nothing on record from which the liability of the Accused could be ascertained or it could be 17 C.C.No.16226/2014 said that a certain amount was due on the date of filing of the application. Rs.1,94,626/- is due after auction of the vehicle.
30. It is settled position that, when an accused has rebutted the presumption under section 139 the standard of proof is "preponderance of probabilities". Therefore, if the accused is able to raise probable defense, which creates doubt about the existence of legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that, in some cases, the accused may not need to adduce evidence on his. So, though in this case, the accused has not adduced the evidence, it does not mean that, they have not rebutted the case of the complainant. Hence, On the above discussion and on the strength of the above decisions, I hold that the complainant failed to establish that there is legally enforceable debt or liability. And Ex.P.2 cheque issued towards discharge of legally recoverable debt. Hence, I answer the Point No.1 in Negative. 18 C.C.No.16226/2014
31. POINT NO.2: For the above said reasons, I proceed to pass the following:
ORDER Acting u/s 255(1) of Cr.P.C., the case against the accused No.1 stands dismissed.
The accused No.2 is Acquitted for the offence punishable u/s 138 of N.I.Act.
Bail bonds cancelled after expiry of he appeal period.
(Dictated to the Stenographer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 29th day of April 2015) (SUMANGALA S.BASAVANNOUR) XXVI Addl. Chief Metropolitan Magistrate, Bangalore City.19 C.C.No.16226/2014
ANNEXURE Witnesses examined for the Complainant:
PW.1 Ravi Kumar Witness examined for the accused: NIL
List of Documents marked for the Complainant:
Ex.P1 Original board resolution
Ex.P2 Original cheque vide No. 000001
Ex.P2a Signature of the Accused on cheque
Ex.P3 Cheque return memo issued by Kotak
Mahindra Bank
Ex.P4 Office copy of the legal notice
Ex.P4 (a( & (b) Postal receipts two in numbers Ex.P5 Un-served RAPD cover Ex.P5a Notice Ex.P6 Complaint List of Documents marked for the accused:
NIL XXVI ACMM, Bangalore.