Bangalore District Court
Sri.Ramesh.N vs Sri.Manjunath.L on 29 December, 2018
1 C.C.No.27034/2014 J
THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 29th day of December, 2018
Present: Smt. Saraswathi.K.N, B.A.L., LL.M.,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.27034/2014
Complainant : Sri.Ramesh.N,
S/o. Narasimaiah,
Aged about 32 Years,
Residing No.101, (A)
14th A Cross, Viewers Street,
Sarakki Gate,
Kanakapura Main Road,
J.P. Nagar 1st phase,
Bengaluru -560 078.
(Rep. by Sri.A.R.Khan & Associates,
Advs.,)
- Vs -
Accused : Sri.Manjunath.L.
S/o. Lingaraju,
Aged about 30 years,
D.No.E.66, Madhu Nagar,
Near Mysore Bank ATM,
Sarjapura Main Road,
Dommasandra,
Bengaluru.
(Rep. by Sri.J.S.Krishna Murthy and
others, Adv.,)
Case instituted : 9.5.2014
Offence complained : U/s 138 of N.I Act
of
2 C.C.No.27034/2014 J
Plea of Accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 29.12.2018
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, the Accused and he are well known to each other from the past few years as both of them are relatives. As such, the Accused approached him and received total amount of Rs.8 Lakhs in different installments by assuring to arrange one site in Kamakshipalya area. He believed the assurance of the Accused and arranged the above said amount with great difficulty and lent the amount to the Accused in installments. However, the Accused postponed the repayment of the loan amount on pretext or the other only with an intention to cheat him. Finally at the intervention of the elders and well-wishers, on 27.12.2013, the Accused decided to repay the total legally enforceable debt and liability to him on different dates in different installments and on the same day, he issued a cheque bearing No.022639 dated:- 27.12.2013 drawn on the I.D.B.I. Bank, Sarjapura Branch, for a sum 3 C.C.No.27034/2014 J of Rs.1.5 Lakhs and agreed to repay the balance amount of Rs.6,50,000/= within 3 or 4 months. On the same day, the Accused executed one letter in his favour before the witnesses.
3. The Complainant has submitted that, as per the assurance of the Accused, when he presented the said cheque for encashment, the same came to e returned dishonoured as "Funds Insufficient" vide Bank Endorsement dated:- 28.12.2013. Hence he lodged a complaint against the Accused before the J.P.Nagar Police Station on 4.2.2014, but the said police colluded with the Accused and directed him to approach the concerned court.
4. The Complainant has submitted that, as per the assurance and direction of the Accused, when he re- presented the said aforesaid cheque for encashment through his banker, the same came to be returned dishonoured as "Funds Insufficient" vide bank endorsement dated:- 19.2.2014. Thereafter left with no other alternative, he got issued the legal notice to the Accused through RPAD calling upon him to pay the cheque amount to him within 15 days from the date of the receipt of the said legal notice. Though after the service of the same, the Accused has given an untenable 4 C.C.No.27034/2014 J reply to him, he has failed to pay the cheque amount to him. Hence the present complaint.
5. The Complainant submits that, the dishonour of the cheque by the Accused has been malafide, intentional and deliberate. Feeling aggrieved by the conduct of the Accused, he has filed the present complaint praying that, he be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
6. The Complainant has led his pre-summoning evidence and he has filed his affidavit-in-lieu of his sworn statement, in which, he has reiterated the complaint averments.
7. Prima-facie case has been made out against the Accused and he has been summoned vide the order of the same date.
8. The Accused has appeared before the court and he has been enlarged on bail and the substance of the accusation has been read over to him, to which he has pleaded not guilty and has stated that, he has the defence to make.
5 C.C.No.27034/2014 J9. In his post-summoning evidence, the Complainant has examined him as P.W.1 and he has filed his affidavit-in-lieu of his chief-examination, wherein, he has reiterated the averments made in the complaint.
10. In support of his oral evidence, P.W.1 has produced and relied upon the following documentary evidence as per Ex.P1 to P10, which is as follows:-
The Original Cheque dated:- 27.12.2013 as per Ex.P1, the signature on the said cheque identified by P.W.1 as that of the Accused as per Ex.P.1(a), the two Bank Memos as per Ex.P.2 and P.3 respectively, the Original Complaint as per Ex.P.4, the Office copy of the Legal Notice as per Ex.P.5, the Complaint settled reply as per Ex.P.6, the office copy of the complaint to the Postal Authorities as per Ex.P.7, the photocopy of the Postal Receipt as per Ex.P.8, the photocopy of the Postal Acknowledgement as per Ex.P.9 and the Reply Notice as per Ex.P.10.
11. The statement of the Accused as required under Sec. 313 of the Cr.P.C. has been recorded. He has denied the incriminating evidence found against him and has chosen to lead his rebuttal evidence.
6 C.C.No.27034/2014 J12. The Accused is examined as D.W.1 and he has filed his evidence affidavit, which is accepted by this court, as per the direction of our Hon'ble High Court in Afzal Pasha V/s. Mohamed Ameer Jan, reported in LAWS (KAR) 2016 (8) 131, in which, the acceptance of the affidavit of the Accused is permitted by our Hon'ble High Court in accordance with the direction of the Hon'ble Apex Court in the case of the Indian Bank Association Vs., Union of India, reported in (2014) 4 SCC 590.
13. The Accused gist of the defence of the Accused in his affidavit is as follows:-
i) That, the Complainant is his cousin brother, who used to visit his house occasionally;
ii) That, there has been no financial transaction between the Complainant and him and that the Complainant himself was working in the shop of his brother Ramu and as such, the latter himself was not financially stable and was suffering from financial commitments;
iii) That, during the year 2012, his father was suffering from Paralytic stroke and for the same reason, the Complainant used to visit 7 C.C.No.27034/2014 J his house now and then in order to meet his father;
iv) That, he had kept his unsigned blank cheque leafs in the cheque book on a table near the bed of his father and having observed the same, the Complainant has stolen the cheque book, that was kept there and has filled up the contents of the same for a sum of Rs.1.5 Lakhs and presented the said cheque by having forged his signature on it;
v) That, he is not liable to pay any amount to the Complainant and as such, he is not liable to repay either the loan of Rs.8 Lakhs or the cheque amount of Rs.1.5 Lakhs to the Complainant;
vi) That, the Complainant has misused his blank cheque by forging his signature, though he has no financial capacity to lend any amount to him;
Accordingly, he has prayed for his acquittal.
14. D.W.1 has been cross examined by the learned counsel for the Complainant.
8 C.C.No.27034/2014 J15. The learned counsels for the Complainant and the Accused have filed written arguments.
16. In support of his arguments, the learned counsel for the Complainant has relied upon the following decisions:-
i) In Issac K.J. Vs., Reghunathan Chettiar., reported in I (2016) BC 433 (Ker.);
ii) In Sripad Vs. Ramadas M. Shet., reported in 2014(4) AKR 98;
iii) In K.N.Beena Vs. Muniyappan and another., reported in 2008(1) SCC 458;
iv) In Kishan Rao Vs., Shankargouda., reported in AIR 2018 SC 3173;
17. Per Contra, the learned Defence Counsel has also relied upon the following decisions:-
i) In Babulal Nainmal Jain Vs. Khimji Ratanshi Dedhia and others., reported in 1998 Cri.
L.J.4750;
I have perused the material on record.
18. Sec.138 of the Negotiable Instruments Act has been enacted to lend credibility to the financial transactions.
9 C.C.No.27034/2014 JThe main ingredients of the offence under Sec.138 of the Negotiable Instruments Act are:-
(i) Drawing up of a cheque by the Accused towards payment of an amount of money, for the discharge, in whole or in part, of any debt or any other liability;
(ii) Return of the cheque by the Bank as unpaid;
(iii) The drawer of the cheque fails to make the payment of the said amount of money within 15 days of the receipt of the notice under the proviso
(b) to Section 138.
The Explanation appended to the Section provides that, the "debt or other liability" for the purpose of this Section means a legally enforceable debt or other liability.
19. Apart from this, Sec. 139 of the Negotiable Instruments Act lays down a presumption in favour of the holder of cheque in the following terms:-
"It shall be presumed, unless the contrary is proved, that:-
The holder of a cheque received the cheque, of the nature referred to in Sec. 138, for the discharge, in whole or in part, of any debt or other liability".10 C.C.No.27034/2014 J
20. Also, Sec.118 of the Negotiable Instruments Act states, "Until the contrary is proved, the following presumptions shall be made:-
(a) That every Negotiable Instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration."
21. Thus, the Act clearly lays down presumptions in favour of the Complainant with regard to the issuance of the cheque by the Accused towards the discharge of his liability in favour of the Complainant.
22. Under the scheme of the Act, the onus is upon the Accused to rebut the presumptions in favour of the Complainant by raising a probable defence.
23. It is a well settled position of law that, the defence of the Accused, if in the nature of a mere denial of the case of the Complainant will not be sufficient to hold it as a probable defence. The bare denial of the passing of consideration apparently does not appear to be any defence. Something which is probable must be 11 C.C.No.27034/2014 J brought on record for getting the benefit of shifting the onus of proof to the Complainant.
24. It is also a well settled position of law that, once the cheque is proved to be relating to the Account of the Accused and he accepts and admits the signature on the said cheque, then the initial presumption as contemplated under Sec.139 of the N.I.Act has to be raised by the courts in favour of the Complainant. The presumption referred to in Sec.139 of the N.I.Act is a mandatory presumption and not a general presumption, but the Accused is entitled to rebut the said presumption. What is required to be established by the Accused in order to rebut the presumption is different from each case under given circumstance. But the fact remains that a mere plausible explanation is not expected from the Accused and it must be more than a plausible explanation by way of rebuttal evidence. The defence raised by the Accused by way of rebuttal evidence must be probable and capable of being accepted by the court.
25. No doubt the initial mandatory statutory presumptions under Sec.118 and 139 of the N.I.Act are in favour of the Complainant. However they are 12 C.C.No.27034/2014 J rebuttable presumptions and the Accused is expected to rebut the presumptions by raising a probable defence.
26. Such being the legal position, it would be pertinent to refer to the defences raised by the Accused to rebut the presumptions in favour of the Complainant in this case.
27. Admittedly, there is no dispute with regard to the acquaintance and the relationship between the parties as well as with regard to the fact that the cheque in dispute belongs to the account of the Accused both with regard to the signature on the cheque in dispute as well as the alleged loan transaction to the tune of Rs.8 Lakhs as claimed by the Complainant in the present case and also with regard to the fact that, he has allegedly issued the cheque in dispute in favour of the Complainant for the purpose of repayment of the partial loan amount of Rs.1.5 Lakhs.
28. It is interesting to note that, though the Complainant has been cross-examined extensively on the basis of the office copy of the complaint lodged by him to the postal authorities as per Ex.P.7, the Complaint Settled Reply as per Ex.P.6, the said portion of the cross- examination of the Complainant is not at all relevant for 13 C.C.No.27034/2014 J the purpose of the present case, since admittedly, the Accused has caused the reply notice to the Complainant through his counsel as per Ex.P.10. Therefore, when there is a Reply Notice caused by the Accused to the counsel for the Complainant on 7.4.2014, in which, there is a clear reference to the legal notice dated:-
17.3.2014 that was got issued to him by the Complainant, there can be no defence of the Accused that there is no compliance of Sec.138 of the N.I. Act by the Complainant.
29. Therefore when the Complainant has produced the office copy of the legal notice dated:- 17.3.2014 as per Ex.P.5, which is admittedly sent by him to the Accused through RPAD, in response to which, the Accused has admittedly caused a Reply Notice as per Ex.P.10, the defence of the Accused that, there is no proof of the service of the legal notice on him and that the Complainant has not produced any cogent proof in order to show the service of the legal notice to him does not survive. Therefore, taking into consideration, the fact that, the Accused has admittedly caused a reply notice to the counsel for the Complainant as per Ex.P.10, I am of the opinion that there is no merit in the defence raised by the Accused that there is no service of the legal notice upon him.
14 C.C.No.27034/2014 J30. Now coming to the case of the Complainant on merits, it could be seen that, in the reply notice at Ex.P.10, the defence of the Accused is only one of denial of the case of the Complainant and he has also denied the alleged issuance of the cheque in dispute by him in favour of the Complainant, towards the discharge of the partial loan.
31. It is interesting to note that, even in Para No.7 of the Reply Notice at Ex.P.10, the Accused has taken up the defence that, as and when the Complainant used to visit his house, the former used to leave all the articles and things including his cheque book on the table of his house and on such occasion, the Complainant has allegedly taken away the cheque leafs and has misused the cheque in dispute and presented the same for bank. However, in his affidavit, the Accused has raised the plea of forgery by alleging that, his signature on the cheque in dispute has been forged by the Complainant himself.
32. Likewise, even in the cross-examination of the Complainant, the Accused has denied that, the signature as well as the contents of the cheque in question is in his hand writing.
15 C.C.No.27034/2014 J33. Therefore it could be seen that, for the first time, during the stage of the cross-examination of the Complainant as well as in his rebuttal evidence, the Accused has come up with the defence by raising the plea of forgery of his signature by the Complainant on the cheque in dispute.
34. However, it is rightly elicited from the Accused in his cross-examination that, he has not raised the said plea of forgery in the reply notice and that, he had no impediment to state the same in the reply notice. Therefore, when the Accused has failed to raise the said plea of forgery at the earliest point of time in his defence in his reply notice, the said defence raised by him during the stage of the cross-examination of the Complainant as well as in his rebuttal evidence amounts to improvement in his case, which cannot be accepted and believed by this court.
35. It is further pertinent to note that, when the Accused claims that, the cheque in dispute was a blank cheque which has been allegedly stolen by the Complainant, then if his plea of forgery was a probable defence, then the cheque in dispute ought to have been returned by the court for the reason "Signature differs". However, as could be seen from the documentary 16 C.C.No.27034/2014 J evidence at Ex.P.2 and P.3, being the cheque return memos, the cheque in dispute is returned on both the occasions as "Funds Insufficient" and not as "Signature differs". Therefore, if there was any variation in the signature of the drawer of the cheque in question, then the banker of the Accused, who was a competent person would have returned the cheque as "Signature differs"
instead of returning the same as "Funds Insufficient".
36. Even otherwise, it is to be noted that, though the Accused has raised the plea of forgery, except having alleged the said plea of forgery, there is no steps taken by him in order to prove the said plea.
37. Moreover it is a well settled principle of law that, a party, who sets up the plea of forgery, has the burden of proving the same, by taking appropriate steps. However, it could be seen that, in the present case, the plea of forgery raised by the Accused is a bald attempt made by him in his anxiety of rebutting the case of the Complainant.
38. Moreover, it is pertinent to note that, though it is elicited from the Complainant in his cross-examination that, presently the signature on the cheque in dispute appears to be un-cleared and tampered, he has denied 17 C.C.No.27034/2014 J the suggestion of the learned Defence Counsel as false that, he had presented the cheque in dispute thrice.
39. No doubt, the Complainant has also admitted the suggestion as true that, once the cheque in dispute was returned with an endorsement as "Image not cleared". However, it is interesting to note that, it is not the case of the Complainant that, he had presented the cheque in dispute thrice and at that time, on one occasion it was returned with the reason "Image not cleared". In such circumstance, when the Complainant has specifically deposed in his further cross-examination that, he has received the cheque return memo as "Funds Insufficient" and not as "Image not clear", the onus of proving the fact that, the cheque in dispute for the first time came to be returned as "Image not cleared" is shifted in favour of the Accused.
40. It could be seen that, except suggesting to the Complainant that, by having colluded with the bank officials, he has obtained the two cheque return memos as "Funds Insufficient" as per Ex.P.2 and P.3 respectively, he has concealed the fact of the dishonour of the cheque in question as "Image not clear", there is absolutely no proof regarding the same led by the Accused. In such circumstance, when the Accused has 18 C.C.No.27034/2014 J specifically asserted a particular fact, the onus of proving the same would be upon him. However, for the reasons best known to him, the Accused has not taken any interest in order to substantiate the same.
41. Moreover, it is interesting to note that, though the Accused has claimed in his cross-examination that, there was enemity between the Complainant and him, when the former used to visit his house to see his father and the reason assigned by him for the same is that, the Complainant had sought for a loan of Rs.10 Lakhs from his father for the purpose of opening the shop prior to his marriage and the same was refused by his father, there was enmity between the Complainant and him.
42. It is further deposed by the Accused that, the Complainant had sought for a loan of Rs.10 Lakhs from his father during the end of December 2011. However, it is interesting to note that, none of these facts is pleaded by the Accused in his reply notice, which would also clearly raise a serious doubt in his defence version.
43. Therefore, it is clear that, the Accused has come up with unsuccessful defence versions and in fact, during his cross-examination, though he has claimed that, he does not remember, as to, if he has used his 19 C.C.No.27034/2014 J cheque leafs after 2011 and before 2014 and that he had no impediment to produce his bank statement to show that, he had not used his cheque leafs after 2011 and before 2014, till date, he has not produced any iota of documentary evidence in order to substantiate this claim. As a result, it clearly goes to show that, the Accused has made an unsuccessful attempt to disprove the case of the Complainant by raising an improbable defence.
44. However, throughout the course of evidence, it is evident that, there is absolutely no dispute regarding the financial capacity of the Complainant. As a result, I have no hesitation to hold that, the Complainant has proved his case beyond reasonable doubt and on the contrary, the Accused has failed to rebut the presumptions available in favour of the Complainant u/Sec.118 and 139 of the N.I.Act. Accordingly, I proceed to pass the following:-
ORDER By exercising the power-conferred u/s 255(2) of Cr.P.C. the Accused is hereby convicted of the offence punishable u/s 138 of the Negotiable Instruments Act.20 C.C.No.27034/2014 J
He is sentenced to pay a fine of Rs.2,00,000/= (Rupees Two Lakhs Only).
If the fine amount is so realized, Rs.1,90,000/= (Rupees One Lakh and Ninety Thousand Only) is ordered to be paid to the Complainant as Compensation and the balance of Rs.10,000/= (Rupees Ten Thousand only) is ordered to be adjusted towards cost to the State Exchequer.
In default of payment of such compensation, he shall undergo Simple Imprisonment for 6 (Six) Months.
His bail bond stands discharged.
Issue free copy of the Judgment to the Accused forthwith.
(Dictated to the Stenographer, transcript thereof is computerized by her, print out taken by her, verified, corrected and then pronounced by me in the open Court on this the 29th day of December, 2018).
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri. Ramesh.N;
2. List of documents exhibited on behalf of the
Complainant:-
21 C.C.No.27034/2014 J
Ex.P-1 : Original Cheque;
Ex.P-1(a) : Signature of the Accused;
Ex.P-2 & 3 : Bank Memos;
Ex.P-4 : Original complaint;
Ex.P-5 : Office copy of the Legal notice;
Ex.P-6 : Complaint Settled Reply;
Ex.P-7 : Complaint to Postal Authority;
Ex.P-8 : Photocopy of the Postal Receipt;
Ex.P-9 : Photocopy of the Postal Acknowledgement;
Ex.P-10 : Reply Notice.
3. List of witness/s examined on behalf of the Accused:-
D.W.1 : Sri.Manjunath.L;
4. List of documents exhibited on behalf of the Accused:-
- Nil -
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.22 C.C.No.27034/2014 J
29.12.2018 Judgment pronounced in the open court vide separate order.
ORDER By exercising the power-
conferred u/s 255(2) of Cr.P.C. the Accused is hereby convicted of the offence punishable u/s 138 of the Negotiable Instruments Act.
He is sentenced to pay a fine of Rs.2,00,000/= (Rupees Two Lakhs Only).
If the fine amount is so realized, Rs.1,90,000/= (Rupees One Lakh and Ninety Thousand Only) is ordered to be paid to the Complainant as Compensation and the balance of Rs.10,000/= (Rupees Ten Thousand only) is ordered to be adjusted towards cost to the State Exchequer.
In default of payment of such compensation, he shall undergo Simple Imprisonment for 6 (Six) Months.
His bail bond stands
discharged.
Issue free copy of the
Judgment to the Accused forthwith
XVI ACMM, B'luru.