Bangalore District Court
Sri.Byresh.N vs Sri.R.Prakash on 18 January, 2020
THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY.
Dated this the 18th day of January, 2020.
PRESENT: SRI MADHVESH DABER, B.COM.,L.L.B(SPL).,
XIX ADDL.C.M.M., BENGALURU.
Case No: C.C.No.28834/2016
Complainant: SRI.BYRESH.N
S/o. Nanjappa
Aged about 32 years,
R/at Shanuboganahalli Village,
Bannerghatta Post,
Jigani Hobli, Anekal Taluk,
Bengaluru-560083.
(By Shivappa.M., Advocate.)
V/S
Accused: Sri.R.PRAKASH
S/o Rangappa,
Aged about 32 years,
R/at Gollarahatti Village,
Agali Hobli,
Madaka Shira Taluk, (Mandalam),
Anathapura District-515311. A.P.
Offence complained of: U/s.138 of N.I.Act.
Plea of accused: Pleaded not guilty.
Opinion of the Judge: Accused found guilty.
Date of order: 18th January, 2020.
2 C.C.No.28834/2016
JUDGEMENT
The complainant has filed this complaint U/s.200 of Cr.P.C. against the accused for the offence punishable U/s.138 of N.I. Act.
2. The brief facts of the complaint are that; The complainant contends that, the complainant and accused are good friends for the last five years. Hence, the accused approached the complainant for financial assistance of Rs.5,00,000/- as hand loan for the purpose of discharge of legal debt and for domestic purposes. Accordingly complainant paid a sum of Rs.5,00,000/- to the accused in second week of January 2016 and accused acknowledged receipt of the same and agreed to repay the said amount within Ten (10) months. Later on towards discharge of the above said liability accused issued cheque No.003023 dated 10.11.2016 for a sum of Rs.5,00,000/- (Rupees Five Lakhs Only) drawn on AXIS Bank Ltd., Hoskote Bangalore Branch, Bengaluru. But on presentation the said cheque came to be dishonored for the reason "Drawers Signature Differs/Funds Insufficient". Thereafter, the complainant got issued a Legal Notice on 3 C.C.No.28834/2016 22.11.2016 which was duly served upon the accused. Despite service of the notice the accused has failed to repay the said amount and committed offence under Section 138 of Negotiable Instruments Act. Hence this complaint.
3. Soon after filing of the complaint, cognizance of the offence was taken. Matter was registered as P.C. After recording of sworn statement of the complainant, the Private Complaint lodged by the complainant was registered as a Criminal Case. Summons was issued as against the accused. The Accused appeared through his Counsel and he was enlarged on bail. Substance of accusation was read over to the Accused. The Accused pleaded not guilty and claimed to be tried.
4. The complainant has been examined as PW-1 and documents Ex.P-1 to Ex.P-16 were got exhibited and closed his side. The Director of Truth Lab is examined as PW-2 and document Ex.P.17 was got exhibited. The Manager of AXIS Bank Ltd., Hoskote Bangalore Branch, Bengaluru is examined as CW-1 and documents Ex.C.1 to Ex.C.5 were got exhibited.
5. After closure of the complainant side evidence, accused Statement u/Sec.313 of Cr.P.C. was recorded. The 4 C.C.No.28834/2016 accused denied the incriminating evidence in toto. The accused has not led any defence evidence from his side.
6. Heard Arguments.
7. Now, the points that arise for my consideration are as under:
i) Whether the Complainant proves that the accused in discharge of legally enforceable debt, issued a cheque for Rs.5,00,000/-(Rupees Two Lakhs Only) which on presentation came to be dishonoured and he has failed to honour the notice and not paid the amount and thereby, committed offence u/Sec.138 of N.I. Act ?
ii) What order ?
8. My findings to the above points for consideration are as under:
Point No.1: In the Affirmative. Point No.2: As per final order for the following:
:: R E A S O N S ::
9. Point No.1:- In order to prove his case, the Complainant viz., BYRESH.N entered into the witness-box and filed an affidavit in lieu of examination-in-chief and reiterated the complaint averments and got examined himself as PW-1 and documents Ex.P-1 to Ex.P-16 were got exhibited and closed 5 C.C.No.28834/2016 his side. The Director of Truth Lab is examined as PW-2 and document Ex.P.17 was got exhibited. The Manager of AXIS Bank Ltd., Hoskote Bangalore Branch, Bengaluru is examined as CW-1 and documents Ex.C.1 to Ex.C.5 were got exhibited. The accused has not led any defence evidence from his side.
10. During arguments the learned Counsel for Complainant argued that, accused borrowed a sum of Rs.5,00,000/- from the complainant and for repayment of the said amount issued the cheque which on presentation came to be dishonored for the reason "Drawers Signature Differs/Funds Insufficient". The learned counsel for complainant contended that all the ingredients are complied and thereafter complaint is filed. In the reply notice accused has taken a false contention that cheque has been stolen. But in this regard no cogent and convincing evidence is led by the accused. In the cross examination of complainant nothing has been elicited to disbelieve the case of the complainant. On the other hand the financial capacity of complainant is proved. Further the accused has not led defence evidence and not proved his case. He has not taken legal action with regard to the theft of cheque. He has not given stop payment direction. Moreover the expert 6 C.C.No.28834/2016 opinion and document Ex.P.17 and evidence of Director of truth lab are supportive to the case of the complainant.
11. The friendship between complainant and accused are admitted. But no document is produced by accused to show that complainant and accused are residing in a one house. Moreover complainant has stated regarding previous transaction which is not fit to be discarded. Even in the evidence of PW-2 also no defect has been elicited. The oral evidence on record discloses that the signature of the accused is proved and the accused has failed to account for the handing over the cheque to the complainant. Similarly on considering the expert opinion the complainant has proved his case to the satisfaction of the court. Moreover in Ex.P17 due to slip of word the reason for opinion is wrongly typed. So it cannot be said that his opinion is wrong. Hence, the opinion of expert and report of truth lab is fit to be accepted. Hence, the learned counsel for complainant prayed to convict the accused.
12. In support of his arguments, the learned Counsel for the complainant relied upon the following rulings;-
1. (2010) 11 Supreme Court Cases 441 Rangappa v/s Sri.Mohan.
7 C.C.No.28834/2016
2. AIR 2018 Supreme Court 3173 Kishan Rao v/s Shankargouda.
3. AIR 2018 Supreme Court 3601 T.P.Murugan v/s Bojan.
4. 2017 (2) AKR 465 N.Manjegwda v/s N.V.Prakash.
5. 2017 (2) AKR 527 Arjun v/s E.Shekar.
13. Per contra the leaned counsel for accused vehemently argued that in the legal notice Ex.P.3 the reason for obtaining money is not stated. The above defect is fatal to the case of the complainant. It is doubtful that the complainant has lent a huge amount without knowing the background of the accused. Moreover the complainant could not say on which date he lent money. The key witness of the present case viz., Manjunath is not examined and no document is obtained from the accused while lending money. So the above defect is fatal to the case of the complainant. There are so many infirmities in the evidence of complainant which rendered his version doubtful. If the evidence of complainant is accepted that he had received money from others and paid it to others, then it appears that there is no consideration passed between complainant and accused. So complaint itself is not 8 C.C.No.28834/2016 maintainable. It is not his case is that he received money from his wife and paid it to the accused. Moreover it creates doubt in the case of the complainant as to why the amount was not paid on interest. That apart the Bank Manager PW-2 has deposed that he has not at all issued the endorsement. So these circumstances go to show that the version of complainant is not acceptable. There are so many infirmities in the evidence of the complainant and PW-2 which render their evidence doubtful. So the learned counsel for accused prayed to acquit the accused.
14. In support of his arguments, the learned Counsel for the accused relied upon the following rulings;
1. AIR 2019 Supreme Court of India 1983 Basalingapa v.s Mudibasappa.
2. AIR 2008 SCW-738 Krishna Janardhan Bhat v/s Dattatraya G.Hegde.
3. 2003(1) DCR 146 Supreme court of India C.Antony v/s K.G.Raghavan Nair.
4. AIR 2011 (NOC) 75 (KAR) Amzad Pasha v/s H.N.Lakshmana.
5. 2011 CRI.L.J.552 Amzad Pasha v/s H.N.Lakshmana.
6. AIR 1977 SC 1091 Magan Bihari Lal v/s The State of Punjab.
9 C.C.No.28834/2016
7. AIR 1978 Calcutta 55 Pranenda Mohan Das v/s Central Bank of India.
8. Commentary on Section 45 of Indian Evidence Act.
15. I have carefully gone through the principles of above rulings relied upon by the learned counsel for complainant and accused. Keeping in mind the principles of above rulings, I have examined the evidence on record.
16. It is trite principles of law that the presumption u/Sec.139 of N.I. Act is initially in favour of the Complainant that the cheque was issued for discharge of a legally recoverable debt or liability. However, the said presumption is rebuttable presumption. The Accused has to rebut the said presumption by taking a probable defence. The presumption can be rebutted even by eliciting facts from the cross-examination of PW1 or by leading defence evidence. For that Accused need not enter into the witness-box. Even the question of legally recoverable debt or liability can also be contested. Whether the presumption is rebutted or not? depends on facts and circumstances of each case. This principle is laid down by Hon'ble Supreme Court in AIR 2010 SC 1898 Rangappa v/s. V. Mohan. In the light of 10 C.C.No.28834/2016 above principles of law now I have to see whether the presumption is rebutted or not? and Complainant has proved his case or not?
17. The brief facts of the case of the complainant are that, the complainant and accused being good friends, the accused approached the complainant for financial assistance of Rs.5,00,000/- and obtained the same in the second week of January 2016 in cash. For repayment of the said amount the accused issued the cheque bearing No.003023 for Rs.5,00,000/- which on presentation came to be dishonored for the reason "Drawers Signature Differs/Funds Insufficient". Thereafter, the complainant complied all the legal formalities and then filed this complaint against the accused.
18. It is to be noticed that, the accused has taken a stand in the cross examination of PW-1 that since he and complainant were working in the same place, the complainant has misused the cheque of the accused, forged his signature and filed this false compliant against the accused. This is the stand taken by the accused in the cross examination of the complainant. However in the reply notice as per Ex.P.7 the 11 C.C.No.28834/2016 accused has taken a contention that the complainant and accused being known to each other for last six years, they were working in the same company and also residing in same residence. It is contended that taking undue advantage of the same, the complainant has stolen one cheque belonged to the accused and presented the same to his banker, got it dishonored and filed this false complainant against the accused. The accused has specifically denied his signature over the cheque. It is contended that he has not at all put his signature over the cheque Ex.P.1.
19. However in order to substantiate his contention the accused has not entered into witness box. It is true that he is not under obligation to enter into witness box and give evidence, in order to rebut the presumption under Section 139 of Negotiable Instruments Act. However he can elicit the facts favorable to him in the cross examination of PW-1 and take advantage of the same and thereby rebut presumption under Section 139 of Negotiable Instruments Act. However, it is to be noticed that the accused has to take a probable defence and rebut the presumption under Section 139 of Negotiable 12 C.C.No.28834/2016 Instruments Act by eliciting facts in the cross examination of complainant or placing on record cogent and convincing material by leading his evidence. Here in this case admittedly the accused has not entered into witness box. Now the court has to see whether he is able to elicit anything in the cross examination of complainant to substantiate his contention that his cheque has been misused by the complainant.
20. On perusal of cross examination of complainant nowhere the complainant has given admission that since he and accused were working together, he has misused the cheque of the accused, forged his signature and filed this false complainant against the accused. It is to be noticed that in the reply notice accused has taken another contention that the complainant has stolen the cheque of the accused and filed this false compliant against the accused. However in this regard no suggestion was made to PW-1 in the cross examination. Admittedly the accused has not led any evidence with regard to misuse of the cheque by complainant by forging his signature. That apart the accused has not taken any legal action against the complainant for misuse of the cheque by him. It is to be 13 C.C.No.28834/2016 noticed that he has not filed any complaint in the jurisdictional Police station that the complainant has forged his signature and misused the same. Similarly, he has not issued notice to the banker to stop payment stating that the complainant has stolen his cheque. Usually, an ordinary prudent man would take legal action in the above circumstances. However the conduct of the accused is such that it is not inspiring confidence in his case. He has deliberately not entered into witness box to avoid facing extensive cross examination in this regard. So, I am of the opinion that looking to the entire cross examination of the PW-1 and looking to the fact that the accused has not entered into witness box, I am of the opinion that the version of the accused cannot be accepted. Thereby, the accused has failed to rebut the presumption under Section 139 of Negotiable Instruments Act.
21. It is to be noticed that the complainant has been cross examined at length. However, nothing has been elicited in the cross examination of PW-1 to be supportive to the case of the accused. The accused has failed to explain before the court how his cheque went into the possession of complainant. On 14 C.C.No.28834/2016 the other hand the complainant is drawing salary of Rs.40,000/- per month which cannot be disbelieved. Moreover on the previous occasion also there was a monetary transaction between complainant and accused for Rs.1,50,000/-, Rs.2,00,000 and Rs.5,00,000/-. The accused has not denied the same. Merely because the complainant has not taken cheques from the accused on the earlier occasion, it cannot be said that the version of complainant is unacceptable one. It is to be noticed that the complainant's case is that he paid the amount in January 2016. So old currency notes were prevailing. The complainant has stated that he paid amount in cash in old currency notes. Even he has stated that, the accused issued the cheque dated November 2016, in October 2016. There is nothing to disbelieve the evidence of complainant. Merely because he has not produced any document, itself is not a ground to discard the evidence of complainant, when the accused has failed to rebut the presumption under Section 139 of Negotiable Instruments Act.
22. The complainant has stated that, he paid Rs.5,00,000/- out of savings from his salary and rental income. 15 C.C.No.28834/2016 He has produced Ex.P11 increment letter to show that he gets Rs.39,000/- per month. It is true that he has not produced any document in regard to payment of Rs.5,00,000/- to the accused. However his evidence that he gets salary and also rental income, is not disputed by the accused. Moreover when accused has failed to rebut the presumption under Section 139 of Negotiable Instruments Act, in that event the question of complainant proving his source of income does not arise at all. In this regard, I would like to rely upon ruling reported in AIR 2019 SC 876 Rohit Bhai Jevanlal Patil v/s State of Gujarat.
23. Moreover it is contended by accused that on the previous occasion when Rs.5,00,000/- was paid by complainant to the accused, complainant had received a cheque from accused. But in the present transaction the complainant has not at all received any cheque from the accused. So it is argued that the version of complainant is unbelievable. However, I am of the opinion that for the above reason itself the case of the complainant cannot be disbelieved. It is to be noticed that except some minor contradictions the 16 C.C.No.28834/2016 version of the complainant is trustworthy and inspiring confidence in his case.
24. During the course of evidence the complainant has produced the Loan Agreement as per Ex.P9, Acknowledgment issued by the Police as per Ex.P10, Increment letter as per Ex.P11, Cash Payment vouchers as per Ex.P12 to Ex.P15 and Bank Pay-in-slip as per Ex.P16. It is to be noticed that the complainant himself has stated that Ex.P.9 to Ex.P16 have not been produced to prove the present transaction. The complainant has stated that, there are no documents to support the transaction of the present case. However he was produced Ex.P9, Ex.P12 to Ex.P.16 documents to prove the signature of the accused. The accused has admitted that in the Vouchers Ex.P12 to Ex.P16 the signature of the accused is appearing. So the accused has admitted his signature over the vouchers. The complainant has produced those documents to prove the signature of the accused. Admittedly in the cross examination of the complainant the accused has admitted his signature over the vouchers. It is admitted by PW-1 that he has produced Ex.P.9 to prove the previous transaction and Ex.P.9 is 17 C.C.No.28834/2016 not concerned to the present transaction. So the documents at Ex.P.9, Ex.P10, Ex.P12 to Ex.P.16 are only produced by the complainant to prove the previous transaction and to prove the signature of the accused. Under such circumstances I am of the opinion that these documents are not supportive to the transaction of the present case. However they are produced to prove the signature of accused.
25. It is to be noticed that Ex.P.10 is the Acknowledgment issued by Police which goes to show that the accused has received money from the complainant which were collected by him for others and in that regard a commotion has taken place in between complainant and accused. The Ex.P.10 also supports the case of the complainant that he lent money to the accused. He has clearly deposed that he collected money from his family members. In the circumstances of the case the infirmity if at all elicited from the cross examination of the complainant is not supportive to the case of the accused. Because the accused has failed to rebut the presumption under Section 139 of Negotiable Instruments Act. So minor infirmities 18 C.C.No.28834/2016 if any elicited from the cross examination of complainant are not supportive to the case of defence of the accused.
26. During trial on the application filed by the complainant to summon the document from Axis Bank, Hoskote Branch, Bengaluru, the Manager of the Hoskote Branch was directed to produce the documents of accused namely, Account opening Form, the application for change of signature by the accused, the letter issued by Confident Group of Company, the Pan card of the accused and the signature put by accused agreeing to the terms and conditions of the Bank. They were produced by the Manager Axis Bank Hoskote Branch viz., I.V.A Verma, who has been examined as CW-1. The documents referred above have been marked as Ex.C1 to Ex.C.5. Those documents were called for by the complainant with an intention to send them to the forensic lab for comparison and report. In the cross examination of the Bank Manager nothing has been elicited to disbelieve him. He has produced the documents as per direction issued by him.
27. Later on, on the basis of order on application filed under Section 45 of Indian Evidence Act, the disputed cheque 19 C.C.No.28834/2016 and admitted signatures of the accused were sent to the Truth Lab, Bengaluru for comparison and report. The Director of the Truth Lab conducted comparison and submitted his report to the court. Later on the Director of the truth lab has been summoned and he has been examined as PW-2. He has clearly deposed that he compared the disputed signature over the Ex.P1 with admitted signatures of the accused Ex.P9(a), Ex.P.9(b), Ex.P.12(a) to Ex.P.16 and Ex.C1(a) to Ex.C5(a). According to his evidence and report Ex.P17, the disputed and admitted signatures were made by one person. In this regard the Director of the truth lab viz., Shankarappa Mural has been examined as PW-2 and submitted his report and marked it as Ex.P.17. In the entire cross examination nothing has been elicited to disbelieve his version. He is an expert in comparing the handwriting and thumb impression and having specialized in that filed. So his evidence cannot be out rightly discarded. Except some minor contradictions nothing has been elicited to disbelieve his version. It is true that in the 2nd Para of 4th Page of his report, he has mentioned that there are various divergencies in the admitted and disputed signature but looking to his over all report, it appears that it is a typographical 20 C.C.No.28834/2016 mistake and it is wrongly typed as divergencies instead of similarities. So merely for that reason the report of the PW-2 cannot be discarded. Moreover it is admitted by him that there are several infirmities and divergencies appearing in the admitted and disputed signatures by observing from naked eyes. However since he has got expertise and got training in examining the disputed and admitted signature, and submitted his report by examining the disputed and admitted signatures scientifically, merely for the reason that there are certain differences in the signature, the entire report submitted by him cannot be discarded. In the whole cross examination of PW-2 nothing has been elicited to disbelieve his version. So his evidence is accepted.
28. It is true that the evidence of the expert his collaborative evidence, but not substantive evidence. However it is to be noticed that in this case the evidence of expert is supported by substantive evidence of PW-1. So the evidence of handwriting expert is supportive to the case of complainant. Hence, same is accepted.
21 C.C.No.28834/2016
29. So it is clear that the cheque Ex.P.1 bears the signature of accused. The complainant has contended that it was issued by the accused for discharge of liability of Rs.5,00,000/-. The over all evidence on record reveals that it is signed by accused and issued by accused only. The accused could not account for how his cheque went into the hands of complainant. Hence, I am of the opinion that looking to the entire evidence on record accused has failed to rebut the presumption under Section 139 of Negotiable Instruments Act and prove how his cheque went into the hands of complainant. Thereby, he has failed to shift the onus on the complainant. Hence, accused is liable for conviction. Hence, considering all these aspects I, answer point No.1 in the Affirmative.
30. Point No.2:- In view of my findings on the above point and the reasons stated therein, I proceed to pass the following:
ORDER Acting u/Sec.255 (2) of Cr.P.C., the accused is hereby convicted for the offence punishable u/Sec. 138 of N.I.Act.
The accused is sentenced to pay a fine of Rs.8,00,000/- (Rupees Eight Lakhs only), in default accused shall 22 C.C.No.28834/2016 undergo simple imprisonment for 3 (three) months.
Out of fine amount, a sum of Rs.7,90,000/-(Rupees Seven Lakhs and Ninety Thousand only) shall be paid to the complainant after appeal period is over. Remaining fine amount of Rs.10,000/- shall be forfeited to State.
The bail bonds and surety bonds of the accused stand cancelled.
Office to furnish free copy of the Judgment to the accused forthwith.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by him is verified and then pronounced by me in the Open Court on this the 18th day of January, 2020) (MADHVESH DABER) XIX ADDL.C.M.M., Bengaluru.
ANNEXURE:
Witnesses examined on behalf of the Complainant:
PW.1 SRI.BYRESH.N PW.2 SHNKARAPPA MURAL.
Witnesses examined on behalf of the Accused:-NIL Documents marked on behalf of the Complainant:
Ex.P.1 Cheque.
Ex.P.1(a) Signature of the Accused.
Ex.P.2 Bank Endorsement.
Ex.P.3 Legal notice.
Ex.P.3(a) to Ex.P.3(d) Postal Receipts.
Ex.P.4 Acknowledgment.
Ex.P.5 & Ex.P.6 RPAD Covers.
Ex.P.7 Reply Notice.
23 C.C.No.28834/2016
Ex.P.8 RPAD Cover.
Ex.P.9 Loan Agreement.
Ex.P.9(a) & Ex.P.9(b) Signatures of the Accused.
Ex.P.10 Acknowledgment issued by
Police Sub-inspector.
Ex.P.11 Increment Letter.
Ex.P.12 to Ex.P.15 Cash Payment Requisition Form.
Ex.P.16 Bank Pay-in Slip.
Documents marked on behalf of the Accused:-NIL-
COURT WITNESS-CW-1
CW.1 I.V.A.VARMA.
Documents marked on behalf of the CW-1
Ex.C.1 Accounting Opening Application Form.
Ex.C.2 Change of signature letter by the accused.
Ex.C.3 Letter issued by Confident Group.
Ex.C.4 Pan Card of Accused.
Ex.C.5 Bank Term and Conditions.
(MADHVESH DABER)
XIX ADDL.C.M.M., Bengaluru.
24 C.C.No.28834/2016
18.01.2020
Judgment
(Judgment pronounced in the open court vide separate order) ORDER Acting u/Sec.255 (2) of Cr.P.C., the accused is hereby convicted for the offence punishable u/Sec. 138 of N.I.Act.
The accused is sentenced to pay a fine of Rs.8,00,000/- (Rupees Eight Lakhs only), in default accused shall undergo simple imprisonment for 3 (three) months.25 C.C.No.28834/2016
Out of fine amount, a sum of Rs.7,90,000/-(Rupees Seven Lakhs and Ninety Thousand only) shall be paid to the complainant after appeal period is over. Remaining fine amount of Rs.10,000/- shall be forfeited to State.
The bail bonds and surety bonds of the accused stand cancelled.
Office to furnish free copy of the
Judgment to the accused forthwith.
(MADHVESH DABER)
XIX ADDL.C.M.M., Bengaluru.
26 C.C.No.28834/2016