Bangalore District Court
Sri. Bharath Kumar vs Sri. B.R. Arun Kumar on 19 March, 2018
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU
Dated this the 19th Day of March 2018
Present: Sri. Rajkumar .S.Amminbhavi., B.Com., LLB (Spl)
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No. 7370/2014
Complainant: Sri. Bharath Kumar
Aged about 33 Years
S/o. S. Madhusudhan
R/at. No.88, 2nd Main, Dattaraya
Nagar, Hosakere Halli
Bengaluru-560 085.
(By Ranganath Prasad .B.S. Adv)
- Vs -
Accused: Sri. B.R. Arun Kumar
Proprietor
Akashya International
Vijayanagar
Bengaluru-560 040.
(By. Goreppa .S. Adv)
Offence complained of: U/s. 138 of the Negotiable
Instruments Act
Plea of the accused: Pleaded not guilty
Final Order: Accused is convicted
Date of order: 19.03.2018
******
JUDGMENT
2 CC No.7370/2014 This is a complaint filed by the complainant under Sec.200 of Cr.PC against the accused for the offence punishable under Sec.138 of the Negotiable Instruments Act.
2. The facts of the complaint in brief are that, both the complainant and the accused are known to each. On account of well acquainted with the complainant, the accused has approached the complainant and requested hand loan an amount of Rs.3,00,000/- during the first week of February 2013 for his urgent business purpose and accordingly, considering the request of the accused and on account of good faith and believe the words of the accused, the complainant has advanced an amount of Rs.3,00,000/- to the accused by way of cash and on that day, the accused has agreed that, he would repay the same within a period of three months. After lapse of stipulated period on repeated request and demand made by the complainant to the accused for repayment of the borrowed loan amount and at that time, the accused for discharge the loan in question had issued cheque bearing No.346700, dated: 20.06.2013 drawn on State Bank of Mysore, Prashantha Nagar Branch, Bengaluru for a sum of Rs.3,00,000/- in favour of the complainant and assured that, the said cheque would be honoured on its presentation and as per the assurance made by the accused, the complainant has presented the said cheque for encashment through his banker i.e., Karnataka Bank, Bengaluru, but it was dishonoured with an endorsement as "Funds Insufficient"
and thereafter, the complainant has informed the said fact to 3 CC No.7370/2014 the accused, but the accused did not responded the same. Hence, the complainant had got issued the legal notice on 01.07.2013 through his counsel by RPAD calling upon him to repay the said borrowed loan amount within 15 days from the date of receipt of this legal notice and it was returned with an endorsement as "intimation delivered" it amounts to deemed service of the legal notice. Despite of service of the legal notice, the accused neither repaid the borrowed loan amount nor reply the legal notice. Hence, the complainant had constrained to file a complaint against the accused for the offence punishable under Section 138 of N.I. Act., which is well within time and based on the records available on record cognizance has been taken and registered it PCR.
3. After recording of the sworn statement of the complainant and complaint is registered in criminal case register and after issuance of summons to the accused, pursuant to the summons the accused had appeared before this Court through his counsel and enlarged on bail. The substance of accusation was recorded and read over to the accused in his vernacular. He pleaded not guilty. Hence, claims for trail.
4. In order to prove the case of the complainant, the complainant got himself examined as PW.1 & got 5 documents marked as Ex.P.1 to Ex.P.5 and PW-1 has been fully cross-examined and the statement of accused under Section 313 of Cr.P.C., was recorded and he denied the 4 CC No.7370/2014 incriminating statement against him and the accused himself examined as DW-1 and got marked four documents as per the Ex.D1 to Ex.D4 and during the course of his cross- examination, the counsel for the complainant has confronted the cash receipt which was executed by the accused in favour of the complainant and therein signature of the accused and same has been admitted by the accused and same are marked as Ex.P6 and therein signature of the accused which is marked as Ex.P6(a) and after completion of the cross of DW-1, the matter was posted for posted for arguments.
5. Heard arguments.
6. The following points arise for my determination;
1. Whether the complainant proves that the accused had issued cheque bearing No.346700, dated:20.06.2013 for Rs.3,00,000/- drawn on State Bank of Mysore, Prashanathnagar Branch, Bengaluru for discharge of the amount and when the said cheque presented for encashment, it was dishonoured with an endorsement "Funds Insufficient" and after issuance of the legal notice he fails to repay the said amount and Thereby, the accused have committed offence punishable U/s. 138 N.I.Act?
2. What order ?
7. My answer to the above points are;
Point No.1 : In the Affirmative
5 CC No.7370/2014
Point No.2 : As per final order for the
following;
REASONS
8. POINT NO.1: On perusal of the evidence of PW-1 he has reiterated as per the averments made in the complaint and he has got marked 5 documents namely, cheque which is marked as Ex.P1, the signature of the accused therein which is marked as Ex.P1(a), bank endorsement which is marked as Ex.P2, the office copy of the legal notice which is marked as Ex.P3, postal receipts which is marked as Ex.P4, returned postal cover with an endorsement intimation delivered which is marked as Ex.P5 and Ex.P5 opened in the Open Court and therein contain the original legal notice which is marked as Ex.P5(a).
9. During the course of cross of PW-1, he has deposed that, he know the accused for the last 7 years, when himself and his mother were occupied the house property which was pertain to the accused on lease basis. He deposed that, the accused was doing cable operator as well as sale of commodity business, when the accused was issued legal notice and at that time, he was doing the said business. It is true that, the accused was issued legal notice by way of RPAD on 03.05.2013 and the said copy of the legal notice which is marked as Ex.D1. It is true that, as per the address shown in Ex.P3 it is mentioned that, the accused was issued Ex.P1 on 20.06.2012 and same address is mentioned in his 6 CC No.7370/2014 examination-in-chief. He denied the suggestion that, the legal notice was not duly served upon the accused. He deposed that, he was advanced the loan in question by way of cash as he was doing travel business and out of earning amount, he was advanced the loan in question and at that time he was not income tax assessee. He denied the suggestion that, the accused has paid an amount of Rs.1,44,000/- on 09.02.2013 and on 23.03.2013 an amount of Rs.50,000/- in his house and prior to that on 08.03.2013 the accused has paid an amount of Rs.1,44,000/- at Raghavendra Temple, near NR Colony, Bengaluru. He denied the suggestion that, he was not having sufficient source of income for the advancement the loan in question to the accused by way of cash. He denied the suggestion that, the accused has issued Ex.P1 for the security and he himself filled the contents of Ex.P1 and filed false complaint against the accused. He deposed that, he was filed another complaint against the accused for a sum of Rs.3,36,000/-, but he do not know case number of that case, totally he was advanced loan an amount of Rs.7,50,000/-. It is true that, he was advanced the loan in question by way of cash and thereby, he was not produced his statement of account. It is true that, he was also filed civil suit against the accused, but he do not know what was stage of the civil suit. It is true that, he has not gave reply notice to the legal notice issued by the accused as per Ex.D1. He denied other suggestion.
7 CC No.7370/201410. During the course of defence evidence, the accused himself examined as DW-1 by way of filing an affidavit, wherein, he has specifically stated that, prior to filing of the present complaint, the complainant was not issued legal notice as per the provision under Section 138(B) of the N.I.Act., since the address mentioned in the legal notice is not correct his residential address as well as address of his business concern and thereby, the complaint filed by the complainant is not at all maintainable. He deposed that, he know the accused during the month of August 2012, since the complainant and his mother have approached him with respect to search of house for accommodation on account of lease basis and accordingly, he has executed lease agreement on 19.08.2010 in favour of the mother of the complainant for a period of three years and the present complainant being witness to the said lease agreement and subsequently, on account of financial crises, they are not in position to continue the occupation of the said house property and accordingly, requested him to premature for closer of the lease agreement and accordingly, himself and mother of the complainant have entered into premature closer of the lease agreement on 28.07.2011 and on that day, the accused has paid an amount of Rs.2,00,000/- as part of the payment towards refund of the lease amount and he was agreed to repay the balance amount on or before 31.10.2011 and subsequently, he was paid remaining balance an amount of Rs.5,14,000/- to the mother of the complainant by way of cash on 03.11.2011. Further, he has deposed that, the 8 CC No.7370/2014 complainant was approached him on 26.04.2012 with an amount of Rs.3,00,000/- by way of cash and wanted a monthly revenue of his livelihood as he was in deep financial crisis and he had told the complainant, he would get the share of profit from June 2012 to March 2013 and would get back his investment end of March 2013 and at that time, he was issued two cheque i.e., (1) Cheque bearing No.620926, dated: 08.03.2013, (2) Cheque bearing No.620927, dated:
28.03.2013 to the complainant and the complainant has collected total profit an amount of Rs.3,39,000/- by way of cash on various dates from 05.06.2012 to 25.03.2013 at his office situated Vijayanagar, Bengaluru and also at his residence and at that time, the complainant has returned the cheque bearing No.620926, dated: 08.03.2013 for a sum of Rs.1,44,000/- by collecting the same by way of cash.
Further, he was submitted that, due to his business constrains, he was not able to make payment to the complainant for the other cheque bearing No.620927 for which a legal notice was sent by his advocate on 03.05.2013 which was received by the complainant on 07.05.2013. He deposed that, the complainant has misused the cheque bearing No.346699 with a malafide intention, he was filed PCR before the I ACMM Court at Bengaluru and which has been dismissed. He has produced the lease agreement which was executed by him in favour of the mother of the complainant which is marked as Ex.D2 and therein contain his signature and signature of the complainant which are marked as Ex.D2(a) and Ex.D2(b) respectively and therein 9 CC No.7370/2014 and further, receipt executed by the mother of the complainant to the accused with respect to receipt an amount of Rs.5,14,000/- and therein contain signature of the mother of the complainant which is marked as Ex.D2(c), the certified copy of the order sheet in PRC No.2450/2014 which was filed by the complainant against the accused which is marked as Ex.D3, the certified copy of the complaint in PCR No.2450/2014 which is marked as Ex.D4. As per the Ex.P3 said PCR on the file of 24th ACMM Court has dismissed for non-prosecution as per the order dated: 24.06.2016.
11. During the course of cross of DW-1, he has deposed that, apart from the present complaint, other persons have filed cheque bounce cases against him. It is true that, he is proprietor of Akshaya International concern and he was and is working in the said concern since from 2011 to March 2016. He denied the suggestion that, he has given cheques at Girinagar Police Station. It is true that, the complainant was filed complaint against him and his friends before the 24th ACMM Court, Bengaluru bearing C.C.No.390/2015. It is true that, with respect to the sale transaction, he was filed criminal petition before the Hon'ble High Court and which came to be numbered as Criminal Petition No.3681/2013 and in which the Hon'ble High Court has specifically ordered on 28.06.2013 that, to pay an amount of Rs.3,36,000/- within a period of three days from the date of order passed by the Hon'ble High Court in Criminal Petition No.3681/2013, but he has not complied the said order passed by the Hon'ble 10 CC No.7370/2014 High Court till today. It is true that, the complainant was filed complaint against him and his friend by name Shrinidhi before the Girinagar Police Station bearing C.C.No.163/2013 for the offence punishable under Section 323, 324 and 506(B) of the IPC. He denied the suggestion that, since the complainant was filed complaint against him before the Girinagara Police Station, Bengaluru and for that, he has vacated the complainant and his mother from the house property, but he was volunteers that, before filing the complaint, the complainant and his mother were vacated the house property. It is true that, on 26.04.2012 when he was proprietor of the Akashya International, Vijayanagar, Bengaluru, he was borrowed the loan amount of Rs.3,00,000/- by way of cash and for that, he was executed cash receipt which is marked as Ex.P6 and his signature which is marked as Ex.P6(a). It is true that, Ex.P1 cheque belonging to his own bank account cheque and signature found on the Ex.P1(a) is his own signature. He denied other suggestion.
12. On perusal of the averments made in the complaint and evidence of the complainant along with coupled with the documents produced by the complainant. There is no dispute that, both the complainant and accused are very well known to each other. There is no dispute that, prior to filing of the present complaint, the complainant has complied all the necessary ingredients under Section 138 of N.I.Act., and receipt of the legal notice, the accused has failed to gave reply 11 CC No.7370/2014 notice. There is no dispute that, Ex.P1 cheque is belonging to his own bank account cheque and the signature found on the Ex.P1(a) is his own signature.
13. There is no dispute that, as per Ex.D2 there was lease agreement took place between the complainant and accused for a period of 3 years. It is specific case of the complainant is that, the accused has borrowed the loan amount of Rs.3,00,000/- for the purpose of his business and for repayment of the borrowed loan amount, the accused has executed receipt as per the Ex.P6 and subsequently, for repayment of the borrowed loan amount, the accused has issued Ex.P1 and Ex.P2 to the complainant.
14. It is specific case defence taken by the accused is that, the legal notice was not duly served upon for which the complaint filed by the complainant is not maintainable. But, on perusal of the address mentioned in the returned postal cover which is marked as Ex.P5 and the address mentioned in the cash receipt which was executed by the accused in favour of the complainant which is marked as Ex.P6 are one and the same and the Ex.P5 was returned with an endorsement as "Intimation Delivered" it amount to deemed service of the legal notice.
15. If really, the accused was not at all borrowed the loan in question from the complainant and he has not at all issued Ex.P1 to the complainant for discharge the loan in question, he ought to have challenged the cognizance taken by this 12 CC No.7370/2014 Court, he ought to have issued reply notice, he ought to have lodged either criminal complaint or private complaint against the complainant. Therefore, non-performing of the aforesaid legal proceedings that itself, it is very much fatal to the alleged defence set-up by the accused during the course of cross of PW-1.
16. It can be presumed that, the accused has issued the Ex.P1 to the complainant knowing fully well without having sufficient funds in his bank account with an intention to defeat the claim of the complainant. It can be presumed that, no any ordinary prudent man will issue signed blank cheque to any other persons without having monetary transaction between themselves. On perusal of the Ex.P1 there is no any ambiguity. The complainant has proved his case by adducing cogent and corroborative evidence as per provision under Section 138 of N.I.Act., on other hand, the accused has failed to rebut his defence by adducing cogent and corroborative evidence as per the provision of Under Section 139 of N.I.Act., Hence, the probability of the preponderance is higher on the side of the complainant, rather than the accused.
17. Ordinarily offence under Section 138 of N.I.Act "mensrea" is not essential, under Section 138 of N.I.Act , is bring into operation rule of strict liability, whereas, "mensrea" is essential ingredients in criminal offences. Therefore, The complainant has proved his case against the accused, since offence under Section 138 of N.I.Act element of Mensrea has 13 CC No.7370/2014 been excluded in general public interest to curb the instances of dishonouring of cheque and to lend the credibility to the commercial transaction. Therefore, in this case also the accused knowing fully he was borrowed the loan in question from the complainant and for discharge the loan in question he has issued the Ex.P1 to the complainant. Since the present complaint is summary trial and quasi-criminal in nature, it is like recovery proceedings and punishment is fine or in default of it simple imprisonment. In this context I am relying the citation reported in AIR 2009 NOC 404 (Kerala) in Babu V/s. K.J. Joseph. It is argued that, it is evident from Section 356(6) of Cr.P.C., that, in case of judgment is one of acquittal or fine only. It is not necessary for personal presence of the accused to receive the copy of the judgment. Hence, in this case also in the absence of the accused, the Court will pass the judgment.
18. Hence, in the light of the above observation, the complainant has successfully proved that, the accused has committed offence punishable under Section 138 of N.I. Act with these reasons, I am the opinion that, the complainant successfully established before the Court, the accused has issued Ex.P1 to the complainant for the legally recoverably debt. Therefore, I answer the point No.1 in the affirmative.
19. Point No.2 :- In view of my findings on Point No.1 in the affirmative, I proceed to pas the following...
14 CC No.7370/2014ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of
Rs.3,05,000/-. In default of payment of said
fine amount, the accused shall undergo simple imprisonment for six months.
Further, ordered that, out of the said fine amount of Rs.3,00,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of Rs.5,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands cancelled.
Free copy issued to the accused.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified, corrected and then pronounced by me in the open Court on this the 19th day of March 2018).
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
15 CC No.7370/2014ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 Bharath Kumar List of documents exhibited 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 Office copy of the legal Notice
Ex.P.4 Postal receipt
Ex.P.5 Returned postal cover
Ex.P.5(a) Ex.P5 opened in the Open Court and
therein contain legal notice
Ex.P.6 Cash receipt
Ex.P.6(a) Signature of the accused
List of witnesses examined on behalf of the accused :
DW-1 B.R. Arun Kumar List of documents exhibited on behalf of the accused :
Ex.D1 The copy of the legal notice Ex.D2 Lease Agreement
Ex.D2(a) & (b) Signature of the accused and mother of the complainant Ex.D3 The certified copy of the order sheet in PCR No.2450/2014 Ex.D4 The certified copy of complaint in PCR No.2450/2014 XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
16 CC No.7370/201419.03.2018.
Complainant : RPBS Accused : GKS Judgment.
(Vide separate judgment pronounced in the open Court) ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of
Rs.3,05,000/-. In default of payment of said
fine amount, the accused shall undergo simple imprisonment for six months.
17 CC No.7370/2014Further, ordered that, out of the said fine amount of Rs.3,00,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of Rs.5,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands cancelled.
Free copy issued to the accused.
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
18 CC No.7370/2014Heard Inference 19 CC No.7370/2014