Bangalore District Court
Sri.Vinay Gowda B.R vs Muttur Harish on 24 September, 2021
1 C.C. No.31456/2018 Judgt.
IN THE COURT OF THE XXI ACMM, BENGALURU
Dated: This the 24th day of September, 2021.
Present:
Smt. Reshma H.K., B.A.,LL.B.,
XXI ACMM, Bengaluru
C.C.No.31456/2018
Complainant : Sri.Vinay Gowda B.R.,
S/o late Ramegowda,
Aged about 36 years,
R/at: flat No.F 205, 2nd floor,
Purva Highland,
Mallasandra Road,
Bangalore - 560091.
(By Sri.K.C., adv.)
V/s
Accused : Muttur Harish,
S/o Subbaraya,
Aged about 35 years,
TAPCMS Koppa,
Chikkamangalore District 57.
(By Sri.H.S.A., Adv.)
JUDGMENT
This is the complaint filed by the complainant under section 200 of Cr.P.C. against the accused for the offence punishable under section 138 of Negotiable Instruments Act and to take cognizance of the offence to punish the accused in accordance with law.
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2. The factual matrix of the complaint is that the complainant and accused are known to each other and close friends. With this acquaintance, in the Month of April-2017 accused approached the complainant for hand loan of Rs.6,00,000/- for his legal necessity and benefit of his family. Accordingly, in the last week of April-2017 complainant paid the same to the accused and accused agreed to repay the said amount. Further the case of the complainant is that, accused was ignored and avoiding to repay the said amount by one or the other reasons. On repeated demands made by the complainant for repayment of loan, accused had issued a post dated cheque bearing No.335994 dated:26.06.2018 for an amount of Rs.6,00,000/- drawn on Karnataka Bank, Koppa Branch, Chikkamangalore District.
3. Further, the complainant has presented the above said cheque for encashment through his banker i.e., Indian Bank, Mahathma Gandhi Road, Bangalore, but to the shock and surprise of the complainant said cheque returned as 'Funds Insufficient' as per the bank memo dated:02.07.2018. Thereafter, the complainant approached the accused and inform about the dishonor of the said cheque. Further, the complainant issued 3 C.C. No.31456/2018 Judgt. Legal notice dated:21.07.2018 to the accused through R.P.A.D calling upon him to pay the amount covered under the cheque within the stipulated period and the same was served to the accused on 23.07.2018. On service of notice, the accused has not replied to the notice and failed to repay the said loan amount. Hence, the complainant filed the present complaint against the accused for the offence punishable under section 138 of Negotiable Instrument Act.
4. This court after perusing records, cognizance of the offence was taken and there on sworn statement of the complainant was also recorded. The criminal case has been registered against the accused for the offence punishable under section 138 of N.I. Act.
5. Upon service of summons, accused appeared through his counsel and enlarged on bail. Thereafter, the court has recorded the plea of the accused and the accused not pleaded guilty of the offence and claims to be tried. Hence, the case was posted for trial.
6. The complainant in order to prove his case, he examined himself as PW-1 and got marked 05 documents i.e., Ex.P-1 to 4 C.C. No.31456/2018 Judgt. Ex.P-05. Original Cheque marked as Ex.P.1, Signature of accused marked as Ex.P.1(a), Return Memo marked as Ex.P.2, Legal Notice marked as Ex.P.3, RPAD Postal receipt marked as Ex.P.4 and Postal Acknowledgment marked as Ex.P.5.
7. After completion of the evidence of complainant, the substance of the evidence has been read over and explained to the accused under section 313 of Cr.P.C. the accused denied the incriminating evidence available against him and choose to lead evidence and examined as DW.1 and got marked Ex.D.1 to Ex.D.09 i.e., Bank Acknowledgment receipts.
8. The counsel for the accused filed his written arguments and heard arguments of complainant counsel and perused the materials placed before the court. The following points would arise for consideration;
1. Whether the complainant proves that the accused issued cheque bearing No.335994 dated:26.06.2018 for the legally enforceable debt of Rs.6,00,000/-, in favour of complainant and it was presented within the validity period and same is returned unpaid on account of "Funds Insufficient"
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and thereby caused the dishonor of cheque and inspite of legal notice, the accused fail to make payment and thereby committed an offence punishable under section 138 of Negotiable Instrument Act?
2. What Order?
9. My findings on the above points are as under:-
Point No.1: In the "Affirmative"
Point No.2: As per the final orders for the following:
REASONS
10. Point No.1:
On over all perusal of the oral and documentary evidence adduced by both the parties, it reveals that there is no dispute with regard to issuance of cheque and the signature of the accused on the cheque. Further the complainant averred that accused has issued Ex.P.1 Cheque for the repayment of the said loan amount. On the other hand the version of the accused is that, he has issued the Ex.P1 cheque infavour of the complainant only for security purpose. Under the circumstances, it is worth to mention that once the cheque relates to the account of the accused and he accepts and admits the signature on the said 6 C.C. No.31456/2018 Judgt. cheque, then initial presumption as contemplated under section 139 of the N.I.Act has to be raised by the court infavour of the complainant.
11. Further, in a decision the Hon'ble Apex court, reported in AIR 2010 SC 1898 in a case of Rangappa V/s Mohan the Hon'ble Apex Court held that:-
"Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant. Therefore, in view of above said deposition, a presumption under section 139 of Negotiable Instruments Act can be drawn in favour of complainant that the said cheque was issued for a valid consideration. Now it is for the accused to rebut the said presumption. It is a settled law that though the onus on the accused to rebut the presumption is that of preponderance of probabilities but still the accused is required to adduce cogent evidence to rebut the presumption. Mere assertions and explanations of fact in the Court will not 7 C.C. No.31456/2018 Judgt. amount to rebuttal of presumption. In order to rebut the presumption under section 139 of N.I. Act, the accused by cogent evidence, has to prove the circumstance under which cheque was issued.
As per the above decision of the Hon'ble Apex Court, when accused admitted the issuance of cheque and its signature on the said cheque, then the burden shifted to the accused to prove that under which circumstances the cheque has been issued to the complainant. Hence, in the present case, complainant is successful in drawing initial presumption available in his favour.
12. Further, to rebut the presumption available to the complainant, the accused stepped into the witness box and got examined himself as DW.1 and got marked documents Ex.D.1 to Ex.D.9. Also the accused placed his defence by way of cross examining the PW.1. On over all perusal of the cross examination of PW.1 and the chief examination of DW.1, it reveals that the specific defence of the accused is that the accused has denied the borrowing of loan amount of Rs.6,00,000/- from the complainant. Further, the contention of the accused is that he has repaid the amount received from the complainant and he has 8 C.C. No.31456/2018 Judgt. issued Ex.P.1/ cheque while advancing the loan as a security purpose. In order to prove his case got marked Ex.D.1 to Ex.D.9, the receipts pertaining to deposit of amount.
13. As culled in the evidence of both the parties, it is the clear case of the accused that he has not received Rs.6,00,000/- from the complainant, but he has received Rs.50,000/- from the complainant and issued Ex.P.1/ Cheque as a security for the said Rs.50,000/-. Further, it is also the case of the accused is that, he has repaid the entire borrowed amount from the complainant, even though, complainant filed present complaint by misusing the Ex.P.1/Cheque, which was issued as a security for the said borrowed Rs.50,000/-.
14. More so, in the chief examination, accused/DW.1 deposed that he has deposited the borrowed amount from the complainant through bank and produced Ex.D.1 to Ex.D.9. Furthermore, while recording the statement of accused under section 313 of Cr.P.C., the accused himself stated that he has received hand loan of Rs.50,000/- from the complainant in the year 2017 and by that time he has issued Ex.P.1/cheque. 9 C.C. No.31456/2018 Judgt. However, on perusal of Ex.D.1 to Ex.D.9, it shows that all these documents were belongs to the year 2016 as mentioned in those documents. When the accused himself admitted the borrowing of amount in the year 2017, how can he repaid the said amount in the year 2016 ?. The statement given by the accused while recording 313 statement is quite contrary to the documents filed by the accused during his evidence at Ex.D.1 to Ex.D.9 and same is contradictory to each other. Hence, the cloud of suspicion arises on the trustworthiness of the testimony of the accused/DW.1. It is worth to note that, after examination of DW.1, the accused fails to appear before the court for subjecting himself for cross examination. Hence, complainant is deprived from his right of cross examination of DW.1 to demolish the evidence adduced by the accused.
15. Furthermore, during the course of evidence the complainant has produced Ex.P.1 to Ex.P.5. The recitals on Ex.P.2 clearly indicates that the Ex.P.1 cheque has presented to the bank well within time and the complainant has issued legal notice to the accused within the specific time and also it is crystal clear that the Ex.P.1 has returned without honoring for the reason stated above. Furthermore, it is not the case of the accused that 10 C.C. No.31456/2018 Judgt. he has maintained sufficient balance in his account on the date of presentation of Ex.P.1/Cheque for its clearance. It is worth to mention that when there is a presumption available in favour of the complainant regarding legally recoverable debt and the complainant successfully drawn that presumption, then the burden lies on the accused to prove his contention by adducing cogent evidence. Mere denial of the complainant case is not sufficient to prove the innocence of the accused. At this juncture, it is worth to relay on the decision passed by the Hon'ble Supreme Court of India in the case of T. Vasanthakumar -Vs- Vijayakumari reported in 2015(4) KCCR 2881 (SC), wherein which it is held that -
"Sections 138 and 139-Acquittal-if justified-Accused not disputing issuane of cheque and his signature on it, Plea that it was issued long back as security and that loan amount was repaid-Not supported by any evidence- Fact that date was printed, would not lend any evidence to case of accused-Acquittal not proper."
16. Further, the decision passed by the Hon'ble Supreme Court of India in the case of T.P. Murugan through Lrs. & Anr. -Vs- 11 C.C. No.31456/2018 Judgt. Bojan reported in 2018 SAR (Criminal) 923 wherein which it is held that -
" Secs. 139, 138- Dishonour of cheques- Legally enforceable debt or liability - Presumption- Under Section 139 of the N.I. Act, once a cheque has been signed and issued in favour of the holder, there is statutory presumption that it is issued in discharge of a legally enforceable debt or liability. This presumption is a rebuttable one, if the issuer of the cheque is able to discharge the burden that it was issued for some other purpose like security for a loan
- In the present case, the respondent has failed to produce any credible evidence to rebut the statutory presumption-The appellants have proved their case by overwhelming evidence to establish that the two cheques were issued towards the discharge of an existing liability and legally enforceable debt- the respondent having admitted that the cheques and Pronote were signed by him, the presumption under S. 139 would operate-
the respondent failed to rebut the presumption by adducing any cogent or credible evidence- hence, his defence is 12 C.C. No.31456/2018 Judgt. rejected - In view of the facts and circumstances, the impugned order passed in Criminal Revision Petition is hereby set aside, and the order of conviction and fine passed by the Trial Court is restored."
17. Further, in a decision reported in 2014 (3) DCR 558 in a case of "Sripad V/s Ramdas M Shet" the Hon'ble court held that;
" Mere a distorted version or mere taking up the plea or the defence that he is not liable to pay any amount or he discharge the amount are not sufficient to put back the burden on to the complainant to prove his case beyond reasonable doubt"
The ratio laid down in all these decisions are aptly applicable to the present case. In the case on hand, though the accused contended that there is no legally recoverable debt as he had issued Ext.P.1 /Cheque as a security, but failed to prove her case by adducing cogent and reliable evidence. A mere saying is not sufficient to rebut the statutory presumption available to the complainant. Moreover, the oral statement of the 13 C.C. No.31456/2018 Judgt. accused is quit contrary to the documentary evidence adduced by the accused as stated supra.
18. More so, the complainant succeeded in drawing above stated statutory presumption in his favour. Furthermore, on basis of the material evidence placed before the court, it clearly establishes that the accused had issued Ext.P.1 /Cheque for an amount of Rs.6,00,000/- each to the complainant and the said cheque presented on the said day it was returned without honoring the same on account of "Funds insufficient"
maintained in the account of the accused. Further on perusing the EX-P.4 the postal receipt and EX-P.3 the legal notice all these discloses that, inspite of the intimation of the dishonour of cheques accused did not comply the demand made in the legal notice. All these facts clearly establishes that, accused committed an offence under section 138 of N.I. Act. Therefore, I answered this point in the "Affirmative".
19. Point NO.2:- Having held the complainant has proved point No.1, the next aspect that arises for my consideration is regarding sentence to be imposed on the accused for having committed an offense punishable under section 138 of 14 C.C. No.31456/2018 Judgt. Negotiable Instrument Act. It could be seen from the materials that the complainant presented the cheque on 26.06.2018 and the same was returned unpaid. Further, accused fails to repay the said amount about nearly 03 years and made the complainant to suffer for want of funds in his hands. So I am of the opinion that it is required to direct the accused to pay the compensation to the complainant and in that event only it will meet the ends of justice. Hence, for the foregoing reasons and finding to point No.1, I proceed to pass the following:
ORDER By invoking the power conferred under section 255(2) of Cr.P.C., the accused is convicted and sentenced to pay a fine of Rs.7,08,000/- for the offence punishable U/S.138 of N.I. Act and in default to pay the fine amount the accused shall undergo simple Imprisonment for one year.
Further, Acting under section 357(1)
(b) of Cr.P.C. the entire fine amount of Rs.7,03,000/- on recovery shall be paid to the complainant as compensation.
Further, accused is directed to deposit the fine amount of Rs.5,000/- to 15 C.C. No.31456/2018 Judgt. the State out of fine amount.
Bail bond and surety bond of the accused shall stand cancelled.
Supply a free copy of this judgment to the accused.
Issue conviction warrant.
(Dictated to the Stenographer directly on computer, typed by her, corrected by me, signed then pronounced in the open court on this the 24 th day of September, 2021.) (SMT.RESHMA H.K.) XXI ACMM, Bengaluru ANNEXURE
1. List of witnesses examined on behalf of the complainant:
PW-1 : Vinay Gowda B.R
2. List of witnesses examined on behalf of the accused:
DW-1 : Harish
3. List of documents marked on behalf the
complainant:
Ex.P.1 : Original Cheque
Ex.P.1(a) : Signature of accused
Ex.P.2 : Return Memo
Ex.P.3 : Legal Notice
Ex.P.4 : RPAD Postal receipt
16 C.C. No.31456/2018 Judgt.
Ex.P.5 : Postal Acknowledgment
4. List of documents marked on behalf of the accused:
Ex.D.1 to 9 : Bank Acknowledgment receipt (SMT.RESHMA H.K.) XXI ACMM, Bengaluru