Bangalore District Court
Sri.Swaroop Ramalingam vs M/S Tricolour Investment And on 22 April, 2022
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C.C.No/14821/2018
IN THE COURT OF THE XIX ADDL. CHIEF
METROPOLITAN MAGISTRATE AT BENGALURU CITY.
Dated this the 22nd day of April 2022.
PRESENT: SRI.FAROOQ ZARE, B.A.(Law),LL.B.L.L.M.
XIX ADDL.C.M.M.,BENGALURU.
Case No: :- C.C.No.14821 of 2018
COMPLAINANT :- Sri.Swaroop Ramalingam
S/o Sri.Ramalingam.M,
Aged about 37 years,
Profession:Engineer,
R/o S-91, Kirloskar Colony,
3rd Cross, 3rd Stage, Kirloskar Colony
Basveshwaranagar,
Bengaluru-560079
Presently residing at No.1,
"Kalashree", Chikkalsandra Main
Road, Hanumagiri Layout, 5th Cross,
Padmanabhanagar,
Bengaluru-560061.
(By C.B.,Advocate)
-V/s -
ACCUSED :- M/s Tricolour Investment and
Properties Pvt.Ltd.,
PAN Number:AAFCT7469Q
Office at No.F-13/1, 1st Floor, 2nd
Cross, Shankar Mutt Road, fort
Mohalla, Mysore-570004, Karnataka
Represented by its managing
Director,
Pawan.C.M S/o Mogannaiah C.M.
Aadhaar Number:210443381705
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C.C.No/14821/2018
Additional Address:
1.Pawan.C.M
S/o Mogannaiah C.M.
Managing Director,
M/s Tricolour Investment and
Properties Pvt. Ltd.,
M.I.G. No.432/D, 7th Main,
2nd Cross, "H" block, near Rubby
Bakery, Dattagalli 2nd Stage,
Ramakrishnanagar, Mysore-570022.
2.Pawan.C.M
S/o Mogannaiah C.M.
TRI-Woods Plantation Farm Stay,
Indian coffee Estates,
Anughatta Village, Archalli Hobli,
Belur Taluk-573101,
Hassan District.
(By N.B,Advocate)
Offence complained of: :- U/sec.138 of N.I.Act.
Plea of accused: :- Pleaded not guilty.
Opinion of the Judge: :- Accused found guilty.
Date of order: :- 22nd April, 2022.
J UD GME N T
The complainant has filed this complaint U/sec.200
of Cr.P.C. against the accused for the offence punishable
U/sec.138 of N.I.Act.
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C.C.No/14821/2018
2. The brief facts of the complaint are that ;
The accused had entered into an agreement sale
dated 15.09.2017 agreeing to sell one acre of land
comprising in Survey No.29P situated at Anughata
Village, Arehally Hobli, Belur Taluk, Hassan District for
total sale consideration of Rs.19,75,000/- by receiving a
sum of Rs.6,00,000/- through cheque bearing No.000086
dated 15.09.2017 drawn on HDFC Bank from the
complainant. The accused has not performed his part of
contract for want of necessary documents. Thereafter,
the accused towards repayment of advance amount of
Rs.6,00,000/- along with nominal interest, he has
entered into an agreement of advance payment refund
dated 08.03.2018 under which he has issued cheques
bearing No. 000093 dated 31.03.2018 for Rs.6,00,000/-
and cheque bearing No.000094 dated 31.03.2018 for Rs.
39,000/- both are drawn on HDFC Bank, Kuvempunagar
Branch, Mysure. It was further agreed that on realization
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C.C.No/14821/2018
of the cheques amount, the sale agreement dated
15.09.2017 shall stand automatically canceled.
3. When the complainant presented the cheques
on 06.04.2018 through his banker ICICI Bank,
Bommanahalli Branch, Bengaluru for encashment
which were returned unpaid with an endorsements
"Funds Insufficient" dated 10.04.2018. Thereafter, the
complainant got issued legal notice on 20.04.2018 to
the accused through registered post acknowledgment due
calling upon the accused to pay the cheques amount. The
said notice has been served to the accused on
23.04.2018. However, the accused did not make the
payment for the amount covered under the cheques.
4. On presentation of the complaint, the cognizance
was taken of the offence punishable U/sec.138 of N.I.Act
and registered it as P.C.R.No.7922 of 2018. The sworn
statement of the complainant was recorded. Since there
were sufficient materials to proceed against the accused,
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C.C.No/14821/2018
it was registered as criminal case in register No.III and
the process was issued to the accused.
5. On receipt of the summons, the accused No.2
appeared before the court through his counsel and
secured bail. He was furnished with the prosecution
papers. The substance of the accusation was read over
and explained to him. He pleaded not guilty and claimed
to tried.
6. The complainant has himself got examined as
PW1 and got marked documents Exs.P1 to Ex.P14.
7. As accused No.2 has not appeared before the
court for recording his statement U/sec. 313 of Cr.P.C.,
this court has noted that the accused has not availed
opportunity u/sec. 313 of Cr.P.C., and defence evidence
was also taken as nil.
8. Heard the arguments
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C.C.No/14821/2018
9. The points that arise for my consideration are
as under;
1. Whether the Complainant proves
that the accused No.2 has issued
cheques at Ex.P1 and Ex.P2 for
Rs.6,00,000/- and Rs.39,000/-
respectively in his favour towards
discharge of his liability.?
2. Whether the complainant further
proves that the said cheques got
dishonoured as "Funds Insufficient"
when they were presented for
encashment.?
3. Whether the complainant further
proves that he has complied with
the mandatory provisions of Section
138 of N.I.Act.?
4. What order ?
10. My findings to the above points for
consideration are as under:
Point No.1 :- In the Affirmative.
Point No.2 :- In the Affirmative.
Point No.3 :- In the Affirmative.
Point No.4 :- As per final order for the
following;
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C.C.No/14821/2018
:: R E A S O N S ::
11. Point No.1:- As regards legally enforceable
debt or liability the Hon'ble Supreme Court in the case of
Rangapa v/s Sri.Mohan reported in (2010) 11 SCC 441
has held that "The presumption mandated by Sec.139 of
the Act includes a presumption that there exists a legally
enforceable debt or liability. This is of course in the
nature of a rebuttable presumption and its open to the
accused to raise a defence wherein the existence of a
legally enforceable debt or liability can be contested.
However, herein, there can be no doubt that there is an
initial presumption which favours the complainant.
When an accused has to rebut the presumption U/sec.
139, the standard of proofs for doing so is that of
preponderance probabilities. Therefore, when the
accused is able to raise a probable defence which
creates doubt about the existence of a legally enforceable
debt or liability, the presumption 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
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C.C.No/14821/2018
in some cases the accused may not need to adduce
evidence of his/her own".
12. If the facts and circumstances of the case are
considered in the light of above said principle of law it is
clear that the accused has not disputed during the trial
that the cheques in question are drawn on his bank
account and they bear his signatures. Therefore, the
statutory presumption arises U/secs.118 (a) and 139 of
N.I. Act in favour of the complainant that the cheques in
question are issued for consideration for discharge of
debt or liability. The burden of rebutting the said
presumptions by probable defence is on the accused.
13. PW1 in his examination chief has reiterated the
averments of the complaint and has relied upon
documents Ex.P1 to Ex.P14.
14. According to the complainant the accused had
issued cheque in question at Ex.P1 for Rs.6,00,000/-
towards refund of advanced money and had issued
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C.C.No/14821/2018
another cheque in question at Ex.P2 for Rs.39,000/-
towards nominal interest as the accused has not
complied with terms of agreement of sale at Ex.P12. It is
recited in Ex.P12 that the complainant has paid advance
of Rs.6,00,000/- through cheque No.000086 dated
15.09.2017 drawn HDFC Bank, Kasturibha Road,
Branch to the accused No.2. Ex.P13 discloses that
accused No.2 applied for allotment of farm plot in respect
of one acre of land in Sy. No. 29P.
15. Ex.P14 discloses that both the complainant as
well as accused have entered into agreement of advance
payment refund on 08.03.2018 in terms of Ex.P14
wherein it is clearly recital that both the parties have
agreed to cancel the sale agreement dated 15.09.2017
and accused also agreed to refund Rs.6,00,000/-
advance payment together with bank interest.
16. PW1 was subjected to cross examination. It is
elicited from PW1 that the complaint has not shown in
the income returns regarding advancing a sum of
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C.C.No/14821/2018
Rs.6,00,000/- to the accused. Keeping this in mind, I
would like to refer to a decision reported in ILR 2019 KAR
493 in the case of Sri.Yogesh Poojari v/s Sri.K.Shankara
Bhat and the relevant paragraph of No.11 of the said
judgment is extracted herein below;
When the accused in the process of
rebutting the presumption existing in favour
of the complainant under Section 139 of the
N.I.Act apart from making a mere suggestion
as to absence of any documentation about
the alleged loan transaction and absence of
non-disclosure of the loan transaction in the
Income Tax Returns is also required to place
more material either in the form of favorable
replies elicited in the cross-examination of
the complainant or in the form of documents
or atleast bringing to the notice of the Court
and convincing it that the circumstances of
the case warrants for drawing such a
conclusion, particularly, mere making a
suggestion to the complainant that he has
not disclosed the alleged loan transaction in
his Income Tax Returns or eliciting the
statement from the complainant that he has
not disclosed the alleged loan transaction in
his Income Tax Returns by itself is not
sufficient. It is also required for the accused
to establish that the complainant is an
income tax assessee or required to be an
assessee and that the nature of his income
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C.C.No/14821/2018
tax assessment and the Income Tax Return
which he files, requires him to disclose the
alleged transaction or the liability in
question. In the absence of eliciting those
details, by merely making a suggestion that
the alleged debt or liability, has not been
reflected in the income tax returns would not
by itself suffice to draw an adverse inference
and to hold that there was no legally
enforceable debt or the presumption
standing in favour of the complainant as
successfully rebutted by the accused.
17. In the light of above said decision of Hon'ble
High Court of Karnataka the testimony of PW1 in the
cross examination that the advanced amount has not
been shown in income tax returns is of no consequences.
18. It is also elicited from PW1 in the cross
examination that no document has been produced to
show that he is getting Rs.95,000/- to Rs.1,00,000/-
salary per month and there is no hindrance to produce
bank statement. It is relevant to note here that it is the
not the case of the accused that he has not received
advanced amount of Rs.6,00,000/- from the complainant
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C.C.No/14821/2018
as per the terms and conditions of agreement of sale at
Ex.P12 and nor has he executed Ex.P14 towards
repayment of advance amount of Rs.6,00,000/- to the
complainant. In the trial the accused has not disputed
Ex.P12 as well as Ex.P14. Therefore, the non production
of relevant document regarding salary of the complainant
does not affect the case of the complaint.
19. It is to be noted here that the accused has not
availed his opportunity U/sec. 313 of Cr.P.C inspite of
issuing NBW's against him. In this regard I opt to referr
to a decision of Hon'ble High court of Karnataka in
criminal revision petition No.437/2010 in the case of
R.V.Kulakarni v/s Dakshina Murthy and para No.7 of the
said judgment is extracted herein below;
20. In the above facts and circumstances, the
scope and object of Section 313 of the Cr.PC ought to
have been kept in view by the court below having due
regard to the nature of the case that was involved and
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C.C.No/14821/2018
the circumstances that could possibly b sought to be
explained by the accused as appearing against him. It
was for the accused to have appeared before the court
and to have defended himself effectively and to make
himself available for the court, to record the statement
under Section 313 of the Cr.PC. As already pointed out,
the accused-respondent did or did not choose to appear
before the court below, according to his convenience. In that view of the matter, the respondent having effectively taken advantage of the legal position, notwithstanding that he may not have been entitled to such reliefs before the court below in the two appeals that he had preferred during the course of these proceedings. There is no justification in the appellate court having held that there is failure of justice on account of the statement of the respondent- accused not having been recorded under Section 313 of the Cr.P.C. Having due regard to the fact that this was a summons case and the respondent himself was to balance for non-compliance with the said 14 C.C.No/14821/2018 provision, no fault could be found either with the petitioner or the trial court. In that view of the matter, the petition is allowed. The judgment of the trial court is affirmed.
21. In the light of above referred to decision of Hon'ble High Court of Karnataka, as accused No.2 has not appeared before the court for recording of his statement U/sec.313 of Cr.P.C this court has noted that the accused has not availed an opportunity provided u/sec.313 of Cr.P.C and defence evidence was also taken as nil.
22. It is to be noted here that the accused during the trial though cross examined PW1 but has not rebutted the statutory presumptions available in favour of the complainant U/sec. 118(a) and 139 of N.I.Act. In other words the case of the complainant stands unrebutted. Thus it is clear that the complainant has made out the case that the accused has issued cheques 15 C.C.No/14821/2018 in question at Ex.P1 and Ex.P2 for Rs.6,00,000/- and Rs.39,000/-towards discharge of his liability. Accordingly point No.1 is answered in the Affirmative.
23. Point No.2:- According to the complainant the cheques in question at Ex.P1 and Ex.P2 were returned unpaid with an endorsement as "Funds Insufficient". The bank memos produced by the complainant at Ex.P3 and Ex.P4 reveal that cheques were returned unpaid for the reasons "Funds Insufficient". The bank memos at Ex.P3 and Ex.P4 prove dishonour of cheques for the reasons "Funds Insufficient" by virtue of presumption raised U/sec. 146 of N.I.Act and during the trial Ex.P3 and Ex.P4 went uncontroverted. Hence, I answer point No.2 in the Affirmative.
24. Point No.3:- The cheques in question at Ex.P1 and Ex.P2 were returned unpaid with bank endorsements on 10.04.2018 as per bank memos at Ex.P3 and Ex.P4. It is clear from Ex.P5 the office copy of 16 C.C.No/14821/2018 legal notice that, the complainant caused demand notice on 20.04.2018 informing the accused about dishonour of the cheques and making demand for repayment of amount covered under the cheques in question. On perusal of Ex.P1 to Ex.P11 it is evident that the complainant has presented the cheques within their validity and they were returned unpaid on 10.04.2018 and he caused legal notice within one month from the date of intimation of dishonour of the cheques.
25. The records disclose that after causing demand notice, the accused has not repaid amount covered under cheques Ex.P1 and Ex.P2 after expiry of fifteen days statutory period from the date of deemed service of notice, the complaint is filed well within the period of limitation. As accused has failed in paying amount covered under cheque at Ex.P1 and Ex.P2 all the essential ingredients of section 138 of N.I.Act have been complied with and thereby accused No.1 and 2 have 17 C.C.No/14821/2018 committed the said offence. Accordingly point No.3 is answer in the Affirmative.
26. Point No.4:-In view of my findings on the above points, I proceed to pass the following;
ORD ER Accused No.1 and 2 are convicted U/sec.255(2) of Cr.P.C., for the offence punishable u/Sec.138 of N.I.Act.
The accused No.1 and 2 are sentenced to pay a fine of Rs.8,10,000/-. In default of payment of fine, the accused No.2 shall undergo simple imprisonment for a period of 6 (six) months. Out of the total fine amount, an amount of Rs.8,00,000/- shall be paid to the complainant as compensation U/sec.357(1)(b) of Cr.P.C and remaining amount of Rs.10,000/- shall be remitted to the state.
The bail bond of the accused No.2 stands canceled while the cash surety of Rs.5,000/- that was deposited by accused No.2 on 28.02.2019 is ordered to be forfeited to the state.
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C.C.No/14821/2018 Office to furnish a free copy of this Judgment to the accused No.2 forthwith.
(Directly dictated to the Stenographer on computer, typed by him, corrected by me and then pronounced in the Open Court on 22nd April 2022.) (FAROOQ ZARE) XIX ADDL.C.M.M., Bengaluru.
::ANNEXURE::
Witnesses examined on behalf of the Complainant :-
PW.1 :- Sri.Swroop Ramalingam.
Documents marked on behalf of the Complainant:-
Ex.P1 & Ex.P2 :- Cheques
Ex.P1(a) & Ex.P2(a) :- Signatures of the Accused.
Ex.P3 & Ex.P4 Bank Endorsements.
Ex.P5 :- Office copy of the legal notice.
Ex.P6 to Ex.P8 :- Postal receipts.
Ex.P9 :- Postal Acknowledgment.
Ex.P10 and Ex.P11 :- Unclaimed RPAD covers.
Ex.P12 :- Sale Agreement.
Ex.P13 :- Application Form.
Ex.P14 :- Agreement of Advance Payment
Refund.
Witnesses examined on behalf of the Accused:-NIL- Documents marked on behalf of the Accused:-NIL-
(FAROOQ ZARE) XIX ADDL.C.M.M., Bengaluru.