Bangalore District Court
Smt. Sathyamma vs Sri. Venkatesh Reddy on 28 February, 2022
IN THE COURT OF XXXIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, MAYO HALL UNIT,
BENGALURU
: PRESENT :
M.Vijay, BAL, LLB.
XXXIII ADDL.CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED IS THE 28TH DAY OF FEBRUARY, 2022.
C.C.No.54066/2018
COMPLAINANT : Smt. Sathyamma,
wife of Late. Muniyappa,
Aged about 59 years,
Utanalappa Building, No.17, 1st Floor,
9th Cross, Akshaya Nagar,
Kowdenahalli, Ramamurthy Nagar,
Bangalore.
.Vs.
ACCUSED : Sri. Venkatesh Reddy,
Son of Srinivasa Reddy,
Aged about 45 years, R/at No.24,
6th Cross, Kalkere Main Road,
Sri.M.V.Nagar, Ramamurthynagar,
Bangalore560016.
JUDGMENT
The complainant has filed this private complaint U/s.200 of Cr.P.C., against the accused for the offence punishable U/s 138 of Negotiable Instrument Act.
2C.C.No.54066/2018 The factual matrix of the case are as follows:
2. The complainant claims to have sold an immovable property in survey No.115 measuring 6 guntas of land to the accused for a total consideration of Rs.40,00,000/ out of said sale consideration, the accused paid to her, part sale consideration of Rs.30,00,000/ and promised to pay Rs.10,00,000/. accordingly, she executed sale deed in favour of accused, However, thereafter, the accused keep on dragging to pay the balance amount of Rs.10,00,000/ on one or the other reasons, when she demanded to pay the Rs.10,00,000/, the accused allegedly abused her in filthy language and also assaulted, accordingly she lodged complaint to the police. However, subsequently, the accused entered into an agreement dated 06.08.2015 and issued two cheques each for Rs.5,00,000/ out of two cheques, one cheque was honored, but cheque bearing No.035062 dated 07.12.2015 issued towards discharge of legally enforceable liability was presented through his banker, SBI, Akshaynagar, Ramamurthynagar, came to be dishonored "as payment stopped by the drawer" dated 09.12.2015. Immediately, she approached the accused but, the accused requested her to represent it, 3 C.C.No.54066/2018 accordingly, she again represented it, but, even for the second time returned for the same reason vide memo dated 18.12.2015, but once again requested to present it, accordingly third time she presented it, but it was returned for the same reason vide memo dated 04.01.2015. Therefore, the accused intentionally issued her cheque knowingfully well that, there was no sufficient amount in his bank account had issued cheque with a deciteful intention for Rs.5,00,000/. accordingly, she was constrained to issue legal notice on 20.01.2016 through RPAD same was served on the accused, instead of complaining her demands the accused has issued untenable reply. Accordingly, alleged that, the accused has committed an o/p/u/s.138 of NI.Act.
3. Based on the complaint, affidavit and documents filed by the complainant, the court took cognizance for an o/p/u/s.138 of N.I. Act and also a criminal case was ordered to be registered against the accused, In pursuance of summons, the accused appeared through his advocate, accused was enlarged on court bail, substance of plea has been recorded, accused pleaded not guilty and claims to be tried.
4C.C.No.54066/2018
4. The complainant in order to prove her case got examined herself as P.W.1 and placed reliance upon Exs.P1 to P8. On closure of complaint side evidence, the accused was examined U/s 313 Cr.P.C., denied the incriminating materials on record and got examined himself as D.W.1 through confrontation he got marked Ex.D.1 to D.5 and also placed reliance on Ex.D6 to D.17.
5. Heard both the sides. Perused the materials on record the following points arises for my determination.
1. Whether the complaint proves beyond all reasonable doubt that, accused has committed an o/p/u/s 138 of Negotiable Instruments Act?"
2. What order?
6. My findings to the above points are follows;
Point No1: In the Affirmative Point No.2: As per final order for forgoing;
REASONS
7. Point No.1: The complainant claims to have sold six guntas of land in survey No.115 for total sale considerationof Rs.40,00,000/, out of it, she received total Rs.35,00,000/ from the accused towards balance of 5 C.C.No.54066/2018 Rs.5,00,000/, the accused allegedly issued a cheque bearing No.035062 dated 07.12.2015 for sum of Rs.5,00,000/ in her favour , based on an agreement entered in between her and the accused on 06.08.2015, same was returned unpaid for "payment stopped by the drawer" despite demand, the accused denied the liability and issued reply notice, accordingly this complaint.
8. Per contra, the accused have denied the existence of the liability and also denied the properties sold to him and contends that, he purchased site in survey No.115 from one Raju and Jaganath in the year 2012, when he about to enter possession, the complainant and her sons have claimed right title and interest over the purchased property, however, the matter was settled for Rs.40,00,000/ in between him and complainant. As per the settlement, he paid sum of Rs.30,00,000/ to the complainant and agreed to pay Rs.10,00,000/ balance only after handing over of the original documents, but, despite of promise, the complainant did not return original documents and filed false complaint before Ramamurthynagar police station, by alleging outrage her modesty and assault, based on it, the Ramamurthynagar have obtained his two cheques illegally, therefore, he 6 C.C.No.54066/2018 contends that, unless and until handing over the originals as per settlement agreement, he is not liable to pay the cheque amount.
9. So, considering the rival contention, it is crystal clear that, though the complainant not sold the property as claimed in the complainant. But, as admitted by the accused a settlement agreement held in between complainant and the accused on 06.08.2015, so which is not in dispute, further, as per the settlement, payment of Rs.30,00,000/ paid by the accused is not in dispute, besides that, it is not in dispute, the accused has agreed to pay Rs.10,00,000/ amount as per the agreement, therefore accused was due of Rs.10,00,000/ to the complainant. However, the accused specifically contends that, only after returning of original documents as per the recital of the agreement, he is liable to pay the balance amount of Rs.10,00,000/. therefore, he is not liable, accordingly, liability is not existence and cheque has been forcibly obtained by the police and issued to complainant as such he contends that, he did not issue cheque in question towards discharge of legally enforceable debt.
10. So, the burden is on the complainant to prove the existence of legally enforceable liability and issuance of 7 C.C.No.54066/2018 cheque in question towards liability, in proof of her case, the complainant placed reliance on cheque, returned memo, reply notice and stated on oath that, as per agreement dated 06.08.2015, the accused was due of Rs.10,00,000/, towards discharge of the same, issued two cheques for sum of Rs.5,00,000/ each, out of two cheques, one cheque was honored another cheque Ex.P.1 has been dishonored for "payment stopped by the drawer", accordingly, she claims that, Ex.P.1 cheque was issued towards discharge of legally enforceable liability as agreed in an agreement held in between her and accused.
11. The accused subjected the P.W.1 for cross examination, wherein, he posed several questions with regard to actual owner of property bearing survey No.115, litigation filed by one Raju against the complainant, her husband, Ramachandra, Laxman in O.S.No.488/1995 and execution 444/2002 filed by one Raju against the complainant and the complainant filed Misc.Ptn.No.287/2002 and its set aside the decree passed in favour of the Raju, about all the litigation agitated with respect to survey No.115 and also confronted Ex.D1 sale deed executed by one Raju and Jaganath in his favour, wherein complainant is the witness, her signature has 8 C.C.No.54066/2018 been confronted as Ex.D.1, likewise signatures on Ex.D2 and D3 on the sale deed executed by Nandakumar in respect of site No.2 to 4 in survey No.115, the accused himself confronted Ex.D.4 the indemnity bond entered in between complainant and accused wherein suggested that, on 28.03.2012, the complainant and her children have executed on indemnity bond in his favour, however, she denied the suggestion of the accused as per Ex.D4, the complainant ought to have returned original documents to the accused. Though, the accused confronted all this Ex.D.1 to D5, but does not dispute the cheque and signature on the cheque is not belongs to him, is only contention that, the Ex.P.1 cheque has been forcibly obtained by the police in the police station. So, the accused admitted the Ex.P.1 cheque relied by the complainant is pertains to his account and signature found on it, is also of the accused. So, once it is admitted, at this stage, it is worth to note that, the decision of Hon'ble Apex court in Kalamani Tex V/s Subramani wherein reaffirmed the ratio laid down by the Hon'ble apex Court in Rangappa V/s Mohan i.e., (2010) 8 SCC 441 that;
9C.C.No.54066/2018 "Once the cheque relates to the account of the accused and he accept and admit the signature on the said cheque, then initial presumption as contemplated under Sec.139 of N.I. Act has to be raised by the court in favour of the complainant. The presumption referred to in Sec.139 of N.I.Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption."
12. Accordingly, the initial presumption has been drawn in favour of the complainant. However, it is rebutable in nature, the onus is on the accused to rebut the presumption, the standard of proof for rebutting the presumption is preponderance of probabalities, at this stage, it is worth to note decision with regard to requirement rebut the presumption ie., Hon'ble Apex Court Sumethi Viz Vs. M/s. Paramount Tech. Fab.
Industries, held that, 10 C.C.No.54066/2018 " To disprove the presumption, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt didn't exist or their nonexistence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they didn't exist".
13. Therefore, the accused has to prove that, as on the date of issuance of cheque there was no liability for the claimed amount.
14. The accused as held supra, though the complainant not relied upon, the alleged sale deed, as claimed in her complaint executed in favour of the accused, but, the complainant has confronted Ex.D1 to D5 i.e., sale deeds dated 28.03.2012, i.e., Ex.D.1 to D.3, wherein though the complainant is not the vendor but, in all the three sale deeds she affixed her signature as consenting witness, further, Ex.D.4 has been confronted to her, she admits the indemnity bond entered by her and the accused, wherein it clearly discloses that, though the complainant 11 C.C.No.54066/2018 not sold property as claimed in her complaint. But, there held a settlement in between complainant and accused for Rs.40,00,000/ with respect to property which was under litigation between the vendors of accused and the complainant. Therefore, though the complainant is not vendors the properties, the accused agreed to be paid Rs.40,00,000/ to the complainant with respect to settlement held in between the complainant and him with respect to land bearing survey No.115 and in persuance of Ex.D.4 the accused paid sun of Rs.40,00,000/ to the complainant and balance was Rs.10,00,000/ as held supra it is not in dispute total sum of Rs.35,00,000/ received by the complainant and Ex.P.1 cheque claims to have issued towards discharge of balance amount of Rs.5,00,000/.
15. But, the accused denied the issuance of Ex.D1 and relied upon, the recital in Ex.D.4 and also the complaint lodged by the complainant before Ramamurthynagar police, legal notice issued by the complainant on 21.01.2016, his reply and contended that, by referring Ex.D4 recital that, the complainant has not returned original sale deed dated 31.12.1994 referred in Ex.D.4. Therefore, he is not liable to pay the claimed amount and 12 C.C.No.54066/2018 the police on 06.08.2015 forcefully obtained his two cheques, the complainant during the course of cross examination clearly admitted, the recital that "it is true that, in the agreement/indemnity bond ie., Ex.D4 we have agreed to receive sum of Rs.10,00,000/ after handing over the original documents to the accused. Further, she denied that, she has not at all handed over the original documents to the accused till date and claims that, only after handing over the original documents, the accused has issued the cheque in question.
16. So, the complainant categorically claims that, she handed over the original sale deed dated 31.12.1994 as agreed under Ex.D4 to the accused. But, the accused denied the same, however, the accused though entered into a settlement with the complainant on 28.03.2012, he has not taken any legal action for alleged not returning the original sale deed dated 31.12.1994 as referred in Ex.D.4 till the legal notice issued by the complainant or as per Ex.D.14 dated 20.01.2016, which is crucial material to consider the defense of the accused, because, the complainant has specifically stated only after returning of original documents, the accused have issued two cheques each for Rs.5,00,000/ among them one of 13 C.C.No.54066/2018 the cheque was honored another cheque Ex.P.1 dishonored for "payment stopped by the drawer" though the accused contends that, the complainant has not returned original documents, but, before considering his defense that, the complainant did not hand over the original documents, accordingly issued stop payment instruction to his banker, first, he must prove, sufficient balance in his account, then he must prove the cheque was not dishonored for paucity of funds, only then his defense that, the complainant has not returned the original documents and the police have allegedly obtained his cheques, has to be proved, so at this stage, it is worth to note decision of Hon'ble Apex Court in M/s MMTC Ltd., and another V/S Medchil Chemicals and Pharma Pvt. Ltd., held that, "even though the cheque dishonored by reason of stop payment instruction an offence under section 138 could still be made out. It is held that, the presumption U/S 139 is attracted in such a case also the authority shows that, even in the cheque is dishonored by reason of stop payment instruction by virtue Sec.139 the court as to presume that, the cheque was received by 14 C.C.No.54066/2018 the holder for the discharge, in whole or in part, of any debt or liability. Offcourse this is a rebuttable presumption. The accused can thus show that the stop payment instruction were not issued because of insufficiency or paucity of funds if the accused shows that in his account there was sufficient funds to clear the amount of cheque at the time of presentation the cheque for encashment at the drawer bank and that stop payment notice had been issued because of other valid causes including that there was no existing that or liability had been issued because of other valid cause including that there was no existing debt or liability at the time of presentation of cheque for encashment, then an o/p/u/s 138 would not be made out".
17. So the accused has not at all produced the statement of account to show that, as on the date of the cheque, he had sufficient balance in his account, and becuase of not returning the original documents, he issued stop payment instruction to his banker for stop the payment. But, the accused neither produced the statement of the account nor produced the requisition 15 C.C.No.54066/2018 issued to his banker for stop payment. Besides that, out of two cheques one cheque for Rs.5,00,000/ already honored, for that, he has not taken any action, even if, the alleged defense is taken into consideration that, the cheques were obtained by the police from him by posing threat to believe the alleged forcibly obtained her two cheques by the police in the police station on 06.08.2015, the accused except producing FIR and complaint absolutely not produced any documents to show that, the complainant has received two cheques from the police, which was obtained from the accused by the police by illegally detentiate him.
18. Moreover, the very defense of the accused is not acceptable, because as per Ex.D.5 a criminal case was registered against the accused, based on the complaint lodged by the complainant. So, once a criminal case registered against the accused by the complainant, the police have set the criminal law into motion by registering the FIR in crime No.405/2015, therefor, question of obtaining two cheques by the police for Rs.10,00,000/ cannot be acceptable without any documents as the accused himself claimed in legal notice that he was absconded and anticipatory bail has been 16 C.C.No.54066/2018 obtained, further to prove the alleged illegal detention by the police in the police station as on 06.08.2015, the accused relied upon postal receipts and acknowledgement to show that, he has taken legal action against the police official. But, nothing has produced to show that, he has taken legal action against the police of Ramamurthynagar for alleged illegal detention as well as the alleged obtaining of his two cheques. So, in absence of that, the contention of accused that allegedly cheques were obtained by the police forcibly cannot be acceptable.
19. Therefore, considering the entire materials on record, the accused contends that, he is not liable to pay the cheque amount. However, he admits the cheque in question Ex.P.1 pertains to him, but, contends that, it was obtained by the police on his illegal detention. But, to substantiate it, nothing has produced to show that, he was illegally detailed, in contrary, the accused himself has claims that, he was absconded got an anticipatory bail. So, once he was absconding the question of illegal detention without producing the document to that effect cannot be acceptable. Further, there is no document or the evidence produced by the accused to show that, the 17 C.C.No.54066/2018 police have obtained his two cheques in the police station and it was later handed over to the complainant, if it is so, what was the necessity of registering the FIR as per Ex.D.5 and D6 by the police, if the detention of the accused was true, first of all the alleged detention of the accused by the police must be proved by the accused, in absence of that, as claimed by the complainant only after she handed over the original document ie., sale deed dated 31.12.1994, as per recital Ex.D.4, the accused issued two cheques, out of them one cheque has been dishonored ie., Ex.P.1 for payment stopped by the drawer.
20. Admittedly, the accused has not taken legal action against the complainant for honoring the cheque which was also allegedly obtained along with Ex.P.1 and even, the accused though he contends that, both the cheques were allegedly obtained by the police in the police station, among them the first cheque was honored, the accused did not oppose for honoring, the first of cheques, but now, for the second cheque ie., cheque in question he claimed that, there is no liability, which was also obtained, according him by the police on the same day, 18 C.C.No.54066/2018 therefore, the accused cannot blow hot and cold at the same time.
21. That apart, as held supra, the accused must prove the sufficient balance in his account as on the date of issue of stop payment instruction, but, the accused neither produce the statement of account to show that, the cheque was not honored for paucity of funds nor he produced his requision to stop payment of his banker to show that, becuase of the complainant has not handed over the document as recited in Ex.D.4, the cheque was asked to dishonored with the instruction given by the accused. Therefore, in absence of crucial material and evidence with respect to illegal detention and allegedly police have obtained his two cheques in Ramamurthynagar police station on 06.08.2015, the accused failed to prove his defense that, there was no existence of liability and Ex.P.1 cheque was not issued towards legally enforceable liability. Therefore, in absence of that, the accused failed to prove Ex.P.1 handed over by the police to the complainant and the complainant did not hand over the originals. Therefore, the complainant has proved that, as per Ex.D4, there was a balance of Rs.10,00,000/ and after handovering the 19 C.C.No.54066/2018 original sale deed as per the recital Ex.D4, the accused issued two cheques, among them, one of the cheques was credited and cheque Ex.P.1 dishonored for "payment stopped by the drawer" which attracts section 138 of NI.Act. Accordingly, the accused failed to brought out admissible evidence to dislodged the presumption drawn in favour of complainant u/s 139 of NI.Act. the complainant proved the guilt of the accused beyond reasonable doubt. Hence, the accused found guilty of an o/p/u/s.138 of N.I.Act.
22. So, far as sentence and compensation is concern, an o/p/u/s 138 of NI.Act, is primarily compensatory in nature, punitive is secondary, the above settled principal of law with facts and circumstances of the case, the accused agreed to pay Rs.10,00,000/ as per Ex.D.4 only after returning of original document, the accused as per agreement total Rs.35,00,000/ paid to the complainant, remaining balance for Rs.5,00,000/ cheque in question Ex.P.1 was issued in the year 2015, so, considering the nature of transaction and duration of pendency from the date of reopening the case, it is just and necessary to impose fine of Rs.5,75,000/ to meet the ends of justice, accordingly, the accused is hereby sentenced to pay a fine 20 C.C.No.54066/2018 of Rs.5,75,000/ out of that the complainant is entitled for sum of Rs.5,70,000/ as a compensation as per Sec.357(1) of Cr.P.C. remaining amount of Rs.5,000/ is to be appropriated to the state, in case of default the accused shall under go simple imprisonment for a period of 6 months. Accordingly, I answered the above point in "Affirmative".
23. Point No.2: In view of above finding to Point No.1, I proceed to pass following;
ORDER Acting under section 255(2) of Criminal Procedure Code, the accused is convicted of the offence punishable U/s 138 of Negotiable Instrument Act.
The accused is sentenced to pay a fine of Rs.5,75,000/ (Rupees Five lakh Seventy five thousand only) in default, the accused shall undergo simple imprisonment for a period of six months. Out of the fine amount received, Rs.5,000/ is to be appropriated to the State and by way of compensation as per 21 C.C.No.54066/2018 the provision u/Sec.357(1) of Cr.P.C. the complainant is entitled for Rs.5,70,000 /.
The bail bonds and surety bond of the accused shall stand cancelled.
Office is directed to furnish a free copy of the judgment to the accused u/s 363(1) of Cr.P.C.
(Dictated to the Stenographer transcribed and typed by her, corrected, signed and then pronounced by me in the open court, on this the 28th day of February, 2022) (M.Vijay), XXXIII ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Smt Sathyamma
2. Documents marked on behalf of complainant:
Ex.P.1 : Original cheque
Ex.P.1(a) : Signature of the accused
Ex.P.2 to 4 : Bank returned memos
Ex.P.5 : Office copy of the Legal notice
Ex.P.6 : Postal receipts
Ex.P.7 : Reply notice
Ex.P.8 : Bank challan
22
C.C.No.54066/2018
3. Witnesses examined on behalf of Accused:
D.W.1 : Sri. Venkatesh Reddy
4. Documents marked on behalf of Accused:
Ex.D.1 to 3 : Documents Ex.D.1(a) to 3(a) : Signature of P.W.1 Ex.D.4 : Indemnity bond Ex.D.4(a) : Signature of P.W.1 Ex.D.5 : complaint Ex.D.5(a) : Signature of P.W.1 Ex.D.6 : Copy of the legal notice Ex.D.7 : 7 postal receipts Ex.D.8 to 13 : Postal acknowledgment Ex.D.14 : Notice dated 20.01.2016 Ex.D.15 : Reply to Ex.D.14 Ex.D.16 : 2 Postal Receipt Ex.D.17 : Postal acknowledgment (M.Vijay), XXXIII ACMM, BENGALURU.