Bangalore District Court
C.Ramanjan Reddy vs G.Chandrasekar Reddy on 28 March, 2018
IN THE COURT OF THE JUDGE COURT OF SMALL
CAUSES AND XXVI A.C.M.M, AT BENGALURU
Present: Abdul Khadar, B.A., LL.B.,
JUDGE, Court Of Small Causes,
Bengaluru
Dated this the 28th day of MARCH 2018
C.C. No: 29908/2014
Complainant: C.Ramanjan Reddy
S/o.late.C.Anjana Reddy
R/at No.44, 1st A Cross,
Escort Layout,
Yelahanka New Town,
Bengaluru-560 106
(By Sri.J.Jagadeeswar-Advocate)
-Vs-
Accused : 1.G.Chandrasekar Reddy
@ Reddy, G.C.(Gas Chandru)
R/at No.162/5, 1st Floor,
Bharathinagar,
Hunesamaranahalli,
Bangalore-562157
2. G.Chandrasekar Reddy
@ Reddy, G.C.(Gas Chandru)
Air Force Station, NH-7,
Bellary Road, Yelahanka,
Bengaluru-63.
(By Sri.Parameshwara-Advocate)
JUDGMENT
The complainant has filed the private complaint under Sec. 200 of Cr.P.C., against the accused for having 2 CC.29908/2014 committed an offence punishable under Sec.138 of Negotiable Instruments Act.
2. According to the complainant that accused is friend of him. He approached him in the month January 2014 and requested to lend a sum of Rs.70,000/- loan for his urgent business/domestic necessities. The complainant lent a sum of Rs.70,000/- to the accused and for payment of said amount, the accused requested 6 months time. After lapse of 6 months, the accused failed to pay the said amount as agreed inspite of repeated requests and demands made by the complainant. The accused to discharge his liability has issued cheque bearing No.399805 dated 28-06-2014 for Rs.70,000/- drawn on State Bank Of India, Air Force Station NH-7 Bellary Road Yalahanka, Bengaluru-63. The complainant presented the said cheque for encashment through his banker State Bank Of India, Air Force Station NH-7 Bellary Road Yalahanka, Bengaluru-63 and the same has been returned to the complainant on 15-09-2014 with a memo stating the "Insufficient Funds". Thereafter the complainant issued legal notice to the accused on 26-09- 2014 calling upon the accused to pay Rs.70,000/-within 15days to the residential address of the accused through RPAD and the same has been returned as the no such person. The notice sent to the office address of accused, was refused on 13/10/2014. The accused failed to pay the cheque amount within time. Hence, he committed an 3 CC.29908/2014 offence punishable under Sec.138 of N.I. Act. Accordingly, he has filed the present complaint to take action against the accused in accordance with law.
3. Being satisfied with the complaint averments, this Court has taken cognizance and after recording sworn statement being satisfied with the prima-facie case, issued summons to the accused compelling his appearance. Accused appeared through his counsel before this Court and got enlarged on bail. Substance of accusation was read over to the accused. Accused pleaded not guilty for the offence punishable u/s.138 of NI Act. Hence, this Court called upon the complainant to prove his case.
4. In support of the case, the complainant himself examined as P.W.1 and got marked 6 documents as per Ex.P1 to P7. When the case was posted for cross of PW-1 and subsequently, inspite of giving sufficient opportunities, neither the accused nor his counsel have appeared before this court or cross examined PW-1. Hence to that effect NBW has been issued against him and the same was unexecuted. The accused has not at all challenged the evidence of PW-1 and the present case is summary trial and quasi-criminal in nature and thereby recording the statement of accused under Sec.313 of Cr.P.C is dispensed with. As per the new amendment under Section 145(2) of N.I. Act inspite of giving sufficient opportunities, neither the accused nor his counsel have 4 CC.29908/2014 filed the application to adduce their defence evidence. Since the present complaint is a summary trial and quasi- criminal in nature. Hence, defence evidence is taken as Nil. At this juncture, I have relied a decision reported AIR 2004 SC 2528 Indian Bank Association and others -vs Union of India and others N.I. Act (26 of 1881) Sec.138, 143, 145- Dishonour of cheque summary trial -directions given to trial court to follow procedures for speedy and expeditious disposal of cases falling under Section 138 of N.I. Act. Thereby appearance of the accused is dispensed with and the case was posted for arguments.
5. Heard arguments and perused the materials available on record.
6. The points that only would arise for my determinations are:
1. Whether the complainant proves that the accused had issued cheques bearing No.399805 dated 28-06-2014 for Rs.70,000/- drawn on State Bank Of India, Air Force Station NH-7 Bellary Road Yalahanka, Bengaluru-63, towards discharge of his legal liability and when the said cheque presented for encashment, it was dishonoured with an endorsement " Insufficient Funds", after issuance of legal notice, he fails to repay Rs.70,000/- covered under the cheque 5 CC.29908/2014 and thereby the accused has committed an offence punishable under Sec.138 of N.I. Act?
2. What order?
7. My findings to the above points is as under:
Point No.1 : In the Affirmative Point No.2 : As per final order below For the following:
REASONS Point No.1 :
8. Under Section 138 of N.I. Act, the offence will constitute only, if the cheque was issued towards discharge of legal liability and it was dishonored for Insufficient of Funds in the credit of the accused. In this connection, the complaint averments reveal that, the accused is friend of him. He approached him in the month January 2014 and requested to lend a sum of Rs.70,000/- loan for his urgent business/domestic necessities. The complainant lent a sum of Rs.70,000/- to the accused and for payment of said amount, the accused requested 6 months time. After lapse of 6 months, the accused failed to pay the said amount as agreed inspite of repeated requests and demands made by the complainant. The accused to discharge his liability has issued cheque bearing No.399805 dated 28-06-2014 for Rs.70,000/- drawn on State Bank of India, Air Force 6 CC.29908/2014 Station NH-7 Bellary Road Yalahanka, Bengaluru-63. The complainant presented the said cheque for encashment through his banker State Bank Of India, Air Force Station NH-7 Bellary Road Yalahanka, Bengaluru-63 and the same has been returned to the complainant on 15-09- 2014 with a memo stating the "Insufficient Funds"
Thereafter the complainant issued legal notice to the accused on 26-09-2014 calling upon the accused to pay Rs.70,000/-within 15days to the residential address of the accused through RPAD and the same was returned with an endorsement as no such person, the notice sent to the office of accused, was refused on 13/10/2014. Inspite of service of notice the accused not paid amount nor replied the same.
9. To prove the case of the complainant he himself examined as PW1 filed affidavit in lieu of examination of chief reiterated the complainant averments in toto. The complainant produced 6 documents at Ex.P1 to P7. Ex.P1 is the cheque bearing No.399805 dated 28-06-2014 for Rs.70,000/- drawn on State Bank Of India, Air Force Station NH-7 Bellary Road Yalahanka, Bengaluru-63.. The signature of accused marked Ex.P1(a). Bank endorsement marked at Ex.P.2. The office copy of legal notice marked at Ex.P3. Postal receipts marked at Ex.P4 and P5. Un served postal cover returned with an endorsement as "No such person and refused" marked at Ex.P6 and Ex.P.7. On perusal of Ex.P2, wherein it 7 CC.29908/2014 appears that the cheque at Ex.P1 presented by the complainant for encashment through his banker which was returned "Insufficient Funds".
10. Ordinarily in cheque bouncing cases, what the courts have to consider is whether the ingredients of the offence enumerated in Sec.138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Sec.139 of the Act.
11. In this regard I relied on a decision reported in AIR 2001 SC 3897, in the case of Hiten.P.Dalal vs Bratindranath Banerjee, wherein the Apex court observed that Sec.138 and 139 of the Act introduced exceptions to the general rule as to the burden of proof in the criminal cases and shifted the onus on the accused in the following manner:
"Because, both sections 138 and 139 require that the court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn. It is obligatory on the court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. Such a presumption is a presumption of law, as distinguished from a presumption of fact, which describes provisions by which the court "may presume" a certain state of affairs. Presumption are rules of evidence and do not conflict with the presumption of innocence, because by the latter all 8 CC.29908/2014 that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the presumption may be discharged with the help of presumption of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact.
12. In the light of these extracts, the presumption mandated by Section 139 of the Act does indeed include the existence of the legally enforceable debt or liability. In the present case, the accused did not plead and take any stand in respect of his defence. It is settled position of law that if the accused did not enter the witness box to adduce the rebuttal evidence or to produce any documents, then, an adverse inference can be drawn. In this regard I relied on a decisions reported in AIR 1999 SC 1341in the case of Eshwar Bai C. Patel V/s Narihar Behara and(1999) 3 SCC 573 in the case of Vidhydhar V/s. Manik Rao and Another, wherein, the Hon'ble Apex Court has observed that;
"When a person fails to enter into witness box to state his case on oath, the adverse inference can be drawn as per Sec.114 of Indian Evidence Act, against such person". "Evidence Act, 1872 - S.114 III (g) - Presumption - If a party abstains from entering the witness box, an adverse inference would arise against him. "Where a party to the suit does not appear in the witness box and states his own case on oath and does not 9 CC.29908/2014 offer himself to be cross-examined by the other side, a presumption would arise that the case set-up by him is not correct".
13. Though the case is posted for cross examination of PW1. Inspite of giving sufficient opportunities, neither counsel for the accused nor the accused having failed to cross examine the PW1. Hence, Cross examination of PW1 taken as nil. Since, the present complaint is summary trial in nature and thereby recording the statement of accused under Sec.313 of Cr.P.C. is dispensed with and inspite of giving sufficient opportunities the accused has failed to adduce his defense evidence. Hence, defence evidence is taken as nil. After hearing arguments on merits from complainant the case is posted for judgment.
14. On perusal of averments made in the complaint and also documents produced by the complainant, it is clear that it is an admitted fact that even after issuance of legal notice by the complainant to the accused prior to filing of the said complaint, the accused has not given any reply to the notice. Therefore, prior to the filing of the said complaint the complainant had complied all the necessary ingredients under Sec.138 of NI Act. Though, the accused has appeared before this court through his counsel and enlarged on bail. He pleaded not guilty and claims to make defense and to substantiate is defense, he has not cross-examined PW1 inspite of giving sufficient 10 CC.29908/2014 opportunities and also failed to adduce his defense evidence and also failed to produce any iota of documentary evidence. Since, the evidence of PW1 is unchallenged.
15. On perusal of the Ex.P1 there is an ambiguity. Since, the complainant has proved this case by adducing cogent and corroborating evidence. The accused has failed to rebut the presumptions available to him and also failed to lead defense evidence. If really, he was not at all issued Ex.P1 cheque for discharge of consideration amount to the complainant, he ought to have taken necessary legal action against the PW1 after issuance of legal notice to him by the complainant, he ought to have adduced his defense evidence or he ought to have cross examined the PW1. Therefore, non-performing of the aforesaid legal proceedings that, itself is very much fatal to the alleged defense setup by the accused during the course of recording of his accusation. There is no dispute that Ex.P1 cheque belonging to his own bank account. The signatures found on the Ex.P1(a) of his own signature. There is no any ambiguity on perusal of Ex.P1. It can be presumed that the accused has issued the Ex.P1 cheque to the complainant with knowing fully well without having sufficient funds in his bank account with an intention to defeat the claim of complainant.
16. It can be presumed that no any ordinary prudent man will issue signed blank cheque to any other 11 CC.29908/2014 persons without having monetary transactions between themselves. As per Sec.73 of the Indian Evidence Act this court is having ample power with respect to compare the admitted signatures and disputed signatures. Therefore, on perusal of Ex.P1 therein signature of the accused Ex.P1(a) . The accused had put his signature at the time of filing of the vakalath and the personal bond and also at the time of recording his accusation the signature found are one and same. It bears to the accused. Hence, the probability of the preponderance is higher on the side of the complainant rather than the accused.
17. Ordinarily offence under Sec. 138 of NI Act mensrea is not essential, under Sec. 138 of NI Act, is bring into operation role of strict liability, where as mensrea is essential ingredients in criminal offences. Therefore, the complainant has proved this case is against the accused since offence under Sec.138 of NI Act element of mensrea has been excluded in general public interest to curb the instances of dishonoring of cheques and to lend the credibility to the commercial transactions. Therefore, in this case also the accused knowing fully well he fails to pay the payment of liability and also to discharge legally recoverable debt under Ex.P.1 to the complainant. Therefore, the testimony of PW-1 inspires confidence to believe and to act upon. It is pertinent to note that the oral evidence of PW-1 and documentary evidence i.e. Exs.P.1 to P.7 are consistent, corroborative and 12 CC.29908/2014 supporting to each other and in accordance with the case of the complainant and which lead me to conclude that the case of the complainant is proved beyond all reasonable doubts against the accused for the charged offence p/u/Sec.138 of the Negotiable Instruments Act, 1881.
18. On perusal of Ex.P1 cheque, which pertains to the year 2014. Therefore, the Complainant was deprived of the money having rightfully due to his for over a period of more than 3 years. Therefore, the Complainant is entitled for compensation U/s.80 & 170 of the N.I. Act. In the face value of the cheque is Rs.70,000/- this court can impose a fine of Rs.1,40,000/- It is well settled principle that while awarding compensation to the complainant in a case under section 138 of N.I. Act, calculating simple interest at 9% per annum would be reasonable. In the present case the accused had issued cheque towards discharge of legally liability 28-06-2014, at the rate of 9% per annum interest for 70,000/- would be Rs.23,940/- after lapse of 40 months, this case reached for judgment. It is also to be borne in mind that the complainant has to meet the litigation expenses. Accordingly, considering the facts and circumstances of the case and conduct of the parties, it is thought fit to award the cheque amount plus the loss caused to the complainant has to be suitably compensated by the accused. By considering the pendency of litigation and amount involved in the case it 13 CC.29908/2014 would be appropriate to award compensation amount of Rs.93,940/-to the complainant.
19. Since, present complaint is summary trail and quasi criminal in nature. It is like recovery proceedings and punishment is fine on in default of it simple imprisonment. In this context I am relying the citation reported in AIR 2009 NOC 404(Kerala) in the case of Babu v/s K J Joseph. It is evident from Sec.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. Therefore, I answered point No.1 in the affirmative Point No.2:
20. In view of my above discussions and findings on Points No's. 1, I proceed to pass the following:
ORDER Acting under Section 255[2] of Cr.P.C, the accused is hereby convicted for the offence Punishable U/s. 138 of the N.I. Act.
The accused shall pay fine of Rs.98,940/-.
In default of payment of fine amount, the accused shall under go Simple Imprisonment for six months.
Out of the amount so realized, the accused shall pay a sum of Rs.93,940/- to the Complainant as compensation, as provided U/s.357 Cr.P.C. The 14 CC.29908/2014 remaining amount of Rs.5,000/- shall go to the State.
The bail bond and surety bond of the accused is hereby stand cancelled.
Office is directed to furnish free copy of this judgment to the accused.
(Dictated to the stenographer directly over computer, typed by her, corrected and then pronounced by me in the open court on this the 28th day of March 2018) (Abdul Khadar) Judge , Court of Small Causes, &XXVI ACMM Bengaluru.
ANNEXURE List of Witnesses examined on behalf of complainant:
PW -1 : C. Ramajan Reddy List of Documents marked on behalf of complainant:
Ex.P1 : Cheque Ex.P.1(a) : Signature of accused Ex.P.2 : Bank Endorsement, Ex.P.3 : Legal Notice, Ex.P4 & 5 : Postal Receipts Ex.P6 & 7 : Unserved postal covers Ex.P.6(a) : Contents of Ex.P6
List of Witnesses examined on behalf of accused:
NIL List of documents marked for accused: NIL (Abdul Khadar) Judge , Court of Small Causes, &XXVI ACMM Bengaluru.