Bangalore District Court
Fincare Small Finance Bank Ltd vs Vasantkumar on 10 January, 2024
1 C.C.No.10943/2022
SCCH 7
KABC020246252022
IN THE COURT OF THE IX ASCJ. SMALL CAUSES AND
ADDL. MACT, BENGALURU, (SCCH-7)
BEFORE: SRI.UMESH S. ATNURE,
B.Com. LL.B.(Spl)
IX Addl. Small Causes Judge,
Court of Small Causes,
Member, MACT7, Bengaluru.
C.C. No.10943/2022
DATED THIS 10th DAY OF JANUARY - 2024
Fincare Small Finance Bank Ltd.,
Having its registered office at
5th Floor, Bren Mercury,
Kaikondanahalli, Sarjapura Main road,
Bengaluru - 560 102.
Represented by its: GPA Holder
Mr. Raghavendra. B.
...Complainant
VERSUS
Vasantkumar,
Aged about 35 years,
2 C.C.No.10943/2022
SCCH 7
No.335, Kupaswamy Layout,
Bangarpet Town,
Kolar District - 563 114.
...Accused
====
Complainant by Sri. Shivakumar.B. Gouda, Advocate
Accused by Sri. Manjunath.M.R, Advocate
====
:: J U D G M E N T ::
1. This is private complaint filed U/s 200 of Cr.P.C, against the accused for the offence punishable U/s 138 of N.I.Act.
2. It is the case of the complainant that, the complainant company is engaged in the business of providing financial facilities and the accused had applied for a 'LAP' and the same was sanction to the accused vide Loan account No.66170000036048 and as per the terms of sanction and also as per the various loan documents executed with the complainant, the accused had availed the said loan and the 3 C.C.No.10943/2022 SCCH 7 accused had issued the account payee cheque bearing No.282647 for Rs.5,00,000/ dated 04.10.2021 drawn on Karnataka Bank Ltd., towards discharge of existing liability. The said cheque presented for encashment by the complainant through its Banker Fincare Small Finance Bank Ltd., Sarjapura Road, Bangalore assuming that the said instrument will be honored by the payee bank but to the dismay, the said cheque hen presented for encashment was returned unpaid by the accused Banker on 06.01.2022 with the remarks 'Drawers Signature Differs'. Further the complainant has issued the legal notice dated 11.01.2022 by 'Registered Post Acknowledgement Due' and 'Ordinary Post' to the accused calling upon the accused to repay the said amount of Rs.5,00,000/ within fifteen days from the date of receipt of the said notice and the said notice issued to the accused has been served as on 13.01.2022. Further 4 C.C.No.10943/2022 SCCH 7 the accused inspite of receiving the demand notice under statute, failed and was not inclined to settle the cheque amount due within fifteen days from the date of receipt of the notice. Further the accused knowing fully well that the cheque issued to the complainant would be presented to his Banker, intentionally had dishonored the cheque with a dishonest intention and for wrongful gain. Thus, the accused has committed the offence punishable U/Sec.138 of Negotiable Instrument Act. Hence, this complaint has been filed.
3. This court on the basis of sworn statement of complainant and documents on record took the cognizance and issued process to the accused.5 C.C.No.10943/2022
SCCH 7
4. Accused in pursuance of service of summons issued by this court appeared before the court through his counsel and he was enlarged on bail.
5. Thereafter plea of the accused was recorded. The accused denied the same and claims to be tried.
6. In support of the case of the complainant, the GPA Holder of the Complainant company is examined as P.W.1 and PW.2 and got marked Ex.P.1 to Ex.P.10 and closed their side. Subsequent to the closer of the complainant evidence the statement of the accused U/Sec 313 of Cr.P.C, was recorded and accused has denied the incriminating evidence came on record and lead defence evidence by examining himself as DW.1 and got marked Ex.D.1 to Ex.D.5 and closed his side.6 C.C.No.10943/2022
SCCH 7
7. Based on the above pleadings the following points arose for my consideration are as follows:
:: P O I N T S ::
1. Whether the complainant proves that in order to discharge his legally enforcible debt the accused has issued a cheque bearing No.282647 for Rs.5,00,000/ dated 06.01.2022 drawn on Karnataka Bank, Bangarpet Branch when the complainant presented the said cheques for encashment they were returned with the endorsement "Drawers signature differs"
and even after service of legal notice dated 11.01.2022 the accused failed to repay the cheque amount and thereby the accused has committed an offence punishable under Section 138 of NI Act.?
2. What order or decree?
8. Heard the arguments of both side.
7 C.C.No.10943/2022
SCCH 7
9. My answer to the above points are as follows;
Point No.1 : In the Negative
Point No.2 : As per final order for the
following;
:: R E A S O N S ::
10. Point No.1: The Complainant company GPA holder is examined as PW.1 and in his examination in chief he deposed as per contention taken by them and he got marked Power of Attorney as per Ex.P.1, Cheque issued by the Accused as per Ex.P.2, Signature of the Accused as per Ex.P.2(a), Return Memo as per Ex.P.3, Legal notice as per Ex.P.4, Postal Receipt as per Ex.P.5, Track consignment as per Ex.P.6. After examination in chief the Power of Attorney holder of the Complainant company has left the job and another Power of Attorney holder by name Sanjay Kumar V.S., is examined as PW.2 and he got marked GPA as per Ex.P.7. In his examination in chief he deposed as 8 C.C.No.10943/2022 SCCH 7 per contention taken by him. By perusing Ex.P.2 to Ex.P.6 they goes to shows that the complainant has complied with mandatory provision of Section 138(a) to 138(c) of NI Act as such the complainant is having advantage of presumption under Section 118 and 139 of N.I. Act. Further it is to be noted that the said presumptions are rebuttal presumptions. The accused can rebut these presumptions either by effective cross examining P.W.1 or by leading the defense evidence. In this case the accused has crossexamined the PW.1 and also lead the defence evidence. From the crossexamination of PW.1 and defence evidence it is clear that the accused defence is that he has not obtained loan from the Complainant bank and he has not at all in due of Rs.5,00,000/ to the Complainant and not issued the cheque marked as per Ex.P.2 for repayment of legally enforcible debt and also it is the defence of the 9 C.C.No.10943/2022 SCCH 7 accused that the Legal Notice marked as per Ex.P.4 is not served on him. From the evidence of PW.1 and defence evidence is to be seen whether the accused has rebutted the presumption available to the complainant under Section 118 and 139 of N.I Act.
11. The PW.1 in his crossexamination deposed that he is working the complainant company since last 6 months and he is knowing the transaction and the accused has obtained loan from their company. He denied that accused has never obtained loan from their company. He admitted that the accused has obtained loan from Future Financial Services Ltd. Further he deposed that earlier the Future Financial Service Ltd., company was Deeksha Micro Finance and thereafter it is named as Fincare Small Finance Bank Ltd., and now it is called Fincare Small Finance Bank Ltd., and he has not produced any documents to show that the 10 C.C.No.10943/2022 SCCH 7 Fincare Small Finance Services Ltd., is changed as Fincare Small Finance Bank Ltd. Further he deposed the the accused was obtained loan of Rs.8,92,385/ and he cannot say without seeing the documents how much loan the accused has repaid. Further he deposed that he is not having any information for prior to issuing legal notice to the accused they have sent one notice to the accused in that notice they have mentioned that the accused is in due of Rs.3,94,000/. Further he deposed that including the interest they have collected the cheque for Rs.5,00,000/ from the accused. Further he deposed that he has not produced any documents to show that as on the date of the cheque the accused was in due of Rs.5,00,000/ towards repayment of the loan. Further he deposed that they have not issued any notice to the accused stating that he is still in due of Rs.5,00,000/ asked him to repay the said loan 11 C.C.No.10943/2022 SCCH 7 amount. He denied that accused is not having any due towards loan amount and accused has paid entire loan amount. Further he denied that after repaying balance loan amount of Rs.3,00,000/ the accused asked them to return the pledged documents pertaining to the property of the accused and without returning the documents they have misusing the cheque issued by the accused. Further he denied that the accused has paid more than ten times of the loan amount to them through online and the accused is not having any due amount. Further he denied that the accused has repaid the entire loan amount on 08.02.2019 thereafter they have kept quite for two years and thereafter on 29.11.2021 they have issued notice to the accused with an intention to get higher interest. He denied that accused has not received any notice. Further he denied that for repayment of the loan installments the accused has issued 12 C.C.No.10943/2022 SCCH 7 53 cheques out of which they have encashed 52 cheques. Further he denied that the accused has also repaid the loan amount through phonepay and bank payment and the accused is not having any due towards loan amount. Further he denied that even though the accused is due of Rs.3,94,914/ they have misusing the cheque issued by the accused and filled up for Rs.5,00,000/ and presented for collection. Further he admitted that in the notice dated 29.11.2021 they have mentioned that the accused is in due of Rs.4,88,459/. Further he also admitted that they have issued notice on 29.11.2021 and prior to one month of the said loan they have sent the cheque for collection. Further he denied that the accused is not due of Rs.5,00,000/. Further he admitted that in the notice dated 29.11.2021 including principal and interest they have mentioned that the accused is due of Rs.4,88,459/. Further he denied that 13 C.C.No.10943/2022 SCCH 7 as the accused is not at all in due of Rs.5,00,000/ inspite of it they have misutilizing the cheque issued for security and filed this case. Further he deposed that at the time of taking the loan the accused has given two address and they have issued the notice to one address. Further he deposed that notice issued as per Ex.P.4 is not served on the accused but the accused has not received the said notice. He denied that in the said notice they have intentionally mentioned the wrong address. Further he admitted that as per Ex.P.4 the accused address is Bangarpete, Kolar District. Further he admitted that in Ex.P.6 the delivery location is mentioned as Davanagere. Further he admitted that in Ex.P.6 it is mentioned that the notice is unclaimed and returned. Further he denied that the accused is not residing at Davanagere as such Ex.P.6 is not pertaining to the accused. Further he admitted that R.K. number is 14 C.C.No.10943/2022 SCCH 7 mentioned in Ex.P.5 and Ex.P.6 are different. He denied that they have intentionally issued the notice to the wrong address. He denied that the accused is not at all in due of the amount mentioned in Ex.P.2. He denied that only with an intention to cheat to the accused they have filed false complaint against the accused. Further the complainant got produced the Loan Application as per Ex.P.8, Loan Agreement as per Ex.P.9, Loan Account Extract as per Ex.P.10. He admitted that in Ex.P.9 no where it is mentioned that how much loan the accused has taken from them. Further he admitted that as per Ex.P.10 on 15.12.2020 the balance amount is shown as 3,94,916/. He denied that Ex.P.8 are filled up by them and only they have obtained the signature of the accused.
12. The accused got examined himself as DW.1 and in his examination in chief he deposed that he has obtained the 15 C.C.No.10943/2022 SCCH 7 loan of Rs.9,50,000/ in the year 2014 from the Complainant company by fillingup the application and for the security of the loan amount he has given his documents pertaining to his house, Adhar Card, PAN Card, Voters ID card and 12 blank cheques and those 12 blank cheques he has not put his signature and he has paid Rs.1,50,000/ to the complainant for last time in the month of February 2019 and thereafter the complainant company has asked him to pay balance amount and he has not paid to the complainant company and in the month of October 2021 he was in due of Rs.3,94,000/ and he has not received any notice from the complainant advocate and his permanent address is No.4335, Kuppaswamy Modaliyar Layout, Bangarapet and the said address he has not received any notice. Further deposed that in the month of November 2020 he has received one notice under SARFAESI Act and the said 16 C.C.No.10943/2022 SCCH 7 notice is marked as per Ex.D.1. Further he deposed that when his cheque was returned unpaid he has received intimation from his bank. The Bank Account Extract of the accused is marked as per Ex.D.2 and 15 receipts for payment of the loan amount is marked as per Ex.D.3 and he has lost some receipts. He has produced the copy of his and his wife the Adhar Card as per Ex.D.4 and Ex.d5 and he has not issued cheque marked as per Ex.P.2 on 04.10.2021 to the complainant for repayment of the loan and he was not at all due of Rs.5,00,000/ on 04.10.2021 to the complainant company and the address mentioned in Ex.P.4 is not his address and he has not given address mentioned in Ex.P.6 to the complainant company and now also the documents pertaining to his house are with the complainant and handwriting appearing in Ex.P.2 and signature are not pertaining to him and as he is not having 17 C.C.No.10943/2022 SCCH 7 any due towards complainant company and he prayed to dismiss the complaint.
13. In the crossexamination he denied that he is deposing falsely that notice issued by the counsel for the complainant company is not received by him. He deposed that he has obtained the loan for business purpose from the complainant company and at the time of obtaining the loan he was not knowing terms and conditions of the loan agreement. He admitted that the signature appearing in Ex.P.8 is his signature. He denied that after understanding the contents of Ex.P.8 he has put his signature. He admitted that cheque marked as per Ex.P.2 is his cheque but his signature is not his signature and there is difference in between signature appearing in Ex.P.2 and Ex.P.10 and he has issued 12 cheques to the complainant company and Rs.28,450/ was the loan 18 C.C.No.10943/2022 SCCH 7 installment. Further he deposed that every month he was not paying exact installment and at the end of February 2019 he has paid Rs.1,50,000/ to the complainant company. He denied that even after payment of Rs.1,50,000/ to the complainant company still he was in due of Rs.3,94,000/ to the complainant company. He denied that only to escape from the liability of paying cheque amount he is deposing falsely.
14. From the evidence of both parties it appears that the accused has contended that he has not taken any loan from the complainant company. In the crossexamination of PW.1 the accused contended that the complainant has not produced any documents to show that earlier Future Financial Service Ltd., was named as Deeksha Micro Finance and thereafter Fincare Small Finance Bank Ltd in this regard they have not produced any documents. But 19 C.C.No.10943/2022 SCCH 7 the accused has taken loan in Future Financial Services. This contention of the accused is not acceptable one because in the examination of chief of the accused himself has deposed that he has obtained loan of Rs.9,50,000/ from the complainant company. Hence it is clear that the accused has admitted that from the complainant company he has obtained loan of Rs.9,50,000/. Hence the contention of the accused is not acceptable one.
15. Further the accused contended that as per the cheque he was not at all due of Rs.5,00,000/ and not issued cheque for repayment of the legally enforcible debt. Further in the crossexamination of PW.1 he denied that even though the accused was in due of Rs.3,94,914/ they have fillingup the cheque of the accused for Rs.5,00,000/ and presented for collection. Further the PW.1 has admitted that in the notice dated 29.11.2021 they have stated that the accused 20 C.C.No.10943/2022 SCCH 7 still in due of Rs.4,88,459/. Further he also admitted that after to one month of issuing the cheque for collection the notice dated 29.11.2021 was issued. He admitted that as per the notice dated 29.11.2021 the accused in due of Rs.4,88,459/ including loan amount and interest. By perusing Ex.P.2 which is the cheque of the accused wherein the amount is mentioned as Rs.5,00,000/. The PW.1 in his crossexamination admitted that they have issued one notice to the accused on 29.11.2021 and the complainant has not produced the said notice but the accused has produced the said notice as per Ex.D.1 wherein by perusing the same it shows that in the notice dated 29.11.2021 the complainant has stated that the accused is still in due of Rs.4,88,459/. By perusing Ex.P.2 cheuqe wherein it goes to shows that the cheque is dated 04.10.2021, i.e., nearly prior to one month of the notice wherein the the amount 21 C.C.No.10943/2022 SCCH 7 mentioned at Rs.4,88,549/ it shows that even after the date of the cheque the complainant has contended that the accused is in due of Rs.4,88,459/ but the cheque for Rs.5,00,000/. Hence it is clear that the complainant is not knowing what is the amount due from the accused as on the date of the cheque. Further the complainant has produced the loan account statement of the accused as per Ex.P.10 wherein by perusing the same it goes to shows that the statement is pertaining from 11.06.2015 to 15.12.2020 wherein by perusing the same it goes to shows that on 15.12.2020 the accused is in due of Rs.3,94,916/ but nothing is forthcoming in Ex.P.10 that as on the date of the cheque the accused is in due of Rs.5,00,000/. Further the complainant has not produced any documents to show that as on the date of the chque the accused in due of Rs.5,00,000/ in order to discharge the loan amount accused 22 C.C.No.10943/2022 SCCH 7 has issued the cheque. Without their being any material evidence to show that as on the date of the cheque the accused was in due of Rs.5,00,000/ and in order to discharge the said liability the accused has issued the said cheque marked as per Ex.P.2 is not acceptable one. Hence it is clear that the complainant has not at all putforth any material evidence to show that as on the date of the cheque the accused was in due of Rs.5,00,000/ in order to discharge the said liability the accused has issued the cheque marked as per Ex.P.2.
16. As the Accused has seriously disputed that he has not issued the cheque for Rs.5,00,000/ as per Ex.P.2 for discharge of the balance debt. Then the burden is on the complainant to prove that as on the date of the cheque the accused was in due of Rs.5,00,000/ as on the date of the cheque. But no such acceptable evidence is putforth by the 23 C.C.No.10943/2022 SCCH 7 complainant. Hence the contention of the complainant that in order to discharge the loan the accused has issued the cheque of Rs.5,00,000/ is not acceptable.
17. Further from the evidence of PW.1 and DW.1 it is clear that the accused has contended that he has not at all received notice marked as per Ex.P.4. The Ex.P.4 is the legal notice issued by the complainant after dishonor of the cheque wherein the address of the accused is mentioned as No.335, Kupaswamy Layout, Bangarpet Town, Kolar District. The accused has admitted that he is residing in the very same address but he has not received legal notice. In order to show that they have sent legal notice by RPAD and same is served on the accused the complainant got marked postal receipt as per Ex.P.5 and Track Consignment issued by the Postmaster as per Ex.P.6. By perusing the Ex.P.5 it goes to shows that on 11.01.2022 the legal notice was dispatched to 24 C.C.No.10943/2022 SCCH 7 the accused by RPAD the RK Number in Ex.P.5 is shown as RK214640137IN but in Ex.P.6 which is the track consignment issued by the Postmaster wherein the R.K. number is mentioned as RK567149696IN. Hence it is clear that the RK number mentioned in Ex.P.5 and Ex.P.6 are entirely different and this fact is also admitted by the PW.1 in his crossexamination. Hence it is clear that Ex.P.6 not pertaining to the RK number 214640137IN which is not pertaning to the addressed of the accused. Further by perusing Ex.P.6 it shows that the said post under RK No.567149697IN is sent to the Davanagere and the said notice is returned unclaimed and unclaimed notice is returned to the complainant but the said tract consignment pertaining to the Davanagere address which is not the address of the accused and also the said track consignment does not pertaining to the RK number mentioned in Ex.P.5. 25 C.C.No.10943/2022
SCCH 7 in the complaint the complainant has stated that they sent legal notice to the accused by registered post and also through ordinary post. But the complainant has not produced any documentary evidence to show that the legal notice is also sent by ordinary post. Hence it is clear that the complainant is failed to prove that the legal notice marked as per Ex.P.4 is duly served on the accused and the accused is having knowledge of the return of the cheque. From the entire oral and documentary evidence adduced by the both parties it is clear that the complainant is failed to prove that as on the date of the cheque the accused was in due of Rs.5,00,000/ and in order to discharge the said liability the accused has issued the cheque marked as per Ex.P.2. Further the complainant has also failed to prove that the legal notice issued to the accused is served on the accused. Hence I am of the considered view that the 26 C.C.No.10943/2022 SCCH 7 accused has successfully rebutted the presumption available to the Complainant under Section 118 and 138 of NI Act. Now burden shifts to the complainant to prove that in order to discharge the legally enforcible debt the Accused has issued the cheque marked as per Ex.P.2 and after return of the said cheque the legal notice was issued by the complainant and the same was served on the accused and the accused was failed to pay the cheque amount. The accused has admitted that the cheque marked as per Ex.P2 is his cheque but the signature appearing in the cheque is not his signature. Further by perusing the bank memo marked as per Ex.P3 it is mentioned that drawers signature differs, hence it goes to show that the signature appearing on the cheque is not the signature of the accused. Further the accused contended that he is not in due of Rs.5,00,000/ as on the date of the cheque and the 27 C.C.No.10943/2022 SCCH 7 complainant is failed to prove that as on the date of the cheque the accused was in due of Rs.500,000/. Hence I am of the considered view that the complainant has failed to prove that in order to discharge the legally enforcible debt the accused has issued the cheque marked as per Ex.P.2. Hence, I answered the point No.1 in the Negative.
18. Point No.2: In view of above discussions made on the above point, I proceed to pass the following;
ORDER Acting U/Sec 255 (1) of Cr.P.C., the accused are acquitted for the offence punishable U/s 138 of N.I.Act.
The bail bonds and surety bonds are stands cancelled.
(Dictated to the Stenographer, typed by him, corrected and then, pronounced by me in the open Court on this, the 10.01.2024).
(Umesh S.Atnure) IX ASCJ & ACMM, Court of Small causes, Member MACT, Bengaluru.
28 C.C.No.10943/2022
SCCH 7 ANNEXURES LIST OF WITNESSES EXAMINED BY THE COMPLAINANT :
PW.1 : Sri.Raghavendra.B PW.2 : Sri. Sanjay Kumar.V.
LIST OF DOCUMENTS EXHIBITED BY COMPLAINANT :
Ex.P.1 : Power of Attorney Ex.P.2 : Cheque issued by the Accused Ex.P.2(a) : Signature of the Accused Ex.P.3 : Return Memo Ex.P.4 : Legal notice Ex.P.5 : Postal Receipt Ex.P.6 : Track consignment Ex.P.7 : Power of Attorney Ex.P.8 : Loan Application Ex.P.9 : Loan Agreement Ex.P.10 : Account Statement
LIST OF WITNESSES EXAMINED BY ACCUSED :
DW1 : Vasanth Kumar.V
29 C.C.No.10943/2022
SCCH 7
LIST OF DOCUMENTS EX230.HIBITED ON BEHALF OF ACCUSED :
Ex.D.1 : Notice Ex.D.2 : Bank Statement Ex.D.3 : Payment receipts Ex.D.4 : Adhar Card of V.Vasanth Kumar Ex.D.5 : Adhar Card of Nethravathi.K (Umesh S.Atnure) IX ASCJ & ACMM, Court of Small causes, Member MACT, Bengaluru.
UMESH Digitally signed
by UMESH S
S ATNURE
Date: 2024.01.11
ATNURE 17:47:04 +0530