Bangalore District Court
Smt. Nerella Srivani vs Sri. Palraj on 21 April, 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 21ST DAY OF APRIL, 2022.
C.C.No.54508/2018
COMPLAINANT : Smt. Nerella Srivani
Aged about 37 years,
Wife of late.N.Sreenivasalu,
R/at No.12, Manjunatha Layout,
1st Cross, Basavanapura Main Road,
Ayyappanagar, K.R.Puram,
Bangalore560036.
.Vs.
ACCUSED : Sri. Palraj
Proprietor
Aged about 45 years,
Sai Krupa Enterprises,
No.342, Pranathi Nilayam,
Near HDFC Bank,
Behind Keerthi Apartment,
Krishnappa Layout, Kadugodi, Belthur,
Bangalore67.
2
C.C.No.54508/2018
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.
The factual matrix of the case are as follows:
2. The complainant and accused are family friends known to each other from last 10 years, on this acquaintance, the accused allegedly approached her in the month of July 2014 for hand loan of Rs.15,00,000/, to meet the business and domestic necessary of the accused, considering the request of the accused is the family friend of her, she alleged paid a sum of Rs.15,00,000/, by way of cash to the accused, on it receipt, the accused promised her to repay it within three months. But the accused failed to pay hand loan amount with interest, even after completion of agreed period. However, he issued three cheques dated 20.09.2016, but on their presentation, the cheques dated 20.09.2016 were returned unpaid, same was brought to the notice of the accused, but the accused executed and hand loan agreement and ondemand promissory note in her favour on 27.10.2016 acknowledging his liability and issued 3 C.C.No.54508/2018 four post dated cheques ie., 1) cheque bearing No.209919 dated 10.01.2017, 2) cheque bearing No.213219 dated 10.04.2017, 3) cheque bearing No.213220 dated 10.07.2017, 4) cheque bearing No.213216 dated 10.10.2017 for sum of Rs.3,75,000/, each all are drawn on Srinidhi Sowhardy Cooperative Bank, Bommanahalli Branch in her favour with a promise that, the cheques would honored on her due dates.
3. Believing the assurance of the accused, she claims to have presented one of the cheque bearing No.213216 dated 10.10.2017 for encashment through her banker. But, it was returned unpaid for "Funds Insufficient" vide memo dated 11.10.2017, based on that, she alleged to have issued legal notice on 28.10.2017 calling upon the accused to pay the cheque amount, same was served on the accused on 31.10.2017 despite of service, the accused failed to pay the cheque amount and also replied to her notice. Accordingly, the complainant alleges that, the accused towards discharge of legally enforceable debt, I had issued the cheque for sum of Rs.3,75,000/, despite knowing that, there was no funds to honor the cheque and deliberately cheat her, accordingly she alleged that, 4 C.C.No.54508/2018 the accused has committed an o/p/u/s 138 of N.I Act. Hence prayed for conviction.
4. The cognizance for an o/p/u/s.138 of N.I.Act was taken based on the complaint, sworn statement affidavit and documents filed by the complainant and criminal case has been ordered to be registered against the accused for an o/p/u/s.138 of N.I. Act.
5. In pursuance of summons, the accused appeared through his advocate and he was on court bail on the same day substance of plea was recorded, accused pleaded not guilty and claims to be tried, as per his application, opportunity has been given to the accused for cross examination of P.W.1.
6. The complainant in order to prove her case got examined herself as P.W.1 and placed reliance on Ex.P1 to P.19. On closure of complaint side evidence the accused was examined U/s 313 Cr.P.C,. The accused denied incriminating materials on record and got examined himself as D.W.1 and relied upon Ex.D.1 to D3.
7. Heard both the sides and required to adopt their written argument, filed in C.C.No.57051/2017. The 5 C.C.No.54508/2018 counsel for the complainant relied upon decision reported in AIR 2010 SC 1898.
8. On the contrary the learned counsel for the accused relied upon 1) M/s Kumar Exports V/s M/s Sharma Carpets, 2) K.M.Beena V/s Muniyappa and others 3) Krishna Rao V/s Shankar Gowda.
9. Perused the materials on record, the following points arise 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?
10. My findings to the above points are follows;
Point No.1: In the Affirmative Point No.2: As per final order for forgoing;
REASONS
11. Point No.1: The complainant claims to have advanced total sum of Rs.15,00,000/ to the accused in the month of July 2014, towards discharge of the same, allegedly the accused had issued three cheques each for sum of Rs.5,00,000/ on 20.09.2016. However, the said 6 C.C.No.54508/2018 cheques were dishonored. Later on, the accused voluntarily approached the complainant and executed an hand loan agreement and on demand promissory note on 27.10.2016 acknowledging his liability and issued total four cheques bearing No.209919 dated 10.07.2017, 213219 dated 10.04.2017, 213220 dated 10.07.2017, 213216 dated 10.10.2017 for sum of Rs.3,75,000/ each, all were drawn on Srinidhi Sowhardy Cooperative Bank, Bommanahalli Branch, Bangalore, out of these cheques, the cheque bearing No.213216 dated 10.10.2017 is the subject matter of this case and other cheques are subject matter of connected cases 57052/2017, 54513/2018, 57051/2017. On it presentation, the cheque was returned unpaid for "Funds Insufficient" despite service of notice the accused failed to pay the cheque amount, hence this complaint.
12. Per contra, the accused denied the existence of legally enforceable debt, even the accused denied the financial tractions what so ever with the complainant at any point of time and also service of legal notice, as well as the issuance of cheque in question and other cheques which are subject matter of connected cases and 7 C.C.No.54508/2018 specifically contended that, he had subscribed three chits run by the father of the complainant, by that time, the father of the complainant had obtained his signed three blank cheques which were allegedly misused by the complainant, later on, on 27.10.2016 based on the false complaint of the complainant the Kadugodi police had detained him and forcibly obtained his signed blank cheques, signed stamp papers and signatures on white papers by posing threat that, false rape cases will be foisted against him, in case, he refused to issue cheques in favour of the complainant, accordingly, he denies the execution of hand loan agreement, loan transaction as well as issuance of cheque in question towards discharge of legally enforceable debt. Accordingly, claims to be an innocent.
13. So, considering the rival contentions, it is clear that the accused specifically denied the existence of legally enforceable debt, as well as issuance of cheque in question towards discharge of legally enforceable debt and service of demand notice. Therefore, it is burden on the complainant to prove the existence of legally enforceable debt as well as cheque in question towards 8 C.C.No.54508/2018 discharge of legally enforceable debt and compliance of section 138A to C of NI.Act.
14. Firstly so far as, service of demand notice is concern, the complainant stated that, on 28.10.2017 within month from the date of dishonor of the cheque, he claims to have caused legal notice to the accused and it was served upon the accused on 31.10.2017 as per Ex.P.5 & P.6. However, the accused denied the service of legal notice, accordingly, he could not able to issue reply notice, but during the course of cross examination, the complainant elicited from accused that, the accused is residing in door No.342, Krishnappa layout, Belathuru, Kadugodi Post, further it is elicited that, " It is true to suggest that, the door number, layout number, Area ie., door No.342, situated at Krishnappa layout, Kadugodi Belathuru, is my correct address as shown in cause title and also it true to suggest that, the house door number, layout name, house name, area name that ie., Kadugodi, Belathuru as shown in Ex.P.5 ie., postal receipt is correct".
9C.C.No.54508/2018
15. So, on this admission the accused does not disputes the door number, the are a number, name and father name of the accused. On such being the case, the complainant has proved that, she has correctly addressed the demand notice as per Ex.P.3 and item sent to the address mentioned in the cause title was delivered as per postal track consignment. So, once it is properly addressed, it has to be presumed that, as per section 27 of General Clauses Act, the notice was duly served upon the accused unless contrary is proved.
16. On the contrary, though the accused disputed the service of legal notice, but failed to brought out any materials to disprove the service of legal notice, that the address shown in the cause title is wrong and it was improperly addressed, in absence of that, as held supra, the accused admits the address shown in the cause title is correct address, moreover the summons was issued to very same address it was served upon the accused, the accused voluntarily appeared through his counsel on 18.07.2018 in pursuance of summons issued to the very same address, so the summons as well as legal notice was properly addressed to the accused known address.
10C.C.No.54508/2018 Therefore, it deems that, the legal notice sent by complainant was duly served upon the accused, accordingly, the non service of legal notice without any contrary materials brought out by the accused cannot be sustainable, accordingly, the contention of non service is not tenable. Hence, the complainant has proved the compliance of section 138A to C.
17. So far as, existence of legally enforceable debt and issuance of cheque in question, the complainant specifically stated on oath that, she advanced sum of Rs.15,00,000/ by cash in the month of July 2014 as the accused is her family friend, towards discharge of the same, initially the accused had issued three cheques in her favour on 20.09.2016 which were came to be dishonored for "Funds Insufficient" same was brought to the notice of the accused through legal notice, upon service of notice the accused approached her and promised to settle the matter and issued four cheques for sum of Rs.3,75,000/ each by executing hand loan agreement and also on demand promissory note in her favour. Accordingly, she presented one of the cheques out of four cheques ie., Ex.P.1, but, it was came to be 11 C.C.No.54508/2018 dishonored, despite service of notice, the accused failed to pay the cheque amount.
18. The accused subjected the P.W.1 for cross examination, wherein he specifically denied the financial traction with the complainant allegedly held in the year 2014 and also issuance of Ex.P.1 cheque in her favour. However, the entire cross examination and also in his evidence, the accused does not dispute the Ex.P.1 cheque pertains to his account and signature found on Ex.P.1 ie., Ex.P.1(a) is of him. So, when there is no dispute with regard to cheque in question pertains to the account of the accused and signature found there on the complainant has undoubtedly proved that, the Ex.P.1 and P.1(a) belonging to the accused. So, once it is proved by the complainant as rightly argued by the counsel for the complainant the initial presumption shall be drawn in favour of the complainant that, Ex.P.1 cheque has been issued by the accused towards discharge of partial liability or debt in favour of the complainant until and unless contrary is proved. At this stage, it is worth to note the decision of Hon'ble Apex Court i.e., Rangappa V/s Mohan has held that;
12C.C.No.54508/2018 "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."
19. Accordingly, the initial presumption has been drawn in favour of the complainant that, the accused has issued Ex.P.1 cheque towards discharge of partial liability of Rs.3,75,000/ in favour of the complainant. Therefore, the onus is on the accused to rebut the presumption as rightly argued by the counsel for the accused by the relied upon the recent decision of APS Products Services Pvt., Ltd., V/s Shakthi International Fashion, Rangappa V/s Mohan Basavalingappa V/s Mudibasappa, Beena V/s Muniyappa, Kumar Exports V/s Sharma Corporates that, the presumption envisaged U/s 118 and 139 of NI.Act, is 13 C.C.No.54508/2018 rebuttable presumption and standard of proof for rebutting the presumption is preponderance of probabilities but not strict proof or beyond reasonable doubt. Therefore, at this stage, it is worth to note the decision of Hon'ble Apex Court the requirement for the accused to rebut the presumption ie., Sumethi Viz Vs. M/s. Paramount Tech. Fab. Industries, held that, " 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".
20. Before examining the materials on record, it is worth to note the arguments of both the sides, the counsel for the accused by relying upon the decision of APS Forex Case argued that, the complainant has failed to establish her financial capacity, therefore, in view of the said decision she bound to prove, the documents relied by the 14 C.C.No.54508/2018 complainant ie., Ex.P.10 to 18 does not discloses the complainant had Rs.15,00,000/. Therefore, the documents relied by the complainant does not prove the cash held by the complainant, further, so far as execution of hand loan agreement is concern during the course of cross examination P.W.1 admits that, based on her complaint, a criminal case was registered against the accused on 14.10.2016, which clearly strengthens the defence of the accused that, there was no cordial terms with the parties soon after registration of criminal case, therefore the question of execution of hand loan on 27.10.2016 voluntarily by the accused is highly doubtful in nature, accordingly it is concocted document, further, there is a contradiction with respect to advancement of loan ie., the complainant claims to have advanced Rs.15,00,000/. But, whereas in hand loan agreement as well as on demand promissory note, the amount claimed by the complainant is Rs.16,00,000/, for that there is no explanation from the side of the complainant, therefore, all these documents are concocted and he proved his defence that, as per Ex.D.1 and D.2 based on the complaint of the complainant, the Kadugodi police had detained him and forcibly obtained his signature on the 15 C.C.No.54508/2018 cheques as well as stamp papers, thereafter, the complainant has manipulated documents and filed this false claim. Accordingly, he urges that, the accused has rebutted the presumption drawn in favour of the complainant as per section 139 of NI.Act.
21. On the other hand, the counsel for the complainant argued that, despite service of legal notice, the accused has not replied to notice of complaint, therefore without setting out his defence in reply notice, the accused for the first time denied the financial capacity of the complainant. However, the complainant in order to prove capacity placed reliance on Ex.P.10 to 18, the source that he had received compensation amount from insurance company as per the order of Hon'ble MACT, sale deed, pensionery benefit paid by her father, besides that, despite the accused alleged that, the Ex.P.7 hand loan agreement and cheques were illegally obtained by the complainant in the kadugodi Police station, admittedly the accused has not taken any legal action either against complainant or against police officials. Further, the Ex.D.1 and D.2 registered on15.10.2016 he claimed that, on 27.10.2016, the accused was detained by the Kadugodi 16 C.C.No.54508/2018 police, but, nothing has produced to show about detention, if at all, his detention was true the question of releasing of him in a non bailable offence ie., an offence punishable U/s 323, 354, 420, 504, 506 of IPC., doesn't arise. Accordingly, the defence of the accused is after thought and signature of the accused found on each page of the Ex.P.7, therefore, it is not obtained illegally, further to prove the defence that, the custody of the cheque with the father of the complainant, the accused not produced any documents, accordingly, the contentions of the accused cannot be believable for rebutting the presumption. Hence, prayed to convict the accused.
22. So, considering the rival contentions of the parties, firstly with regard to financial capacity, the accused specifically cross examined the P.W.1 about her financial capacity, as held supra, the legal notice was duly served upon the accused, despite of it, admittedly the accused not replied to notice. However, during the course of cross examination, he questioned the financial sources and posed several question, how the complainant accumulated sum of Rs.15,00,000/. But, P.W.1 categorically stated, she had received compensation amount of Rs.9,13,000/, 17 C.C.No.54508/2018 sale consideration amount as well as retirement benefits from her father, however, the accused initially denied the receipt of compensation amount by the complainant in MVC No.70226/2007. However, the P.W.1 subsequently produced Ex.P.10 to P.18, on careful perusal Ex.P.10 to P.12, it clearly discloses the Hon'ble MACT has awarded the complainant sum of Rs.8,13,000/ with interest at the rate of 6% on 10.03.2008, later on, it was enhanced to Rs.9,15,000/, with interest at the rate of 6%. So, as per this Ex.P.10 and P.12, the compensation award passed in favour of the complainant, so it corroborates the case of the complainant that, she had received compensation amount from insurance company in view of death of her husband in road trafficking accident.
23. That apart, the complainant also produced certified copy of sale deed Ex.P.15, which further discloses on 05.02.2010, the complainant has sold a site property to one Selvamani and received sale consideration amount Rs.1,21,000/. So, on these documents clearly discloses that, the complainant had received compensation amount as well as sale consideration amount. However, the learned counsel for the accused argued by referring the 18 C.C.No.54508/2018 passbooks Ex.P.13 & P.14, argued that, there was no sufficient balance in her account and there is no reference about withdrawal of an amount of Rs.15,00,000/, to show that, she withdrew and paid to the accused. Further, the award amount and sale consideration is also not sufficient to advance Rs.15,00,000/, as the total amount from both the sources, if adding together is less than Rs.10,00,000/, therefore, the complainant had no financial capacity to advance the amount claimed to the accused.
24. But, on careful perusal of Ex.P.10 to 15 and 18, though, the bank balance of the complainant as on the date of advancement of loan ie., in the month of July 2014 was not more than Rs.15,00,000/, but, as per Ex.P.10 and P.12 the complainant has established that, she received Rs.9,00,000/, through compensation from insurance company towards death of her husband in road trafficking accident, as well as Ex.P.15 saledeed she received Rs.1,21,000/ from the purchaser, though in Ex.P.15, the sale consideration has shown as Rs.1,21,000/, the actual sale consideration as per the complaint was Rs.6,00,000/, so in an undisputed point of 19 C.C.No.54508/2018 time, the complainant had received money through sale of her property as well as through court award. Which clearly establishes fact that, she had sources to advance sum of Rs.15,00,000/, that apart, she also produced Ex.P.18 the pension account pertains to her father who is looking after his daughter ie., complainant, for that, the P.W.2 also deposed that, he has given his retirement benefits to his daughter, the accused though cross examined the P.W.2, but nothing has elicited from the P.W.2 that, P.W.2 is not a pension holder and he did not give any amount to his daughter. Therefore, in absence of that, the complainant has established her financial sources ie., through compensation, award, sale deed as well as pensional benefits of her father during the year 2014.
25. Though the accused cross examined in length by denying the financial capacity, but failed to establish that, P.W.1 did not receive award amount, sale consideration, as well as amount from the complainant father. In absence of that, the accused failed to brought out any contrary materials that, the complainant herself indebt to the others and did not have financial capacity to lend an 20 C.C.No.54508/2018 amount of Rs.15,00,000/ in the year 2014. So, in absence of that, the evidence produced by the complainant is cogent and accordingly her financial incapacity cannot be doubted.
26. Further, the accused specifically contended that, he had subscribed three chits run by the P.W.2 ie., father of the complainant for that, he had issued three signed blank cheques that has been misused by the complainant and her father P.W.2, besides that, on 27.10.2016, by force, the complainant had collected Ex.P.1 and other three cheques which are subject matter of connected cases in the kadugodi police station by posing threat that, a rape case would be filed against him. So, it is burden on the accused to prove the custody of the three signed blank cheques with P.W.2 and alleged obtaining his signature forcibly on blank stamp paper cheques by the police in Kadugodi police station on 27.10.2016. The accused suggested, the issuance of three signed blank cheques to the P.W.2 in the year 2015 and also he claimed that, he had subscribed three chits with P.W.2. But, same has been denied by the P.W.2 ie., about running of chit as well as the accused was one of his subscribers. Despite 21 C.C.No.54508/2018 denial by the complainant, as well as P.W.2 not produced any materials to shown that, he had subscribed the chit run by the P.W.2 and issuance of three signed blank cheques which were presented by the complainant. So, in absence of that, the defence of the accused about issuance of three cheques, to P.W.2 cannot be acceptable. Further, so far as, custody of cheques by the P.W.2 since 2015 admittedly the accused has not taken any action neither against complainant nor against P.W.2. In absence of that, the defence of the accused that, he issued Ex.P.21 to P.23 (marked in C.C.No.57051/2017) to P.W.2 for security to chit cannot be acceptable. Further, during the course of cross examination, the complainant has elicited that, his banker used to intimate about presentation of his cheques through SMS some times, if it is so, what steps he has taken soon after presentation of Ex.P.21 to P.23 by the complainant for that, no explanation from the side of the accused. Therefore, the issuance of Ex.P.21 to P.23 by the accused to P.W.2 in the year 2015 cannot be acceptable.
27. Further, the accused contended that, on 27.10.2016 based on the complaint of complainant the Kadugodi police had detained him and forcefully taken his four 22 C.C.No.54508/2018 signed blank cheques and signature on stamp papers as well as ondemand promissory note etc., is concern, except his oral say the accused has not produced anything to show that, he was detained by Kadugodi police on 27.10.2016 and also his signatures on Ex.P.7 to P.9 and signatures blank cheques were obtained by the police forcibly based on the complaint of complainant.
28. Further, it is significant to note that, admittedly, the P.W.1 has lodged a complaint as per Ex.D1 and D2 on 15.10.2016, the accused contended that, he was detained by the Kadugodi police on 27.10.2016. But, no Iota evidence is produced to prove his detentation that, later on, whether, he was arrested or he was produced before the learned Magistrate or not. Since Ex.D.1 and D2 clearly discloses that, the charges levelled against the accused U/s 323, 354, 420 of IPC, which were non bailable in nature, as rightly argued by the counsel for the complainant, if at all the defence of the accused was true that, he was detained by the Kadugodi police, there must be a record to alleged detention of the accused by Kadugodi police, as the alleged offences are non bailable in nature, but except allegation no documents produced 23 C.C.No.54508/2018 before the court by the accused to show that, he was detained by the police on 27.10.2016, therefore, in absence of the documentary evidence, alleged detention cannot be acceptable as the Kadugodi police station is a public authority should have been maintained record for his detention as well as investigation carried out on 27.10.2016, in pursuance of complaint lodged by the complainant, but nothing has produced by the accused, in absence of that, the alleged detention by Kadugodi police on 27.10.2016 cannot be acceptable.
29. Further, the learned counsel for the accused by referring to Ex.D1 and D2 vehemently argued that, an FIR was registered against the accused as per Ex.D.1 based on the complaint lodged by the complainant on 15.10.2016. Therefore, the relationship between the complainant and accused was not cordial as such the question of execution of Ex.P.7 to P.9 on 27.10.2016 is highly doubtful, accordingly which strengthens the defence of the accused that, the Ex.P.7 to P.9, are concocted and Ex.P.1 obtained forcibly by the complainant through Kadugodi police is concern. As per Ex.D.1 and D.2, admittedly, the complainant lodged complaint to the police on 24 C.C.No.54508/2018 15.10.2016. In pursuance of it ie., criminal case was registered against the accused.
30. Subsequently, the complainant alleged that, the Ex.P.7 the loan agreement executed by the accused in her favour and issued Ex.P.1. However, the accused except his allegation nothing has brought out on record that, he was detained by the Kadugodi police on 27.10.2016 that he was arrested. But, based upon the stray admission, the accused arrested that, P.W.1 about his arrest to that effect, which is not fatal to the case of the complainant, because the very suggestion of the accused that, he was arrested by the Kadugodi police on 27.10.2016, the word arrest suggested by the accused is a legal term is that, has to be made by following law. But, as held supra the accused nothing has produced that, he was present on 27.10.2016 at Kadugodi police station and he was detained by the police, in absence of documentary evidence, the stray admission of the complainant is not fatal to the case of the complainant and it cannot be construed that, the accused was detained by the Kadugodi police as such the said stray admission doesn't 25 C.C.No.54508/2018 helpful to the defence of the accused that he was detained by the police and illegally obtained his cheques.
31. So, in absence of proof about arrest or detention by the accused on 27.10.2016 the alleged concoction of Ex.P.7 to P.9 cannot be acceptable, because on careful perusal of Ex.P.7 to P.9, the signatures of the accused found on each page, even, near the place of the correction made in the page No.5 of the Ex.P.7, which is admittedly belongs to the accused. However, the accused contended that, it was obtained forcibly by posing threat by the Kadugodi police that rape case would be filed against him, but, except his suggestion nothing has brought on record to show that, the police have forcefully obtained his signature on Ex.P.7 to P.9 and cheques. Further, the accused till date no action has been taken either against complainant or Kadugodi police for allegedly obtaining his signatures on stamp papers, so in absence of proof about the forcible, illegal action of police, the defence of the accused cannot be acceptable, because no prudent man would keep mum even after knowing his cheques forcibly obtained by the police and handed over to the complainant and also signature on stamp paper as well as 26 C.C.No.54508/2018 ondemand promissory note, so, inaction of the accused certainly raises doubt about his defence, accordingly, it is nothing but an after thought hence cannot be acceptable without any proof to that effect. Accordingly, the execution of Ex.P.7 to P.9 by the accused for dishonoring of earlier cheques Ex.P.21 to P.23 cannot be ruled out merely because registration of FIR. As per Ex.D.1 on 15.10.2016, as it is admittedly, the complainant and accused are hails from Andhra Pradesh from same village they known to each other from long time, as such settlement between them subsequent to Ex.D.1 cannot be ruled out. As such, in absence of proof about forcibly obtaining signatures and issuance of signed blank cheques, the defence of the accused that the complainant and accused were not in good terms, accordingly, question of executing and hand loan was not probable cannot be acceptable.
32. As such, in view of admission of the accused that the signature found on each page of Ex.P.7 to P.9, the case of the complaint has to be accepted that, the accused had executed hand loan agreement by acknowledging the debt of Rs.16,00,000/ and issuance of Ex.P.1 and other three 27 C.C.No.54508/2018 cheques for total sum of Rs.16,00,000/ cannot be doubted. As such, the defence of the accused is not sustainable and tenable.
33. Considering the entire materials on record, the accused has taken multiple defences that, the Ex.P.21 to P.23 are misused by the complainant, which were issued to P.W.2 for chit, however, the accused failed to prove that, P.W.2 was running chits in that, he had subscribed three cheques for that, he had issued Ex.P.21 to P.23 for that, there is no explanation and failed to brought out cogent evidence to prove the custody of Ex.P.21 to P.23 with the complainant father P.W.2 since 2015. In absence of that, the issuance of Ex.P.21 to P.23 cheques for chits cannot acceptable.
34. Further, the accused also taken defence that, the Ex.P.1 and other three cheques which are subject matter of connected cases were forcibly obtained by the complainant in the Kadugodi police station or her complaint as per Ex.P.1 is concern, first of all the accused failed to establish, the alleged detention by the Kadugodi police on 27.10.2016, in absence of that, the alleged obtaining his signature on stamp papers and also cheques 28 C.C.No.54508/2018 cannot be acceptable, because soon after, the alleged incident happened admittedly till date, the accused has not taken any legal action against the police or against the complainant for alleged illegally obtained his signatures on stamp paper.
35. In absence of that, the execution of hand loan agreement towards receipt of acknowledging the debt of Rs.15,00,000/, borrowed in the year July 2014, with additional payment of Rs.1,00,000/, ie., total sum of Rs.16,00,000/, cannot be doubted. Since the accused admitted that, he has no sufficient balance as on the date of presentation of cheques in question and even after, the alleged forcibly obtained cheques by the complainant, he has not admittedly taken any action either to stop payment or against the complainant, so no prudent man would keep mum without taking any legal action, even after his cheques, signature blank stamp paper, and signature on ondemand promissory note obtained by the complainant.
36. Further, the accused admittedly was doing cheque commission business aware of consequences of issuance of signed blank cheques and signing on stamp paper as 29 C.C.No.54508/2018 well as blank ondemand promissory notes, so inaction of the accused clearly stands proves that, the defence of the accused is nothing but an after thought, as he even failed to reply to the notice soon after receipt of legal notice for demand of Rs.16,00,000/, by the complainant, as such, the defence of the accused not tenable and failed to brought out, the probable materials to disbelieve that, legally enforceable debt was not in existence and cheque in question was not issued towards discharge of legally enforceable debt, accordingly, the accused failed to brought out probable materials to dislodge the presumption drawn in favour of the complainant, on failure to prove the defence, the case of the complainant has to be accepted, as the complainant has produced not only cheque which got presumtory value, she also produced hand loan agreement as well as promissory note to corroborate, the financial transaction held in between her and the accused.
37. So, considering the entire documentary and oral evidence, the complainant has established the existence of legally enforceable debt and issuance of cheque in question towards partial discharge of legally enforceable 30 C.C.No.54508/2018 debt on 27.10.2016 by acknowledging his debt as per Ex.P.7. Accordingly, the accused is found guilty for the offence punishable u/Sc. 138 of N.I. Act.
38. So, far as sentence and compensation is concern, it is well settled law that an offence punishable u/Sec.138 of N.I. Act is primarily compensatory in nature, Punitive is secondary. As per Ex.P.7 the accused agreed to pay total Rs.16,00,000/, towards loan of Rs.15,00,000/ borrowed in the year July 2014, well within three years ie., Ex.P.7 is nothing but an AOD., so, the claim made by the complainant within time and the complainant does not claimed any interest or it is not a case that, she has advanced amount for an interest, therefore considering the nature of transactions duration of pendency, I am of the opinion that, if the fine of Rs.4,25,000/ is imposed that would meet the interest of justice accordingly, the accused is hereby sentenced to pay a fine of Rs.4,25,000/ out of that the complainant is entitled for sum of Rs.4,20,000/, 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 31 C.C.No.54508/2018 of 6 months. Accordingly, I answered the above point in "Affirmative".
39. 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.4,25,000/ (Rupees Four Lakh Twenty 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 the provision u/Sec.357(1) of Cr.P.C., the complainant is entitled for Rs.4,20,000 /. The bail bonds and 32 C.C.No.54508/2018 surety bond of the accused shall stand cancelled.
Office is directed to furnish a free copy of the judgment to the accused.
(Dictated to the Stenographer transcribed and typed by her, corrected, signed and then pronounced by me in the open court, on this the 21st day of April, 2022) (M.Vijay), XXIII ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Smt. Nerella SriVani P.W.2 : Sri. Pinni Radhakrishna Murthy
2. Documents marked on behalf of complainant:
Ex.P.1 : Original cheque
Ex.P.1(a) : Signature of the accused
Ex.P.2 : Bank return memo
Ex.P.3 : Office copy of Legal notice
Ex.P.4 : 2 Postal receipts
Ex.P.5 & 6 : Postal track
Ex.P.7 : Certified copy of the loan agreement
Ex.P.8 : Certified copy of the on demand
promissory note
Ex.P.9 : Consideration receipt
Ex.P.10 : Certified copy of the judgment in MVC
33
C.C.No.54508/2018
No.7226/2007
Ex.P.11 : Certified copy of the award in MVC
No.7226/2007
Ex.P.12 : Certified copy of the judgment passed in
MFA No.7241/2008
Ex.P.13 & 14 : Copy of Bank pass books
Ex.P.15 : Certified copy of the sale deed dated
05.02.2010
Ex.P.16 : Certified copy of the complaint in
complaint No.1215/2008
Ex.P.17 & 18 : Bank statement
Ex.P.19 : Visiting card
3. Witnesses examined on behalf of Accused:
D.W.1 : Sri. Palraj
4. Documents marked on behalf of Accused:
Ex.D.1 & 2 : Copy of FIR
Ex.D.3 : Copy of C.C.No.5322/2017 on the file
of ACJM Court
(M.Vijay),
XXXIII ACMM, BENGALURU.