Bangalore District Court
Adarsh.C.P vs Diwakar.V on 1 December, 2020
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 1st day of December - 2020
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.26415/2018
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Adarsh.C.P,
S/o.C.E.Chinnappa,
Aged about 27 years,
R/at Ramajyohtinagar,
R.V.College Post, Mysore Road,
Bengaluru-59.
(Rep. by Sri.Ramanatha.B.S, Adv.)
V/S
Accused : Diwakar.V,
S/o.Venkatesh Reddy.K,
Aged about 22 years,
R/at. No.353, 9th Cross,
Shastry Nagar, near Balambika Temple,
Bengaluru-28.
(Rep.by Sri.R.Ravi Prakash, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Convicted.
DATE OF ORDER : 01.12.2020.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.No.26415/2018
JUDGMENT
The complainant has presented the instant complaint against the accused on 23.08.2018 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheques of Rs.2 lakhs.
2. In precise, the facts of the complainant case is:
The complainant has submitted that, the accused was working as Managing Partner at M/s.Vagmines Outsourcing and Consultancy Pvt. Ltd., (referred to in short Vagmines) having office at No.1y, 1st Floor, Iyengars Tower, 4th Phase, 7th Block, 6th Main, 100 feet Ring Road, 3rd Stage, Banashankari, Bengaluru- 85, [hereinafter referred as company]. Wherein, the company of the accused have functioning as "Placement and Training"
institution.
The complainant has averred that, the accused company has given a public notification calling for employment for fresher. The complainant being a MCA Degree holder and contacted the accused at his office in the address made mentioned above on 01.06.2018. The accused had explained the complainant that, complainant has procured minimum required qualification to be placed in an MNC's and further the accused has informed that, Judgment 3 C.C.No.26415/2018 the complainant has to posses few more additional skills as the requirement of MNC's.
The complainant has further submitted that, the accused company offered to the complainant that, the skills that were required to be acquainted with to work in an MNC's will be given to the complainant through a training program and for the said training and placement program, the complainant had charged of Rs.2 lakhs. The complainant accepted the offer made by the accused and paid Rs.2 lakhs in hand on 06.06.2018 to the accused.
The complainant has further alleged that, upon receipt of the said amount, the accused did not conduct any training nor did the accused made any proper communication with the complainant. Though, the complainant repeatedly tried to reach the accused in order to know about his training and other developments, the accused kept on postponing the same for one or other reasons best known to him.
The complainant has further contended that, the accused unable to conduct the training program as agreed by the accused. Hence, the accused promised to return the aforesaid amount of Rs.2 lakhs to the complainant, which he had paid to the accused Judgment 4 C.C.No.26415/2018 on 06.06.2018. In pursuance of the same, the accused had issued 2 cheques for sum of Rs.1 lakh each bearing Nos.259136 and 259137 respectively towards the repayment to the complainant.
The complainant has further alleged that, on the instructions of the accused, the complainant has been deposited the aforesaid 2 cheques to his banker for collection, but the same as per bank endorsement dated:16.07.2018, came to be dishonoured by stating the reasons that, cheque bearing No.259137 got dishonoured because of "Funds Insufficient" and another cheque bearing No.259136 came to be dishonoured for the reasons "Alteration/Corrections on Instruments". Immediately, the complainant had brought the said fact to the notice of accused, but he could not able to contact over phone nor personally and he had avoided the telephone calls of the complainant as well as personal meet. Under the above circumstances, the conduct of the accused, in instruct to present the cheques in question on issuance of clear of the amount, he knowingfully well that, the cheques are going to the dishonoured got issued the same. Therefore, for demand to pay the amount covered under the cheques, the complainant got issued legal notice to the accused on 29.07.2018 and the same were posted on 03.08.2018 and the Judgment 5 C.C.No.26415/2018 same came to be served on accused on 07.08.2018. Despite that, the complainant has not paid the amount covered under the cheques nor issued any reply. Thereby, he committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
3. After receipt of the private complaint, this court took the cognizance and got registered the PCR and recorded the sworn statement. Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process.
4. In response to the summons, the accused appeared through his counsel and obtained bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to him, wherein, he denied the same and claimed to have the defence.
5. To prove the case of the complainant, he himself choosen to examined as PW.1 and got marked Exs.P1 to P8(a). The PW.1 was subjected for cross-examination by the advocate for the accused.
6. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the Judgment 6 C.C.No.26415/2018 accused denied the same and answer given by him was recorded. In support of the defence, the accused himself was examined as DW.1 and got marked Exs.D1 to D8 and also subjected for cross- examination by the advocate for the complainant.
7. Both side counsels have submitted their detailed written arguments, apart from adduced oral arguments.
8. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:
1) Whether the complainant proves beyond the reasonable doubt that, the amount covered under the Exs.P1 and P2 - cheques is the existence of legally enforceable debt payable by the accused?
2) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
9. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Affirmative Point No.2 : In the Affirmative Point No.3 : As per final order, for the following:
Judgment 7 C.C.No.26415/2018
REASONS
-: UNDISPUTED FACTS:-
10. The fact that, the knowingness of the complainant and accused each other through the accused concern by name M/s.Vagmines Outsourcing and Consultancy Pvt. Ltd., is not in dispute. The fact that, on account of the complainant secured the MCA Decree for want of job had approached the accused concern on 01.06.2018 is not in dispute. The fact that, the said M/s.Vagmines Outsourcing and Consultancy Pvt. Ltd., used to provide placement and training program in the said institution is not in dispute. The fact that, the complainant for the purpose of secure job got paid sum of Rs.2 lakhs to the working institution of the accused as he admitted in his affidavit evidence is not in dispute. The fact that, either the accused or his institution not provided the assured job to the complainant nor provided additional training or placement program to the complainant is not in dispute.
The fact that, the accused was working in M/s.Vagmines Outsourcing and Consultancy Pvt. Ltd., as Managing Partner is not in dispute. The fact that, the complainant had attended the interview conducted by the H.R.Team leader Koushik is not in Judgment 8 C.C.No.26415/2018 dispute. The fact that, further the accused also conducted interview to the complainant on 2nd time is not in dispute. Thereafter, the complainant has not pointed out to his work is not in dispute. The fact that, while the accused was conducted the 2nd interview and he was selected the accused for further stages is not in dispute.
The fact that, the questioned cheques at Exs.P1 and P2 are belongs to the accused is not in dispute. The fact that, Ex.P1- cheque came to be dishonoured for the reasons 'funds insufficient' and Ex.P2 cheque came to be dishonored for the reasons 'alteration/correction on instruments' as per the banker slips at Exs.P3 and P4 are not in dispute.
The fact that, as per Ex.D1 the FIR attached complaint at Ex.D2 submitted by Mr.Nidhinraj.K and Kirankumar.K by representing M/s.Tech Park recruiters against Lokesh and Sravanthi Lokesh being directors of M/s. Vagmines Outsourcing and Consultancy Pvt. Ltd., is not in dispute. Based on the said complaint as per Ex.D4 the jurisdictional police got registered the case in Cr.No.216/2018 for the offence punishable under Section 420 r/w Section 34 of IPC and got arrested Lokesh and produced Judgment 9 C.C.No.26415/2018 before the jurisdictional court as found in Ex.D4 is not in dispute. Wherein, the accused No.1 got enlarged on bail is not in dispute.
The fact that, the Ex.D5 is the bank statement of the accused held in Axis Bank is not in dispute. The fact that, as per Ex.D6 identity card, the accused was working as Manager in Vagmines is not in dispute. The fact that, as found in Exs.D7 and D8 the accused was monthly salaried employee in Vagmines is not in dispute.
11. POINT NOs.1 and 2: Since both the points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
The PW.1 to prove his case choosen to examined himself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P8, they are:
a) Exs.P1 and P2 are the cheques bearing Nos.259137 and 259136 issued by the accused for sum of Rs.1 lakh each dated:09.07.2018, drawn on Axis Bank Ltd., Jayanagar, Bengaluru.
b) Exs.P1(a) and P2(a) are the alleged signatures of accused.
c) Exs.P3 and P4 are the Bank Memos
dated:16.07.2018.
d) Ex.P5 is the Legal Notice dated:29.07.2018.
e) Ex.P6 is the Postal receipt.
Judgment 10 C.C.No.26415/2018
f) Ex.P7 is the track consignment.
g) Ex.P8 is the private complaint.
h) Ex.P8(a) is the signature of complainant.
12. The PW.1 was subjected to the cross-examination by the advocate for the accused. In support of his case the complainant through his counsel has produced the citations and relied upon same, they are;
a) 2008 (7) SCC 655
b) 2014(5) KCCR 472
c) 2014(5) KCCR 680
d) 2013 (3) KCCR 2223
13. After detailed cross-examination done by the advocate for accused to the PW.1, the complainant got closed his side. Thereafter, whatever the incriminating evidence made against the accused was read over and explained to him as required under Section 313 of Cr.P.C., wherein, he denied the same and gave his statement that:
"ಪರರದ ಸಸಳಸ ಳ ಪಪಕರಣ ದಖಲಸದರ. ರರರ 2 ಲಕ ಪವತ ಮಡಸವ ಬಗಗ 2 ಚಕಸ ನ ನನಡಲಲ. ನಪ-1 ಮತಸತ 2 ಚಕಸ ಕ ಗಳನಸ ಕ ಗಳಸ ನನನದನ, ಆದರ ಅದರಲರಸವ ಸಹ ನನನದಲಲ. ನನಸ ಆಫನಸನಲ ಇಲಲದದಗ, ಪರರದ ಹಚ.ಆರ.ಕಕಬನ ಗ ಬಬದಸ, ನನನ ಸಹ ಮಡದ ಖಲ ಚಕಸ ಕ ಗಳನಸ ನ Judgment 11 C.C.No.26415/2018 ತಗದಸಕರಬಡಸ ಹರನಗ ಸಸಳಸ ಳ ಪಪಕರಣ ದಖಲಸದರ. ಚಕಸ ಕ ಗಳ ಮತತ ನನಡಲಸ ಭದಕನಲಲ."
14. In order to prove the defence of the accused, he himself choosen to entered into witness box and examined as DW.1 on oath and filed affidavit evidence.
15. No doubt, in this case, the accused was entered into witness box and filed affidavit evidence. The filing of affidavit by the accused in lieu of his probable defence is not opposed by the complainant. Mere because of she not sought permission under Sections 315 and 316 of Cr.P.C., it does not a ground to out-rate reject the probable defence set out by the accused. Mere because Section 145(1) of Negotiable Instruments Act does not expressly permit the accused to filed affidavit evidence, it does not mean that, the court cannot allow the accused to give his evidence on affidavit. By applying the same analogy, unless there is just and reasonable ground to refuse such permission. There is no express bar on accused to give evidence on affidavit either in the accused or in the court.
In a decision reported in 2006 SCC online, Bombay 703, in a case between Peacock Industries Limited Vidhyadhar and others V/s. Dudhrani Finance Limited Bombay and another . Ratio layout Judgment 12 C.C.No.26415/2018 therein was partly firm in a decision reported in (2010) 3 SCC 83, in a case between Mandovi Co-operative Society Ltd., V/s. Nimesh B Takore. Wherein, by citing the decisions reported in KSL and Industries Ltd., case, it was pleased to observed that, the observation made by the Division Bench in KSL and Industries Ltd., case, clearly indicate that, even the accused should be given option to lead her evidence on affidavit. But such request should be made in writing as providing for Section 315(1) of Cr.P.C. Wherein, lordship was pleased observed that, fine no justified reason to refuse permission to the accused to give his evidence on affidavit subject to the provisions contained in Sections 315 and 316 of Cr.P.C.
That apart, in a judgment passed by the Hon'ble High Court of Karnataka dated:13th Day of February 2020 in a case between Jagadeesh Hiremath and R. Venkatesh in Criminal Appeal No.907 of 2017 A/W Criminal Appeal No.908 of 2017 is pleased to observed that, in view of the orders of this court in Criminal Petition No.9331/2017 C/w Criminal Petition No.9332/2017 dated:
02.07.2019, wherein following the law laid down by the Hon'ble Supreme Court in Indo International Ltd., & Another V/s. State Of Maharasthtra & Another, 2005 Crl.L.J.208, it is held that, " The court dealing with a complaint under Section 138 of the said Act of 1881 had Judgment 13 C.C.No.26415/2018 an option to take evidence of the witnesses on the side of the prosecution as well as evidence of the accused and the defence witnesses, if any on affidavit"
16. In the affidavit evidence of the accused has contended that, he knew the facts of this case and competent to swear this affidavit. He also stated that, it is far from truth the allegations made in the complaint. But he partially admitted the fact that, M/s.Vagmines Outsourcing and Consultancy Pvt. Ltd., of the accused have functioning as placement and training institution, but denied that, he is the Managing Partner, but specifically stated he was the Manger.
The accused has specifically put forth his defence that, to show that, he is the Manger in the Vagmines company he got produced his identity card, salary slip issued by the company which reflects his designation as a Manager. He also stated that, the Proprietor/Managing Director of the company was Lokesh. The Sravanthi Lokesh had collected Rs.2 lakhs from the complainant on 06.06.2018 and issued the bond receipt for the said amount to the complainant. The complainant and other persons have lodged complaint against the said Lokesh in C.K.Achukattu Police Station in Crime No.216/2018 for the offence punishable under Section 420 r/w. Section 34 of IPC and Judgment 14 C.C.No.26415/2018 the police had arrested the Lokesh and Sravanthi Lokesh and case is still pending. In the remand application it was contended that, at the time of investigation, police have taken the statement and concern documents from Diwakar, accused herein, Kumari Sumangala and others including Adarsh, who is complainant herein. Wherein also contended that, who were cheated by said Lokesh and who is the accused and Managing Director of M/s. Vagmines Outsourcing and Consultancy Pvt. Ltd. The name of the accused was appeared in the list as 1 st number. The accused was also cheated and his amount were lost. In that regard, he produced the remand application and case papers pertaining to Cr.No.216/2018.
The accused also contended that, the complainant and other persons had visited the said company office at Banashankari 3rd stage of Bengaluru and made quarrel with the staff and at that time, the accused was not present and his staff persons got fear gave his empty 2 cheques of the accused to the complainant, which were kept in his drawer of the desk, wherein he was sitting. He did not filled the cheques and signed the same, hence, he is not liable to pay the amount covered under the cheques.
Judgment 15 C.C.No.26415/2018 The accused also further contended that, he and other staffs also lodged the complaint on 25.07.2018 against the proprietor/Managing Director - Lokesh and it is pending. Hence, prayed for his acquittal.
17. Apart from the accused also choosen to produced the documents at Exs.D1 to D8. They are:
a) Ex.D1 is the certified copy of FIR in Cr.No.216/2018 complaint lodged by one Nidhinraj.K before the Channammanakere Achu Kattu Police Station against Lokesh and his wife Sravanthi Lokesh, who are the directors of Vagmines company.
b) Ex.D2 is the certified copy of complaint lodged by one Nidhinraj.K before the Channammanakere Achu Kattu Police Station against Lokesh and his wife Sravanthi Lokesh, who are the directors of Vagmines company.
c) Ex.D3 is the certified copy of remand application.
d) Ex.D4 is the certified copy of order sheet in Cr.No.216/2018 on the file of learned II ACMM, Bengaluru.
e) Ex.D5 is the statement of account pertaining to accused herein issued by Axis Bank for the period from 01.01.2018 to 15.06.2018.
f) Ex.D6 is the Notarized copy of ID card pertaining to accused herein issued by Vagmines company and
g) Exs.D7 and D8 are the Notarized copies of salary slips for the month of April & May, 2018 pertaining to accused issued by Vagmines company The DW.1 was subjected to the cross-examination by the advocate for the complainant.
Judgment 16 C.C.No.26415/2018
18. While appreciate the materials on records and evidence, this court has gone through the decisions stated supra apart from the other decisions.
19. On going through the rival contentions of the parties, it made clear that, the accused in this case has seriously attack on the claim put forth by the complainant. On going through the materials it discloses, the complainant has brought the present case against the accused based on the questioned cheques at Exs.P1 and P2. Therefore, it is needs to draw the presumption as per Sections 118 and 139 of Negotiable Instruments Act. As per Section 118(g), it shall be presume that, unless the contrary is prove, the holder of the cheque, the complainant received the cheques for discharge of legal liability. This presumption is rebuttable. Accordingly, Sections 139 and 138 of Negotiable Instruments Act, it also requires to presume that, cheques were drawn for discharge of liability of drawer, it is presumption under law. Therefore, it made clear that, by virtue of the above said sections stated, it made clear that, it requires to draw statutory presumption in favour of complainant that, in respect of discharge of existence of legally recoverable debt, the accused got issued the Exs.P1 and P2 - cheques unless and until contrary prove.
Therefore, as per those sections, it made clear that, it is the initial Judgment 17 C.C.No.26415/2018 onus on the accused to prove his case based on the principles of 'Preponderance of Probabilities'.
It is require to cite the decision reported in AIR 2010 SCC 1898, in a case between Rangappa V/s Mohan. Wherein, the Hon'ble Apex Court pleased to observe that, the obligation on the prosecution may be discharged with the help of presumption of law or facts unless the accused adduce evidence showing the reasonable probability of non-existence or presumed fact. Wherein also it was pleased to observed that, the accused can prove the non-existence of consideration by raising probable defence. If accused is able to discharge the initial onus of proof of showing that, the existing of consideration was improbably or adverse or the same was illegal, the onus would shift to the complainant, who will be obliged to prove it as a matter of fact, and upon its failure to prove would dis-entitle his to grant the relief on the basis of Negotiable Instruments Act. The burden on the accused of proving the non-existence of consideration can either direct or by bringing on record the preponderance of probabilities by referring to the circumstances upon which, he relies could bare denial of passing consideration apparently does not appears to be any defence. Something which is probable has to be brought on record for getting benefit of shifting the onus of proving to the Judgment 18 C.C.No.26415/2018 complainant. To disprove the presumption, the accused has to bring on record such facts and circumstances upon the consideration of which the court may either believe that, consideration did not exist or its non-existence was so probable that, a prudent man would, under the circumstances of the case, act upon that, it did not exist. Therefore, it made clear that, the accused need to take the probable defence mere denial is not enough.
That apart, in a decision reported in ILR 2006 KAR 4672, in a case between J.Ramaraj V/s Hiyaz Khan. Wherein, it was pleased to observed that, mere denial of issuing cheques, whether is sufficient to discharge the initial burden is to be looked into. In that dictum, it was pleased to held that, mere denial of issuing cheques would not be sufficient as it is time and again noted that, once the cheques issued duly signed by the accused, the presumption goes against him as per Section 139 of Negotiable Instruments Act.
20. On going through the provisions referred supra, it made clear that, whereas the presumption must prove that, guilt of accused beyond the reasonable doubt. The standard or proof so as to prove a defence on the part of the accused is Judgment 19 C.C.No.26415/2018 'Preponderance of Probabilities'. Inference of 'Preponderance of Probabilities' can be drawn, not only from the materials brought on record by parties, but also by reference to the circumstances upon which he relies.
21. On going through the above authorities as well as dictums, it made clear that, it is the initial burden on the accused to prove his probable defence in order to rebut the statutory presumption as well as the case put forth by the complainant. Mere taking bald contention is not enough to debar the liability of the accused emerged from the questioned cheques.
22. On carefully going through the affidavit evidence of the accused, he categorically admitted that, he was working as Manager in Vagmines, which undertakes the functioning of placement and training institutions. From which, it made clear that, the accused was part of the said concern, wherein he was working as a Manager. The said fact clearly admitted by the accused, how he nexus in between the transaction held between complainant and company of accused. He also not denied the approach made by the complainant to the accused in pursuance of the notification and in order to provide training program to the complainant to work in MNC's for provide training program and Judgment 20 C.C.No.26415/2018 placement took Rs.2 lakhs on 06.06.2018. The accused has denied that, he got received the said sum from the complainant, but his affidavit evidence discloses, one Sharavanthi Lokesh, who is the wife of Proprietor by name Lokesh got received the said sum from the accused on 06.06.2018 and got issued the bond receipt to the complainant. By pleading as such, in the affidavit evidence of the accused, he categorically admitted sum of Rs.2 lakhs were received by the accused company responsible persons very particularly on 06.06.2018.
23. On meticulous perusal of the complaint averments and allegations, the complainant had not alleged against the accused that, he himself got received the said sum, but particularly alleged that, a company of the accused were received the same. By deposing so by the accused in his affidavit, he categorically admitted sum of Rs.2 lakhs got been transferred from the complainant to the hands of the company of accused. In order to know that, the responsibility of the proprietor by name Lokesh and his wife Sharavanthi Lokesh, it is the accused needs to produce necessary documents with regard to the said business concern. On the one hand he stated, Lokesh was the Proprietor/Managing Director. Under such circumstances, his wife Sharavanthi Lokesh had what role is not been explained by the accused. However the Judgment 21 C.C.No.26415/2018 relationship of Lokesh being a Proprietor/Managing Director of Vagmins company is stands proved. Likewise, his wife Sharavanthi Lokesh is also been proved. When the act of the Lokesh and his wife was not fair with his customers in the said company definitely, it was the accused needs to fit and no needs to take responsibility to issue his cheque in respect of the liability covered on the company/its directors or proprietor or Managing Director. Even the accused during his cross-examination has categorically admitted, the role of him in brought the complainant to his concern in getting training as well as placement. In that regard, it needs to focus of the further cross-examination of DW.1. In the further cross-examination of DW.1, he categorically deposed that, earlier one Koushik got first interview the complainant and accused himself got interviewed the accused 2 nd time for further proceedings. Even DW.1 during his cross- examination has categorically admitted that, he was not disqualified the complainant for further stages.
24. During the course of cross of DW.1 he deposed that:
"Vagmines out sourcing and consultancy Pvt. Ltd., ರಲ ಶ ಪವಬತ ಲರನಕನಶಮತಸತ ಲರನಕನಶಪಲಸದರರಸ. ಪರರದಗ ಕಲಸ ಕರಡಸಸತತನನಬದಸ ಮದಲಸ ಹಚಆರ ತಬಡದ ಕಶಕ ಸಬದಶರನ ಮಡದದರಸ. ನನಸ 2 ನನ ಬರಗ ಸಬದಶರನ ಮಡದನ. ನನಸ Judgment 22 C.C.No.26415/2018 ಸಬದಶರಸದ ಬಳಕ ಪರರದಯನಸ ನ ರವದನ ಕಬಪನಗ ನನಮಕ ಮಡಲಲ. ನನಗ ನನಮಸವ ಅಧಕರ ಇರಲಲಲ. ನನಸ ಸಬದಶರಸದಗ ಪರರದಯನಸ ನ ಮಸಬದನ ಹಬತಕಕ ಆಯಕ ಮಡದನಸ ಹಗರ ಸದರ ಪಲಸದರರಸ ನನಮಕತಯನಸ ನ ಅಬತಮಗರಳಸಸವ ಅಧಕರ ಹರಬದದದರಸ."
25. The above testimony of DW.1, he deposed that, when he interviewed the complainant, he selected him for further stages and his concern partners were had the power to finalize the appointment of the complainant. By deposing so, the accused had clearly admitted that, he was also participated in brought the complainant to his company for interview. The conducting of interview by the accused itself made clear that, he was also participated in getting the complainant to his concern either for training of for placement. Therefore, the accused cannot now decline his responsibility in the said concern, but he was directly involved in conducting interview for the complainant brought into his concern for training as well as placement. Thereby, the complainant has proved that, accused was nexus in brought the complainant to the concern of the accused to pay sum of Rs.2 lakhs. The accused has not denied the receipt of Rs.2 lakhs from the complainant. But he alleges that, it was received by Sharavanthi Lokesh, who is the wife of his proprietor. If the Judgment 23 C.C.No.26415/2018 proprietor or his wife did illegal work definitely, it is the accused needs to quit his job in order to avoid future legal complications, but for the reasons better known to him, still he was in the office, thereby he invited the risk for repayment of money to the complainant by way of issuing questioned cheques at Exs.P1 and P2.
26. The complainant has alleged that, as the accused had failed to provide training and placement he undertakes to repay the said money, accordingly, got issued questioned cheques at Exs.P1 and P2 dated:13.07.2018 and 09.07.2018. In that regard the PW.1 has withstood in his cross-examination by stating that, when complainant and his mother went to the office of accused asking for repayment of money, then accused got issued questioned cheques at Exs.P1 and P2 to the complainant. It was suggestion made to PW.1 that, as on the alleged date of issuing questioned cheques, the accused was not in the office, but complainant and his friends took 2 cheques of the accused kept in his office drawer is been denied by the PW.1. Even PW.1 has denied the suggestion that, cheques so took as such, complainant got filled the same through others and created forged signature of the accused for collection and got dishonoured.
Judgment 24 C.C.No.26415/2018
27. On going through the Exs.P1 and P2 it discloses, the Ex.P1-cheque came to be dishonoured for the reasons "Funds Insufficient". The Ex.P2-cheque came to be dishonoured for the reasons "Alteration/Correction on instruments are prohibited under CTS". There is no mentioning of reason the signature of the accused as found in questioned cheques at Exs.P1 and P2 are not tallied or differences. If at all, the signature of the accused is not found in Exs.P1 and P2 cheques, definitely, it is the duty on the accused to demonstrate, how the signatures are not of him and in that regard, he needs to produce any undisputed signature of the accused. But he never suggested anything as such except mere suggestion created the signatures of the accused. When prove the forging of the signatures of the accused in Negotiable Instruments Act, it is the duty on the accused, how the questioned cheques are not tallied each other, though which are similar to the signatures found in the present case records such as, plea, 313 of Cr.P.C. statement, deposition of DW.1. On going through the signatures available on case records and compared with questioned cheques at Exs.P1 and P2 to the bare eyes it discloses, the signatures found in cheques are of the accused. If at all, those cheques were not of the accused definitely, he could have sought for sent the documents for found out the Judgment 25 C.C.No.26415/2018 genuineness of his signature by the FSL, but he did not opt for the same.
28. On going through the Ex.P1-cheque it discloses, the signature and other hand writings are made in different hand writing and ink. But in view of Section 20 of Negotiable Instruments Act, in-cohate cheque as permissible to give to the drawee authorized him to fill the same in respect of the liability payable by drawer. Accordingly, on going through the Ex.P2 cheque it discloses, there is some alteration in the numerals '0'. No doubt, the bank authority gave Ex.P4 endorsement stating Alteration/Correction on the Instrument. It is pertinent to note that, the hand writing made in Exs.P1 and P2 cheques are one and the same and the correction made in numerals is caused by whom is not been suggested by the accused to the PW.1. The complainant has stated that, accused gave questioned cheques at Exs.P1 and P2 in order to repay his Rs.2 lakhs. It is pertinent to note that, because of alteration is made cheque is not dishonoured. If any sufficient money was maintained in the account of the accused, definitely, Ex.P1-cheque at least could have been honoured, but on account of no sufficient funds were maintained in the account of the accused, both the cheques were came to be dishonoured. Though endorsement gave regarding Judgment 26 C.C.No.26415/2018 Alteration/Correction on Ex.P2-cheque, nothing has been suggested to PW.1, who caused the same. The accused during the course of cross of PW.1 has suggested, complainant and his friends took away the same, but on which date, when on whose presence they have took away the questioned cheques of the accused is not been suggested to PW.1. If at all, any such illegal acts was caused by the complainant and as till definitely, it was good ground to the accused to initiate necessary legal action in order to avoid misuse of questioned cheques. The nothing opt the said action would draw the adverse inference against the accused, since the complainant was not took away those cheques from the office of the accused, he not initiate any action. The said suggestion was made to PW.1 during the cross-examination. Therefore, what the version of the accused in respect of the complainant got possessed the questioned cheques at Exs.P1 and P2 is to be seen from the words uttered by the accused in the witness box.
29. During the course of cross of DW.1, he deposed that:
"ನಪ-1 ಮತಸತ 2 ರ ಚಕಸ ನ ನನಸ ಕರಟಟಲಲ, ಆತ ನಮ
ಕ ಗಳನಸ ಮ ಸಬಸಸಯ
ಕಕಬನ ನಲದದಬತಹ ಚಕಸ
ಕ ಗಳನಸ
ನ ತಗದಸಕರಬಡಸ ಹರನಗರಬಹಸದಸ.
ಕಛನರಯಬದ ಹರರ ಹರನಗಸವಗ ಬನಗ ಹಕ ಹರನಗಸತತನವ. ಆ ದನ ದ , ನನನ ಇತರ ಸಬಬಬದಗಳಸ - ಕಶಕ, ವಜಯ, ನನಸ ಶವಮಗಗದಲದಸ Judgment 27 C.C.No.26415/2018 ಸಬತರನಷ ರವರಸ ನನನ ಕಕಬನ ನಲ ಕಲಸ ಮಡಸತತದದರಸ. ಅವರಸಗಳ ಸಮಕಮ ಪರರದ ಸದರ ಚಕಸ ನ ತಗದಸಕರಬಡಸ ಹರನಗದದರಸ.
ಕ ಗಳನಸ ನ ಸಕಕ ವಚರಣ ಮಡಲಸ ತರಬದರ ಇಲಲ. ರವ ದನಬಕ ಅವರಸಗಳನಸ ಆ ಚಕಸ ನ ಪರರದ ತಗದಸಕರಬಡಸ ಹರನಗದದರಬದಸ, ತಳಸದ ಬಗಗ ಕ ಗಳನಸ ನಖರವದ ದನಬಕ ನನಪಲಲ, ಆದರ ಸಬಜ ವನಳಯಲ ಆ ಬಗಗ ತಳಸದದರಸ.
ಆ ಬಗಗ ಪರರದಯ ವರಸದದ ದರರನಸ
ನ ನನಡಲಲ, ಪರರದಗ ಸದರ
ಎರಡರ ಚಕಸ
ಕ ಗಳನಸ
ನ ನನನ ದ ,
ನನಡದಸ ಈಗ ಕಟಸ
ಟ ಕಥ
ನಸಡಯಸತತದನಬದರ ಸರಯಲಲ. ನಮಮ ಕಛನರಯಲ ಸಸ ಟವ ಕಕಮರ ಇಲಲ."
30. On going through the said testimony of DW.1, he deposed, he not gave questioned cheques at Exs.P1 and P2 to the complainant, but he stated, may be the accused could have taken those cheques from his cabin. From deposing so, the DW.1 himself in ambiguity in explaining, whether the complainant took away his cheques from his cabin drawer of the table. Though suggested complainant and his friends took away the same from the drawer of his table in the office, but when he himself in the witness box has deposed, may be taken from his cabin. Therefore, the said contradiction made it clear that, the accused try to attack on the claim of complainant on the presumption and assumption and hence, no scope can be given to the same, as he failed to establish the same. The DW.1 was not specifically stated, Judgment 28 C.C.No.26415/2018 complainant or his friends took away those cheques from his drawer. He categorically deposes that, whenever he went out from his office, he got lock, then go out. More carefully he deposed that, on the date of alleged taken up those cheques he was at Shimoga and his staffs by names Kousihk, Vijay and Santhosh were working in the cabin. He also deposed that, in their presence the complainant took away those cheques and he had no impediment to examine any one of them.
31. On carefully going through the testimony of DW.1, though he deposed in the presence of those witnesses the complainant took away the questioned cheques at Exs.P1 and P2, he not choosen to examine any one of the witness. As deposed by him, he had no impediment to examine any one of them, but not choosen to examined in order prove his probable defence. Hence, it requires to draw the adverse inference that, the defence set out by the accused in that regard is false, therefore, no one able to examine by him to substantiate his contention.
32. That apart, the said evidence also discloses that, the advocate for the complainant has questioned the accused as to when those cheques were taken away by the complainant from the office of accused was intimated to the accused, but he Judgment 29 C.C.No.26415/2018 deposed, he does not remember the date, but at the evening hours they were informed him. Those suggestions made to DW.1 that, since the accused was deposed false story, therefore, he not lodge complaint against the complainant, if any such act as alleged by the accused done by the complainant. The eye witnesses suggested by the accused are very much vital to prove the probable defence of the accused, but for the reasons better known to him, they have not been examined. Though DW.1 has subjected for cross-examination nothing has been elicited from his mouth to prove his probable defence and disprove the case put forth by the complainant. If at all, the complainant possessed the cheques of accused company with the signatures of responsible persons definitely, those would be held responsible by virtue of Section 141 of Negotiable Instruments Act. But when the complainant has claiming, accused himself gave his cheques at Exs.P1 and P2, therefore, it made clear that, mere because of the accused possessed the designation of Manager and conducted their interview in order to provide the complainant to skill development training and placement and they are unable to provide the same, the accused on behalf of his concern took upon risk to repay the amount paid by the complainant. Accordingly, the accused gave his Exs.P1 and P2 cheques to the complainant, Judgment 30 C.C.No.26415/2018 and the same came to be dishonoured for the reasons "Funds Insufficient and Alteration/Corrections on instrument" are made. Thereafter, the complainant gave legal notice as per Ex.P6 and the track consignment report produced at Ex.P7 discloses, item was delivered on 07.08.2018. It is not the contention of the accused that, as on 07.08.2018 he was not working in the concern of the accused.
33. It is pertinent to note that, the complainant gave legal notice to the working address of the accused, issuance of legal notice is not been suggested by the accused. On going through the Ex.D7 and D8 the salary slips, it discloses, during April, 2018 the accused was working as Manager in the concern. In order to show that, he was not working during August, 2018 is not been suggested to PW.1 or gave any explanation. Admittedly, when he was the responsible employee in his company being a Manager, he cannot now taken the contention that, legal notice was not served on him.
34. Though, the DW.1 has contended that, his proprietor - Lokesh and Sharavanthi Lokesh were cheated some other persons as found in document at Exs.D3 and D4. On going through the same, it discloses, it was the dispute inter-say Judgment 31 C.C.No.26415/2018 between complainant by name Nidhinraj.K and Lokesh with Sharavanthi Lokesh. Though there was mentioning of provisions under Section 420 r/w Section 34 of IPC, the same cannot be considered in the present case. If at all, the accused was got cheated by his proprietor and his wife definitely, it was him to initiate necessary action against them. Inspite of do so and prove his non liablity as alleged, he kept his personal cheques at Exs.P1 and P2 in his office and the complainant and his friends to there and took away the same is highly not acceptable theory. The accused no need to brought his personal cheques in his office. When he came forward to gave Exs.P1 and P2 cheques to the complainant, it discloses, he undertook the risk of his proprietor by name Lokesh and Sharavanthi Lokesh on their behalf for repay the sum of Rs.2 lakhs, the accused gave questioned cheques at Exs.P1 and P2. Which attracts sec. 138 of NI Act that, in respect of the liability of the proprietor of the accused if any, the accused invited the risk of pay on his behalf to the complainant. When the complainant got presented those cheques for encashment, the same were came to be dishonored. Thereafter, the complainant gave legal notice as per Ex.P5, which came to be delivered, despite that, the accused was not caused any reply. The non cause reply to the complainant at appropriate stage, is also one of Judgment 32 C.C.No.26415/2018 the circumstances to disbelieve the version of the accused. The accused has utterly failed to demonstrate his probable defence, under which compelling circumstances he got issued questioned cheques at Exs.P1 and P2 to the complainant. Therefore, the version of the complainant has placed by him in the pleading as well as his oral and documentary evidence needs to be accepted. The accused has failed to demonstrate his probable defence, therefore, adverse inference has to be drawn against the accused. The accused has utterly failed to demonstrate his mere plausible defence and gave contradiction evidence. The accused has failed to demonstrate his probable defence and contradicts the very case of the complainant by way of furnishing rebuttable evidence. The evidence of PW.1 orally as well as documentary evidence remains unchallenged. As per Section 138 of Negotiable Instruments Act, the accused took upon the risk of his company on his shoulder, therefore, he gave his personal cheques at Exs.P1 and P2 for refund of Rs.2 lakhs received from the complainant. Therefore, the accused is liable to pay the amount covered under the cheques. The question of complainant proved his case beyond the reasonable doubt does not arise, as the accused has utterly failed to prove his initial burden and rebut the statutory presumption as well as the facts and circumstances Judgment 33 C.C.No.26415/2018 narrated by the complainant. Despite, the service of legal notice, the accused not able to rectify his mistake by paying the amount covered under the cheques. Therefore, the said continuing offence committed by the accused is liable to be punished by imposing fine sentence on the cheques amount coupled with additional fine of Rs.5,000/-.
35. There is no substance in the probable defence of the accused, contrary to the complainant has discharged his burden and proved the guilt of the accused. Therefore, keeping in the mind of the object of introduction of Negotiable Instruments Act, it appears this court, it is fit case to convict the accused coupled with the amount covered under the cheques at Exs.P1 and P2 at Rs.2 lakhs coupled with additional fine of Rs.5,000/-. The same offence has been continued till this day, therefore, the complainant has successfully established the guilt of the accused, regarding commission of offence punishable under Section 138 of Negotiable Instruments Act. The complainant has complied the mandatory requirement and established his case successfully. Despite that, the accused has not set right the wrong committed by him as per Section 138 of Negotiable Instruments Act.
Judgment 34 C.C.No.26415/2018
36. As discussed above by way of furnishing clear, convincing, corroborative, oral as well as documentary evidence has proved that, the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Therefore, looking into the transaction, it is the considered opinion of this court that, the accused has taken bald, inconsistence defence without any base and failed to prove his improbable defence. Contrary, the PW.1 has established his case beyond the reasonable doubt through oral as well as documentary evidence. Thereby, unnecessarily cause the complainant to approach this court of law, therefore, the accused is liable to be punished by way of imposing fine sentence. Therefore, the accused is to be convicted by imposing the cheques amount of Rs.2 lakhs coupled with additional fine of Rs.5,000/-. Out of the said fine amount, sum of Rs.2 lakhs shall be payable to the complainant as compensation and remaining amount of Rs.5,000/- shall be payable to the state as fine amount. Accordingly, if the accused fails to pay the whole fine amount, the accused shall undergo simple imprisonment for 10 months. Thereby, one more opportunity has provided to the accused to comply the order. Otherwise, the very purpose of filing complaint will be defeated. As discussed above, the complainant has proved his case beyond reasonable doubt. In the result, the Judgment 35 C.C.No.26415/2018 accused shall sentence to pay the fine amount as detailed in the order portion. Accordingly, Point Nos.1 and 2 are answered in the Affirmative.
37. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
ORDER Accused found guilty for the offence punishable under Section 138 of Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay fine of Rs.2,05,000/-.
Out of the said fine amount, sum of Rs.2,00,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.5,000/- shall be payable to the state as fine amount.
In default of pay the fine amount, the accused shall under go simple imprisonment for 10 (Ten) Months.
The bail bond and cash security/surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
Judgment 36 C.C.No.26415/2018 (Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 1st day of December
- 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Adarsh.C.P List of Exhibits marked on behalf of Complainant:
Exs.P1 & P2 : Original Cheques Exs.P1(a) & P2(a) : Signatures of accused Exs.P3 & P4 : Bank endorsements Ex.P5 : Office copy of legal notice Ex.P6 : Postal receipt Ex.P7 : Track consignment Ex.P8 : Private complaint Ex.P8(a) : Signature of complainant
List of Witnesses examined on behalf of the defence:
DW.1 : Diwakar.V List of Exhibits marked on behalf of defence:
Ex.D1 : CC of FIR in Cr.No.216/2018
Ex.D2 : CC of complaint
Ex.D3 : CC of remand application
Ex.D4 : CC of order sheet in Cr.No.216/2018
Ex.D5 : Statement of account
Ex.D6 : Notarized copy of ID Card
Exs.D7 & D8 : Notarized copies of salary slips
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 37 C.C.No.26415/2018
01.12.2020.
Comp -
Accd -
For Judgment
Case called out.
Complainant and accused are
absent. No representation from both side
advocates, despite, web-host the case
proceedings and intimate the date of
pronouncement of judgment. Hence, as
per Section 353(6) of Cr.P.C. the following judgment is pronounced in the open court vide separate order.
***** ORDER Accused found guilty for the offence punishable under Section 138 of Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay fine of Rs.2,05,000/-.
Out of the said fine amount, sum of Rs.2,00,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.5,000/- shall be payable to the state as fine amount.
Judgment 38 C.C.No.26415/2018 In default of pay the fine amount, the accused shall under go simple imprisonment for 10 (Ten) Months.
The bail bond and cash security/surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.