Bangalore District Court
R/At No.9 vs S/O. Sri. Chikkayya Shetty on 13 May, 2015
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL UNIT, BENGALURU
DATED THIS THE 13th DAY OF MAY, 2015
PRESENT
SRI. C.D.KAROSHI, B.A., LL.B., (Spl)
XIV ADDL. C.M.M., BENGALURU.
CASE NO C.C. NO.50951/2014
Sri. Vasudeva Hebbar
S/o. Sadashiva Hebbar, Aged about 54 years,
COMPLAINANT R/at No.9, "Inchara", Nanjundappa Garden
Street, R.S. Palya, Bengaluru - 560 043.
Sri. K. Shivarama Shetty
ACCUSED S/o. Sri. Chikkayya Shetty, Aged about 58 years,
R/at No.443, 1st Floor, Renuka Krupa, 4th Block,
1st Stage, 2nd Cross, 5th Main, HBR Layout,
Bengaluru - 560 043.
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused is convicted
(C.D. KAROSHI)
XIV ADDL. C.M.M., BENGALURU
2 C.C. No.50951/2014
JUDGMENT
This is a complaint filed by the complainant under Sec.200 Cr.PC against the accused for the offence punishable under Section 138 N.I. Act.
2. In a nutshell it is alleged in the complaint that the accused known to the complainant for past several years, during 3rd week of October 2011 the accused has approached the complainant for a sum of Rs.7 lakhs as hand loan for urgent Financial/Business commitments, on 21.10.2011 the complainant has paid the same to the accused and he has executed an on demand promissory note with consideration receipt for the said sum agreeing to repay the same within six months along with interest @ 12% per annum. Further it is arrayed that accused has failed to keep up his promise and not paid either principal amount or interest, in the month of August 2013 when the complainant demanded, accused has issued two cheques bearing No.001334 dated 15.8.2013 for Rs.5,00,000/- drawn on S.B.M, Cox Town branch, Bengaluru and No.757458 dated 10.8.2013 for Rs.2,00,000/- drawn on Vijaya Bank, Cox Town branch, Bengaluru, but on presentation for encashment, they came to be returned with an endorsement as "Funds Insufficient" and despite receipt of legal notice has not paid 3 C.C. No.50951/2014 the cheque amount and thereby committed the offence punishable under Section 138 Negotiable Instruments Act.
3. Records reveal that on receipt of summons, the accused has appeared and got enlarged on bail. Plea for the offence under Section 138 Negotiable Instruments Act recorded, wherein accused pleaded not guilty. In order to prove his case, complainant examined himself as PW.1 and got marked the documents at Ex.P1 to P8. Side of the complainant treated as closed. Statement of the accused as required under Section-313 of Cr.PC recorded. No oral or documentary evidence adduced on behalf of the accused.
4. Heard the arguments and perused the material on record.
5. The points that arise for my consideration are :-
1) Whether the complainant proves that accused has borrowed hand loan for a sum of Rs.7 lakhs and has issued two cheques bearing No.001334 dated 15.8.2013 for Rs.5,00,000/- drawn on S.B.M, Cox Town branch, Bengaluru and No.757458 dated 10.8.2013 for Rs.2,00,000/- drawn on Vijaya Bank, Cox Town branch, Bengaluru towards discharge of existing debt or liability?4 C.C. No.50951/2014
2) Whether the complainant further proves that when he presented both the cheques for encashment, they were returned with an endorsement as "Funds Insufficient" and despite receipt of notice also the accused has not complied and thereby committed an offence punishable under Section 138 of Negotiable Instrument Act?
3) What Order?
6. My answers to the above points are as follows:
Point No.1 : In the Affirmative,
Point No.2 : In the Affirmative,
Point No.3 : As per the final order
for the following.......
REASONS
7. Point No. 1: The learned counsel for the
complainant argued that, both the cheques given by the accused towards repayment of loan came to be returned for want of sufficient funds and despite receipt of notice accused has neither replied nor paid the cheque amount or stepped into the witness box, therefore he is liable to be convicted. Per contra, the learned counsel for the accused argued that cheques in question were being issued for meager amount and never borrowed Rs.7 5 C.C. No.50951/2014 lakhs, but complainant being the family friend by taking undue advantage of said friendship he has filed the false case, as such accused is entitle for acquittal. I have carefully gone through the entire material on record. So in view of the present legal position as held by the Hon'ble Apex Court of India and our Hon'ble High Court in a catena of decisions, admittedly presumption U/ss.139 and 118 of N.I. Act is rebuttable in nature, as such complainant has to prove existence of debt or other liability at the first instance, if he proves then only burden of proving the fact that the cheque in question had not been issued for discharge of a lawful debt or liability is on the accused, if accused fails to discharge such burden then he is liable to be convicted.
8. I have carefully gone through the entire material on record. In order to prove his case, the complainant examined himself as PW.1 by reiterating entire averments of the complaint stating that during 3rd week of October 2011 the accused approached for urgent financial/business commitments and on 21.10.2011 borrowed a loan of Rs.7 lakhs by executing an on demand promissory note with consideration receipt agreeing to repay the same within six months along with interest @ 12% per annum. Further states that he failed to keep up his promise 6 C.C. No.50951/2014 and not paid either principal amount or interest, in the month of August 2013 when he demanded, accused has issued two cheques bearing No.001334 dated 15.8.2013 for Rs.5,00,000/- drawn on S.B.M, Cox Town branch, Bengaluru and No.757458 dated 10.8.2013 for Rs.2,00,000/- drawn on Vijaya Bank, Cox Town branch, Bengaluru, but on presentation for encashment, they came to be returned with an endorsement as "Funds Insufficient" and despite receipt of legal notice has not paid the cheque amount and thereby committed the offence. In order to support his oral testimony, PW.1 got marked the documents Ex.P1 to P8. In his cross-examination the learned counsel for the accused himself elicited about retirement of complainant and capacity to lend such an amount by cash said to have been withdrawn from the bank as per Ex.P8-statement of account as well as execution of pronote and issuance of cheques towards repayment of the said sum. Further it appears that PW.1 was being cross-examined in part and further cross was deferred at the request of the defense counsel. On 20.1.2015 also he failed to complete the cross-examination, accordingly further cross of PW.1 was taken as closed by rejecting the prayer. But till today accused has neither taken steps for recalling of PW.1 for making further cross nor adduced rebuttal evidence or produced contrary documents before this court. In such circumstances, 7 C.C. No.50951/2014 this court has to appreciate the oral evidence of the complainant along with documentary evidence available on record only.
9. It is pertinent to note here that so far as in respect of acquaintance of the accused with the complainant is concerned there is no dispute. The averments made in the complaint, evidence of PW.1 as well as contents of Ex.P8-bank statement indicates about financial capacity of the complainant to lend such an amount. On perusal of evidence of PW.1 along with Ex.P7 reveals that on 21.10.2011 accused approached and borrowed a loan of Rs.7 lakhs by executing on demand promissory note which has also been supported by consideration receipt. It is not in dispute that Ex.P1 & P2 cheques have been issued on the account maintained by the accused drawn on S.B.M, Cox Town branch, Bengaluru and Vijaya Bank, Cox Town branch, Bengaluru and signature thereon belongs to him only. So if we go through the evidence of PW.1 along with Ex.P7 we can find that accused has executed the promissory note along with consideration receipt for having received the loan of Rs.7 lakhs agreeing to repay the same with interest. Further it appears from the perusal of Ex.P3 & 4- Banker's memo that on presentation of the cheque for encashment they came to be dishonoured with an endorsement as "funds insufficient" and 8 C.C. No.50951/2014 despite receipt of legal notice under Ex.P5 & 6 - postal acknowledgement accused has neither replied nor paid the cheque amount, accordingly the complainant has filed the above numbered case.
10. It is also evident that in the case on hand admittedly the accused has neither taken steps to make further cross- examination of PW.1 nor stepped into the witness box or produced rebuttal oral or documentary evidence before this court or stated anything during the course of examination U/s.313 of Cr.PC with plausible explanation, which indicates that this is also an unusual conduct of the accused to avoid criminal prosecution being launched. It may be noted that during the course of examination accused has stated that he has not issued the cheques, but how they came to be the possession of complainant is not explained. Accused has not seriously disputed the existence of debt or liability. In such circumstances it can be held that existence of legally recoverable debt or liability is also matter of presumption U/s.139 of the Act. It is to be noticed that in such a case something probable has to be brought on record and burden of proof can be shifted back to the complainant by producing convincing circumstantial evidence by the accused only. In my opinion though complainant has discharged his initial burden, but accused has miserably failed to 9 C.C. No.50951/2014 discharge by making his version reasonably probable. In these circumstances, arguments advanced by the learned counsel for the complainant holds good and arguments canvassed by the defense counsel on this aspect is to be discarded. Therefore, looking from any angle, I find that there are no reasons to discard the evidence of PW.1 and to disbelieve the documents at Ex.P1 to P8, as such an adverse inference can validly be drawn against the accused. Hence, I answer point No.1 is in the affirmative.
11. Point No.2 : Now, what is to be seen by this court is, whether the complainant has followed remaining requirements as contemplated under Section 138 of Negotiable Instruments Act or not. With regard to service of notice is concerned it is also prima facie evident from the perusal of Ex.P5 to 6 - that the notice sent under RPAD was served upon the accused on 6.9.2013, but it appears that accused has neither replied within the stipulated period nor paid the cheque amount. With regard to point of limitation is concerned, the 15 days period of making of payment by the drawer under proviso (c) Sec.138 of N.I. Act held, expired on 21.9.2013. Cause of action to file complaint against the accused arose on 22.9.2013 itself. The private complaint was filed on 9.10.2013 which is well within the period.
10 C.C. No.50951/2014Therefore, it can be held that if the cheque is returned with an endorsement as "funds insufficient" and despite receipt of legal notice also drawer failed to comply, it amounts an offence under Section 138 Negotiable Instruments Act.
12. It is to be noticed that the statutory presumption in favour of the complainant, holder of cheque envisaged under Sections 118 and 139 of N.I. Act also stands un-rebutted. Wherefore, I come to conclusion that the complainant has proved his case to believe that accused has committed an offence under Section 138 Negotiable Instruments Act, which provides punishment with imprisonment for a term which may extend to two years or with fine which may extend to twice the amount of cheque or with both. Ex.P1 & P2-cheques in question were came to be drawn and issued in the year 2013 for a total sum of Rs.7,00,000/-, so considering the facts and nature of offence accused is liable for simple imprisonment and to pay compensation in accordance with law. Hence, I answer point No.2 is in the affirmative.
13. Point No.3 : For the foregoing reasons, I proceed to pass the following......
11 C.C. No.50951/2014ORDER Acting under Section 255(2) of Cr.PC accused is hereby convicted and sentenced to undergo simple imprisonment for six months for the offence punishable under Section 138 of Negotiable Instrument Act.
Acting under Section 357(3) of Cr.PC accused is directed to pay a compensation/fine of Rs.8,95,000/- to the complainant towards the loss and injury suffered by him.
In the total compensation/fine amount, a sum of Rs.5,000/- shall be deposited as fine to the State.
In default of the aforesaid
compensation/fine amount accused shall
further undergo simple imprisonment for forty- five days.
(Typed to my dictation by the stenographer, directly on computer, corrected, signed and then pronounced by me in the open court on this the 13th Day of May, 2015) (C.D. KAROSHI) XIV ADDL.C.M.M., BENGALURU 12 C.C. No.50951/2014 ANNEXURE Witnesses examined for the complainant:
PW.1 : Sri. Vasudeva Hebbar
Witnesses examined for the defence:
NIL
Documents marked for the complainant:
Ex.P1 & P2 : Two cheques
Ex.P1(a) & 2(a) : Signatures of the accused
Ex.P3 & 4 : Bank endorsements
Ex.P5 : Copy of the Legal Notice
Ex.P5(a) : Postal receipt
Ex.P6 : Postal acknowledgement
Ex.P7 : On Demand Promissory Note with
Consideration Receipt
Ex.P7(a) & (b) : Signatures of the accused
Ex.P8 : Statement of account
Documents marked for the defence:
NIL
(C.D. KAROSHI)
XIV ADDL. C.M.M.,
BENGALURU
13 C.C. No.50951/2014