Bangalore District Court
Resident Of Kavle vs D/O. Mr. Sanjay Yashwanth Darekar on 10 January, 2020
1
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 10th DAY OF JANUARY, 2020
PRESENT
Sri. K. GURUPRASAD, B.A., LL.B (Spl.)
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.58261/2018
Mr. Shreekantha K. Nayak
S/o. Krishna Nayak
Aged about 30 years,
COMPLAINANT
Resident of Kavle, Ponda,
Goa - 403501
Samruddhi Sanjay Darekar
ACCUSED D/o. Mr. Sanjay Yashwanth Darekar,
No.875, Shivadi Bhairavnath Nagar,
Post Poladpur,
Raigad District - 402 303
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused is convicted
(K. GURUPRASAD)
XIV ADDL. C.M.M., BENGALURU
2
JUDGMENT
The present complaint is filed under Sec.200 Cr.PC for the offence punishable under Section 138 of Negotiable Instruments Act.
2. It is the case of the complainant that, the complainant, accused and one Dhananjay Dhondiram Wadkar are friends. The accused introduced to the complainant the said Dhananjay Dhondiram Wadkar and claimed that he is her business associates. The accused and said Dhananjay Dhondiram Wadkar approached the complainant for financial assistance for their business and complainant lent Rs.21 lakhs to them. Thereafter the accused again approached the complainant on 19.1.2018 and borrowed further loan of Rs.20,35,000/- from the complainant, promising to repay the said loan at the earliest. Thus in all, the accused borrowed total sum of Rs.41,35,000/- from the complainant. Thereafter, the accused informed the complainant that sum of Rs.2,50,000/- was transferred to the complainant from the account of said Dhananjay Dhondiram Wadkar. Hence the accused is liable to pay balance amount of Rs.38,85,000/- to the complainant. Towards part discharge of said debt, the accused issued two cheques bearing No.492094 and No.492095 both dated 20.01.2018 for Rs.10,17,500/-
3each both drawn on YES Bank, Raigad, Maharashtra in favour of the complainant. When the complainant presented the said cheques to his banker i.e Bank of India, Richmond Town branch, Bengaluru on 14.3.2018, said cheques came to be dishonoured with bank endorsement "payment stopped by banker" on 15.3.2018. Thereafter on the request of the accused, when the complainant again presented the said cheques to his banker on 31.3.2018, the said cheques again to be dishonoured with bank endorsement "payment stopped by banker" on 3.4.2018. When the complainant got issued demand notice dtd.1.5.2018 to accused, said notice was duly received by accused on 14.5.2018. However, the accused has not paid the cheques amount and as such, the accused is guilty of the offence punishable under Section 138 of N.I. Act. Hence this complaint.
3. After filing of this complaint, cognizance was taken for the offence punishable U/s.138 of N.I. Act. Sworn statement of the complainant was recorded. This court was satisfied as to prima facie case made out by the complainant for issuance of the summons. Accordingly, criminal case was registered against the accused and summons was ordered to be issued.
44. In pursuance of court process issued by this court, the accused appeared through her counsel and got enlarged on bail. Thereafter plea was recorded. The accused pleaded not guilty and claimed for trial.
5. In order to prove his case, the complainant examined himself as CW.1 (PW.1) and got marked Ex.P1 to P9 and closed his side of evidence. Thereafter, statement of the accused U/s.313 of Cr.PC was recorded. The accused denied incriminating materials in the evidence of complainant against her. Thereafter, the accused examined herself as DW.1 and got marked Ex.D1 to D3. However the accused has failed to appear and subject herself for further cross-examination and her side of evidence came to be closed.
6. Heard counsel for complainant. Both parties filed written arguments. Perused the complaint, evidence on record, written arguments and court records.
7. The following points arise for my consideration and determination;
1) Whether the complainant proves that the accused has issued two cheques in question in discharge of legally enforceable debt or liability as contended by him?
52) Whether the complainant further proves that the accused committed the offence punishable under Section 138 of Negotiable Instruments Act?
3) Whether the complainant is entitled for the relief's as prayed in the complaint?
4) What Order?
8. The above points are answered as under;
Point No.1 to 3 : In affirmative, Point No.4 : As per the final order, for the following.......
REASONS
9. Point Nos. 1 and 2: Since these two points are inter linked and to avoid repetition they are taken together for discussion.
10. As regard to limitation to file this complaint, Ex.P1 and P2 are the cheques both dated 20.1.2018 drawn on YES Bank, Raigad, Maharashtra in favour of the complainant. Ex.P3 and P4 are the cheque return memos dated 15.3.2018 issued regarding dishonour of Ex.P1 and P2 - cheques for the first time. Ex.P5 and P6 are the cheque return memos dtd.3.4.2018 issued regarding 6 dishonour of Ex.P1 and P2-cheques for the second time. Ex.P7 is copy of legal notice dtd.1.5.2018 got issued by the complainant to the accused. Ex.P8 is postal window receipt dtd.1.5.2018 issued by postal department for having sent Ex.P7 notice by registered post to the accused. Ex.P9 is postal acknowledgement signed on 14.5.2018 for having received Ex.P7 notice by registered post. It is clear from Ex.P1 to P9 that when the complainant presented said cheques to his banker i.e Bank of India, Richmond Town, Bengaluru for two times, the said cheques came to be dishonored on 15.3.2018 and 3.4.2018 with bank shara "payment stopped by the drawer" and that when the complainant got issued Ex.P7- notice to the accused by registered post, it came to be served on 14.5.2018. No suggestion has been put by counsel for accused during cross-examination of CW.1 that the accused has not received Ex.P7-notice. Even DW.1 has not deposed that Ex.P7 notice is not served on her. In other words, service of Ex.P7-notice on the accused is not disputed by the accused during trial. Therefore, it can be concluded that Ex.P7-notice is duly served on the accused. Hence, when the complainant presented the cheques in question within three months from the date of said cheques, the said cheques came to be dishonored with bank shara "payment stopped by the 7 drawer" and that when the complainant got issued statutory notice U/s.138 of N.I. Act within 30 days from the date of intimation of dishonour of said cheques, the said notice was served on the accused. Hence, the present complaint filed on 13.6.2018 i.e after expiry of 15 days from the date of service of such notice and within 30 days thereafter is well within time.
11. As regard to legally enforceable debt or liability, in 2010 (11) SCC 441 - (Rangappa Vs Sri. Mohan), it is held that;
" The presumption mandated by Sec.139 of the Act includes a presumption that there exists a legally enforceable debt or liability. This is of course in the nature of a rebutable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, herein, there can be no doubt that there is an initial presumption which favours the complainant"..............."when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the presumption can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own".8
12. If the facts and circumstances of this case are considered in light of above said principle of law, it is clear that DW.1 has admitted on page 4 of her cross- examination that Ex.P1 and P2-cheques bear her signatures. Therefore, statutory presumption arises U/s.139 of N.I. Act in favour of the complainant that Ex.P1 and P2-cheques are drawn and issued in discharge of debt or liability. The burden of rebutting the said presumption by probable defence is on the accused.
13. It is the case of the complainant that the accused and one Dhananjay Dhondiram Wadkar approached the complainant and availed loan of Rs.21 lakhs for their business and thereafter on 19.1.2018 the accused again availed loan of Rs.20,35,000/- from the complainant and towards part discharge of said liability, the accused issued Ex.P1 & P2-cheques, which came to be dishonored. On the other hand, it is the defence of the accused that the complainant is stranger to her and that she has neither availed any loans nor issued Ex.P1 & P2- cheques towards repayment of said loan. It is specific defence of the accused that in January 2018, her friend Dhananjay Dhondiram Wadkar asked to her give him two cheques to show the same to the complainant regarding some transaction between said Dhananjay Dhondiram 9 Wadkar and complainant and promised her to return the said cheques after two days. It is further defence of the accused that though she handed over Ex.P1 & P2- cheques on such promise of return of said cheques within two days, said Dhananjay Dhondiram Wadkar did not return the said cheques as promised and the present false complaint is filed by misusing said Ex.P1 & P2-cheques.
14. On careful perusal of evidence on record, it is clear that the defence of the accused is not probable nor does it inspire confidence of this court. It is because, it is clear from Ex.P7-notice, Ex.P8 postal window receipt and Ex.P9-postal acknowledgement that Ex.P7 notice was sent to the address of the accused by registered post and it was received on 14.5.2018. It is not case of the accused that she has not received Ex.P7-notice. Hence, it can be concluded that Ex.P7-notice has reached the accused and that she was well aware of contents of such notice. Even though the accused claims that the complainant is stranger and has not lent any loan to her, the accused has failed to issue any reply notice to Ex.P7 in which the complainant has claimed that he has lent loans in question to the accused and that accused has issued Ex.P1 & P2-cheques to him. Any prudent person in place of accused would have felt shocked to know the contents 10 of Ex.P7 notice and would have promptly issued reply notice denying any loan transaction and issuance of Ex.P1 & P2-cheques for payment of such loans and would have put forth defence in such reply notice. Therefore, inaction on the part of the accused to issue reply notice to Ex.P7 notice raises serious doubt regarding defence of the accused.
15. Secondly, it is the defence of the accused that she has given two cheques to Dhananjay Dhondiram Wadkar who promised her to return the same within two days but when the said Dhananjay Dhondiram Wadkar did not return said cheques even after seven days, she gave stop payment instruction to her banker on 8.1.2018, as per Ex.D2. However, on careful perusal of contents of Ex.D2 certificate issued by the banker of accused, it is clear that the accused has given stop payment instruction to her banker not regarding only two cheques in question but regarding three cheques I.e Ex.P1 & P2-cheques and cheque No.492093. If the accused had given stop payment instruction to her banker on the ground that said Dhananjay Dhondiram Wadkar did not return Ex.P1 & P2- cheques to her as promised even after seven days, she would have given stop payment instruction to her banker only regarding two cheques I.e Ex.P1 & P2-cheques and not regarding three cheques. There is no proper 11 explanation from the accused as to why she had given stop payment instruction to her banker regarding cheque No.492093, which is not at all involved in this case. It is pertinent to note that the accused has not produced any documentary evidence to show on what grounds she has given stop payment instructions to her banker on 8.1.2018. These circumstances raise serious doubt regarding the defence of the accused.
16. Thirdly, DW.1 has deposed that she gave stop payment instruction on 8.1.2018 to her banker and after two months, when said Dhananjay Dhondiram Wadkar did not return her cheques, she filed police complaint against Dhananjay Dhondiram Wadkar in Koparkhiine Police Station, Navi Mumbai as per Ex.D3. On careful perusal of Ex.D3 N.C.R issued by Koparkhiine Police Station, Navi Mumbai, it is clear that the accused lodged police complaint on 24.3.2019 regarding incident of assasult and criminal intimation etc., by the accused on 23.3.2019. In other words, Ex.D3-N.C.R is issued by said police station in respect of incident which took place after one year I.e during pendency of this present case. Therefore, it is clear that the accused has not lodged any complaint against Dhananjay Dhondiram Wadkar for not returning her two cheques. On the other hand, Ex.D3 is not at all concerned with misuse of Ex.P1 and P2-cheques though it 12 was lodged against Dhananjay Dhondiram Wadkar. Any prudent person in place of accused would have lodged police complaint against said Dhananjay Dhondiram Wadkar alleging misuse of Ex.P1 and P2-cheques and would have issued notice to said Dhananjay Dhondiram Wadkar calling upon said Dhananjay Dhondiram Wadkar to return the two cheques taken by him. However, the accused has neither issued any such notice to Dhananjay Dhondiram Wadkar nor lodged any police complaint against him alleging misuse of Ex.P1 and P2-cheques. In Ex.D3, there is no allegation by the present accused against Dhananjay Dhondiram Wadkar that he did not return the cheques as promised but misused said cheques by handing over the same to the complainant. On the other hand it is alleged in Ex.D3 that on 23.3.2019, the said Dhananjay Dhondiram Wadkar assasulted the present accused in filthy language and put life threat to her. Therefore, Ex.D3 is not helpful to the accused to prove her defence.
17. Fourthly, the accused has taken inconsistent stands regarding her defence at different stages of this case. During cross-examination of CW.1, it is suggested by counsel for the accused on page 8 that Ex.P1 and P2- cheques were given to Dhananjay Dhondiram Wadkar by way of security to the loan and that said cheques came to 13 be misused. In other words, it is not suggested to CW.1 during cross-examination that the accused handed over Ex.P1 and P2-cheques to Dhananjay Dhondiram Wadkar who promised to return the said cheques after two days, after showing the same to the complainant regarding some transaction between the complainant and said Dhananjay Dhondiram Wadkar. However, it is only during examination-in-chief of DW.1, contention was taken up for the first time that accused handed over Ex.P1 and P2- cheques to the Dhananjay Dhondiram Wadkar who promised her to return said cheques after showing the same to the complainant. This inconsistent stands taken by the accused at different stages of trial in this case also go against defence of the accused.
18. Fifthly, the evidence of DW.1 regarding her defence is vague and uncertain regarding certain material facts. DW.1 has deposed during cross-examination that entire contents of Ex.P1 and P2-cheques are in her handwriting. If the entire contents of said cheques are in handwriting of the accused herself it is not clear why the accused put said specific amount of Rs.10,17,500/- in Ex.P1 and P2-cheques and specific date of 20.1.2018 on said cheques. It is also not clear from the evidence of DW.1 as to why said Dhananjay Dhondiram Wadkar required cheques of the accused only to show the said 14 cheques to the complainant instead of giving said cheques to the complainant. In fact showing of Ex.P1 & P2-cheques to the complainant would not serve any purpose to complainant or Dhananjay Dhondiram Wadkar. On the other hand, if the accused had given Ex.P1 & P2-cheques to Dhananjay Dhondiram Wadkar who then handed over said cheques to the complainant for encashment, the same would have served the purpose of the complainant. DW.1 has also not deposed the specific date on which she handed over Ex.P1 & P2- cheques to said Dhananjay Dhondiram Wadkar. DW.1 has also not deposed as to what was transaction between Dhananjay Dhondiram Wadkar and complainant, in respect of which the said Dhananjay Dhondiram Wadkar taken her two cheques to show the same to the complainant. Therefore, such vague and uncertain evidence of DW.1 is not helpful to prove the defence of the accused. In fact, the accused (DW.1) has not subsequently appeared before the court and offered herself for full cross-examination. This conduct of the accused also indicates that accused is avoiding to appear before the court. This also goes against defence of the accused. Moreover, when any witness has not offered for cross-examination, such evidence has to be discarded by this court because opposite party did not get full 15 opportunity to cross-examine such witness to test veracity of evidence of such witness.
19. Sixthly, DW.1 has admitted during cross- examination that the entire contents of Ex.P1 & P2- cheques are in her handwriting. This fact shows that the accused has voluntarily issued Ex.P1 & P2-cheques by writing entire contents of Ex.P1 & P2-cheques in her handwriting.
20. Counsel for accused has argued in his written arguments that the complainant has failed to prove that he is having capacity to lend the loan amounts and the complainant has not disclosed the source of funds from which the complainant has lent loans to the accused and as such allegation made by the complainant is false.
21. However above said contention cannot be accepted because this contention of want of fiancial capacity or source of funds is raised for the first time in the arguments itself. It is pertinent to note that no suggestion has been put by counsel for the accused during cross-examination of CW.1 that complainant has no financial capacity of lend loans to the accused. Even DW.1 has not deposed that the accused has no financial 16 capacity to lend loans to her. Hence such contention which is raised without any evidence cannot be accepted. It is also clear from cross-examination of CW.1 that the complainant is Fuel Service Engineer and he is an Income Tax assessee. Therefore, it can be concluded that the complainant has sufficient income and means to lend loans to the accused. Mere fact that the complainant has not produced his Income Tax returns or that the complainant has not paid loan amounts to accused through account payee cheque, as per Sec.169 SS of Income Tax Act, by itself is not sufficient to disbelieve the complainant case, particularly when the accused has utterly failed to prove her defence. Even otherwise in view of decision of of Hon'ble Supreme Court in 2019 SCC On line SC 389 (Rohitbhai Jivanlal Patel Vs State of Gujarat and another, since the accused has utterly failed to prove her defence that Ex.P1 and P2-cheques were given to Dhananjay Dhondiram Wadkar to show the same to the complainant and to return the same afterwards, the complainant need not prove source of fund and the accused cannot be acquitted only on the ground that the complainant has failed to prove source of funds to pay the amount to the accused.
1722. Counsel for accused has argued in his written arguments that the complainant has claimed in complaint as well as in Ex.P7 that he had lent Rs.20,35,000/- to the accused on 19.1.2019. But during cross-examination, CW.1 has admitted that "19.1.2018 ರರದದ ನ.ಪ.7 ರ ನನನನಟಸಸ ನಲಲ ಹನನಳದರತನ ಸಸಲದ ವವವಹಸರ ಆಗರದವವದಲಲ." It is therefore argued that in view of above said admission, there is no transaction on the said date and it is clear that there is no legally enforceable debt from the accused to the complainant.
23. However above said contention also cannot be accepted because it is settled principle of law that evidence of any witness should be read as whole and that any admission should be unequivocal. In the present case on hand, it is clear from Ex.P7-notice and complaint that the complainant has claimed that he had lent Rs.21 lakhs to the accused and Dhananjay Dhondiram Wadkar and thereafter on 19.1.2018, the complainant again lent Rs.20,35,000/-. In other words, it is the case of the complainant that he has lent two loans to the accused. When counsel for accused drew attention of CW.1 to the fact of loan of Rs.21 lakhs, during cross-examination of CW.1, CW.1 has deposed that "19.1.2018 ರರದದ ನ.ಪ.7 ರ 18 ನನನನಟಸಸ ನಲಲ ಹನನಳದರತನ ಸಸಲದ ವವವಹಸರ ಆಗರದವವದಲಲ. ನ.ಪ.1 ಮತದತ 2 ಚನಕದಕಗಳನದನ ದನಸರಕ 19.1.2018 ರರದದ ಆಗದನ ಎರದದ ಹನನಳಲಸದ ವವವಹಸರದ ಬಗನಗ ನನಡಲಲ ಎರದರನ ಸರ. ಸಸಕಕಯದ ಮದರದದವರನದದ ಸದರ ಚನಕದಕಗಳನದನ 19.1.2018 ಕಕರತ ಮದಲದ ನಡನದ ಸಸಲದ ವವವಹಸರದ ಸರಬರಧದಲಲ ನನಡಲಸಗದನ ಎರದದ ಹನನಳದತಸತರನ." Therefore, if the evidence of CW.1 is read as a whole, it is clear that CW.1 has deposed that the loan transaction of Rs.21 lakhs had not taken place on 19.1.2018 and that Ex.P1 and P2-cheques were given in respect of the loan transaction which took place prior to 19.1.2018 I.e loan transaction of Rs.21 lakhs. Therefore above said statement of CW.1 that on 19.1.2018, no loan transaction took place as per Ex.P7, should be construed as the loan transaction of Rs.21 lakhs did not take place on 19.1.2018. Therefore above said statement of CW.1 cannot be considered as admission and is also not helpful to the accused to disbelieve the case of the complainant.
24. Counsel for accused has contended that Ex.D1- bank statement shows that there is no deposit of amount by complainant in the bank account of the accused and that the complainant has not produced any document to show that the cheques were received by him through courier. It is further argued that Ex.P1 and P2-cheques 19 were received by the complainant on the same day of transaction and as such it amounts to security cheque and security cheque cannot come under purview of N.I. Act. In this regard, the counsel for accused relied upon decision in 1992 (74) CC 853.
25. However it is not the case of the complainant that he has lent loans to the accused through cheque or through online transfer etc. Therefore production of Ex.D1-bank statement is not helpful to show that there is no deposit of any amount in the bank account of the accused by the complainant. Further mere non-production of any document to show that Ex.P1 and P2-cheques were sent through courier by the accused, is not fatal to the case of the complainant because the accused has utterly failed to prove her defence. Moreover, it is not the case of the complainant that Ex.P1 and P2-cheques were given by way of security. Even otherwise since the accused has failed to pay the loan amounts to the complainant, even if the accused issued Ex.P1 and P2- cheques by way of security, provisions of Sec.138 of N.I. Act are applicable to the present case on hand. The deision relied upon by counsel for the accused is not applicable to the present case on hand.
2026. The counsel for accused relied upon decisions in AIR 2008 SC 1325, (2004) 12 SCC 83, SCC 2008 (1) 258, SLP (Crl) No.8641/2018, 2015 (223) DLT 419, 2013 (2) AD (Delhi) 81 and 1992 (74) CC 853. On careful perusal of principles of law laid down in the above said decisions, it is clear that though there is no dispute regarding principles of law laid down in those decisions, the said decisions are not helpful to the accused as the accused has utterly failed to prove her defence.
27. In view of my above discussion, I am of considered opinion that the accused has utterly failed to prove or probablize her defence and thereby to rebut the said statutory presumption available in favour of the complainant. It clearly appears from the evidence on record that the defence put up by the accused is only an afterthought without any basis. Unless and until the accused rebuts the statutory presumption with convincing and cogent evidence, burden cannot be shifted on the complainant. The complainant has placed sufficient materials on record to establish his contention. The evidence on record is sufficient to accept the case of the complainant that accused had issued the cheques in question towards discharge of legally enforceable debt or liability and the complainant has proved all the 21 requirements of Sec.138 of N.I. Act, so as to constitute the offence against the accused. Therefore, Point Nos.1 & 2 are answered in affirmative.
28. Point No.3: As discussed in connection with Point Nos.1 & 2, the complainant has proved his case as to commission of the offence punishable U/s.138 of N.I. Act by the accused. The punishment prescribed for the said offence is imprisonment for a period which may extent to two years or with fine. Considering the facts and circumstances of this case, nature, year of the transaction, nature of the instrument involved, provisions of Sec.117 of N.I. Act, cost of litigation and the rate of interest proposed by Hon'ble Supreme Court in 2012 (1) SCC 260 (R.Vijayan Vs Baby), etc., this court is of the considered view that it is just and desirable to impose fine of Rs.24,00,000/- and out of the said amount a sum of Rs.5,000/- has to be remitted to the State and the remaining amount of Rs.23,95,000/- is to be given to the complainant as compensation as provided U/s.357(1) of Cr.PC and accordingly Point No.3 is answered in Affirmative.
29. Point No.4: For the reasons discussed in connection with Point Nos.1 to 3 this court proceed to pass the following......
22ORDER Acting under Section 255(2) of Cr.PC accused is hereby convicted for the offence punishable under Section 138 of Negotiable Instruments Act. The accused shall pay a fine of Rs.24,00,000/- for the offence punishable U/s.138 of N.I. Act. In default of payment of fine amount, the accused shall under go simple imprisonment for a period of ten months.
By exercising the power conferred U/s.357(1) of Cr.PC., out of total fine amount of Rs.24,00,000/-, a sum of Rs.23,95,000/- is ordered to be paid to the complainant as compensation and Rs.5,000/- is ordered to be remitted to the State.
The bail bond of the accused stands cancelled. The cash security deposited by the accused is ordered to be continued till expiry of the appeal period.
Supply the free copy of this judgment to the accused forth with.
(Dictated to the stenographer, transcript thereof, computerized and print out taken by him is verified, corrected and then pronounced by me in open court on this the 10th Day of January, 2020) (K. GURUPRASAD) XIV A.C.M.M., Bengaluru 23 ANNEXURE Witnesses examined for the complainant:
CW.1 : Mr. Shreekantha K Nayak
Witnesses examined for the defence:
DW.1 : Samruddhi Sanjay Darekar
Documents marked for the complainant:
Ex.P1 & P2 : Two Cheques
Ex.P3 to P6 : Bank endorsements
Ex.P7 : Legal notice
Ex.P8 : postal receipt
Ex.P9 : Postal acknowledgement
Documents marked for the defence:
Ex.D1 : Statement of Account
Ex.D2 : Stop payment letter
Ex.D3 : N.C.R
(K. GURUPRASAD)
XIV A.C.M.M., BENGALURU