Bangalore District Court
Mr.Sivarami Reddy Edugudi V vs Mr. Jayasheel G @ Jayasheel Reddy on 6 May, 2022
IN THE COURT OF XXXIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL UNIT, BENGALURU. (ACMM34)
PRESENT: Sri NAGESH KORGA MOGER, B.Com.LLB.
XXXIV ADDL. CHIEF METROPOLITAN
MAGISTRATE,
Dated : This the 6th day of May, 2022.
C.C.No.51443/2021
COMPLAINANT : Mr.Sivarami Reddy Edugudi V.
S/o Siva Reddy Edugudi,
Aged about 49 years,
R/at Villa No.8, Krishna Kuteer
Phase2, 5th Cross, Hoodi,
Mahadevapura,
Bengaluru 560 048.
(By Mr.E.Venkatarami Reddy
Advocates)
V/s
ACCUSED : Mr. Jayasheel G @ Jayasheel Reddy,
S/o.Sri Gopal Reddy,
Aged about 44 years,
Promoter/M.D/Authorized
Signatory,
M/s.Benaka Developers,
R/at No.5, 1st Cross, Near New
Baldwin School, Venkataramaiah
Layout, Doddabanasawadi,
Bengaluru 560 043.
And also at
Mr. Jayasheel G @ Jayasheel Reddy,
S/o. Sri Gopal Reddy,
Promoter/M.D/Authorized
Signatory,
M/s. Benaka Developers,
R/at Villa No.121, Rainbow
Residency, Halanayakanahalli,
Sarjapura Main Road,
Bengaluru - 35.
2 C.C.No.51443/2021
(By Mr.B. Ramesh Advocate)
1 Date of Commencement 04.11.2020
of offence
2 Date of report of offence 09.02.2021
3 Presence of accused
3a. Before the Court 06.09.2021
3b. Released on bail 06.09.2021
4 Name of the Complainant Mr. Sivarami Reddy Edugudi V.
5 Date of recording of 20.02.2021
evidence
Date of closure of evidence 21.03.2022
7 Offences alleged U/s 138 of the Negotiable
Instruments Act.
8 Opinion of Judge Accused is found guilty.
JUDGEMENT
The Private Complaint is filed under Section 200 of Cr.P.C against the accused alleging that he has committed the offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the complaint are as follows:
The complainant submits that the Accused approached him and represented that he is doing business in real estate and land development in the name of M/s.Benaka Developers and he is the promoter/Managing Director/Authorized Signatory of the same. Further he stated that he has done many projects in and around Bengaluru City and the he has undertaken a project of land development by forming a residential layout in the lands situated at Hosakote, Bengaluru Rural District formed a residential layout by name "HANSIKA".3 C.C.No.51443/2021
3. It is further stated that the Accused offered the Complainant to purchase sites in the said layout called 'HANSIKA' and he also offered him to invest in the said project by promising him that he would share the profits get out of the sale of the sites in the said layout. By believing the Accused words and the Accused company brochures, the Complainant agreed to invest his amount to purchase the sites in the Accused project. At that time the Accused insisted him to pay an advance amount. Accordingly, the Complainant paid an amount of Rs.19,75,000/ to the Accused as follows;
Sl. Amt. Chq No. Date Drawn on
No..
1 Rs.2,00,000/- 000007 3.4.2013 HDFC Bank, I.T. Park,
Whitefield, Bengaluru.
2 Rs.2,00,000/- 000008 5.4.2013 HDFC Bank, I.T. Park,
Whitefield, Bengaluru.
3 Rs.4,00,000/- Through 8.2.2013 UTR No.
RTGS VIJB00001400/HDFCH1303
9723491
4 Rs.4,00,000/- 000003 13.3.2013 HDFC Bank, I.T. Park,
Whitefield, Bengaluru.
5 Rs.4,00,000/- 000002 13.2.2013 HDFC Bank, I.T. Park,
Whitefield, Bengaluru.
6 Rs.1,75,000/- 972389 2.11.2012 HDFC Bank, I.T. Park,
Whitefield, Bengaluru.
7 Rs.2,00,000/- 972388 28.11.2012 HDFC Bank, I.T. Park,
Whitefield, Bengaluru.
4 C.C.No.51443/2021
4. It is further submitted that after receiving the said advance amount, the Accused has not come forward to sell the sites in favour of the Complainant. Then the Complainant requested to return back his advance amount. The Accused had agreed to pay an amount of Rs.30,00,000/ as full and final settlement amount to the Complainant. Accordingly, the Accused issued two Cheques bearing No.589349 dtd.4.11.2020 for Rs.10,00,000/ and another Cheque bearing No.589347 dtd.15.4.2021 for Rs.20,00,000/ both drawn on Bank of Baroda, V.S. branch, Bengaluru.
5. It is further submitted that as per the instruction of the Accused, the Complainant presented the Cheque bearing No.589349 dtd.4.11.2020 through his banker i.e., HDFC Bank for encashment, but the said cheque was returned unpaid for the reason "payment stopped by drawer" with an endorsement dtd.6.11.2020. He intimated the fact of dishonour of the Cheque to the Accused. Then the Accused requested him to represent the same for encashment with an assurance that the same would be honoured without fact. Accordingly, he once again presented the Cheque bearing No.589349 before his banker for encashment on 22.12.2020. But even on the second 5 C.C.No.51443/2021 time, it came to be dishonoured for the reason "payment stopped by drawer" on 23.12.2020. Thereafter, the Complainant got issued demand notice through RPAD on 8.1.2021 through his counsel and the same was served on the Accused on 19.1.2021. Inspite of receipt of legal notice, he has not paid the Cheque amount. Therefore, the contention of the Complainant that the accused intentionally made stop payment of the Cheque amount and thereby committed an offence punishable u/Sec.138 of N.I. Act. Therefore, the Complainant prays to convict and grant compensation.
6. The cognizance for offence was taken. The criminal case came to be registered against the accused. The summons was issued to the accused. The accused in obedience of the summons appeared before the Court and enlarged on bail.
7. The substance of the accusation was framed, read over and explained to the accused in the language known to him. The accused pleaded not guilty and claimed to try the case. Hence, the case was posted for complainant's evidence.
8. The Complainant got examined himself as PW1 and he got marked 8 documents as Ex.P.1 to Ex.P.8. 6 C.C.No.51443/2021
9. The statement as required under Section 313 of Cr.P.C. was recorded. The accused denied all the incriminating evidence appeared against him. The Accused has not tendered his evidence.
10. I heard the arguments.
11. Now the following points that arise for the consideration of this Court are :
1) Whether the Complainant proves that the Accused has issued the Cheque in question in discharge of legally enforceable debt or liability as contended by him?
2) Whether the Complainant further proves that the Accused committed the offence punishable 138 of Negotiable Instruments Act?"
3) Whether the Complainant is entitled for the relief as prayed in the complaint.
4) What order?
12. My answer to the above points are as follows :
POINT No.1 & 2 : In the Affirmative PONT No.3 : In the Affirmative POINT No.4 : As per final order for the following;
REASONS
13. POINT No.1 and 2:- It is the specific case of the Complainant that the Accused had issued the Cheque for discharge of legally recoverable debt. In order to prove his case, 7 C.C.No.51443/2021 the Complainant got examined himself as PW1 and he filed an affidavit in lieu of examinationinchief and reiterated the averments of complaint and got marked in all 8 documents which are marked at Ex.P.1 to Ex.P.8. Ex.P.1 is the Cheque in question. Ex.P.2 and Ex.P3 are bank endorsements. Ex.P.4 is the legal notice dtd.8.1.2021. Ex.P.5 is the postal receipt. Ex.P.6 is the postal acknowledgement. Ex.P7 is the postal receipt. Ex.P8 is the bank statement. The Complainant filed this complaint on 9.2.2021. On perusal of Ex.P.1 to Ex.P.7 and averments of the complaint, it is crystal clear that the Complainant filed this complaint within the time of limitation. There is no dispute regarding filing of complaint within time of limitation.
14. Though sufficient opportunities were given to the Accused, he did not crossexamine PW1 and he did not adduce any evidence on his behalf. Hence, the crossexamination of PW1 was taken as nil and defence evidence was also taken as nil. The evidence available on record on behalf of the Complainant remained unchallenged. In other words, the Cheque in question belongs to the Accused and it bears his signature. There is no dispute regarding issuance of Cheque by the Accused and signature thereon. As regard to legally 8 C.C.No.51443/2021 enforceable debt 2010 (11) SCC 441 (Rangappa V/s. Sri Mohan) it is held that;
"the presumption mandated by u/Sec.139 of N.I. Act includes a presumption that there is exists of legally enforceable debt or liability. This is of course in the nature of a rebuttal presumption and it is open to the Accused to raise 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 the Accused has to rebut the presumption u/Sec.139 of N.I. Act, 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 or her own. "
15. In the recent decision the Hon'ble Apex Court reported in 2021 (1) KCCR 545 between M/s. Kalamani Tex & Another and P. Balasubramanian at para No.14 and 15 it is held as under;
"Adverting to the case in hand, we find on a plain reading of its judgement that the trial court completely overlooked the provisions and failed to appreciate the statutory presumption drawn u/Sec.118 and 139 of N.I. Ac. The Statute mandates that once the signature(s) of an Accused on the Cheque/ negotiable instrument are established, the these 'reverse onus' clauses 9 C.C.No.51443/2021 become operative. In such a situation, the obligation shifts upon the Accused to discharge the presumption imposed upon him. This point of law has been crystalized by this Court in Rohitbhai Jivanlal Patel Vs. State of Gujarat, (2019) 18 SCC 106 in the following words:
"In the case at hand, even after purportedly drawing the presumption u/Sec.139 of the N.I. Act, the trial Court proceeded to question the want of evidence on the part of the Complainant as regards the source of funds for advancing loan to the Accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the Accused. This approach of the trial Court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the Accused and unless the Accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the Complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the appellant - accused....."
"Once the 2nd Appellant had admitted his signature on the Cheque and the Deed, the trial Court ought to have presumed that the Cheque was issued as consideration for a legally enforceable debt. The trial Court fell in error when it called upo the Complainant - Respondent to explain the circumstances under which the appellants were liable to pay. Such approach of the trial Court was directly in the teeth of established legal position as discussed above, and amounts to a patent error of law."
16. On perusal of order sheet, it depicts that even after giving sufficient opportunity the Accused did not make use of it 10 C.C.No.51443/2021 and did not crossexamine PW1 and adduce evidence on his behalf. Therefore, there is no defence on behalf of the Accused. Presumption available in favour of the Complainant u/Sec.138 of N.I. Act is not rebutted by the Accused. In view of above discussion, I am of the considered view that the Accused utterly failed to rebut the presumption available to the Complainant by giving cogent and convincing evidence. The Complainant produced relevant materials on record to believe his case. The case of the Complainant is acceptable one as there are materials on record on his behalf. The Complainant has placed sufficient materials on record to establish his case and the evidence on record is sufficient to accept the case of the Complainant that the Accused had issued Cheque in question towards legally enforceable debt or liability and the Complainant has proved all ingredients of Sec.138 of N.I Act so as to constitute offence against the Accused. Therefore, the points No.1 and No.2 are answered in the affirmative.
17. Point No.3: As discussed in Point No.1 and 2, the Complainant has proved his case as to commission of offence punishable u/Sec.138 of N.I. Act by the Accused. Considering the facts and circumstances of the case, nature of the case, year of transaction, nature of instrument involved, 11 C.C.No.51443/2021 provisions of Sec.117 of N.I. Act, cost of litigation and rate of interest proposed by Hon'ble Supreme Court in 2012 (1) SCC 260 (R. Vijayan V/s. Baby), etc., this court is of the considered view that it is just and reasonable to impose a fine of Rs.11,22,000/ and out of said amount, a sum of Rs.5,000/ has to be remitted to the State and the remaining amount of Rs.11,17,000/ is to be given to the Complainant as compensation as provided u/Sec.357 (1) of Cr.P.C. and accordingly, Point No.3 is answered in the Affirmative.
18. Point No.4 : In view of discussion held in Point No.1 to 3, I proceed to pass the following :
ORDER Acting under Section 255 (2) of Cr.P.C., the accused is hereby convicted for the offence punishable under Section 138 of Negotiable Instrument Act. The Accused shall pay a fine of Rs.11,22,000/ (Rupees Eleven Lakhs and Twentytwo Thousand only) for the offence punishable u/Sec.138 of N.I. Act. In default of payment of fine amount, the Accused shall undergo simple imprisonment for a period of three months.
By exercising the power conferred u/Sec.357(1) of Cr.P.C., out of total fine amount of Rs.11,22,000/, a sum of Rs.11,17,000/ (Rupees Eleven Lakhs and Seventeen Thousand only) is ordered to be paid to the Complainant as 12 C.C.No.51443/2021 compensation and Rs.5,000/ is ordered to be remitted to the State.
The bail bond executed by the accused and cash security deposited by the Accused is ordered to be continued till expiry of the appeal period. Supply the free copy of this judgement to the Accused forthwith.
(Dictated to the Stenographer, transcript computerized by her, revised corrected and then pronounced by me in the open Court on this the 6th day of May, 2022) (NAGESH KORGA MOGER), XXXIV ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 Mr. Shivarami Reddy Edugudi V.
2. Documents marked on behalf of complainant:
Ex.P.1 Cheque Ex.P.2 & Bank endorsements Ex.P.3 Ex.P.4 Office copy of Legal Notice Ex.P.5 Postal receipt Ex.P.6 Postal acknowledgement Ex.P.7 Payment Receipt Ex.P.8 Bank statement.
3. Witnesses examined on behalf of Accused: NIL
4. Documents marked on behalf of Accused : NIL (NAGESH KORGA MOGER), XXXIV ACMM, BENGALURU.