Bangalore District Court
D. Venkat Krishnappa vs Ramappak .K Talwar on 18 January, 2017
IN THE COURT OF THE XII ADDL. CHIEF
METROPOLITAN MAGISTRATE, AT BENGALURU
Dated this the 18th day of February 2017
Present: Sri. Rajkumar .S.Amminbhavi., B.Com., LLB (Spl)
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No. 17312/2014
Complainant: D. Venkat Krishnappa
S/o. Dasappa
Aged about 51 Years
R/at. No.C-419, New Housing
Colony (NHC) Indian Institute of
Science, (IISC), Bengaluru-560 012.
(By V. Anand. Adv)
- Vs -
Accused: Ramappak .K Talwar
S/o. Kallappa N. Talwar
R/at. No.D-236, 1st Floor
New Housing Colony (NHC)
Indian Institute of Science (IISC)
Bengaluru-560 012.
(By Kemparaju. Adv)
Offence U/s138 of Negotiable
Instruments Act.
Plea of the accused Pleaded not guilty.
Final order Conviction
******
2 C.C. 17312/2014
JUDGMENT
1. The Complainant filed this Complaint against the accused U/s.200 of Cr.PC for the offence punishable U/s 138 of N.I.Act.
2. The brief facts of the case of the complainant are; that, both the complainant and accused are known to each other for the past 15 years as both of them are colleagues working in the same organization at Indian Institute of Science at Bengaluru. On account of well acquainted with the complainant, the accused had approached the complainant and requested for hand loan of Rs.10,00,000/- during the month of March 2012 for the purpose of purchase a site and also to overcome some of his urgent financial commitments. Accordingly, the complainant on good faith, he had advanced the said loan amount with a sole intention to helping the accused to overcome his financial commitments as a true friend had advanced the said loan amount of Rs.10,00,000/- to the accused by way of cash in the month of March 2012. Though he has intended to advance the loan in question by way of cheque. But, he has advanced the loan in question by way of cash. At the time of advancement the loan in question the accused had agreed and assured that, he will repay the said amount within one year with bank interest on the principal amount at the time of repayment. After lapse of stipulated period, on repeated request and demand made by the complainant to the accused for repayment of the said borrowed loan amount, the accused postponed the same by 3 C.C. 17312/2014 giving one or other pretext and finally, the accused for discharge the loan in question had issued cheque bearing No.623490, dated:21.03.2014 for Rs.10,00,000/- drawn on Canara Bank, IISC Branch, Bengaluru-560 012 in favour of the complainant and assured that, the said cheque would be honoured on its presentation. Then, as per the instruction of the accused, the complainant has presented the said cheque for encashment through his banker i.e., Canara Bank, IISC Branch, Bengaluru on 09.08.2014, but the said cheque was dishonoured with an endorsement as "Funds Insufficient"
on 09.05.2014. Thereafter, the complainant has informed the said fact to the accused, but the accused did not responded the same. Then, the complainant had got issued the legal notice through his counsel on 20.05.2014 by way of RPAD as well as Speed Post, calling upon him to repay the said borrowed loan amount within 15 days from the date of receipt of the said legal notice and it was duly served to the accused on 22.05.2014. But, the accused had issued the untenable and evasive reply to the legal notice issued by the complainant and he did not repaid the borrowed the loan amount. Hence, the complainant had constrained to file the complaint against the accused for the offence punishable under Section 138 of N.I.Act., which is well within time and cognizance has been taken and registered the case in it as PCR.
3. After recording of the sworn statement of the complainant, the complaint is registered in criminal case 4 C.C. 17312/2014 register and after issuance of summons to the accused, pursuant to the summons the accused had appeared before this Court through his counsel and enlarged him on bail. The substance of accusation was recorded and read over the accused in his vernacular. He pleaded not guilty. Hence, claims for trail.
4. In order to prove the case of the complainant, the complainant got himself examined as PW.1 & got 10 documents marked as Ex.P.1 to Ex.P.10. Then, statement of accused under Section 313 of Cr.P.C., was recorded. The accused had denied the incriminating statement against him and the accused himself examined as DW-1 and in support of his case he did not marked any documents and closed his evidence and posted for arguments.
(As per the judgment passed by their lordship in Cr.R.P.No.1585/2009 on 12.03.2013 of Hon'ble High Court, Bangaluru conducting of denova trial does not arises)
5. Heard arguments.
6. The following points arise for my determination;
1. Whether the complainant proves that the accused had issued cheque bearing No.623490, dated:21.03.2014 for Rs.10,00,000/- drawn on Canara Bank, IISC Branch, Bengaluru, for discharge of the loan amount and when the said cheque presented for encashment, it was dishonoured with an endorsement "Funds 5 C.C. 17312/2014 Insufficient" and after issuance of the legal notice he fails to repay the said amount and Thereby, the accused have committed offence punishable U/s. 138 N.I.Act?
2. What order ?
7. My answer to the above points are;
Point No.1 : In the Affirmative
Point No.2 : As per final order for the
following;
REASONS
8. POINT NO.1: On perusal of the evidence of PW-1 he has reiterated as per the averments made in the complaint and she has got marked 10 documents namely, cheque which is marked as Ex.P-1, the signature of the accused therein which is marked as Ex.P1(a), bank endorsement which is marked as Ex.P2, the legal notice which is marked as Ex.P3, the speed post receipt and RPAD postal receipt which are marked as Ex.P4 and Ex.P5, the complaint lodged to the post mater for non receiving the postal acknowledgment on 13.06.2014 which is marked as Ex.P6, the postal department have issued the endorsement about the postal cover has been duly served to the accused which is marked as Ex.P7, the on demand promissory note and consideration receipt which are marked as Ex.P8 and Ex.P9, the signature of the accused therein which are marked as 6 C.C. 17312/2014 Ex.P8(a) and Ex.P9(a), the reply notice which is marked as Ex.P10.
9. During the course of cross of PW-1 he has deposed that, himself and accused are serving at Indian Institute of Science and thereby, both of them well acquainted with each other. But, both are working in different department. He had two children in the year 2012 and he was drawing monthly salary of Rs.40,000/- to Rs.50,000/-. He deposed that, he was not borrowed the loan from his office either for construction of house or for purchase of vehicle and also he has not obtained Festival advance. But, he cannot say exact date in the month of March-2012 when he was advanced the loan in question to the accused. He deposed that, the accused has borrowed the said loan from purchase of the site. But, he has not made enquiry which number of the site and its location. He was not obtained any documents from the accused, at the time of advancement the loan in question to the accused for the security purpose. He do not know exact monthly salary of the accused in the year 2012. He was having bank account and the accused was also having bank account in the same bank. He deposed that, in the month of March 2012 he was having bank balance about Rs.8,00,000/- to Rs.10,00,000/-. He is an income tax assessee and he was not shown the loan in question advanced to the accused in his income tax returns. It is true that, there is no impediment for transfer of the said loan amount from his bank account to the accused bank account.
7 C.C. 17312/2014But, witness volunteers that, the accused had demanded for advance the loan in question by way of cash and thereby, he was advanced the loan in question to the accused by way of cash. Since he has assured that, he will repay the said amount within one year. He denied the suggestion that, writing of the Ex.P1 are in his own hand writing. He denied the suggestion that, he has stolen the Ex.P1 and other three cheques of the accused SBI Bank account and two cheques of the accused Canara Bank account. He denied the suggestion that, on account of the cheque stolen by him, his department officers and Yeshwanthpura police have made enquiry about himself. He denied the suggestion that, Ex.P1 is in the year 2011 and not in the year 2014. It is true that, the accused and himself working in the same department and the accused is working in the higher post than himself. Since the accused was having handsome salary and he was not in need to borrowed the loan in question from the accused. He deposed that, prior to the loan in question, the accused was also borrowed the loan from him and said amount he was advanced to the other persons and he has not received any documents with respect to the accused was borrowed the loan from him and said amount has been advanced by the accused to other persons. He was got constructed his house in the year 2013 and he has also conducted opening ceremony of his house in the year 2013. He denied the suggestion that, apart from his salary, he was not having any other source of income. He denied the suggestion that, in the year 2013 he was obtained the 8 C.C. 17312/2014 housing loan and got constructed his house. It is true that, he has completed his construction of his house from 2011 to 2013. He denied the suggestion that, he was spend an amount about Rs.50,00,000/- to Rs.60,00,000/- for construction of his house. He know the accused that, he was having the capacity of the repayment of the loan in question. It is true that, he was also filed the complaint under Section 138 of N.I.Act against the said Veerupakshappa Saranga Matt. It is true that, in that case the accused examined on his behalf. It is true that, in that case he has deposed that, he was advanced loan to the said Veerupakashappa Sarang Matt from obtained amount from the present accused. He has not produced the reply notice issued by the accused to him. He denied the suggestion that, the accused has borrowed the loan amount of Rs.2,00,000/- only and for discharge the said loan amount of Rs.2,00,000/- the accused was issued Ex.P1.
10. The accused himself examined as DW-1 in his chief- examination he has deposed that, he know the present complainant for the last 8 to 10 years. He deposed that, the complainant was working as LIC agent and himself and complainant are working in the Tata Institute. He deposed that, the complainant is being LIC agent and thereby, he was obtained policy from the complainant for the last 10 year and thereby, he was obtained two LIC policies. He deposed that, he was having some financial transaction with the complainant, on account of that, complainant himself was 9 C.C. 17312/2014 borrowed the loan amount of Rs.2,00,000/- from him in the year 2005 or 2006 for his urgent necessities. Further, he deposed inspite of repeated request and demand made by him to the complainant for repay the loan amount of Rs.2,00,000/- from him, then the complainant was stated that, loan amount of Rs.2,00,000/- the present complainant was advanced to the some other persons i.e., Veerupakashi Sarangi Matt. But, Veerupakashappa Sarangi Matt was not repaid the said loan to the complainant and thereby, the complainant was not repaid the said loan amount of Rs.2,00,000/- to him. Further, DW-1 deposed that, the present complainant was filed the complaint against one Veerupakashappa Sarangi Matt under Section 138 of N.I.Act and that complaint lodged against the said Veerupakshappa Sarangi Matt was ended on conviction. He deposed that, he was not at all borrowed the loan amount of Rs.10,00,000/- from the complainant and for discharge the said loan amount he has not issued the Ex.P1. He deposed that, the complainant used to visit his office table and that, the complainant has stolen his five signed blank cheque and misused the said cheque and filed the false complaint him.
11. The accused in his cross-examination he has deposed that, apart from the present case, two or three cheque bounce cases are pending against him and in that cases NBW was issued against him, on account of his absence before the Court. It is true that, he was received the legal notice as per the Ex.P3 on 05.06.2014 and in this case M.S. Raju and 10 C.C. 17312/2014 Associates have issued the reply notice on behalf of the present accused which is marked as Ex.P10. It is true that, Ex.P1 is belonging to his bank account cheque, But, signature found on the Ex.P1(a) is not his own signature. He deposed that, Ex.P1(a), Ex.P8(a) and Ex.P9(a) are not his own signature and those signatures have been forged by the complainant. It is true that, he has not lodged any police complaint against the present complainant with respect to the signature marked as Ex.P1(a), Ex.P8(a) and Ex.P9(a) are forged by the complainant and there is no impediment to lodge the complaint before the police with respect to the signature marked as Ex.P1(a), Ex.P8(a) and Ex.P9(a) which are forged by the complainant. Further, he has deposed that, since the complainant being the LIC agent and to that effect he has issued cheques for payment of the premium amount in the hands of the complainant and the complainant was forged his signature and presented the said cheque for encashment and thereby, those cheques were dishonoured with an endorsement as "Funds Insufficient". It is true that, in C.C.No.13466/2008 before the 13th ACMM Court on 18.02.2010 in his chief-examination he has deposed that, the present complainant was borrowed the loan amount of Rs.1,00,000/- from him. He denied the suggestion that, for repayment of the said loan amount of Rs.10,00,000/- to the complainant, he has issued the Ex.P1, Ex.P8 and Ex.P9 to the complainant.
11 C.C. 17312/201412. On perusal of the evidence of the respective parties and coupled with the documents produced by the respective parties. It is an admitted fact that, both the complainant and accused are known to each other for the last 10 years. Since both of them are working in the same Institute like Indian Institute of Science. Prior to filing of the present complaint the complainant had complied all the necessary ingredients under Section 138 of N.I.Act and instead of repayment of the said borrowed loan amount the accused had issued reply notice as per the Ex.P10. As per the case of the complainant that, since both of them well acquainted with each other and thereby, he was advanced the said loan amount by way of cash and for discharge the said loan amount he has issued the Ex.P1 and he was not advanced the loan amount on interest basis. But, the accused himself as per the specific defence by the accused, he will pay the interest at the rate of 5% per month as per the reply notice Ex.P10. Though the DW-1 in his chief-examination he has taken specific defence that, the complainant himself borrowed the loan amount of Rs.2,00,000/- from him in the year 2005-06 and that amount has been advanced to the some other persons like Veerupakashappa Sarang Matt and the complainant was assured that, he will repay the said amount of Rs.2,00,000/- after he receiving which was advanced to the said Veerupakashpappa Sarang Matt and thereby, he will repay it and the accused had taken another defence that, as per the reply notice i.e. Ex.P10 in para No.3 of the reply notice that, he was actually borrowed a hand loan of Rs.2,00,000/- on 12 C.C. 17312/2014 monthly interest basis at the rate of 5 % per month of from the complainant during the year 2004 and while availing the said loan amount he had given signed blank two cheques bearing No.623490 and 880771 pertains to Canara Bank of it Ex.P1 is cheque in question and three signed blank cheques bearing No.463903, 463915 and 463916 pertains to State Bank of India to the complainant as security for the purpose of said loan, later he had repaid the entire loan amount of Rs.2,00,000/- and interest accrued thereon during the year 2005, while repaying the said loan amount and interest he had demanded the complainant for returned of the aforesaid signed blank cheques, but, the complainant convinced him that, the same were misplaced somewhere in the complainant's house and assured him that, the complainant will return the said cheques, if traced out. But, till today the complainant had not returning back the said cheques and now the complainant is illegally claiming by using a cheques out of the said cheques. The contention taken by the accused in is reply notice at para No.3 is contrary to the evidence of the accused during the course of his chief- examination and suggestion made by the counsel for the accused during the course of cross-examination and apart from that, the accused had issued the Ex.P1 cheque, Ex.P8 on demand pronote and Ex.P9 consideration receipt. But, he had denied that, the signature found on the Ex.P1(a), Ex.P8(a) and Ex.P9(a) are not his own signature. On perusal of the Ex.P2 bank endorsement issued by his banker as "Funds Insufficient" not drawer signature differs. Therefore, 13 C.C. 17312/2014 the alleged defence set-up by the accused the during the course of his cross-examination and during the course of his chief-examination are altogether contrary to the defence taken by him in reply notice Ex.P10 at para No.3. On the other hand comparing the signature of the accused during the course of his evidence and at the time of recording of his plea and at the time of enlarged him on bail the signature found on vakalath are one and the same. Therefore, the alleged defence taken by the accused that, he was issued his signed blank cheque, at the time of borrowed the loan amount of Rs.2,00,000/- in the year 2004 only from the complainant and the complainant was misused his signed blank cheque and got filed by the present complaint that itself suffice that, he has failed to rebut the alleged the defence by the accused during the course of his evidence and documents. Therefore, he has failed to rebut the provision under Section 139 of N.I.Act. Though he has deposed that, he was only borrowed the loan amount of Rs.2,00,000/- and he has already repaid the same except his oral testimony, he has not produced any iota of documents that, he has already repaid the said amount of Rs.2,00,000/- with interest at the rate of 5% per month from 2004 and inspite of demand made by him for return of his three signed blank cheque and other two cheques of Canara Bank as per the defence set-up by the accused in is reply notice and even during the course of cross-examination of DW-1 he has admitted that, he has not made any efforts or he has not taken any legal steps against the complainant for lodging the police complaint or filing the 14 C.C. 17312/2014 private complaint against the present complainant that, the complainant was misused his signed blank cheque. "As per the averments made in the reply notice if the said defence taken by the accused is to be believed that, he was borrowed the loan amount of Rs.2,00,000/- on monthly interest at the rate of 5% per month from the complainant in the year 2004 and at that time he has issued the Ex.P1 cheque.
13. It can be presumed that, no any ordinary prudent man will issue signed blank cheque to any other persons without having any financial transaction between themselves and the accused is not ordinary person who was also serving in TATA Institute for the last 10 years and he know the cause and consequences issuance of the signed blank cheque to the other persons. Therefore, the alleged defence set-up by the accused that, he was issued signed blank cheque at the time of borrowed the loan amount of Rs.2,00,000/- only in the year 2004 and inspite of repayment of the said loan amount he was failed to return the said cheque and got misused the same and filed the false complaint against him is not justifiable. Even averments made in the reply notice is to be presumed that, he was only borrowed the amount of Rs.2,00,000/- in year 2004 and at that time he has agreed that, he will pay interest at the rate of 5% per month which was borrowed in the year 2004 that is to be considered already 12 years elapsed, till today there is no iota of documents that, he was already repaid the said amount of Rs.2,00,000/- to the complainant except his oral testimony 15 C.C. 17312/2014 and apart from that, he has not challenged at the time of taking cognizance of this Court, after filing of the present complaint. Hence, in can be presumed that, no ordinary prudent person issue signed blank cheque to anybody without having monetary transaction between themselves and in this case accused was acquainted with the complainant. Since both of them were and are working Indian Institute of Science and he know the cause of consequences of issuance of signed blank cheque. Further, there is no hard and fast rules that, drawer himself wrote the contents of cheque.
14. As per the specific defence taken by the accused in his reply notice Ex.D10 at para No.3, even if it can be presumed that, accused might have borrowed the loan amount of Rs.2,00,000/- only from the complainant in the year 2004 and he was agreed to repay it with interest at the rate of 5% per month from 2004, but he was not produced any iota of documentary evidence that, he was already repaid it. Hence, the accused was till today not repaid the said borrowed loan amount of Rs.2,00,000/- with interest at the rate of 5% per month from 2004. Therefore, looking to the trail faced by the complainant, the complainant had advanced the amount of Rs.2,00,000/- in the year 2004 already 12 years have elapsed. The cheque amount i.e., Ex.P1 is for Rs.2,00,000/-, therefore, for awarding simple interest at the rate of 5% per month it is just and proper. Therefore, interest at the rate of 5% per month is Rs.14,40,000/- out of part the cheque amount of Rs.2,00,000/- from 2004 till 2016 it is just and 16 C.C. 17312/2014 proper. Therefore, the accused is liable to pay total amount of Rs.16,40,000/- to complainant. Hence, the probability of the preponderance is higher on the side of the complainant rather than the accused.
15. Ordinarily offence under Section 138 of N.I.Act "mensrea" is not essential, under Section 138 of N.I.Act , is bring into operation rule of "strict liability", whereas, "mensrea" is essential ingredients in criminal offences. Therefore, The complainant has proved his case against the accused, since offence under Section 138 of N.I.Act, element of "Mensrea" has been excluded in general public interest to curb the instances of dishonouring of cheques and to lend the credibility to the commercial transaction. Therefore, in this case also the accused knowing fully well that, he had borrowed the loan in question from the complainant and to discharge the loan in question he had issued Ex.P1 to the complainant.
16. Hence, in the light of the above observation, the complainant has successfully proved that, the accused has committed offence punishable under Section 138 of N.I. Act with these reasons, I am the opinion that, the complainant successfully established before the Court, the accused has issued Ex.P1 to the complainant for the legally recoverably. Therefore, I answer the point No.1 affirmative.
17. Point No.2 :- In view of my findings on Point No.1 in the affirmative, I proceed to pas the following...
17 C.C. 17312/2014ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of Rs.16,40,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for five months.
Out of the said fine amount,
Rs.16,35,000/- shall be paid to the
complainant as compensation, as provided U/s 357 of Cr.P.C., and Rs.5000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands cancelled.
Free copy issued to the accused.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified, corrected and then pronounced by me in the open Court on this the 18th day of February 2017).
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 D. Venkat Krishnappa 18 C.C. 17312/2014 List of documents exhibited on behalf of the complainant:
Ex.P.1 Cheque Ex.P.1(a) Signature of the accused Ex.P.2 Bank endorsement Ex.P.3 The legal notice Ex.P.4 & 5 The Speed Post receipt and RPAD receipt Ex.P.6 The complaint lodged to the Post master Ex.P.7 The endorsement issued by the postal
authority about the service of the notice Ex.P.8 On demand pronote Ex.P.8(a) Signature of the accused Ex.P.9 Consideration receipt Ex.P9(a) Signature of the accused Ex.P.10 Reply notice List of witnesses examined on behalf of the accused :
[ NIL List of documents exhibited on behalf of the accused :
NIL XII Addl. Chief Metropolitan Magistrate, Bengaluru City.19 C.C. 17312/2014
(vide separate judgment pronounced in the open Court) ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of Rs.16,40,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for five months.
Out of the said fine amount,
Rs.16,35,000/- shall be paid to the
complainant as compensation, as provided U/s 357 of Cr.P.C., and Rs.5000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands cancelled.
Free copy issued to the accused.
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
20 C.C. 17312/2014 21 C.C. 17312/2014Heard Inference