Bangalore District Court
Karthik. A.R vs Sathya Bhushan. S on 5 September, 2018
C.C.No.9804/2017
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
Present: Smt. HEMA PASTAPUR
B.A., LL.B.,
XXII Addl. Chief Metropolitan Magistrate,
Bengaluru.
Dated this the 5th day of September 2018
C.C.No.9804/2017
Judgment under section 355 of Code of Criminal Procedure
Complainant : KARTHIK. A.R,
s/o Late A.C. Raghuram Raju,
Aged about 23 years,
Residing at No.68,
Sri Durga Nilaya,
Govindappa Road,
Basavanagudi,
Bengaluru - 560 004,
Occupation:- Business.
(By Shri Kesthur N. Chendra Shekher, Advocate)
V/s
Accused : SATHYA BHUSHAN. S,
s/o S.R. Srikantiah,
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C.C.No.9804/2017
Aged about 38 years,
Residing at No.282,
Next to Vidya Vahini Convent,
Hebbal 2nd Stage,
Mysore - 570 017
Also at:-
No.1787/B, "Dhanya"
10th Main Road,
Vijayanagar 2nd Stage,
Mysore - 570 017.
(By Shri P. Satyanarayana, Advocate)
JUDGMENT
That, the complainant has filed the private complaint under section 200 of Code of Criminal Procedure, for taking action against the accused for the offence punishable under section 138 of the Negotiable Instruments Act.
That, the brief facts of the present case are as under:-
1. That, the complainant is an entrepreneur involved in several business in Bengaluru and other places and the accused was in- 2
C.C.No.9804/2017 charge of running the Computer software Applications business in said company of the complainant and in course of business activities the accused became familiar with the complainant. That, the accused had approached and requested the father of the complainant who was the one of the director of the company for advancing him a sum of Rs.25,00,000/- for his legal necessities and the complainant considering the needs of the accused had advanced him a sum of Rs.10,00,000/- on various dates. That, the accused after availing the said loan amount from the complainant had failed to return the same and on persistent demands made by the complainant he issued in his favour the two cheques bearing No.211033 and No.211034 dated:-05.10.2016 for a sum of Rs.5,00,000/- each drawn on State Bank of India, Hebbal Industrial Area branch, Metagalli Post, Mysore - 570 016. That, the complainant had presented the said cheques for encashment in Yes Bank, Jayanagar, branch
- 560 011 and on 08.12.2016 the said cheques were returned with the sharas as 'Funds Insufficient'. That, the complainant for the aforesaid acts of the accused on 19.12.2016 had issued the Legal notices to him through RPAD and Speed post and the same 3 C.C.No.9804/2017 were returned as not served. That, the complainant for all aforesaid acts of the accused has filed the present complaint.
2. That, on complaint being lodged by the complainant, this court registered the case in concerned register and took the cognizance for the offence punishable under section 138 of the Negotiable Instruments Act and thereafter, recorded the sworn statement of the complainant and after satisfying with the materials placed on record registered the case against the accused in Register No. III and issued summons to him. That, the accused in pursuance of said summons appeared before this Court through his Learned counsel and he was enlarged on bail. That, substance of accusation of the accused has recorded and read over him in language known to him and he has not pleaded guilty and claimed to tried. That, after the completion of complainant side evidence the statement of the accused as contemplated under section 313 of Code of Criminal Procedure Code, has recorded and read over him in language known to him and he denied all incriminating evidence appearing against him.
3. That, I have heard the arguments and perused the materials placed on record. That, the accused has submitted the 4 C.C.No.9804/2017 written arguments and I have gone through the same. That, the following points arise for My consideration and determination:-
1. Whether the complainant has proved that, the accused to discharge his legally enforceable debt had issued in his favour the two cheques bearing No.211033 and No.211034 dated:-
05.10.2016 for a sum of Rs.5,00,000/- each drawn on State Bank of India, Hebbal Industrial Area branch, Metagalli Post, Mysore - 570 016?
2. Whether the complainant has further proved that, the said cheques were dishonoured as 'Funds insufficient' in the account of the accused and thereby the accused has committed the offence punishable under section 138 of the Negotiable Instruments Act?
3. Whether the complainant has complied with the provisions of section 138(b) of the Negotiable Instruments Act?
4. What order?
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4. That, the complainant to substantiate his aforesaid contentions has deposed himself as PW1 and got marked the documents at EXs.P1 to 8 and closed his side.
That, the accused to substantiate his aforesaid contentions has deposed himself as DW1 and got marked the documents at EXs.D1 to 11 and closed his side.
5. That, My answer to the aforesaid points are as under:-
Point No.1 :- In the AFFIRMATIVE Point No.2 :- In the AFFIRMATIVE Point No.3 :- In the AFFIRMATIVE Point No.4 :- As per the final order for the following:-
REASONS
6. Point No.1:- It is specific contention of the complainant that, the accused had approached and requested his father for advancing him a sum of Rs.25,00,000/- for his legal necessities and considering the said needs of the accused he advanced him a sum of Rs.10,00,000/- on various dates.
7. It is pertinent to note here that, the accused in his evidence has specifically contended that the company namely M/s. Radiowiz Systems Pvt. Ltd., was commenced in the month 6 C.C.No.9804/2017 of August 2014 and the complainant's father had approached him with a request to work in the said company as a Chief Technology Officer and for which he agreed. That, the accused has further contended that as the said company was a new set up the electronic components were to be procured for development of RFID products based on requirement of the clients. That, the accused has further contended that the electronic components were purchased on online and as the directors and the registered office was at Bengaluru, the directors used to transfer the required amount to his personal account for procurement of materials. That, the accused has further contended that on 24.10.2014 a sum of Rs.20,000/- was transferred to his account from the account of the said company for the purchase of materials and the same was returned by him to the company on 22.12.2014 as the required materials were not delivered. That, the accused has further contended that on 14.11.2014 a sum of Rs.9,100/- and Rs.10,000/- were transferred to his account from the company's account for the purchase of materials. That, the accused has further contended that on 12.12.2014 a sum of Rs.10,000/- was transferred to his 7 C.C.No.9804/2017 account towards TA and DA for the expenditure incurred on visiting the JSW plant at Toranagallu, Hospet and on 27.02.2014 a sum of Rs.2,000/- was paid to him through a cheque for making payment to the BSNL telephone bill. That, the accused has further contended that on 20.05.2015 a sum of Rs.20,000/- was transferred to his account for the purchase of electronic components amounting to Rs.12,998/- and during the period of 17.08.2015 to 21.08.2015 he was in New Delhi on official duty. That, the accused has further contended that in the months' of May and June 2015 the said company was facing the financial crisis and for which the directors of the said company have asked him for organizing the funds and for which he brought a sum of Rs.5,00,000/- from the different money lenders on his personal guarantee. That, the accused has further contended that in the month of November 2015 the liabilities of the said company were too much and as the directors of the said company were not cooping-up the liabilities so he sold his own car to pay the monthly interest to the local money lenders and for which he paid monthly interest of Rs.15,000/- to the said local money lenders.
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C.C.No.9804/2017 It is pertinent to note here that, the accused in his evidence has got marked the printout copies of the Form Vat -7 at EX.D1, e-TDS Intermediary at EX.D2, Shipped payment information at EX.D3, Order summary at EX.D4, printouts pertaining to Gmail for order confirmation at EXs.D5, 7 and 9 and Proforma invoice at EX.D6. That, the accused has also got marked his Statement of account pertaining to State Bank of India, from 01.03.2015 to 31.12.2015 at EX.D11.
8. It is pertinent to note here that, the entire burden lies upon the complainant to substantiate that he advanced a sum of Rs.10,00,000/- to the accused on various dates. It is pertinent to note here that, the complainant in his evidence has got marked the Account statement pertaining to M/s. Radiowiz Systems Private Ltd., pertaining to State Bank of India, from 15.09.2014 to 31.10.2017 at EX.P7 and the Account statement of his mother Smt. Prema Raghu pertaining to Andhra Bank at EX.P8.
It is significant to note here that, the accused in cross- examination of the complainant has tried to elicit that the complainant is having no capacity to advance him a sum of 9 C.C.No.9804/2017 Rs.10,00,000/- and he has also not having the capacity to borrow a sum of Rs.10,00,000/- from the complainant and it is pertinent to note here that, the accused in cross-examination of the complainant has tried to elicit that on 14.11.2014, 24.10.2014, 12.12.2014, 22.07.2015 and 20.05.2015 the company had transferred a sum of Rs.5,000/-, Rs.20,000/-, Rs.10,000/-, Rs.2,000/- and Rs.20,000/- respectively to his account for the office use. It is pertinent to note here that, the accused though, has cross-examined the complainant in length, but, all his efforts were went in vain.
It is pertinent to note here that, as stated above the accused has contended that he borrowed a sum of Rs.5,00,000/- from money lenders. It is pertinent to note here that, the accused has not specifically mentioned when and from whom he borrowed the said amount and to substantiate his aforesaid contentions has not produced before the Court any document. It is pertinent to note here that, in absence of any cogent evidence the contention of the accused that he had borrowed a sum of Rs.5,00,000/- from the money lenders cannot be believed and accepted.
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C.C.No.9804/2017 It is significant to note here that, the accused in his cross- examination in page No.7 has admitted that the board of directors neither have passed any resolution nor given any authorization him to borrow the money. It is pertinent to note here that, as stated above in absence of any cogent evidence the said contention of the accused cannot be believed.
It is pertinent to note here that, as stated above the accused has further stated that he sold his car. It is pertinent to note here that, the accused has not produced before the Court any document to show that he sold his car. It is pertinent to note here that, in absence of any cogent evidence the contention of the accused that he sold his car cannot be believed and accepted.
It is pertinent to note here that, the accused in his examination-in-chief has further contended that the directors of the said company have assured him that they were getting some financial source from their own reliable source which would be credited to his account. It is pertinent to note here that, the accused in his cross-examination in page No.8 at 2nd line has deposed that, AiÀiÁªÀ PÀA¥À¤¬ÄAzÀ vÀªÀÄUÉ JµÀÄÖ ºÀt §gÀÄvÀÛzÉ 11 C.C.No.9804/2017 JAzÀÄ ¸ÀzÀj PÀA¥À¤AiÀĪÀgÀÄ ¤ªÀÄUÉ w½¹gÀÄvÁÛgÁ JAzÀÄ ºÉýzÀÝPÉÌ ¸ÁQë E®èªÉAzÀÄ ºÉüÀÄvÁÛgÉ.
It is pertinent to note here that, as stated above in absence of any cogent, reliable and material evidence the said contention of the accused cannot be believed and accepted.
It is significant to note here that, in the instant case the accused has mainly relied upon EX.D10-the Assignment and Transfer Agreement and has contended that the said company had agreed to give him the royalty and for which on his own he had drafted the said document. It is pertinent to note here that, the accused neither in his examination-in-chief nor in his statement recorded by this Court under Section 313 of Criminal Procedure Code, has not stated anything about EX.D10. It is pertinent to note here that, the accused in his cross-examination in page No.9 has specifically deposed that the board of directors have not passed any resolution for preparing EX.D10. It is significant to note here that, the accused in his cross- examination has further deposed that on EX.D10 he has not obtained the signatures of the other directors of the said 12 C.C.No.9804/2017 company. It is to be noted here that, in the instant case the EX.D10 cannot be looked into. It is pertinent to note here that, from overall evidence of the accused it clearly appears that he had availed a sum of Rs.10,00,000/- from the complainant. It is to be noted here that, the complainant has convincingly proved the existence of legally recoverable debt.
9. It is specific contention of the complainant that the accused to discharge his legally enforceable debt had issued in his favour the two cheques bearing No.211033 dated:-
05.10.2016 for a sum of Rs.5,00,000/- at EX.P1 and No.211034 dated:-05.10.2016 for a sum of Rs.5,00,000/- at EX.P2.
10. It is pertinent to note here that, the accused in his evidence has specifically contended that in the month of June 2016 at Linto Coffee at Bengaluru, a discussion was held between him and the directors and the directors have assured him that they were getting some financial assistance from their own reliable source which would be credited to his account and after deduction of his remuneration amounting to Rs.38,00,000/- the remaining amount of Rs.25,00,000/- will be given to other two directors and the directors took from him his five cheques 13 C.C.No.9804/2017 bearing No.211033, 211034, 211035, 211036 and 211037 each for Rs.5,00,000/- dated:-05.10.2016.
11. That, the accused has placed his reliance on following decision:-
Sandeep Yadva -vs- Narendra Kumar, decided in C.C.No.335/2015 dated:-29.02.2016 wherein it has held that in Criminal trial where accused is subjected to intense scrutiny and his life and liberty is placed under scanner, it is all necessary that the execution of cheque against the alleged loan should be proved with evidence of irrecoverable nature and of impeccable charter. Mere production of cheque cannot made the case of the complainant sacrosanct and absolute so as to exempt him from all blemishes and burdens. It is trite to say that Cheque as an instrument is very prone to be misused and thus it becomes all necessary for complainant to come up with cogent and convincing evidences to win over the confidence of the Court.
12. It is pertinent to note here that, the entire burden lies upon the complainant to substantiate that the accused to 14 C.C.No.9804/2017 discharge his legally enforceable debt had issued in his favour the EXs.P1 and 2. It is pertinent to note here that, the accused in his statement recorded by this Court under Section 313 of Criminal Procedure Code, has submitted that in the month of June 2016 the complainant called him to Bengaluru and took from him the cheque in question for depositing the amount in his account. It is to be noted here that, the accused in contrary to his aforesaid version in cross-examination of the complainant in page No.4 at 11th line has made the suggestion that, £ÀªÀÄä PÀA¥À¤AiÀÄÄ £ÀµÀÖzÀ°è EzÀÄÝzÀÝjAzÀ DgÉÆæ¬ÄAzÀ 5 ZÉPÀÄÌUÀ¼À£ÀÄß ¥ÀqÉzÀÄPÉƼÀî¯ÁVgÀÄvÀÛzÉ JAzÀgÉ ¸ÀjAiÀÄ®è.
It is further pertinent to note here that, the accused in cross-examination of the complainant in page No.5 at 2nd line has further made the suggestion that, DgÉÆæAiÀÄÄ ZÉPÀÌ£ÀÄß §gÉzÀÄ vÀªÀÄä PÀZÉÃjAiÀÄ°è EnÖzÀÝ£ÀÄß vÉUÉzÀÄPÉÆAqÀÄ zÀÄgÀÄ¥ÀAiÉÆÃUÀ ¥Àr¹PÉÆArgÀÄvÉÃÛªÉAzÀgÀÉ ¸ÀjAiÀÄ®è.
It is significant to note here that, from the said conduct of the accused and his said suggestions to the complainant it clearly 15 C.C.No.9804/2017 appears that he has taken a contrary versions. It is pertinent to note here that, the accused in his cross-examination has further contended that for misusing the cheques in question by the complainant he has not lodged any complaint against him. It is to be noted here that, at this juncture the conduct of the accused plays a very vital role. It is to be noted here that, from the said conduct of the accused and the said suggestions made by him to the complainant it clearly appears that to discharge his legally enforceable debt he had issued in favour of the complainant the EXs.P1 and 2.
It is significant to note here that, the accused has admitted his signatures on EXs.P1 and 2. It is to be noted here that, as the signatures in the cheques is admitted by the accused, then the presumption envisaged under section 118 of the Negotiable Instruments Act, can legally be inferred that the cheque was made over to the drawer for consideration on the date which the cheque bears. It is to be noted here that, section 139 of the Negotiable Instruments Act, enjoins on the court to presume that the holder of the cheque is received it for discharge for some debt or liability. It is to be noted here that, a 16 C.C.No.9804/2017 plausible explanation is not sufficient for rebuttal evidence, but, the proof of explanation is necessary. It is pertinent to note here that, in the instant case the complainant has convincingly proved that the accused to discharge his legally enforceable debt had issued in his favour the EXs.P1 and 2 and the accused has failed to rebut the said contentions of the complainant. It is pertinent to note here that, in view of My above all findings and without much discussion I hold that, the complainant has convincingly proved that the accused to discharge his legally enforceable debt had issued in his favour the EXs.P1 and 2. In view of the same, Point No.1 is answered in the AFFIRMATIVE.
13. Point No.2:- It is specific contention of the complainant that, he presented the EXs.P1 and 2 for encashment in Yes Bank, Jayanagar Branch, Bengaluru and on 08.12.2016 the same were retuned with the sharas as 'Funds insufficient'.
It is to be noted here that, the complainant to substantiate his aforesaid contentions in his evidence has got marked the Cheque return memo issued by the said Bank at EX.P3. It is pertinent to note here that, from perusal of EX.P3 it clearly 17 C.C.No.9804/2017 appears that the EXs.P1 and 2 were dishonoured as 'Funds Insufficient' in the account of the accused.
14. It is to be noted here that, at this juncture I have gone through the provisions of section 146 of Negotiable Instruments Act and which contemplate as under:-
Bank's slip prima facie evidence of certain facts:-
The Court shall, in respect of every proceeding under this Chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has, been dishonoured, presume the fact of dishonor or such cheque, unless and until such fact is disproved.
It is to be noted here that, in the instant case the accused has failed to rebut the presumptions envisaged in section 146 of the Negotiable Instruments Act. It is pertinent to here that, in view of above all findings and without much discussion I hold that, the complainant with all preponderance of probabilities has proved that the accused has committed the offence punishable under section 138 of the Negotiable Instruments Act. In view of the same, Point No.2 is answered in the AFFIRMATIVE. 18
C.C.No.9804/2017
15. Point No.3 :- That, the accused in his cross-examination has contended that he has not received the Legal notice issued by the complainant.
16. It is pertinent to note here that, the complainant has specifically contended that he issued the Legal notices to the accused through RPAD and speed post and on 19.12.2016 the same were returned with the shara as 'unserved'.
It is pertinent to note here that, the complainant to substantiate his aforesaid contentions in his evidence has got marked the Legal notice issued to the accused dated:-
19.12.2016 at EX.P4, Postal receipt at EX.P4(a) and RPAD's at EXs.P5 and 6.
17. It is pertinent to note here that, the service of notice as to dishonour of cheque is a must for initiating criminal Proceedings. It is significant to note here that, when notice is dispatched by sender through post with correct address on it, it can be deemed to be served on sendee unless he proves that it was not really served.
18. It is significant to note here that, the accused neither in his examination-in-chief nor in cross-examination of the 19 C.C.No.9804/2017 complainant and in his statement recorded by this Court under Section 313 of Criminal Procedure Code, has not taken a specific contention that he has not received the said legal notice.
It is pertinent to note here that, the accused in his cross- examination in page No.10 at 13th line has specifically admitted that, £Á£ÀÄ ¸ÀzÀj PÀA¥À¤AiÀÄ°è PÉ®¸À ªÀiÁqÀÄwÛzÀÝ ¸ÀAzÀ¨ÀsðzÀ°è £À£Àß ªÉÄʸÀÆj£À «¼Á¸ÀªÀ£ÉÃß PÉÆnÖzÉÝà JAzÀgÉ ¸Àj.
It is pertinent to note here that, the accused in his cross- examination in page No.13 has further deposed that he changed the address and he had not intimated the same to the company. It is pertinent to note here that, the accused has not specifically stated that when he changed his earlier address. It is further pertinent to note here that, the accused has also not produced before the Court any document to substantiate that he is residing in the address mentioned by him in his examination-in- chief affidavit. It is pertinent to note here that, in absence of any cogent and reliable evidence the contentions of the accused that he has not received the legal notice cannot be believed and accepted.
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C.C.No.9804/2017 It is significant to note here that, the said admission of the accused is itself suffice to hold that the complainant had dispatched the legal notice to his correct address. It is pertinent to note here that, in view of the same Point No.3 is answered in the AFFIRMATIVE.
19. Point No.4:- That, as discussed on points No.1 to 3, I proceed to pass the following:-
ORDER That, acting under section 255(2) of Code of Criminal Procedure, the accused is convicted for the offence punishable under section 138 of the Negotiable Instruments Act.
That, the accused shall deposit the fine amount of Rs.10,00,000/- and in default of deposit of said fine amount, he shall undergo a simple imprisonment for six months.
That, out of total fine amount of Rs.10,00,000/-, Rs.9,98,000/- shall be paid to the complainant as a compensation as provided under section 357(1) of Code of Criminal Procedure and Rs.2,000/- shall be remitted to the State Exchequer.
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C.C.No.9804/2017 That, the office is to furnish the free copy of this Judgment to the accused forthwith.
(Dictated to Stenographer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 5th day of September 2018) (Hema Pastapur) XXII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of witnesses examined on behalf of complainant:-
PW.1 : Shri Karthik A.R s/o A.C. Raghuram Raju. List of exhibits marked on behalf of complainant:-
Exs.P1 and 2 : Original cheques;
Exs.P1(a) and 2 : Signatures of the accused;
Ex.P3 : Cheque return memo;
Ex.P4 : Legal notice dated:-19.12.2016;
Ex.P4(a) : Postal receipt;
Exs.P5 and 6 : RPAD cover's;
Ex.P7 : Statement of account pertaining to Yes
Bank Ltd., and
Ex.P8 : Statement of account pertaining to Prema
Raghu.
List of witnesses examined on behalf of the accused:- DW1 : Shri Sathya Bhushan.S s/o Late Srinath R.S. 22 C.C.No.9804/2017 List of exhibits marked on behalf of the accused:-
Ex.D1 : Printout copy of Form Vat 7;
Ex.D2 : Printout copy e-TDS Intermediary;
Ex.D3 : Printout copy Shipped Payment
information;
Ex.D4 : Order summary;
Exs.D5, 7 and 9 : Printout copies of Order confirmation;
Ex.D6 : Printout copy of Proforma invoice;
Ex.D8 : Printout copy of hotel Bill;
Ex.D10 : Statement of account of the accused and
Ex.D11 : Notary attested copy Assignment and
Transfer agreement.
XXII Addl. Chief Metropolitan Magistrate, Bengaluru.
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