Bangalore District Court
Murphy Town vs Mob : 77383 81788 on 14 November, 2022
1
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
PRESENT
SRI.OONKAR MURTHY K.M.,
B.Sc., L.L.M.,
XIV ADDL. C.M.M., BENGALURU
DATED THIS THE 14 th DAY OF NOVEMBER, 2022
CASE NO C.C. NO.57346/2019
Smt. Rebecca Dhanasingh
Ground Floor, No.002, Shri Ashram View
Enclave, 15/3, Kulume Siddanna Garden,
COMPLAINANT Murphy Town, Halasuru, Bengaluru - 560
008.
(By Sri. M. Ramaswamy - Adv.,)
Sri. Suresh Kumar
No.304, "Mangam Paradise", Sec.2, H.S.R.
Layout, Bengaluru.
ACCUSED Mob : 77383 81788
(By Sri. K.R. Nagaraja - Adv.,)
offense U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused is convicted
(OONKAR MURTHY K.M)
XIV ADDL.
C.M.M.,BENGALURU
JUDGMENT
2 The complainant has approached this court with the complaint under Sec.200 Cr.P.C against the accused alleging offense punishable under Section 138 of Negotiable Instruments Act, 1881.
The factual matrix of the case are as follows ;
2. The complainant has paid an amount of Rs.15 lakhs by way of NEFT towards lease of the premises belonging to the accused and is in peaceful enjoyment of the same without any interference for a period of three years from 15.09.2017 to 14.09.2020. Under the Lease Agreement dated 28.08.2017 any of the party may terminate the lease after giving two months notice and accordingly complainant has issued notice to the accused terminating the lease agreement and has called upon the accused to return the lease amount for vacating the premises of the accused.
2.1) The accused by accepting the same has issued cheque bearing No.000831 dated 15.07.2019 drawn at ICICI Bank, HSR Layout branch, Bengaluru for Rs.7,50,000/- towards part payment of total lease 3 amount of Rs.15 lakhs. The complainant has presented the said cheque through her banker Syndicate Bank, Ashok Nagar branch, Bengaluru to her S.B Account bearing No.04182010058613. The same was dishonored with an endorsement of the bank for the reason "payment stopped by the drawer".
2.2) Thereafter, the complainant has issued legal notice dated 29.07.2019 demanding the accused to pay the cheque amount. In spite of service of notice, the accused has failed to repay the cheque amount within 15 days from the date of service of notice. Therefore, the accused has committed the offense punishable under Sec.138 of Negotiable Instruments Act, 1881. Hence the complaint.
3. On filing of the complaint, cognizance has been taken for the offense punishable under Sec.138 of Negotiable Instruments Act, 1881 and a private complaint was registered in PCR.No.55475/2019. Sworn statement of the complainant has been recorded by way of affidavit. On hearing the complainant and by considering the documents on record, summons was 4 issued to the accused by registering the criminal case in C.C. No.57346/2019. After service of summons, the accused has appeared before the court through his counsel and has pleaded for bail. The accused has been enlarged on bail. Plea of the accused has been recorded and accused h a s pleaded not guilty and h a s claimed to be tried. Hence the matter was posted for trial.
4. The sworn statement of the complainant examined as CW.1 has been treated as her examination-in-chief in view of the decision of the Hon'ble Apex Court reported in (2014) 5 SCC 590 - Indian Bank Association and others Vs Union of India and others - [W.P. (civil) No.18/2013]. CW.1 to prove the guilt against the accused, has relied on the documents marked at Ex. P1 to Ex. P10. Incriminating circumstances in the evidence of CW.1 have been brought to the notice of the accused and his statement under Sec.313 of Cr.PC was recorded. The accused has denied the incriminating circumstances. On the contrary, to substantiate his contention, the 5 accused has examined himself as DW.1 and relied on documents marked at Ex.D1 to D6.
5. Heard the arguments of both the counsels. Perused the materials on record.
6. The counsel for the complainant has relied on the following authorities;
1. D. Vinod Shivappa Vs Nanda Belliappa
- (2006 (5) Kar. L.J. 32 (SC)
2. T. Kumar Vs K. Chennakeshavulu -
(2021 (3) KCCR 2134)
3. M. Nagappa Vs Mohamad Aslam Savanur
- (2021 (3) Kar. L.J. 567)
4. H.G. Nagaraja Vs H. Suresh Naika -
(2019 (5) KCCR 1228
5. M/s. S.T.P Ltd., Vs M/s. Usha Paints & Decorators and another - (2006 (5) AIR Kar R 28)
6. G.L. Jagadish Vs Smt. Vasantha Kokila - (2021 (5) KCCR 690)
7. Seetharama Gowda .A Vs Isubu Kunhammade - (2021 (2) KCCR SN 119 (DB)
8. H.K. Ismail Vs V.B. Onkar - [(III (2022) BC 151 (Kar.)] 6
9. APS Forex Services Pvt. Ltd., Vs Shakti International Fashion Linkers and others - (AIR 2020 SC
945)
10. Rohitbhai Jivanlal Patel Vs State of Gujarat and another - (AIR 2019 SC 1876)
11. Vijay Gopala Lohar Vs Pandurang Ramchandra Ghorpade and another -
(AIR 2019 SC 3272)
12. Noble T. Francis Vs Seleena Jos - (2005 CRI. L.J. 993)
13. Shafi Mohammad Vs State of Himachal Pradesh; (2018) 2 SCC 801.
14. K. Kuppuraj Vs J. Thrilokamurthy - (2021 (1) KCCR 542)
15. Muralidhar Rao Vs P. Nagesh Rao -
(2021 (2) Kar. L.J. 647)
16. G.L. Jagadish Vs Smt.Vasantha Kokila
- (2021(5) KCCR 690
17. Arun Pandurang Naik Vs Gopal Sidram Sheet - (2020 (3) KCCR 2109)
18. Rangappa Vs Sri. Mohan [(2010) 11 SCC 441]
19. M/s. Ambur Steel Traders rep. By its Partner Vs Engineer C. Noorulla -
(2002 (3) Crimes 453) 7
20. NEPC Micon Ltd., & others Vs MAGMA Leasing Ltd. - [(1999) 4 SCC 253]
7. The counsel for the accused has relied on the following authorities;
1. Basalingappa Vs Mudibasappa - (Crl.
Appeal No.636 of 2019
2. John K. Abraham Vs Simon C. Abraham and another - [(2014) 2 SCC 236]
3. Kumar Exports Vs Sharma Carpets - [(2009) 2 SCC 513]
4. K. Narayana Nayak Vs M. Shivarama Shetty
- (2008 CRI. L.J. 3411)
5. Sri. Shivalingappa Vs Sri. Basagonda -
(Crl. A. No.2637 of 2009 (A)
6. Sri. Mallappa Gangappa Halingali Vs Sri. Basavaraj Murigeppa Gani - (Crl. A. No.2558/2009)
7. Shiva Murthy Vs Amruthraj - (Crl. Rev. Pet. No.1507/2005)
8. Shri. Madanmohan Premratan Mohta Vs Shri.Dattaram D. Vernekar - (Crl. A. No.2531/2013)
9. B. Shivaram Vs M.V. Venkatesh - (Crl. A. No.743/2010) 8
10. M. Senguttuvan Vs Mahadeva Swamy -
(ILR 2007 Kar 2709)
11. B. Indramma Vs Sri. Eshwar - (ILR 2009 Kar 2331)
12. H. Manjunatha Vs Sri. A.M. Basavaraju -
(ILR 2014 Kar 6572)
13. Kundan Lal Rallaram Vs Custodian Evacuee Property, Bombay - (AIR 1961 SC 1316)
14. M.S. Narayana Menon @ Mani Vs State of Kerala and another - [(2006) 6 SCC 39]
15. Kamala. S Vs Vidyadharan M.J. and another - [(2007) 5 SCC 264]
8. The points that arise for my consideration are:-
1) Whether the complainant proves that the accused have issued cheque bearing No.000831 dtd.15.07.2019 for Rs.7,50,000/- drawn at ICICI Bank, HSR Layout branch, Bengaluru for discharge of legally recoverable debt and the said cheque was dishonored for the reason "payment stopped by drawer". In spite of issuance of statutory notice dated 29.07.2019, accused has failed to repay the loan amount and thereby 9 the accused has committed the offense punishable under Sec.138 of N.I. Act, 1881?
2) Whether there are any grounds to make complaint under section 340 of CrPC as sought in the application and whether it is expedient in the interest of justice that the offense alleged is to be further probed into?
3) What Order?
9. My findings on the above points are as under;
Point No.1 : In Affirmative,
Point No.2 : In Negative,
Point No.3 : As per final order,
for the following.,
REASONS
10. Point No.1: The complainant to substantiate her case has examined herself as CW.1 and reiterated the averments of the complaint in her chief examination. Further has produced original cheque bearing No.000831 dtd.15.07.2019 for Rs.7,50,000/- drawn at ICICI Bank, HSR Layout branch, Bengaluru 10
- 560 017 at Ex.P1. Ex.P2 is the bank endorsement dtd.18.07.2019 wherein the said cheque has been dishonored for the reason "payment stopped by drawer". Ex.P3 is the legal notice dtd.29.07.2019 to the accused demanding the cheque amount within 15 days of its receipt. Ex.P4 is the postal receipt showing dispatch of said legal notice to the accused on dtd.29.07.2019. Ex.P5 is the track consignment report taken out from the postal web-site showing service of notice to the accused on 30.07.2019. Ex.P6 is the Lease Agreement dated 28.08.2017 showing that the accused has leased out house premises of complainant and the lease amount is shown to be Rs.15 lakhs which is refundable at the end of the tenure of the lease agreement. The tenure of the lease is mentioned as 15.09.2017 to 14.09.2020. Ex.P7 to P10 are the copies of WhatsApp messages. In the cross-examination, CW.1 has admitted receipt of Rs.5 lakhs from the accused on 03.10.2020 i.e., after filing of the present complaint on 05.09.2019. But has denied the suggestion that the accused has paid Rs.5 11 lakhs twice in cash. Also has denied the suggestion that the Assistant Commissioner of Police has coerced the accused for issuing the post dated cheque in favour of the complainant on 01.06.2019. CW.1 has also denied the other suggestions made refuting the case of the complainant Principles:
11. In Kumar Exports case cited supra relied upon by the counsel for the accused, the Hon'ble Supreme Court in para 19 to 21 has held as follows;
Para 19. The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may presume"
and "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over.
Para 20.The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the 12 particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the 13 complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Section 118 and 139 of the Act.
Para 21. The accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Section 118 and 139 of the Act will not again come to the complainant's rescue.
12. In APS Forex Services Pvt. Ltd.,'s case cited supra relied upon by the counsel for the complainant, the Hon'ble Supreme Court in para 7 has held as follows;
Para 7. Section 139 of the Act is an example of reverse onus clause and therefore once the issuance of the cheque has been admitted and even the signature on the cheque has been admitted, there is always a presumption in favour of the 14 complainant that there exists legally enforceable debt or liability and thereafter it is for the accused to rebut such presumption by leading evidence.
13. The ratio laid down in the above precedents is that in respect of the proof of the fact that the cheque has been issued for discharge of legally enforceable debt, there is a presumption of law under Sec.139 of Negotiable Instruments Act, 1881 in favour of the holder of the cheque which reads as follows:
Sec.139 - Presumption in favour of holder: it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.
14. The presumption under Sec.139 of Negotiable Instruments Act is a presumption of law and not the presumption of fact. The presumption has to be raised in all the cases once the factum of issuance of cheque and its dishonour is established. The 15 presumption is a rebuttable. The onus of proof to rebut the presumption lies on the accused. The accused need not rebut the presumption beyond all reasonable doubt. But the accused has to place sufficient materials to convince the court that his case is more probable when it is compared with the case of the complainant. Accused may adduce direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability. He may also rely upon the averments in the complaint, statutory notice and the circumstantial evidence adduced by the complainant during the trial. Accused need not enter into the witness box to rebut the presumption.
Defense of the accused:
15. Even though the accused has stated nothing in respect of the alleged transaction during recording of his statement U/s.313 of Cr.PC, on the basis of arguments addressed by the counsel for the accused, the suggestions made in the cross-examination of 16 CW.1 and the evidence of DW.1/accused, the defense of the accused are deduced as follows;
The accused has issued post dated cheques to complainant on 01.06.2019 under coercion by Assistant Commissioner of Police, Halasuru.
Accused has paid Rs.5 lakhs on 03.10.2020 and also has paid Rs.10 lakhs in cash under the acknowledgment dt; 10.08.2020 produced at Ex.D6.
Legal notice is not served on the accused.
Accused has no financial capacity.
Demand notice from Hanumantha Nagar Co- operative Bank to the accused was intentionally suppressed by complainant to knock of to his property.
Existence of Legally Recoverable Debt:
16. In his chief-examination, the accused has clearly admitted that his house was let out on lease in favour of the complainant for total lease amount of Rs.15 lakhs under the Lease Agreement dtd.28.08.2017 which is produced by the complainant at Ex.P6. The receipt of lease amount of Rs.15 lakhs is not disputed by the accused. Further in his cross-examination, 17 DW.1 has clearly admitted that cheque produced at Ex.P1 belongs to him and the signature on the said cheque is of him. Under the circumstances, the complainant has clearly discharged her initial burden of issuance of cheque and existence of legally recoverable debt.
17. But the accused contends that he has paid Rs.5 lakhs on 03.10.2020 through cheque and also has paid Rs.10 lakhs in cash under the acknowledgment dt; 10.08.2020 produced at Ex.D6. By this accused contends that he has paid Rs.15 lakhs to the complainant after instituting the present complaint. In the cross-examination the complainant/CW.1 has clearly admitted receipt of Rs.5 lakhs from the accused on 03.10.2020 through cheque. The accused has also produced the bank passbook of the Hanumantha Nagar Co-operative Bank Ltd., at Ex.D4 showing that an amount of Rs.5 lakhs is paid to the complainant vide cheque bearing No.516324 on 03.10.2020. But the suggestion that the accused has 18 paid Rs.5 lakhs twice in cash to the complainant has been totally denied by CW.1.
18. The accused in proof of payment of Rs.10 lakhs in cash to the complainant has produced the receipt dated 10.08.2020 at Ex.D6. The complainant has seriously disputed the said document contending that the same has been forged and fabricated by the complainant. Also has filed application under section 340 of CrPC seeking initiation of prosecution against the accused. Now it is for me to consider whether the accused has paid Rs.10 lakhs under the receipt produced at Ex.D6. The accused has filed his examination-in-chief on 09.03.2022. In the chief- examination even though DW.1 has stated that the complainant has received Rs.10 lakhs in two installments by way of cash during August 2020, nothing has been stated in respect of the acknowledgment/receipt produced at Ex.D6. In the chief-examination nothing has been disclosed as to where and on what date, the accused has paid Rs.5 lakhs twice during August 2020. But in the cross-
19examination DW.1 states that he has paid Rs.10 lakhs in cash in the office of the complainant. Further states that his driver - Raffi was present at that time. The said Raffi-driver has not been examined before the court. DW.1 also states that he has raised loan of Rs.10 lakhs from one Keshava and has paid it to the complainant. However said Keshava is also not examined before the court to prove the said fact. DW.1 clearly admits that Ex.D6 is written in his own handwriting. For a question on which date the said fact of execution of receipt at Ex.D6 was brought to the notice of the court, witness states that on the date of its production. The receipt at Ex.D6 is produced before court on 01.04.2022. The accused has appeared before the court for the first time on 22.10.2021 and has been enlarged on bail. The statement of the accused U/s.313 of Cr.PC was also recorded. But during recording of statement U/s.313 of Cr.PC the accused has not at all disclosed very vital fact that he has repaid the entire amount due to the complainant.
2019. In para 4 of his chief-examination, DW.1 has clearly stated that he has availed Housing Term Loan for Rs.23,50,000/- from Hanumanth Nagar Co- operative Bank by mortgaging the house property which has been let out on lease for the complainant. Also in Para 10 states that the complainant colluding with the officials of said Bank had purchased his house in the name of her daughter- Rachael Angleena.A by undervaluing his house for Rs.30,75,000/-. Ex.D5 is the Encumbrance Certificate of the alleged house property. The said document discloses that the accused has mortgaged the house property for total consideration of Rs.23,50,000/- on 04.06.2018. There is no dispute that the bank has auctioned the said property due to failure of the accused to repay the loan amount. Ex.D5 also discloses that daughter of the complainant i.e., Rachael Angleena.A, had purchased the said property for total consideration of Rs.30,75,000/- on 22.09.2020. The accused in his cross-examination states that on 10.08.2020 he has paid Rs.5 lakhs to 21 the complainant and a week earlier he has paid Rs.5 lakhs to the complainant in cash. If the accused really have such amount with him, any prudent person would have paid it to the bank and avoided auctioning of the house. Moreover, the present complaint is filed on 05.09.2019. The entire money transaction in respect of lease under Ex.P6 is shown to have been happened through Bank NEFT transaction as detailed in the lease agreement. The accused has also paid Rs.5 lakhs on 03.10.2020 through cheque. When all the transactions between the complainant and accused had happened through Bank, it is not forthcoming as to why the accused has given Rs.10 lakhs in cash to the complainant. In the cross-examination the only reason for paying cash as stated by DW.1 is that he was not having money in his bank account at that point of time. This clearly shows that the accused was not having funds at that point of time. Further his contention that he has raised loan of Rs.10 lakhs from one Keshava is left without any substantiation.
2220. Furthermore, till production of Ex.D6 on 01.04.2022 the accused has not brought it to the notice of this court in spite of matter pending and seriously contested. Any prudent man who has paid the amount which is under the dispute can never be expected to remain silent without reporting the same before the court. Even though Ex.D6 is dated 10.08.2020, no reasons are forthcoming as to why the said document was not produced before the court until 01.04.2022.
21. Apart from all these doubtful circumstances, the complainant has clearly denied her signature on Ex.D6. Inspite of it, the accused has not taken any risk to prove her signature by resorting to scientific opinion. Under the circumstances, the document at Ex.D6 is surrounded by suspicious circumstances and do no inspire confidence in the mind of this court in respect of the contention that accused has paid the complainant Rs.5 lakhs in cash in two installments, totally amounting to Rs.10 lakhs. The conduct of the accused in suppressing Ex.D6 till its production before 23 the court on 01.04.2022 cannot be accepted as a conduct of prudent man. Therefore, the said document is not sufficient to put back the onus on the complainant to prove her case beyond all reasonable doubt. Even though the accused has shown that Rs.5 lakhs has been paid to the complainant on 03.10.2020, the same is only after institution of this case. By admission, the complainant has clearly proved the existence of legally recoverable liability of Rs.15 lakhs as on the date of issuance of cheque i.e., 15.07.2019.
Defense - Cheque was issued due to coercion of Assistant Commissioner of Police:
22. In his chief-examination, DW.1 states that before expiry of stipulated period of Lease Agreement dated 28.08.2017, the complainant has demanded to return of lease amount. On 09.05.2019 the complainant has lodged false complaint against him which was registered in NCR No.571/2019. Later the complainant being influential person approached Assistant Commissioner of Police, Halasuru with a 24 complaint which was forwarded with an instruction to register a case. Thereafter, Crime No.159/2019 was registered by Halasuru Police against him for the offense punishable U/s.406, 420 of IPC. On 01.06.2019, Assistant Commissioner of Police of Halasuru Police Station detained him and asked him to call his sibling and if not will send him to jail.
Due to pressure, he called his younger brother - Dinesh Kumar. When Dinesh Kumar came to the Police Station, the Assistant Commissioner of Police had insisted him and his brother to hand over four signed post dated cheques for an amount of Rs.7,50,000/- each in favour of the complainant for security purpose towards her lease amount.
23. In the cross-examination for a suggestion as to why he has given instruction of stop payment to the Bank, DW.1 states that with an intention to give money in cash, he has given such instruction to Bank. Further states that he has intimated complainant to not to present the cheque and he will pay money by cash. For a suggestion that when the cheque was 25 issued, there was no necessity of giving money through cash, DW.1 replies that he was not having money in his Bank account. It is not his contention that stop payment instructions were issued as the cheques were issued due to police coercion. When the accused has admitted the liability and states that he has issued "stop payment" instructions to Bank with an intention to give money in cash, his contention that he has issued cheque due to coercion of police cannot be appreciated. Furthermore, if any Police Officer has coerced him to issue cheque, he could have taken up the issue before their higher authorities. Accused has not taken any action in respect of such coercion against the complainant or the Police who has forced to issue cheques. Under all the circumstances, the allegation of coercion has merely remained as an oral assertion without substantiation.
Legal Notice Not Served:
2624. Accused contends that legal notice at Ex.P3 is not served upon him. To adjudicate the said fact, I would like to rely upon the decision cited by the complainant in the case of T.Kumar Vs K. Chennakeshavulu - (2021 (2) AKR 219) at para 16 our Hon'ble High Court has held as follows;
Para 16. When the matter was referred to the Larger Bench of the Hon'ble Supreme Court in C.C.Alavi Haji V. Palapetty Muhammed and Anr.(2007) Cri LJ 3214 answering the reference in para 17 of the judgment it was held as follows:
"17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the 27 contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran's case (supra), if the 'giving of notice' in the context of Clause (b) of the proviso was the same as the 'receipt of notice' a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act."
(Emphasis supplied by me)
25. In the case on hand, legal notice at Ex.P3 is addressed to " Sri.Suresh, No.304, Mangam Pride, Sec.2, H.S.R. Layout, Bengaluru." which is address of accused mentioned in Lease Agreement dated 28.08.2017. In the cross-examination, DW.1 states that he is not residing in the said address for the present. But the address mentioned in the chief- examination of accused/DW.1 is the same address mentioned in Ex.P3. The complainant has produced postal receipt at Ex.P4 showing dispatch of notice on 29.07.2019 to HSR Layout address of accused. Ex.P5 is the Track Consignment report showing delivery of the said notice on 30.07.2019. When the notice is 28 shown to sent to correct address of accused, then notice is deemed to be served. It is for the accused to show that he has not been served. No such efforts are made by accused in that regard. Moreover the accused has not even paid the cheque amount even after his appearance before the court. Therefore, the contention of accused that he has not been served with notice has no force.
Financial Capacity of the complainant:
26. The counsel for the accused has argued that the complainant has no financial capacity. In Basalingappa's case cited supra relied upon by the counsel for the accused, the Hon'ble Supreme Court in para 28 has held as follows;
Para 28. ........his financial capacity being questioned, it was incumbent on the complainant to have explained his financial capacity.
27. In John K. Abraham's case cited supra relied upon by the counsel for the accused, the Hon'ble Supreme Court in para 9 has held as follows;
29Para 9. It has to be stated that in order to draw the presumption under Section 118 read along with 139 of the Negotiable Instruments Act, the burden was heavily upon the complainant to have shown that he had required funds for having advanced the money to the accused; that the issuance of the cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant.
28. In Rohitbhai Jivanlal Patel's case cited supra relied upon by the counsel for the complainant, the Hon'ble Supreme Court in para 17 has held as follows;
Point No.17. In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI 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 accused-appellant. The aspect 30 relevant for consideration had been as to whether the accused-appellant has brought on record such facts/material/circumstances which could be of a reasonably probable defence.
29. In the case on hand, the accused has clearly admitted receipt of Rs.15 lakhs towards lease agreement. The complainant has clearly proved the issuance of cheque and passing of consideration; also proved that the accused is bound to repay the same. So accused questioning the financial capacity of the complainant is left without any substantiation. Therefore, the decisions relied upon by the accused are not helpful for his defense.
Admissibility of Whats App messages:
30. Counsel for the accused has argued that the certificate produced do not meet the requirement of Sec.65-B (4) of Indian Evidence Act and therefore whats App messages at Ex.P7 to 10 are not admissible in evidence. The counsel for the complainant has relied on the decision of Hon'ble Supreme Court in 31 the case of Shafhi Mohammad vs The State Of Himachal Pradesh wherein at para 29 it has held as follows;
The applicability of procedural requirement under Sec.65-B(4) of Indian Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sec.63 and 65 of the Indian Evidence Act cannot be held to be excluded. In such case, procedure under the said sections can certainly be invoked. I this is not so permitted, it will be additional of justice to the person who is in possession of authentic evidence/witness but an account of manner of proving such document is kept out of consideration by the court in the absence of certificate under Sec.65-B(4) of Indian Evidence Act, which partly producing cannot possibly secure. Thus, requirement of certificate under Sec.65-B(4) of Indian Evidence Act has not always mandatory.
31. But the Hon'ble Supreme Court in the case of Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal and others, in para 59 has held as follows;
Para 59. We may reiterate, therefore, that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of 32 electronic record, as correctly held in Anvar P.V. (supra), and incorrectly "clarified" in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor (1876) 1 Ch.D 426, which has been followed in a number of the judgments of this Court, can also be applied. Section 65B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) otiose.
(Emphasis supplied)
32. In the case on hand, the certificate filed U/s.65B(4) of Indian Evidence Act by the complainant do not disclose the the manner in which electronic records/Whats App messages was produced, do not disclose the details/particulars of the computer/gadget, whether the same was operating properly during material period, if not operating properly or was out of operation during that part of the period was not such as to affect the electronic record or the accuracy of its contents. In the cross examination, CW1 states that she got repaired her mobile phone. The period in which the phone was not operating properly has not been stated in the 33 certificate. Therefore the certificate produced by complainant in support of whats App messages at EX.P7 to P10 do not meet the requirements of Sec.65- B(4) of Indian Evidence Act, which is clearly elicited in the cross-examination of CW.1. Therefore, the whats-up messages produced at Ex.P7 to P10 cannot be looked into in adjudicating this matter.
Defense - N otice from Hanumanth Nagar Co- operative Bank was intentionally suppressed by the complainant:
33. The accused has also contended that the demand notice from Hanumanth Nagar Co-operative Bank sent to the address of the house in which the complainant was on lease was intentionally suppressed by the complainant to knock of his property. The accused admittedly has borrowed loan from Hanumanth Nagar Co-operative Bank and he is to be diligent in knowing the status of loan account. The said contention is no way relevant in adjudicating this matter.
Conclusion:
3434. The accused in his cross-examination has clearly admitted the lease transaction between himself and the complainant. Also has clearly admitted the receipt of Rs.15 lakhs towards lease from the complainant. But has failed to show that he has repaid the said amount to the complainant as on the date of issuance of the cheque. Therefore, the accused has failed to prove his contention that he has already repaid the entire cheque amount as on the date of issuance of the cheque. Also has failed to show that the notice is not served on him. He has also failed to prove his contention that the alleged cheque was issued by him under coercion before the Police. The accused has failed to place sufficient materials to convince the court that his case is more probable when it is compared with the case of the complainant. When the accused has failed to establish his case, mere distorted version or pleas are not sufficient to put back the burden on the complainant to prove his case beyond reasonable doubt.
3535. On the contrary, the complainant has clearly proved that the alleged cheque bearing No.000831 dated 15.07.2019 was issued by the accused and the same has been presented within its life time for encashment. The same has been dishonoured under the bank endorsement dtd.18.07.2019 for the reason "payment stopped by drawer". The complainant has also issued legal notice within the statutory period i.e., on 29.07.2019 and the same has been served on the accused on 30.07.2019. Admittedly, the accused has not repaid the alleged cheque amount even after appearing before the court. Therefore, the complainant has proved all the ingredients of Sec.138 of N.I. Act. On the contrary, the accused has failed to rebut the statutory presumption U/s.139 of N.I. Act. Hence, the accused is found guilty for the offense punishable U/s.138 of N.I. Act. Accordingly, I hold Point No.1 in Affirmative.
36. Point No.2: Counsel for the complainant has filed application U/s.340 of Cr.PC stating that during defence evidence, the accused has attempted to 36 produce a forged and fabricated plain paper acknowledgment to show that the complainant has already received a sum of Rs.10 lakhs and has tried to mislead the court. The acknowledgment is not written and signed by the complainant. The handwriting in the acknowledgment is impersonated by some person or by the accused. The accused by producing a forged and fabricated document has tried to give false evidence before the court and thereby accused has committed the offense punishable under Sections 192, 196, 197 and 198 of IPC and therefore he is liable to be prosecuted for the commission of the said offenses and hence has sought to forward the complaint to the jurisdictional Magistrate for prosecuting the accused.
37. Counsel for the accused has filed objections stating that the accused has been fully cross-examined by counsel for the complainant. During the cross- examination, the counsel has questioned whether he has any receipt showing payment of Rs.10 lakhs to the complainant for which the accused has answered 37 in Affirmative and agreed to produce the same. Accordingly, the accused has produced the receipt at Ex.D6 by leading further evidence. Therefore, the allegation of producing forged and fabricated documents and the allegation of giving false evidence is far from truth. The complainant has filed this frivolous application without any merits, which is not at all maintainable. Hence, has prayed to reject the application with exemplary cost.
Definitions of false evidence and forgery:
38. Section 191, 192, 463 and 464 of IPC reads as follows;
191.Giving false evidence.--Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence.
Explanation 1.--A statement is within the meaning of this section, whether it is made verbally or otherwise.
Explanation 2.--A false statement as to the belief of the person attesting is 38 within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know.
192. Fabricating false evidence.--Whoever causes any circumstance to exist or makes any false entry in any book or record, or electronic record or makes any document or electronic record containing a false statement, intending that such circumstance, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding is said "to fabricate false evidence".
463. Forgery.--Whoever makes any false document or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
39464. Making a false document.--A person is said to make a false document or false electronic record--
First.--Who dishonestly or fraudulently--
(a) makes, signs, seals or executes a document or part of a document;
(b) ...........
(c) ..............
(d) ...............
with the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly.--............. or
39. In adjudicating whether there should be a prosecution U/s.340 of Cr.PC, I would like to rely upon judgment of Hon'ble Supreme Court in the case of Iqbal Singh Marwah & Anr vs Meenakshi Marwah & Anr wherein the constitution bench at para 9, 25 and 26 has held as follows;
409. The scheme of the statutory provision may now be examined. Broadly, Section 195 Cr.P.C. deals with three distinct categories of offenses which have been described in clauses (a), (b)(i) and (b)
(ii) and they relate to (1) contempt of lawful authority of public servants, (2) offenses against public justice, and (3) offenses relating to documents given in evidence. Clause (a) deals with offenses punishable under Sections 172 to 188 IPC which occur in Chapter X of the IPC and the heading of the Chapter is 'Of Contempts Of The Lawful Authority Of Public Servants'. These are offenses which directly affect the functioning of or discharge of lawful duties of a public servant. Clause (b)(i) refers to offenses in Chapter XI of IPC which is headed as 'Of False Evidence And Offenses Against Public Justice'. The offenses mentioned in this clause clearly relate to giving or fabricating false evidence or making a false declaration in any judicial proceeding or before a Court of justice or before a public servant who is bound or authorized by law to receive such declaration, and also to some other offenses which have a direct co-relation with the proceedings in a Court of justice (Sections 205 and 211 IPC). This being the scheme of two provisions or clauses of Section 195, viz., that the offense should be such which has direct bearing or affects the functioning or discharge of lawful duties of a public servant or has a 41 direct correlation with the proceedings in a court of justice, the expression "when such offense is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in a Court" occurring in clause
(b)(ii) should normally mean commission of such an offense after the document has actually been produced or given in evidence in the Court. The situation or contingency where an offense as enumerated in this clause has already been committed earlier and later on the document is produced or is given in evidence in Court, does not appear to be in tune with clauses
(a)(i) and (b)(i) and consequently with the scheme of Section 195 Cr.P.C. This indicates that clause (b)(ii) contemplates a situation where the offenses enumerated therein are committed with respect to a document subsequent to its production or giving in evidence in a proceeding in any Court. .......
..........
25.In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) Cr.P.C. would be attracted only when the offenses enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any Court i.e. during 42 the time when the document was in custodia legis.
26. In the present case, the will has been produced in the Court subsequently. It is nobody's case that any offense as enumerated in Section 195(b)(ii) was committed in respect to the said will after it had been produced or filed in the Court of District Judge. Therefore, the bar created by Section 195(1) (b) (ii) Cr.P.C. would not come into play and there is no embargo on the power of the Court to take cognizance of the offense on the basis of the complaint filed by the respondents. The view taken by the learned Additional Sessions Judge and the High Court is perfectly correct and calls for no interference.
(Emphasis supplied by me)
40. In the case on hand, the sole allegation made is that the accused has forged the receipt dated 10.08.2020 produced at Ex.D6 and has attempted to give false evidence and thereby has committed the offense punishable under Sec.192, 196, 197 and 198 of IPC. The allegation that the accused has forged (Section 463 of IPC) and fabricated Ex.D6 is co vered under Section 195(1)(b)(ii) of Cr.P.C. The Hon'ble Supreme Court in the above precedent has clearly 43 held that Sec.195(1)(b)(ii) of Cr.P.C would be attracted only when the offenses enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceedings in any court i.e., during the time when the document was in custodia legis. In the case on hand, it is not the contention of the counsel for the complainant that the document at Ex.D6 has been forged when the document was in custodia legis. Moreover there is nothing on record to show that the acknowledgment at Ex.D6 is a forged document. Mere Surmise or Suspicion are not sufficient to prima facie believe that the document is forged. Under the circumstances, the question of invoking Sec.340 of Cr.PC by this court do not arise. Accordingly, I hold Point No.2 in Negative.
41. The complainant and accused have relied on many decisions cited supra. I have gone through all the decisions and with due respect I humbly opine that the decisions are either reiteration of the same principles already discussed or not applicable to the 44 facts and circumstances of this case. Therefore, the said decisions have not been discussed in detail to avoid burdening of the judgment.
42. Point No.3 : Considering the facts and circumstances of this case, nature, year of the transaction, nature of the transaction along with the rules of compensation under Sec.117 of N.I. Act, coupled with cost of litigation and the proposed interest by Hon'ble Supreme Court in the case of R.Vijayan Vs Baby - 2012 (1) SCC 260, this court is of the considered view that it is just and desirable to impose fine of Rs.10,10,000/-. Out of the said amount, it would be proper to award a sum of Rs.10,000/- to the State and the remaining amount of Rs.10,00,000/- is to be given to the complainant as compensation as provided U/s.357(1)(b) of Cr.PC. During trial the accused has paid Rs.500000/- to the complainant. The same is to be deducted in the compensation to be paid to the complainant. Therefore the complainant is entitled for remaining 45 compensation of Rs.500000/-. Accordingly, I proceed to pass the following.., ORDER In exercise of power vested under section 255(2) of Cr.P.C., I hereby convict the accused for the offense punishable under Sec.138 of Negotiable Instruments Act, 1881.
The accused is sentenced to pay fine of Rs.10,10,000/-
(Ten Lakhs Ten Thousand only) for the offense punishable U/s.138 of Negotiable Instruments Act, 1881. In default of payment of fine, the accused shall under go simple imprisonment for a period of six months.
In exercise of powers vested under section 357(1)(b) of Cr.P.C., out of fine amount a sum of Rs.10,00,000/- (Ten Lakhs only) is ordered to be paid to the complainant as compensation and the remaining Rs.10,000/- (Ten 46 Thousand only) shall go to the State.
Since the accused has already paid Rs.5,00,000/-
during pendency of the proceedings, the complainant is entitled for the remaining balance of Rs.5,00,000/-.
The bail bond of the accused and his surety stands canceled.
The application filed under section 340 of CrPC stands rejected.
Free copy of the judgment shall be supplied to the accused forthwith.
(Dictated to the stenographer, transcribed thereof, computerized and print out taken by him is verified, corrected and then pronounced by me in open court on this the 14th day of November, 2022) (OONKAR MURTHY K.M) XIV ADDL. C.M.M., BENGALURU ANNEXURE List of witnesses examined by complainant:
CW.1 : Sri. Rebecca Dhanasingh 47 List of documents marked by complainant:
Ex.P1 : Cheque Ex.P1(a) : Signature of the accused Ex.P2 : Bank endorsement Ex.P3 : Legal Notice Ex.P4 : Postal receipt Ex.P5 : Track consignment Ex.P6 : Certified copy of Lease Agreement Ex.P7 to P10 : Copies of Whats App messages
List of witnesses examined by defence:
DW.1 : Sri. Suresh Kumar .S List of documents marked by defence:
Ex.D1 : Certified copy of complaint Ex.D2 : Certified copy of F.I.R Ex.D3 : Certified copy of statement Ex.D4 : Bank passbook Ex.D5 : Certified copy of encumbrance Certificate Ex.D6 : Acknowledgment Dt;10.08.2020.
Ex.D6(a) : Signature of PW.1
(OONKAR MURTHY K.M)
XIV ADDL.
C.M.M.,BENGALURU