Bangalore District Court
Siddaiah vs B.Eshwar Singh on 20 March, 2021
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 20th day of March - 2021
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.11778/2017
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Siddaiah,
S/o.Dodda Yelagaiah,
Aged about 63 years,
R/at No.1491, 7th Main,
Kengeri Satellite Town,
Bengaluru-60.
(Rep. by Sri.Anand R Beerannavar, Adv.)
V/S
Accused : B.Eshwar Singh,
Father name not known
Points Men, 'D' Group Employee,
Hejjala Railway Station,
Hejjala Post, Bidadi Hobli,
Ramanagara Taluk & District.
(Rep.by Sri.Shivakumar S Naregal, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Convicted.
DATE OF ORDER : 20.03.2021.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.No.11778/2017
JUDGMENT
The complainant has presented the instant complaint against the accused on 18.02.2017 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.3 lakhs.
2. The factual matrix of the complainant case is:
The accused and complainant were known to each other for the past several years. In that acquaintance, the accused had approached the complainant on 07.01.2015 and requested for the financial assistance for the tune of Rs.3 lakhs to meet out his urgent domestic and other legal necessities. On considering the request of the accused, the complainant has withdrawn the said amount from his bank account maintained in the State Bank of India, Kengeri Branch, Bengaluru and paid sum of Rs.3 lakhs to the accused by way of cash on 14.01.2015 before the witnesses. The accused had received the said hand loan amount of Rs.3 lakhs, while receiving the said amount, the accused has assured the complainant that, he would repay the same within 12 months.
The complainant has averred that, even after completion of the said agreed period of one year, the accused has not choosen to repay the said hand loan amount, on persistent demands made Judgment 3 C.C.No.11778/2017 by the complainant, the accused had issued 2 post dated cheques bearing Nos.000003 dated:09.12.2016 for sum of Rs.2 lakhs and another cheque bearing No.000005 dated:15.12.2016 for sum of Rs.1 lakh, both the cheques are drawn on Karur Vysya Bank, Ramanagara Branch, Ramanagara, towards repayment of the said hand loan amount and assured to honour the said cheques on the date of their presentation.
The complainant has further alleged that, as per the instructions of the accused, he presented the said cheques for encashment on 16.12.2016 before his banker viz., State Bank of India, Kengeri Branch, Bengaluru. But on receiving the endorsement dated:20.12.2016, he got utter shock and surprise, as the said cheques came to be dishonoured for the reasons "Payment Stopped by Drawer". On further enquiry with the bank, it also revealed to the complainant that, the accused has not even kept sufficient money in his account, to honour the said cheques. Knowing fully well about the same, the accused has issued the aforesaid cheques with a criminal intention, not to honour the said cheques. Immediately, the complainant had approached the accused and informed about the said facts and demanded him to pay the amount covered under the cheques by way of cash, then accused gave evasive reply. Thereafter, complainant through his Judgment 4 C.C.No.11778/2017 advocate on 18.01.2017 got issued legal notice by way of R.P.A.D., calling upon him to pay the amount covered under the cheques within 15 days and the same came to be served upon him on 19.01.2017, thereafter, on 20.02.2017 the accused gave evasive reply. Since, the accused has not paid the amount covered under the cheques. Thereby, he committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
3. After receipt of the private complaint, my predecessor in office took the cognizance and got registered the PCR and recorded the sworn statement. Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process.
4. In response to the summons, the accused appeared through his counsel and obtained bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to him, wherein, he denied the same and claimed to have the defence.
5. To prove the case of the complainant, he himself choosen to examined as PW.1 and got marked Exs.P1 to P10. The PW.1 is also choosen to examine one witness to the said transaction by Judgment 5 C.C.No.11778/2017 name Ashwathanarayana as PW.2. The PW.1 and PW.2 were subjected for cross-examination by the advocate for the accused.
6. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same and answer given by him was recorded. In support of the defence, the accused himself was examined as DW.1 and got marked Exs.D1 and D2. The DW.1 was also choosen to examine the Assistant Manager of Karur Vysya Bank of Ramanagara Branch by name Mr.Pavan Kumar.N as DW.2 and through him got marked the documents at Exs.D3 to D8. The DW.1 and DW.2 were subjected for cross-examination by the advocate for the accused.
7. I have heard the arguments of complainant counsel. Accused counsel has not addressed his side arguments. Inspite of given liberty to file his written arguments, but accused counsel has not submitted his written arguments.
8. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:
1) Whether the complainant proves beyond the reasonable doubt that, he paid sum of Rs.3,00,000/- on 14.01.2015 as hand loan to the Judgment 6 C.C.No.11778/2017 accused, and in turn, for discharge of legal recoverable debt, the accused issued the Exs.P1 and P2 cheques bearing No.000003 dtd:09.12.2016 and another cheque bearing No.000005, dated:15.12.2016 for sum of Rs.2 lakhs and Rs.1 lakh respectively, in all Rs.3,00,000/- both the cheques are drawn on Karuru Vysya Bank Ltd., Ramanagaram Branch, Ramanagaram?
2) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
9. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Affirmative Point No.2 : In the Affirmative Point No.3 : As per final order, for the following:
REASONS :- UNDISPUTED FACTS:-
10. On going through the rival contentions of the parties to the present case, the following facts remains undisputed, hence, they do not require to be prove.
The fact that, the complainant was a retired Traffic Inspector in KSRTC and got retired from his service in the year 2013 is not Judgment 7 C.C.No.11778/2017 in dispute. The fact that, accused was working as a Points Man in the Railway Department working at Hejjala is not in dispute. As per Ex.P9, the bank passbook of the complainant on 14.01.2015 the complainant got withdrawn sum of Rs.3 lakhs from his bank account is not in dispute.
The fact that, the addresses of the complainant and accused as made mentioned in the complaint cause title is not in dispute. The fact that, the questioned cheques at Exs.P1 and P2 are belongs to the accused is not in dispute. The fact that, the bank endorsements produced at Exs.P3 and P4 for the reasons signatures differs or payment stopped by drawer is not in dispute. The fact that, the exchange of legal notices between complainant and accused as per Exs.P5 and P7 are not in dispute.
The fact that, after the case came in to effect on 30.04.2013 as found in Ex.P10 got retired from his service being traffic inspector in KSRTC Department is not in dispute. The fact that, the PW.2 is working as Conductor in KSRTC Department is not in dispute. The fact that, he is also relative of the complainant is not in dispute.
The fact that, Ex.D2 is the reply notice issued by the accused which is copy of the Ex.P7 produced by the complainant Judgment 8 C.C.No.11778/2017 is not in dispute. The fact that, the accused herein, on 21.12.2007 got opened his bank account in Karur Vysya Bank is not in dispute. The fact that, the specimen signatures as found in Ex.D4(a) in Ex.D5(a) are not in dispute. The fact that, for seeking facilities of e-service, the accused has submitted application as per Ex.D5 on 22.12.2012 is not in dispute. Wherein found the signature of the accused at Ex.D5 is not in dispute. The fact that, the Ex.D6 - True copy of Voters Identity Card pertaining to the accused is not in dispute. The fact that, from No.60 maintained by the bank produced at Ex.D7 belongs to the accused is not in dispute.
11. POINT NOs.1 and 2: Since both the points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
The PW.1 to prove his case choosen to examined himself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P10, they are:
a) Exs.P1 and P2 are the cheques bearing Nos.000003 and 000005 issued by the accused for sum of Rs.2 lakhs and Rs.1 lakhs respectively, in all Rs.3 lakhs dated:09.12.2016 and 15.12.2016, drawn on Karuru Vysya Bank Ltd., Ramanagaram Branch, Ramanagaram.
Judgment 9 C.C.No.11778/2017
b) Exs.P1(a) and P2(a) are the alleged signatures of accused.
c) Exs.P3 and P4 are the Bank Memos
dated:16.12.2016.
d) Ex.P5 is the Legal Notice dated:18.01.2017.
e) Ex.P6 is the Postal receipt.
f) Ex.P7 is the representation dated:20.01.2017 written by accused herein addressed to the complainant counsel.
g) Ex.P8 is the track consignment.
h) Ex.P9 is the bank passbook pertaining to the complainant herein issued by the State Bank of India, Kengeri Branch, Bengaluru.
i) Ex.P10 is the order letter dated:13.10.2012 pertaining to the complainant service details issued by Division Controller of Bengaluru Central Division.
In support of his case the complainant through his counsel has produced the citations and relied upon same, they are;
a) AIR 2019 SC 2446
b) Crl.R.P. No.1188/2005
c) Crl.A.No.1870/2012
12. That apart, to prove the case of complainant as to establish the alleged loan was lent to the accused in the presence of witness, he choosen to examined one Ashwathanarayana as PW.2. The PW.2 choosen to filed affidavit evidence on oath in lieu of his chief-examination. Wherein the PW.2 has contended that, he knew the complainant and accused. The complainant Judgment 10 C.C.No.11778/2017 was working in KSRTC got retired from his service in the year 2013. The accused was a 'D' Group Employee in the Railway Department working at Hejjala Railway Station and the accused had borrowed sum of Rs.3 lakhs from the complainant in his presence on 14.01.2015. The PW.2 was told by the accused that, he had financial requirement for the purpose of constructing the house property. In response to the amount paid by the complainant, the accused issued 2 post dated cheques bearing Nos.3 and 5 dated:09.12.2016 and 15.12.2016 for the amount of Rs.2 lakhs and Rs.1 lakh respectively, drawn on Karur Vysya Bank, Ramanagaram Branch, by affixing his signature in the presence of PW.2. The accused himself signed those cheques in the presence of PW.2 and handed over the same to the complainant. He got shocked to hear that, the accused came up with the defence and denial of his signatures on the cheques.
The PW.2 also alleged that, the accused had a tendency to cheat his lender and even in one of the occasion, accused had issued 2 cheques in favour of one Mr.Venkatachalapathy for the tune of Rs.11 lakhs, Rs.6 lakhs and Rs.5 lakhs each. Unfortunately, though the said Mr.Venkatachalapathy had issued legal notice for dishonour of the said cheques to the accused, after issuance of the said legal notice, the said Judgment 11 C.C.No.11778/2017 Mr.Venkatachalapathy was died. The PW.2 had personally seen the cheques issued by the accused in favour of Mr.Venkatachalapathy also. The accused has played a fraud in putting signatures in different form. The PW.1 and PW.2 were subjected to the cross-examination by the advocate for the accused in detail.
13. After detailed cross-examination done by the advocate for accused to the PW.1 and PW.2, the complainant got closed his side. Thereafter, whatever the incriminating evidence made against the accused was read over and explained to him as required under Section 313 of Cr.P.C., wherein, he denied the same and gave his statement that:
"ನನನ ಬಬಗಳಳರನಬದ ರಮನಗರಕಕ ಬಸನಲ ಹಳಹಗನವಗ ಖಲ ಸಹ ಮಡದ ಇದದ ನಪ-1 ಮತನತ 2 ಚಕನ ಕ ಗಳನ 2013 ರಲ ಕಳದನ ದ , ಅದಕಕ ಸಬಬಬಧಪಟಟಬತ ಕರಳರನ ವವಶಶ ಬಶಬಕ, ರಮನಗರಕಕ ಹಳಹಗದನ ದಳರನನ ನ ನಹಡದನ. ಪರರದ ರರಬದನ ನನಗ ಗಳತತಲಲ.
ಆತನಳಬದಗ ನನನ ರವದಹ ವಶವಹರ ಮಡಲಲ. ಪರರದಗ
ನನನ ರವದಹ ಹಣ ಕಳಡಲನ ಬದದನಲಲ. ಚಕನ
ಕ ಗಳಲ ನನನ
ಇನಷಯಲನನ ನ ಕಳಡ ತಪಪಗ ನಮಳದಸದ."
Judgment 12 C.C.No.11778/2017
14. In order to prove the defence of the accused, the accused himself choosen to entered into witness box and examined as DW.1 on oath and filed affidavit evidence.
15. No doubt, in this case, the accused was entered into witness box and filed affidavit evidence. The filing of affidavit by the accused in lieu of his probable defence is not opposed by the complainant. That apart, in a judgment passed by the Hon'ble High Court of Karnataka dated:13 th Day of February 2020 in a case between Jagadeesh Hiremath and R. Venkatesh in Criminal Appeal No.907 of 2017 A/W Criminal Appeal No.908 of 2017 is pleased to observed that, in view of the orders of this court in Criminal Petition No.9331/2017 C/w Criminal Petition No.9332/2017 dated: 02.07.2019, wherein following the law laid down by the Hon'ble Supreme Court in Indo International Ltd., & Another V/s. State Of Maharasthtra & Another, 2005 Crl.L.J.208, it is held that, "
The court dealing with a complaint under Section 138 of the said Act of 1881 had an option to take evidence of the witnesses on the side of the prosecution as well as evidence of the accused and the defence witnesses, if any on affidavit"
16. In the affidavit evidence of the accused, he has specifically contended that, complainant is a stranger to him and he do not know the complainant. When the accused received legal notice Judgment 13 C.C.No.11778/2017 issued by the complainant through is counsel, got shocked and surprised, then caused valuable reply on 21.01.2017. The complainant was stranger to the accused, then how to raise the question of borrowing loan from the complainant.
The accused has also contended that, the complainant does not know his father name and he was himself admitted, he not known to his father name and residential address, it clearly discloses, he is a stranger. He also contended that, he never need any loan from anybody and his financial condition was good to lead his life being a Central Government Employee. The complainant has misusing his lost / theft cheques.
The accused has also further contended that, on 05.01.2013, when he was traveling in one KSRTC Bus at 9.00 a.m. he misplaced his bag which consists of blank records, cheque book with some amount for that, he lodged complaint before the Ramanagaram Police Station, in the same, complainant was produced before the bank authority. The complaint of complainant also produced before the court. (Though contended as such, no such complaint copy submitted to the Police Station is been produced in the present case.).
Judgment 14 C.C.No.11778/2017 The accused has further contended that, he stopped his transaction in the bank and had intimated to the bank, if anybody present the said cheques, to intimate him, thereafter, he closed his account in the said bank on 03.06.2013, in the complaint he stated that, he issued cheque on 07.01.2015 after closing of the bank account, how can he issued the cheques. Since, complainant is a stranger, question of issuing cheques as such does not arise. He also stated that, he got job on his personal capacity and his father was rendered his service and after retirement, he died. He never issued the cheques to the complainant and signatures in the cheques are not belongs to him, complainant by forged his signatures and filed the false case, for making unlawful gain.
17. Apart from the accused also choosen to produced the documents at Exs.D1 and D2. They are:
a) Ex.D1 is the true copy of requisition submitted to the Manager, Karur Vysya Bank, Ramanagaram, though the said document bares the seal of the bank, has not found the signature of the issuing authority and
b) Ex.D2 is the copy of reply notice issued by the accused to the complainant's counsel on 20.01.2017.
18. That apart, to prove his probable defence, the accused got choosen to examined the Assistant Manager of Karur Vysya Bank Judgment 15 C.C.No.11778/2017 Ltd., by name Mr.Pavan Kumar.N on oath as DW.2. The DW.2 in his oral evidence has deposed that, since 8 years he has been working in Karur Vysya Bank and since 1 ½, year he has been working in the Ramangaram Branch on account of transfer. He also deposed that, the account of the accused is stood in the name of N.Eshwar Singh S/o. Narayana Singh and Yashodha Bai, Chamundeshwari Extension, Ramanagar and its reference number was 1327-23344 and his bank account No.13271550000025782. He also deposed, questioned cheque at Ex.P1 belongs to the accused and it is difficult to say, to whom the signature therein at Ex.P1(a) belongs.
The DW.2 has also produced the particulars of the account opening form, identity card, from No.60 along with its enclosures together with originals and on compared with the same, the originals were returned and true copies were got marked at Exs.D3 to D8. Which are:
a) Ex.D3 is the true copy of account opening form pertaining to the accused herein.
b) Ex.D4 is the true copy of specimen signatures form.
c) Ex.D4(a) is the signature of accused.
d) Ex.D5 is the true copy of application for E-Services for individuals / corporate pertaining to the accused herein.
Judgment 16 C.C.No.11778/2017
e) Ex.D5(a) is the signature of accused.
f) Ex.D6 is the true copy of voters identity card pertaining to the accused herein.
g) Ex.D7 is the Form No.60 pertaining to the accused herein and
h) Ex.P8 is the representation dated:03.06.2013 written by accused herein addressed to the Manager, Karur Vysya Bank, Ramanagaram.
The DW.1 and DW.2 were subjected to the cross- examination by the advocate for complainant.
19. While appreciate the materials on records and evidence, this court has gone through the decisions stated supra apart from the other decisions.
20. On going through the rival contentions of the parties, it made clear that, complainant has brought the present case based on the questioned cheques at Exs.P1 and P2, by contending for repayment of loan of Rs.3 lakhs, the accused got issued those cheques and assured to maintained sufficient funds in his bank account as on the date of presentation, but when presented they came to be dishonoured for the reasons "Funds Insufficient and Payment Stopped by Drawer". Thereafter, he met the accused and convey, but he gave evasive reply, therefore, as found in Ex.P5 he got issued legal notice, the same was denied by the accused by gave evasive reply, thereby, remained defaulter in Judgment 17 C.C.No.11778/2017 payment of amount covered under the cheques, thereby, committed the offence punishable under Section 138 of Negotiable Instruments Act, hence, brought the present case.
21. No doubt, in this case, the compliance of mandatory provision to maintain the present case is not been disputed. On going through the said case placed by the complainant it made clear that, as per Sections 20, 118 and 139 of Negotiable Instruments Act, the initial statutory presumption favours of the complainant, which needs to draw the inference that, the accused gave the questioned cheques at Exs.P1 and P2 for discharge of legally existence of recoverable debt, which covers as enumerated under those provisions, unless and until contrary prove. Thereby, it is the initial burden shifted on the accused to rebut the statutory presumption as well as facts in issue placed by the complainant as per Section 139 of Negotiable Instruments Act. If the accused is successful in rebut the statutory presumption, then it would be reverse burden on the complainant to establish his case beyond the reasonable doubt.
It is well worthy to cite the decision reported in 2008 AIR SCC 7702 (P. Venugopal V/s.Madan P. Sarathi). Wherein, it was pleased to held by the Hon'ble Division Bench of the Hon'ble Apex Court that:
Judgment 18 C.C.No.11778/2017 "The presumption raised does not extent to the expenditure that cheque was issued for the discharge of any debt or liability. Which is required to be proved by the complainant. However, it is essentially a question of fact".
In another decision reported in ILR 2009 KAR 1633 (Kumar Exports V/s. Sharma Carpets). Wherein, it was pleased to held by the Hon'ble Apex court that:
(D) Negotiable Instruments Act, 1881, Sections 118, 139 and 138 - Presumption under Sections 118 and 139 - How to be rebutted - Standard of proof required rebuttal - HELD, Rebuttal does not require proof beyond reasonable doubt -
Something probable has to be brought record - Burden of proof can be shifted back to complainant by producing convincing circumstantial evidence - Thereafter the said presumption arising under Section 118 and 139 case to operate - To rebut said presumption accused can also rely upon presumptions under Evidence Act, 1872 Section 114 (common course of natural even human conduct and public and private business) -
Evidence Act, 1872 - Section 114 - Presumptions of fact under".
Added to that, in a decision of AIR 2008 SC 278 between John K John V/s. Tom Verghees, the Hon'ble Apex court it is held that:
Judgment 19 C.C.No.11778/2017 "The presumption under Section 139 could be raised in respect of some consideration and burden is on the complainant to show that he had paid amount shown in the cheque. Whenever there is huge amount shown in the cheque, though the initial burden is on the accused, it is equally necessary to know how the complainant advanced such a huge amount".
22. From the point of above dictums also, it was the initial burden lies on the accused. Unless the accused discharged his his initial burden, question of reverse burden to rebut the case of complainant or statutory legal presumption does not arise. Therefore, it is just and proper to appreciate the probable defence placed by the accused from the inception by way of cause reply till the fag end.
23. As made mentioned in the summarizing of pleading of both the parties mentioned earlier, the complainant has projected his case on 07.01.2015, the accused approached him for loan of Rs.3 lakhs for meet out his urgent domestic and other legal necessities, he withdraw money from his bank account as found in Ex.P9 in the presence of witness as PW.2 on 14.01.2015, he lent his hard cash of Rs.3 lakhs to the accused and he undertakes to repay the same within 12 months. As he undertaken not repaid, when Judgment 20 C.C.No.11778/2017 complainant requested and demanded for repayment of the said hand loan amount, then accused got issued the Exs.P1 and P2 cheques, when he presented the said cheques for encashment, they got dishonoured for the reasons 'drawers signature differs or payment stopped by drawer' as found in Exs.P3 and P4. Thereafter, demand made by way of issue legal notice as found in Ex.P5, 15 days time were given to him to comply his legitimate demand, but he denied by way of cause reply notice, since, he committed the offence punishable under Section 138 of Negotiable Instruments Act, hence, present case is brought.
24. Whereas, at the inception itself the accused as per Ex.P8 caused reply and took his defence. On going through the Ex.P7 in order to appreciate, how the questioned cheques came to be possession of the complainant is to be seen. On going through the Ex.P7 the accused categorically contended that, on 01.06.2013 when he came from Bengaluru to Ramanagaram in the KSRTC Bus at 9.00 a.m. his bag was stolen. In the said bag he kept his bank passbook, cheque book and other documents, house keys with cash of Rs.30,000/-. The said bag was found by the complainant and based on the same, the complainant got issued legal notice. Thereafter, he narrated as false. The Ex.P7 are as under:
Judgment 21 C.C.No.11778/2017
"ಸದರ ನಹವ ಕಳನಹಸರನವ ನಳಹಟಹಸ ನನಗ ತಲನಪತನ. ನನನ ಓದ
ತಳದನಕಳಬಡನ ನನನ ನನನ ಖತ ಹಳಬದರನವ ಕರಳರನ ವವಶಶ ಬಶಬಕಗ ಹಳಹಗ ಸದರ ಬಶಬಕನ ಮಶನಹಜರ ಬಳ ಈ ವಷಯವನನ ನ ತಳಸದಗ, ಸದರ ನನನ ಖತಯನ ದನಬಕಕ03.06.2013 ರಬದನ ಖತಯನನ ನ ಮನಕತಯ ಮಡರನತತಹನಬದನ ಸದರ ಮಶನಹಜರ ರವರನ ನನಗ ತಳಸರನತತರ. ಆದರ ನಹವ ನನಗ ನಹಡದ ನಳಹಟಸನಲ ದನಬಕಕ07.01.2015 ರಬದನ ಸದರ ನನನ ಮನಕತಯಗಳಳಸರನವ ಖತಗ 3,00,000/- ಗಳ ಎರಡನ ಚಕನ ನ ಸದದಯ ಕ ಗಳನನ ಶ ಬನ ದಳಡಡ ಎಲಗಯ ದ , ಈ ವಷಯದ ಬಗಗ ಸದರ ಶ ಎಬಬನವವರ ಹಸರನಲ ಹಕದನ ಬಶಬಕ ಮಶನಹಜರ ರವರನ ನನಗ ತಳಸದದರನ. ದನಬಕಕ03.06.2013 ರಬದನ ನನನ ಹಳಬದರನವ ಖತಯನನ ದ , ನಬತರ ನ ಮನಕತಯಗಳಳಸದನ ಹಹಗ ನಹವ ನನಗ 07.01.2015 ರಬದನ ನನನ ಖತಗ ಚಕಕನನ ನ ನಹಡರನತತಹರ.
ಆಗಗ ಸದರ ಬಶಬಕನ ಮಶನಹಜರ ರವರನ ನನಗ ಇವರ ಮಹಲ ದಳರನನ ನ ನಹಡ, ನಮಗ ಸಹರದ ನಮಮ ವಸನತಗಳನನ ಸ ಪಡದನಕಳಳಳ ಎಬದನ ನ ವಪಸನ ತಳಸರನತತರ."
25. From the inception in the reply notice the accused has contended, he got received legal notice from the complainant on reading the same, he gone to his Karur Vysya Bank, wherein, he had bank account and enquired into the matter with the bank Manager, then the bank Manager told him that, the bank account of the accused was got closed on 03.06.2013.
Judgment 22 C.C.No.11778/2017
26. On prima-faice reading of the said first contention made by the accused as mentioned above, it leads to draw the inference that, the bank manager got closed the bank account of the accused on 03.06.2013. Further reading of the said contents, it also revealed that, the bank manager also told him that, in respect of closure of account, the complainant on 07.01.2015 has submitted 2 cheques for Rs.3 lakhs for encashment is been intimated to him. It also contended that, on 03.06.2013 itself the accused had closed his bank account and questioned the complainant under such circumstances on 07.01.2015, how the complainant got presented the said cheques to his banker. Even bank manager has also advised the accused to lodge complaint against the complainant and take back his documents.
27. On carefully going through the said recitals of reply notice, the accused has specifically contended that, the bank manager on 03.06.2013 itself got closed his account. In order to show that, the accused got closed his account on 03.06.2013 itself definitely, the Exs.P3 and P4 the banker slips does not reveals the signatures differs or payment stopped by drawer. It does not mean that, the account got closed. If at all, the bank manager has informed him about the closure of the account of the accused as such, definitely, accused could have produced necessary Judgment 23 C.C.No.11778/2017 documents before this court, but no such effort has been made for the reasons best known to him is one of the strong doubtful circumstances to suspect the contention of the accused, as to closure of his account. Contrary, the Exs.P1 and P2 cheques as well as the banker slips at Exs.P3 and P4 clearly manifest the bank account of the accused is still exist.
28. That apart, the accused choosen to examine as DW.1 to prove his contention, wherein also he not narrated as to closure of his bank account as contended in the reply notice. The DW.1 was subjected for cross-examination, wherein he deposed that:
"ನನನ 2013 ರಲ ಬಶಬಕಗ ಆ ಚಕನ ಕ ಗಳನ ಕಳದನ ಹಳಹಗದ ಎಬದನ ದಳರನ ನಹಡದನನ. ಚಕನ ಕ ಕಳದನ ಹಳಹದ ಬಳಕ ಪರರದ ನಳಹಟಹಸ ನಹಡನವವರಗ ಬಶಬಕಗ ದಳರನನ ನ ನಹಡ ಸನಮಮ ನಗದ. ಪರರದ ನಳಹಟಹಸ ನಹಡದ ಬಳಕ ಪನಕ ಬಶಬಕಗ ದಳರನ ನಹಡಲನ ಹಳಹದಗ, ಅವರನ ಒಮಮ ದಳರನ ನಹಡದರ ಸಕನ ಎಬಬನದಗ ತಳಸದದರನ. ಪಹಲಹಸ ಠಣಗ ದಳರನ ನಹಡಲನ ಹಳಹದಗ ಬಶಬಕಗ ಸಟಪಪಹಮಬಟಗ ದಳರನ ನಹಡ ಎಬಬನದಗ ತಳಸದದರನ. ಪಹಲಸರನ ತಳಸದದ ಮಹರಗ ಬಶಬಕನಲ ನನನ ಚಕನ ಬಗಗ ವಚರಸನತತದ. ಪಹಲಸ ಠಣಯಲ ಬಹರ ಕ ಕಮ ತಗದನಕಳಬಡಲಲ."
29. Whatever the contention raised in reply notice as per Ex.P7 is not been seen in the said cross-examination. But he stated that, in the year 2013, he lost cheques, hence, he lodged Judgment 24 C.C.No.11778/2017 complaint to his banker. Even he stated that, after lost his cheques, till complainant gave notice to the accused, by gave complaint to his banker, he kept quit. After got receipt of the legal notice from the complainant, when he went to his banker to give complaint again he told him that, once lodged complaint is enough. He also stated that, when he went to the Police Station to lodge complaint, they have informed him to give complaint for making stop payment in the bank. On the instructions of the police, he enquired with his banker and not initiated any action before the Police Station. On reading of the said testimony of DW.1, it revealed that, the accused has taken the contention, he lodged complaint in the year 2013 and he not gave any written complaint in the Police Station, as to lost of his articles which made mentioned in the Ex.P7.
30. On going through the contents of Ex.P7, it discloses he not only taken the contention that, he not lost the cheques only, but he also alleged that, his bag which consists of bank passbook, cheque book other documents, house keys and cash of Rs.30,000/-. If at all, those things were in the bag definitely, lodging complaint before the bank is not enough, it needs to submit complaint to the jurisdictional Police Station to trace out the same, if really lost. If at all, as alleged by the accused other Judgment 25 C.C.No.11778/2017 than cheques if he lost, definitely, by mentioning best particulars of the articles kept in the bag, at appropriate stage, he ought to lodge complaint before the Police Station, but the same is not done by the accused. From the said say of accused it revealed that, he not approached the Police Station to lodge complaint as to missing or lost of his articles as contended in the Ex.P7 reply notice. On going through the documents produced by the accused as per Exs.D1 and Ex.D8 which are none other than same documents, except differences in affixed seal of the banker of the accused.
31. On meticulous perusal of the Ex.D1, the accused on 03.06.2013 as found in xerox copy of the Ex.D1 got produced with the seal of his banker are discloses the contents that:
To, The Manager, Karur Vysya Bank, Ramanagaram.
R.Sir, While journey from Bangalore to Ramanagaram by KSRTC Bus on date:01.06.2013. I having one hand bag. In this bag some contents like, my passbook and cheque book of your bank and some house keys and personal papers etc., by missing anybody taken / theft my bags in this bus.
If anybody handover my bag to your bank authority. Please inform me sir.
Judgment 26 C.C.No.11778/2017
Thanking You. Yours faithfully.
Sd/-
32. On going through the said contention of the accused, here also the accused has contended, when he travelled from Bengaluru to Ramanagaram in the KSRTC Bus on 01.06.2013 with one carry bag, which consists of bank passbook, cheque book, some house keys and personal papers etc., missing anybody taken / theft his bag. On close perusal of Ex.D1, the accused has not mentioned about the lost of cash, but stating about missing of passbook, cheque book, house keys and personal papers. On going through the same, it also discloses, the accused needs to submit written complaint to the jurisdictional Police Station in order to avoid misuse of the same and its traced out. Though, in the Exs.D1 and D8, it was mentioned at the left bottom stating, copy to, Town Police Station, Ramanagaram, as he deposed earlier, he not lodged any complaint as to the same.
No prudent man, if lost of hard cash of Rs.30,000/-, house keys, bank pass book, cheque book and personal papers as made mentioned in the Ex.P7/ Ex.D1 / Ex.D8 definitely, he should not kept mum all these days. Regarding lost of his personal papers, house keys and cash, the bank authority is not proper authority to avoid its misuse. Therefore, lodging of complaint as per Exs.D1 / Ex.D8 itself creates doubt, as to the bonafidness of the accused.
Judgment 27 C.C.No.11778/2017
33. That apart, on going through the Ex.D1 it does not discloses, which day it was, though accused was working in the Railway Station of Hejjala, what was the necessity to him to travel from Bengaluru to Ramanagaram and what time, in which bus, whether he was, on leave or any work he came to Bengaluru by holding those valuable things is also not been disclosed. When he is working in the limits of Hejjala Railway Station and he being a resident of Ramanagaram Taluk, what was the compelling circumstances to him, to carry with all those particulars including cheques is not been satisfactorily explained and demonstrated. Unless, taking those particulars of articles such as, bank passbook, cheque book and personal papers with cash of Rs.30,000/- for the purpose of give security for any transaction, question of brought those articles from the house of the accused is highly doubtful. Therefore, rather it is supports his probable defence, the lodging of complaint as per Ex.D1 / Ex.D8 coupled with the contents of reply notice at Ex.P7 together the evidence of DW.1 itself creates doubt.
34. That apart, the Ex.D1 / Ex.D8, the accused has not made any prayer to the bank authority as to give any stop payment or closure of his account etc. The course upon to the accused only to give stop payment instruction based on the missing of cheques Judgment 28 C.C.No.11778/2017 if any, as he alleged, or get closed his bank account. On close reading to the contents of his requisition submitted to his banker, it does not revealed as to specific prayer made to the banker. On close perusal of the said documents, the prayer made by the accused revealed that, if anybody hand over his bag to the banker, requested to inform him. The said prayer made in the requisition given to the bank discloses, in the anticipation of lost of his bag as alleged in the bus, appears to be highly improbable and no prudent man can do so, then lodge complaint before the Police Station in order to taken immediate action as to misuse of the same. Even the said complaint lodged by the accused does not discloses, the bus particulars as to he traveled. Therefore, rather the said requisition supports the contention of the accused it creates doubt as to his bonafidness.
35. That apart, on close perusal of the Ex.D1, it does not revealed the seal and signature of the bank. When the accused was secured the Ex.D1 is not been explained. If at all, the accused was very much away of the Ex.D1 is in the hand of the accused as on the date of give reply at Ex.P7 definitely, he could have been narrated the particulars as found in Ex.D1, but the same is lacks. The bank authority has produced the Ex.D7 the copy of the representation moved by the accused on 03.06.2013.
Judgment 29 C.C.No.11778/2017 On meticulous perusal of the same, it does not revealed the date and submitted to the bank. On close perusal of the round seal with some initial made in the copy of Ex.D1 / Ex.D8, which are not tallied each other and appears to be made by different person. Why the said discrepancy has made with regard to the round seal found in both the said documents. Whatever the seal and signature found in Ex.D8 which maintained by the banker is to be revealed in the Ex.D1 which got produced by the accused, but the same is appears to be differs.
36. That apart, in the Ex.D8 at right side below page, it is endorsed that, made stop payment, but subsequent words and particulars are not been seen. Therefore, it made clear that, the bank authority is also reckless in dealing with the matter, therefore, no spoke can be given to the Ex.D8. Rather the said documents creates doubt in the mind of court as to bonafidness of the accused, it own give to the rescue of the accused. Thereby, the accused has failed to demonstrate that, he gave complaint as to lost of his articles including the questioned cheque as found in Ex.P7/Ex.D1/Ex.D8.
37. On going through the Exs.D3 to D7 produced by the DW.2 it made clear that, the accused has admitted his bank account seal Judgment 30 C.C.No.11778/2017 its persist not closed as alleged by the accused. Then under which context, the accused has asserted in the reply notice that, bank manager has closed his account is also not been satisfactorily explained. No doubt, whatever the signatures of the accused as found in the bank as per Exs.D3 to D7, which are prior to 22.12.2012. Therefore, in order to show that, the accused thereafter also used to sign as found in specimen signatures as per Exs.D4(a) and D5(a) needs to be seen.
38. On meticulous perusal of the signatures of the accused found in Exs.D3 to D7 particularly Exs.D4(a) and D5(a) is not similar and the strokes also appears to be strikeout to the bare eyes. On comparing with the signature of the accused with regard to the case documents, which are plea, 313 of Cr.P.C. statement as well as his evidence which also prima-faice discloses, not in accordance with the specimen signatures. Therefore, it leads to draw the inference that, after accused gave his specimen signatures, who is banker got changed the style of signature and the same is also not communicated to his banker and get authorization by way of furnish fresh specimen signature. Therefore, whatever the admitted signature of the accused maintained in the bank as well as available in the case records of the court also appears to be slight deviation, therefore, it needs to Judgment 31 C.C.No.11778/2017 draw the inference that, the accused in the habit of changed his signature.
39. It is significant fact to note that, though the bank manager got examined as DW.2, in his chief-examination he deposed, it is difficult to him to say the questioned signature at Ex.P1(a) belongs to him and admitted, it got differences. Even in his cross- examination done by the advocate for the accused, he specifically deposed that, Exs.D4(a) and D5(a) the specimen signatures are different from the questioned signatures at Exs.P1(a) and P2(a) of the cheques. Even he stated that, the based on specimen signatures, the signatures found in Exs.P1(a) and P2(a) will not honoured by his banker. Therefore, it appears to be made mentioned in the bank memo that, signatures differs. But to show that, accused gave stop payment instruction, nothing has deposed by the DW.2. On close perusal of the contents of representation given by the accused as found in Exs.D1 / Ex.D8 it also revealed that, the accused has not gave any stop payment instruction to his banker. Therefore, on which score the bank authority, took pain to endorsed on the banker slips as per Exs.P3 and P4 that, the payment stopped by the drawer. The very act of the bank authority, if signature is not tallied, there is meaning in given endorsement as drawer signature differs. But Judgment 32 C.C.No.11778/2017 without giving any instruction for payment stopped by the drawer, what is the special interest taken by his banker in made mentioned the contention in the endorsement as such is also creates doubt, which leads the unnecessary risk taken by the banker to project defence to the accused. Therefore, on appraisal of the contention taken by the accused in the Ex.P7 and Ex.D1 / Ex.D8 from the point of his defence narrated in the evidence of DW.1 and DW.2, rather it accept the genuineness of endorsement given by the banker, it creates doubt as to the reason for giving such endorsement, without the accused gave any stop payment instruction, the bank authority has made such endorsement it is to be depricated.
40. In the affidavit evidence of the accused, he stated that, in respect of his lost articles including cheque book, he lodged complaint before the Ramanagaram Police Station and the same is produced before the bank authority. As per his own say, he not lodged complaint before the jurisdictional Police Station. If at all, the contention of the affidavit were to be true, it was the complaint prepared to give it to the Police Station, was apperas to be to the bank, hence, not made specific prayer for either making stop payment as to misusing of cheques by mentioning its numbers or closure of the account. Since, the accused has not lodged the Judgment 33 C.C.No.11778/2017 complaint to jurisdictional Police Station, he is only focus on the cheques, therefore, in order to avoid the legal complications to the safer side, well in advance might have been lodge this complaint knowingfully well. The said complaint at Ex.D1 discloses, the accused appears to be given formal complaint to the banker. Whether, at least at the later stage, he got the document or not nothing has been stated. If at all, he lodged complaint, intimated to the banker subsequently does not arise. No man, if found the bag which consists of documents narrated in Ex.D1, normally would not ventured to given to the banker, it could have been handed over to the police, for secure them. Inspite of doing so, the accused has contended, by lodging complaint at Ex.D1 to his banker asked them to intimate and thereafter, he closed his account in the said bank on 03.06.2013. The very contention of the accused as narrated in his affidavit, as to closure of his account on 03.06.2013, is not been seen. Even it was not his prayer in Ex.D1 / Ex.D8, the accused never gave representation for closure of his account, therefore, considering the same does not arise.
41. On going through the cross-examination of DW.1, as reproduced earlier, he stated that, by gave complaint to his banker in the year 2013 he kept quit till he got received legal Judgment 34 C.C.No.11778/2017 notice from the complainant. On receipt of the same, he went to his banker, then they told him about once lodging complaint is enough. Therefore, the very conduct of the accused appears that, in order to avoid the someone present the questioned cheques, to avoid his liability appears o be gave representation / complaint at Ex.D1 / Ex.D8 to his banker. Therefore, he was not diligent in made mentioning the specific prayer or lodged complaint to the jurisdictional Police Station. In order to show that still in pursuance of the specimen signature made mentioned in the bank, he used to got affixed his signature in the paper correspondence of his work in Railway Department, it is the accused needs to produce subsequent document before this court, as to take defence the questioned signatures at Exs.P1(a) and P2(a) is not of him.
42. No doubt, the DW.2 is only authorize to say, whatever the signatures available on questioned cheques is in accordance with the specimen signatures or not? After opening the account and issuance of cheque book, the bank authority cannot know, whether the drawer of the cheque is affixed the signature the to the cheque or not? If cheque is in accordance with the specimen signature, then no difficulty in identify the same. But, against the specimen signature, if put signature in deferent manner, it cannot Judgment 35 C.C.No.11778/2017 say that, it is not the signature of the accused. In order to defeat the claim of cheque amount, affix signature altogether differently, with malafide intention it cannot be ruled out. The Bank Manager cannot say, as to the disputed signature is made by the drawer or not? At the most, he can say based on the specimen signature, otherwise, he cannot. When the signatures in Exs.P1(a) and P2(a) cheques are not in accordance with the Exs.D4(a) and D5(a), it is the accused needs to produce his recent signatures maintained in his official correspondence, but the same is not been produced. No doubt, in this case on taking the contention of the accused, the complainant got filed the application under Section 45 of Evidence Act, for refer the questioned signatures in the cheques to the FSL, but for the detailed reasons made mentioned therein, this court got dismissed by observing its the respective parties to prove their respective contentions. The complainant by way of production of banker slips at Exs.P3 and P4 got proved that, signatures are differs. Therefore, it is the accused needs to produce his subsequent signature maintained in the official course of business in order to prove that, questioned signatures are not of him.
43. No doubt, the complainant cannot come to the domain of the accused in securing the subsequent signatures. The drawer Judgment 36 C.C.No.11778/2017 could have, in order to avoid misuse of the cheques might have the chance of affixed signatures in different manner. Therefore, it is the drawer needs to prove before this court as to the subsequent signatures pattern to believe his defence. In that regard, the accused needed to produce the recent signatures of his official record, but not produced the same. The very act of the accused appears that, before issuing the cheque to the complainant for discharge of liability, without communicating the same, he lodged complaint at Ex.D1 / Ex.D8 to his banker, though, it has not proper forum to investigate the matter as to trace out the articles stated in the same. At the most, he could notice in writing to the his banker requesting for make stop payment on the misplaced or lost cheque, but he did not do so. The accused cleverly gave the complaint at Ex.D1 at improper forum, hence, the same is not safe to place any reliance.
44. Further, after got receipt of legal notice from the complainant, the accused got alert and made use of the Ex.D1 for safeguard his interest. If at all, the accused not given the cheques to the complainant, it is him to demonstrate, how the questioned cheques came to the possession of the complainant. In that regard, the cross-examination of PW.1 needs to be seen, wherein it discloses the suggestion of the accused made to PW.1.
Judgment 37 C.C.No.11778/2017
45. The accused through out the case took the defence that, complainant is a stranger. But the PW.1 in his cross-examination has deposed that, since 12 years he has been seen the accused. When he visited the Railway Station. More particularly he stated, through his brother-in-law by name Mr.Venkatachalapathy, the accused came to contact him. Even he stated, he does not know the personal particulars of the accused, as to his wife and children. But he categorically deposed, accused is working as Points Man in Hejjala Railway Station. In the cross of DW.1, he deposed that, he saw the complainant in the present case only and he does not know the particulars of him. He denied the suggestion that, complainant was working as A.T.S in KSRTC. He categorically admitted the suggestion as to mobile number of the accused as 9008437173. He denied that, since 4 - 5 years, he has been using the said mobile number. But stated, 2 ½ years is been used. He denied the suggestion that, on several times, the complainant used to contact the accused over phone and used to visit at Hejjala Railway Station, in that acquaintance alleged to be borrowed the loan. Though, the accused has denied the acquaintance of the complainant, but the suggestion made to PW.1 in his cross-examination is to be seen.
Judgment 38 C.C.No.11778/2017 "ಆರಳಹಪ, ನನನಚಲನ ಮಡನತತದದ ಬಸಸನಲ ದನನತಶ ಪಪರಣಸನತತದದ ಪಪರಣಕನಬದರ ಸರಯಲಲ. ಆ ಸಬದರರ ಆರಳಹಪ ತನನ ಬಶಗನಳಬದಗ ತನನ ವಸನತಗಳನನ ನ ಟ ಹಳಹಗದದ ಎಬದರ ಸರಯಲಲ.
ಬಸನಲ ಬಟನ ಆ
ಬಶಗನಲ ಆರಳಹಪ ಚಕನ ದ , ಅದನ ನನಗ ಸಕಕದನ
ಕ ಗಳನ ಇದನ ದ , ಅದನನ
ನ
ದನಬರಳಕ ಮಡಕಳಬಡನ ಆರಳಹಪ ವರನದದ ಸನಳನ
ಳ ಪಪಕರಣ ದಖಲನ
ಮಡದನಬದರ ಸರಯಲಲ."
46. On going through the said testimony of PW.1, it discloses that, the accused was traveling in a bus driven by the complainant herein. By that time, accused kept bag in his bus with the things including cheques and it was found by the complainant and misused by filing of present case. The said only one suggestion which clearly manifest the knowingness of the accused and complainant. Though, it was wrong suggestion as to the complainant was run the bus, wherein accused was traveled, it leads to draw the inference that, the knowingness of complainant and accused and whatever the contention taken by the accused as to lost of bag including cheques, try to fix on the complainant. Therefore, the said suggestion is made to PW.1.
47. First of all, the complainant in the year 2013 being a Traffic Inspector got retired from service. By that contention it made clear that, the complainant was not driver. The PW.1 has stated, during 1990 he was a conductor. Therefore, the complainant Judgment 39 C.C.No.11778/2017 when he assumed the post of Traffic Inspector, driving the bus is highly impossible. The said suggestion knows that, without any base the accused has made bald suggestion to link the Ex.D1 representation given to the bank as to misuse of cheques by the complainant. Even specific allegation was made that, the said lost bag was traced by the complainant and misused the same. By way of suggesting so, the accused has taken the contention, his bag was found by the complainant. It is also discloses, the accused was to travel daily in the bus driven by the complainant. When complainant is not drive the bus, the accused travel in the bus daily does not arise. Hence, he lost his bag with consists of cheque and other articles is to dis-believable. The accused try to dilute the knowingness of each other and leads to suggest so, from which, only one inference can be drawn that, the complainant and accused are known to each other since longtime, but deposed falsely.
48. That apart, in the further cross-examination of PW.1, he deposed that:
"ನಪ-2 ಮತನತ 3 ಹಳಯ ಚಕಗಳನ ಎಬದರ ನನಗ ಗಳತತಲಲ. ಆ ಎರಡನ ಚಕಗಳಲನ ಸಹಗಳನ ವಶತಶಸದಬದ ಕಳಡದ ಎಬದರ ನನಗ ಗಳತತಲಲ . ಆ ಎರಡನ ಚಕಗಳನನ ನ ಆರಳಹಪ ನನಗ ಎಬದಗಳ ನಹಡರಲಲಲವಬದರ ಸರಯಲಲ, ಅವರಡನ ಚಕಗಳಲರನವ ಸಹಗಳನ ಆರಳಹಪಯದದಲಲವಬದರ Judgment 40 C.C.No.11778/2017 ಸರಯಲಲ. ಆರಳಹಪ ನಮಮ ಬಸಸನಲ ಸಬಚರಸನವಗ, ಆತನ ಬಶಗನಲ ನಗದನ 30 ಸವರ ಮತನತ ಸಹ ಮಡದ, ಬರಯದ ಇದದ ಖಲ ಚಕಪಸತಕ ನನಗ ಸಕಕದ ಎಬದನ ನಮಮ ಇಲಖಲಯವರಹ ಆರಳಹಪಗ ತಳಸದದರನ, ಆ ಬಗಗ ನನಗ ಗಳತತಲಲ. ಆ ವಷಯವನನ ನ ಆರಳಹಪ ನಮಮ ಇಲಖಯ ಅಧಕರಗಳ ಗಮನಕಕ ಕಳಡ ತಬದದದರನ ಎಬದರ ನನಗ ಗಳತತಲಲ. ಸದರ ಬಶಗನಳಬದಗ ಚಕ ಕಳದನಹಳಹಗದ ಎಬದನ ತನನ ಬಶಬಕಗ ದಳರನನ ನ ನಹಡದದರನ ಎಬದರ ಸರಯಲಲ."
49. On going through the said testimony of PW.1, the suggestion made to complainant that, questioned cheques are old cheques and signatures are in different, but PW.1 has denied the same. Even he denied, the accused was not issued the said cheques to the complainant. Even he denied, the accused has not signed those cheques. But the subsequent repeated suggestion revealed that, accused in the bus of complainant while traveled kept the bag which consists of cash of Rs.30,000/-, unsigned blank cheques book and it was found by the complainant was informed by accused to the complainant department. But PW.1 has deposed, he does not know. T the PW.1 cannot know that, since he was not a driver or conductor, he expected to inform by the department does not arise. If anybody intimated to the complainant, it is the accused needs to prove, but Judgment 41 C.C.No.11778/2017 he failed to demonstrate, hence, the said suggestion made to the PW.1, holds no water.
50. The said testimony also discloses that, the accused claiming that, immediately after lost of his bag, which consists of cheques and cash, definitely, it was found by the complainant as he suggested, could have lodge complaint then and there itself. Admittedly, he not lodged any complaint against the complainant herein eithr in the department or in the police station, but, he did not do so. Hence, the very probable defense taken by the accused is bald and baseless. If any officials were informed to the accused, as to the complainant found the said bag definitely, it is him to discloses who he was and drag here. So, the said suggestion made by the accused leads to draw the inference that, knowingness of complainant and accused, and accused made false, allegation against the complainant as to misuse of his found bag. The very defence of the accused appears to be not probable and he attack on the character of the complainant. If the accused kept the bag which consists of cheque book, bank pass book, house keys, persons papers as well as cash of Rs.30,000/-, definitely, it discloses, how lethargic person he is. When the articles were lost, by that movement itself he should approach the proper form, initiating necessary legal action to avoid misuse of Judgment 42 C.C.No.11778/2017 the same. Without doing so, simply goes on gave representation as per Ex.D1 to his banker, kept quit all along and when complainant has presented the said cheques for encashment, under the backdrop of claim put forth in the complaint, the accused to safeguard his interest appears to be taken false and baseless defence. The very conduct of the accused appears that, before make use of the cheques well in advance, gave the complaint and after borrowing money or made transaction, taken up the defence, he not issued the cheques. The very approached of the accused has to be deprecated.
51. If at all, the accused has not used the cheques for his personal purposes, then why he collected the same and kept with him and travel daily as suggested to PW.1, it appears the bonafidness of the accused is to be suspected. Even to show that, he made use or not, of other cheques, it is the accused needs to produce his bank statement, but for the reasons better known to him, he not produced the same before this court. On appraisal of defence taken by the accused, rather it repose confidence, itself creates doubt, as to his bonafidness and hatch a plan to avoid the liability.
Judgment 43 C.C.No.11778/2017
52. The accused has stated that, he being a central government employee, financially he is strong and no need to borrow loan from the complainant. If he is a financially strong, definitely, he could have produce his bank statement or other financial transaction report, to establish his economic condition. But without producing the same, now contended, he has no financial difficulties. In the affidavit evidence he alleged that, complainant misused his lost / theft cheques. Either to show that, those questioned cheques are lost / theft, he not initiated any legal action at proper stage, now for the reasons better known to him, he took bald and baseless contention, which has to be depricated. No doubt, the accused has denied the signature in the Exs.P1(a) and P2(a). No person at the time of receipt of cheque from the drawer could not aware about the specimen signature maintained in the bank and tallied, by that time, on faith the dealing with the person. whatever the particulars made mentioned in the cheques normally would receive on the anticipation of its honor.
53. On close perusal of the signatures at Exs.P1(a) and P2(a) prima-faice discloses, it appears to be different and except the person who expert or common observing the signature of others only seen the differences. The general public, normally would Judgment 44 C.C.No.11778/2017 value the cheques are not supposed to suspect the signatures, when the movement of its issuance. Therefore, it appears that, the signatures in the cheques appears to be made by the accused, but wantonly in different manner in order to defeat the claim of complainant, he appears to be put his signature in different manner. Therefore, he ventured to gave representation as per Ex.D1. The accused has utterly failed to prove his probable defence and rebutted his legal presumption as well as facts and circumstances narrated by the complainant. Whereas, though reverse burden is not created by the accused in the present case, the complainant has in order to prove that, on 14.01.2015 by withdrawing money from his bank as found in Ex.P9 - Bank Statement and handed over to the accused in the presence of PW.2, he examined the PW.2. The PW.1 and PW.2 are withstood their contention in the cross-examination.
54. The PW.2 also reasserted the contention of the complainant, being an employee in the same department working in different unit. The PW.2 also reasserted, the complainant got paid Rs.3 lakhs to the accused on 14.01.2015 in his presence and the accused got issued the questioned cheques by affixing his signatures to the complainant and the same were got dishonoured. Even PW.2 has also made allegation that, the very Judgment 45 C.C.No.11778/2017 accused herein, to his brother by name Mr.Venkatachalapathy got borrowed the loan of Rs.11 lakhs, Rs.6 lakhs and Rs.5 lakhs each respectively and after gave legal notice to the accused, he got died and serious allegation made against the accused, as to his tendency of cheat his lender. The said allegation made against the accused is not been denied by way of cross-examining the PW.2. Thereby, the transaction held between Mr.Venkatachalaparhy and accused as to borrowing of loan and its non payment is also revealed from the evidence of PW.2. The said allegation is also one of the strong reason, which depicts the bonafidness of the accused in avoiding his liability.
55. The PW.2 in his cross-examination has specifically reasserted that:
"ಆರಳಹಪಯಹ ನಪ-1 ಮತನತ 2 ರ ಚಕನ ಕ ಗಳನನ ನ ಬರದದರ. ನಪ-1 ಮತನತ 2 ರ ಚಕನ ಕ ಗಳಲರನವ ಬರಹಗಳನ ಬಹರ ಬಹರ ಇದ ಎಬದರ ಸಕಯನ, ಆರಳಹಪ ಮದಲ ಬರದನಕಳಬಡನ ಬಬದನ ನಮ ಎದನರಗ ಸಹ ಮಡದರಬದನ ನನಡಯನತತರ."
56. The PW.2 by deposing so, has categorically deposed that, the accused got filled the cheques at Exs.P1 and P2 and also deposed that, he earlier got filled the cheques and in the presence of him, the accused put his signatures and gave them to the Judgment 46 C.C.No.11778/2017 complainant. The said suggestion is not denied by he accused. Thereby, the evidence of PW.1 and PW.2 as well as the other materials discussed earlier clearly manifest that, the accused wantonly against his own specimen signatures found at Exs.P4(a) and P5(a) put signatures at Exs.P1(a) and P2(a) altogether differently with malafide intention to cause financial loss to the complainant. Even he was very much clever in creating Ex.D1 before handover the said cheques to the complainant. Immediately, after the complainant got issued legal notice, then only he projected the Ex.D1 as it was lodged earlier. The very act of the accused clearly manifest that, with regard to avoid repayment of alleged loan of Rd.3 lakhs to the complainant, he taken up the false defence with documentary evidence by creating earlier, even against the object of Negotiable Instruments Act, he misused his questioned cheques for the reasons better known to him, therefore, the very act of the accused is against the object of Negotiable Instruments Act and it will effect the public at large, therefore, it made clear that, the complainant has clearly established, he lent loan of Rs.3 lakhs to the accused in the presence of PW.2, though accused got issued Exs.P1 and P2 cheques by putting his signatures in different manner in order to defeat the claim of complainant and got created the Ex.D1 much Judgment 47 C.C.No.11778/2017 earlier, though questioned cheques were not lost or stolen, the said documents got created and now made false claim. Therefore, the very act of the accused shall be condemned, by imposing fine amount on cheques. The complainant being senior citizen in the age of 67 years, despite,he help the accused by way of provide money, the accused made him to approached this court. The accused made use of the complainant hard money of Rs.3 lakhs over the period of 6 years. Therefore, the accused shall repay the double the amount of the cheques amount of Rs.3 lakhs, otherwise the accused may be repeat the misuse of Negotiable Instruments Act, in a city like Bengaluru, that too, he being a Railway Department Employee.
57. At this stage, this court has gone through the decision reported in 2002 CRI. L.J. 3814 (Smt.Bhavani V/s. D.C.Doddarangaiah and anohter). Wherein, Hon'ble High Court of Karnataka was pleased to held that:
"Negotiable Instruments Act (26 of 1881), S138 - Dishonour of cheque - Sentence -
Adequacy - Fine of Rs.15,000/- - Grossly inadequate - Does not represent even the cheque value - Direction issued for modification - Fine enhanced to twice of cheque value".
Judgment 48 C.C.No.11778/2017
58. In the present case on hand, the complainant has successfully proved the very case put forth by him, that it is a fit case to convict the accused as he wantonly committed the offence punishable under Section 138 of Negotiable Instruments Act. Therefore, he shall be punished by imposing fine which extended twice the amount of the cheques. If that is done, it will meet the ends of justice, and in future it is will be the lesson to the persons like accused misusing the Negotiable Instrument. Otherwise, the person like accused could have misused the same and also misused the court machinery for their illegal thrust. Therefore, it does not require much discussion, as the complainant successfully established the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act. Hence, the accused shall punish, accordingly by imposing fine sentence.
59. Keeping in the mind of the object of the introduction of Negotiable Instruments Act as well as the purpose of the money paid by the complainant for sum Rs.3,00,000/- is to be looked into. The accused about 6 years utilized the money of complainant for his personal use. Therefore, as per Sections 138 of Negotiable Instruments Act, as well as observed decision reported in 2002 CRI.L.J.3814 (Smt.Bhavani V/s.
Judgment 49 C.C.No.11778/2017 D.C.Doddarangaiah and another) shall be liable to pay the double amount of the cheques as damages to the complainant. If that is done it will meet the ends of justice, otherwise, the very purpose of introduction of the benevolent Act will be defeated. Therefore, the accused shall pay the double amount of the cheques at Rs.6,00,000/- as fine. Out of the said amount, sum of Rs.5,000/- shall be payable to the sate as fine and remaining amount of Rs.5,95,000/- shall be payable to complainant as compensation amount as per Section 357 of Cr.P.C. If, the accused fails to pay the said money within the appeal period, as a default sentence he shall under go simple imprisonment for 01 year. As discussed above, the complainant has proved his case by producing necessary, clear, convincing probability evidence. The complainant has complied all the mandatory requirement file the present complaint and proved the guilt of the accused beyond the reasonable doubt. In the result, the accused shall sentence to pay the fine amount as detailed in the order portion. Accordingly, Point Nos.1 and 2 are answered in the Affirmative.
60. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
Judgment 50 C.C.No.11778/2017
ORDER
Accused found guilty for the offence
punishable under Section 138 of Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay fine of Rs.6,00,000/- double the amount of the cheques.
Out of the said fine amount, sum of Rs.5,95,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.5,000/- shall be payable to the state as fine amount.
Failing which, as default sentence, the accused shall under go simple imprisonment for 01 (One) Year.
The bail bond and cash security/surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 20 th day of March - 2021) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 51 C.C.No.11778/2017
ANNEXURE
List of Witnesses examined on behalf of Complainant:
PW-1 : Siddaiah PW-2 : Ashwathanarayana
List of Exhibits marked on behalf of Complainant:
Exs.P1 & P2 : Original Cheques Exs.P1(a) & P2(a) : Signatures of accused Exs.P3 & P4 : Bank endorsements Ex.P5 : Office copy of legal notice Ex.P6 : Postal receipt Ex.P7 : Requisition dtd:20.01.2017 Ex.P8 : Track consignment Ex.P9 : Bank passbook Ex.P10 : Order letter issued by KSRTC Department
List of Witnesses examined on behalf of the defence:
DW.1 : B.Eshwar Singh DW.2 : Pavan Kumar.N
List of Exhibits marked on behalf of defence:
Ex.D1 : True copy of requisition
Ex.D2 : Copy of requisition dtd:20.01.2017
Ex.D3 : True copy of account opening form
Ex.D4 : True copy of specimen signature form
Ex.D4(a) : Signature of accused
Ex.D5 : True copy of application for E-Services
Ex.D5(a) : Signature of accused
Ex.D6 : True copy of voters identity card
Ex.D7 : True copy of form No.60
Ex.D8 : True copy of requisition
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 52 C.C.No.11778/2017
20.03.2021.
Comp -
Accd -
For Judgment
Case called out.
Complainant and accused are absent. No
representation from both side advocates, despite, web-host the case proceedings and intimate the date of pronouncement of judgment. Hence, as per Section 353(6) of Cr.P.C. the following judgment is pronounced in the open court vide separate order.
Judgment 53 C.C.No.11778/2017 Judgment pronounced in the open court vide separate order.
***** ORDER Accused found guilty for the offence punishable under Section 138 of Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay fine of Rs.6,00,000/- double the amount of the cheques.
Out of the said fine amount, sum of Rs.5,95,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.5,000/- shall be payable to the state as fine amount.
Failing which, as default sentence, the accused shall under go simple imprisonment for 01 (One) Year.
The bail bond and cash security/surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.