Bangalore District Court
Sri. Marigowda vs Sri.Vishwanath on 2 July, 2018
1 C.C.No.17599/15 J
THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 2nd day of July, 2018
Present: Smt. Saraswathi.K.N, B.A.L., LL.M.,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.17599/2015
Complainant : Sri. Marigowda,
S/o. Sri. Narasimhaiah,
Aged about 63 years,
Residing at No.720,
19th Main, 1st Block,
3rd Stage, Manjunathanagar,
Rajajinagar,
Bengaluru.
(Rep.by Sri.H.M. Associates,
Advs.,)
- Vs -
Accused : Sri.Vishwanath,
Proprietor,
M/S. Vatsala Constructions,
Situated at :
No.1,2,3 & 4, 2nd Cross,
Bagegowda Layout,
Behind BMTC Bus Depot,
Channasandra,
Subramanyapura Post,
Bengaluru - 560 061.
(Rep. by Sri. Kumar.M.N., Adv.,)
Case instituted : 5.6.2015
2 C.C.No.17599/15 J
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is Convicted
Date of order : 2.7.2018
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, the Accused and he were known from many years and out of the said relationship, the Accused has borrowed a sum of Rs.16 Lakhs from him on various dates i.e., on 16.8.2014 and 1.12.2014 as a hand loan for the improvement of his business and personal needs and assured to pay interest on the said loan. Accordingly he lent the said money to the Accused since the latter pleaded imminent necessity for the improvement of his business and his personal needs. However the Accused has not paid any amount or interest till date on the said amount borrowed by him. Thereafter on his persistent demands, towards the discharge of his debt, the Accused has issued a cheque bearing No.113590 dated:20.4.2015 drawn on the Vijaya Bank, Gandhi Bazaar Branch, Bengaluru, in his favour for Rs.16 Lakhs, with an assurance that, the same would be duly honoured on it's presentation on the due date.
3 C.C.No.17599/15 J3. The Complainant has further submitted that upon presentation, the said cheque came to be duly dishonoured as "Funds Insufficient" Vide Bank Endorsement dated:
29.4.2015. Thereafter he got issued a legal notice to the Accused on 5.5.2015 to pay the amount covered under the cheque within15 days from the date of the receipt of the said legal notice. Though upon the service of the same, the Accused has caused an untenable reply to the same, he has failed to pay cheque amount to him. Hence the present complaint.
4. The Complainant has led his pre-summoning evidence on 22.7.2015. He has filed his affidavit-in-lieu of his sworn statement, in which, he has reiterated the complaint averments.
5. Prima-facie case has been made out against the Accused and he has been summoned vide the order of the same date.
6. The Accused has appeared before the court on 2.2.2016. He has been enlarged on bail and the substance of the accusation has been read over to him, to which he has pleaded not guilty and has stated that he has his defence to make.
7. The Complainant has led his post-summoning evidence by examining him as P.W.1 and he has filed his 4 C.C.No.17599/15 J affidavit, in which, he has reiterated the complaint averments.
8. In support of his oral evidence, P.W.1 has produced and relied upon the documentary evidence as per Ex.P1 to P12 which is as follows:-
The cheque dated 20.4.2015 as per Ex.P1, the signature on the said cheque identified by P.W.1 as that of the Accused as per Ex.P1 (a), the Bank Memo as per Ex.P.2, the office copy of the Legal Notice as per Ex.P3, the Postal Receipt as per Ex.P4, the Postal Acknowledgement as per Ex.P.5, the Reply notice as per Ex.P.6, the Statement of Accounts as per Ex.P.7, the Bank Pass Book as per Ex.P.8, the Income Tax Returns for the period 2012-13 to 2014-15 and 2016-17 as per Ex.P.9 to P12 respectively.
9. The statement of the Accused u/Sec.313 of Cr.P.C. is recorded. He has denied the incriminating evidence found against him and has chosen to lead his defence evidence.
10. The Accused is examined as D.W.1 and he has filed his evidence affidavit, which is accepted by this court, as per the direction of our Hon'ble High Court in the case of Afzal Pasha V/s. Mohamed Ameer Jan, reported in LAWS (KAR) 2016 (8) 131, in which, the acceptance of the affidavit of the Accused is permitted by our Hon'ble High Court in accordance with the direction of the Hon'ble Apex Court in the case of the 5 C.C.No.17599/15 J Indian Bank Association Vs., Union of India, reported in (2014) 4 SCC 590.
11. The gist of the defence of the Accused in his affidavit is that, he was shocked to receive the legal notice as per Ex.P.3 and he was under the impression that the cheque in dispute was one among the cheques that he had lost. Accordingly he had given instructions to his counsel and was traveling to attend a business matter and after his return during the 2nd week of June 2015, he approached his counsel and during the discussions, he realized that, the cheque in dispute had been misused by the Complainant in a financial transaction of Rs.8,15,000/=, that he had borrowed from him on 14.5.2009.
12. According to D.W.1, the Complainant had paid the said amount of Rs.8,15,000/= to him by way of transfer to the bank account of his proprietorship concern M/s. Vatsala Constructions, the account in respect of which, had been opened by him on 2.4.2009 and he had obtained the first Cheque Book containing 25 leaves in series from 113575 to 113600 and he has produced the letter to that effect issued by his bank. Out of the said cheque series, he had issued the cheque in dispute as a signed, unfilled cheque for security purpose towards the loan amount of Rs.8,15,000/=. He has repaid the said loan amount to the Complainant on 22.5.2009 vide cheque bearing No.153595 drawn on 6 C.C.No.17599/15 J 22.5.2009 on the Vishweshvaraiah Co-Operative Bank of Kengeri Branch. However the Complainant did not return his aforesaid security cheque on the pretext that, the same had been kept by him in the safe locker of the bank, the key of which was lost and that, it would be returned to him or destroyed or crossed out some after the same was traced out. Accordingly he believed the words of the Complainant in good faith and was under the bonafide belief that, the said cheque had been either destroyed or crossed out by the Complainant.
13. Further according D.W1, he has not met or contacted the Complainant for the last 4 to 5 years and only after the receipt of the legal notice dated: 5.5.2015 and when he personally visited his counsel's office in the 2nd week of June that he realized about the misdeed committed by the Complainant. Therefore the theory of the alleged loan transaction of Rs.16 Lakhs by the Complainant to him and the alleged issuance of the cheque in dispute by him in favour of the Complainant towards the repayment of the alleged loan of Rs.16 Lakhs as claimed by the Complainant is false.
14. It is the further defence of the Accused that, during the financial year 2014-15, he was not doing the business in the name of M/s.Vatsala Constructions, a Proprietory concern and that since 2010, he has been doing the business 7 C.C.No.17599/15 J in the name and style of M/s.Vatsala Constructions and Consultants Pvt., Ltd., and he had sufficient cash balance during the financial year 2014-15, during when, the Complainant alleges to have lent the loan amount of Rs.16 Lakhs to him. Therefore according to him, the Complainant has come up with a vexatious claim and that he has got audited the books of accounts of the Vatsala Constructions and Consultants Pvt., Ltd., as required under the Income Tax Act. Accordingly, he has also produced Cash Register Extract of the said company for the financial year 2014-15, which reflects the Cash Opening Balance, Receipts, Payments and Closing Balance and as there is no debt or other liability on his part in favour of the Complainant, he has not issued the subject cheque to the Complainant for discharging any debt or other liability.
15. In support of his oral evidence, D.W.1 has produced and relied upon the following documentary evidence as per Ex.D.1 to D.5:-
i) The Accounts statement as per Ex.D.1;
ii) The Cash Register Extract as per Ex.D.2;
iii) The Mobile Bills as per Ex.D.3 to D.5;
Accordingly he has prayed for his acquittal.
16. D.W.1 has been cross-examined extensively by the learned counsel for the Complainant.
8 C.C.No.17599/15 J17. The learned counsel for the Complainant has addressed his arguments, during the course of which, he has prayed for the conviction of the Accused on the ground that the Complainant has fulfilled the ingredients of Sec.138 of the N.I.Act. The Accused has taken his defence by causing a reply notice to the Complainant as per Ex.P.6. However, during the present proceeding, the Accused has come up with 4 inconsistent defences in his attempt to rebut the presumptions available in favour of the Complainant. The said defences are as follows:-
i) That he had lost his cheques, including cheque in dispute in the year 2009, which is his defence as set out by him in his reply notice;
ii) In his chief-examination affidavit and in the application filed by the Accused, he has claimed that the cheque in dispute was given by him to the Complainant on 12.5.2009, in respect of a different loan transaction of Rs.8,15,000/= on 12.5.2009 and that, he has repaid the said loan amount of Rs.8,15,000/= to the Complainant and inspite of it, the Complainant has not returned the subject cheque to him;
iii) He had obtained his first cheque book with the cheque leaves commencing from serial No. No.113575 to 113500, among which, the 9 C.C.No.17599/15 J cheque in dispute as a signed blank cheque was lost along with his other cheque leaves;
iv) Though the Accused has denied the case of the Complainant, his defence is not a consistent one as per the one that he has claimed in his reply notice;
v) Though the Complainant has been cross-
examined exhaustively about his lending of the loan amount to the Accused by way of cash, nothing is elicited from him so as to disbelieve his evidence;
vi) The financial capacity of the Complainant, though has been seriously questioned by the Accused , in his cross-examination, the Accused has clearly admitted the financial capacity of the Complainant;
vii) There are inconsistent defences raised by the Accused in his reply notice, in his chief- examination affidavit and in the cross- examination of the Complainant;
viii) Admittedly the Accused has not taken any action against the Complainant since 2009 till date, though he claims that, the cheque in dispute was lying with the Complainant. The 10 C.C.No.17599/15 J conduct of the Accused is highly untenable and unbelievable;
ix) The documentary evidence at Ex.D3 to D5 are not reliable, because they do not bear the mobile numbers;
x) Though the Accused claims that, since 2010, there has been no activities in the name of M/s. Vatsala Constructions, a proprietorship concern, in his cross-examination, the Accused has admitted that, he has collected the cheque books in the name of M/s. Vatsala Constructions even in the year 2014;
xi) The documentary evidence at Ex.D2 is also not reliable, since it is not signed by the Accountant or by the Accused and the same has been created by the Accused as an afterthought only for the purpose of the present case and likewise the documentary evidence relied upon by the Accused as per Ex.D.2 to D.5 are not relevant, since they are fabricated documents.
Hence it is argued that, the Accused has failed to probabalize his defence and as such, he is liable to be convicted. Accordingly he has prayed for the conviction of the Accused.
11 C.C.No.17599/15 J18. In support of his arguments, the learned counsel for the Complainant has relied upon the following decisions:-
1. In T.Vasanthakumar Vs.,Vjayakumari reported in AIR 2015 SC 2240;
2. In Mallavarapu Kasivisweshwara Rao Vs., Thadikonda Ramulu Firm and Others., reported in (2008) 7 SCC 655;
3. In K.N. Beena Vs., Muniyappan and another., reported in (2001) 8 SCC 458;
4. In K.Bhaskaran Vs., Sankaran Vaidhyan Balan and another., reported in AIR 1999 SC 3762;
5. In Hiten P. Dalal Vs., Bratindranath Banerjee., reported in 2001 CRI.L.J.4647;
6. In L. Mohan Vs., V.Mohan Naidu., reported in 2004 (3) KCCR 1816;
19. Per Contra, the learned Defence Counsel has filed his exhaustive written arguments, in which, he has prayed for the acquittal of the Accused on the following grounds:-
i) The Complainant has led his evidence by relying upon the documentary evidence as per Ex.P.1 to P.11. The Accused has issued a reply notice to the Complainant on 5.5.2015 as per Ex.P.6. After the Accused has led his evidence by relying upon the documentary evidence as per Ex.D.1 to D.5, he 12 C.C.No.17599/15 J has been cross-examined by the learned Counsel for the Complainant;
ii) The first defence of the Accused is that, he had neither contacted the Complainant nor met him for the past 4 to 5 years and in this regard, even during the cross-examination of the Complainant, the said defence version has been suggested to him. Though the Complainant has claimed that the Accused was contacting him through his mobile phone, the Accused has produced the bills pertaining to his mobile number as per Ex.D.3, which clearly goes to show that, there was no such contact between the Complainant and him as claimed by the former;
iii) Likewise it is proved by the Accused that the mobile number found on 9901903709 Sim was not issued to him, but a wrong bill was being sent and later on, when the said fact was brought to the notice of the mobile service provider, the said billing came to be stopped. The mobile bills produced by the Accused contain the Account summary, the summary of relevant month charges, the charges in detail and itemized statement. The account summary does not bear the mobile number, but will have a relationship 13 C.C.No.17599/15 J number, which is connected with the itemized statement, in which, the mobile number is mentioned. The Accused has produced the complete bills of his mobile number 98455 51190 for the period from 5.8.2014 to 4.9.2014 and 5.11.2014 to 4.12.2014 as per Ex.D.5 and the Complainant has not cross-examined the Accused on the said exhibit. Moreover nothing contrary has been elicited in the cross-examination of the Accused about the said documentary proof;
iv) It is also argued that, the Complainant should have produced his mobile and landline number bills to prove that, the Accused indeed contacted him seeking the alleged hand loan, but he has not produced the same and instead, he has come up with a false claim of having lent Rs.16 Lakhs to the Accused on 14.8.2014 and 1.12.2014 on the basis of his fabricated claim.
v) Moreover there is no proof produced by the Complainant in support of his claim of the lending of the said loan amount by him to the Accused on the alleged dates;
vi) There is no pleading with regard to the mode of the alleged lending of the loan to the Accused as well 14 C.C.No.17599/15 J as the quantum of such loan on 14.8.2014 and 1.12.2014 respectively.
vii) In his cross-examination, the Complainant has deposed that, he does not remember the date on which the Accused had sought for the financial assistance from him, though he claims that the same was sought by the Accused once for the purpose of tender and for the second time for the purpose of making payments to his laborers. Moreover, the Complainant has even claimed that he does not remember the mobile number of the Accused;
viii) Though the Complainant has claimed that he might have lent Rs.11 Lakhs to the Accused on 16.8.2014 through his Punjab National Bank account through cheque and that he could produce his bank statement in this regard, subsequently he has changed his version by contradicting himself by claiming that, he had lent the said loan amount to the Accused by way of cash.
ix) Though the Complainant has claimed that, he had withdrawn Rs.5 Lakhs from his account and lent the same to the Accused on 1.12.2014 by way of 15 C.C.No.17599/15 J cash, he has not produced any documentary proof in this regard;
x) Though the Complainant has claimed in his cross-
examination that, the Accused had not agreed to pay any interest to him, in his legal notice the Complainant has claimed interest, but the rate of interest has not been referred. This is also a vexatious claim made by the Complainant, since no person will lend such huge amount for charity;
xi) There is no pleading even with regard to the date of the issuance of the cheque in dispute by the Accused in his favour and the Complainant has claimed in his cross-examination that, he does not remember, as to, on which particular date the Accused has issued the cheque to him as well as with regard to the fact, as to, if the contents in the cheque in question were written by the Accused or not;
xii) The Accused has produced his mobile number bills as per Ex.D.3 and D.5 and the Complainant has neither produced any contrary material nor led any independent evidence to disprove the said testimony of the Accused;
16 C.C.No.17599/15 Jxiii) The Accused has proved his defence both through his oral as well as documentary evidence that the cheque in dispute was issued by his bank to him in the year 2009 and that he had borrowed a sum of Rs.8,15,000/= from the Complainant on 12.9.2009, which was repaid by him to the Complainant by bank transfer on 22.5.2009;
xiv) The defence of the Accused is specific that, even after the repayment of the said loan, the Complainant, by not returning the cheque in dispute has misused the same, by filling up its contents for a sum of Rs.16 Lakhs and getting it bounced his knowledge;
xv) The Accused has also produced his cash book register as per Ex.D.2 and no doubt, it is elicited from the Accused that the said cash book has not been signed by his auditors or by him, but that by itself does not lead to an inference that, the said document is a created one;
xvi) Except the admissions elicited from the Accused with regard to the absence of his signatures on Ex.D.2, nothing is elicited from him so as to discredit his evidence;
17 C.C.No.17599/15 Jxvii) The Accused has successfully withstood the test of his cross-examination and raised serious doubts in the case of the Complainant, which the latter has failed to clarify and convince before this court;
xviii) The documentary at Ex.P.8 is an incomplete document, since it does not disclose the complete transaction details and as such, it does not support the case of the Complainant in any manner and for any purpose.
xix) Likewise the documentary evidence at Ex.P.9 to P.12, being the I.T.Returns verification forms of the Complainant, is also incomplete and this is admitted even by the Complainant.
xx) The Complainant has not produced the Complete I.T.R - V Forms and along with their relevant annexures and as such said documentary evidence has no evidentiary value;
xxi) The Complainant has failed to prove his source of funds, though he has produced his I.T. Returns;
xxii) Though the Complainant has produced the cheque in dispute, which admittedly belongs to the Accused, mere possession of a cheque of the Accused by the Complainant does not amount to 18 C.C.No.17599/15 J an offence u/Sec.138 of the N.I.Act, unless, the Complainant is able to discharge his initial burden of proving the existence of the legally payable debt by the Accused in his favour;
xxiii) The Complainant has failed to prove his case beyond reasonable doubt and on the contrary the Accused has successfully rebutted the presumptions available in favour of the complainant u/Sec.118 and 139 of the N.I. Act.
20. In support of his arguments, the learned Defence Counsel has relied upon the following decisions:-
i) In Smt. H.R.Nagarathna Vs. Smt.Jayashree Prasad, reported in 2009 SCC On line Kar 190;
ii) In Uppinangady Grama Panchayath, Puttr Vs., P. Narayana Prabhu, reported in 2006 CRI.L.J. 3141;
iii) In Kumar Exports Vs., Sharma Carpets, reported in III (2009) BC 259 (SC);
iv) In M.S. Narayana Menon Alias Mani Vs., State of Kerala and Anr., reported in AIR 2006 SC 3366;
v) In K. Subramani Vs.K. Damodara Naidu., reported in 2015 AIR SCW 64;
vi) In Sanjay Mishra Vs.Ms.Kanishka Kapoor @ Nikki an Anr., repored in 2009 CRI.L.J.3777;19 C.C.No.17599/15 J
vii) In Krishna Janardhan Bhat Vs. Dattatraya G. Hegde., reported in 2008 (4) SCC 54
viii) In Shiva Murthy Vs. Amruthraj, reported in 2008(6) AIR Kar R 432;
ix) In Kishan Bodhankar V/s.M.A. Hameed reported in LAWS(APH) 1997 25;
x) In John K. John Vs., Tom Varghese and Anr., reported in AIR 2008 SC 278;
xi) In Narendra Anantsing Kachave Vs. State of Maharashtra, reported in LAWS (BOM) 2006 12 153;
xii) In Arumughan Pillai Vs/. State of Kerala reported in LAWS (KER) 2005 6 39.
Accordingly he has prayed for the acquittal of the Accused.
21. I have considered the submissions and perused the record carefully. I have also carefully gone through the written arguments filed by the learned Defence Counsel and the decisions relied upon by both of them.
22. Sec.138 of the Negotiable Instruments Act has been enacted to lend credibility to the financial transactions.
The main ingredients of the offence under Sec.138 of the Negotiable Instruments Act are:-
20 C.C.No.17599/15 J(i) Drawing up of a cheque by the Accused towards payment of an amount of money, for the discharge, in whole or in part, of any debt or any other liability;
(ii) Return of the cheque by the Bank as unpaid;
(iii) The drawer of the cheque fails to make the payment of the said amount of money within 15 days of the receipt of the notice under the proviso (b) to Section
138.
The Explanation appended to the Section provides that, the "debt or other liability" for the purpose of this Section means a legally enforceable debt or other liability.
23. Apart from this, Sec.139 of the Negotiable Instruments Act lays down a presumption in favour of the holder of cheque in the following terms:-
"It shall be presumed, unless the contrary is proved, that:-
The holder of a cheque received the cheque, of the nature referred to in Sec. 138, for the discharge, in whole or in part, of any debt or other liability".
24. Also, Sec.118 of the Negotiable Instruments Act states, "Until the contrary is proved, the following presumptions shall be made:-
(a) That every Negotiable Instrument was made or drawn for consideration and that every such 21 C.C.No.17599/15 J instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration."
25. Thus, the Act clearly lays down presumptions in favour of the Complainant with regard to the issuance of the cheque by the Accused towards the discharge of his liability in favour of the Complainant.
26. Under the scheme of the Act, the onus is upon the Accused to rebut the presumptions in favour of the Complainant by raising a probable defence.
27. It is a well settled position of law that, the defence of the Accused, if in the nature of a mere denial of the case of the Complainant will not be sufficient to hold it as a probable defence. The bare denial of the passing of consideration apparently does not appear to be any defence. Something which is probable must be brought on record for getting the benefit of shifting the onus of proof to the Complainant.
28. It is also a well settled position of law that, once the cheque is proved to be relating to the Account of the Accused and he accepts and admits the signature on the said cheque, then the initial presumption as contemplated under Sec. 139 of the N.I.Act has to be raised by the courts in favour of the Complainant. The presumption referred to in Sec.139 of the N.I.Act is a mandatory presumption and not a general 22 C.C.No.17599/15 J presumption, but the Accused is entitled to rebut the said presumption. What is required to be established by the Accused in order to rebut the presumption is different from each case under given circumstance. But the fact remains that a mere plausible explanation is not expected from the Accused and it must be more than a plausible explanation by way of rebuttal evidence. The defence raised by the Accused by way of rebuttal evidence must be probable and capable of being accepted by the court.
29. No doubt the initial mandatory statutory presumptions under Sec.118 and 139 of the N.I.Act are in favour of the Complainant. However they are rebuttable presumptions and the Accused is expected to rebut the presumptions by raising a probable defence.
30. Such being the legal position, it would be pertinent to refer to the defences raised by the Accused to rebut the presumptions in favour of the Complainant in this case.
31. Admittedly there is no dispute with regard to the fact that, the parties are well acquainted with each other and that the cheque in dispute belongs to the Accused with his signature on it. There is also no dispute with regard to the loan transaction to the tune of Rs.8,15,000/= between them during the year 2009.
23 C.C.No.17599/15 J32. However, the defence of the Accused with regard to the possession of the cheque in dispute with the Complainant has changed from the stage of his reply notice till his cross-examination in this case. Therefore it could be observed that, the Accused has not taken a consistent stand with regard to the cheque in dispute, being in the custody of the Complainant from 2009 till the date of its presentation.
33. In the back ground of the above stated admitted facts and the disputed the facts between the parties, it is necessary to appreciate the evidence on record.
34. It is pertinent to note that, there is no dispute with regard to the fact that, the Complainant has fulfilled the ingredients of Sec.138 of the N.I.Act and that upon the service of the legal notice, the Accused has caused a reply notice as per Ex.P.6 to the counsel for the Complainant, in which the defence of the Accused is one of the entire denial of the loan transaction to the tune of Rs.16 Lakhs as claimed by the Complainant in this case and his chief defence with regard to the cheque in dispute is the " Cheque Lost Theory".
35. In the light of the said defence, the Accused has come up with a claim that, he had lost his certain signed blank leaves in the year 2009, including the cheque in dispute and that he had lodged the FIR with the jurisdictional police against the Complainant, upon being shocked to see the claim of the Complainant.
24 C.C.No.17599/15 J36. Therefore as per Ex.P.6, it is claimed by the Accused that, he has not met the Complainant for the last 5 years from now and that the cheque in dispute was one among his several cheque leaves, which were lost by him in the year 2009 and as such, he has claimed that, he does not owe any money to the Complainant.
37. In the light of this defence, when the evidence of the Complainant is considered by this court, during the course of his cross-examination, the learned Defence Counsel has seriously concentrated his cross-examination with regard to the financial capacity of the Complainant and the source of his funds so as to have lent Rs.16 Lakhs to the Accused as claimed by him.
38. In the course of his cross-examination, it is elicited from the Complainant that, he has lent loans to one Shivakumar and Seetaram and that he has the rental income as well as agricultural income.
39. In this regard, though initially the Complainant had not produced his I.T.Returns before this court, subsequent to his initial cross-examination, he has produced his I.T.Returns as per Ex.P.9 to P.11 concerning the Assessment Years from 2012 -13 to 2014-15 and his statement of Accounts as per Ex.P.7 and P.8 and also his I.T.R concerning Assessment year 2016-17 as per Ex.P.12.
25 C.C.No.17599/15 J40. It could be seen that there is an elaborate cross- examination of the Complainant with regard to his income as declared by him in the said I.T.Returns. However having appreciated the entire cross-examination of the Complainant on this aspect, I am not inclined to accept the defence of the Accused that, the Complainant had no financial capacity so as to have lent Rs.16 Lakhs to the Accused as claimed by him.
41. In this regard, it could be seen that, when the Accused has been cross-examined by the learned counsel for the Complainant, it is elicited from him that, the Complainant had sufficient funds in his account, so as to lend the loan to him as on 16.8.2014 as per his Bank Pass book at Ex.P.8. This admission elicited from the Accused and also his defence with regard to the earlier loan transaction of Rs.8.15,000/= between him and the Complainant clearly goes to show that, there is no denial of the fact that the Complainant is financially sound and as such he had the requisite source of funds in his account as on the date of the transaction in question.
42. Further it could be seen that, even as per the complaint averments, it is the case of the Complainant that, he has lent a total sum of Rs.16 Lakhs to the Accused on two dates i.e., on 16.8.2014 and 1.12.2014. No doubt the 26 C.C.No.17599/15 J Complainant has not specified about the quantum of the loan that he has allegedly lent to the Accused on the aforesaid 2 dates. However in his cross-examination, it is elicited from the Complainant that, he might have lent Rs.11 Lakhs to the Accused on 16.8.2014 and Rs.5 Lakhs on 1.12.2014.
43. No doubt with regard to his lending of Rs.11 Lakhs to the Accused on 16.8.2014, though the Complainant had initially deposed that, he had lent the same to the Accused through his cheque drawn on the Punjab National Bank, subsequently he has rectified himself by clarifying that, he has lent the said amount to the Accused by way of cash. Thus, according to the Complainant, he had withdrawn the amounts from his account and thereafter lent the same to the Accused by way of cash.
44. To substantiate this contention, the Complainant has relied upon his Bank Pass book as per Ex.P.8 and the relevant entries in it as per Ex.P8(a) and 8(b) respectively i.e., Rs.10.50,000/= vide entry dated:16.8.2014 and Rs.5,20,000/= vide entry dated 1.12.2014.
45. No doubt, these two entries in Ex.P.8 go to show that the respective amounts had been withdrawn by the Complainant through his self cheques. However it is claimed 27 C.C.No.17599/15 J the Complainant that, after having withdrawn the said amounts, he has lent the same to the Accused.
46. No doubt, when the Complainant was requested by the Accused to advance a huge loan to the tune of Rs.16 Lakhs, the former had no impediment to lend the same to the Accused by way of cheque or through account transfer or through D.D or at least to collect some security document from him, either in the form of a loan agreement or a Pro- note or at least the cheques for the purpose of security for having advanced such huge loan to him.
47. However when the Complainant has been cross- examined in this regard, the clarification given by him for not having done any of the above is that, he trusted the Accused, since the latter had promptly repaid his earlier loan of Rs.8,15,000/= that was lent to him through RTGS by way of cheque and with the same trust, he proceeded to lend further loans to him.
48. It is interesting to note that, during the cross- examination of the Complainant, it is elicited from him that, prior to the transaction in question, there was a transaction in the form of financial assistance by him to the Accused to the tune of Rs.9 Lakhs and he has also claimed that, the Accused has repaid the same about 5 to 6 years back. Though initially the Complainant had not produced any 28 C.C.No.17599/15 J documentary proof in this regard, subsequently, he has produced his statement of Accounts as per Ex.P.7, which corroborates his claim with regard to the transaction of Rs.8,15,000/= between them on 12.5.2009.
49. It is interesting to note that, though the Accused has chosen to reply to the legal notice, he has not spelled out about the said transaction of the year 2009. Interestingly after the Complainant has produced his bank statement as per Ex.P.7, to substantiate the said claim, for the first time, in his affidavit filed in lieu of his chief-examination, the Accused has introduced his defence by claiming that, he had borrowed a sum of Rs.8,15,000/= from the Complainant on 14.5.2009, which was lent to him by him through RTGS to his Proprietary concern's account in the name of M/s. Vatsala Constructions and that he has repaid the said loan amount to the Complainant on 22.5.2009 through cheque dated: 22.5.2009 drawn on the Vishweshvaraiah Co- operative Bank, Kengeri Branch, Bengaluru.
50. Interestingly, even while cross-examining the Complainant, it is elicited from him that, as per his statement of Accounts at Ex.P.7, a sum of Rs.8,15,000/= has been transferred by him to the Account of the Accused concerning the Proprietary Concern's account and that thereafter on 22.5.2009, the Accused has repaid the said loan amount to him through his cheque.
29 C.C.No.17599/15 J51. Thus, according to the Accused, it was in respect of the said loan transaction of Rs.8,15,000/= on 14.5.2009 that, he had issued a cheque in dispute as a signed blank cheque in favour of the Complainant and that, despite his clearance of the said loan, the Complainant is alleged to have not returned the said cheque to him.
52. Thus, as per the defence set out by the Accused in his chief-examination affidavit, a new defence version has been put forth by him to the fact that, though the issuance of the cheque in dispute in favour of the Complainant by him is admitted, the same was issued by him solely of the purpose of security of the loan amount of Rs.8,15,000/=. However, it is elicited from the Accused that, he had no impediment to put forth the aforesaid defence having allegedly issued the cheque in dispute as a security cheque in his reply notice. Therefore it could be seen that, if this defence version of the Accused was really true, then nothing prevented him from putting forth the same defence, even in his reply notice at Ex.P.6.
53. However, as already discussed above, the evidence on record goes to show that the defence of the Accused as set out by him in his reply notice and as set out by him in his chief-examination affidavit are seriously contradictory to 30 C.C.No.17599/15 J each other and as such they cannot be safely believed by this court.
54. No doubt assuming for a moment that the defence of the Accused that, he had issued the cheque in dispute in favour of the Complainant for security purpose for his loan of Rs.8,15,000/= is presumed to be true, it could be seen that, in his cross-examination, it is elicited from the Accused that, he had not collected any receipt or endorsement from the Complainant to the fact that, he had issued cheque in dispute to him for the purpose of the security of the loan of Rs.8,15,000/= by him in the year 2009 as claimed by him in his affidavit and he has also admitted that, he has not even collected any written endorsement from the Complainant in the form of an undertaking to return the cheque in dispute to him after tracing out the key of his locker.
55. Likewise, it is also elicited from him that, till the date of the receipt of the legal notice by him, he has not collected any written endorsement from the Complainant to the effect that he has not returned his cheque to him. It is further elicited from him that, since 2009 till the date of the receipt of the legal notice, he has not issued any notice to the Complainant seeking the return of his cheque/s and that till date, he has not taken any legal action against the Complainant, though he has alleged that the cheque in dispute was in his possession as per his knowledge. In this 31 C.C.No.17599/15 J regard, it could also be seen that the cheque in dispute upon presentation is retuned as "Funds insufficient" and not as "Payment stopped by the Drawer". Therefore it could be seen that, the defence of the Accused has changed from stage of his reply notice till his cross-examination in this case.
56. No doubt, it is elicited from the Complainant that, he has not collected any security document/s from the Accused while advancing a huge loan of Rs.16 Lakhs to him, but the fact that, there existed a earlier loan transaction of Rs.8,15,000/= between them in the year 2009, which came to be cleared within a span of 7 days indicates the fact that, the Accused had made the Complainant to trust him and as a result, the omission on the part of the Complainant to have collected any such security document from the Accused cannot be found fault with.
57. It is pertinent to note that, the Accused has also contradicted himself with regard to his claim that, after 2010, he has not been doing any business in the name of M/s. Vatsala Constructions and that he has been doing transactions through his company ie., Vatsala Consultants Pvt., Ltd., from the year 2010.
58. However, in this regard, during his cross- examination, it is elicited from the Accused that, as per Ex.D.1, even in the year 2014, he has collected the cheque 32 C.C.No.17599/15 J book in the name of the M/s. Vatsala Constructions. Though he has claimed that he had scratched the previous cheque of the cheque in dispute as well as the cheques with the last two digits 81, 85, 86, 87 and 97, when the document at Ex.D.1, which is a letter issued by his bank is observed by this court, it goes to show that, though admittedly he has collected the cheques with the series No.113590 on 9.4.2009 from his bank, the cheques shown in the said document go to show that, among the 25 cheque leaves that he had collected, 16 of them have been cleared in the month of April and May 2009 itself and admittedly there is no reference to the cheque in dispute in it.
59. However when the defence of the Accused is that, he had scratched the cheques with the aforesaid last two digits, the onus of proving the same was upon him. However except his self assertion in this regard, he has not produced any documentary proof in support of his claim that, he had scratched the said cheques or to show that, the said cheques might have been in his house.
60. Thus it could be seen that, this evidence elicited from the Accused is clearly contrary to his earlier defence of the cheque last theory, since as per the own documentary proof relied upon by the Accused, 16 among his 25 his cheques which were collected by him from his banker in the month of April 2009 are cleared, but he has not specified 33 C.C.No.17599/15 J about either the cheque numbers or the total number of cheques that were allegedly lost by him. In such circumstance, this defence raised by the Accused to the effect that after 2010, he has not been undertaking any activity in the name of M/s. Vatsala Constructions cannot be accepted by the Court.
61. Moreover it could be seen that, even as per Ex.D.1, the Accused has collected several cheques in the name of M/s. Vatsala Constructions even in the year 2011 to 2014 and this documentary evidence clearly proves that the defence raised by the Accused to the effect that, he has not at all been transacted in respect of his proprietary concern is not a tenable one.
62. No doubt, the Accused has also claimed that, as he has been doing the business in the name and style of M/s. Vatsala Constructions and Consultants Pvt., Ltd., from the year 2010 and that, he had the sufficient cash balance during the financial year 2014-15 and he has also produced the documentary proof in the form of the cash register extract pertaining to his Company's transaction for the period from 1.4.2014 to 31.3.2015 as per Ex.D.2 and D.5.
63. However in his cross-examination, when he has been questioned about the number of workers employed under him as well as the details pertaining to the payment 34 C.C.No.17599/15 J made by him to such employees and his labour, he has admitted the suggestion that, there is no mention of the payments made by him to his 30 employees and more than 250 laborers as claimed by him. Though he has claimed that, he has documents to show that, he has made the payments to his employees and laborers, admittedly, he has not produced any single document before this court to substantiate the said contention.
64. Therefore solely by relying upon the documentary evidence at Ex.D.2 and D.5, which has been seriously disputed by the learned counsel for the Complainant, it cannot be concluded that, the Accused has been successful in establishing by relying upon the documentary evidence that, he was financially well-off during the year 2014-15 as claimed by him. Therefore the defence of the Accused even in this regard is untenable and unacceptable.
65. Now coming to another vital piece of documentary evidence, in the form of electronic evidence relied upon by the Accused as per Ex.D.3 ad D.5, being the Call Register Details pertaining to his SIM No.9845551190, he has been cross-examined extensively by the learned counsel for the Complainant.
66. The Accused has produced the said documentary proof in order to disprove the claim of the Complainant that, both of them had been in contact with each other through 35 C.C.No.17599/15 J their mobile phones as claimed by the latter. In this regard, the Accused has produced the said documents in order to establish his defence that, there was no contact between the Complainant and him after 2009-10 either personally or through phone.
67. In this regard, it is pertinent to note that, initially when the Accused had produced the documentary evidence as per Ex.D.3, but the same was disputed by the learned counsel for the Complainant on the ground that there was no SIM number displayed on the first page of Ex.D.3.
68. Therefore in order to meet the said objection, the learned Defence Counsel produced the fresh Call Register Details as per Ex.D.5, consisting of 43 pages, concerning the period from 5.8.2014 to 7.9.2014 and by relying upon this document, it is the defence of the Accused that, the said document clearly disproves the claim of the Complainant and on the contrary, corroborates the defence of the Accused that, after 2009-10 there has been no sort of contact between the parties.
69. However, in this regard, though the Complainant has not produced any such documentary proof in support of his claim that, he and the Accused used to contact through their mobile phones, during the cross-examination of the Accused, it is elicited from him that, his mobile number is 36 C.C.No.17599/15 J 985551190 and he has denied the suggestion that, apart from the said mobile number, he also had his other mobile number, with which, he used to contact with the Complainant.
70. It is interesting to note that, when it is suggested to the Accused that, apart from his aforesaid mobile number, he also had his other contact number i.e. 9901903709 as per Ex.D.3, he has denied the same, but he has admitted the suggestion that, the bill at Ex.D.3 is for the period from 5.8.2014 to 4.9.2014 and that Page No.9 and 10 of Ex.D.3 relates to the SIM No.9901903709, which he has claimed as not related to him.
71. It is pertinent to note that, though the Accused has denied that, other than the SIM number 9845551190, he also had his contact number i.e. 9901903709 as per Ex.D.3, both in Ex.D.3 as well as in Ex.D5, there is mention of even the Airtel No.9901903709, which is admittedly in the name of the Accused as per the said document.
72. In such circumstance, even according to the Accused, if the said SIM number did not belong to him, then there was no necessity for him to produce the mobile bill pertaining to the said number and there was no possibility to get such mobile bill in respect of both SIM numbers in the same document.
37 C.C.No.17599/15 J73. In this regard, during the course of his written arguments, the learned Defence Counsel has argued that, the mobile number found as 9901903709 SIM was not issued to the Accused, but bill was being sent to the Accused and later on, when it was brought to the notice of the mobile service provider, the bill has been stopped and that the Accused has produced the bill of even the said number.
74. However neither in his affidavit nor during course of his cross-examination, has the Accused has stated the aforesaid fact before this court and on the contrary, when the bill in respect of even the second number has been produced by the Accused, if the said SIM number did not belonged to him at all, then there was no necessity for the Service provider to raise the bill pertaining to the said SIM number in favour of the Accused.
75. However it is not the concern of this court, as to, if there was any mistake while generating the bill in respect of the said SIM number by the service provider of the Accused, since only by relying upon the said document, it cannot be concluded that, the defence of the Accused that, after 2009 there existed no contact between the Complainant and him cannot be believed by this court.
38 C.C.No.17599/15 J76. Moreover the conduct of the Accused in having taken inconsistent defences right from the stage of causing the reply notice to the Complainant till the conclusion of the trial goes to show that, he has not taken a consistent defence in this proceeding. Therefore even if it is accepted that, as per the documentary evidence at Ex.D3 and D.5, there were no telephonic conversations between the Complainant and the Accused as claimed by the former, during the relevant point of time, the fact that, the Accused has failed to disprove the case of the Complainant in the light of his other defences is sufficient to hold him guilty.
77. Moreover the conduct of the Accused in not having taken any legal action against the Complainant since 2009 till date, despite being aware of the fact that, his signed blank cheque was allegedly in the custody of the latter (Complainant) clearly raises a serious doubt in his defence version. Likewise till date, the Accused has not chosen to initiate any appropriate proceedings against the Complainant alleging the misuse of his cheque by the latter.
78. Further the Accused has also failed to take the least interest in giving the stop payment instructions to his banker pertaining to such cheque. Though in the cross-examination of the Complainant, it is questioned to him, as to, if the latter is aware of the complaint lodged by the Accused against him 39 C.C.No.17599/15 J with regard to the cheque in dispute, there is no documentary proof produced by the Accused in this regard.
79. Moreover, even if the defence of the Accused that, he had issued the cheque in dispute to the Complainant as a security cheque for his loan of Rs.8,15,000/= from him in the month of April 2014 is assumed to be true, then there was no necessity for him to repay the said loan to the Complainant through his another cheque drawn on his Account on another bank. Therefore even on this ground, the defence of the Accused is liable to be disbelieved by this court.
80. Therefore, considering the entire evidence available on record, I am of the sincere opinion that, the Complainant has successfully established his case beyond reasonable doubt and on the contrary, the Accused has failed to rebut the presumptions available in favour of the Complainant u/Sec.118 and 139 of the N.I.Act. Accordingly, I proceed to pass the following:-
ORDER By exercising the power-conferred u/s 255(2) of Cr.P.C., the Accused is hereby convicted of the offence punishable u/s 138 of the Negotiable Instruments Act.
He is held liable to pay a fine of Rs.17,00,000/= (Rupees Seventeen Lakhs Only).40 C.C.No.17599/15 J
If the fine amount is so realized, Rs.16,90,000/= (Rupees Sixteen Lakhs and Ninety Thousand Only) is ordered to be paid to the Complainant as Compensation and the balance of Rs.10,000/= (Rupees Ten Thousand only) is ordered to be adjusted towards cost to the State Exchequer.
In default of payment of such compensation, he shall undergo Simple Imprisonment for 1 (One) Year.
His bail bond stand discharged.
Issue free copy of the Judgment to the Accused forthwith.
(Dictated to the Stenographer and transcribed and print out taken by her, verified, corrected and then pronounced by me in the open court on this the 2nd day of July, 2018).
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri.K.N.Marigowda;
2. List of documents exhibited on behalf of the Complainant:-
Ex.P-1 : Original Cheque;
Ex.P-1(a) : Signatures of the Accused;
Ex.P-2 : Bank Memo;
Ex.P-3 : Office copy of the Legal Notice;
Ex.P-4 : Postal Receipt;
Ex.P-5 : Postal Acknowledgement;
Ex.P-6 : Reply Notice;
41 C.C.No.17599/15 J
Ex.P-7 : Statement of Accounts;
Ex.P-8 : Bank pass Book;
Ex.P-9 to P-12 : I.T.R - V of the Complainant.
3. List of witness/s examined on behalf of the Accused:-
D.W.1 : Sri.H.S. Vishwanath.
4. List of documents exhibited on behalf of the Accused:-
Ex.D1 : Accounts Statement;
Ex.D.2 : Cash Register Details;
Ex.D.3 to D.5 : Mobile Bills.
(SARASWATHI.K.N),
XVI ACMM, Bengaluru City.
42 C.C.No.17599/15 J
2.7.2018 Judgment pronounced in the open court
vide separate order.
ORDER
By exercising the power-conferred
u/s 255(2) of Cr.P.C., the Accused is
hereby convicted of the offence
punishable u/s 138 of the Negotiable
Instruments Act.
He is held liable to pay a fine of
Rs.17,00,000/= (Rupees Seventeen
Lakhs Only).
If the fine amount is so realized,
Rs.16,90,000/= (Rupees Sixteen Lakhs and Ninety Thousand Only) is ordered to be paid to the Complainant as Compensation and the balance of Rs.10,000/= (Rupees Ten Thousand only) is ordered to be adjusted towards cost to the State Exchequer.
In default of payment of such compensation, he shall undergo Simple Imprisonment for 1 (One) Year.
His bail bond stand discharged.
Issue free copy of the Judgment to the Accused forthwith.
XVI ACMM, B'luru.