Bangalore District Court
Sri. C.C. Harisha vs Sri. Rakesh. R.B on 24 September, 2019
IN THE COURT OF XIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU.
:: PRESENT ::
SRI. NAGARAJEGOWDA. D. B.Com, L.L.B.,
XIII A.C.M.M. Bengaluru.
C.C. NO.10961/2018
Dated: This the 24th day of SEPTEMBER-2019
COMPLAINANT/S: Sri. C.C. Harisha,
S/o. Channegowda,
Aged about 38 years,
R/at. No.28/1, 2nd Main,
Dwaraka Nagar,
Chandra Layout,
Bangalore-560072.
ACCUSED: Sri. Rakesh. R.B.
S/o. Bommegowada,
Aged about 30 years,
R/at. Ranganathapura Village,
Hosalli Post, Hiresave Hobli,
Channarayapattana Taluk,
Hassan District.
Offence Under Section.138 of Negotiable
Instruments Act.
Plea of the accused Pleaded not guilty
Final order Partly Convicted
*****
JUDGMENT 2 C.C.10961/2018
:: JUDGEMENT ::
The complainant filed the private complaint under Section.200 of Cr.P.C alleging that, the accused has committed an offence punishable under Section.138 of Negotiable Instruments Act.
2. The brief facts of the complainant case as per Ex.P7 complaint reads as follows:
The accused and his family members are well known to the complainant and also very close friend to the complainant since past 5 years. Accordingly, the accused approached the complainant in the 1st week of February-
2017 and sought for financial assistance of Rs.1,50,000/-
for ceremony function of his relative. Having reposed faith and confident in the accused, the complainant had came forward to help in financially. Further submits that over a period of time, the accused have procured a loan of Rs.1,50,000/- on 17-02-2017 from the complainant and accused had agreed to repay the said loan amount within six months. After completion of the said six months, the JUDGMENT 3 C.C.10961/2018 complainant demanded the accused to repay the said loan amount, for that the accused has issued post dated cheque bearing No.483778, dated: 20-02-2018 for a sum of Rs.1,50,000/- drawn on Canara Bank, Didaga Branch, Channaraya Patna Taluk infavour of complainant. As per the assurance of accused, the complainant has presented the said cheque for encashment through his banker Karnataka Bank Ltd., City Civil Court Branch, Bangalore-
560009. But the said cheque returned dishonoured due to 'Funds Insufficient' on 22-02-2018. After issuance of legal notice to the accused on 05-03-2018 sent through RPAD.
But the acknowledgement was not yet returned. Hence, the complainant lodged a complaint before the Post Master on 10-04-2018 for enquiry and after enquiry the postal authorities have given an endorsement stating that the same is delivered on 13-03-2018. But the accused did not chose to reply or comply the notice and thus the accused has committed an offence punishable under Section.138 of Negotiable Instruments Act and punish the accused in accordance with law by awarding compensation to the JUDGMENT 4 C.C.10961/2018 complainant under Section.357 of Cr.P.C. in the interest of justice and equity.
3. After recording sworn statement of complainant with documentary evidence, this court has registered the case against the accused for the offence punishable under Section.138 of Negotiable Instruments Act. Summons issued to the accused. The accused appeared through his counsel and enlarged on bail. There afterwards, plea of accusation read over and explained to the accused in the language known by him and he pleaded not guilty and claims tobe tried.
4. Earlier, in support of the case of the complainant, the complainant filed sworn statement by way of affidavit and examined himself as PW.1 and got marked Ex.P1 to P7 and on the request of the accused counsel, permitted to cross- examine the PW.1. Accordingly, this PW.1 has been fully cross-examined by the accused counsel and thus complainant closed his side evidence.
JUDGMENT 5 C.C.10961/2018
5. There afterwards, accused examined under Section.313 of Cr.P.C. statement, in which he totally denied the entire case of the complainant. In support of his denial, accused lead his side defence evidence as DW.1 and got marked documents at Ex.D1 and this DW.1 has been fully cross-examined by the complainant counsel and thus accused closed his side evidence.
6. In support of the case of complainant, the learned counsel for complainant submitted the written arguments by narrating the facts and circumstances of the case and submits that the complainant had fulfilled all the ingredients of Section.138 of Negotiable Instruments Act and prays for convict the accused in accordance with law.
In support of his case, the learned counsel for complainant relying on the citations reported in:
LAWS (KAR) 2017 3 18 (N. Manjegowda V/s. N.V. Prakash). In which the Hon'ble High Court of Karnataka has held that defence of the accused that he has lost two cheque leaves when he was traveling and when he went to the police station to give complaint, the police asked him to go to the bank and give instruction to stop the passing of the said cheques etc. JUDGMENT 6 C.C.10961/2018 LAWS (KAR) 2017 1 89 (Muniyappa Narayanappa and another V/s. M/s. Lakshmi Financiers, Shivamogga). In which the Hon'ble High Court of Karnataka has held that Section.20 or 21 have not been complied with by the money lender, it may if the plaintiffs claim is established, in whole or in part, disallow the whole or any portion of the interest found due as may seem reasonable to it in the circumstances of the case and may disallow costs etc. Accordingly, the learned counsel for complainant prays for convict the accused in accordance with law.
7. I have heard the arguments of accused counsel on merits. In support of the case of accused, the learned counsel for accused relying on the citations reported in:
LAWS (SC) 2008 1 105 (Krishna Janardhan Bhat V/s. Dattatraya G. Hegde). In which the Hon'ble Supreme Court of India has held that conviction and sentence passed against appellant - set aside. Criminal trial - prosecution to prove guilt of accused beyond all reasonable doubt - But standard of proof to prove defence by accused
- is preponderance of probabilities etc. ILR 2008 KAR 4629 (Shiva Murthy V/s. Amruthraj). In which the Hon'ble High Court of Karnataka has held that complainant has proved existence of legally enforceable debt or liability, the courts could have proceeded to draw presumption under Section.139 of the Negotiable Instruments Act and thereafter find out as to whether or not the accused has rebutted the said presumption - Judgement of conviction and sentence are liable to be set aside - Accused is acquitted.JUDGMENT 7 C.C.10961/2018
LAWS (KAR) 2009 3 63 (B. Indramma V/s. Eshwar). In which the Hon'ble High Court of Karnataka has held that accused delivered the said cheque to herself (complainant) on the date on which it is purported to have been issued or on any specific date. Therefore the trial court was quite justified in not raising the presumption under Section.139 of Negotiable Instruments Act in favour of the complainant.
2015(5) Kar. L.J. 457 (L. Raju V/s. Gurappa Reddy). In which the Hon'ble High Court of Karnataka has held that Section.138 - Existence of debt and liability of accused towards the complainant is to be established by complainant by cogent and convincing evidence - On facts and circumstances - Complainant failed to prove the existence of debt - Hence appeal dismissed.
Accordingly, the counsel for accused prays for acquittal of the accused in accordance with law.
8. On the basis of aforesaid facts and circumstances, the following points arises for my considerations:
POINTS
1. Whether the complainant proves beyond all reasonable doubts that the accused has obtained loan amount of Rs.1,50,000/- on 17-02-2017 and for repayment of the said amount, the accused has issued post dated cheque bearing No.483778, dated: 20-02-2018 for Rs.1,50,000/- drawn on Canara Bank, Didaga Branch, Channaraya Patna Taluk JUDGMENT 8 C.C.10961/2018 infavour of the complainant. As per the assurance of the accused, the complainant has presented the said cheque for encashment through his banker Karnataka Bank Ltd., City Civil Court Branch, Bangalore-560009. But the said cheque came tobe dishonoured due to 'Funds Insufficient' on 22-02-2018. After issuance of legal notice to the accused on 05-03-2018 sent through RPAD, but the complainant has not received any acknowledgement from the postal authorities.
Thereafter, the complainant got issued letter to the post master for non-receipt of acknowledgement, for that they have issued reply stating that the said legal notice was duly delivered to the accused on 13-03-2018, but the accused did not reply or comply the notice and thus the accused has committed an offence punishable under Section.138 of Negotiable Instruments Act?
2. What order?
9. My answers to the above points are as under:
Point No.1: Partly in the Affirmative
Point No.2: As per the final order,
for the following.
JUDGMENT 9 C.C.10961/2018
REASONS
10. POINT NO.1: In support of the case of the
complainant, the complainant filed sworn statement as PW.1 filed by way of affidavit. In which he has stated that the accused and his family members are well known to the complainant and they are close friends for the past 5 years. On such acquaintance, the accused approached the complainant for financial assistance of Rs.1,50,000/- in the 1st week of February-2017. The complainant had paid the said amount on 17-02-2017 to the accused. The accused undertaken to repay the said amount within six months. After completion of six months, the complainant demanded the accused to repay the said liability and in order to discharge his liability, the accused issued a post dated cheque bearing No.483778, dated: 20-02-2018 for a sum of Rs.1,50,000/- drawn on Canara Bank, Didaga Branch, Channaraya Patna Taluk infavour of the complainant and assured the complainant that the said cheque will be honoured on its presentation to the bank. As per the assurance of the accused, the complainant has JUDGMENT 10 C.C.10961/2018 presented the said cheque for collection through his banker and the same was returned dishonoured due to 'Funds Insufficient' on 22-02-2018. After issuance of legal notice to the accused on 05-03-2018 through RPAD and the same is duly served to the accused on 13-03-2018, but the accused did not reply or comply the notice and thus the accused has committed an offence punishable under Section.138 of Negotiable Instruments Act and got marked Ex.P1 to P7.
11. Ex.P1 is the cheque alleged to be issued by the accused and identified the signature of accused as per Ex.P1(a). Ex.P2 is the endorsement issued by the bankers stating that Ex.P1 cheque is dishonoured due to 'Funds Insufficient'. Ex.P3 is the copy of the legal notice issued to the accused and the same has been sent through RPAD as per Ex.P4 postal receipt. But the acknowledgment has not received. Hence, the complainant has issued Ex.P5 letter to the Post Master and the Postal Department have issued a Track consignment as per Ex.P6. As per Track Consignment the legal notice was duly delivered to the JUDGMENT 11 C.C.10961/2018 accused on 13-03-2018. But the accused did not reply or comply the notice. Ex.P7 is the complaint is not under dispute.
12. Further the complainant has not produced any documentary evidence to show that he had sufficient amount with him. Because, the accused has denied the entire case of complainant and in his cross-examination the complainant admitted that he is a Practicing Advocate for 10 years and his native is Cholambarahalli, Channaraya Patna Taluk and the accused father Bommegowda who is good friend of this complainant and through him this accused knowing to this complainant. After knowing the accused, the accused in order to do the business and also his relatives death in accident in Hirisave and in order to perform Funeral ceremony, he had contacted the complainant and obtained loan amount of Rs.1,50,000/- from the complainant on 17-02-2017 and he had Rs.70,000/- with him containing Rs.100/-, Rs.500/- and Rs.2,000/- notes and at the time of advancing the said loan amount, the accused and accused father and mother JUDGMENT 12 C.C.10961/2018 were very much present. But he denied that he has not lend any loan amount to this accused and he has not obtained any documentary evidence from the accused at the time of lending the loan amount, because, he is the close friend to him and at the time of asking the loan amount along with accused and their family members were present and Ex.P1 cheque has been written by the accused before issuing to this complainant. Except Ex.P1 cheque and signature found on Ex.P1 as per Ex.P1(a), the rest of the contents are filled up by him and in order to appreciate the case of both complainant and accused at the time of cross-examination at Page No.3 the relevant portion is in kannada reads as follows:
¢£ÁAPÀB 19-02-2018 gÀAzÀÄ DgÉÆæAiÀÄÄ §¸ï£À°è ¥ÀæAiÀiÁtô¸ÀÄwÛgÀĪÁUÀ CªÀgÀ ZÉPï§ÄPï ªÀÄvÀÄÛ ZÉPï PÀ¼ÀªÀÅ DVzÉ CAvÀ CªÀgÀÄ zÀÆgÀÄ PÉÆnÖzÁÝgÉ CAzÀgÉ £À£ÀUÉ UÉÆwÛ®è. F §UÉÎ ¨ÁåAQUÉ DgÉÆæAiÀÄÄ ªÀiÁ»wAiÀÄ£ÀÄß PÉÆnÖzÁÝgÉ CAzÀgÉ ¸ÀjAiÀÄ®è. DgÉÆæAiÀÄÄ ZÉPï £À£UÀ É ¹QÌzÀÝ£ÀÄß zÀÄgÀÄ¥ÀAiÉÆÃUÀ ªÀiÁrPÉÆAqÀÄ CªÀgÀ «gÀÄzÀÝ ¸ÀļÀÄî PÉÃ¸ï ºÁQzÉÝÃ£É CAzÀgÉ ¸ÀjAiÀÄ®è.
13. But as per the said suggestion in order to show the accused has lodged the complaint before the police and JUDGMENT 13 C.C.10961/2018 also given instructions to his bank, for that the accused has not produced any documentary evidence.
14. Except total denial of the case of complainant, the accused lead his side defence evidence as DW.1. In which he has stated as per the contents of cross-examination of PW.1 and got marked Ex.D1 is the endorsement issued by the Hirisave police station, dated: 19-02-2018 about lost of cheque book by the accused by mentioning the cheque numbers as 483776 and 483780, but he has not produced any copy of complaint to show that the accused had given the complaint to the police and what happened to the said complaint given by the accused, for that the accused has not given any corroborative evidence to support his case and in his cross-examination he has stated that Ex.P1 cheque is belongs to him, but the signature found on Ex.P1 as per Ex.P1(a) is not belongs to the accused. But he had admitted that in the plea recorded by this court and also in 313 statement of accused and also in the vakalath, found the signatures of accused are all of him and also he admitted that the signature found on the bond paper given JUDGMENT 14 C.C.10961/2018 to this court also belongs to this accused and the Ex.P1 cheque is not returned from the banker stating that 'Signature Differs', but it is dishonoured due to 'Funds Insufficient' as per Ex.P2 Endorsement. After issuance of legal notice to the accused, the accused did not reply or comply the notice. But the said notice delivered to his mother, but his mother has not given the same to the accused, for that he has not issued any reply to the said notice and when the lost of cheque, he went to the Mysore to Ranganathapura on his work, at that time his bag containing cheque book, cloths, bank passbook are theft. But in his cross-examination, he has stated that he is the student, to show that he is the student for that he has not produced any Identity Card and he has not given instructions to his bank to stop payment of Ex.P1 cheque and hence he deposed falsely etc.
15. Except total denial of the case of complainant, the accused failed to give cogent and convincing evidence to disprove the case of complainant. As such, written arguments submitted by the complainant counsel and JUDGMENT 15 C.C.10961/2018 rulings relied by him as stated above are applicable to the case of complainant to show that the complainant had proved the alleged guilt of the accused beyond all reasonable doubt. But the rulings relied by the accused counsel as stated above are not applicable to the case on hand to show that the accused had given rebuttal evidence to the case of complainant. As such in the given facts and circumstance of the case, the complainant has not produced any documentary evidence to show that he had sufficient amount with him, but after dishonour of Ex.P1 cheque the complainant got issued legal notice to the accused and the same is duly served upon him, but the accused has not issued any reply to the legal notice issued by the complainant. As such, the complainant is entitle compensation only to an extent of cheque amount and the accused has to pay the cheque amount as compensation to the complainant. Accordingly, I answered Point No.1 Partly in the Affirmative.
16. POINT NO.2: From the forgoing reasons, I proceed to pass the following:
JUDGMENT 16 C.C.10961/2018
ORDER Acting under Section.255(2) Cr.P.C. the accused is convicted for the offence punishable under Section.138 of Negotiable Instruments Act partly and sentenced to pay a fine of Rs.1,50,000/- (Rupees One Lakh, Fifty Thousand only). The same shall be paid by the accused within 30 days from the date of this order.
Out of the said fine amount, a sum of Rs.1,48,000/- (Rupees One Lakh, Forty Eight thousand only) has been awarded to the complainant as compensation under Section.357 of Cr.P.C.
The rest of Rs.2,000/- (Rupees Two thousand only) is adjusted towards the state as fine.
In default of payment of fine amount, the accused shall undergo simple imprisonment for 3 (three) months.
(Dictated to the stenographer, corrected and then pronounced by me in the open court on this the 24th day of September 2019) (NAGARAJEGOWDA. D.) XIII Addl. C.M.M., Bengaluru.JUDGMENT 17 C.C.10961/2018
ANNEXURE Witnesses examined on behalf of the complainant:
PW.1 : C.C. Harsha Documents marked on behalf of the complainant:
Ex.P1 : Cheque Ex.P1(a) : Signature of the accused Ex.P2 : Endorsement Ex.P3 : Legal notice Ex.P4 : Postal Receipt Ex.P5 : Letter to the Post Master Ex.P6 : Track Consignment Ex.P7 : Complaint
Witnesses examined on behalf of the accused:
DW.1 : Rakesh. R.B. Documents marked on behalf of the accused:
Ex.D1 : Endorsement issued by Police
(NAGARAJEGOWDA. D.)
XIII Addl. C.M.M., Bengaluru.
* Accused copy furnished.