Bangalore District Court
Sampath Kumar .G vs S. Shiva Kumar on 30 January, 2016
IN THE COURT OF THE XII ADDL. CHIEF
METROPOLITAN MAGISTRATE, AT BENGALURU
Dated this the 30th day of January 2016
Present: Sri. Rajkumar .S.Amminbhavi., B.Com., LLB (Spl)
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No. 30351/2014
Complainant: Sampath Kumar .G
S/o Late C. Gangadharan
No.104, 6th Cross
Javaregowda Road
Raja Rajeshwarinagar
Bangalore-560 098.
( By M/s Balaram Law Firm .Adv)
- Vs -
Accused: S. Shiva Kumar
S/o Sri Manikanta
No.61, 9th Cross
R.C. Agrahara
Chamrajpet
Bangalore-560 018.
(By Premesh D.Seshadri .Adv)
Offence U/s138 of Negotiable
Instruments Act.
Plea of the accused Pleaded not guilty.
Final order Convicted
******
2 C.C. 30351/2014
JUDGMENT
1. The Complainant filed this Complaint against the accused U/s.200 of Cr.PC for the offence punishable U/s 138 of N.I.Act.
2. The brief facts of the case of the complainant are; that, the complainant is an Ex-service man, he was serving about 16 years in Indian Army and he took voluntary retirement and after he was wanted to settle at Bengaluru along with his old age mother. He was looking for a residence for rent. Thereafter the complainant has approached for occupying his residence for rental basis through real estate agent. The accused is the owner and in possession of the 1st Floor in property bearing SyNo.61, 9th Cross, R.C. Agrahara, Chamrajpet, Bangalore-560 018, consisting of two bedroom, one kitchen, one bathroom and toilet also was looking for prospective tenants to lease the aforesaid property and as per the lease agreement to occupy the property of the accused both of them were negotiated as per the terms of lease agreement which has been executed by the accused in favour of the complainant on 18.03.2013, lease agreement of period of three years, as per the negotiation talks which was for Rs.6,50,000/- and accordingly, the complainant had paid by way of issuance of three cheques, bearing No.962282 for Rs.5,40,000/-, cheque bearing No.00914 for Rs.50,000/- and another cheque bearing No.009915 for Rs.50,000/- and Rs.10,000/- by way cash, total amount of Rs.6,50,000/-, but the accused for the best reasons known to him, has got made 3 C.C. 30351/2014 the lease agreement as if the complainant has paid an amount of Rs.8,50,000/- towards security deposit. Accordingly, the accused has received lease amount of Rs.6,50,000/- from the complainant as per the endorsement made in the lease deed in presence of the witnesses and balance amount of Rs.2,00,000/- is to be given by the complainant to the accused after hand over the possession of the lease property in favour of the complainant, such being facts, the accused has failed to vacate the possession and hand over the lease out property even after receipt of the lease amount of Rs.6,50,000/-, he was hand over the possession of the lease property within one month. Inspite of that, he was not hand over the said property for his resident as agreed in the lease agreement and he has also not repaid the lease amount which has been paid by the complainant to the accused as per the terms and condition dated:
18.03.2013 on the date of execution of lease date and inspite of repeated request and demand made by the complainant, the accused did not hand over the possession of the lease agreement property and nor repaid the lease agreement amount and thereafter he has issued cheque bearing No.31294, dated: 25.04.2013 for Rs.6,50,000/- drawn on Karnataka Bank. When the complainant has presented the said cheque for encashment through his banker, but the said cheque was returned with an endorsement as "Outdated".
Thereafter, the complainant has been informed to the said fact to the accused and accordingly the accused had issued cheque bearing No.416056, dated:04.09.2014 for 4 C.C. 30351/2014 Rs.3,00,000/- and another cheque bearing No.416057, dated:04.09.2014 for Rs.3,50,000/- both cheques drawn on Andhra Bank. When the complainant has presented the said cheques for encashment through his banker, but the said cheques were dishonounred with an endorsement as "Insufficient Funds". Thereafter, the complainant has been informed to the said fact to the accused, but the accused has not responded the same, then the complainant has issued legal notice on 16.10.2014 though his counsel by the RPAD, the said notice was duly served, calling upon to repay the lease agreement amount within 15 days from the date of receipt of the legal notice. Despite of service of the legal notice neither he had repaid the lease amount and nor reply the same. Thereafter, the complainant had constrained to file a complaint against the accused for the offence punishable Under Section 138 of N.Act., which is well within time.
3. After taking the cognizance of the complainant, on being served the summons, the accused appeared before court through his counsel and got released on bail. The substance of accusation was read over to the accused. Accused pleaded not guilty, claimed to be tried.
4. In order to prove the case of the complainant, the complainant got herself examined as PW.1 & got 20 documents marked as Ex.P.1 to Ex.P.20. The statement of the accused U/s.313 Cr.PC., was recorded. He denied the 5 C.C. 30351/2014 incriminating statements against him and the accused has not examined, inspite of giving sufficient time he has failed to adduce to his evidence and he has not got marked any documents.
(As per the judgment passed by their lordship in Cr.R.P.No.1585/2009 on 12.03.2013 of Hon'ble High Court, Bangaluru conducting of denova trial does not arises)
5. Heard arguments from both Counsel for complainant and accused.
6. The following points arise for my determination;
1. Whether the complainant proves that the accused had issued (1) cheque bearing No.416056, dated:04.09.2014 for Rs.3,00,000/- (2) cheque bearing No.416057, dated:04.09.2014 for Rs.3,50,000/- both cheques drawn on Andhra Bank, Chamarajpet Branch, Bengaluru, towards the discharge of legally enforceable debt due to him and when the cheque was presented for encashment, it came to be returned as ""Funds Insufficient"" Thereby, the accused has committed offence punishable U/s. 138 N.I.Act?
2. What order ?
7. My answer to the above points are;
Point No.1 : In the Affirmative
6 C.C. 30351/2014
Point No.2 : As per final order for the
following;
REASONS
8. POINT No.1 : In this complaint, the complainant
specifically pleaded that, the complainant is an Ex-service man, he was serving about 16 years in Indian Army and he took voluntary retirement and after he was wanted to settle at Bengaluru along with his old age mother. He was looking for a residence for rent. Thereafter the complainant has approached for occupying his residence for rental basis through real estate agent. The accused is the owner and in possession of the 1st Floor in property bearing SyNo.61, 9th Cross, R.C. Agrahara, Chamrajpet, Bangalore-560 018, consisting of two bedroom, one kitchen, one bathroom and toilet also was looking for prospective tenants to lease the aforesaid property and as per the lease agreement to occupy the property of the accused both of them were negotiated as per the terms of lease agreement which has been executed by the accused in favour of the complainant on 18.03.2013, lease agreement of period of three years, as per the negotiation talks which was for Rs.6,50,000/- and accordingly, the complainant had paid by way of issuance of three cheques, bearing No.962282 for Rs.5,40,000/-, cheque bearing No.00914 for Rs.50,000/- and another cheque bearing No.009915 for Rs.50,000/- and Rs.10,000/- by way cash, total amount of Rs.6,50,000/-, but the accused for the best reasons known to him, has got made the lease agreement as if the complainant has paid an amount of 7 C.C. 30351/2014 Rs.8,50,000/- towards security deposit. Accordingly, the accused has received lease amount of Rs.6,50,000/- from the complainant as per the endorsement made in the lease deed in presence of the witnesses and balance amount of Rs.2,00,000/- is to be given by the complainant to the accused after hand over the possession of the lease property in favour of the complainant, such being facts, the accused has failed to vacate the possession and hand over the lease out property even after receipt of the lease amount of Rs.6,50,000/-, he was hand over the possession of the lease property within one month. Inspite of that, he was not hand over the said property for his resident as agreed in the lease agreement and he has also not repaid the lease amount which has been paid by the complainant to the accused as per the terms and condition dated: 18.03.2013 on the date of execution of lease date and inspite of repeated request and demand made by the complainant, the accused did not hand over the possession of the lease agreement property and nor repaid the lease agreement amount and thereafter he has issued cheque bearing No.31294, dated: 25.04.2013 for Rs.6,50,000/- drawn on Karnataka Bank. When the complainant has presented the said cheque for encashment through his banker, but the said cheque was returned with an endorsement as "Outdated". Thereafter, the complainant has been informed to the said fact to the accused and accordingly the accused had issued cheque bearing No.416056, dated:04.09.2014 for Rs.3,00,000/- and another cheque bearing No.416057, dated:04.09.2014 for 8 C.C. 30351/2014 Rs.3,50,000/- both cheques drawn on Andhra Bank. When the complainant has presented the said cheques for encashment through his banker, but the said cheques were dishonounred with an endorsement as "Insufficient Funds". Thereafter, the complainant has been informed to the said fact to the accused, but the accused has not responded the same, then the complainant has issued legal notice on 16.10.2014 though his counsel by the RPAD, the said notice was duly served, calling upon to repay the lease agreement amount within 15 days from the date of receipt of the legal notice. Despite of service of the legal notice neither he had repaid the lease amount and nor reply the same. Thereafter, the complainant had constrained to file a complaint against the accused for the offence punishable Under Section 138 of N.Act., which is well within time.
9. On perusal of the evidence of PW-1 he has deposed in his chief-examination as per the averments made in the complaint and he has got marked documents like, the lease agreement dated: 18.03.2013 which is marked as Ex.P1, the signature of the accused therein which are marked as Ex.P1(a) to (c), three cheques which are marked as Ex.P2 to 4, the signature of the accused therein which are marked as Ex.P2(a) to 4(a), three bank endorsement which are marked as Ex.P5 to 7, the office copy of the legal notice which is marked as Ex.P8, the postal receipt which is marked as Ex.P9, postal information letter which is marked as Ex.P10, copy of the complaint filed against the accused which is 9 C.C. 30351/2014 marked as Ex.P11, the true copy of the FIR which is marked as Ex.P12, copy of the complaint dated: 20.09.2008 which is marked as Ex.P13, the true copy of the FIR which is marked as Ex.P14, police endorsement which is marked as Ex.P15, true copy of the complaint filed by one Abdul Mujeeb dated:
31.05.2014 which is marked as Ex.P16, true copy of the FIR which is marked as Ex.P17, true copy of the complaint filed by the complainant dated:30.11.2013 which is marked as Ex.P18, true copy of the FIR which is marked as Ex.P19, true copy of the statement given by the accused before the Chamaraj pet police which is marked as Ex.P20.
10. The complainant in his cross, he has deposed that, for the last two year he was residing in the address given in his chief-examination affidavit and prior to that, he was residing at Magadi Road, Bengaluru. As per the lease agreement, the accused had hand over the possession of the lease agreement property within one month to him. It is true that, at that time, negotiations to get the house of the accused, he was under construction of second floor. It is true that, as on the date of lease agreement the accused of this case was residing with his family in the said house. It is true that, the accused had undertaken to shift his residence to the second floor soon after the construction is completed and to hand over the ground floor of house to the complainant. But, witnesses volunteers that, the accused had under taken to complete the construction of second floor within one month and to hand over the ground floor as per the lease agreement to him. He 10 C.C. 30351/2014 denied the suggestion that, the accused has informed him that, the completion of construction would be delayed and soon after its completion, the possession of the house would be hand over to him. He denied the suggestion that, he had taken some gundas to the accused and picked up the quarrel with him. He denied the suggestion that, during the period of negotiations, he was residing Bakshi Garden/Anjinappa Garden. Further, PW-1 cross-examination was deferred on account of want of time and thereafter inspite of giving sufficient opportunity for cross-examination of the PW-1, the accused failed to cross-examining the PW-1 and thereafter the case has been posted for further cross of PW-1 taken as nil on 18.08.2015 and posted the matter for 313 statement on 21.09.2015 and after recording statement of the accused the case is posted for defence evidence on 14.10.2015. But, the accused failed to adduce his evidence and thereafter again which has been posted for defence evidence as last change on 30.10.2015 and again counsel for the defence, prays for time, again case is posted for 07.11.2015 for defence evidence on cost of Rs.300/- and inspite of that giving sufficient opportunity defence evidence is not adduced on 09.12.2015 the case is posted for argument and thereafter on 07.12.2015 argument of the complainant counsel is taken heard and posted for defence argument on 09.12.2015 and thereafter inspite of giving sufficient opportunity on 09.12.2015 as per application filed by the counsel for the accused under Section 311 Cr.P.C., the case was adjourned and cost of Rs.500/- for defence evidence and thereafter, also 11 C.C. 30351/2014 inspite of giving opportunity, the accused did not adduce his evidence. Hence, defence evidence taken as no cross, heard arguments.
11. On perusal of the entire evidence of the complainant and also evidence of the complainant coupled with the documents, it is an admitted fact that, as per the execution of lease agreement under Ex.P1 the accused had agreed to allot his property as mentioned in the lease deed in favour of the complainant for the period of three years for receiving the lease amount of Rs.6,50,000/- and he has agreed that, within one month after completion of the construction of second floor of his house, he will hand over the possession of the first floor of the property to the complainant for occupation as per lease deed dated:18.03.2013 and it is an admitted fact that, the complainant has paid said lease amount of Rs.6,50,000/- i.e., Rs.5,40,000/-, Rs.50,000/- and Rs.50,000/- was paid by way of cheque and Rs.10,000/- was paid by way of cash and that amount has been regularized by the accused from the bank account of the complainant. It is also admitted fact that, the complainant being retire Ex-service man, he has serving about 16 years in Indian Army and he has took voluntary retirement and intents to residing at Bengaluru along with his family members.
12. It is crystal clear that, on perusal of the evidence of the complainant and also he was an ex-service man, he was 12 C.C. 30351/2014 having sufficient source of income for taking property mentioned in Ex.P1 for on lease from the accused by paying lease amount of Rs.6,50,000/- on the date of lease deed and the said fact has been not disputed by the accused during the course of cross of PW-1. Though the with an malafide intention in the lease deed Ex.P1 it has been mentioned that, he has lease out of the property to the complainant for Rs.8,50,000/-, to disprove the contents of Ex.P1 and version of the PW-1 he has not at all put any question during the course of cross-examination of PW-1, stating that, he has agreed to let-out the said property to the complainant for Rs.6,50,000/- and he has let-out of Rs.8,50,000/- he has not disputed in respect that, he has not at all received the lease amount by way of cheques and by way of cash as deposed by the complainant and averred in the complaint. Since, inspite of lapse period as agreed by the accused under Ex.P1 that, he will vacate the property and allot the possession of the said property to the complainant for occupation, but he failed to comply the terms and conditions of the Ex.P1, thereby the complainant repeated request to repay the lease amount, which has been paid by the complainant as per Ex.P1 by way of cheque and cash on 18.03.2013 and thereafter the accused has issued cheque bearing No.31294, dated:25.04.2013 drawn on Karnataka Bank, the complainant has presented the said cheque for encashment though his banker, but the said cheque was dishonoured with an endorsement as "outdated" and thereafter the accused issued cheque bearing No.416056, dated:04.09.2014 13 C.C. 30351/2014 for Rs.3,00,000/- and cheque bearing No.416057, dated:
04.09.2014 for Rs.3,50,000/- drawn on Andhra Bank, Chamarajapet Branch, Bengaluru and when the both cheques were presented for encashment, but the said cheques were dishonoured with an endorsement as "Insufficient Funds". Therefore, since he was not having sufficient funds in his account, he was knowing fully well, he has issued Ex.P3 and 4 in favour of the complainant and inspite of receipt of the said notice, he failed to repay the lease amount within stipulated period receipt of the legal notice and when he was not reply to the said notice.
Thereby, the complainant constrained to file the present complaint which well within time and he has not at all disputed the Ex.P3 and 4 are not in his account and his own signature found on Ex.P3(a) and Ex.P4(a) and also he has not at all disputed about the execution of the lease deed as per the Ex.P1 in favour of the complainant. Since, the complainant has proved all the material ingredients of the Section 138 of N.I. Act and the accused has issued Ex.P3 and Ex.P4 with respect to repayment of the lease amount to the accused and thereby Ex.P3 and Ex.P4 issued by the for legally enforceable debt against him in favour of the complainant and inspite of the giving sufficient opportunity to the accused, he has not stepped into the witnesses box to disprove the claim of the complainant. Hence, it is apparently on the based of Ex.P1, he has failed to comply the terms and conditions of the Ex.P1 and even failed to repay the lease amount which has been paid by the complainant to 14 C.C. 30351/2014 the accused, inspite of repeated request made by him. Therefore, he has also issued Ex.P3 and Ex.P4 in favour of the complainant and the those the cheques were dishonoured and thereby the complainant has filed the said complaint which is well within time and disprove the claim of the complainant, the accused failed to rebut the case of the complainant as per the Provisions of the Section 139 of N.I. Act.
13. Hence, in the light of the above observation, the complainant has successfully proved that the accused has committed offence punishable under Section 138 of N.I. Act with these reasons, I am the opinion that, the complainant successfully established before the Court, the accused has issued Ex.P3 and Ex.P4 cheques to the complainant for the legally recoverably debt of Rs.6,50,000/-. Therefore, I answer the point No.1 in the affirmative.
14. Point No.2 :- In view of my findings on Point No.1 in the affirmative, I proceed to pas the following...
ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of
Rs.6,55,000/-. In default of payment of said
fine amount, the accused shall undergo simple imprisonment for six months.
15 C.C. 30351/2014Out of the said amount, Rs.6,50,000/-
shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and Rs.5,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands cancelled.
Free copy issued to the accused.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified, corrected and then pronounced by me in the open Court on this the 30th day of January 2016).
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 Sampath Kumar .G List of documents exhibited on behalf of the complainant:
Ex.P.1 Lease Agreement dated: 18.03.2013 Ex.P.1(a) to 1(c) Signatures of the accused Ex.P.2 to 4 Three cheques Ex.P.2(a) to 4(a) Signatures of the accused Ex.P.5 to 7 Bank endorsement Ex.P.8 The office copy of the legal notice Ex.P.9 The postal receipt Ex.P.10 Postal information letter Ex.P.11 Copy of the complaint filed against the accused Ex.P.12 True copy of the FIR Ex.P.13 Copy of the complaint dated:20.09.2008 16 C.C. 30351/2014 Ex.P.14 True copy of the FIR Ex.P.15 Police endorsement Ex.P.16 True copy of complaint filed by one Abdul Mujeeb dated: 31.05.2014 Ex.P.17 True copy of the FIR Ex.P.18 True copy of the complaint filed dated:
30.11.2013 Ex.P.19 True copy of the FIR Ex.P.20 True copy of the statement given by the accused before the Chamaraj pet police List of witnesses examined on behalf of the accused :
NIL List of documents exhibited on behalf of the accused :
NIL XII Addl. Chief Metropolitan Magistrate, Bengaluru City.17 C.C. 30351/2014
(vide separate judgment pronounced in the open Court) ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of
Rs.6,55,000/-. In default of payment of said
fine amount, the accused shall undergo simple imprisonment for six months.
Out of the said amount, Rs.6,50,000/-
shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and Rs.5,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands cancelled.
Free copy issued to the accused.
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.18 C.C. 30351/2014