Bangalore District Court
Sri. M. Shivakumar vs C.K.Shantha Kumar on 22 December, 2021
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
Dated: This the 22nd day of December 2021
Present : Sri Siddaramappa Kalyan Rao, B.A., LL.B.,
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
CC.No.24891 of 2017
COMPLAINANT/S: Sri. M. Shivakumar,
Aged about 43 years,
S/o. Late Manikanta,
R/at:15, 3rd Cross,
Ashwathkatte Road,
Kasturaba Nagar,
Azad Nagar Ward,
Chamarajpet,
Bengaluru - 560 018.
(Represented by
Sri. Harisha.A.S., Advocate)
- Vs -
ACCUSED: C.K.Shantha Kumar,
Aged about 48 years,
S/o. Reddappa,
R/at: No:305,
2nd Main, 3rd Cross,
Ganganadhi Pipe Line Road,
Srinagar,
Bengaluru - 560 050.
And also at:-
No:281, 9th Main,
Basavaraj Kattimani Road,
Hanumanthnagar,
2 CC.No.24891/2017
Bengaluru - 560 019.
(Represented by Sri.
Venkataram., Advocate)
Offence Under Section 138 of Negotiable
Instruments Act
Plea of the accused Pleaded not guilty
Final Order Convicted
******
JUDGMENT
This complaint is filed under section 200 of Cr.P.C for the offence punishable under section 138 of Negotiable Instruments Act. 1881.
2. The brief facts of the complainant case is that:
Complainant and accused are known friends to each other from the last 10 years. Hence in view of the above said acquaintance, during the month of August 2015 accused approached the complainant and sought hand loan of Rs.16,00,000/- and complainant had arranged the said sum and accused borrowed a sum of Rs.16,00,000/-
during the last week of August 2015 as hand loan to meet 3 CC.No.24891/2017 his financial commitments i.e., for purchase of tempo traveller for running a travel business and accused promised to repay the same within 10 months or one year and intimated to complainant that he is going to take loan on his business and after receiving the same he will settle the same. But accused failed to pay the same and after repeated requests, accused issued a cheque bearing No:104971 dated 21/06/2017 for a sum of Rs.16,00,000/-
drawn on Canara Bank, Lalbagh West Road Branch, Bengaluru-4 in favour of complainant and assured to complainant that the cheque will be honoured on its presentation to the Bank.
3. It is further contended that complainant presented the said cheque for encashment through his Banker Canara Bank, Mysore Road Branch, Bengaluru, but the said cheque is returned for the reasons "Account closed" on 01/08/2017. Thereafter, complainant having no other choice issued legal notice to the accused on 30/08/2017 by RPAD and it is duly served on the accused 4 CC.No.24891/2017 on 01/09/2017. Thereafter, the accused has replied to the notice. Hence, the present complaint is filed on 09/10/2017.
4. After filing of the complaint, this court has taken the cognizance of offence under section 138 of N.I Act and registered a Private complaint. After recording the sworn statement of the complainant, this court has registered the criminal 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 was read over and explained to accused in the language known to him and he pleaded not guilty and claims to be tried.
5. When the case was posted for recording of statement of the accused under section 313 of Cr.P.C., the accused has denied the entire incriminating evidence appearing against him. The accused has not adduced his 5 CC.No.24891/2017 side defence evidence and not got marked any documents in support of his defence.
6. In order to prove the case, the complainant is examined as PW-1 and got marked documents from Ex.P.1 to Ex.P.7.
7. It is the specific defence of the accused that accused has kept Ex.P.1 cheque in his office for the purpose of issuing the same to his customers. The said cheque has been stolen away by his brother Lokesh and he must have handed over to complainant and the complainant in collusion with the said Lokesh has filled up the same without consent of accused and has filed a false case against the accused and there is no any debt to be paid by the accused in favour of complainant. Hence, it is not issued for discharge of any debt or liability in favour of complainant. The another defence raised by the accused is that the writings on Ex.P.1 cheque does not belongs to accused and the complainant is also not having financial capacity to pay an amount of Rs.16,00,000/- to accused. 6 CC.No.24891/2017 Hence, on the above said grounds prays to dismiss the complaint.
8. Both the counsel remained absent. Hence, the arguments from both sides is taken as nil as per order dated 21/12/2021. Perused the entire oral and documentary evidence placed on record.
9. The following points arose for my consideration:
1. Whether the complainant proves that there is existence of legally recoverable debt as stated in the complaint?
2. If so, whether the complainant proves that Ex.P.1 cheque is issued towards discharge of legally recoverable debt by the accused?
3. Whether the complainant proves that the accused has committed an offence under Section 138 of Negotiable Instruments Act?
4. What order?
10. My findings to the above points are as under:
Point No.1 : In the affirmative;
Point No.2 : In the affirmative;
7 CC.No.24891/2017
Point No.3 : In the Affirmative;
Point No 4 : As per final order,
for the following:
REASONS
POINTS NO.1 AND 2:
11. These points are taken together for common discussion in order to avoid repetition of facts.
12. It is the specific case of the complainant that complainant and accused are known friends to each other from the last 10 years. Hence in view of the above said acquaintance, accused approached the complainant during the month of August 2015 seeking hand loan of Rs.16,00,000/- for purchase of tempo traveller for traveling business. Hence, in view of above said request made by the accused and also in view of close relationship, complainant paid a sum of Rs.16,00,000/- to accused in the last week of August 2015 as hand loan and accused promised to repay the same within 10 months or one year and intimated to complainant that he is going to take loan on his business and after receiving the same he will settle 8 CC.No.24891/2017 the same. But accused failed to pay the above said amount. Hence, after repeated requests made by the complainant, accused issued a cheque bearing No:104971 dated 21/06/2017 for a sum of Rs.16,00,000/- drawn on Canara Bank, Lalbagh West Road Branch, Bengaluru-4 in favour of complainant and assured to complainant that the cheque will be honoured on its presentation to the Bank. However, when complainant presented the said cheque for encashment through his Banker Canara Bank, Mysore Road Branch, Bengaluru, it came to be dishonoured for the reasons "Account closed" on 01/08/2017.
13. To substantiate the above said contention, the complainant is examined as PW-1 and has marked the documents from Ex.P.1 to Ex.P.7.
Ex.P.1 is the cheque of Canara Bank, Lalbagh West, Bengaluru-04 dated 21/06/2017 bearing No:104971 for a sum of Rs.16,00,000/- issued to Shivakumar i.e., the complainant and it is issued by C.K.Shantha Kumar i.e, the accused as Proprietor of S.L.N.Cabs. Ex.P.2 is the 9 CC.No.24891/2017 memo of Canara Bank dated 01/08/2017 with respect to cheque bearing No:104971 for a sum of Rs.16,00,000/- and the above said cheque is came to be dishonoured for the reasons "Account closed". Ex.P.3 is the office copy of legal notice issued to accused dated 30/08/2017. Ex.P.4 and Ex.P.5 are the postal receipts dated 30/08/2017 bearing Nos:RK928619663IN and RK928619778IN. Ex.P.6 is the Postal Track consignment dated 01/09/2017, wherein the "Item is delivered" on 01/09/2017. Ex.P.7 is the reply notice issued by the accused counsel to complainant counsel dated 11/09/2017.
14. To substantiate the above said contention, complainant is examined as PW-1, and he has reiterated the complaint averments in his affidavit evidence and he during his cross-examination has deposed that he is an advocate by profession and he is owning house property and also getting rent of an amount of Rs.70,000/- to Rs.80,000/- from the above said house and he is also getting income from his advocacy profession. He further 10 CC.No.24891/2017 deposed that he is residing in his house along with his 2 childrens and wife and his 2 childrens are going to school and one is studying in LKG and the another is studying in 6th Standard. He further deposed that accused is known to complainant since from the last 10 years and accused is doing travel business at Hanumanthanagar. Hence, on perusal of the above said cross-examination, it reveals that the same fact has been reiterated as stated in the complaint averments and on perusal of Ex.P.1 also, it reveals that the cheque is issued with regard to SLN Cabs i.e., he is running travels business. He further deposed that accused has obtained an amount of Rs.16,00,000/- from the complainant for purchase of tempo traveler. He has further deposed that he has contested in BBMP elections in 2010 and he has contacted accused for obtaining vehicles on rent. Hence, this evidence of the complainant goes to show that accused is known to complainant.
11 CC.No.24891/2017
15. In the reply notice marked at Ex.P.7, accused has taken a contention stating that he has never seen the face of the complainant, whereas he has specifically deposed before the court stating that he is known to accused during the year 2010 for obtaining vehicles on rent. This itself goes to show that accused is known to complainant. He further deposed that accused is running SLN Cabs travel agency business and further deposed that accused has come to the house of the complainant during the fist week of August 2015 and he has lent an amount of Rs.16,00,000/- to the accused during the last week of August 2015 in the house of complainant by way of cash and the defence which has been taken by the accused is that the complainant is not having financial capacity to pay an amount of Rs.16,00,000/- at once. However, he during his cross-examination has also deposed that he has sold a site on 08/10/2015 in favour of one Sainath for a consideration amount of Rs.2,50,00,000/-. Hence, from the above said consideration amount which was having with him, a part amount has been given in favour of accused for 12 CC.No.24891/2017 running of his tempo traveller business. Though the complainant has not produced any documentary evidence before the court, nothing has been elicited from the mouth of PW-1 to disbelieve the above said version of the complainant in the cross examination.
16. Hence, on perusal of the above said cross- examination, it reveals that complainant has stood by the averments what has been stated in the complaint and nowhere the evidence of the complainant is shaken. In the present case the defence which has been taken by the accused is that the accused had kept Ex.P.1 cheque in his office for giving the same to his customers and it has been stolen away by his brother Lokesh and the said Lokesh must have handed over Ex.P.1 cheque in favour of complainant and the complainant in collusion with the said Lokesh has filled Ex.P.1 cheque according to his convenience and filed a false case against the accused. If that is the defence of the accused, then soon after the loss of Ex.P.1 cheque, some steps would have been taken by the 13 CC.No.24891/2017 accused against the said Lokesh who is alleged to be the brother of the complainant, but to this effect no any documentary evidence is forthcoming from the side of the accused. He would have atleast given a representation to the Bank to not to honour Ex.P.1 cheque or at least he would have given notice to the said Lokesh to hand over the cheque, since it has been lost, however to this aspect also no any steps has been taken by the accused to substantiate that Ex.P.1 cheque has been lost by the accused. Hence, the above said defence taken by the accused is without any documentary evidence. Hence, the above said defence cannot be believed by this court. It is the further defence of the accused that the entire writings on Ex.P.1 cheque does not belong to accused. If that is the defence of the accused, then nothing prevented the accused to refer Ex.P.1 cheque to Hand Writing Expert opinion stating that his signature and other writings does not belong to accused. To this aspect also accused has not taken any steps to refer Ex.P.1 cheque to the Hand Writing Expert. Hence, in view of non-taking of any steps by the 14 CC.No.24891/2017 accused, this court has to give a finding based on the available evidence. However, on comparison of Ex.P.1(a) signature and other writings, it appears to be of the same hand writing and of the same ink. Hence, the above said defence also is not proved by production of any documentary evidence.
17. The another defence which has been taken by the accused is that the complainant is not having financial capacity to pay an amount of Rs.16,00,000/-. However, PW-1 during his cross-examination has specifically deposed before the court stating that on 08/10/2015 he has sold one site in favour of one Sainath for a consideration amount of Rs.2,50,00,000/- and out of the said consideration amount a sum of Rs.16,00,000/- is given in favour of accused. Though no any documentary evidence has been produced before the court to substantiate the above said contention, but nothing has been elicited from the mouth of PW-1 to disbelieve the above said oral version, though counsel for accused has 15 CC.No.24891/2017 cross-examined PW-1 in length, nothing has been elicited from the mouth of PW-1 to disbelieve the above said oral evidence of PW-1, though has been rebutted by the accused by cross-examining PW-1, but the above said defence which has been taken by the accused is just a plausible explanation and only to avoid from the payment of the cheque amount the above said defence has been taken and it is not reliable and trustworthy. On the other hand, on perusal of the oral evidence clubbed with the documentary evidence, it goes to show that Ex.P.1 cheque has been issued by the accused in favour of complainant which has been obtained by the accused for running his tempo traveller business and for purchase of tempo traveler and the above said debt obtained by the accused is a legally enforceable debt.
18. Further, I rely upon the decision reported in Crl. Appeal No:230-31 of 2019, decided between Bir Singh V/s. Mukesh Kumar dated 06/02/2019 wherein at Para No:40 it has been clearly held that :-
16 CC.No.24891/2017
"Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt".
Hence, the complainant has proved that Ex.P.1 cheque is issued by accused in favour of complainant for discharge of debt. Hence, in view of my above discussion, I answer Point No.1 and 2 in the "Affirmative". POINT No.3:-
19. It is the specific contention of the complainant that complainant and accused are known friends to each other from the last 10 years. Hence in view of the above said acquaintance, during the month of August 2015 accused approached the complainant and sought hand loan of Rs.16,00,000/-. Complainant paid the said amount to accused during the last week of August 2015 as hand loan to meet his financial commitments i.e., for purchase of 17 CC.No.24891/2017 tempo traveller to running a travel business and accused promised to repay the same within 10 months or one year. In discharge of the said debt, accused issued Ex.P.1 cheque bearing No:104971 dated 21/06/2017 for a sum of Rs.16,00,000/- drawn on Canara Bank, Lalbagh West Road Branch, Bengaluru-4 in favour of complainant and assured to complainant that the cheque will be honoured on its presentation to the Bank. When the complainant presented the said cheque for encashment through his Banker Canara Bank, Mysore Road Branch, Bengaluru, the said cheque was returned for the reasons "Account closed" on 01/08/2017 as per Ex.P.2 memo. Thereafter, complainant having no other choice issued legal notice to the accused as per Ex.P.3 on 30/08/2017 by RPAD as per Ex.P.4 and Ex.P.5 postal receipts. The said notice is duly served on the accused as per Ex.P.6 Postal Track consignment on 01/09/2017 as "Item delivered". Thereafter, accused has issued a reply notice to counsel for complainant as per Ex.P.7 on 11/09/2017. The accused 18 CC.No.24891/2017 has not paid the cheque amount. Hence, the present complainant is filed on 09/10/2017.
20. In this regard, it is relevant to peruse Section 138 of the Negotiable Instrument Act, which reads as under:-
"Dishonour of cheque for insufficiency, etc., of funds in the account.--Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:
21. Provided that nothing contained in this section shall apply unless--
a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or 19 CC.No.24891/2017 within the period of its validity, whichever is earlier;
b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
22. Explanation.--For the purposes of this section, "debt of other liability" means a legally enforceable debt or other liability.
23. On going through the said provision of law, it is clear that in order to establish and to prove the fact that the accused has committed an offence under section 138 of N.I.Act, the essential requirements i.e., legally recoverable debt, issuance of the cheque, presentation of the said cheque within the stipulated period for 20 CC.No.24891/2017 encashment, the dishonour of the said cheque and the issuance of the legal notice within the stipulated period calling upon the accused in making the payment of the said cheque amount is within the stipulated period are to be proved by the complainant.
24. On going through the facts and circumstances of the case, it is clear that the accused has issued Ex.P.1 cheque bearing No:104971 for a sum of Rs.16,00,000/ dated 21.06.2017. When the said cheque was presented to the Bank for encashment, the said cheque was dishonoured for the reasons "Account closed" as per Ex.P.2 memo dated 01/08/2017. Thereafter, the complainant has issued legal notice through his advocate as per Ex.P.3 on 30/08/2017 and the said notice is sent by RPAD as per Ex.P.4 and Ex.P.5 postal receipts and the said notice is duly served on the accused on 01/09/2017 as per Ex.P.6 Postal Track consignment as "Item delivered". Hence, as per Circular issued by Hon'ble High Court of Karnataka vide Ref.No:126/2021 dated 25/11/2021, the Postal Track 21 CC.No.24891/2017 consignment showing as "Item Delivery confirmed" is deemed to be served. That means the notice issued as per Ex.P.3 is duly served on the accused as per Ex.P.6 track consignment details and Section 138(b) of N.I.Act is also complied by the counsel for complainant. The accused has sent a reply notice as per Ex.P.7. The evidence placed on record shows the failure of the accused to pay the above said cheque amount within stipulated period as per section 138(c) of the Act. The present complaint has been filed on 09/10/2017 which is well within the period of limitation. In view of this, the complainant has satisfied the entire requirements of section 138 of N.I.Act.
25. On going through the entire oral and documentary evidence and as observed supra, the complainant has proved the existence of legally recoverable debt and issuance of cheque towards discharge of the said debt and also issuance of the legal notice within stipulated period and the failure of the accused to make payment of the said cheque amount within stipulated period. Under 22 CC.No.24891/2017 such circumstances, I hold that the complainant has clearly proved the existence of legally recoverable debt and also the issuance of cheque towards the discharge of said debt.
26. When the complainant proved that accused has issued Ex.P.1 cheque towards discharge of his liability, he is liable to pay the money as provided U/Sec.138 of N.I.Act. The accused can be punishable with imprisonment for a term which may be extended upto 2 years or with fine which may be extended to twice the amount of the cheque or with both. The accused is liable to pay the cheque amount of Rs.16,00,000/- in discharge of his liability in favour of complainant. Hence in view of my above discussion, I answer Point No.3 in "Affirmative". POINT No.4:-
27. In the result I proceed to pass the following:
ORDER Acting under Section 255(2) of Cr.P.C., the accused is hereby convicted 23 CC.No.24891/2017 for the offence punishable under Section 138 of N.I. Act.
Accused is sentenced to pay a fine of Rs.16,00,000/- (Rupees Sixteen Lakh Only) for the offence punishable under Section 138 of N.I. Act. The same shall be paid by the accused within a period of 30 days from the date of this order.
Out of the said fine amount, a sum of Rs.15,90,000/- (Rupees Fifteen Lakh Ninety Thousand Only) has been awarded to the complainant as compensation under Section 357 of Cr.P.C.
In default of payment of fine amount, the accused shall undergo simple imprisonment for 6 (Six) months.
The rest of Rs.10,000/- (Rupees Ten Thousand only) is ordered to be adjusted to the State as fine.
The cash surety amount of Rs.8,000/- already deposited by the
accused on 05/01/2018 is forfeited to the State.
24 CC.No.24891/2017
Office is directed to supply copy of Judgment to the accused free of cost forthwith. (Dictated to the Stenographer on computer, print out taken by her is verified, corrected and then Pronounced by me in the Open Court on this the 22nd day of December 2021).
(Siddaramappa Kalyan Rao) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 : Sri. M. Shivakumar.
List of documents exhibited on behalf of the complainant:
Ex.P.1 : Cheque. Ex.P.1(a) : Signature of the accused. Ex.P.2 : Bank endorsement. Ex.P.3 : Legal notice. Ex.P.4 and Ex.P.5 : 2 Postal receipts. Ex.P.6 : Postal Track consignment. Ex.P.7 : Reply notice.
List of witnesses examined on behalf of the accused :
- None -25 CC.No.24891/2017
List of documents exhibited on behalf of the accused :
- Nil -
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.26 CC.No.24891/2017
Date: 22/12/2021 Complainant - HAS Accused - VM Judgment Judgment pronounced in the open court vide separate order) ORDER Acting under Section 255(2) of Cr.P.C., the accused is hereby convicted for the offence punishable under Section 138 of N.I. Act.
Accused is sentenced to pay a fine of Rs.16,00,000/- (Rupees Sixteen Lakh Only) for the offence punishable under Section 138 of N.I. Act. The same shall be paid by the accused within a period of 30 days from the date of this order.
Out of the said fine amount, a sum of Rs.15,90,000/- (Rupees Fifteen Lakh Ninety Thousand Only) has been awarded 27 CC.No.24891/2017 to the complainant as compensation under Section 357 of Cr.P.C.
In default of payment of fine amount, the accused shall undergo simple imprisonment for 6 (Six) months.
The rest of Rs.10,000/- (Rupees Ten Thousand only) is ordered to be adjusted to the State as fine.
The cash surety amount of Rs.8,000/- already deposited by the
accused on 05/01/2018 is forfeited to the State.
Office is directed to supply copy of Judgment to the accused free of cost forthwith.
XII A.C.M.M., Bengaluru.