Bangalore District Court
Kum.Pushpalatha.J vs Sri.Ajith Kumar on 16 April, 2022
1 C.C. No.30470/2019 Judgt.
IN THE COURT OF THE XXI ACMM, BENGALURU
Dated: This the 16th day of April, 2022.
Present:
Smt. Reshma H.K., B.A.,LL.B.,
XXI ACMM, Bengaluru
C.C.No.30470/2019
Complainant : Kum.Pushpalatha.J,
D/o Jayaram B,
Aged about 31 years,
R/at:No.1/1G, 2nd Main, 6th Cross,
Ajad Nagar, Chamrajpet,
Bangalore - 560018.
(By Sri.B.S.G., adv.)
V/s
Accused : Sri.Ajith Kumar,
S/o Melekote Subbarayappa,
Aged about 31 years,
Working as Talisma Corporation,
Ground Floor, Salapuria Sattva,
Tin Factory Bus Stop,
Phoenix Magnificia,
Vijinapura Dooravaninagar,
Bangalore - 560016.
(By Sri.R.V., Adv.)
JUDGMENT
This is the complaint filed by the complainant under section 200 of Cr.P.C. against the accused for the offence punishable under section 138 of Negotiable Instruments Act and to take cognizance of the offence to punish the accused in accordance with law.
2 C.C. No.30470/2019 Judgt.
2. The factual matrix of the complaint is that the accused and complainant were working at Talisma Corporation Pvt. Ltd., and as a colleagues they know each other. With this acquaintance, accused approached the complainant and sought for a hand loan of Rs.5,00,000/- for his father's treatment, who was suffering from Cancer. Accordingly, on 28.12.2018 complainant paid a sum of Rs.1,00,000/- through NEFT and UPI and on 29.12.2018 paid a sum of Rs.1,50,000/- and on 30.12.2018 paid a sum of Rs.1,50,000/- and on 15.01.2019 paid a sum of Rs.1,00,000/- through her bank HDFC Bank, Richmond Road, Bangalore, intotal complainant paid a sum of Rs.5,00,000/- to the accused. Further the case of the complainant is that, for the repayment of the said amount, accused issued a cheque bearing No.422038 dated:31.10.2019 for an amount of Rs.5,00,000/- drawn on Citi Bank, M.G.Road Branch, Bangalore.
3. Further, as per the instructions of the accused, the complainant has presented the said cheque for encashment on 05.11.2019 through her banker i.e., HDFC Bank, Richmond Branch, Bangalore, but to the shock and surprise of the complainant said cheque was returned as 'Payment stopped by the drawer' as per the bank memo dated:05.11.2019. 3 C.C. No.30470/2019 Judgt. Thereafter, the complainant issued a Legal notice dated:28.11.2019 to the accused through R.P.A.D calling upon him to pay the amount covered under the cheque within the stipulated period and the same was duly served to the accused on 09.12.2019. Inspite of service of notice, accused failed to repay the amount covered under cheque. Hence, the complainant filed the present complaint against the accused for the offence punishable under section 138 of Negotiable Instrument Act.
4. This court after perusing records, cognizance of the offence was taken and there on sworn statement of the complainant was also recorded. The criminal case has been registered against the accused for the offence punishable under section 138 of N.I. Act.
5. Upon service of summons, accused appeared through his counsel and enlarged on bail. Thereafter, the court has recorded the plea of the accused and the accused did not pleaded guilty of the offence and claims to be tried. Hence, the case was posted for trial.
6. The complainant in order to prove her case, she herself examined as PW-1 and got marked 08 documents i.e., Ex.P-1 to 4 C.C. No.30470/2019 Judgt. Ex.P-08. Original Cheque marked as Ex.P.1, Signature of accused marked as Ex.P.1(a), Return Memo marked as Ex.P.2, Legal notice marked as Ex.P.3, Postal Receipt marked as Ex.P.4, Postal Acknowledgement marked as Ex.P.5, Postal cover marked as Ex.P.6, Account statement marked as Ex.P.7, Hard copy of whatsup conversation copy marked as Ex.P.8 and application U/s 65B of Indian Evidence Act 1872 marked as Ex.P.8(a)
7. After completion of the evidence of complainant, the substance of the evidence has been read over and explained to the accused under section 313 of Cr.P.C. the accused is denied the incriminating evidence available against him and did not choose to lead evidence on his behalf.
8. The complainant filed her written arguments and perused the materials placed before the court. The following points would arise for consideration;
1. Whether the complainant proves that the accused issued cheque bearing No.422038 dated:31.10.2019 for the legally enforceable debt of Rs.5,00,000/-, in favour of complainant and it was presented within the validity period and same is returned unpaid on account of "Payment Stopped by 5 C.C. No.30470/2019 Judgt. Drawer" and thereby caused the dishonor of cheque and inspite of legal notice, the accused fail to make payment and thereby committed an offence punishable under section 138 of Negotiable Instrument Act?
2. What Order?
9. My findings on the above points are as under:-
Point No.1: In the "Affirmative"
Point No.2: As per the final orders for the following:
BRIEF STATEMENT OF REASONS FOR THE DECISION
10. Point No.1:
On over all perusal of the oral and documentary evidence adduced by both the parties, it reveals that the case of the complainant is that on 28.12.2018 complainant paid a sum of Rs.1,00,000/- through NEFT and UPI and on 29.12.2018 paid a sum of Rs.1,50,000/- and on 30.12.2018 paid a sum of Rs.1,50,000/- and on 15.01.2019 paid a sum of Rs.1,00,000/-
through her bank HDFC Bank, Richmond Road, Bangalore, intotal complainant paid a sum of Rs.5,00,000/- to the accused. Further the case of the complainant is that, for the repayment of the said amount, accused issued a cheque bearing No.422038 dated:31.10.2019 for an amount of Rs.5,00,000/-. On the other 6 C.C. No.30470/2019 Judgt. hand, the contention of the accused is that, he has not received Rs.5,00,000/- from the complainant and received only Rs.3,00,000/- and out of said amount, Rs.1,00,000/- has been returned by the accused and now he is ready to pay the said remaining Rs.2,00,000/-. In order to prove his defence accused has not entered to the witness box to lead evidence on his behalf.
However, placed his defence by way of cross examination of PW.1. In the entire cross examination, accused has not taken any contention regarding the issuance of Ex.P.1/Cheque to the complainant. Moreover, accused has not denied the Ex.P.1 cheque and its signature at the time of evidence. Under the circumstances, it is worth to mention that once the cheque relates to the account of the accused and she accepts and admits the signature on the said cheque, then initial presumption as contemplated under section 139 of the N.I.Act has to be raised by the court infavour of the complainant.
11. Further, in a decision the Hon'ble Apex court, reported in AIR 2010 SC 1898 in a case of Rangappa V/s Mohan the Hon'ble Apex Court held that:-
"Once the cheque relates to the account of the accused and he accepts and admits the 7 C.C. No.30470/2019 Judgt. signatures on the said cheque, then initial presumption as contemplated under section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant. Therefore, in view of above said deposition, a presumption under section 139 of Negotiable Instruments Act can be drawn in favour of complainant that the said cheque was issued for a valid consideration. Now it is for the accused to rebut the said presumption. It is a settled law that though the onus on the accused to rebut the presumption is that of preponderance of probabilities but still the accused is required to adduce cogent evidence to rebut the presumption. Mere assertions and explanations of fact in the Court will not amount to rebuttal of presumption. In order to rebut the presumption under section 139 of N.I. Act, the accused by cogent evidence, has to prove the circumstance under which cheque was issued.
As per the above decision of the Hon'ble Apex Court, when accused admitted the issuance of cheque and its signature on the said cheque, then the burden shifted to the accused to prove that under which circumstances the cheque has been issued to 8 C.C. No.30470/2019 Judgt. the complainant. Hence, in the present case, complainant is successful in drawing initial presumption available in his favour.
12. Further, to rebut the presumption available to the complainant, the accused placed his defence by way of cross examining the PW.1 as stated supra. On perusal of the chief examination affidavit and cross examination, it shows that the case of the complainant is that she has paid Rs.5,00,000/- to the accused through online payment on various dates. During the course of cross examination, the counsel for defence posed a question by way of suggestion that the accused has repaid Rs.1,50,000/- to the complainant in the year 2019 and the complainant stated that said amount related to earlier transaction. In order to prove the said payment the complainant has produced her bank statement i.e., Ex.P.7 and in the cross examination, the defence counsel has denied the transfer of amount to the accused on 15.01.2019 and 28.12.2019, but admitted the transfer of amount Rs.1,50,000/- each on 29.12.2018 and 30.12.2018. Under the circumstances, it is worth to peruse the Ex.P.7 with the backdrop of the above statements on record. A perusal of Ex.P.7 indicates that on 15.01.2019 and 28.12.2019 there is a mentioning of payment of Rs.1,00,000/- 9 C.C. No.30470/2019 Judgt. each through UPI. Further, Ex.P.7 also indicates the transfer of Rs.1,50,000/- each to accused by NEFT on 29.12.2018 and 30.12.2018.
13. Further, the case of the complainant is that accused issued Ex.P.1/Cheque to the complainant through courier and to support of this statement the complainant has produced Ex.P.6, the Envelop. During the course of cross examination, the learned counsel for defence denied the issuance of Ex.P.1/cheque through Ex.P.6, the Courier. However, in the backside of Ex.P.1 the address and phone number of the accused is mentioned, but the accused also contended that is not his hand writing. It is worth to note that, in the cross examination dated:30.01.2021 accused himself admitted the issuance of cheque through courier in a blank manner. It is worth to reproduce the relevant extract of the portion of the said cross examination and the same is as follows;
"ಹಣ ಪಡದದಕಕಕಡದ ಮಕರದ ನಲದ ಲ ತಕಗಳದ ಆದ ನಕತರ ಆರಕರಪತ ನನಗ ಚಕಲ ನದ ನ ಕಕರಯರ ಮಡದದ ರದ ನಖರವದ ದನಕಕ ನನಪರದವದಲಲ . ಸದರ ಕಕರಯರ ಕವರ ನನನ ಬಳ ಇದದ ರ ಹಜರದ ಪಡಸದತತರ ನ. ಆರಕರಪತ ಖಲ ಚಕಲ ನದ ನ ಕಕರಯರದ ಮಡದದ ರದ ಎಕದರ ಸರಯಲಲ ."10 C.C. No.30470/2019 Judgt.
The above deposition clearly indicates the admission of the accused regarding issuance of Ex.P.1/Cheque to the complainant through courier. Hence, the contention of the accused that 'the cheque has been misplaced' at the time of recording statement of accused U/s 313 of Cr.P.C., holds no water.
14. Further, the accused denied the very service of statutory notice on him. As per the case of the complainant she has issued Legal notice to the accused on 28.11.2019 to call upon the accused to pay a sum of Rs.5,00,000/- and the said notice was served on the accused on 09.12.2019. But, during the course of cross examination, accused denied the service of statutory notice on him. However, to prove the very service of statutory notice, the complainant has produced Ex.P.5, the Postal Acknowledgment due and it shows that the Ex.P.3 notice was received by the addressee as mentioned in Ex.P.5. Furthermore, at the time of recording statement of accused U/s 313 of Cr.P.C., the accused himself admitted the receiving of statutory notice. It is worth to note that, when there is a prima facie evidence available on record, it is the burden of the accused to show that he was not residing in the said address. But, accused failed to produce any document to show the same. Hence, the contention of the 11 C.C. No.30470/2019 Judgt. accused regarding non service of statutory notice cannot be acceptable.
15. On over all perusal of the evidence on record, it is crystal clear that the accused contended that he has obtained only Rs.3,00,000/- from the complainant and accordingly, returned Rs.1,00,000/- and now he is ready to pay the Rs.2,00,000/-. However, accused fails to establish his defence by way of producing cogent evidence. Further, in the cross examination of PW.1 at one stretch accused admitted the issuance of cheque through courier and in another stretch accused denied the said issuance of cheque through courier. A mere deserted version is not sufficient to rebut the presumption available to the complainant.
16. Further, as per the evidence on record, on presentation of the Ex.P.1 /cheque, same was dishonored with an endorsement 'Payment stopped by drawer'. However, accused has not taken any contentions regarding the said reason for dishonoring the cheque. Under the circumstances, it is worth to mention the decision of the Hon'ble Apex Court, in a case of "M.M.T.C. Ltd. V/s Medchl Chemicals & Pharma (P) Ltd." The Supreme 12 C.C. No.30470/2019 Judgt. Court reiterated that;
"Even when the cheque is dishonoured by reason of stop payment instructions by virtue of section 139 the Court has to presume that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. This being a rebuttable presumption, the accused can thus show that the 'Stop payment' instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there was sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then offence under section 138 would not be made out. Burden of so proving would be on the accused"
17. Further, in a case of Goaplast Pvt Ltd V/s Chico Ursula D'Souza the Hon'ble Supreme Court held that;
"Ordinarily, the stop payment instructions are issued to the Bank by the account holder when there is no sufficient amount in the account. The reason for 13 C.C. No.30470/2019 Judgt. stopping the payment, however, can be manifold. It is essential that to issue stop payment instructions, there must be funds in the accounts in the first place as on the date of signing of the cheque, the date of presentation of the cheque, the date on which stop payment instructions were issued to the Bank. In the instant case, the complainant made an application to the Bank Manager to ascertain whether or not there was sufficient amount in the account for the payment. The Magistrate disallowed the said application without hearing the complainant holding that there is no dispute about the dishonour of the cheque by the accused, therefore, no purpose will be served by the Bank Manager as the dishonour is not in issue. However, the Supreme Court held that examination of the Bank Manager would have enabled also to know on what date stop payment order was sent by the drawer to the Bank."
The ratio laid down in the above two decisions are aptly applicable to the present case on hand, as it is proved by the complainant that, the accused has issued Ex.P.1/cheqeu to the complainant and succeeded in dishonoring the said cheque by issuing stop payment instruction.
14 C.C. No.30470/2019 Judgt.
18. It is worth to mention that when there is a presumption available in favour of the complainant regarding legally recoverable debt and the complainant successfully drawn that presumption, then the burden lies on the accused to prove his contention by adducing cogent evidence. Mere denial of the complainant case is not sufficient to prove the innocence of the accused. At this juncture, it is worth to relay on the decision passed by the Hon'ble Supreme Court of India in the case of T. Vasanthakumar -Vs- Vijayakumari reported in 2015(4) KCCR 2881 (SC), wherein which it is held that -
"Sections 138 and 139-Acquittal-if justified-Accused not disputing issuane of cheque and his signature on it, Plea that it was issued long back as security and that loan amount was repaid-Not supported by any evidence- Fact that date was printed, would not lend any evidence to case of accused-Acquittal not proper."
19. Further, the decision passed by the Hon'ble Supreme Court of India in the case of T.P. Murugan through Lrs. & Anr. -Vs- Bojan reported in 2018 SAR (Criminal) 923 wherein which it is held that -
15 C.C. No.30470/2019 Judgt.
" Secs. 139, 138- Dishonour of cheques- Legally enforceable debt or liability - Presumption- Under Section 139 of the N.I. Act, once a cheque has been signed and issued in favour of the holder, there is statutory presumption that it is issued in discharge of a legally enforceable debt or liability. This presumption is a rebuttable one, if the issuer of the cheque is able to discharge the burden that it was issued for some other purpose like security for a loan - In the present case, the respondent has failed to produce any credible evidence to rebut the statutory presumption- The appellants have proved their case by overwhelming evidence to establish that the two cheques were issued towards the discharge of an existing liability and legally enforceable debt- the respondent having admitted that the cheques and Pronote were signed by him, the presumption under S. 139 would operate- the respondent failed to rebut the presumption by adducing any cogent or credible evidence- hence, his defence is rejected - In view of the facts and circumstances, the impugned order passed in Criminal Revision Petition is hereby set aside, and the order of conviction and fine passed by the Trial Court is restored."16 C.C. No.30470/2019 Judgt.
20. Further, in a decision reported in 2014 (3) DCR 558 in a case of "Sripad V/s Ramdas M Shet" the Hon'ble court held that;
" Mere a distorted version or mere taking up the plea or the defence that he is not liable to pay any amount or he discharge the amount are not sufficient to put back the burden on to the complainant to prove his case beyond reasonable doubt"
The ratio laid down in all these decisions are aptly applicable to the present case. In the case on hand, though the accused contended that there is no legally recoverable debt as he had issued Ext.P.1 /Cheque as a security, but failed to prove his case by adducing cogent and reliable evidence. A mere saying is not sufficient to rebut the statutory presumption available to the complainant.
21. More so, the complainant succeeded in drawing above stated statutory presumption in his favour. Furthermore, on basis of the material evidence placed before the court, it clearly establishes that the accused had issued Ext.P.1 /cheque for an amount of Rs.5,00,000/- to the complainant and the said cheque 17 C.C. No.30470/2019 Judgt. presented on the said day it was returned without honoring the same on account of "Payment Stopped by Drawer"
maintained in the account of the accused. Further on perusing the EX-P.4, the postal receipt and Ex.P.3, the legal notice all these discloses that, inspite of the intimation of the dishonour of cheque accused did not comply the demand made in the legal notice. All these facts clearly establishes that, accused committed an offence under section 138 of N.I. Act. Therefore, I answered this point in the "Affirmative".
22. Point NO.2:- Having held the complainant has proved point No.1, the next aspect that arises for my consideration is regarding sentence to be imposed on the accused for having committed an offense punishable under section 138 of Negotiable Instrument Act. It could be seen from the materials that the complainant presented the cheque on 31.10.2019 and the same were returned unpaid. Further, accused fails to repay the said amount about nearly 02 years 05 months and made the complainant to suffer for want of funds in her hands. So I am of the opinion that it is required to direct the accused to pay the compensation to the complainant and in that event only it will meet the ends of justice. Hence, for the foregoing reasons and 18 C.C. No.30470/2019 Judgt. finding to point No.1, I proceed to pass the following:
ORDER By invoking the power conferred under section 255(2) of Cr.P.C., the accused is convicted and sentenced to pay a fine of Rs.5,60,000/- for the offence punishable U/S.138 of N.I. Act and in default to pay the fine amount the accused shall undergo simple Imprisonment for one year.
Further, Acting under section 357(1)
(b) of Cr.P.C. the entire fine amount of Rs.5,55,000/- on recovery shall be paid to the complainant as compensation.
Further, accused is directed to deposit the fine amount of Rs.5,000/- to the State out of fine amount.
Bail bond and surety bond of the accused shall stand cancelled.
Supply a free copy of this judgment to the accused.
Issue conviction warrant.
(Dictated to the Stenographer directly on computer, typed by her, corrected by me, signed then pronounced in the open court on this the 16 th day of April, 2022.) (SMT.RESHMA H.K.) XXI ACMM, BENGALURU 19 C.C. No.30470/2019 Judgt. ANNEXURE
1. List of witnesses examined on behalf of the complainant:
PW-1 : Kum.Pushpalatha.J
2. List of witnesses examined on behalf of the accused:
-NIL-
3. List of documents marked on behalf the complainant:
Ex.P.1 : Original Cheque
Ex.P.1(a) : Signature of accused
Ex.P.2 : Return Memo
Ex.P.3 : Legal notice
Ex.P.4 : Postal Receipt
Ex.P.5 : Postal Acknowledgment
Ex.P.6 : Postal cover
Ex.P.7 : Account statement
Ex.P.8 : Hard copy of whatsup conversation
Ex.P.8(a) : Application U/s 65B of I.E.Act
4. List of documents marked on behalf of the accused:
-NIL-
(SMT.RESHMA H.K.) XXI ACMM, BENGALURU