Bangalore District Court
P. Shankar Babu vs Mr. K.G.Ravikumar Reddy on 27 April, 2018
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU
Dated this the 27th Day of April 2018
Present: Sri. Rajkumar .S.Amminbhavi., B.Com., LLB (Spl)
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No. 15349/2015
Complainant: P. Shankar Babu
S/o. L.P.Ramanaiah
Aged about 35 Years
R/at. No.4, 1st Floor
1st Main, 1st Cross
Chamundeshwarinagar
D.B.Sandra
Vidyaranyapura
Bengaluru-560 097.
(By Anjappa .M. Adv)
- Vs -
Accused: Mr. K.G.Ravikumar Reddy
S/o. Late Gangireddy
Aged about 40 Years
R/at. No.119, 2nd Floor
8th Cross, Prakruthinagar
Kogilu Main Road
Yelahanka
Bengaluru-560 064.
(By. K.N.Shivareddy. Adv)
Offence complained of: U/s. 138 of the Negotiable
Instruments Act
Plea of the accused: Pleaded not guilty
Final Order: Accused is Convicted
Date of order: 27.04.2018
2 CC No.15349/2015
******
JUDGMENT
This is a complaint filed by the complainant under Sec.200 of Cr.PC against the accused for the offence punishable under Sec.138 of the Negotiable Instruments Act.
2. The facts of the complaint in brief are that, both the complainant and accused are known to each other since 2008. On account of well acquainted with the complainant, the accused had approached the complainant and requested to purchase a site as he is having a site, belonging to his friend who is well known to the accused and who is yet to sell the same and on that ground, the complainant has given an amount of Rs.5,00,000/- to the accused and later on the accused had failed to show the site or approached the complainant with respect to purchase of the site in his favour and subsequently, the complainant has approached the accused on several times and requested to return an amount of Rs.5,00,000/- and for that reasons, the accused for discharge of the said amount had issued cheque bearing No.016384, dated: 11.04.2015 for a sum of Rs.5,00,000/- drawn on Union Bank of India, Yelahanka Branch, Bengaluru in favour of the complainant and assured that, said cheque would be honoured on its presentation and as per the assurance made by the accused, the complainant has presented the said cheque for encashment through his banker i.e., Andhra Bank, Gandhingar Branch, Bengaluru, 3 CC No.15349/2015 but it was dishonoured with an endorsement as "Funds Insufficient" on 22.04.2015 and thereafter, the complainant has informed the said fact to the accused, but the accused did not responded the same. Hence, the complainant had got issued the legal notice on 20.05.2015 through his counsel by RPAD, calling upon him to repay the said amount within 15 days from the date of receipt of this legal notice and it was duly served upon him on 22.05.2015. Despite service of the legal notice, the accused neither repaid the said amount nor reply to the legal to notice issued by the complainant. Hence, the complainant had constrained to file a complaint ON 27.10.2016 against the accused for the offence punishable under Section 138 of N.I. Act., which is well within time and after filing the present complaint and based on the records available on record cognizance has been taken and registered it PCR.
3. After recording of the sworn statement of the complainant and complaint is registered in criminal case registered and after issuance of summons to the accused. In pursuant to the summons the accused had appeared before this Court through his counsel and enlarged on bail. The substance of accusation was recorded and read over to the accused in his vernacular. He pleaded not guilty. Hence, claims for trail.
4. In order to prove the case of the complainant, the complainant got himself examined as PW.1 & got 5 4 CC No.15349/2015 documents marked as Ex.P.1 to Ex.P.5 and PW-1 has been cross-examined and the statement of accused under Section 313 of Cr.P.C., was recorded and he denied the incriminating statement against him and the accused himself examined as DW-1 and in support of his case none of the documents have been marked and after completion of the defence evidence the matter was posted for arguments.
5. Heard arguments.
6. The following points arise for my determination;
1. Whether the complainant proves that the accused had issued cheque bearing No.016384, dated:11.04.2015 for Rs.5,00,000/- drawn on Union Bank of India, Yelahanka Branch, Bengaluru, for discharge of the amount and when the said cheque presented for encashment, it was dishonoured with an endorsement "Funds Insufficient" and after issuance of the legal notice he fails to repay the said amount and Thereby, the accused have 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
Point No.2 : As per final order for the
following;
REASONS
5 CC No.15349/2015
8. POINT NO.1: On perusal of the evidence of PW-1 he has reiterated as per the averments made in the complaint and he has got marked 5 documents namely, cheque which is marked as Ex.P1, the signature of the accused therein which is marked as Ex.P1(a), bank endorsement which is marked as Ex.P2, the office of the legal notice which is marked as Ex.P3, postal receipt which is marked as Ex.P4, postal acknowledgment which is marked as Ex.P6.
9. During the course of cross of PW-1 he has deposed that, he is originally native of Thirupathi, State of Andra Pradesh and he was doing tailoring work in his house since 2007 and to that effect he was earning an amount of Rs.20,000/- to Rs.22,000/- per month and prior to 2011 he was worked as Chit fund agent and through the chit fund, he was getting monthly income of Rs.20,000/-. He deposed that, he is not an income tax assessee. It is true that, the accused is resident of Kadari Village, Andra Pradesh State. He do not know whether the accused was working as car driver. It is true that, when he was worked in chit fund as agent and at that time, the accused was one of the member of the chit fund and thereby, he know the accused and prior to that, he was not known to the accused. It is true that, the accused has lodged the complaint before the Yelahanka Police Station, Bengaluru against himself, Tyagaraj and Narasihmaraj in the year 2014, but he was volunteers that, the accused was lodged the complaint against six persons before the 6 CC No.15349/2015 Yelahanka Police Station, but he do not know names of three other persons, wherein the accused has lodged the complaint before the Yelahanka Police Station. He denied the suggestion that, all the three persons are same group. He denied the suggestion that, since he was misappropriated the chit amount, when he was working in chit fund as agent and thereby, he has been removed from the chit fund and after leaving the chit fund agent, he was running car travels business. It is true that, when the accused has lodged the complaint against them before the Yelahanka Police Station by alleging that, himself and other persons were given life threat to the accused for demanding the loan amount and in the police station they have given apology letter and the accused has assured that, he will show the site which was not yet layout formed and it is still owned by one Raghavendra Layout. He do not know the owner of the said site and he has not seen the alleged Raghavendra Layout, but the accused has acted as agent for showing a said site from Raghavendra Layout, but to that effect, he has not produced any documents pertain to the said site. The accused has stated that, in the year 2011 he has agreed to show that, said site situated at Raghavendra Layout and at that time he was intend to purchase the said site for a sum of Rs.10,00,000/-, but at that time, he was having only an amount of Rs.5,00,000/- and he has paid said amount to the accused and he has accumulated the said amount, when he was worked in chit fund agent as he was received provident fund amount and an amount of Rs.1,00,000/- borrowed from the 7 CC No.15349/2015 bank by mortgaging his golden ornaments, but to that effect, he has not produced any documents and he has not averred in his complaint and in his legal notice with respect to his source of income. He deposed that, the accused has issued Ex.P1 in the year 2014 and again he was volunteers that, he was given the Ex.P1 in the year 2015. It is true that, if any of the persons intent to purchase any site owned by any person, then the such persons talks to be held with the owner of the said site, but in this case, he has not met with the owner of the site i.e., Raghadvendra layout who was owner and he was not actually seen alleged site and for that, he has not produced any documents pertain to the said site alleged to have intent to shown by the accused. It is true that, as he intent to show another site and for that, he has given earnest amount of Rs.70,000/- to the accused, but he do not know site number and its measurement. He deposed that, legal notice issued as per the Ex.P5 was duly served upon the accused. He denied the suggestion that, as per the Ex.P5 notice was not duly served upon the accused. It is true that, the accused was filed police complaint on 04.02.2014 against himself, Tyagaraj and Narasihmaraj and on that account, the police have called them to the Yelahanka police station and they have given their statement before the police station. He deposed that, since 1979 he was residing at Bengaluru City Limits and originally, he was resident of Andra Pradesh in Chithuru District. It is true that, he was not stated in his statement which was given by him before the police station that, he was running travel business. Further, it is true that, 8 CC No.15349/2015 he has stated in his police statement that, he has obtained two signed blank cheques of the accused, but not stated with respect to the promissory note and bond paper received from the accused and Ex.P1 is one of the cheque out of the two cheques received from the accused and another cheque was returned to the accused, since another cheque was non CTS cheque. He deposed that, he has presented the Ex.P1 for encashment after filing of the complaint before the police station in the year 2014, as per the assurance and instruction of the accused, he has presented the said cheque for encashment, but, to that fact has been notstated in his complaint and examination-in-chief. He denied the suggestion that, since he has taken two singed cheques, promissory note and bond paper and he has filed the false complaint, when the accused was lodged the police complaint against them and he has filed the false complaint against the accused.
10. During the course of defence evidence, the accused himself examined as DW-1 by way of filing an affidavit as examination-in-chief, wherein, he has specifically stated that, he deposed that, he is permanent resident at Ananthapura District, Andrapradesh and he is temporary resident in the address mentioned in his examination-in-chief. He deposed that, he was and is working as car driver in Bengaluru. He deposed that, he do not know the complainant and he was not at all borrowed the loan in question from the complainant and he was not at all issued Ex.P1 for discharge of the loan in 9 CC No.15349/2015 question to the complainant. He deposed that, he has never approached the complainant to the purchase a site as alleged in his complaint. He deposed that, since he was working as car driver and thereby, question of borrowed the loan from the complainant does not arise. He deposed that, he was lodged the complaint before the Yelahanka Police station on 04.02.2014 to take action against the complainant and others, since the complainant by taking undue advantage of the singed blank cheque, bond paper and pronote forcibly taken from him and to that effect, the police have warned to complainant in the police station and accordingly, the police have closed the case. He deposed that, the legal notice was not duly served upon him. Hence, for all other reasons he prays for to acquit him from the case in hand.
11. During the course of cross of DW-1, he has deposed that, he was residing at Bengaluru city limits for the last 13 years. It is true that, for the last 13 years he residing in the Bengaluru on different places i.e., Bhuvaneshwari Nagar, Yelahanka. He deposed that, when he came to Bengaluru city since from the that day he was working as car driver and he was worked as car driver job under the 4-5 owners and now he is working under one Nagaraja. He deposed that, he know the complainant since 7-8 years, through his owner by name Nagaraj who was one of the member of the Margadharsi chit and wherein the complainant was one of the agent and thereby, he know the present complainant, but he cannot say exact date. He deposed that, the he was lodged the complaint 10 CC No.15349/2015 against the complainant before Yalahanka Police Station, but he do not know whether or not, the police have taken action against the complainant and also he has not produced copy of the complaint before this Court. He denied the suggestion that, after the complaint lodged by him before the police station, he was issued Ex.P1 for repayment of the loan in question. He deposed that, he was not at all borrowed the loan in question from the complainant and he was not at all issued Ex.P1 for discharge the loan in question. Hence, all other reasons he prays for acquit him in the instant case.
12. On perusal of the averments made in the complaint and evidence of the respective parties and coupled with the documents produced by the respective parties. There is no dispute that, the complainant and accused are known to other as both of them originally residents of Andrapradesh and they are migrated to the Benglauru for their avocation. There is no dispute that, prior to filing of the present complaint, the complainant has complied all the necessary ingredients under Section 138 of N.I.Act., though the accused has denied with respect to the service of the legal notice, but on perusal of the address mentioned in the cause title of the complaint, address mentioned in postal acknowledgment and legal notice and the address mentioned in his examination-in-chief are one and the same. Therefore, it can be presumed that, after service of the legal notice the accused has failed to gave reply notice knowingly with an intention to defeat the claim of the complainant. There is no 11 CC No.15349/2015 dispute that, Ex.P1 cheque in question is belonging to his own bank account and the signature found on the Ex.P1(a) is his own signature.
13. It is case of the complainant is that, the accused was doing agent as well as car driver under the various owners and to that the accused has approached the complainant to show the site which was formed in "Raghavendra Layout" for valuable sale consideration and accordingly, the complainant on account of believing the words of the accused, the complainant has paid an amount of Rs.5,00,000/- and subsequently, the accused has failed to show the site and failed to introduce the owner as per the assurance made by the accused to him and to that account there was quarrel took place between themselves and thereby, the complainant has lodged the complaint before the Yalahanka Police Station against the accused and others in pursuant to the complaint lodged by the complainant, the police have called the accused to the police station and during the course of enquiry at police station, the accused for repayment of the amount in question, he was issued Ex.P1 to the complainant and accordingly, the complainant has presented the said for encashment, but the said cheque was dishonoured with an endorsement as per the Ex.P2 and after the complainant has issued legal notice to the accused and after service of the legal notice, the accused has failed to comply the legal notice issued by the complainant and thereby, the complainant has 12 CC No.15349/2015 filed the present complaint against the accused before this Court.
14. As per the specific defence of the accused is that, the complainant has forcibly obtained the two signed cheques from him and among the two cheques, one cheque in question misused and filed the false complaint against him before this Court with an intention to get wrong full gain, but to substantiate his defence, he has not produced any iota of documents before this Court except his oral testimony.
15. If really, he was not at all received the amount in question stating that, he was show the site, from the complainant and he was not at all issued the Ex.P1 for discharge of the said amount in question to the complainant, he ought to have gave stop payment instruction to his banker, he ought to have gave reply notice within stipulated period to the legal notice issued by the complaint, he ought to have challenged the cognizance taken by this Court. Therefore, non-performing the aforesaid legal proceedings that itself, it is very much fatal to the alleged defence set-up by the accused is not sustainable.
16. It can be presumed that, the accused has issued the Ex.P1 to the complainant knowing fully well without having sufficient funds in his bank account with an intention to defeat the claim of the complainant. It can be presumed that, no any ordinary prudent man will issue signed blank cheque 13 CC No.15349/2015 to any other persons without having monetary transaction between themselves. Further, on perusal of Ex.P1 there is no any ambiguity4. Further, the accused has failed to rebut his defence by adducing cogent and corroborative evidence as per the provision of Section 139 of N.I.Act., On other hand, the complainant has proved his case by adducing cogent and corroborative evidence as per the provision of Section 138 of N.I.Act., Hence, the probability of the preponderance is higher on the side of the complainant, rather than the accused.
17. Further, during the course of argument, the counsel for the accused has produced the several citations in support of his case and same are perused the said citations while taking into consideration of the case in hand. Ordinarily offence under Section 138 of N.I.Act "mensrea" is not essential, under Section 138 of N.I.Act , is bring into operation rule of strict liability, whereas, "mensrea" is essential ingredients in criminal offences. Therefore, The complainant has proved his case against the accused, since offence under Section 138 of N.I.Act element of Mensrea has been excluded in general public interest to curb the instances of dishonouring of cheques and to lend the credibility to the commercial transaction. Therefore, in this case also the accused knowing fully he was received the amount in question from the complainant and for discharge the loan in question he has issued the Ex.P1 to the complainant. Since the present complaint is summary trial and quasi-criminal in nature, it is 14 CC No.15349/2015 like recovery proceedings and punishment is fine or in default of it simple imprisonment.
18. 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.P1 to the complainant for the legally recoverably debt. Therefore, I answer the point No.1 in the affirmative.
19. 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.5,00,000/-. In default of payment of said
fine amount, the accused shall undergo simple imprisonment for Six Months.
Further, ordered that, out of the said fine amount of Rs.4,95,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of Rs.5,000/- shall be remitted to the state as fine.
15 CC No.15349/2015The 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 27th day of April 2018).
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 P. Shankar Babu 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 Office copy of the legal Notice Ex.P.4 Postal receipt Ex.P.5 Postal acknowledgment
List of witnesses examined on behalf of the accused :
DW-1 K.G.Ravikumar Reddy List of documents exhibited on behalf of the accused :
NIL XII Addl. Chief Metropolitan Magistrate, Bengaluru City.16 CC No.15349/2015
27.04.2018.
Complainant : A Accused : KNS Judgment.
(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.5,00,000/-. In default of payment of said
fine amount, the accused shall undergo simple imprisonment for Six Months.
Further, ordered that, out of the said fine amount of Rs.4,95,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of Rs.5,000/- shall be remitted to the state as fine.
17 CC No.15349/2015The bail bond and surety bond of the accused stands cancelled.
Free copy issued to the accused.
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
18 CC No.15349/2015Heard Inference 19 CC No.15349/2015