Bangalore District Court
Sri.Mahadevaswamy vs Sri.L.Susainathan on 17 September, 2016
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 17th day of September 2016
Present: Smt. Saraswathi.K.N, B.A.L., LL.M.,
XVI Addl.C.M.M., Bengaluru City.
JUDGEMENT U/S 355 OF Cr.P.C.,
Case No. : C.C. No.37999/2011
Complainant : Sri.Mahadevaswamy,
S/o.Sri. Nagappa,
Aged about 48 years,
R/at No.18,
New Post Office Road,
7th Block, Jayanagar,
Bengaluru -82.
(Rep.by Sri.H.B.Uday
Kumar., Adv.,)
- VS -
Accused : Sri.L.Susainathan,
S/o.Lourdu Sami,
Proprietor of Ascent
Electricals,
No.C-12, Bommasandra,
Industrial Estate,
K IADB Road,
Bengaluru-99.
(Rep. by Sri.Siddanooru
Vishwanatha., Adv.,)
2 C.C. No.37999/2011 J
Case instituted : 13.1.2011
Offence complained : U/s 138 of N.I. Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is Convicted
Date of order : 17.9.2016
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, he is the absolute owner of the Industrial shed No.C-12 VP Khatha No.29 situated in the Industrial Estate, Bommasandra 1st stage, Bengaluru, measuring 402.97 Sq.mtrs. East to West 17.95 mtrs and North to South 22.45 mtrs having been allotted by the KARNATAKA SMALL SCALE INDUSTRIES DEVELOPMENT CORPORATION (hereinafter referred to as the KSSIDC). The Accused, being his friend was permitted to run the industry under the name and style of Ascent Electric since 2007.
3 C.C. No.37999/2011 J3. The Complainant has further submitted that, due to ill-health, he decided to dispose off the said shed and as the Accused was running the industry, he proposed to purchase it for a total sale consideration of Rs.35,00,000/=. As per the mutual understanding between them, the Accused adjusted and paid Rs.15,00,000/= to him on various dates and as on the date of he executing the sale deed in favour of the Accused, he has received only a sum of Rs.15,00,000/=. As the Accused had availed loan from the Canara Bank, Bommasandra Branch, Bengaluru, out of which 3 demand drafts No.969799, 969800 and 969801 for Rs.5,60,327/= and Rs.9,00,000/= and Rs.9,00,000/= respectively were transferred to his account and re- transferred to the creditors of the Accused on the same date of the registration of the sale deed as requested by the Accused.
4. The Complainant has further submitted that, he was made to open a Bank account in the same Canara Bank, in which, the Accused had availed loan on the same date of registration i.e., on 31.3.2010 vide account NO.2408101001321. On the date of the opening of the said account i.e., on the date of the registration, he had 4 C.C. No.37999/2011 J to accommodate the Accused by transferring the said sum of Rs.20,60,000/= to the creditors of the Accused and to the Accused i.e., Sri. Maruthi Transport, Sri.T.Sharmili Appachu and self cheque to the Accused Rs.10,60,000/=, Rs.8,00,000/= and Rs.2,00,000/= respectively, as per the accounts issued by the Canara Bank.
5. It is further submitted by the Complainant that, on the date of the registration of the sale deed, the Accused had issued 4 post dated cheques viz.,
1. 643941 dated 30.9.2010,
2. 643942 dated 30.3.2011,
3. 643943 dated 30.9.2011,
4. 643944 dated 30.3.2012, for Rs.5,00,000/= each, drawn on the Canara Bank, Bommasandra Branch, Bengaluru, for having transferred the sum of Rs.20,60,000/= from his account to clear the loan of the Accused. The Accused returned Rs.60,000/= while issuing the said 4 post dated cheques for Rs.20,00,000/= in his favour.
5 C.C. No.37999/2011 J6. It is further submitted by the Complainant that, on 6.4.2010, the Accused has entered into an agreement of sale with him as insisted to make prompt repayment of the balance of Rs.20,00,000/= as he was not in a position to pay the said money and he was under debt at the time of executing the sale deed dated 31.3.2010, as his business was running under loss then, while purchasing the said industrial shed from him.
7. It is further submitted by the Complainant that, at the time of executing the sale deed, the Accused has paid only a sum of Rs.15,00,000/=, including all the payments made till that date. In order to make prompt repayment, the Accused issued 4 cheques to repay the entire balance of Rs.20,00,000/= in installments, out of which, he issued the first cheque bearing No.643941 for Rs.5,00,000/= dated 30.9.2010, drawn on the Canara Bank, SME, CBS branch, Bommasandra Bengaluru, towards the legal discharge. Thereafter he approached the Accused and requested him to make the payment in respect of the first installment. However the Accused had requested him to accommodate with one month's time to present the said cheque. Accordingly, as per the request of the Accused, when he presented the cheque bearing 6 C.C. No.37999/2011 J No.643941 for Rs.5,00,000/= on 11.11.2010 for realization through his Banker Syndicate Bank, Jayanagar V Block Branch, Bengaluru, to his surprise, it got returned with an endorsement dated 12.11.2010, as "Funds Insufficient". Till now the Accused has not made any arrangement to repay the said amount.
8. It is further submitted by the Complainant that, the Accused has taken the possession of the said industrial shed in a fraudulent manner by making false promises to honor the cheque for a sum of Rs.20,00,000/= and cheated him in a fraudulent manner by taking undue advantage of his ill-health.
9. It is further submitted by the Complainant that, immediately after the dishonour of the cheque, when he contacted the Accused and informed him about the same, the latter promised to arrange the money. But inspite of it, he did not arrange the same. Hence left with no other alternative, he got issued legal notice to the Accused through RPAD and UCP to the Accused on 27.11.2010. The RPAD cover has not been returned. In this regard, he gave a complaint to the jurisdictional Post Office, who has given intimation that the same has been 7 C.C. No.37999/2011 J duly served upon the Accused. Inspite of it, the Accused has failed to comply with the demand made in the notice.
10. The Complainant submits that, the dishonour of the cheque by the Accused has been malafide, intentional and deliberate. Feeling aggrieved by the conduct of the Accused, he has filed the present complaint praying that the Accused be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
11. The Pre-summoning evidence has been led by the Complainant on 23.12.2011. Prima-facie case has been made out against the Accused and he has been summoned vide order dated 26.12.2011.
12. The Accused has appeared before the Court on 28.11.2012 and he has been enlarged on bail. The substance of the accusation has been read over to him on 21.1.2013, to which, he has pleaded not guilty and claimed the trial.
13. In his post-summoning evidence, the Complainant has examined himself as PW1 and has filed 8 C.C. No.37999/2011 J his affidavit, wherein he has reiterated the averments made in the complaint.
P.W.1 has also relied upon the following documentary evidence:-
Ex.P1 is the certified copy of the sale deed, the Bank pass Book as per Ex.P2, the Agreement as per Ex.P3, Ex.P4 is the cheque, in which, the signature is identified by P.W.1 as that of the Accused as per Ex.P4(a), the Bank challan as per Ex.P5, the Bank memo as per Ex.P6, the office copy of the legal notice as per Ex.P7, the UCP receipt as per Ex.P8, the postal receipt as per Ex.P7(a), the office copy of the Complaint lodged before the jurisdictional Post Office as per Ex.P9, the Complaint Settled Reply as per Ex.P10 and the complaint as per Ex.P11. Ex.D1 & 2 are the original Sale Agreements marked through PW1.
14. In support of the case of the Complainant, a witness by name Hemavathi, the wife of the Complainant has been examined as PW2, who has supported the entire case of her husband i..e, the Complainant.
9 C.C. No.37999/2011 J15. P.W.2 has filed her affidavit, in which, she has sworn that the Accused came to their house in 14-1- 2007 and got introduced himself and enquired with them about their industrial shed and also informed to them that he and his brother were running Ascent Electricals and Electrical Panel Board manufacturing Unit in the same area.
16. P.W.2 has further deposed that, the Accused further informed to them that he was interested in purchasing their industrial shed as he intended to separate from his brother and continue with the Ascent Electricals and that at that time, as her husband was suffering from ill health, they agreed to sell their industrial shed to the Accused and thereafter on 19-01- 2007, the Accused himself got prepared the sale Agreement as per the agreed terms and as per the said agreement the Accused agreed to purchase the industrial shed for Rs.35,00,000/= and further informed to them that there was a big Sheet Bending Machine which was expected to come from Chennai and that he had no space to accommodate it and hence he was urgently in need of the possession of the shed and hence he requested for the immediate delivery of the possession of the shed to 10 C.C. No.37999/2011 J him and took the keys of their industrial shed by issuing a cheque for Rs.1,00,000/= bearing No.809059 drawn on the Canara Bank, towards the advance amount out of Rs.33,50,000/=.
17. P.W.2 has further deposed that the said industrial shed was allotted to her husband by the KSSIDC on 9/9/1993 and the possession was given to them on 12/1/1994 and from 1995 they have been running the fabrication unit there and after 2005, they were not running any business in the said shed.
18. P.W.2 has further deposed that from 2007 till the date of registration of the sale deed in his favour, the Accused has paid a total sum of Rs.15,00,000/= on various dates by way of cash and by way of cheques and according to them 3 to 4 cheques have got bounced and thereafter they got the sale deed in the name of the Complainant on 3.12.2009 by depositing the balance amount of the KSSIDC and thereafter though they requested the Accused to get registered the sale deed by paying to them the balance consideration amount, he went on postponing the same on the pretest that he was trying to take loan from the Bank and finally on the 20th 11 C.C. No.37999/2011 J March 2010, he came near their house and informed to them that, the Canara Bank had agreed to advance loan for the purchase of the said industrial shed. She has further deposed that, finally on 30.3.2010, he came to their house and told them that, they had to come near the office of the Attibele Sub-Registrar on 31.3.2010 without fail and if they did not do so, the loan amount that is sanctioned would be lapsed and that he further stated before them that, as he was due to pay loan amounts to various persons, the amount in the sale deed has been shown as Rs.35,00,000/= instead of Rs.33,50,000/=, out of which, he was due to repay the loan of Rs.20,00,000/= and towards the said amount, he issued to them 4 post dated cheques for Rs.5,00,000/= with an interval of 6 months each and in this regard, he also executed an agreement and though they were not willing for the same, they gave consent for such agreement. Accordingly on 31.3.2010, when they went to the Office of the Sub-Registrar, as per the instructions of the Accused, the Assistant Manager by name Govindarajan from Canara Bank had come there along with some DD's and thereafter, her husband executed a registered sale deed in favour of the Accused, for which 12 C.C. No.37999/2011 J she also signed as a witness and thereafter he took them to the Canara Bank of Bommasandra Branch, where he issued 3 DD's to them and got opened an account in the name of her husband in the same Branch, by signing as an introducer and he got deposited the said DD and got issued the cheque book. She has further deposed that, by then, the creditors of the Accused had come to the Bank and then as per the order of the Govindarajan, a sum of Rs.10,60,000/= in the name of the owner of Maruthi Transport, Rs.8,00,000/= in the name of Sharmili Appachu and Rs.2,00,000/= towards his hand loan by way of his self cheque, the Accused took a total sum of Rs.20,60,000/= from the account of her husband. She has further deposed that, at that time, the Accused issued 4 cheques of Rs.5,00,000/= with an interval of 6 months date, he issued 4 cheques to her husband and thereafter as per the instructions of the Accused, her husband purchased a stamp paper of Rs.200/= on 1.4.2010 and thereafter the Accused undertook to execute an agreement after returning from his native place. Thereafter on 6.4.2010 as per the call of the Accused, they went to his industry along with the stamp paper which was purchased by them and at that time, 13 C.C. No.37999/2011 J the Accused prepared an agreement, by getting the recitals of the said agreement typed from the Computer Center near his Industrial shed and also gave Rs.60,000/= out of the total amount of Rs.20,60,000/= which was paid by the Complainant to his creditors and she also signed on the said agreement as a witness.
19. P.W.2 has further deposed that when the time for the presentation of the first cheque arrived, the Accused requested them to present the same after some time. Accordingly when the cheque in question came to be presented for encashment by her husband through his bankers, the same came to be bounced and thereafter the Accuse undertook to repay the said amount. Similarly even though the due date of the second cheque came nearer, the Accused went on postponing the same without making the repayment and thereafter he started avoiding receiving their phone calls and all the cheques issued by him came to be bounced. She has also deposed that thereafter they came to know that their industrial shed has been set down for auction for the principal and interest of total amount of Rs.71,30,000/=.
14 C.C. No.37999/2011 J20. PW2 has been cross-examined at length by the learned defence counsel.
21. In her cross-examination PW2 has pleaded ignorance about the total amount which came to be deposited to their account at the time of the registration of Ex.P1 on 31.3.2010. With regard to the consideration amount as recited in page No.3 of Ex.P1, PW2 has deposed before the Court that, no such consideration amount has been received by them. However she has admitted having received 4 cheques from the Accused at the time of the registration of the sale deed and also having signed in Ex.D1 and also the execution of the sale agreement as per EX.D2 between her husband and the Accused. Similarly it is also elicited from the mouth of PW2 that, there are no documents to show that, they have paid Rs.10,40,000/= to the Maruthi Transport, Rs.8,00,000/= to Sharmili Appachu and Rs.2,00,000/= to the Accused and thereby a total amount of Rs.20,60,000/= to the creditors of the Accused. However she has denied the suggestion that, her husband has filed this false case against the Accused by misusing the cheque issued by the Accused in his favour at the time of registration of the Industrial shed on 31.3.2010, in 15 C.C. No.37999/2011 J favour of the Accused and she has also denied that, she has deposed falsely only with an intention to help the Complainant, who is her husband.
22. The statement of the Accused under Sec.313 of Cr.P.C., has been recorded on 6.11.2015.
23. The Accused has not chosen to lead his defence evidence.
24. The learned counsel for the Complainant has prayed for the conviction of the Accused on the ground that, the Accused has admitted his signature on the cheque in question and that he has not taken any legal action against the Complainant, if his signature on Ex.P3 i.e., the Agreement dated 6.4.2010 was obtained forcibly by the Complainant as alleged by him and it is also argued that, the Accused has neither issued any legal notice to the Complainant nor any reply to the legal notice issued by the Complainant to him and thereby he has failed to rebut the case of the Complainant. It is further argued that the presumption under Sec.118 r/w.139 of the N.I.Act is in favour of the Complainant 16 C.C. No.37999/2011 J and thus the Accused be convicted for the offence punishable under Sec.138 of the N.I Act.
25. The learned defence counsel has argued for the acquittal of the Accused on the ground that, the Complainant has utterly failed to discharge the existence of the legally recoverable debt and that the documents of the Accused are misused by the Complainant and that as per the recitals of Ex.P1 i.e., the registered Sale Deed dated 30.3.2010, the entire sale consideration amount has been received by the Complainant from the Accused and it is also argued that, there is contradiction with regard to the demand of the money in the legal notice and in the affidavit of the Complainant and that the Complainant has admitted in his cross-examination that, as per the recitals of Ex.P1, he has received the entire amount from the Accused due under the Sale Deed and therefore prayed for the acquittal of the Accused.
26. I have considered the submissions and perused the record carefully.
17 C.C. No.37999/2011 J27. Sec.138 of the Negotiable Instruments Act has been enacted to lend credibility to the financial transactions.
The main ingredients of the offence under Section 138 Negotiable Instruments Act are:-
(i) Drawing up of a cheque by the Accused towards the payment of the amount of money, for the discharge, in whole or in part, of any debt or any other liability;
(ii) Return of the cheque by the bank as unpaid;
(iii) The drawer of the cheque fails to make the payment of the said amount of money within 15 days of the receipt of the notice under the proviso (b) to Section
138.
28. The Explanation appended to the Section provides that, the "debt or other liability" for the purpose of this Section means a legally enforceable debt or other liability.
29. Apart from this, Sec.139 of the Negotiable Instruments Act lays down a presumption in favour of the holder of cheque in the following terms:-
18 C.C. No.37999/2011 J"It shall be presumed, unless the contrary is proved, that:-
The holder of a cheque received the cheque, of the nature referred to in Sec. 138, for the discharge, in whole or in part, of any debt or other liability".
30. Also, Sec. 118 of the Negotiable Instruments Act states:-
"Until the contrary is proved, the following presumptions shall be made:-
(a) that every Negotiable Instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;"
31. Thus, the Act clearly lays down the presumptions in favour of the Complainant with regard to the issuance of the cheque by the Accused, towards the discharge of his liability in favour of the Complainant.
32. Under the scheme of the Act, the onus is upon the Accused to rebut the presumptions in favour of the Complainant by raising a probable defence.
19 C.C. No.37999/2011 J33. Such being the legal position, it would be pertinent to refer to the defences raised by the Accused to rebut the presumptions in favour of the Complainant in this case.
34. The first defence raised by the Accused in this case is a very vague one which is evident that, during the cross-examination of PW1, wherein the only suggestion put to PW1 with regard to the issuance of the cheque in question along with 3 other cheques is that, though he has paid the entire amount to the Complainant as per Ex.D1, i.e., sale agreement dated 19.1.2007, the latter demanded for the extra amount from the Accused and for the same purpose, the sale agreement at Ex.D2 came to be executed between them on 22.1.2010 for a total sale consideration of Rs.35,00,000/=. However PW1 has denied that as per Ex.D2, he has registered the industrial shed in favour of the Accused and he has also denied that, even after the execution of the sale agreement in favour of the Accused as per Ex.D2, he compelled the Accused to pay the amount, for which purpose, the Accused issued the disputed cheque, along with 3 other cheques in his favour.
20 C.C. No.37999/2011 J35. Similarly it is also the defence of the Accused that, the agreement at Ex.P3 dated 6.4.2010 has been got executed by the Complainant through him forcibly before the registration of Industrial shed in his favour. Therefore it is clear that the first defence of the Accused is that, the disputed cheque has not been issued by him in favour of the Complainant towards the repayment of any loan and that, it has been issued only due to the compulsion on the part of the Complainant after the execution of the sale agreement at Ex.D2. However this defence version has been categorically denied by PW1.
36. Similarly even during the cross-examination of PW2, the Accused has taken up the only defence that her husband has filed this false case against him, by misusing the cheque collected from the Accused at the time of the registration of the industrial shed in his favour on 31.3.2010. But it is pertinent to note that, with this only defence, the Accused has tried to disprove the entire case of the Complainant.
37. Now it is pertinent to note that, according to the Complainant as well as the Accused, admittedly the sale transaction in respect of the industrial shed was for a 21 C.C. No.37999/2011 J total sale consideration of Rs.35,00,000/= and that according to the Complainant, the Accused has paid only a sum of Rs.15,00,000/= to him on various dates. It is also an admitted fact that, the Accused was sanctioned loan by the Canara Bank of Bommasandra Branch, Bengaluru and it is also an admitted fact between the parties that, the said loan amount was transferred to the account of the Complainant, as per the instruction of the Accused by the Canara Bank by way of 3 Demand Drafts bearing No.969799 for Rs.5,60,327/=, 969800 for Rs.9,00,000/= and 969801 for Rs.9,00,000/=. This fact is admitted even by the Accused. Even in his cross- examination, PW1 has admitted the suggestion that, as per the recitals of Ex.P1, it is recited that, he has received the total sale consideration of Rs.35,00,000/= from the Accused by way of D.D.'s on various dates. Similarly PW2 has also admitted the entire transaction that has taken place on 31.3.2010 i.e., on the date of the registration of the industrial shed by her husband in favour of the Accused. However the subsequent courses of events, which have taken place on 31.3.2010, are very crucial, since the same are seriously in dispute between the parties. Though the Complainant has admitted that, on 22 C.C. No.37999/2011 J 31.3.2010 a sum of Rs.5,60,327/=, Rs.9,00,000/= and another sum of Rs.9,00,000/= were transferred to his account in the Canara Bank of Bommasandra Branch, Bengaluru, which was got opened by him on the same day, as per the instructions of the Accused, on the same day, out of the said amounts, the Accused made him to transfer a sum of Rs.10,60,000/= to the owner of Sri.Maruthi Transport, Rs.8,00,000/= to Smt.T.Sharmili Appachu and Rs.2,00,000/= in his favour by way of a self cheque. This fact is denied by the Accused. However according to the Complainant, at the instance of the Accused, the said creditors of the Accused were also present in the office of the Sub-Registrar of Bommasandra on 31.3.2010 and as per the instructions of the Accused, he issued cheques in favour of the owner of the Maruthi Transport and to Smt.Sharmili Appachu. Though this has been denied by the Accused, it is pertinent to note that it is not the defence of the Accused that the said creditors are not his creditors and that the Complainant has transferred the said amounts to them in respect of any other transactions relating to them. Therefore the Accused has failed to disprove the claim of the Complainant that on the same of the registration of 23 C.C. No.37999/2011 J the sale deed, PW.1 has transferred a total amount of Rs.20,60,000/= towards the loan of the Accsued to his creditors as well as to the Accused. Though in his cross- examination, PW1 has admitted that, he has not stated about his payments made to the above two persons and a sum of Rs.2,00,000/= to the Accused in his legal notice and he has also deposed that, he has not produced documents before the Court in order to show that, the said amounts have been credited to the aforesaid persons, PW1 has voluntarily deposed that, there is entry in his pass book to show that, the aforesaid amounts have been transferred from his account to those of the aforesaid persons.
38. To substantiate the same, PW1 has produced his Bank Pass Book of the Canara Bank, Bommasandra Branch, Bengaluru, which goes to show that, the date of the opening of the said account is on 31.3.2010 and on the same day, by way of 3 DD's bearing No.969799, 969801 and 969800, a sum of Rs.5,60,327/=, Rs.9,00,000/=, Rs.9,00,000/= have been credited to his account and on the same day, by way of cheque bearing No.643952 a sum of Rs.10,60,000/= has been withdrawn and on 3.4.2010 there is a debit of a sum of 24 C.C. No.37999/2011 J Rs.2,00,000/= by way of cheque No.643955 and a sum of Rs.8,00,000/= by way of cheque No.643954 and in the withdrawal column, the name of T.Sharmili Appachu finds place. These 3 entries in the column of withdrawal dated 31.3.2010 and 3.4.2010 clearly establishes the claim of the Complainant. Though the Accused has denied any such transfer of amounts from the account of the Complainant to the account of the owner of the Maruthi Transport as well as Smt.Sharmili Appachu and a sum of Rs.2,00,000/= in his favour, the documentary evidence at Ex.P2 in respect of the said entries has not been denied by the Accused. On the other hand, the said entries substantiate the claim of the Complainant. Even though it is elicited from PW1 that, he does not know about the details of T.Sharmili Appachu, the clarification given by him is that he has paid the amounts to the said persons as per the instructions of the Accused.
39. With regard to the balance payment to the KSSIDC, when it is suggested by the learned defence counsel to the Complainant that, the Accused has made the entire payment to the KSSIDC towards the industrial shed, the answer given by PW1 is that, when the Accused have him the amount as per the agreement, he paid the 25 C.C. No.37999/2011 J amount due to the KSSIDC and only thereafter the said industrial shed came to be registered in his favour. Further when it is suggested to PW1 that, though the Accused has paid the entire amount to him as per Ex.D1, he failed to register the industrial shed in his favour, the answer given by PW1 is that, the Accused failed to pay the amount to him before 2009 as agreed upon and thereafter in the year 2010, loan was sanctioned to the Accused and thereby he paid the amount to him in 2010 and on the same day, he registered the industrial shed in his favour. Similarly PW1 has admitted the first sale agreement between them on 19.1.2007 as per Ex.D1 and the second sale agreement dated 22.1.2010 as per Ex.D2. However according to PW1 the agreement at Ex.D2 came to be executed only for the purpose of the sanctioning of the Bank loan in favour of the Accused. But according to the Accused, the sale agreement at Ex.D2 came to be executed only because of the compulsion on the part of the Complainant in demanding the excess amount from him than what was agreed to in Ex.D1.
40. It is pertinent to note that, another crucial document in this case is Ex.P3, which is an agreement dated 6.4.2010. Nowhere, the Accused has denied the 26 C.C. No.37999/2011 J execution of this agreement. However during the cross- examination of PW1, it is only suggested to him that, Ex.P3 is an agreement which has been got executed through him forcibly before the registration of the industrial shed in his favour. However with regard to this agreement, PW2 has deposed that on 31.3.2010, as per the instructions of the Accused, her husband purchased an e-Stamp paper for Rs.200/= on 1.4.2010 and thereafter when they informed about the same to the Accused, the latter undertook to execute the agreement after returning from his native place and thereafter the said agreement came to be executed by the Accused, to which even she has also signed as a witness. With regard to this document, during the course of cross-examination of PW2, it is suggested to her that, the recitals on the top of page No.2 in Ex.P3 has been erased with a whitener and it bears her signature, she has deposed that, it bears the signature of her husband as well as that of the Accused. When this erased portion is carefully observed, it go to show that, it is titled as an Agreement, which is entered into and executed on 31.3.2010 at Bengaluru by and between the Accused and the Complainant, but for the reasons best known to the parties, the same has been 27 C.C. No.37999/2011 J erased with a whitener, but the signatures of the Complainant as well as the Accused near the said erased portion has not been denied by either by the parities. Therefore the Accused cannot alone take the benefit of such erased portion of the recitals of the said document at Ex.P3. Similarly the Accused has also not denied having signed on the said agreement as a second party.
41. It is pertinent to note that, in view of the dispute between the parties about the document at Ex.P3, one more point that could be observed by the Court is that, the stamp paper has been purchased on 1.4.2010 at 12.35 p.m., and it is purchased by the complainant for which he himself has paid the stamp duty. Though during the cross-examination of PW1, the Accused taken up a vague defence that, Ex.P3, an agreement has been got executed through him by the Complainant forcibly before the registration of the industrial shed, it goes to show that, this defence version is also not tenable in view of the fact that, the stamp paper was purchased on 1.4.2010 itself and the original recital on page No.2 of the said document which is subsequently been erased with a whitener shows that, even the said agreement has been executed between the parties on 31.3.2010 itself.
28 C.C. No.37999/2011 JMoreover the recitals of this agreement clearly go to show that, the issuance of the 4 post dated cheques by the Accused in favour of the Complainant for Rs.5,00,000/= each, inclusive of the cheque in question has been clearly proved through this document. Similarly there is also a recital on page No.3 on the said agreement that, the Accused is not in a position to pay Rs.20,00,000/= to the first party i.e., the Complainant at the time of the registration of the sale deed dated 31.3.2010 before the Sub-Registrar, Attibele, Bengaluru and they have entered into the said agreement on mutual understanding as aforesaid. Thus this document clearly proves that, the issuance of the cheques by the Accused as shown in page No.3 of Ex.P3 supports the claim of the Complainant, and the same is also corroborated by the evidence of his wife Viz., PW2.
42. Now coming to the defence of the Accused that, he has issued 4 cheques to the Complainant only due to his demand for the amount after the execution of Ex.D2 is concerned and that Ex.P3 is an agreement which had been forcibly got executed through him is concerned, nothing prevented the Accused from taking appropriate action against the Complainant. In this regard there is no 29 C.C. No.37999/2011 J iota of evidence led by the Accused. Even otherwise, if the defence version of the Accused with regard to his issuance of the cheques to the Complainant is accepted, even then a serious question arises as to what was the excess amount that was allegedly demanded by the Complainant from him and what made him to issue 4 post dated cheques in favour of the Complainant. In this regard, there is no explanation forthcoming from the Accused. Further the Accused, being an educated person and a business man, could not be believed to have issued 4 post-dated cheques only because the Complainant compelled him to pay the amount after the sale agreement at Ex.D2.
43. Thus cumulative effect of the entire evidence of the Complainant which is corroborated by the evidence of PW2 clearly goes to show that, the Accused has hatched a plan in order to make wrongful gain by misusing his relationship with the Complainant. Similarly when the Complainant has admitted that, though the entire sale consideration amount was deposited to his Canara Bank account on 31.3.2010, as per the instructions of the Accused, a sum of Rs.20,60,000/= was immediately transferred from his account to that of the owner of the 30 C.C. No.37999/2011 J M/s. Maruthi Transport and to Smt.Sharmili Appachu and to the Accused respectively. In this regard the defence of the Accused in only one of the denial. In such circumstance, the burden is cast upon the Accused to discharge the claim of the Complainant. However for the reasons best known to him, the Accused has not made any efforts to disprove the said claim of the Complainant. Moreover it is not the defence of the Accused that he does not know the owner of M/s. Maruthi Transport or Ms.Sharmili Appacchu and that they are not creditors. It is also not the defence of the Accused that, the said persons might be having other financial transaction with the Complainant, by virtue of which the transactions as shown in Ex.P2 might have taken place. As a result in his attempt to rebut the case of the Complainant, the Accused has failed to do so.
44. It is further pertinent to note that, even though the Accused has alleged that, Ex.P3, which is the agreement dated 6.4.2010 was got executed by the Complainant from him forcibly, nothing prevented the Accused from challenging the same before the competent forum. Having not done so, an adverse inference is liable to be drawn against him.
31 C.C. No.37999/2011 J45. Further the Accused has solely emphasized upon the recitals of the registered Sale Deed at Ex.P1 in page No.3, wherein it has been recited that, the Complainant has received the entire sale consideration amount and has acknowledged for having received the same as full sale consideration. It is not the case of the Complainant that, he has not received the sale consideration entirely as per Ex.P1., but according to him subsequently on the same day, a sum of Rs.20,60,000/= has been transferred his account to that the of the Accused and to his creditors. On the other hand, the Complainant has proved that, though the payments shown from clauses (c to e) at page No.3 by way of 3 DD's 30.3.2010 is admitted, immediately after the registration of the industrial shed in favour of the Accused, on the same date, a sum of Rs.20,60,000/= has been transferred from his account to the accounts of the creditors of the Accused, as per the instruction of the latter. Thus the Complainant has proved this fact beyond reasonable doubt and has also proved beyond reasonable doubt that, the cheque in question is one among the 4 postdated cheques, which came to be issued by the 32 C.C. No.37999/2011 J Accused in his favour towards the repayment of the balance sale consideration of Rs.20,00,000/=.
46. No doubt it is a well settled principle of law that, it is not necessary for the Accused to enter the witness box, so as to rebut the case of the Complainant and it is sufficient for the Accused to rely upon the materials already brought on record by the Complainant. However in the present case it is seen that the Complainant has established beyond reasonable doubt that, the cheque at Ex.P4 has been issued by the Accused in his favour towards the discharge of his legal liability, towards the balance sale consideration of Rs.20,00,000/= and as such, the Accused cannot escape from his liability to pay the amount covered under the said cheque to the Complainant. Therefore this court is of the view that the defence of the Accused is not probable and reliable and sufficient to rebut the case of the Complainant.
47. Now coming to the quantum of the compensation to be awarded to the Complainant, it is pertinent to note that, the transaction between the parties is of the year 2010 and the cheque in question has been issued by the Accused in favour of the 33 C.C. No.37999/2011 J Complainant on 31.3.2010 and the Accused has made the Complainant to litigate for more than 5 years. Therefore this Court is of the opinion that, this is a fit case in which the Complainant deserves to be compensated by awarding compensation to the extent of double the amount of the cheque.
48. In this regard this Court places reliance upon the decision of the Hon'ble Apex Court in Mainuddin Abdul Sattar Shaikh Vs., Vijay D.Salvi, wherein the Hon'ble Apex court has awarded compensation to the extent of twice the cheque amount and simple interest thereon at 9% per annum to the complainant by referring to the earlier decision of the Hon'ble Apex court in R.Vijayan Vs., Baby and another, reported in AIR 2012 SC 528, wherein it has been held that:-
"The Court should, unless there are special circumstances, in all cases of conviction, uniformly exercise the power to levy fine upto twice the cheque amount (keeping in view the cheque amount and the simple interest thereon at 9% per annum as the reasonable quantum of loss) 34 C.C. No.37999/2011 J and direct payment of such amount as compensation".
49. Thus for the reasons discussed above, I proceed to pass the following:-
ORDER By exercising the power conferred u/s 265 of Cr.P.C., the accused is hereby convicted for the offence punishable u/s 138 of the Negotiable Instruments Act.
He is sentenced to pay a fine of Rs.10,10,000/- (Rupees Ten lakhs Ten Thousand only) within 30 days from today and in default of payment of fine, he shall undergo simple imprisonment for 6 (six) months.
Out of the fine amount so collected Rs.10,00,000/-(Rupees Ten Lakhs Only) is ordered to be paid to the Complainant as Compensation and the balance of Rs.10,000/- (Rupees Ten Thousand only) is ordered to be adjusted towards cost to the State exchequer..
The bail bond and surety bond of the accused stands cancelled.
Issue free copy of Judgment to the accused forthwith.35 C.C. No.37999/2011 J
(Dictated to the Stenographer, transcript thereof is computerized and printout taken by her, verified and then pronounced by me in the open Court on this the 17th day of September 2016).
(SARASWATHI.K.N), XVI Addl.CMM., Bengaluru City.
ANNEXURE
1. List of witnesses examined on behalf of the Complainant:
PW.1 : Mahadevaswmay; PW.2 : Hemavathi.
2. List of documents exhibited on behalf of the Complainant:
Ex.P-1 : Certified copy of the Sale deed;
Ex.P-2 : Bank Pass Book;
Ex.P-3 : Agreement;
Ex.P-4 : Original Cheque;
Ex.P-4(a) : Signature of the Accused;
Ex.P-5 : Bank challan;
Ex.P-6 : Bank memo;
Ex.P-7 : Copy of the Legal Notice;
Ex.P-8 : UCP receipt;
Ex.P-7(a) : Postal receipt;
Ex.P-9 : Office copy of the Complaint;
Ex.P-10 Complaint settled reply;
Ex.P-11 : Complaint.
36 C.C. No.37999/2011 J
Ex.D1 & 2 : Sale agreements.
(Marked through PW1)
3. List of witnesses examined on behalf of the Accused:
- Nil -
4. List of documents exhibited on behalf of the Accused:
- Nil -
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.37 C.C. No.37999/2011 J
17.09.2016 Judgment pronounced in the open court vide separate order.
ORDER By exercising the power conferred u/s 265 of Cr.P.C., the accused is hereby convicted for the offence punishable u/s 138 of the Negotiable Instruments Act.
He is sentenced to pay a fine of Rs.10,10,000/- (Rupees Ten lakhs Ten Thousand only) within 30 days from today and in default of payment of fine, he shall undergo simple imprisonment for 6 (six) months.
Out of the fine amount so collected Rs.10,00,000/-(Rupees Ten Lakhs Only) is ordered to be paid to the Complainant as Compensation and the balance of Rs.10,000/- (Rupees Ten Thousand only) is ordered to be adjusted towards cost to the State exchequer..
38 C.C. No.37999/2011 JThe bail bond and surety bond of the accused stands cancelled.
Issue free copy of Judgment to the accused forthwith.
(SARASWATHI.K.N), XVI Addl.,Chief Metropolitan Magistrate, Bengaluru City.