Bangalore District Court
Sri. M.A. Chowdappa vs Sri. B.R. Jadav on 10 February, 2015
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITON
MAGISTRATE, BANGALORE CITY
Dated this the 10th day of February 2015
PRESENT: SRI. NAGARAJEGOWDA.D, B.Com., LL.B.,
XXII Addl.C.M.M., Bangalore City.
JUDGMENT U/S 355 OF Cr.P.C.
Case No. : C.C No. 22037/2012
Complainant : Sri. M.A. Chowdappa,
S/o. Late Ashwathanrayana
Rao, Aged about 71 years,
R/at; No. 17, 17th Cross,
J.P. Nagar, 5th Phase,
Bangalore-560078.
(By Sri. S.Basavaraj., Adv.)
Accused : Sri. B.R. Jadav,
S/o. Late Subboji Rao,
Aged about 52 years,
R/at. No. 40/301,
Raghavendra Residency,
17th Cross,12th Main,
J.P. Nagar, 5th Phase,
Bangalore.560078.
(By Sri. R.H.Deshpande, Adv.)
Date of Institution : 04/06/2012
Offence complained of : U/s 138 of N.I.Act.
Plea of the accused : Pleaded not guilty.
Final Order : Accused is convicted.
Date of Order : 10.02.2015.
2 C.C.No. 22037/2012
The complainant filed the private complaint u/s 200 of
Cr.P.C alleging that, the accused person has committed an offence
punishable u/s 138 of N.I.Act.
2. As per Ex.P8 complaint, that the accused approached the
complainant in the month of February 2010 and requested him to
lend a loan amount of Rs. 40,00,000/- for the purpose of formation
of layout/residential sites. In pursuance of the request made by
the accused, the complainant had paid a sum of Rs. 40,00,000/-
in the following cheques:-
1) Rs. 15,00,000/- by way of cheque in favour of accused bearing
No. 814924 dt: 20/2/2010 drawn on State Bank of India, J.P.
Nagar Ist phase, Banzgalore 78.
2) Rs. 15,00,000/- by way of cheque in favour of accused bearing
No. 814925 dt: 20/2/2010 drawn on State Bank of India, J.P.
Nagar Ist phase, Bangalore 78.
3) Rs. 10,00,000/- by way of cheque in favour of accused bearing
No. 814926 dt: 20/2/2010 drawn on State Bank of India, J.P.
Nagar Ist phase, Bangalore 78.
And the said cheques have been encashed by the accused.
3 C.C.No. 22037/2012
At the time of availing the said loan, the accused had
promised the complainant to return the said amount with accrued
interest at the rate of 24 % P.A. within a short time. After demand
accused did not repaid the said loan as promised and also he has
not paid the accrued interest. Accused had made number of
conferences to settle the issues. Unfortunately, conferences held
between them could not be arrive at amicably and the accused had
made number of lame excuses for delay in repayment of loan and
interest either fully or partly. Later on, the accused had once
again promised to arrange for repayment of said amount by
25/12/2011 and to confirm his promise he had also issued two
post dated cheques dt: 25/12/2011 bearing No. 108185 drawn on
M/s. Axis Bank Ltd., Vijayanagar, Bangalore-40 towards the
principal loan amount and another Post dated cheque for Rs.
15,00,000/- dt: 15/4/2012 bearing No. 124354 drawn on M/s.
IndusInd bank, Jayanagar 5th block branch, Bangalore towards
interest part as agreed by him and assured the complainant to
present said cheques for collection, same will be honoured by
calculating interest at the rate of 2% PA were on upper side. The
complainant was not allowed to present the said cheques for
encashment as on the date of drawings of cheque stating that the
funds were not arranged by him yet, said cheques could not be
4 C.C.No. 22037/2012
presented by the complainant on the dates of drawings., accused
also requested the complainant to withhold the said cheques
without presenting both cheques for realization, till the finds were
arranged by them. Accused had been evading either to meet the
complainant or to react positively without arranging the funds.
Therefore, the complainant had no other alternative than to
present both the cheques for realization through his Bankers M/s.
State Bank of India. J.P.Nagar Branch, Bangalore, said cheques
returned unpaid vide cheque returning memo's dt: 4/5/2012 with
shara ''Insufficient Funds', Thereafterwards the complainant got
issued legal notice to the accused on 12/5/2012 demanding
payment of cheque amount, notice sent by RPAD returned with
shara 'Not claimed' on 16/5/2012. The service of demand notice
is deemed to have been served on accused. Inspite of notice,
accused did not reply or comply the legal notice. Thus, the
accused has committed an offence punishable under Sec. 138 of
N.I. Act and punish the accused in accordance with law by
awarding maximum punishment in the ends of justice and
equity.
3. After presenting this case, this court has taken
cognizance of the offence and after recording the sworn statement
5 C.C.No. 22037/2012
of the complainant's side, this court registered the criminal case
against the accused alleging that, he has committed an offence
punishable U/s 138 of N.I.Act. Summons issued to the accused.
The same is served upon the accused. The accused appeared
through his counsel, enlarged on bail and he denied the entire case
of the complainant at the time of recording his plea of accusation
and case to be tried.
4. In support of the case of the complainant, the
complainant adduced his evidence as PW.1 and got marked Ex.P1
to P10 and at the time of cross-examination of DW-1 got marked
Ex.P-11 and P12 and this PW-1 has been fully cross-examined by
the accused counsel and thus, complainant closed his side
evidence.
5. Thereafter, the accused person examined under Sec. 313
Cr.P.C, in which, he totally denied the entire case of complainant.
In support of his denial, he filed affidavit by way of chief
examination of DW-1, same is not objected by the complainant and
got marked Ex. D-1 and this DW 1 has been fully cross-examined
by the complainant counsel and thus accused closed his side of
evidence.
6 C.C.No. 22037/2012
6. I have heard the arguments of complainant counsel. The
learned counsel argued that inspite of issuance of legal notice, the
notice has not claimed by accused intentionally and he failed to
pay the cheque amount, but he admitted that Ex. P1 and P2
cheques belongs to his Bank account and amount mentioned in
the cheques. But he denied that the signatures found on the
cheques not belongs to him. He has taken untenable contention
stating that the alleged cheque has been issued as security. That
till today accused has not taken any steps for taking back the
alleged cheques in question. Hence, the accused failed to give
rebuttal evidence to the case of complainant and prays to convict
the accused in accordance with law.
7. In support of case of accused, the learned counsel for the
accused vehemently argued before this court that as per Ex.P-9
Memo of understanding between the parties, the parties ought to
have approach the Civil court for their remedy, but without
approaching the Civil court, the complainant seeking remedy
under Sec. 138 of N.I. Act is against law, the legal notice has not
served to this accused and this accused has no opportunity to give
reply to the notice issued by the complainant. In support of his
7 C.C.No. 22037/2012
contention the learned counsel for accused relied on the following
decisions: -
1) 2002(2) AIR Karnataka ® 649
2) 2004 Cri.L.J. 4107.
3) 2009 Cri.L.J. 3777
Accordingly, the accused counsel prays for acquit the
accused in accordance with law.
8. On the basis of the aforesaid facts and circumstances, the
following points arise for my consideration:
1) Whether the complainant proves that, beyond all
reasonable doubt for repayment of the loan
advanced by the complainant, the accused
issued 2 (Two) post cheques bearing No. 108185
dt: 25/12/2011 drawn on Axis Bank Ltd.,
Vijayanagar, Bangalore-78. for a sum of Rs.
40,00,000 and another cheque for Rs.
15,00,000/- dt: 15/4/2012 bearing No. 124354
drawn on M/s. IndusInd Bank, Jayanagar 5th
Block Branch, Bangalore respectively, the same
are dishonoured due to 'Insufficient funds' and
in spite of issuance of legal notice, the accused
did not comply or reply to the notice and thus,
he has committed an offence punishable u/s
138 of N.I.Act?
2) What Order?
8 C.C.No. 22037/2012
9. My answer to the above points are as follows:
1) In the Affirmative.
2) As per final Order,
For the following:
REASONS
10. POINT NO.1: In support of the case of the complainant,
the complainant adduced his oral evidence as PW.1 filed by way of
affidavit, in which, he reiterated the complaint contention and got
marked Ex.P1 and P2 Cheques alleged to be issued by the accused
and identified the signatures of the accused as Ex.P1.a. and P-2.a.
but these issuance of cheque in favour of the complainant for legal
liability has been disputed by the accused and at the time of
leading defence evidence as DW-1 filed affidavit by way of chief
examination, same has not been objected by complainant, in which
he contended that he was absolute owner of Flat No. 007 situated
in the ground floor of the building constructed known as 'Divya
Panchami Apartments', the complainant approached him for
purchase of flat No. 007, the sale consideration was fixed at Rs.
68,06,000/-. As on the date of sale deed katha in respect of the
Flat No. 007 was not in his name and hence the complainant
insisted upon to furnish security for the completion of the sale
9 C.C.No. 22037/2012
transaction and also getting katha transferred in the name of
complainant. Hence, he issued two blank cheques to the
complainant as security for the purpose of completion of the sale
transaction. The complainant was issued 3 cheques for the
remaining balance sale consideration for purchase of the said flat
2 cheques for Rs. 15,00,000/- each and another cheque for Rs.
10,00,000/-. The complainant insisted upon him to execute
registered sale deed in his favour for a sum of Rs. 28,06,000/- as
Sub-registrar value, in order to avoid registration fee has not
mentioned the entire sale consideration amount etc., Further he
has stated that the legal notice not received by this accused and
with the help of fabricated documents, the complainant has filed
this case etc., In this regard at the time of arguments on merits
accused counsel mainly argued that on the basis of Ex.P-9
Memorandum of understanding taken between complainant and
accused. The offence punishable under Sec. 138 does not attract
it only attract Civil nature and as per terms of Memorandum of
understanding the accused undertaken to formulate preferably
3000 sites out of 50 acres etc., and also it was admitted accused
agreed to pay interest of 24 % PA to the loan amount of Rs. 40
lakhs given by complainant etc., But these things are not stated
in his chief-examination. Except he has stated that except Ex.D-1
10 C.C.No. 22037/2012
saledeed for the purpose of security upon the insistence of
complainant, issued Ex.P-1 and P2 cheques. Hence, all these
aspects accused taken duel contention without giving rebuttal
evidence to the case of complainant. Further got marked Ex.P3
and P4 are the endorsement issued by the Bankers stating that
Ex.P1 and P2 cheques dishonoured due to 'Insufficient funds'.
Ex. P-5 is the copy of legal notice. The notice has been sent to the
accused as per Ex.P-6 the postal receipt. Ex.P7 is the Postal cover
sent to accused by RPAD is returned as 'Not claimed. Upon the
addressed mentioned in the postal cover accused had admitted
that the said address belongs to him, but has taken untenable
contention that said legal notice did not served on him etc., even
on this aspect also accused has also not approached this court
with clean hands. Further got marked Ex.P-8 complaint in
dispute. After cross-examination of PW-1, complainant lead
further evidence got marked Ex.P9, memorandum of
understanding taken between the complainant and accused in
which for formation of sites both are jointly agreed to develop the
same and for that the complainant invested Rs. 40 lakhs as per
his account and after formation of sites the accused has agreed to
repay the said amount with interest. Ex. P10 is the agreement of
settlement taken between the complainant and accused this E-
11 C.C.No. 22037/2012
stamp certificate issued dt: 1/2/2012, but same was taken on
19/2/2010 in which, the accused undertaken to repay Rs. 40
lakhs to complainant, but this agreement has been disputed by the
accused but signature found on accused on this document are
similar to the signature found on the cheques.
11. Further at the time of cross-examination of DW-1 got
marked Ex.P11 GPA alleged to be executed by one Venkatarama in
favour of this accused for registering site in favour of complainant
with respect of Flat No. 007. This execution of GPA is not disputed
by accused. Ex.P-12 is the receipt having issued by accused for
repayment of loan amount and identified signature of accused as
Ex.P-12.a. This issuance of receipt has been disputed by accused
stating that he has not executed any receipt, but signature found
on receipt clearly established that the same is belongs to accused,
but accused counsel contended that the written contents of this
receipt is subsequently inserted by complainant to suit his case
etc.,
12. In support of denial case of accused, the accused
counsel cross-examination PW-1. In the cross-examination it is
elicited that he has not seen where the accused going to develop
12 C.C.No. 22037/2012
the land and he has stated that in order to sell the Flat No. 007 the
accused got GPA telling that he is the absolute owner of said flat
and also admitted that this accused has got agreement to sell all
the said flat to complainant and also it is admitted that at the time
of registering sale deed it was fixed Rs. 28,06,000/- except this
amount given to show that the said flat has been fixed to Rs. 60
lakhs and odd and he has no documentary evidence. Further it is
admitted that after Ex,.D1 sale deed alleged in question on
subsequent dates and the amounts as per complainant Rs. 40
lakhs he paid in his house to accused in his presence of his friend
Sridhar and the said Sridhar has witness to the sale deed and the
alleged cheques are issued for the purpose of security, but the
same has been denied by him stating said transaction is different
from present cheque transaction etc., Further he has not at all got
so much of amount with complainant. It is elicited these things in
his further cross-examination he was working as a communication
advisor in the Ministry of communication at Delhi and in the year
2000 he retired from service. Afterwards he is doing consultant
work in an Electronic company and at that time of working in
Delhi, he was getting salary of Rs. 40 lakhs and while he was
working at Bangalore he getting salary of Rs. 50,000/- PM and he
is an income tax assessee and in his income tax returns he
13 C.C.No. 22037/2012
mentioned about the sale deed. But the amount of Rs. 40 lakhs is
not shown in his income tax returns and the amount given to
accused is kept in his house from the last 3 months and in order
to show that he has got so much of money with him, he has no
objection to produce his Bank statement. In this regard when the
case posted for reply arguments of the complainant side the
complainant counsel filed an application under Sec. 311 of Cr.P.C.
seeking permission to production of documentary evidence i.e, his
Pass book, same is seriously objected by accused counsel. After
contest this court was rejected said application stating that it
amounts to abuse to process of court, however Pass book and also
certified copy of the absolute sale deed produced are in record. In
the pass book an amount of Rs. 40 lakhs is passed over to accused
account as clearly mentioned these things also admitted by
accused at the time of his cross-examination. Hence, whatever all
the contentions taken by accused will not corroborate his case,
but it is helpful to case of complainant to prove that the
complainant has got substantial amount with him and in the
further cross-examination of PW-1, except denial to the case of
complainant nothing has been produced to show that the accused
did not received any amount from the complainant and for
discharge of legal liability he issued Ex.P-1 and P2 cheques same
14 C.C.No. 22037/2012
is dishonoured. The legal notice sent intimating dishonour of
cheques was duly served on accused, but he taken untenable
contention without giving corroborative evidence.
13. On the basis of the cross-examination of PW-1 coupled
with arguments addressed by complainant counsel are clearly
established their case to prove that accused has issued cheques in
question for discharge of legal liability same are dishonoured due
to 'Insufficient funds'. Insptie of issuance of legal notice for
dishonour of cheque, though notice is issued to accused on his
residential address, but intentionally he did not claim to take
notice, for that purpose postal authority has clearly mentioned the
shara 'Not claimed'. Inspite of accused taken untenable contention
that he did not received any legal notice from the complainant etc.,
In support of denial case of accused, he adduced his oral evidence
as DW-1 in which he has taken untenable contention that alleged
cheque in question issued as security at the time of purchasing of
flat as per ExD1 sale deed, but at the time of cross-examination of
PW-1 and also addressing arguments on merits accused counsel
taken untenable contention, hence the accused has not
approached this court with clean hands. In the cross-examination
of DW-1 he clearly admitted that the cheques stated in the
15 C.C.No. 22037/2012
complaint are belongs to his Bank account and also identified the
signatures found on the alleged cheques are belongs to this
accused, but the contents of cheque are not belongs to him.
Except denial to the case of complainants contention accused has
not given rebuttal evidence to the case of complainant. In support
of denial case of accused the learned counsel for accused
vehemently argued before this court that as per Ex.P9
Memorandum of understanding, the complainant has to
approach the Civil court, but he filed this case seeking remedy
under Sec. 138 of NI Act does not attract for consideration.
14. In support of his contention he relied on the following
decisions;-
1) 2002 (2) AIR Karnataka at 649 between T.T.Naveen
Kumar. .Vs. B. Somegowda, wherein it is held:
Negotiable instrument Act( 26 of 1881 S. 138- "Dishonour of
cheque- Legally enforceable debt- Agreement to sell property-
Complainant received two cheques one for discharge of his liability
and another as consideration to sell his property to accused-
Complainant failed to honour his undertaking to sell his property
to accused- On presentment of cheque issued for agreement to sell
16 C.C.No. 22037/2012
property, cheque was dishonoured- Transaction between accused
and claimant was of Civil nature and cheque issued with respect to
agreement to sell was not issued in discharge of any legal liability-
Acquittal of accused proper.
2) 2004 Cri.L.J. 4107. Nagishetty Nagaiah .Vs. State of A.P.
and another. wherein it is held:
Negotiable instrument Act( 26 of 1881 S.139, 138-
"Dishonour of cheque-Presumption that cheque was issued
towards 'Legally enforceable debt'- When available- Amount
allegedly due from accused in business not proved - complainant
did not file any account books- No income tax report or audit book
placed before court to construe that there was any legally
enforceable debt- It cannot be said that factual basis for raising
presumption had been established- complainant can be said have
failed to discharge initial burden that there was legally enforceable
debt- Dismissal of complaint-Proper.
3) 2009 CRI.L.J 3777 between Sanjay Mishra vs.
Ms.Kanishka Kapoor @ Nikki and another, wherein it is held:
Negotiable instrument Act( 26 of 1881 S. 138- "Dishonour of
cheque- -Presumption as to legally enforceable debt - Rebuttal of -
17 C.C.No. 22037/2012
Amount advanced by complainant to accused was large amount
not repayable within few months - Failure by complainant to
disclose the amount in his Income-Tax Return or Books of
Accounts - Sufficient to rebut presumption under S.139."
15. On the basis of the afore said decisions coupled with
defence taken by the accused are not squarely applicable to the
case of accused that the alleged transaction between the
complainant and accused it is purely attracts civil nature. In the
circumstances, accused has not approached this court with clean
hands. The complainant is established his case beyond all
reasonable doubt. The accused shall pay interest on the amount
obtained from complainant with accrued simple rate of interest at
6% PA. Hence, Accused is liable entitled for conviction as per law.
Accordingly, I answer point No.1 in Affirmative.
16. POINT NO. 2: For the above said reasons, I proceed to
pass the following:
ORDER
Acting u/s 255(2) of Cr.P.C., the accused is convicted for the offence punishable u/s 138 of N.I.Act and sentenced to pay fine of Rs. 40,05,000/- (Forty lakhs five thousand only).
18 C.C.No. 22037/2012If fine is realized, pay a sum of Rs. 40,00,000/- (Forty lakhs) to the complainant as compensation, together with accrued interest at 6% P.A. from the date of cheque till the realization of entire amount, the same shall be paid to him within the period of 30 days.
The rest of the amount Rs. 5,000/- (Five thousand only) is ordered to be adjusted to the State Exchequer.
In default of payment of this compensation amount, the accused shall undergo simple imprisonment for Two (2) year.
Office is directed to furnish the copy of this Judgment at free of cost to the accused (Dictated to the judgment writer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 10th day of February 2015) (NAGARAJEGOWDA.D) XXII Addl. Chief Metropolitan Magistrate, Bangalore City.
*** ANNEXURE Witnesses examined for the Complainant:
PW.1 M. A. Chowdappa.19 C.C.No. 22037/2012
Witness examined for the accused:
DW1. B. R. Jadav.
List of Documents marked for the Complainant: Ex.P1 & P2. 2 Cheques Ex.P1.a.
& P2.a. 2 Signature of accused Ex.P3 & 4. 2 Endorsement Ex.P5 . Legal notice Ex.P6. Postal receipt. Ex.P7. Postal cover. Ex.P8. Complaint EX.P9. Memorandum of Understanding. Dt: 20/2/2010 EX.P10. Agreement of settlement. Dt: 19/2/2010. Ex.P11. GPA Ex.P12. Advance agreement. Ex.P.12.a. 2 Signature of accused List of Documents marked for the accused: Ex.D1. Certified copy of the Sale deed XXII ACMM, Bangalore.20 C.C.No. 22037/2012
10.02.2015 Compt.
Accd.
For Judgment Judgment pronounced in the open court (vide separate order with the following operative portion Acting u/s 255(2) of Cr.P.C., the accused is convicted for the offence punishable u/s 138 of N.I.Act and sentenced to pay fine of Rs. 40,05,000/- (Forty lakhs five thousand only).
If fine is realized, pay a sum of Rs. 40,00,000/- (Forty lakhs) to the complainant as compensation, 21 C.C.No. 22037/2012 together with accrued interest at 6% P.A. from the date of cheque till the realization of entire amount, the same shall be paid to him within the period of 30 days.
The rest of the amount Rs. 5,000/- (Five thousand only) is ordered to be adjusted to the State Exchequer.
In default of payment of this compensation amount, the accused shall undergo simple imprisonment for Two (2) year.
Office is directed to furnish the copy of this Judgment at free of cost to the accused XXII ACMM, Bangalore.