Bangalore District Court
Mrs.Kaladevi vs Mr.Dhan Raj. P on 28 February, 2022
IN THE COURT OF XXXIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, MAYO HALL UNIT,
BENGALURU
: PRESENT :
M.Vijay, BAL, LLB.
XXXIII ADDL.CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED IS THE 28TH DAY OF FEBRUARY, 2022.
C.C.No.50386/2019
COMPLAINANT : Mrs.Kaladevi
D/o Late. D.J.Dorairaj,
Aged about 45 years,
R/at No.517, 1st Cross,
Daddi Muniswamy Road,
Naganpalya Maruthi Sevanagar Post,
Bangalore560033.
.Vs.
ACCUSED : Mr.Dhan Raj. P
son of Late Pushparaj,
Aged about 61 years,
R/at No.6, 4th Cross,
Munithyappa layout,
St Thomas Town Post,
Linngarajapuram,
Bangalore560084.
JUDGMENT
The complainant has filed this private complaint U/s.200 of Cr.P.C., against the accused for the offence punishable U/s 138 of Negotiable Instrument Act.
2C.C.No.50386/2019 The factual matrix of the case are as follows:
2. The complainant averred that, she and accused were in live in relation based on this acquaintance, the accused sought financial help of Rs.5,00,000/ on 01.06.2017 from her, so considering the confidence and trust on the accused, she allegedly paid sum of Rs.5,00,000/ on 01.06.2017, on it receipt, the accused promised her to repay it within six months ie., in the month of December 2017. However, after completion of six months, when she approached the accused in the month of December 2017 for repayment of loan amount, the accused allegedly issued cheque bearing No.474622 dated 03.01.2018 drawn on SBI, Airport Road, Bangalore, for sum of Rs.5,00,000/ with an assurance that, the cheque would be honored. Accordingly, she claims to have presented it, through her banker Canara Bank, Vivekanandanagar Branch, Bangalore, but it was dishonored for "payment stopped by the drawer" as per memo dated 04.01.2018., same was informed to the accused, but, the accused had intentionally deliberately not made arrangements for encashment, as such having no alternative, he was constrained to issue legal notice dated 27.09.2018 calling upon the accused to pay the 3 C.C.No.50386/2019 cheque amount, same was served on the accused on 31.01.2018, but, the accused instead of paying the cheque amount has issued untenable reply by denying the existence of legally enforceable debt. Accordingly, alleged that, the accused has committed an o/p/u/s.138 of NI.Act.
3. The court after holding inquiry delay in filing of complaint was condoned as per order dated 26.10.2018, thereafter, the court took cognizance for an o/p/u/s.138 of NI.Act. Based on the sworn statement affidavit, original documents filed by the complainant, by following the principle laid down by the Hon'ble Apex Court in Indian Bank Association V/s Union of India reported in 2014 AIR SCW 3462 and a criminal case was ordered to be registered against the accused for an o/p/u/s.138 of N.I, the accused was enlarged on court bail, substance of plea recorded, accused pleaded not guilty and claims to be tried.
4. The complainant in order to prove her case got examined herself as P.W.1 and placed reliance upon Exs.P1 to P6. On closure of complaint side evidence, the accused was examined U/s 313 Cr.P.C., and denied 4 C.C.No.50386/2019 incriminating materials on record, the accused got examined herself as D.W.1 and placed reliance on Ex.D.1 to D.7.
5. Heard both the sides.
6. Perused the materials on record, the following points arises for my determination.
1. Whether the complaint proves beyond all reasonable doubt that, accused has committed an o/p/u/s 138 of Negotiable Instruments Act?"
2. What order?
7. My findings to the above points are follows;
Point No1: In the Affirmative Point No.2: As per final order for forgoing;
REASONS
8. Point No.1: The complainant claims to had livein relationship with accused, based on this acquaintance, the accused borrowed Rs.5,00,000/ on 01.06.2017 towards discharge of an hand loan, the accused allegedly issued the cheque bearing No.474622 dated 03.01.2018 for sum of Rs.5,00,000/, but on it presentation cheque came to be dishonored "payment stopped by the drawer"
5C.C.No.50386/2019 despite service of demand notice, the accused by denying the transaction issued untenable reply, hence this complaint.
9. Per contra, the accused denied the alleged borrowal of Rs.5,00,000/ as well as issuance of alleged cheque in question towards discharge of legally enforceable debt. However, he does not dispute compliance of section 138 A to C, acquaintance with complainant as family friend, but claims that, he had lost his cheque book, in this regard, he lodged police complaint as well as intimated to his banker for stop payment, thereafter, the complainant presented Ex.D1 cheque for Rs.35,00,000/, then he came to know that, complainant has misused his lost cheques, accordingly claims to be an innocent.
10. Considering the rival contentions, it is crystal clear that, the alleged loan transaction ie., existence of legally enforceable debt as well as issuance of cheque in question has been challenged by the accused. Accordingly, the initial burden is on the complainant to prove it.
11. The complainant in order to prove loan transaction, herself got examined as P.W.1, she reiterated complainant averments in her evidence affidavit and 6 C.C.No.50386/2019 placed reliance on cheque, demand notice, reply notice, the accused though denied the loan transaction, but admitted Ex.P.1 and signature on Ex.P1 is of him. So, the complainant has undoubtedly proved Ex.P.1 cheque Ex.P.1(a) signature is of the accused, accordingly, mandatory presumption U/s 139 R/w 118A of NI.Act, has to be drawn in favour of the complainant that, Ex.P.1 has been issued towards discharge of legally enforceable debt, as such, it is worth to note, the decision of the Hon'ble Apex Court in Rangappa V/s Mohan i.e., (2010) 8 SCC 441 that;
"Once the cheque relates to the account of the accused and he accept and admit the signature on the said cheque, then initial presumption as contemplated under Sec.139 of N.I. Act has to be raised by the court in favour of the complainant. The presumption referred to in Sec.139 of N.I.Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption."7
C.C.No.50386/2019
12. So, accordingly, the initial presumption has been drawn in favour of the complainant. However, the presumption is rebutable in nature, as such, the onus is on the accused to rebut that, claimed debt did not exist and lost cheque has been misused by the complainant.
13. The accused in order to discharge the onus got examined himself as D.W.1 and placed reliance on Ex.D.1 c/c of cheque confronted to P.W.1 bank loan documents, house warming invitation, c/c of police complaint dated 25.11.2017 and its withdrawal on 30.11.2017, statement and one John Moses, vehemently contended that, when he was on the verge of retirement, he used carry his cheque book, out of that, there were 6 7 signed blank cheques, which were required to issue for mutual funds, LIC, he used to visit the provision store of complainant twice in a day to have coffee and to purchase cigarette, but his cheques were found missing, accordingly, he lodged police complaint as well as issued stop payment instruction to his banker, later on, complainant presented Ex.D1 cheque for collection of Rs.35,00,000/, then, he could not identity who has presented, but later, Ex.P.1 presented by the 8 C.C.No.50386/2019 complainant, than he came to know through legal notice sent by the complainant about presentation of Ex.P.1 cheque and the complainant encashed Rs.10,00,000/ through cheques on 03.08.2017 and 04.08.2017, accordingly, he lodged Ex.D5 police complaint on 25.11.2017 against complainant and one John Moses. However, the said complaint had withdrawn as per Ex.P6, as the John Moses undertaken to pay for Rs.7,00,000/ and complainant has taken Rs.3,00,000/ as commission out of Rs.10,00,000/, allegedly by withdrawn by the complainant, accordingly he denied the alleged loan transaction, even he availed loan from bank as Ex.D2 and D3, as such, there was no need to avail loan from the complainant as claimed.
14. However, the accused not produced the statement of account or the requisition issued to his banker for stop payment, which are crucial material to consider the defence of the accused because it is well settled law, as held by the Honble Apex Court in M/s MMTC Ltd., and another V/S Medchil Chemicals and Pharma Pvt. Ltd., held that, 9 C.C.No.50386/2019 "even though the cheque dishonored by reason of stop payment instruction an offence under section 138 could still be made out. It is held that, the presumption U/S 139 is attracted in such a case also the authority shows that, even in the cheque is dishonored by reason of stop payment instruction by virtue Sec.139 the court as to presume that, the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Offcourse this is a rebuttable presumption. The accused can thus show that the stop payment instruction 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 cheque at the time of presentation the cheque for encashment at the drawer bank and that stop payment notice had been issued because of other valid causes including that there was no existing that or liability had been issued because of other valid causs including that there was no existing debt or liability at the time of presentation of cheque for encashment, then an o/p/u/s 138 would not be made out".
15. Where it is held that, before considering the defence by the accused, when the accused cheque was dishonored 10 C.C.No.50386/2019 for "payment stopped by drawer", accused firstly, must prove sufficient balance in his account as on the date of cheque in question, and stop payment requisition, but, he failed to produce the statement of account as well as requisition for stop payment, which are relevant to consider the defense of accused, for what reason he issued stop payment, as the accused in Ex.D5 police complaint, specified that, "25.07.2017 ರರದದ ನನನನದನ ಸರಜಜ 6.30 ಗರಟಜಗಜ ಅರಗಡ ಹತತರ ಯಯರಜರರ ಗಲಯಟಜ ಮಯಡದತತದಯದರಜ ಬನನ ಎರದದ ಕರಜದರದ ನಯನದ ಅಲಲಗಜ ಹಜರರದಜನದ, ಜಯನನ ಮರಸಜಸನಗಜ ಕರಜ ಮಯಡ ಕಲಯದಜರವಯವರದ ಅವನ ಜಜರತಜಯಲಲ 45 ಜನ ಬರದರದ, ಮಯರಸಜಸನ ಮತದತ ಕಲಯದಜರವ ನನಗಜ ಅರಗಡ ಒಳಗಡಜಗಜ ಕರಜದದಕಜರರಡದ ಹಜರರಗ ಖಯಲ ಬಯರಡನ ಪಜರಪರಗಜ ಸಹ ತಜಗಜದದಕಜರರಡರದ ಹಯಗರ ನನನನ ಬಯಬಗನಲಲದದ 3 ಖಯಲ ಚಜಕದಕಗಳಗಜ ಸಹ ತಜಗಜದದಕಜರರಡರದ ಇದದ ಶರರಟಗಜ ಬಜರಕಯಗದಜ ಅರತ ಹಜರಳ ತಜಗಜದದಕಜರರಡದ 2.08.2017 ರರದದ ರರ.6,50,000/ ಮತದತ ದನಯರಕ 03.08.2017 ರರದದ ರರ.3,50,000/ ಹಣ ಡಯಡ ಆಗರದತತದಜ ಕಲಯದಜರವ ಮತದತ ಜಯನನ ಮಯರಸಸನ ಕರಜಯಸ ವಚಯರಣಜ ಮಯಡ ಹಣ 11 C.C.No.50386/2019 ಕಜರಡಸಕಜರಡಬಜರಕಯಗ ಕಜರರರದತಜತರನಜ.
ಕಲಯದಜರವಯವರ ಬಳ ಚಜಕದಕ ಬದಕದಕ ಸಹ ಇದಜ ಅದನದನ ಸಹ ಕಜರಡಸಕಜರಡಬಜರಕಯಗದತತದಜಜ"
16. as per it, two cheque out of three cheques encashed by John Moses and one cheque Ex.D1 confronted, but Ex.D7 clearly discloses, the said transaction is different than the present claim on the statement of John Moses clearly discloses that, " ಶಡರಮತ ಕಲಯದಜರವಯವರ ಒರದದ ಪಯಡಪಟರಯನದನ ಮಯರಯಟ ಮಯಡ ಕಜರಡದವರತಜ ಅವರದ ಕಜರಳದದದ, ಮಯರಯಟ ಮಯಡ ಕಜರಟಟರಜ ನನಗಜ ಎಷದಟ ಕಮರಷನನ ಕಜರಡದತತರರಯ ಎರದದ ಕಜರಳದದಕಜಕ ರರ.10 ಲಕಕ ಹಣ ನರಡದತಯತರಜ ಎರದದ ಒಪಪಕಜರರಡದ ಸದರ ಕಲಯದಜರವಯವರಗಜ ತದರಬಯ ಪರಚಯವದದ ಪಯಯರದದದಯರರಯದ ಶಡರದನರಯಜನ ರವರದ ಜಮರನದ ಕಜರಟದಟ ಅವರ ಚಜಕದಕಗಳನದನ ನನಗಜ ನರಡದದದ ಅದರರದ ರರ.10 ಲಕಕ ಪಡಜದರದತಯತರಜ".
17. So, there is no reference about lost of his cheque book and it is with respect to property, it is different transaction and said complainant was closed as per Ex.D6.
18. Further, Ex.D.5 is clearly discloses that, cheque book was not lost, but, the accused specifically stated 12 C.C.No.50386/2019 "ಕಲಯದಜರವಯವರ ಬಳ ಚಜಕನ ಬದಕನ ಸಹ ಇದಜ ಅದನದನ ಕಜರಡಸಕಜರಡ"
but, in contrary subsequently, ie., Ex.P.6 in his reply, the accused contended his cheque leaves/ book lost while he was carrying to his bank.
19. Besides that, although, reply notice issued subsequently to the Ex.D5 and D6, there is no reference about possession and cheque book by the complainant,with respect Ex.D1. and John Moses as well as Ex.D5 and D6, which establishes the fact that, the cheque book was not lost, and it is quite contrary to each other, therefore, defence of the accused without producing requisition issued for bank for stop payment, copies of mutual funds and LIC, he used to carry the cheque book on the verge of his retirement and its lost, that has been misused by the complainant not acceptable as the very document of accused clearly falsifies the defense that, accused had claimed his cheque book with the complainant before police, what legal action he has taken to take back his cheque book from complainant, even though, he approached for it on 25.11.2017 and its withdrawal. So, in view of major contradiction in consistency, merely because confrontation of Ex.D1 from 13 C.C.No.50386/2019 P.W.1 which does not ipso facto ground that, the debt claimed by the complainant did not exist as the Ex.D1 as per Ex.D6 was obtained for property along with other two cheques, which were encashed by the John Moses, out of three cheques allegedly obtained on 25.07.2017 is different transaction with respect to her property and no action was admittedly taken against Ex.D1, which does not mean that, Ex.D1 was also lost cheque, when there is no explanation from the side of accused about another cheque out of three cheques obtained from him by the complainant and John Moses on 25.07.2017, even the accused not examined the John Moses to prove his allegation, as such it cannot be hold that, the complainant has misused Ex.D1 as well as Ex.P1 of his lost cheque, when his own document speaks otherwise to his defense about lost.
20. Further, in contrary to his defense, the accused during the course of cross examination, it has been suggested to P.W.1 that, the complainant has stolen the cheque from the bag of accused that was kept in the shop of the complainant and presented for Rs.35,00,000/, if so, when did come to his knowledge about alleged 14 C.C.No.50386/2019 stolen of cheque. However, though the contrary is elicited by the complainant from accused by D.W.1 in the cross examination that, "total 100 cheque leaves belongs to him were misused, but, admittedly accused has not produced the details of his misplaced 100 cheque leaves soon after the complainant produced Ex.D1, he came to know that, the complainant had stolen his cheque, but admittedly not lodged any police complaint against the complainant. However, he claims that, he issued stop payment instruction to his banker, but not produced crucial and relevant document ie., his requisition for stop payment by citing the reason of stolen by the complainant, so, accused withhold the document to produce and also not lodged complaint about stolen in absence of that, the alleged stolen of cheque, lost of 100 cheque leaves cannot be acceptable.
21. Further, the accused does not denied the financial capacity of complainant to advance the sum of Rs.5,00,000/ as she is admittedly an earning women, owns provisions shop and the Ex.D2 and D3 cheques, so the accused clearly further establishes the fact that, he availed loan from bank to construct the house, which 15 C.C.No.50386/2019 strengthens the case of complainant that, amount was badly required for the accused, for further construction. Therefore, all these circumstances clearly establishes the fact that, the accused borrowed Rs.5,00,000/ from the accused on 01.06.2017 and issued Ex.P.1 cheque towards discharge of loan, as the accused failed establishes his defense about lost, stolen and cheque by the complainant which clearly goes to show that, Ex.P.1 cheque issued by the accused for consideration and it has not been rebutted.
22. Therefore, considering the entire materials on record, the accused although denied the existence of legally enforceable debt i.e., loan transaction, his cheques were stolen, lost, that has been misused by the complainant, but, failed to prove where his cheques exactly were lost, how many cheques were he lost, what is particulars of the same, had he taken any action for lost of his cheques by informing the police about lost of his cheques, with particulars of cheque, as he is not layman he was bank employee had every knowledge about lost signed blank cheque, but admittedly not lodged any police complaint, even, he has not issued stop payment 16 C.C.No.50386/2019 instruction for lost of his cheques, but he claimed to have issued stop payment instruction by allegedly stolen of cheque which is contrary to his own document Ex.D.5 and not produced, even the copy of instruction given to his banker for stop payment, which is crucial and relevant document for to consider his defense as there is contradictory in the defense of the accused that, in one breath he claimed that, his 100 cheque leaves were lost in Ex.P6, but police complaint not lodged with particular, in another breath, he claims that, his cheques were stolen, which is quite contrary to Ex.D.5 and Ex.P.6 ie., his own documents. Therefore, in consistence major contradiction on the defense of the accused cannot be acceptable.
23. That apart, as held supra, mere presentation of Ex.D1 cheque for Rs.35,00,000/, which does not ipso facto ground to believe that, Ex.D1 is stolen cheque, when Ex.D5 his own document speaks that one John Moses have obtained three signed blank cheques from him for surety and with respect to property pertaining to the complainant, which is different and the said matter was closed as per his own withdrawal request to police Ex.D6, which cannot be connected with the present 17 C.C.No.50386/2019 transaction as there was no reference about Ex.D1, Ex.D5 and D6 of the reply notice of accused Ex.P.6, which was issued on 12.02.2018 is., after six months form the date of Ex.D5 and D6. Therefore, the accused failed to brought out any believable materials to disbelieve the complainant case and transaction claimed did not exist, as such, the accused has failed to brought out materials to dislodge the presumption drawn in favour of the complainant U/s 139 R/w 118A of NI.Act, the accused failed to prove neither the cheque in question is stolen cheque nor lost signed blank cheques has been misused by the complainant, accordingly, the accused being a ex bank employee has knowledge about consequences of lost of stolen signed blank cheques did not approach the police for having been lost of his 100 cheque leaves or stolen of cheque. However, he approached his banker for stop payment but he kept his requisition in dark, which is crucial document for to believable his defense that, what for he issued stop payment instruction, as such in absence of that, the dishonor of cheque in question was for "stop payment" and it is mandatory on the part and accused to prove there was sufficient balance in his account on the date of issuing stop payment instruction, 18 C.C.No.50386/2019 but not produced the statement of account, the cheque was not dishonored because of paucity of funds, but for other reasons, but the accused neither he produced statement of account to prove sufficient balance in account to honor the cheque in question nor produced the requisition for stop payment to prove the reasons for issuing it. Hence, the defense of the accused cannot be acceptable, accordingly presumption drawn in favour of the complainant not rebutted. Hence, the complainant has proved the case beyond all reasonable doubt, as such, the accused found guilty of an o/p/u/s.138 of N.I.Act.
24. So, far as sentence and compensation is concern, an o/p/u/s.138 of NI.Act, is primarily compensatory in nature, punitive is secondary, the above settled principal of law with facts and circumstances of the case, the complainant claims that, she had livein relationship with the accused accordingly she advanced Rs.5,00,000/, but, not for an interest, therefore it is an interest free loan accordingly so, considering the nature of transaction and duration of pendency of the case it is just and necessary to impose fine of Rs.5,55,000/ to meet the ends of justice, accordingly, the accused are hereby sentenced to 19 C.C.No.50386/2019 pay a fine of Rs.5,55,000/ out of that the complainant is entitled for sum of Rs.5,50,000/ as a compensation as per Sec.357(1) of Cr.P.C. remaining amount of Rs.5,000/ is to be appropriated to the state, in case of default the accused shall under go simple imprisonment for a period of 6 months. Accordingly, I answered the above point in "Affirmative".
25. Point No.2: In view of above finding to Point No.1, I proceed to pass following;
ORDER Acting under section 255(2) of Criminal Procedure Code, the accused is convicted of the offence punishable U/s 138 of Negotiable Instrument Act.
The accused is sentenced to pay a fine of Rs.5,55,000/ (Rupees Five lakh Seventy five thousand only) in default, the accused shall undergo simple imprisonment for a period of six months. Out of the fine amount received, Rs.5,000/ is to be appropriated to the State and by way of compensation as per 20 C.C.No.50386/2019 the provision u/Sec.357(1) of Cr.P.C. the complainant is entitled for Rs.5,50,000 /.
The bail bonds and surety bond of the accused shall stand cancelled.
Office is directed to furnish a free copy of the judgment to the accused u/s 363(1) of Cr.P.C.
(Dictated to the Stenographer transcribed and typed by her, corrected, signed and then pronounced by me in the open court, on this the 28th day of February, 2022) (M.Vijay), XXXIII ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Mrs. Kaladevi
2. Documents marked on behalf of complainant:
Ex.P.1 : Original cheque Ex.P.1(a) : Signature of the accused Ex.P.2 : Bank returned memo Ex.P.3 : Office copy of the Legal notice Ex.P.4 : Postal receipt Ex.P.5 : Postal acknowledgment Ex.P.6 : Reply notice
3. Witnesses examined on behalf of Accused:
D.W.1 : Sri. Dhanraj P
21
C.C.No.50386/2019
4. Documents marked on behalf of Accused:
Ex.D.1 : Documents
Ex.D.2 : Letter issued by the bank dated
06.09.2014
Ex.D.3 : Letter issued by the bank dated
01.04.2009
Ex.D.4 : Invitation of house warming ceremony
Ex.D.5 and 6 : Copy of the police complaints
Ex.D.7 : Statement of John Moses before the
police
(M.Vijay),
XXXIII ACMM, BENGALURU.
22
C.C.No.50386/2019