Bangalore District Court
Sri. H.K.Rachappaji vs Smt. Arathi.S.Patil on 3 December, 2019
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
:: PRESENT ::
SRI. NAGARAJEGOWDA.D., B.Com, L.L.B.,
C/C. XII A.C.M.M., Bengaluru
C.C.NO.8440/2016
Dated: This the 03rd Day of December -2019
COMPLAINANT/S: Sri. H.K.Rachappaji,
S/o. Kunnegowda,
Aged about 49 years,
R/at.No:321, 7th Main,
BSK 3rd Stage,
Nagendra Block,
Bengaluru - 560 050.
ACCUSED: Smt. Arathi.S.Patil,
W/o. Sri. Shashidhar Patil,
Major in age,
R/at.No:329, 5th Main,
Vidyapeeta Layout,
Banashankari 3rd Stage,
Bengaluru-560 085.
Offence Under Section 138 of Negotiable
Instruments Act
Plea of the accused Pleaded not guilty
Final Order Convicted
**
JUDGMENT 2 CC.No:8440/2016
:: JUDGMENT ::
The complainant filed this private complaint under Section 200 of Cr.P.C alleging that, the accused has committed an offence punishable under Section138 of Negotiable Instruments Act.
2. The brief facts of the complainant case reads as follows:
The complainant and accused are known to each other since more than five years. The complainant need of house on rent/lease as the accused having residential house premises at No.329, second floor, situated at 5th main, Vidyapeeta Layout, Banashankari 3rd Stage, Bengaluru and the accused agreed with the complainant to lease the said residential premises for a period of three years. Believing the words of the accused, the complainant after negotiation paid the lease amount of Rs.10 lakhs and accused agreed to hand lover the vacant possession of the said premises on 01.12.2015 and the complainant has arranged to shift his residence to the above said premises of the accused and the complainant came to know that JUDGMENT 3 CC.No:8440/2016 M/s.Vijaya Bank has issued a notice under sec.13(4) of the Securitization Act to the accused, the complainant immediately enquired about the matter for which, the accused had given a vague reply to the complainant. The complainant has requested the accused to return the said lease amount of Rs.10 Lakhs in the month of November 2015. The accused had issued a cheque bearing No.523486 dated 10.12.2015 for an amount of Rs.10 Lakhs drawn on the M/s.Vijaya Bank, Gandhi Bazar Branch, Bengaluru, the complainant presented the said cheque for encashment through his banker i.e., M/s.Karnataka Bank Ltd., CMM Court Branch, Bengaluru for collection but the same is returned for the reasons "Funds Insufficient" on 15.12.2015. Immediately the complainant tried to contact the accused, the accused started deliberately avoid the complainant. Hence with no other resort the complainant got issued a legal notice to the accused on 07.01.2016 sent by RPAD. The same is returned with the postal shara "Door Lock, Intimation Delivered" but the accused did not reply or comply the notice and thus the accused has committed an offence JUDGMENT 4 CC.No:8440/2016 punishable under Section138 of Negotiable Instruments Act and award compensation to the complainant under sec.357 of Cr.P.C., in the interest of justice.
3. After recording the sworn statement of the complainant with documentary evidence, this court has registered the case against the accused for the offence punishable under Section 138 of Negotiable Instruments Act. Summons issued to the accused. The accused appeared through her counsel and enlarged on bail. There afterwards, plea of accusation read over and explained to the accused in the language known by her and she pleaded not guilty and claims to be tried.
4. In support of the case of the complainant, the complainant filed affidavit by way of chief-examination as PW-1 and got marked Ex.P.1 to Ex.P.5 and thus PW-1 has been fully cross-examined by the accused counsel and thus the complainant closed his side evidence.
JUDGMENT 5 CC.No:8440/2016
5. There afterwards, accused examined under Section 313 of Cr.P.C statement, in which she totally denied the entire case of the complainant. In view of the denial, she led her side defence as D.W.1 and got marked Ex.D.1 to 16 and examined two witnesses as D.W.2 & 3 and these D.W.1 to 3 have been fully cross-examined by the complainant counsel and the accused closed her side evidence.
6. In support of the case of the complainant, the learned counsel for the complainant submitted written arguments by narrating facts and circumstance of the case of the complainant and submits that, the complainant has fulfilled all the ingredients of the offence punishable under sec.138 of the N.I.Act and hence prays to convict the accused in accordance with law. In support of his contention the complainant has relied on the citation reported in :
i. 2017 (2) AKR 12 (K.L.Agarwal V/s. M/s. Paramount Solutions, Bangalore) in which Hon'ble High Court of Karnataka held that no evidence on record to rebut the presumption raised against accused - Conviction of accused proper.
JUDGMENT 6 CC.No:8440/2016 ii. Further relied on decision reported in AIR 2018 Supreme Court 3601 (T.P.Murugan (Dead) Thr.Lrs Vs., Bojan Posa Nandhi rep. Thr POA Holder. T.P.Murugan Vs., Bojan, in which the Hon'ble Supreme Court of India has held that, the accused admitting his signature on the cheques and pronote, presumption under sec.139 would operate against him-complainant proving existence of legally enforceable debt and issuance of cheques towards discharge of such debt-conviction, proper.
iii. Further relied on decision reported in 2017(1) DCR 195 (Chuni Lal Vs., Indira Seth) in which the Hon'ble Himachal Pradesh High Court has held that, Found nothing illegal or irregular in passing conviction and sentence against him-requires no interference-revision is dismissed as merits etc., iv. Further relied on decision reported in 2017(2) AKR 527 (Arjun Vs., E.Shekar) in which the Hon'ble High Court of Karnataka has held that, Cheque has not been issued for any debt or liability-is on accused-mere plausible explanation not sufficient to disprove complainants case etc., Accordingly the counsel for the complainant prays for convict the accused in accordance with law.
7. In support of the case of the accused, the learned counsel for the accused has also submitted written arguments by narrating facts and circumstance of the case and in support of his contention, the counsel for the accused has relied on decision reported in:
JUDGMENT 7 CC.No:8440/2016 i. (2015) I SCC 99 (K. Subramani V/s. K. Damodara Naidu) in which Hon'ble Supreme Court of India held that, Dishonour of cheque-legally recoverable debt not proved as complainant could not prove source of income from which alleged loan was made to appellant-accused-presumption in favour of holder of cheque, hence, held, stood rebutted- acquittal restored etc., ii. Further relied on decision reported in IV (2007) BC 211 (Santhosh Manikrao Gundale Vs., Rameshwar Wamanrao Tak and ano) in which the Hon'ble Bombay High Court has held that, No infirmities found in judgment-presumption under sec.139 of act rebutted by material on record-judgment of acquittal not perverse-no necessity to grant leave to prefer appeal against judgment of acquittal etc., iii. Further relied on decision reported in ILR 2009 KAR 172 (Sri.A.Viswanatha Pai Vs., Sri Vivekananda S.Bhat) in which Hon'ble High Court of Karnataka has held that, Existence of legally recoverable debt is not a matter of presumption under sec.139 of the Act etc., iv. Further relied on decision reported in (Maharaj Krishna Bhatt and ano Vs., State of Jammu and Kashmir and ors) in which the Hon'ble Supreme Court has held that, once a judgment had attained finality, it could not be termed as wrong, and its benefit ought to have been extended to other similarly situated persons-service law- promotion-service/recruitment rules-relaxation of -service law etc., v. Further relied on decision reported in (2008) 2 SCC (Crl)166 (Krishna Janardhan Bhat Vs., Dattatraya G.Hegde) in which Hon'ble Supreme Court of India has held that, Existence of legally recoverable debt is not a matter of presumption under sec.139.
and hence the accused prays for acquittal of the accused in accordance with law.
JUDGMENT 8 CC.No:8440/2016 8 On the basis of the aforesaid facts and circumstances, the following points arises for my considerations:
POINTS
1. Whether the complainant proves beyond all reasonable doubts that for repayment of the lease or rent amount, the accused issued a cheque bearing No.523486 dated 10.12.2015 for an amount of Rs.10 lakhs drawn on M/s.Vijaya Bank, Gandhi Bazar Branch, Bengaluru, the complainant presented the said cheque for collection through his banker M/s.Karnataka Bank Ltd., CMM Court Branch, Bengaluru, but the said cheque is dishonoured due to reasons "Funds Insufficient" dated 15.12.2015. The complainant got issued legal notice to the accused on 07.01.2016 sent by RPAD, the same is returned as "Door Lock, Intimation Delivered".
But the accused did not reply or complied the notice and thus she has committed an offence punishable under Section 138 of Negotiable Instruments Act?
2. What order?
9. My answer to the above points are as under:
Point No.1: Partly in the Affirmative, Points No.2: As per the final order, for the following.
REASONS
10. POINT No.1: In support of the case of the complainant the complainant filed affidavit by way of chief-examination JUDGMENT 9 CC.No:8440/2016 as PW-1 in which he has reiterated the complaint contention and got marked Ex.P1 cheque alleged to be issued by the accused of Rs.10 Lakhs and identified the signature of the accused as Ex.P1(a). Ex.P1 cheque is dishonoured due to "Funds Insufficient" as per Ex.P2 bank endorsement. Ex.P3 is the copy of the legal notice, the notice has been sent to the accused by RPAD as per Ex.P4 postal receipt, the said notice returned with the postal shara "Door Locked not claimed" as per Ex.P5 postal cover, Ex.P5(a) is the notice in it. On the basis of oral and documentary evidence of complainant prima-facie the complainant had proved that, the accused has committed an offence punishable under sec.138 of the N.I.Act.
11. The accused appeared and contest this case by denying the entire case of the complainant, in support of the denial of the accused, the accused counsel cross- examining the PW-1, in which he is trying to elicitate that, the complainant is also doing advocate practice and from the year 2004 itself he was doing money lending by obtaining license in the name of Sapthagiri Finance, JUDGMENT 10 CC.No:8440/2016 Girinagar and he made the account transaction in the finance, but he has not given loan amount to the accused under the said finance, but he individually paid Rs.10 Lakhs to the accused and the accused usually obtained Rs.10 to 20,000/- from his finance and he is residing in rented house for the last 25 years at Bengaluru and the accused in order to lease her house but she did not lease her house since in order to repay the amount of Rs.10 Lakhs, the accused had issued a Ex.P1 cheque in question, the same is dishonoured due to "Funds Insufficient" and he asked for lease of second floor of the accused side building and the Vijaya Bank have publically noticed that, under Securitization Act, the said house is in auction on 01.12.2015 and he came to know the said house the owner of the said house is Anuska Shara, but he has not made any efforts to know the said house is in the ownership of this accused and as per memorandum of understanding, to purchase house property and he do not know about one Gayathri Devi and he was the mediator in between the complainant and the said Gayathri Devi about the house and there was a case registered against her in JUDGMENT 11 CC.No:8440/2016 C.C.No.6026/2013 but his wife is made a Vakalath on behalf of accused in that case. In order to appreciate the case of the complainant at page no.12, the relevant portion is in kannada language reads as follows:-
" F ªÉÄÃ¯É ºÉýzÀ 2£Éà J¹JAJA £ÁåAiÀiÁ®AiÀÄzÀ°è zÁR¯ÁzÀAvÀºÀ DgÉÆæAiÀÄ «gÀÄzÀÝ zÁR¯ÁzÀAvÀºÀ ¥ÀæPÀgÀtzÀ°è £À£Àß ºÉAqÀw ªÀQî ªÀÈwÛ ªÀiÁqÀÄwÛzÀÄÝ CªÀ¼À ¥ÀgªÀ ÁV ªÀPÁ®vï ªÀ»¹zÀÝ PÁgÀt DgÉÆæ¬ÄAzÀ ªÀQî ªÀÊwÛAiÀÄ ¦ÃeïUÉAzÀÄ DgÉÆæ ¸À» ªÀiÁrzÀ SÁ° ZÉPÀÌ£ÀÄß zÀÄgÀÄ¥ÀAiÉÆÃUÀ¥Àr¹PÉÆAqÀÄ £À£ÀUÉ C£ÀÄPÀÆ®ªÁUÀĪÀ jÃwAiÀÄ°è ¨Àswð ªÀiÁr ¥Àæ¸ÀÄÛvÀ DgÉÆæAiÀÄ «gÀÄzÀÝ ¸ÀļÀÄî ¥ÀæPÀgÀt ¸À°è¹ ¸ÀļÀÄî ¸ÁQë £ÀÄrAiÀÄÄwÛzÃÉÝ £É C£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è.
and in the further cross-examination of PW-1, the accused counsel trying to elicitate that, as per Ex.D1 the lease out property about this complainant and also got marked Ex.D2 to 4 are the certified copy of the PCR No.7746/2016 except the total denial of the contention of the complainant, the accused has not given any reply to the notice issued by the complainant as per Ex.P3 legal notice, though the legal notice sent to the correct address of the accused, the said notice is returned with postal shara not claimed door locked etc., as such it is deemed service of said notice to the accused.
JUDGMENT 12 CC.No:8440/2016
12. The accused has denied the entire case of the complainant in support of her denial she filed by way of chief-examination as D.W.1 in which she has stated that, the complainant never approached her to take lease in No.329, 8th Main, BSK 3rd Stage, Bengaluru and the complainant never give any amount as lease amount to this accused and she never issued a disputed cheque to the complainant for the discharge of any legal debt and liability etc., In her chief-examination, she has stated her address as per the contents of Ex.P3 demand notice and she denied the entire transaction with the complainant except total denial of the contention of the complainant, the accused got marked the MOU as Ex.D1 and also the lease agreement as per Ex.D2 and also order sheet in C.C.No.6026/2013 along with FIR as per Ex.D5 and 6 and as per the contents of Ex.D5 and 6, the accused has denied the entire case of the complainant, in order to appreciate the case of the accused, the accused has admitted that, Ex.P1 cheque and signature found on the Ex.P1(a) belongs to her and though this accused obtained loan amount of Rs.10 Lakhs from the complainant she given a false JUDGMENT 13 CC.No:8440/2016 evidence before this court and in support of the case of the accused, the accused examined DW2 Lohith he knows the accused since 30.03.2011 and he is in the 2nd floor of the building of the accused, naturally he given his oral evidence in support of the case of the accused and he was received the summons from this court and at the time of issuance of Ex.P3 legal notice, the accused house was door locked etc., and further accused examined DW3 Paneendra who is also supported the case of the accused and due to urgent need of money, the accused went to obtain the loan amount from the bank, but not due to IT returns problem one Anuj Sharma used to help to the accused etc., In the cross-examination of this DW3 in their contention of the complainant got marked Ex.D1 is the memorandum of understanding taken between the Anuj Sharma with one Sri.Shashidhar V.Patil, Ex.D2 is the lease agreement dated 14.10.2014 and Ex.D3 is the cheque bounce case in PCR No.7746/2016 filed by H.K.Rachappaji against Mahesh.K.M, before this court and Ex.D4 is the another cheque bounce case filed by the complainant H.K.Rachappaji against Vijaya in PCR No.7747/2016 JUDGMENT 14 CC.No:8440/2016 before this court. Ex.D5 is the order sheet in C.C.No.6026/2013 on the file of 2nd court, Ex.D6 is the certified copy of the FIR in Cr.NO.436/2012 and Ex.D7 is the copy of complaint lodged by one Gayathri Devi before the Channamanakere Police Station against this accused, Ex.D8 is the certified copy of the Vakalath given by Arathi S.Patil in C.C.No.6026/2013, Ex.D9 is the outstanding agreement taken between the Amaranath Bysani with the Arathi S.Patil i.e., the accused in this case, Ex.D10 is the G-mail to this Arathi about the outstanding amount of Rs.1,50,000/-. Ex.D11 is the corporation Bank pass book stands in the name of this accused to show that, she made a several bank transaction with the bankers and an amount of Rs.18,000/- has been obtained through a cheque on 21.04.2016, the same is debited to her account, Ex.D12 is the account statement and the said bank stands in the name of accused in which she made a bank transaction with their bank. Ex.D13 is the Bank Statement of account of the said corporation bank in which on 16.06.2015, 11.07.2015 and 12.08.2015 in the name of Amarnath Bysani on amount of Rs.68,006/-, Rs.16,506/-
JUDGMENT 15 CC.No:8440/2016 and Rs.18,006/- is debited to the account of this accused and as per Ex.D14 is the similar bank statement and Ex.D15 is the another similar bank statement of the accused to show that, she made a several bank transaction and in her withdrawal amount of Rs.36,000/- in the name of Nandakumar during the year 2017 and Rs.50,000/- in the name of Nandakumar in the year 2017 and Ex.D16 is the certified copy of the Vakalath given by the accused in Cr.No.100/2014 but in order to disprove the contention of the complainant, inspite of issuance of demand notice as per Ex.P3, the accused had not given any reply to the said notice and also she has not given any reasons to the concerned bank to stop payment, Ex.P1 cheque issued due to "Funds Insufficient" whatever the written arguments submitted by the complainant counsel along with citation relied by him are supports the case of the complainant to show that, the accused has committed an offence punishable under sec.138 of the N.I.Act but the written arguments submitted by the accused counsel and ruling relied by as stated above not applicable to the accused to show that, the accused has given rebuttal evidence to the JUDGMENT 16 CC.No:8440/2016 case of the complainant. As such on the basis of the oral and documentary evidence of both the complainant and accused, the complainant though has not produced any documentary evidence to show that, he has paid huge amount of Rs.10 Lakhs to the accused. But Ex.P1 cheque is dishonoured due to "Funds Insufficient" but inspite of issuance of legal notice to the accused as per Ex.P3, the accused did not replied or complied to the notice but she contested this case by denying the entire case of the complainant. As such the complainant had proved the alleged guilt of the accused. Hence the complainant is entitled to compensate to the extent of cheque amount in question. Accordingly I answered Point No.1 in the affirmative.
13. POINT NO.2: From the forgoing reasons, I proceed to pass the following:
ORDER Acting under Section 255(2) Cr.P.C the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments JUDGMENT 17 CC.No:8440/2016 Act and sentenced to pay a fine of Rs.10,00,000/- (Rupees Ten Lakhs only). The same shall be paid by the accused within a period of 30 days from the date of this order.
Out of the said fine amount, a sum of Rs.9,95,000/- (Rupees Nine Lakh Ninety Five Thousand only) has been awarded to the complainant as compensation under Section 357 of Cr.P.C. In default of payment of fine amount, the accused shall undergo simple imprisonment for 10 (ten) months.
The rest of Rs.5,000/- (Five Thousand Only) is adjusted towards the state as fine.
Supply a free copy of this Judgment to the accused.
(Dictated to the stenographer, corrected and then pronounced by me in the open court on this the 3rd day of December, 2019) (NAGARAJEGOWDA.D) C/C. XII Addl. C.M.M., Bengaluru.
JUDGMENT 18 CC.No:8440/2016
ANNEXURE
Witness examined on behalf of the complainant:
PW-1 : Sri. H.K.Rachappaji Documents marked 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 : Legal notice Ex.P.4 : Postal receipt Ex.P.5 : Postal cover Ex.P.5(a) : Notice in it.
Witness examined on behalf of the accused:
DW-1 : Smt. Arathi.S.Patil DW-2 : Lohith DW-3 : Paneendra
Documents marked on behalf of the accused:
Ex.D.1 : Memorandum of understanding Ex.D.2 : Lease agreement.
Ex.D.3 : Certified copy of complaint in PCR.No:7746/2016.
JUDGMENT 19 CC.No:8440/2016
Ex.D.4 : Certified copy of complaint in
PCR.No:7747/2016.
Ex.D.5 : Certified copy of order sheet in
CC.No:6026/2013.
Ex.D.6 : Certified copy of FIR.
Ex.D.7 : Certified copy of complaint
given to Police station.
Ex.D.8 : Certified copy of vakalath.
Ex.D.9 : House rental agreement.
Ex.D.10 : E-mail correspondence.
Ex.D.11 : Corporation Bank passbook of
the accused.
Ex.D.12 to Ex.D.15 : Statement of accounts
Ex.D.16 : Certified copy of vakalath.
(NAGARAJEGOWDA.D)
C/C. XII Addl. C.M.M., Bengaluru.
* Accused copy furnished.
JUDGMENT 20 CC.No:8440/2016
03/12/2019
Complainant - GM
Accused - THD
Judgment
(Judgment pronounced in the open court vide separate order) ORDER Acting under Section 255(2) Cr.P.C the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentenced to pay a fine of Rs.10,00,000/- (Rupees Ten Lakhs only). The same shall be paid by the accused within a period of 30 days from the date of this order.
Out of the said fine amount, a sum of Rs.9,95,000/- (Rupees Nine Lakh Ninety Five Thousand only) has been awarded to the complainant as compensation under Section 357 of Cr.P.C. In default of payment of fine amount, the accused shall undergo simple imprisonment for 10 (ten) months.
The rest of Rs.5,000/- (Five Thousand Only) is adjusted towards the state as fine.
Supply a free copy of this Judgment to the accused.
(NAGARAJEGOWDA.D) C/C. XII Addl. C.M.M., Bengaluru.
JUDGMENT 21 CC.No:8440/2016