Bangalore District Court
Sri. Sameer Ahmed vs Aarodhyaa Properties on 24 January, 2020
IN THE COURT OF XXII ADDL. CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU
DATED THIS THE 24TH DAY OF JANUARY, 2020
PRESENT
SMT. JYOTHISHREE RAMAGOWDA PATIL
B.A., LL.B., (Spl)
XXII ADDL. CMM., BENGALURU.
CASE NO. C.C.NO.17312/2017
COMPLAINANT Sri. Sameer Ahmed
Son of Iqbal Ahmed,
Aged about 41 years,
Residing at Nazni Shibl Manor,
No.34, Sri. Ram Mandir Road,
Basavanagudi,
Bengaluru - 560 004.
ACCUSED 1. Aarodhyaa Properties
Sri. Chakra, No.30,
Dr. Rajkumar Punya Bhoomi,
Service Road,
Nagarabhavi Ring Road,
2nd Stage, Bengaluru - 560 072.
Represented by its Managing Partner
Sri. M. Prabhakar.
2. M. Prabhakar
S/o Nagarajarao M.N.
Aged about 60 years,
Managing Partner
Aarodhyaa Properties
Sri. Chakra, No.30,
Dr. Rajkumar Punya Bhoomi,
2 C.C.No.17312/2017
Service Road,
Nagarabhavi Ring Road,
2nd Stage, Bengaluru - 560 072.
3. Pavan Kumar .M
S/o M. Prabhakar,
Aged about 35 years,
Partner,
Aarodhyaa Properties
Sri. Chakra, No.30,
Dr. Rajkumar Punya Bhoomi,
Service Road,
Nagarabhavi Ring Road,
2nd Stage, Bengaluru - 560 072.
OFFENCE U/S. 138 of Negotiable Instruments Act.
PLEA OF THE Pleaded not guilty.
ACCUSED
FINAL ORDER Accused are Convicted.
(JYOTHISHREE RAMAGOWDA PATIL)
XXII ADDL. C.M.M., BENGALURU.
JUDGMENT
The complainant has filed the complaint under Section 200 of Cr.P.C., against the accused for the offence punishable under Section 138 of Negotiable Instruments Act. 2 3 C.C.No.17312/2017
2. The brief facts of the case of the complainant are that;
The accused is a company and accused No.2 and 3 are the partners of the company. It is averred in the complaint that the complainant came to know about the accused company through a paper advertisement in Times of India regarding development of residential layout at Devanahalli in the name of Sai Residency. The accused No.2 is the father of accused No.3. The complainant is engaged in export and import business in Dubai in between the year 2002 to 2013 and he has earned well. He came back to India and was having mobile shop at Jayanagar 3rd Block. The complainant contacted the accused in the second week of March 2016 regarding investment. The complainant and accused negotiated and the rate of residential sites measuring 1620 sq. feet was fixed at Rs.11,34,000/-. The complainant paid Rs.1,00,000/- on 23.03.2016 through cheque bearing No.717342 dated 22.03.2016 drawn on SBI, Jayanagara Branch, 2nd Block, Bengaluru. The accused insisted the complainant to pay more money for developmental work. The complainant paid Rs.2,00,000/- by way of cash on 3 4 C.C.No.17312/2017 23.05.2016 and the accused have also collected six post dated cheques for Rs.8,617/- each dated 06.05.2016, 06.06.2016, 06.07.2016, 06.08.2016, 06.09.2016 and 06.10.2016. The accused again requested the complainant for payment of Rs.3,00,000/- and the complainant paid Rs.3,00,000/- on 11.06.2016 by way of cash. The accused again requested for payment and the complainant paid Rs.55,000/- by way of cash on 28.07.2016. Therefore in all together the complainant paid Rs.7,06,702/-. The accused carried out partial development but did not complete the work. The complainant made several enquires and came to know that the accused are not developing the property and have cheated many others in the scheme. Therefore the complainant asked for repayment. The accused have issued two cheques bearing No.806165 dated 31.03.2017 for Rs.3,55,000/- and cheque No.806151 dated 24.01.2017 for Rs.3,50,000/- drawn on State Bank of India, Nagarabhavi 2nd Stage, Bengaluru. The cheques were presented for encashment through his banker State Bank of India, Jayanagar 2nd Block Branch, Bengaluru on different dates as per the instructions of the accused and they came to be 4 5 C.C.No.17312/2017 dishonoured for the reasons Funds Insufficient. The legal notice was issued on 18.05.2017 through RPAD which came to be returned with a shara party left returned to sender on 20.05.2017. The accused did not repay the amount. Hence the complaint is filed.
3. The sworn statement of the complainant was recorded as examination-in-chief and the criminal case was registered against the accused. The accused appeared on receipt of summons and got enlarged on bail. The Substance of Accusation was read over and explained to the accused for which he pleaded not guilty and claimed to be tried.
4. The complainant is examined as PW.1 and got marked the documents from EXs.P1 to EX.P31. The statement of accused under Section 313 of Cr.P.C., are recorded. The accused are examined as DW.1 and DW.2 got marked EX.D1 to D3.
5. Heard the arguments.
5 6 C.C.No.17312/2017
6. The points that arise for my consideration are as under;
1) Whether the complainant proves that the accused issued two cheques bearing No.806165 dated 31.03.2017 for Rs.3,55,000/- and cheque No.806151 dated 24.01.2017 for Rs.3,50,000/- drawn on State Bank of India, Nagarabhavi 2nd Stage, Bengaluru towards discharge of legally enforceable liability?
2) Whether the complainant further proves that when he presented the said cheques for encashment, which returned with endorsements as "Funds Insufficient" and despite receipt of notice also the accused has not complied and thereby committed an offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
6 7 C.C.No.17312/2017
7. My answers to the above points are as follows:
Point No.1: In the Affirmative.
Point No.2: In the Affirmative.
Point No.3: As per the final order for the following:-
REASONS
8. Point No.1 and 2: The complainant filed his affidavit as examination in chief and produced EXs.P1 to P31.
9. EX.P1 is the cheque bearing No.806165 for Rs.3,55,000/- issued in the name of the complainant. EX.P2 is cheque bearing No.806151 for Rs.3,50,000/- issued in the name of complainant. These cheques are signed by the accused No. 2 and 3 who are partners of the accused No.1 company. As per Ex.P4 and P5 the cheques are returned as funds insufficient. Ex.P5 is the legal notice dated 18.05.2017. The complainant has also produced 3 vouchers during the cross-examination of DW.1 and confronted them the vouchers as are admitted by the witness. The complainant has also produced the bank passbook as per EX.P11 and P12.
7 8 C.C.No.17312/2017
10. The defence of the accused is the denial of the claim for the complainant. The defence of the accused is that the cheques were forcibly taken by the complainant. It is also brought in the cross-examination that the complainant has failed to continue with installments and has not paid the entire amount as per agreement. But during the cross- examination of PW.1 itself he has deposed regarding cash receipts issued by the accused. The receipts which are marked are Ex.P28 to P30 are stated to be colour xerox, but as per the deposition of the complainant during his cross- examination itself earlier he has deposed regarding cash receipts. It is argued for the accused that the complainant has not come forward for execution of the agreement of sale. But there is no written contract in between the complainant and accused regarding sale of property. There are certain admissions given by the accused during his cross- examination which are relevant in considering the issuance of cheque. The accused have admitted that they are the partners to the company of accused No.1. The accused have also admitted regarding receipt of amount of Rs.1 lakh from each customer for each flat. The accused have also admitted 8 9 C.C.No.17312/2017 that apart from RTGS they used to receive cash amount as in installments. Ex.P9 is the receipt for amount of Rs.1 lakh and there is clear admission by the accused of receiving Rs.1 lakh from the complainant. DW.1 has also admitted regarding receiving 6 postdated cheques from the complainant. The vouchers are also marked as per EX.P11 and P12. It is admitted by the accused that they have not issued any notice to the complainant calling for him for execution of the agreement of sale. It is also brought in the cross-examination that he has refunded the amount to the complainant. The accused has specifically admitted their signature on the cheque. It is also brought in the cross- examination that they have not issued any stop payment message to the bank. It is also brought in the cross- examination that the accused are convicted in CC.No.15918/2017 in the Court of 23rd ACMM, Bengaluru. Therefore on considering the admissions given by DW.1 it clearly goes to show that the cheques in dispute are issued in favour of the complainant for refund of amount. The case of the complainant is based on the dishonoured cheques and bankers memo and issuance of legal notice to the accused. 9 10 C.C.No.17312/2017 The complaint filed is within limitation and the accused have not disputed the same.
11. The advocate for the complainant relied on the judgment held in Crl.A.No.261-264 of 2002 by the Hon'ble Supreme Court of India in the case of MSR Leathers V/s. S.Palaniyappan and other. The advocate for complainant also relied on the judgment in Crl.A.No.767/2007, 26-27 of 2019 of the Hon'ble Supreme Court and prayed to convict the accused as the notices are returned as addressee not in the station and addressee left.
12. The accused who is examined as DW.1 has clearly admitted the place of his office. Therefore the notice sent to the correct address are deemed service of notice.
13. The advocate for the accused argued that there is no legal liability in favour of the complainant and the advocate for accused relied on the following judgments.
1. Crl.ANo.261/2013 (Vijay V/s.Lakman and another) by Hon'ble Supreme Court India 10 11 C.C.No.17312/2017
2. Crl.A.No.2749/2009 (Ing Vysya Bank V/s.Hanumanth .B.Ramdurg) by Hon'ble High Court of Karnataka Dharwad Bench.
3. Karnataka High Court.
(Sathavahana Ispat Limited V/s.Umesh Sharma).
3. Andhra High Court (Krishnam Raju Finances V/s.Abida Sultana and the State of Andhra.
4. Gujarat High Court (Shanku Concretes Pvt.Ltd., V/s.State of Gujarat)
5. Supreme Court of India (Sudhir Kumar Bhalla V/s.Jagadish Chand).
6. Supreme Court of India (Vinita S Rao V/s.M/S. Essen Corporate Ser.P.Ltd.)
14. I have carefully gone through the judgments relied by the advocate for the accused. There is always presumption in favour of the complainant regarding receiving the cheque for legal consideration. It is the accused who has to rebut the presumption. But as already discussed above the admissions given by the accused during the cross- examination clearly goes to show that the accused have issued cheque in favour of complainant. The oral and documentary evidence produced on behalf of the complainant clearly establishes the liability which is 11 12 C.C.No.17312/2017 enforceable in law. Therefore the judgments relied by the advocate for accused are not helpful in proving his contention.
15. Herein I rely on the Judgment reported in AIR 2019 Supreme Court 1876 rendered by the Hon'ble Supreme Court of India in the case of Rohit Bhai Jeevanlal Patel V/s State of Gujarath and Another wherein it is held that when all basic ingredients of Section 138, 118 and 139 are apparent on the face of record it is required to be presumed that cheque in question was drawn for consideration and complainant received it in discharge of an existing debt. Here in the present case the complainant has shown that he received the cheque for enforceable liability from the accused. The accused have not shown sufficient material to rebut the presumption which is drawn in favour of complainant. The accused have failed to disprove the presumption through her oral and documentary evidence. Hence the accused No.1 to 3 are liable for conviction. Hence Points No.1 and 2 are answered in the Affirmative.
12 13 C.C.No.17312/2017
16. Point No.3:- For the aforesaid reasons I proceed to pass the following:
ORDER Acting under Section 255(2) of Cr.P.C., the accused No.1 to 3 are hereby convicted and sentenced for the offence punishable under Section 138 of Negotiable Instruments Act and directed to pay jointly compensation/fine of Rs.8,00,000/- (Rupees Eight Lakhs) to the complainant.
In the total compensation/fine amount a sum of Rs.5,000/- (Rupees Five Thousand) shall be paid to the State as fine.
In default of the aforesaid compensation/fine amount the accused shall undergo simple imprisonment for One year.
(Dictated to the Stenographer on computer, typed by him and corrected and then pronounced by me in the open Court this the 24th day of January 2020).
(JYOTHISHREE RAMAGOWDA PATIL) XXII ADDL. C.M.M., BENGALURU.
13 14 C.C.No.17312/2017 ANNEXURE List of Witnesses examined for the complainant:
PW.1 : Sameer Ahmed.
List of Witnesses examined for the defence:
DW.1 : M. Prabhakar and DW.2 : Pavan Kumar.M.
List of Documents marked for the complainant:
EXs.P1 and P2 : Cheques;
EX.P1(a) and P2(a) : Signatures of the accused;
EX.P3 and P4 : Cheque Return Memos; EX.P5 : Legal Notice dated 18.05.2017; EX.P6 : Postal Receipts; EX.P7 : Postal Acknowledgment; EX.P8 : RPAD cover; EX.P9 : Receipt Voucher; EX.P10 : SBI Passbook; EX.P10(a) : Transaction in Passbook; EX.P11 : Receipt Voucher; EX.P12 : SBI Passbook; EX.P12(a) to (c) : Transactions in Passbook; EX.P13 : Certified copy of order sheet; EX.P14 : Certified copy of Joint Memo; EX.P15 : Certified copy of PCR No.6705/2017; EX.P16 : Certified copy of sworn statement 14 15 C.C.No.17312/2017 of the complainant; EX.P17 : Plea in CC.No.15918/2017; EX.P18 : Certified copies of cheques of Janatha Seva Co-op.Bank Ltd.,; EX.P19 : Certified copies of return memos of Janatha Seva Co-op.Bank Ltd.,; EX.P20 : Certified copy of Legal Notice; EX.P21 : Certified copy of postal receipts; EX.P22 : Certified copy of Postal Acknowledgment; EX.P23 to 25 : Certified copies of RPAD address; EX.P26 : Certified Copy of Judgment in CC.No.15918/2017; EX.P27 : Certified copy of warrant issued by 23rd ACMM against accused No.3; EXs.P28 to P30 : Receipt Vouchers and EX.P31 : SBI Passbook.
List of Documents marked for the defence:
EX.D1 : Aarodhyaa Properties booking form;
EX.D2 : SBI Cheque No.717346 and
EX.D3 : Cheque Return Memo.
CW.1 Examined
CW.1 : Sameer Ahmed.
(JYOTHISHREE RAMAGOWDA PATIL)
XXII ADDL. C.M.M., BENGALURU.
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