Bangalore District Court
Sri.Ramesh.A.N vs Sri. Pramod L.P on 20 May, 2016
IN THE COURT OF XVI ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE, BENGALURU CITY
Dated: This the 20th day of May 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.8043/2009
Complainant : Sri.Ramesh.A.N.
Aged about 42 years,
S/o Sri.A.Nagaraj,
R/at No.91/1, 2nd Floor,
2nd Main, 10th 'A' Cross,
Govindaraja Nagar,
Bengaluru - 40.
(Rep. by Sri.Dorai Babu., Adv.,)
- VS -
Accused : Sri. Pramod L.P.,
S/o Panduranga Swamy,
Aged about 36 years,
No.46, 4th Block, 4th Stage,
2nd Main, basaveshwara Nagar,
Bengaluru - 560 079.
Also at:
Pramod L.P.
Proprietor, M/s.S.L.D.Tires,
No.133, Dumlur Service Road,
Indiranagar, Bengaluru-560071
(Rep. by Sri.S.C.Manjunatha
Adv.,)
Case instituted : 07/10/2008
Offence complained of : U/s 138 of N.I. Act
2 C.C.8043/2009
Plea of accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 20-05-2016
JUDGMENT
The Complainant has filed this complaint against the accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. It is the case of the Complainant that, the Accused has approached him for a hand loan of Rs.8,00,000/- for his business needs and to meet his emergency financial crisis. The Accused has acknowledged the receipt of the said hand loan by issuing 5 post dated cheques, 4 cheques each for Rs.1,00,000/- lakh, drawn on the ICICI Bank, Indiranagara Branch, Bengaluru dated 22.03.2008 and another cheque of Rs.4,00,000/- drawn on the Citi Bank, Bengaluru dated 22.03.2008.
3. The Cheque bearing No.638765 dated 22.03.2008 for Rs.1,00,000/- lakh drawn on the ICICI Bank, Indiranagara Branch, Bengaluru is the subject matter of the present complaint. When the said cheque was presented for collection it got dishonored with the shara "Funds Insufficient" as per the endorsement issued by the Bank to his Bank.
3 C.C.8043/20094. Immediately after the dishonour of the cheque, he intimated about the same to the Accused and requested to arrange for the said sum, but thereafter the Accused has never bothered to repay the cheque amount. Therefore, he got issued legal notice to the Accused by Registered Post as well as certificate of posting on 26.08.2008. Though, the said notices have been duly served upon the Accused, he has not repaid the cheque amount. Hence the present case.
5. On perusal of the records, it is seen that though original complaint has been presented by the Complainant and the Complainant himself has filed his affidavit in-lieu-of his sworn statement, subsequently the Complainant has executed the Power of Attorney in favour of Sri.Mahesh Hegde, who is the Complainant in C.C.No.3400/2009 and 5440/2009. Thus, the GPA holder of the Complainant Sri.Mahesh Hegde has examined himself as PW1 by relying upon Ex.P1 to P10.
6. After recording the sworn statement of the Complainant, the same was registered as criminal case, summons was issued to the accused, who appeared through his counsel and got enlarged on bail. The substance of the accusation was read over to him, he pleaded not guilty and claimed to be tried.
4 C.C.8043/20097. Thereafter, the incriminating evidence found in the evidence of the Complainant has been explained to the accused by recording his statement as required under Sec.313 of Cr.P.C., who has denied the same and has chosen to lead his defence evidence.
8. The Accused has examined himself as DW.1.
9. The records reveal that, after hearing the arguments of the learned counsel for the Complainant and considering the written arguments of the learned Defence counsel, my learned predecessor-in-office has pronounced the judgment of conviction on 04.01.2014. However being aggrieved by the same, the Accused preferred an Appeal in Crl.Appeal No.340/2014. The said appeal preferred by the Accused has been allowed and thereby the judgment of conviction passed by this Court has been set-aside and the matter has been remanded to this Court for fresh disposal in accordance with law from the stage of recording the cross-examination of the Complainant in the manner provided under the Evidence Act Subsequent to the remand of the matter, P.W.1 has been cross-examined by the learned defence counsel and the oral evidence of the Accused has been recorded and he has been examined before the Court as DW-1 and the cross- examination of DW.1 conducted earlier has been adopted by the counsel for the Complainant.
5 C.C.8043/200910. Heard the arguments of the learned counsels representing both the sides and I have perused the entire materials placed on record.
11. The following points arise for my consideration:-
1. Whether the Complainant has proved beyond reasonable doubt that the accused is guilty of the offence punishable under Sec.138 of the Negotiable Instruments Act?
2. If so, what Order or Sentence?
12. My findings to the above points are as under:-
Point No.1: In the Affirmative, Point No.2: As per the final order for the following:-
REASONS
13. POINT No.1:- According to the Complainant, he has advanced a hand loan of Rs.8,00,000/- by way of cash to the Accused to meet his emergency financial crisis. To discharge the said liability the Accused has issued 5 post dated cheques, among which, the disputed cheque is one among them. According to the Complainant, upon presentation, the said cheque got bounced due to the reason of "Insufficiency of Funds" in the account of the Accused. Thereafter inspite of receiving the legal notice, the Accused has failed to repay the cheque amount.
6 C.C.8043/200914. In order to prove these allegations, the GPA holder of the Complainant has examined himself as PW.1 and in his affidavit he has reiterated the complaint averments.
15. In support of his oral evidence, P.W.1 has relied upon the following documentary evidence:-
Ex.P1 is the disputed cheque in which PW.1 has identified the signature as that of the Accused as per Ex.P1(a), the Bank Endorsement as per Ex.P2, the original complaint as per Ex.P3, the Notarised copy of the G.P.A. as per Ex.P4, the Ex.P5 to P8 are the Postal receipts, the Ex.P9 and 10 are the postal acknowledgement cards..
16. By relying upon this documentary evidence, P.W.1 has denied the suggestions with regard to the financial incapacity of the Complainant so as to have allegedly lent the amount to the Accused, but he has admitted the suggestion that the entire financial transactions between the Complainant and the Accused have taken place through his mediation. By selecting few stray admissions given by PW.1, it is the defence of the learned defence counsel that, PW.1 has pleaded ignorance with regard to the financial status of the Complainant and also about his annual income etc., However, this argument canvassed by the learned defence counsel cannot be a sole ground to disbelieve the entire case of the Complainant. No doubt, PW.1 has deposed before the Court that, immediately after the lending of the amount, the Accused 7 C.C.8043/2009 has issued the cheques in favour of the Complainant. This contradiction by itself cannot be considered as sufficient so as to rebut the presumption which is available in favour of the Complainant. It is further elicited from the mouth of P.W.1 that, on 5 occasions, on which, the Complainant has lent the loan to the Accused, he was present along with the Complainant. Further the defence of the Accused which is observed in the cross-examination of PW.1 is that, P.W.1 has gone to the shop of the Accused and stolen his cheques and among them, through two cheques, he has filed two cases against the Accused and with the help of the remaining cheques, he has got filed the remaining false cases against the Accused. With this sole defence, it is observed that the Accused has tried to escape from his liability.
17. It is also argued by the learned Defence counsel in his cross-examination that, PW.1 has admitted in his cross- examination on page No.12 that, he has not produced any documents before the court to show that the Complainant had Rs.8,00,000/- with him and that he has no difficulty to produce the pass books of all the Bank accounts of the Complainant, but P.W.1 has failed to produce them before the Court. It is the case of P.W.1 that, the Accused had sought for a financial assistance of a sum of Rs.25,00,000/- and himself, the Complainant and Kumara Swamy and two others have jointly arranged Rs.25,00,000/- and lent the same to the Accused. Though PW.1 has been cross-examined at length by 8 C.C.8043/2009 the learned Defence counsel, nothing has been elicited from his mouth so as to discredit his evidence. Thus, except the defence of the Accused that, P.W.1 has stolen the cheques of the Accused and given them to the Complainant and also to one Kumara Swamy and apart from filing the case against the Accused, he has also got filed false case against the accused through them. Further subsequent to the remand of the matter, it is seen that P.W.1 has been cross-examined with regard to the genuinety and the reason for which the Complainant to have executed GPA in favour of P.W.1, but nothing has been elicited from his mouth about the same. It is pertinent to note that, on earlier occasion, there was no dispute by the Accused with regard to the reason assigned by the Complainant in the GPA, authorizing his GPA holder viz., P.W.1 to depose evidence on behalf of the Complainant. Therefore, subsequent to the remand, even though the P.W.1 has been cross-examined, by suggesting to him that, the Complainant had no ill-health so as to execute GPA in his favour, the same has not been seriously disputed by the learned defence counsel. Therefore, this defence of the Accused cannot be accepted by the court.
18. In order to defend his case, the Accused has examined himself as D.W.1 and though initially he had filed his affidavit, subsequent to the remand of the matter it is the Defence deposed orally by the Accused that he knows the Complainant, but he had no financial transaction with him 9 C.C.8043/2009 and that he has not issued the disputed cheque to him. According to him, the disputed cheque along with it's 10 other related cheques were kept in his shop duly signed by him for the purpose of his business and P.W.1 used to visit his shop and on such occasions, without his knowledge, P.W.1 has stolen the disputed cheque in this case along with 7 other disputed cheques in the other related cases and misused them.
19. By relying upon this oral evidence, in his cross- examination, it is elicited from the mouth of DW.1 that, there are 5 persons who are working in his tyre shop viz., Mahadeva, Bhaskar, Chandru, Krishna and Abrar and among them two of them are working since 7 to 8 years and two of them working since 4 to 5 years and it is admitted by him that, he alone looks after all the financial transactions of his tyre shop including the issuance and the receipt of cheques pertaining to his business. He has also admitted his acquaintance with P.W.1 and also with one Kumara Swamy, who is the Complainant of C.C.No.5438/2009. He has further admitted the suggestion that, there was mutual giving and taking of money between himself and Kumara Swamy. However, he has admitted the suggestion that, the signature at Ex.P1(a) belongs to him, but he has given a vague answer that he doesn't know as to how his cheque has reached the Complainant. But he has admitted that the seal at Ex.P7 belongs to his tyre shop, but has pleaded ignorance to the 10 C.C.8043/2009 question as to who has received the notice sent to his residential address. This goes to show that the receipt of the legal notice has not been disputed or denied by DW.1. Further it is also deposed by D.W.1 that, he has not lodged complaint before the Police alleging that P.W.1 has stolen away his cheques, but he has admitted that his mobile number is 9845077422 and when the SMS's from the said mobile number has been confronted to him, he has denied the same, but the same have been marked for identification purpose as per Ex.N1 to N4.
20. Now by careful appreciation of the entire evidence available on record, it clearly goes to show that, even though the financial capacity of the Complainant has been disputed by the Accused, the defence of the Accused is not probable so as to rebut the presumption available in favour of the Complainant. Moreover, the text messages at Ex.N1 to N4 clearly prove that the Accused himself has prayed to grant some time for the clearance of the loan amount and the evidence of D.W.1 clearly goes to show that, he has failed to prove before the court that his cheques were misplaced and the same have been misused by the Complainant. Moreover, the Accused being a Businessman and an educated person, who claims to have an annual turnover of Rs.80 lakhs to 1 crore cannot be believed to have kept quite even after coming to know that his cheques have been misplaced or stolen by P.W.1 of this case. The conduct of the accused, even to be 11 C.C.8043/2009 accepted as that of a man of ordinary prudence would demand that, if really, his cheques were misplaced or stolen, as alleged by him, he would have taken minimum steps against either P.W.1 or anybody else against whom he alleges the theft of his cheques. But having failed to do so, the defence theory put- forth by the Accused cannot be accepted by the Court.
21. Therefore, on the overall appreciation of the evidence and the materials available on record, this court has no hesitation to conclude that, the Accused has borrowed the amounts covered under the cheque from the Complainant and subsequently, to discharge the said liability, he has issued the disputed cheque. However, the said cheque, upon presentation has remained unpaid due to the reason of "Insufficiency of Funds" in the account of the Accused and thereby the Complainant has proved all the ingredients of Sec.138 of the N.I. Act. Further the materials placed on record are sufficient for this Court to come to the conclusion that the defence theory set up by the Accused is not probable, so as to rebut the presumption available in favour of the Complainant.
22. During the course of his arguments, the counsel for the Complainant has relied upon the following decisions:-
1) In R.Vijayan Vs., Baby and another, reported in (2012) 1 Supreme Court Cases 260;
2) In Mainuddin Abdul Sattar Shaikh Vs., Vijay D.Salvi, reported in (2015) 9 Supreme Court Cases
622. 12 C.C.8043/2009
3) In Rangappa Vs., Mohan, reported in AIR 2010 Supreme Court 1898.
23. By placing reliance upon these decisions the learned counsel for the Complainant has argued before this court that, considering the long pendency of this case and also the amount involved in the cheque, the Accused is to be convicted and sentenced to pay a fine of twice the amount of the cheque and also interest at 9% p.a.,
24. No doubt the case is of the year 2009. But this case has been disposed off once by judgment by this court and thereafter it has been remanded for rectifying some procedural defects which have occurred in the earlier stage. Therefore I am of the view that if the Accused is held liable to pay compensation to the extent of the cheque amount with simple interest at 9% p.a to the Complainant (i.e., Rs.1,00,000 + interest at 9% p.a. for 6 years), it would serve the ends of justice. In view of the aforesaid reasons and discussions, I answer this point in the Affirmative.
25. POINT No.2:- In view of the above reasons and discussions, 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 Negotiable Instruments Act.
He is sentenced to pay a fine of Rs.1,54,000/- (Rupees One Lakh Fifty Four Thousand only) 13 C.C.8043/2009 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.1,50,000/- (One Lakh Fifty Thousand Only) is ordered to be paid to the Complainant as Compensation and the balance of Rs.4,000/- (Rupees Four 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.
(Dictated to the stenographer, transcript thereof is computerized and print out taken by her, then verified and pronounced by me in open Court on this the 20th day of May 2016).
(SARASWATHI.K.N), XVI Addl.CMM., Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the Complainant:
PW.1 : Mahesh Hegde List of documents exhibited on behalf of the Complainant:
Ex.P-1 : Original cheque;
Ex.P-1(a) : Signature of the Accused;
Ex.P-2 : Bank Endorsement;
Ex.P-3 : Original Complaint;
Ex.P-4 : Notarized copy of the G.P.A;
Ex.P-5 to 8 : Postal Receipts;
Ex.P-9 & 10 : Postal Acknowledgements;
Ex.S 1 and 2 : Photos.
14 C.C.8043/2009
List of witnesses examined on behalf of the accused:
DW-1 : L.P.Promod List of documents exhibited on behalf of the accused:
Ex.N1 to N4 : Text Messages
(SARASWATHI.K.N),
XVI ACMM, Bengaluru City.
15 C.C.8043/2009
16 C.C.8043/2009
20.05.2016
Judgment pronounced in the open court
vide separate judgment.
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
Negotiable Instruments Act.
He is sentenced to pay a fine of
Rs.1,54,000/- (Rupees One Lakh
Fifty Four 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.1,50,000/- (One Lakh
Fifty Thousand Only) is ordered to be
paid to the Complainant as
Compensation and the balance of
Rs.4,000/- (Rupees Four 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
(SARASWATHI.K.N),
XVI ACMM, Bengaluru City.
17 C.C.8043/2009