Bangalore District Court
Shri. T. Ramachandraiah vs Shri. P. Manjunath on 26 October, 2018
1 C.C.NO. 22494 OF 2017
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU
Dated this the 26th Day of October 2018
Present: Sri. Rajkumar .S.Amminbhavi., B.Com., LLB (Spl)
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No. 22494/2017
Complainant: Shri. T. Ramachandraiah
Aged about 71 Years
S/o. Late Thimmarajappa
R/at. No.1040, 13th Main Road
Shathavathana Road
Weavers Colony, Srinagara
Bengaluru-560 050.
(By S.Guruprasad., Adv)
- Vs -
Accused: Shri. P. Manjunath
Aged about 53 Years
S/o. Late K.V. Puttappa
R/at. No.1021, 12th Main Road
Ballala Street
Weavers Colony
Srinagara, Bengaluru-560 050.
(By. Chethan .B., Adv)
Offence complained of: U/s. 138 of the Negotiable
Instruments Act
Plea of the accused: Pleaded not guilty
Final Order: Accused is Convicted
Date of order: 26.10.2018.
2 C.C.NO. 22494 OF 2017
******
JUDGMENT
This is a complaint under Sec.200 of Cr.PC against the accused for the offence punishable under Sec.138 of the Negotiable Instruments Act.
2. The facts of the complaint in brief are that, both the complainant and accused are known to each other since more than twenty years both are neighbourers. On account of well acquainted with the complainant, the accused has approached the complainant and requested for advancement of the hand loan amount of Rs.1,80,000/- in order to meet out his personal, domestic and business purpose and accordingly, considering the request of the accused and believing the words of the accused and on the humanitarian ground, the complainant has advanced the loan amount of Rs.1,80,000/- to the accused by way of cash and on that day, the accused has agreed and undertake that, he would repay the said amount within a period of three month. After lapse of stipulated period, on repeated request and demand made by the complainant to the accused and at that time, the accused for discharge of the loan in question, he had issued two cheques i.e., cheque bearing No.809687, dated: 01.08.2017 for a sum of Rs.1,00,000/- and another cheque bearing No.809688, dated: 01.08.2017 for a sum of Rs.80,000/- both the 3 C.C.NO. 22494 OF 2017 cheques drawn on M/s. Canara Bank, Kalidas Layout Branch, Bengaluru in favour of the complainant and assured that, the said cheques would be honoured on its presentation and accordingly, as per the assurance made by the accused, the complainant has presented the said cheque for encashment through his banker i.e., State Bank of India, Sunkenahalli, Hanumanth Nagar Branch, Bengaluru-560 050, but they were dishonoured with an endorsement as "Funds Insufficient" on 03.08.2017 and thereafter, the complainant has informed the said fact to the accused, but the accused did not responded the same. Hence, the complainant had got issued the legal notice on 09.08.2017 through his counsel by RPAD calling upon him to repay the said borrowed loan amount within 15 days from the date of receipt of this legal notice and it was duly served upon him. Despite service of the legal notice, the accused neither repaid the borrowed the loan amount nor reply to the legal notice issued by the complainant. Hence, the complainant had constrained to file a complaint against the accused for the offence punishable under Section 138 of N.I. Act., which is well within time and based on the records available on record cognizance has been taken and registered it PCR.
3. After recording of the sworn statement of the complainant and complaint is registered in criminal case 4 C.C.NO. 22494 OF 2017 register and after issuance of summons to the accused, pursuant to the summons the accused had appeared before this Court through his counsel and enlarged on bail. The substance of accusation was recorded and read over to the accused in his vernacular. He pleaded not guilty. Hence, claims for trail.
4. In order to prove the case of the complainant, the complainant got himself examined as PW.1 & got 7 documents marked as Ex.P.1 to Ex.P.7 and PW-1 has been fully cross-examined and the statement of accused under Section 313 of Cr.P.C., was recorded and the accused has denied the incriminating statement against him and the accused himself examined as DW-1 and none of the documents marked in support of his case and after completion of the defence evidence, the matter was posted for arguments.
5. Heard arguments.
6. The following points arise for my determination;
1. Whether the complainant proves that the accused had issued two Cheques i.e., Cheque bearing No.809687, dated:01.08.2017 for a sum of Rs.1,00,000/- and another cheque bearing No.809688, dated:01.08.2017 for a sum of Rs.80,000/- both the cheques drawn Canara Bank, Kalidasa 5 C.C.NO. 22494 OF 2017 Layout Branch, Bengaluru, for discharge of the amount and when the said cheques presented for encashment, they were dishonoured with an endorsement "Funds Insufficient" and after issuance of the legal notice he fails to repay the said amount and Thereby, the accused have committed offence punishable U/s. 138 N.I.Act?
2. What order ?
7. My answer to the above points are;
Point No.1 : In the Affirmative
Point No.2 : As per final order for the
following;
REASONS
8. POINT NO.1: On perusal of the evidence of PW-1 he has reiterated as per the averments made in the complaint and he has got marked 7 documents namely, two cheques which are marked as Ex.P1 and Ex.P2, the signature of the accused therein which are marked as Ex.P1(a) and Ex.P2(a), two bank endorsements which are marked as Ex.P3 and Ex.P4, the office of the legal notice which is marked as Ex.P5, postal receipt which is marked as Ex.P6, postal acknowledgment which is marked as Ex.P7.
6 C.C.NO. 22494 OF 20179. During the course of cross of PW-1 he has deposed that, initially he was worked in Jayaram Das Udhyoga Limited, Mysore Road, Bengaluru and the said factory was closed in the year 1987 and now he is not doing any other avocation and he was getting an amount of Rs.500/- as Senior Citizen Pension from the Government. It is true that, he has not specifically stated in his legal notice, complaint and in his examination-in-chief that, when actually exact date on which, he was advanced the loan in question to the accused. He deposed that, he was advanced the loan in question to the accused for the purpose of his avocation, but he did not know exact on which avocation, he was advanced the loan in question to the accused. He has not produced any documents that, he was having sufficient source of income for the advancement the loan in question to the accused during the month of December 2016. He deposed that, the accused has issued fully filled up cheques in question. He deposed that, there was more than 70-80 meters distance between their respective houses. It is true that, himself and accused are visited to their respective houses often and often. He denied the suggestion that, he was visited the house of the accused often and often and at that time, he was stolen the signed blank cheques in question which was kept by the accused in his house for their family use. He denied the suggestion that, after receipt of the 7 C.C.NO. 22494 OF 2017 summons issued by the court, the accused has approached the police station and wherein, he was agreed to return the cheques in question and not taken any action against the accused and thereby, the accused has not lodged the complaint before the police station. He deposed that, he was filed cheque bounce case against one Prakash about 20 years ago. He denied the suggestion that, he was filed the cheque bounce case against one Sridevi. He denied the suggestion that, the accused has not at all borrowed the loan in question from him and he has not at all issued cheques in question for repayment of the loan in question to him and he has misused the cheque in question and filed false complaint with an intention to get wrong full gain.
10. During the course of defence evidence, the accused himself examined as DW-1 by way of filing chief affidavit, wherein, he has specifically stated that, he is working as Bank Manager in Centeral Co-Operative Bank, Varthur Branch, Bengaluru and in view of long distance from his home to working place for his domestic purpose, he used to kept the signed blank cheques at his house to enable his family members to use as when and need arise and accordingly, he was kept the signed blank cheques in question in his house and same are misplaced and subsequently, when he was received the summons from 8 C.C.NO. 22494 OF 2017 the court and immediately he went to the police station during the month of November 2017 and wherein, the complainant has agreed to withdrawn the present case against him and thereby, he has not taken legal steps against the accused. He deposed that, he has having financially sound and thereby, question of borrowed the loan in question from the complainant does not arise and accordingly, he prays for acquit him from the case in hand.
11. During the course of cross of DW-1 he has deposed that, he was studied up-to B.Com., and he is working as Bank Manager in District Centeral Co-Operative Bank, Varthur Branch, Bengaluru and now he is promoted as Branch Manager and he came to know about the provision of N.I.Act., He deposed that, his wife by name Sudharani. He deposed that, he is having ATM Card. He deposed that, he has not made any complaint about the misplaced the cheques in question. He deposed that, he was getting monthly salary of Rs.55,000/-. He deposed that, himself and complainant are known to each other for the last 20 years as both of them are close friends. He deposed that, he was not at all borrowed the loan in question from the complainant and he was not at all issued cheques in question to the complainant for discharge the loan in question. He deposed that, he was not lodged any complaint against the complainant with respect to misused 9 C.C.NO. 22494 OF 2017 cheques in question. He denied the suggestion that, he was borrowed the loan in question from the complainant and he was issued cheque in question to the complainant for discharge the loan in question without having sufficient in his bank account with an intention to defeat the claim of the complainant.
12. On perusal of the averments made in the complaint and also documents produced by the complainant is that, it is an admitted fact that, even after issuance of the legal notice by the complainant to the accused prior to filing of the said complaint which was duly served, the accused has not gave any reply notice. Therefore, prior to filing of the said complaint the complainant had complied all the necessary ingredients under Section 138 of N.I.Act. There is no dispute that, Ex.P1 and Ex.P2 cheques are belonging to his own bank account and the signature found on the Ex.P1(a) and Ex.P2(a) are his own signature. There is no dispute that, both of the are known to each other as they are close friends and they are visited their respective houses often and often.
13. It is case of the complainant is that, both the complainant and accused are known to each other and they are close neighbourer and on account of well acquainted with the complainant, the accused had 10 C.C.NO. 22494 OF 2017 approached the complainant and requested for the advancement of loan amount of Rs.1,80,000/- and accordingly, the complainant has advanced the loan amount of Rs.1,80,000/- and the accused has agreed to repay said amount within a period of three month and accordingly, for discharge the loan in question the accused has issued cheques in question and and assured that, the said cheques would be honoured on its presentation and after presentation of the said cheques, they were dishonoured and same has been informed to the accused, but the accused not responded the same and thereby, the complainant has got issued legal notice through his counsel and same has been duly served upon the accused and after receipt of the accused has failed to repay the borrowed the loan amount and thereby, the complainant has filed the present complaint.
14. On the other hand, the accused has taken specific defence during the cross of PW-1 and during the course of defence evidence that, he was not at all borrowed the loan in question from the complainant and he was not all issued cheques in question to the complainant and he is working in Private Bank as Branch Manager and he has having handsome salary and thereby, question of borrowed the loan in question from the complainant does not arise. Further, the complainant has visited the house of the 11 C.C.NO. 22494 OF 2017 accused often and often and at that time, he was stolen the cheques in question which was kept by the accused in his house and same are misused and filed false complaint and after received the summons issued by the court, the accused has approached the police station and wherein, he has agreed to return the cheques in question and not taken any action against the accused and thereby, the accused has not lodged the complaint before the police station, but to substantiate the same, she has not produced any documentary evidence except oral testimony.
15. If really, he was not at all borrowed the loan in question from the complainant and he has not at all issued the Ex.P1 and Ex.P2 for discharge of the loan in question to the complainant to substantiate the same, he ought to have gave stop payment instruction to his banker, he ought to have gave reply notice to the legal notice issued by the complaint, he ought to have take any legal action against the complainant, he ought to have challenged the cognizance taken by this Court. Therefore, non-performing the aforesaid legal proceedings that itself, it is very much fatal to the alleged defence set-up by the accused during the course of PW-1 and during the course of his evidence.
16. There is no dispute that, Ex.P1 and Ex.P2 cheques are belonging to his own bank account cheques and 12 C.C.NO. 22494 OF 2017 signature found on the Ex.P1(a) and Ex.P2(a) is his own signature. It can be presumed that, the accused has issued the Ex.P1 and Ex.P2 to the complainant knowing fully well without having sufficient funds in his bank account with an intention to defeat the claim of the complainant.
17. The drawer of the cheque have to take abundant precaution prior to issuance of cheque in question. Therefore, in the instant case also. It can be presumed that, no any ordinary prudent man will issue signed blank cheque to any other persons without having monetary transaction between themselves and present complainant is working as Branch Manager. Hence, the probability of the preponderance is higher on the side of the complainant, rather than the accused.
18. Ordinarily offence under Section 138 of N.I.Act "mensrea" is not essential, under Section 138 of N.I.Act , is bring into operation rule of strict liability, whereas, "mensrea" is essential ingredients in criminal offences. Therefore, The complainant has proved her case against the accused, since offence under Section 138 of N.I.Act element of Mensrea has been excluded in general public interest to curb the instances of dishonouring of cheques and to lend the credibility to the commercial transaction. Therefore, in this case also the accused knowing fully he 13 C.C.NO. 22494 OF 2017 was borrowed the loan in question from the complainant and for discharge the loan in question he has issued the Ex.P1 and Ex.P2 to the complainant. Since the present complaint is summary trial and quasi-criminal in nature, it is like recovery proceedings and punishment is fine or in default of it simple imprisonment.
19. Looking to the conduct of the parties to the proceedings, accused who being the Bank Manager of Bengaluru City Central Co-Operative bank and he know the cause and consequence for issuance of signed blank cheques in any other persons without having any monetary transaction in his bank account and the complainant has filed the present complaint in the year 2017 already one years have elapsed and awarding cost of litigation an amount of Rs.20,000/- since the trial faced by the complainant is just and necessary to meet the ends of justice.
20. Hence, in the light of the above observation, the complainant has successfully proved that, the accused has committed offence punishable under Section 138 of N.I. Act with these reasons, I am the opinion that, the complainant successfully established before the Court, the accused has issued Ex.P1 and Ex.P2 to the complainant for the legally recoverable debt of Rs.1,80,000/- including cost of 14 C.C.NO. 22494 OF 2017 litigation. Therefore, I answer the point No.1 in the affirmative.
21. Point No.2 :- In view of my findings on Point No.1 in the affirmative, I proceed to pas the following...
ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of Rs.2,00,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for Two Months.
Further, ordered that, out of the said fine amount of Rs.1,98,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of Rs.2,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands canceled.
15 C.C.NO. 22494 OF 2017Free copy issued to the accused.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified, corrected and then pronounced by me in the open Court on this the 26th day of October 2018).
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 T. Ramachandraiah List of documents exhibited on behalf of the complainant:
Ex.P.1 & 2 Two Cheques Ex.P.1(a) & 2(a) Signature of the accused Ex.P.3 & 4 Two bank endorsements Ex.P.5 Office Copy of the legal Notice Ex.P.6 Postal receipt Ex.P.7 Postal acknowledgment
List of witnesses examined on behalf of the accused :
DW.1 P. Manjunath List of documents exhibited on behalf of the accused :
NIL XII Addl. Chief Metropolitan Magistrate, Bengaluru City.16 C.C.NO. 22494 OF 2017 17 C.C.NO. 22494 OF 2017
26.10.2018.
Complainant : SG Accused : CB Judgment.
(Vide separate judgment pronounced in the open Court) ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of Rs.2,00,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for Two Months.
Further, ordered that, out of the said fine amount of Rs.1,98,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of Rs.2,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands canceled.
Free copy issued to the accused.
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
18 C.C.NO. 22494 OF 2017 19 C.C.NO. 22494 OF 2017Heard Inference 20 C.C.NO. 22494 OF 2017