Bangalore District Court
Sri. Govindaiah .N.T vs Sri. T. Srinivas on 11 July, 2018
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU
Dated this the 11th Day of July 2018
Present: Sri. Rajkumar .S.Amminbhavi., B.Com., LLB (Spl)
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No. 16205/2017
Complainant: Sri. Govindaiah .N.T
S/o. Thimappa
Aged about 59 Years
Occupation :- Lecturer
R/at. No.52/9, 1st Cross
SBM Colony, BSK 1st Stage
Bengaluru-560 050.
(By Amith Booreddy., Adv)
- Vs -
Accused: Sri. T. Srinivas
S/o. Thimmaiah
Aged about 40 Years
Occupation : Printing Business
R/at. No.1611, 19th Main,
Muneshwara Block
Bengaluru-560 026.
(By. Srinivasagowda, 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: 11.07.2018
******
2 CC No.16205/2017
JUDGMENT
This is a complaint filed by the complainant 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 past seven years. On account of well acquaintance with the complainant, the accused has approached the complainant and requested hand loan an amount of Rs.5,00,000/- during the month of October 2016 in order to meet out his urgent need of money and certain financial commitments and accordingly, considering the request of the accused and on account of good faith and believe the words of the accused, the complainant has advanced an amount of Rs.5,00,000/- to the accused and on that day, the accused has agreed that, he would repay the said amount within a period of three months and after lapse of stipulated period on repeated request and demand made by the complainant to the accused for repayment of the borrowed loan amount and at that time, the accused for discharge the loan in question had issued Cheque bearing No.517155, dated: 04.03.2017 for a sum of Rs.5,00,000/- drawn on State Bank of Mysore, Hanumanthanagar Branch, Bengaluru IN favour of the complainant and assured that, the said cheque would be honoured on its presentation and 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 3 CC No.16205/2017 Mysore, SBM Colony Branch, Bengaluru, but it was dishonoured with an endorsement as "Funds Insufficient"
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 26.04.2017 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 the accused. Despite of service of the legal notice, the accused neither repaid the borrowed loan amount nor reply the legal notice. 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 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 got himself examined as PW.1 & got 6 documents marked as Ex.P.1 to Ex.P.6 and PW-1 has been fully cross-examined and the 4 CC No.16205/2017 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 got marked 10 documents as per the Ex.D1 to Ex.D10 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 Cheque bearing No.517155, dated:04.03.2017 for Rs.5,00,000/- drawn on State Bank of Mysore, Hanumanthanagar Branch, Bengaluru for discharge of the amount and when the said cheque presented for encashment, it was 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;
5 CC No.16205/2017
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 6 documents namely, cheque which is marked as Ex.P1, the signature of the accused therein which are marked as Ex.P1(a), bank endorsement which is marked as Ex.P2, the office copy of the legal notice which is marked as Ex.P3, postal receipt which is marked as Ex.P4, postal acknowledgment which is marked as Ex.P5, statement of account which is marked as Ex.P6.
9. During the course of cross of PW-1 he has deposed that, he know the accused for the last 8 years through his friend by name Neelakantagowda on account of well acquainted with him, the accused has approached him for advancement the loan in question an amount of Rs.5,00,000/- and believing the words of the accused and on account good faith, he was advanced the loan amount of Rs.5,00,00/- to the accused on 25.10.2016 by way of cash and at that time, he was not obtained any documents from the accused. He denied the suggestion that, there is no monetary transaction took place between themselves and thereby, he was not obtained any documents from the accused. He denied the suggestion that, the accused was not issued cheque in question in the year 2017. He was not doing money lending business. He deposed that, he was working as Lecture in Pre-University, Bidadi and he was retired from his service on 31.08.2017. He 6 CC No.16205/2017 denied the suggestion that, he was advanced an amount of Rs.5,00,000/- to the accused on the basis of interest at the rate of 3% interest per month. He deposed that, his wife by name Bhagyamma. He denied the suggestion that, the accused has paid interest an amount of Rs.15,000/- every month to his wife's account upon the principle an amount of Rs.5,00,000/- which was borrowed from him. It is true that, after commencement of the CTS cheques, he was returned the old cheque and thereafter obtained three CTS cheques from the accused. It is true that, he has returned one cheque to the accused on 30.01.2013 after the accused has paid an amount of Rs.1,00,000/- by way of cash so also after the accused has paid an amount of Rs.1,25,000/- by way of cash, he was returned back the another cheque to the accused. It is true that, the accused has paid an amount of Rs.1,50,000/- on 28.03.2015 to his account through the cheque and same has been received by him. He denied the suggestion that, even after repayment of the borrowed the loan amount of Rs.5,00,000/-, he was failed to return the cheque in question to the accused and same has been misused and filed false complaint against the accused. It is true that, he was withdrawn an amount of Rs.5,00,000/- from this bank account through self cheque on 24.10.2016 and same has been advanced to the accused on 25.10.2016 and to that effect, he has produced his bank account statement which is marked as Ex.P6. It is true that, prior to advancement the loan in question, the accused used to borrowed the loan from him and same has been returned to 7 CC No.16205/2017 him and the said fact, he has been not stated in his complaint and in his legal notice, but the witness voluntaries that, it relates to previous transaction and it is altogether different from the present case in hand as he was advanced the loan in the month of October 2016.
10. After recording the statement of accused, the accused himself examined as DW-1 by way of filing an examination-in- chief affidavit, wherein, he has specifically contended that, he know the complainant, but he was never approached the complainant and borrowed the loan in question from him and he was not at all issued cheque in question for discharge the loan in question and no any other transaction held between himself and the complainant in the year 2016. He deposed that, he was borrowed the loan an amount of Rs.5,00,000/- from the complainant in the month of April 2012 at the rate of 3% per month interest and at that time, he was issued five MICR cheques to the complainant for the security purpose and subsequently, he was paid interest amount to his wife's bank account by way of cheques as well as cash. He deposed that, the in the year 2013 the complainant has return back old cheques and again he was issued CTS cheque drawn on State Bank of Mysore, Hanumanthanagar Branch, Bengaluru and subsequently, he has paid an amount of Rs.1,00,000/- on 30.04.2013, but the complainant has failed to return the cheque bearing No.304961 drawn on State Bank of Mysore, Hanumanthanagar Branch, Bengaluru and again he was paid an amount of Rs.1,50,000/- by way of cheque bearing 8 CC No.16205/2017 No.145152 on 26.03.2015 and an amount of Rs.1,50,000/- on 06.05.2015 by way of cheque bearing No.151155 both the cheques drawn on Suvarna Co-Operative Bank Limited, Srinagar Branch, Bengaluru. He deposed that, he was paid an amount of Rs.1,25,000/- by way of cheque bearing No.304961 on 10.12.2015 drawn on State Bank of Mysore, Hanumanthanagar Branch, Bengaluru towards balance amount along with interest as full and final settlement, but the said cheque was dishonoured and then the complainant has return the cheque and collected the amount. He deposed that, the complainant has failed to return the cheque in question which was issued for the security purpose even after repayment of the entire borrowed loan amount and to with an intention to get wrong full gain, he has misused the cheque in question and filed the false complaint against the accused. Hence, he prays for dismissal of the present complaint. Further, with respect to the payment made by him by way of cheque, he was produced his bank passbook and same is marked as Ex.D1 and wherein relevant entry with respect to the payment made by him to the complainant which is marked as Ex.D1(a) to 1(j) respectively. He has produced two cheques which are issued to the complainant for the security purpose and same are marked as Ex.D2 and Ex.D3, he has produced the cheque bearing No.147080 which is marked as Ex.D4 and the said cheque presented for encashment and same was dishonoured with "Funds Insufficient" and the said endorsement which is marked as Ex.D5, he has produced the cheque bearing No.147096 and No.148875 which were issued 9 CC No.16205/2017 to the wife of the complainant and same are marked as Ex.D6 and Ex.D8 and the Ex.D6 and Ex.D5 presented for encashment and they were dishonoured and the said endorsements which are marked as Ex.D7 and Ex.D9, he has produced his statement of account which is marked as Ex.D10 and therein relevant entries which are marked as Ex.D10(a) and Ex.D10(b). He deposed that, he was borrowed the loan amount of Rs.5,00,000/- and same has been repaid to the complainant and even after repayment of the borrowed loan amount, the complainant has failed to return the cheque in question which was issued for the security purpose and same has been misused and filed false complaint. Hence, for all other reasons he prays for dismissal of the present complaint.
11. During the course of cross of DW-1 he has deposed that, he was running printing press for the last 10 years. He know the complainant and his family members for the last eight years. He deposed that, he was not received any amount from the complainant or his family members for the purpose of his personal needs and his business purpose. He deposed that, he was borrowed the loan amount of Rs.5,00,000/- from the complainant in the month of April 2012, but to that effect, he was not produced any documents. It is true that, apart for the present complainant, he was borrowed the loan amount from other persons for his personal needs and for his business purpose. He do not know wife of the complainant. He deposed that, he was repaid 10 CC No.16205/2017 the borrowed the loan amount by way of cheque as well as cash. He denied the suggestion that, he was borrowed the loan amount of Rs.5,00,000/- from the complainant on the basis of the interest at the rate of 3% per month in the month of April 2012. He denied the suggestion that, he was borrowed the loan amount of Rs.5,00,000/- from the complainant in the month of October 2016 and at that time, he was agreed that, he will repaid the said loan amount within three months. It is true that, Ex.P1 cheque belonging to his own bank account cheque and the signature found on the Ex.P1(a) is his own signature. He has admitted that, the signature found on the Ex.P5 is his own signature and same is marked as Ex.P5(a) and after receipt of the legal notice he was approached the complainant personally and thereby, he was not given reply notice the complainant. He was not produced any documents that, he was repaid the borrowed the loan amount to the complainant. He deposed that, there is no any impediment to him for issuance of the legal notice to the complainant, but the witness voluntaries that, he was made telephonic call to the complainant and the complainant has stated that, he would return the cheque in question and thereby, he was not given the reply notice. He denied the suggestion that, he was borrowed the loan in question from the complainant and for repayment of the borrowed the loan amount he was issued cheque in question and he was created the Ex.D1 to Ex.D10 with an intention to escape from his liability and to defeat the claim of the complainant.
11 CC No.16205/201712. On perusal of the averments made in the complaint, evidence of the respective parties and the coupled with the documents produced by the respective parties. There is no dispute that, both of the them are known to each other. There is no dispute that, prior to filing of the present complaint, the complainant has complied all the necessary ingredients under Section 138 of N.I.Act., There is no dispute that, Ex.P1 cheque belonging to his own bank account and the signature found on the Ex.P1(a) is his own signature.
13. It is the case of the complainant that, on account of well acquainted with the accused, he was advanced the loan amount of Rs.5,00,000/- to the accused and the accused has issued cheque in question for repayment of the borrowed loan amount and when the said cheque presented for encashment and it was dishoured and subsequently, he was issued legal notice to the accused and after receipt of the legal notice the accused has failed to gave reply notice or repay the borrowed loan amount and thereby, he has filed the present complaint.
14. On the other hand, it is specific defence of the accused is that, he was borrowed the loan an amount of Rs.5,00,000/- from the complainant in the month of April 2012 at the rate of 3% per month interest in the year 2012 and at that time, he was issued five MICR cheques to the complainant for the security purpose and subsequently, he was paid interest amount to his wife's bank account by way of cheques as well 12 CC No.16205/2017 as cash and in the year 2013, the complainant has return back old cheques and again he was issued CTS cheque drawn on State Bank of Mysore, Hanumanthanagar Branch, Bengaluru and subsequently, he has paid an amount of Rs.1,00,000/- on 30.04.2013, but the complainant has failed to return the cheque bearing No.304961 drawn on State Bank of Mysore, Hanumanthanagar Branch, Bengaluru and again he was paid an amount of Rs.1,50,000/- by way of cheque bearing No.145152 on 26.03.2015 and an amount of Rs.1,50,000/- on 06.05.2015 by way of cheque bearing No.151155 both the cheques drawn on Suvarna Co-Operative Bank Limited, Srinagar Branch, Bengaluru and he was paid an amount of Rs.1,25,000/- by way of cheque bearing No.304961 on 10.12.2015 drawn on State Bank of Mysore, Hanumanthanagar Branch, Bengaluru towards balance amount along with interest as full and final settlement, but the said cheque was dishonoured and then the complainant has return the cheque and collected the amount and the complainant has failed to return the cheque in question which was issued for the security purpose even after repayment of the entire borrowed loan amount and to with an intention to get wrong full gain, he has misused the cheque in question and filed the false complaint against the accused and to substantiate the same he was not produced any documents except his oral testimony. Therefore, the alleged defence taken by the accused during the course of his defence evidence is not sustainable.
13 CC No.16205/201715. 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 for discharge of the loan in question to the complainant, 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 challenged the cognizance taken by this Court, he ought to have lodged private or police complaint against the complainant. 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 cross of his evidence and the cross of PW-1. There is no dispute that, Ex.P1 cheque is belonging to his own bank account cheque and signature found on the Ex.P1(a) is his own signature. It can be presumed that, the accused has issued the Ex.P1 to the complainant knowing fully well without having sufficient funds in his bank account with an intention to defeat the claim of the complainant. Further, it can be presumed that, the documents which are produced by the accused and same are marked as Ex.D1 to Ex.D10 the said documents relates to the previous transaction and the said documents are not relevant case in hand.
16. With respect to the source of income of the complainant, he being the lecture by profession and he was retired from his service and thereby, during the course of his service, he was getting handsome salary and after retirement he was received retirement benefit and he being the pensioner. Therefore, it 14 CC No.16205/2017 can be presumed that, he was having sufficient source of income for advancement the loan in question to the accused. Further, the complainant has stated that, he was withdrawn an amount of from his bank account through self cheque and same has been advanced to the accused and to substantiate the same, he was produced his statement of account as pr the Ex.P6. Therefore, an adverse inference is to be drawn that, the accused has borrowed the loan in question from him and for discharge the loan in question he was issued cheque in question without having sufficient funds in his bank account with an intention to defeat the claim of the complainant.
17. Further, the complainant has proved his case by adducing cogent and corroborative evidence under Section 138 of N.I.Act., On the other hand, the accused has failed to rebut his case by adducing cogent and corroborative evidence under Section 139 of N.I.Act., 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. It can be presumed that, the drawer of cheque has to take abundant precaution prior to issuance of the signed blank cheque to any other persons. 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"
15 CC No.16205/2017is essential ingredients in criminal offences. Therefore, The complainant has proved his 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 cheque and to lend the credibility to the commercial transaction. Therefore, in this case also the accused knowing fully he was borrowed the loan in question from the complainant and for discharge the loan in question he has issued the Ex.P1 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. 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 to the complainant for the legally recoverably debt. Therefore, I answer the point No.1 in the affirmative.
20. Point No.2 :- In view of my findings on Point No.1 Partly 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.
16 CC No.16205/2017 The accused shall pay a fine of
Rs.5,00,000/-. In default of payment of said
fine amount, the accused shall undergo simple imprisonment for three months.
Further, ordered that, out of the fine amount of Rs.4,95,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of Rs.5,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands cancelled.
Free 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 11th day of July 2018).
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 Govindaiah .N.T List of documents exhibited 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 Office copy of the legal Notice
17 CC No.16205/2017
Ex.P.4 Postal receipt
Ex.P.5 Postal acknowledgment
Ex.P.5(a) Signature of the accused
Ex.P.6 Statement of account
List of witnesses examined on behalf of the accused :
DW-1 T. Srinivas List of documents exhibited on behalf of the accused :
Ex.D1 Bank passbook Ex.D1(a) to 1(j) Relevant entries in Ex.D1 Ex.D2 to 4 Three Cheques Ex.D5 Bank endorsement Ex.D6 Cheque Ex.D7 Bank endorsement Ex.D8 Cheque Ex.D9 Bank endorsement Ex.D10 Statement of Account Ex.D10(a) Relevant entry in Ex.D10 XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
18 CC No.16205/201711.07.2018.
Complainant : AB Accused : SG 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.5,00,000/-. In default of payment of said
fine amount, the accused shall undergo simple imprisonment for three months.
Further, ordered that, out of the fine amount of Rs.4,95,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of Rs.5,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands cancelled.
Free copy issued to the accused.
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
19 CC No.16205/2017 20 CC No.16205/2017Heard Inference 21 CC No.16205/2017 22 CC No.16205/2017