Bangalore District Court
Rajesh vs Vijayakumar on 29 June, 2022
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 29th day of June - 2022
PRESENT: SRI. N.K.SALAMANTAPI, B.A., LL.B.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.16907/2018
Complainant : Rajesh,
S/o.Late Sanjiv,
Aged about 48 years,
No.25, I Cross, Anjanappa Layout,
Vijayanagar 2nd Stage,
Bengaluru-40.
(Rep. by Sri.V.Padmaraj Mutha, Adv.)
V/S
Accused : 1. Vijayakumar,
S/o.Late Venkataramanappa,
Aged about 48 years,
No.313, Near Mariyamma Temple,
Nagondanahalli,
Whitefield Post,
Bengaluru-66.
2. Vijayakumar,
Prop: Sri Sumuka Enterprises,
Immaadi Halli Road,
Nagondanahalli,
Whitefield Post,
Bengaluru-66.
(Rep.by Sri.Praveen Kumar.H.K, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
Judgment 2 C.C.No.16907/2018
FINAL ORDER : Accused Nos.1 and 2 are
Convicted.
DATE OF ORDER : 29.06.2022.
(N.K.SALAMANTAPI)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
The complainant has presented the instant complaint against the accused Nos.1 and 2 on 19.04.2018 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act for dishonour of cheque amount of Rs.8 lakhs.
2. The brief facts of the complaint are as under:
The complainant has submitted that the accused was his friend and the accused used to get some hand loan from his friends for running his industry and the same were returned with interest. He is also running an industry under the name and style of Sree Industries. He had funds with him and he helped the accused by lending his own money. In the month of January 2018, the accused became due an amount of Rs.8 lakhs to him.
Hence, he requested the accused to make part payment, then accused got issued two cheques for Rs.3,65,000/- and Judgment 3 C.C.No.16907/2018 Rs.35,000/-, in all Rs.4 lakhs, respectively. When he presented the said cheques for encashment, the same came to be dishonoured returned with remarks "Payment Stopped by Drawer". Immediately, he approached the accused and asked him why he stopped payments of cheques, at that time, the accused has stated that he applied loan from the bank and assured to repay the entire amount within 15 days. Further the accused has executed On demand promissory note and consideration receipt in his favour.
The complainant has further contended that towards repayment of the said amount, the accused has issued a cheque bearing No.694781 dated 20.02.2018 for sum of Rs.8 lakhs drawn on Syndicate Bank, Whitefield SSI Branch, Bengaluru in favour of complainant. When he presented the said cheque for encashment through his banker viz., Uco Bank, Vijayanagar, Bengaluru on 20.02.2018, the same came to be dishonoured with an endorsement dated 21.02.2018 stating "Payment Stopped by Drawer". Immediately, again he approached the accused and intimated about dishonour of cheque and demanded for repayment of the cheque amount, at that time, the accused assured that he would pay the same by demand draft, but the accused has not paid. Hence, he got issued legal notice to two Judgment 4 C.C.No.16907/2018 addresses of accused on 03.03.2018 calling upon him to repay the cheque amount by demand draft within 15 days from the date of receipt of the legal notice and the same was served upon accused on 07.03.2018. Despite, the accused neither paid the cheque amount nor replied the notice. Thus, the accused committed an offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
3. After receipt of the private complaint, my predecessor in office took the cognizance and got registered the PCR and recorded the sworn statement. Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process.
4. In response to the summons, the accused appeared through his counsel and obtained bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to accused, wherein, he denied the same and claimed to have the defence.
5. To prove the case of the complainant, he himself choosen to examine as PW.1 and got marked Exs.P1 to P19. The PW.1 was subjected for cross-examination by the advocate for the accused.
Judgment 5 C.C.No.16907/2018 6. Thereafter, incriminating evidence made against the
accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same. In support of the defence, the accused himself was examined as DW.1 and got marked Exs.D1 and D2. The DW.1 was subjected for cross-examination by the advocate for the complainant.
7. Both side counsels have addressed their arguments.
8. On going through the rival contentions, based on the substantial evidence available on record, the following points would arise for determination:
1) Whether the complainant proves beyond all reasonable doubt that he had advanced Rs.8 lakhs hand loan to the accused Nos.1 and 2 and towards discharge of legally recoverable debt or liability, the accused Nos.1 and 2 have issued Ex.P3-cheque in his favour and the said cheque came to be dishonoured for the reasons 'Payment Stopped by Drawer' and even after service of notice, the accused Nos.1 and 2 have failed to repay the cheque amount and thereby accused Nos.1 and 2 have committed an offence punishable under Section 138 of N.I.Act?
2) What Order?
Judgment 6 C.C.No.16907/2018
9. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Affirmative Point No.2 : As per final order, for the following:
REASONS
10. POINT No.1: The complainant has filed this complaint for an offence punishable under Section 138 of Negotiable Instruments Act against the accused and prayed to punish the accused for an offence punishable under Section 138 of Negotiable Instruments Act.
11. To attract Section 138 of Negotiable Instruments Act, complainant should prove that; (1) the accused has issued cheques for discharge of legally recoverable debt. (2) The same were presented through his banker. (3) They were dishonoured on presentation. (4) The notice in terms of provisions was served on the accused and (5) Despite service of notice neither any payment was made nor other obligations, if any were complied within 15 days from the date of receipt of notice.
12. In order to prove his case, the complainant filed his affidavit and himself examined as PW.1, wherein, he has reiterated the averments made in the complaint. In support of his contention, he Judgment 7 C.C.No.16907/2018 relied upon the documents at Exs.P1 to P19. Among them, cheques bearing Nos.694779, 694780 and 694781 issued by the accused for sum of Rs.3,65,000/-, Rs.35,000/- and Rs.8 lakhs, dated 16.01.2018 and 20.02.2018 respectively, all the cheques are drawn on Syndicate Bank, White Field SSI Branch, Bengaluru are marked as Exs.P1 to P3. The signatures of accused are marked as Exs.P1(a) to P3(a). Exs.P4 to P6 are the Bank Endorsements issued by Punjab National Bank and UCO Bank, the contents of Exs.P4 to P7 disclose that the cheques bearing Nos.694779, 694780 and 694781 drawn for Rs.3,65,000/-, Rs.35,000/- and Rs.8 lakhs were dishonoured for the reasons "Payment Stopped by Drawer". Ex.P8 is the Legal Notice dated 03.03.2018, the recitals of Ex.P8 disclose that the complainant has issued this notice to the accused through his counsel. By issuing this notice, complainant called upon the accused to repay the cheque amount of Rs.8,00,000/- by demand draft within 15 days from the date of receipt of notice. Exs.P9 to P11 are the Postal receipts. Exs.P12 and P13 are the postal acknowledgment cards. Exs.P14 and P15 are the On demand promissory note and consideration receipt dated 23.01.2018. Exs.P14(a) and P15(a) are the signatures. Ex.P16 is the private complaint. Ex.P16(a) is the signature of complainant. Ex.P17 is the xerox copy of PAN Judgment 8 C.C.No.16907/2018 Card pertaining to the accused. Ex.P18 is the Statement of account pertaining to the accused issued by Syndicate Bank for the period from 01.09.2016 to 07.09.2017 and Ex.P19 is the colour house photograph. The PW.1 was subjected to the cross-
examination by the advocate for the accused. In support of his case, the complainant through his counsel has relied upon the decisions as under:
a) 2010 AIR SCW 2946 in the case of Rangappa V/s. Mohan.
b) 2015 AIR SCW 3040 in the case of T.Vasanthakumar V/s. Vijayakumari.
c) AIR 2018 SC 3173 in the case of Kishan Rao V/s. Shankargouda.
d) AIR 2018 SC 3601 in the case of T.P.Murugan V/s. Bojan.
e) AIR 2019 SC 2446 in the case of Bir Singh V/s. Mukesh Kumar.
f) AIR 2019 SC 1876 in the case of Rohitbhai Jivanlal Patel V/s. State of Gujarat and another.
g) Crl.A.No.123 of 2021 in the case of M/s.Kalamani Tex & another V/s. P.Balasubramanian.
h) Crl.A.Nos.849-850 of 2011 in the case of Triyambak S.Hegde V/s. Sripad.
i) ILR 1998 KAR 1825 in the case of J.Rajanna Setty V/s. Sri Patel Thimmegowda.
j) 2002 (5) Kar.L.J.516 in the case of Smt.Bhavani V/s.
D.C.Doddarangaiah and another.
I have gone through the above decisions.
Section 118 (a) of Negotiable Instruments Act provides that:
Judgment 9 C.C.No.16907/2018 "Until the contrary is proved, the following presumptions shall be made: (a) of consideration; that every negotiable instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration."
Section 139 of Negotiable Instruments Act provides that:
"It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."
The above presumptions are rebuttable in nature.
13. In order to rebut the presumption available under Sections 118(a) and 139 of Negotiable Instruments Act, the accused has filed his affidavit and examined himself as DW.1. It is the main defence of accused is that he is an illiterate and he does not know procedure to get any loan without the help of known people. One Chamaraj promised him, he would get loan after collecting Rs.50,000/- as advance commission and when he forced either to get the loan sanction from the financial institution or refund the money, the said Chamaraj introduced him the complainant and told him to furnish the documents whatever required by the Judgment 10 C.C.No.16907/2018 complainant and he needs to pay commission of Rs.2 lakhs after sanction of Rs.20 lakhs loan from the Financial Institution for house construction.
14. The accused has further contended in his evidence affidavit that the complainant asked him to furnish his account statement pertaining to Syndicate Bank in order to see his eligibility to get bank loan as per bank transaction, he was unaware of the bank requirements, he had agreed and on 24.11.2017, Sree Industries has transferred a sum of Rs.2 lakhs to his account, on that day itself as per say of the complainant he had withdrawn and paid the same to the complainant. The complainant informed him that Fullerton India Home Finance Institution has sanctioned the home loan of Rs.20 lakhs to him and he told him to bring Aadhaar and PAN Card before the Sub-Registrar Office and he told him that the loan is sanctioned subject to mortgage of his site property and he signed the mortgage deed as witness on 12.01.2018 and the Fullerton India Home Finance Company has handed over the cheque for Rs.19,12,344/-, which was credited to his account on 17.01.2018. The complainant demanded 20% of amount from the sanctioned loan amount, but he told him, he gave only Rs.2 lakhs . The complainant used to threaten him, if he does not pay as demanded by him towards the commission, then he will file Judgment 11 C.C.No.16907/2018 cheque bounce case by using the cheques issued by him for the security of bank loan. The complainant by misusing the cheques given by him for getting the loan sanction and filed this false case against him and he did not take any amount from the complainant and he has not issued the alleged cheques in favour of complainant. In support of his contention, he relied upon the documents at Exs.D1 & D2. Among them, Ex.D1 is the certified copy of mortgage deed executed by accused herein in favour of Fullerton India Home Finance Company Ltd. Ex.D1(a) and D1(b) are signatures of complainant and Ex.D2 is the acknowledgment issued by Station House Officer, White Field Police Station, Bengaluru. In support of his contention, the accused through his counsel has relied upon the decisions as under:
a) Crl.A.No.261 of 2013 in the case of Vijay V/s. Laxman and another.
b) Crl.A.No.1371/2007 in the case of B.Girish V/s. S.Ramaiah.
c) Crl.A.No.1012/1999 in the case of M.S.Narayana Menon @ Mani V/s. State of Kerala and another.
d) Crl.A.No.2402 of 2014 in the case of K.Subramani V/s. K.Damodara Naidu.
e) Crl.R.A.No.256 of 2007 in the case of Rajendraprasad Gangabishen Porwal V/s. Santoshkumar Parasmal Saklecha.
f) Crl.A.No.1805 of 2007 in the case of Binoy K.Kochunny V/s. Rameshkumar.V.K and another.
Judgment 12 C.C.No.16907/2018
15. I have gone through the above decisions, in the above decisions, their lordships observed that:
It is not necessary for the accused to prove his defence beyond reasonable doubt. Complainant should prove there is a legally recoverable debt payable by accused to him. It is not obligatory on the accused to separately adduce the evidence or to enter the witness box. Mere admission of signature on the cheque in question is not sufficient to attract the penal liability under Section 138 of Negotiable Instrument Act.
16. In the present case on hand, the learned counsel for complainant has denied the averments made in the affidavit of accused. It is not the defence of accused that the complainant has not mentioned the date of loan in the complaint and questioned cheques and signature appears on the cheques is not belonging to him. Therefore, the entire burden of proving the defence is on the accused that the complainant misused his cheques which were given for getting sanction of loan. I have perused the evidence adduced by the accused and the evidence adduced by the complainant. Nowhere in the cross-examination, complainant admitted that he has received the cheques for getting sanction of loan to the accused. Therefore, mere denial of the case of complainant is not enough to believe his version.
Judgment 13 C.C.No.16907/2018 It is relevant to cite the decision reported in (2001) 8 SCC 458 in the case of K.N.Beena V/s. Muniyappan and another, wherein, the Hon'ble Apex Court held that:
"In view of the provisions contained in Sections 118 and 139, the court has to presume that the cheque had been issued for discharging a debt or liability. However, the said presumption could be rebutted by the accused by proving the contrary. Mere denial or rebuttal by accused in the reply to the legal notice sent by the complainant not enough. The accused had to prove by cogent evidence that there was no debt or liability."
17. In the present case on hand, the accused did not produce any cogent and convincing materials before this court to believe that they have not issued the alleged cheques in favour of complainant for discharge of legally recoverable debt. It is the burden on the accused to prove his defence by producing sufficient materials before the court. Mere denial of the same is not enough to believe their defence. If really, he has not issued the cheques to the complainant, definitely, he would have taken legal steps against the complainant, but in this case there is no legal action taken by the accused against the complainant. It shows that the accused has issued the questioned cheques for discharge of legally recoverable debt in favour of complainant.
Judgment 14 C.C.No.16907/2018
18. In this case, the DW.1, in his cross-examination, has deposed that:
"¦AiÀiÁð¢UÉ SÁ° 7 ZÉPÀÄÌUÀ¼À£ÀÄß ¸À» ªÀiÁr PÉÆnÖzÉÝãÉ. CªÀÅUÀ¼À°è ¤¦.1 jAzÀ 3 PÀÆqÀ EzÉ. ¤¦.14 ªÀÄvÀÄÛ 15 gÀ ¥ÉÇæ£ÉÆÃmï ªÀÄvÀÄÛ ºÀt ¸ÀAzÀ gÀ²Ã¢AiÀÄ°ègÀĪÀ ¸À» £À£ÀßzÉà JAzÀgÉ ¸Àj."
19. The above testimony of DW.1 discloses that accused has issued alleged cheques along with On demand promissory note and consideration receipt in favour of complainant.
It is relevant to cite the decision reported in Crl.A.No.123/2021 in the case of M/s. Kalamani Tex and another V/s. P.Balasubramanian. Wherein, Hon'ble Apex Court was pleased to held that:
"Para N.14 - Adverting to the case in hand, we find on a plain reading of its judgment that the trial court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under Section 118 and Section 139 of Negotiable Instrument Act. The Statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these 'reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. This point of law has been crystalized by this in Rohitbhai Jeevanlal Patel V/s. State of Gujarat".
Judgment 15 C.C.No.16907/2018 Further, the Hon'ble Apex Court observed that:
Para No.17: "The appellants have banked upon the evidence of DW.1 to dispute the existence of any recoverable debt. However, his deposition merely highlights that the respondent had an over-extended credit facility with the bank and his failure to update his account led to debt recovery proceedings. Such evidence does not disprove the appellants' liability and has a little bearing on the merits of the respondent's complaint. Similarly, the appellants' mere bald denial regarding genuineness of the Deed of Undertaking dated 07.11.2000, despite admitting the signatures of Appellant No.2 thereupon, does not cast any doubt on the genuineness of the said document."
20. In view of the above decision, once the signature(s) of an accused on the cheque/negotiable instrument are established, then these 'reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. In the present case on hand, the accused herein has admitted the signatures on the question cheques at Exs.P1(a) to P3(a) as belong to him. Therefore, the obligation shifts upon him to discharge the presumption imposed upon him. In the case on hand, I do not find any material to create doubt regarding the genuineness of issuance of Exs.P1 to Judgment 16 C.C.No.16907/2018 P3-cheques in favour of complainant for discharge of legally recoverable debt.
21. On carefully perusal of the Exs.P14 and P15-On demand promissory note and consideration receipt produced by the complainant, it shows that the accused has received sum of Rs.8 lakhs and he has agreed to repay the same along with interest as stated in the On demand promissory note and consideration receipt. There is no cogent and convenience materials on behalf of accused to believe his version that he has not issued the Exs.P1 to P3-cheques and execution of Exs.P14 and P15- On demand promissory note and consideration receipt in favour of complainant for discharge of legally recoverable debt. Thus the accused has failed to rebut the presumption available under Section 118(a) and 139 of Negotiable Instruments Act in favour of complainant. In this case, the service of legal notice to the accused sent by complainant is not in dispute. I have perused the 313 of Cr.P.C statement of accused, it appears that the accused has admitted the receipt of notice sent by complainant. From which, it made clear that the legal notice as required under Section 138(b) of Negotiable Instruments Act was served upon accused and deceased complainant has complied the Section 138(b) of Negotiable Instruments Act.
Judgment 17 C.C.No.16907/2018
22. In the case on hand, the complainant by producing oral and documentary evidence has proved his case beyond all reasonable doubt. Mere taking bald defence is not enough to suspect the genuineness of claim of the complainant. There is no cogent and convincing materials on behalf of accused Nos.1 and 2 to believe their version. Thereby, the complainant proved his contention, but accused Nos.1 and 2 without any base took bald and baseless contention. Thus the accused Nos.1 and 2 have failed to rebut the presumption available under Section 118(a) and 139 of Negotiable Instruments Act in favour of complainant.
23. On overall appraisal of the materials available on record, it is the consider opinion of this court that the accused Nos.1 and 2 have failed to discharge initial burden to rebut the statutory presumption as well as the facts and circumstances placed by the complainant in the present case. Thereby, the complainant has proved the guilt of the accused Nos.1 and 2 that they are liable to pay the amount covered under the Ex.P3-cheque. There is no substance in the probable defence of the accused, whereas the complainant has discharged his burden and proved the guilt of the accused. Therefore, keeping in the mind of the object of introduction of Negotiable Instruments Act, it appears this court that it is fit case to convict the accused Nos.1 and 2.
Judgment 18 C.C.No.16907/2018
24. Therefore, from the perusal of oral and documentary evidence placed on record it reveals that complainant has made out his case and accused have failed to rebut the presumptions arisen in favour of complainant. Thus complainant has proved that accused Nos.1 and 2 have committed an offence punishable under Section 138 of Negotiable Instruments Act beyond all reasonable doubt. Hence, in view of the above said reasons, I hold point No.1 in the Affirmative.
25. Point No.2: In view of my findings on point No.1, I proceed to pass the following:
ORDER Acting under Section 255(2) of Cr.P.C the accused Nos.1 and 2 are convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay total fine of Rs.8,20,000/-.
Out of the said fine amount, sum of Rs.8,15,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.5,000/- shall be payable to the state as fine amount.
In default of payment of fine amount, the accused Nos.1 and 2 shall under go simple imprisonment for 08 (Eight) Months.
Judgment 19 C.C.No.16907/2018 The bail bond and cash security/surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused in free of cost.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 29 th day of June - 2022) (N.K.SALAMANTAPI) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Rajesh List of Exhibits marked on behalf of Complainant:
Exs.P1 to P3 : Original Cheques
Exs.P1(a) to P3(a) : Signatures of accused
Exs.P4 to P7 : Bank endorsements
Ex.P8 : Office copy of legal notice
Exs.P9 to P11 : Postal receipts
Exs.P12 & P13 : Postal acknowledgment cards
Exs.P14 & P15 : On demand promissory note and
consideration receipt
Exs.P14(a) & P15(a) : Signatures of accused
Ex.P16 : Private complaint
Ex.P16(a) : Signature of complainant
Ex.P17 : Xerox copy of PAN Card
Ex.P18 : Statement of account
Ex.P19 : Photograph
List of Witnesses examined on behalf of the defence:
DW.1 : Vijay Kumar Judgment 20 C.C.No.16907/2018
List of Exhibits marked on behalf of defence:
Ex.D1 : CC of mortgage deed
Ex.D1(a) & D1(b) : Signatures of complainant
Ex.D2 : Acknowledgment
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 21 C.C.No.16907/2018
29.06.2022.
Comp -
Accd -
For Judgment
Judgment pronounced in the open court vide separate order.
***** ORDER Acting under Section 255(2) of Cr.P.C the accused Nos.1 and 2 are convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay total fine of Rs.8,20,000/-.
Out of the said fine amount, sum of Rs.8,15,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.5,000/- shall be payable to the state as fine amount.
In default of payment of fine amount, the accused Nos.1 and 2 shall under go simple imprisonment for 08 (Eight) Months.
The bail bond and cash security/surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused in free of cost.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 22 C.C.No.16907/2018 Later, the convictee's counsel filed application Under Section 389(3) of Cr.P.C seeking for suspend the sentence for the reasons stated in the application.
Heard.
In the present case, the judgment was pronounced and convicted the accused. In view of the same, the convictee's counsel has prayed that to suspend the sentence by appeal period.
For the reasons stated in the application, for the limited period of prefer appeal only, the application filed by the accused's counsel under Section 389(3) of Cr.P.C. is hereby partly allowed and sentence is suspended till appeal period only.
The convictee is hereby directed to
execute bond for fine amount of
Rs.8,20,000/.
XXIII ACMM, Bengaluru.