Bangalore District Court
Lakshmaiah @ Lakshman vs Ragupathi.Y.N on 1 June, 2019
IN THE COURT OF THE XVIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
PRESENT: MANJUNATHA.K.P, B.A.L, LL.B.
XVIII ADDL.C.M.M., BENGALURU
DATED : THIS THE 1ST DAY OF JUNE 2019
C.C.NO: 23855/2017
COMPLAINANT:- Lakshmaiah @ Lakshman,
S/o Late Gundaiah,
Aged 63 years,
R/at No.304, KPTSLV Durga
Apartment, 8th "A' cross,
Nanjappa Layout,
Vidyaranyapura,
Bangalore-560 0097.
(Repted by Shri JBS, Advocate)
V/s.
ACCUSED:- Ragupathi.Y.N.
Aged about 50 years,
No.25, 4th Cross, 2nd floor,
Anubhavanagar,
Bangalore-560 0072.
Ragupathi.Y.N.
Aged about 50 years,
Process Server
Senior Civil Court,
Doddaballapura Taluk,
Bengaluru Rural District.
(Repted by Sri.RS, Advocate)
JUDGMENT
The complainant has presented the complaint under Section 200 of Cr.P.C against the accused for the alleged offence punishable under Section 138 of N.I. Act. 2 C.C.23855/2017
2) The brief facts of the complainant's case is that:-
The accused is known person and friend of complainant for 1 year. Due to friendship the accused has approached to the complainant in the 1st week of June 2017 for Rs.2 crores for the purpose of developing a solar project and the accused has collected of Rs.2 lakhs only for process fee for getting loan of Rs.2 crores and the complainant has paid Rs.70,000/- cash on 5/6/2017 and Rs.1,30,000/- on June 22/6/2017 by bankers cheque and at the time of taking the said amount of Rs.2 lakhs the accused has agreed with the complainant and further after acceptance of the said amount a memorandum of understanding was also entered into on 22/6/2017, in the said agreement the accused has agreed to repay the said amount on or before 30/6/2017. Even after execution of the said MOU and accepting of Rs.2 lakhs from the complainant side as process fee the accused not initiated any action in securing the loan amount of Rs.2 crores when the complainant has call to the accused mobile phone so many times, the accused will promise to the complainant to pay the said process fee amount within week and like that the whole month of July 2017. The complainant demanded the said amount of Rs.2 lakhs which given by the complainant to accused, the accused has issued a cheque 3 C.C.23855/2017 bearing No. 654770 for Rs.2,00,000/- dated 5/8/2017 drawn on Karnataka Bank Ltd., City Civil Court Branch, Bangalore. When the complainant presented the cheque for two times for encashment, it was dishonored with an endorsement "Funds Insufficient" on 7/8/2017 & 1/9/2017 . Thereafter the complainant issued legal notice on 11/9/2017 calling upon the accused to make payment of the dishonoured cheque amount and the said notice was duly served on the accused. In spite of service of notice, the accused has not complied the same. Hence, complainant is constrained to file this private complaint for the said relief.
3) After receipt of complaint, this court has taken cognizance of the alleged offence and sworn statement of complainant was recorded and process was issued to the accused. He was appeared through his counsel and enlarged on bail and all papers were supplied to him. The substance of plea was recorded and read over and explained in Kannada language to the accused, to which he pleads not guilty and claims to be tried. Hence, posted the case for complainant evidence.
4) In order to prove the complainant case, complainant was examined as P.W.1 and he exhibited Ex.P.1 to Ex.P.6 documents and closed his side. Thereafter, the statement of 4 C.C.23855/2017 accused under Section 313 of Cr.P.C is recorded, read over and explained in Kannada language to which accused has denied the entire incriminating evidence which appears against him. Per contra, accused examined as D.W.1 but he has not exhibited any documents and thereafter posted the case for arguments.
5) Heard the arguments on both sides and perused the entire papers.
6) Now, the following points that arises for my consideration are:-
1) Whether the complainant has made out all the ingredients of Section 138 of N.I. Act to prove the guilt of the accused person?
2) What order?
7) My answer to the above points are as follows:-
POINT NO.1 : In the Affirmative.
POINT NO.2 : As per final order, for the following:-
REASONS
8) POINT NO.1:- As the brief facts of the complainant's case as already stated above, hence I need not repeat the same facts once again to avoid the repetition of the same facts. 5 C.C.23855/2017
9) To bring home guilt against the accused, the complainant/prosecution must prove the following ingredients of Section 138 of N.I. Act.
i) That there is a legally enforceable debt.
ii) That the cheque was drawn from account of Bank for discharge in whole or in part of any debt or other liability which presuppose a legally enforceable debt;
iii) Cheque so issued had been returned due to insufficiency of funds.
10) To prove the aforesaid ingredients of Section 138 of N.I. Act, the complainant filed his chief affidavit and was examined as P.W.1. In his chief examination affidavit he reiterated the entire averments of the complaint. In support of his case he has exhibited Ex.P.1 to Ex.P.6 documents. Ex.P.1 is the cheque, Ex.P.2 is the Bank endorsement, Ex.P.3 legal notice, Ex.P.4 Postal receipt and Ex.P.5 RPAD Postal covers, Ex.P.6 Memorandum of Understanding.
11) On careful perusal of the entire oral and documentary evidence, the admitted facts are that there is no dispute that Ex.P.1 cheque is belongs to the accused and it was dishonoured as per Ex.P.2 endorsement and notice has been issued as per Ex.P.3 and the said notice has been returned with a shara 6 C.C.23855/2017 "intimation delivered" as per Ex.P.5 document. Ex.P.6 Memorandum of Understanding held between the complainant and accused. On the other hand accused examined as D.W.1 and in his evidence he stated before the court that he is working as Bailiff at Doddaballapura court since 12 years and one Venkatakachala assured to raised loan to the project of complainant and Venkatachala has demanded fee of Rs.5 lakhs accordingly complainant has paid Rs.1,30,000/- by way of pay order and complainant has stated that, he has no contact of any auditor etc., DW-1 and complainant have paid Rs.3 lakhs cash to the Venkatachala through Vasudev and when complainant has paid Rs.1,30,000/- by way of pay order then he has received blank cheque with the accused and he has not received any amount etc.,. Before going to the merits of the case it is just and necessary to reproduce the admissions of D.W.1 for the sake of convenience D.W.1 admissions ¤¦.1 ZÉPÀÄÌ £À£ÀßzÀÄ ªÀÄvÀÄÛ CzÀgÀ°ègÀĪÀ ¸À» PÀÆqÀ £À£ÀßzÀÄ.
ªÀPÁ®wÛ£À°ègÀĪÀ ¸À» £À£ÀßzÀÄ. ¤¦.1 gÀ ¸À», ªÀPÁ®wÛ£À°ègÀĪÀ ¸À» ºÁUÀÆ ¤¦.6 gÀ°ègÀĪÀ ¸À» MAzÉà vÀgÀºÀ EzÉ JAzÀgÉ ¸ÁQëAiÀÄÄ ¤¦.1 ªÀÄvÀÄÛ ªÀPÁ®wÛ£À°ègÀĪÀ ¸À» £À£ÀßzÀÄ, DzÀgÉ ¤¦.6 gÀ°ègÀĪÀ ¸À» £À£ÀßzÀ®è JAzÀÄ ºÉüÀÄvÁÛgÉ. ¸ÀzÀj ªÀÄÆgÀÄ ¸À»UÀ¼À£ÀÄß PÉʧgÀºÀ vÀYÕjUÉ PÀ¼ÀÄ»¸À®Ä vÉÆAzÀgÉÀ E®è. ¤¦.1 ZÉPï ¸ÀA§AzÀ¥ÀlÖAvÉ gÀÆ.1,30,000 rr £À£Àß 7 C.C.23855/2017 ºÉ¸ÀjUÉ zÀÆgÀÄzÁgÀgÀÄ PÉÆnÖzÁÝgÉ JAzÀgÉ ¸Àj. gÀÆ.70,000 £ÀUÀzÀÄPÉÆnÖzÁÝgÉ JAzÀgÉ ¸ÀjAiÀÄ®è. F JgÀqÀÄ ºÀtªÀ£ÀÄß ¤¦.6 gÀ°è £ÀªÀÄÆ¢¹zÁÝgÀà JAzÀgÉ ¸ÁQëAiÀÄÄ gÀÆ.1,30,000 ¥ÀqÉ¢zÉÝãÀÉ JAzÀÄ ºÉÉüÀÄvÁÛgÉ. ¸ÀzÀj rr £ÀA§gï 007165 ¢¢.2.6.2017 JAzÀgÉ ¸Àj. ¸ÀzÀj rr £ÀA§gï£ÀÄß ¤¦.6 gÀ°è £ÀªÀÄÆ¢¹zÁÝgÉ JAzÀgÉ ¸ÁQë £À£ÀUÉ UÉÆwÛ®è, CªÀgÉà £ÀªÀÄÆ¢¹gÀ¨ÉÃPÀÄ JAzÀÄ ºÉÉüÀÄvÁÛgÉ.
12) During the course of arguments complainant counsel Sri. JBS filed the written arguments and memo with rulings. In the arguments complainant counsel vehemently argued that complainant has proved his case by way of oral and documentary evidence and an admissions in the mouth of D.W.1 and he prays to convict the accused by way of relying the following rulings.
1. (2010) 11 SCC 441 Rangppa Vs Sri Mohan
2. (2015) 8 SCC 378 Vasanthakumar Vs Vijayakumari On the other hand Sri. RS opposed the said arguments and argued that absolutely no amount has paid to the accused. The said amount has paid to one Venkatachala and accused also paid amount to the said Venkatachala i.e., complainant and accused have paid Rs. 3 lakhs and when complainant has paid Rs.1,30,000/- by way of pay order then complainant has 8 C.C.23855/2017 received one blank cheque of accused etc., and prays to acquittal of the accused.
13) On careful perusal of the entire oral and documentary evidence as already stated above there is no dispute that Ex.P.1 cheque is belongs to the accused and it was dishonoured as per Ex.P.2 and notice has been issued as per Ex.P.3 and the said notice was returned with a shara "intimation delivered" as per Ex.P.5 postal cover. So, it is settled principal of law that once notice was issued to the proper address and it may returned with unclaimed nor intimation delivered etc., then the service of notice is deemed one. So, here in this case also Ex.P.5 RPAD cover has returned with a shara of 'intimation delivered' and further there is no serious dispute in the present case about non service of notice on accused , as such it is needless to discuss on fact of service of notice is concerned. Further, it is necessary to reproduce the recitals of Ex.P.6 Memorandum of Understanding for the sake of convenience Para 3. The second party has paid a sum of Rs.70,000/- (Rupees Seventy Thousand only) by cash and 1,30,000/- (Rupees One Lakh thirty thousand only) through Banker cheque drawn on State Bank of India in favour of Firty party bearing DD.No.007165 dated 22.6.2017.
9 C.C.23855/2017So, on perusal of the recitals of the Ex.P.6 MOU para No.3 and admissions of D.W.1 those have referred above clearly indicates to the court that complainant has paid Rs.1,30,000/- by way of DD under DD.No.007165 dated 22/6/2017 the very fact admitted by the D.W.1, in his cross-examination and the recitals of Ex.P.6 at para No.3 and admissions of D.W.1, have corroborates with each other i.e, about payment of Rs.1,30,000/- by the complainant to the accused. Of course accused has taken some independent defence that complainant has obtained one blank cheque and he has paid Rs.1,30,000/- i.e, paid the said amount to one auditor etc., To substantiate the said evidence of the accused he has not placed any documents nor examined the alleged auditor Venkatachala nor any other persons. So, in the absence of rebuttal evidence, merely accused has examined as D.W.1 and he denied the complainant case in toto, is not sufficient to disbelieve the complainant case because the averments of the complaint and evidence of P.W.1 and Ex.P.1 to 6 documents, having in corroborative nature i.e., the transactions were held between the complainant and accused with respect to solar project then complainant has paid Rs.1,30,000/- by way of DD as per Ex.P.6 memorandum of understanding and as per the evidence of P.W.1 complainant also paid Rs.70,000/- by way of cash to the accused. 10 C.C.23855/2017 Accordingly to discharge the said amount accused has issued Ex.p.1 cheque and it was dishonoured as per Ex.P.2 and notice has issued as per Ex.P.3 and it was returned with a shara of 'intimation delivered' as per Ex.P.5 postal covers. Of course contrary to the complainant case as already stated above, accused examined as D.W.1 but his evidence is needs to be corroborates by way of independent evidence nor documentary materials. Further, D.W.1 has admitted that cheque is belongs to him and signature also pertaining to him etc. of course P.W.1 also admitted the following point in his evidence they are £Á£ÀÄ gÀÆ.70.000/- £ÀUÀzÀÄ ¢B5.6.2017gÀ°è PÉÆnÖzÉÝ. £ÀUÀzÀÄ PÉÆmÁÖl CªÀjAzÀ gÀ¹Ã¢ ¥ÀqÉAiÀÄ°®è ºÀtªÀ£ÀÄß ¹«¯ï £ÁåAiÀiÁ®AiÀÄ ºÀwÛgÀ ¨ÉAUÀ¼ÀÆj£À ªÀÄzsÁåºÀß 12.30 jAzÀ 1.00 UÀAmÉUÉ PÉÆmÉÖ. CªÀgÀÄ ¥ÉÇæ¸À¸ï ¸ÀªÀðgï DVzÁÝgÉ. CªÀgÀÄ zÉÆqÀ⧼Áî¥ÀÅgÀzÀ°è ºÀUÀ¯É¯Áè PÉ®¸À ªÀiÁqÀÄvÁÛgÉ JAzÀgÉ ¸ÀjAiÀÄ®è.
JAMAiÀÄÄ ¥ÉÃ¥Àgï£ÀÄß ¸ÀgÀ¸Àévï ¨ÁåAPï PÉÆÃ-D¥ÀgÉÃnªï ¨ÁåAPï£À°è ¥ÀqÉzÉ ¤¦.6 JAMAiÀÄÄ£À ¥ÀÅl £ÀA.3gÀ°è PÀĪÀiÁgÀ¸Áé«Ä J£ÀÄߪÀªÀgÀÄ AiÀiÁgÀÄ JAzÀgÉ ¸ÁQë DgÉÆæ PÀĪÀiÁgÀ¸Áé«Ä Crlgï JAzÀÄ ºÉýzÀÝgÀÄ JAzÀÄ ºÉüÀÄvÁÛgÉ. D §UÉÎ zÁR¯Áw PÉÆqÀÄwÛÃgÁ JAzÀgÉ ¸ÁQë J¯Áè DgÉÆæAiÉÄà ªÀiÁr¹zÀÝgÀÄ JAzÀÄ ºÉüÀÄvÁÛgÉ ¸ÀgÀ¼À PÀȵÀÚ ªÀÄÆwðgÀªÀgÀ£ÀÄß £À£ÀUÉ ¥ÀjZÀAiÀÄ ªÀiÁr PÉÆqÀ°®è ¸ÀgÀ¼À PÀȵÀÚ ªÀÄÆwðgÀªÀgÀ ¸À»AiÀÄ£ÀÄß ¤¦.6PÉÌ ¥ÀqÉAiÀÄ°®è. 11 C.C.23855/2017 But the said admissions have not at all helpful to the accused case because they are minor and to be neglected. Further, in the rulings of the complainant their lordships laid down the following principles.
a) once signature on cheque is admitted by the accused then presumptions under section 139 of NI Act is fallen to the case of the complainant.
b) If complainant has proved the existence of debts between the complainant and accused, then accused is liable to be convicted etc., So as per admissions of D.W.1 as stated supra the cheques is belongs to the accused and signature also pertaining to him and he also admitted about payment of Rs.1,30,000/- by the complainant to the accused. But he denied about receipt of Rs.70,000/- cash and he also taken some independent defence about payment of Rs.1,30,000/- to the one auditor etc., But the said fact has not been proved by the accused. As such I have no hesitation to believe the arguments of the complainant counsel Sri. JBS as stated supra because complainant has proved the ingredients of section 138 of NI Act by way of oral and documentary evidence and on admissions in the mouth of D.W.1. As such accused is liable to be convicted for the offence punishable under Section 138 of N.I. Act because existence of debts between the complainant and accused has proved by the 12 C.C.23855/2017 complainant and also complainant has proved that about payment of Rs.1,30,000/- through DD and on the other hand except oral evidence of D.W.1 there is no rebuttal evidence, hence he is liable to be convicted for the offence punishable under Section 138 of N.I. Act and I answer this Point No.1 in the affirmative.
14) POINT NO.2:- In view of my discussions as stated supra and my findings on Point No.1., I proceed to pass the following.
ORDER
Acting under Section 255 (2) of Cr.P.C,
accused is convicted for the offence
punishable under Section 138 of Negotiable Instruments Act 1881. The accused is sentenced to pay fine of Rs.2,60,000/-
(Rupees Two Lakhs Sixty Thousand Only) and in default shall undergo simple imprisonment for 6 (Six) months.
Acting under Section 357 (1) (b) of
Cr.P.C, out of the fine amount the
complainant is entitled for Rs.2,50,000/-
13 C.C.23855/2017
(Rupees Two Lakhs Fifty Thousand Only) fine amount as compensation.
Acting under Section 357 (1) (a) of Cr.P.C, the balance amount of Rs.10,000/-
(Rupees Ten Thousand Only) is defrayed to the State for the expenses incurred in the prosecution.
(Dictated to the Stenographer, transcribed by her, corrected, revised and signed then pronounced by me in the open court on this the 1st day of June 2019).
(MANJUNATHA.K.P) XVIII A.C.M.M., BENGALURU.
ANNEXURE
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : Lakshmaiah
2) LIST OF DOCUMENTS MARKED FOR 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 demand notice. Ex.P.4 : Postal receipt. Ex.P.5 : Acknowledgement. Ex.P.6 : MOU
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:-
D.W.1 : Raghupathi
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED: -
- Nil -
XVIII A.C.M.M., BENGALURU.14 C.C.23855/2017
15 C.C.23855/2017 1/6/2019 Judgment (Judgment pronounced in Open Court vide a separate Order) ORDER Acting under Section 255 (2) of Cr.P.C, accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act 1881. The accused is sentenced to pay fine of Rs.2,60,000/- (Rupees Two Lakhs Sixty Thousand Only) and in default shall undergo simple imprisonment for 6 (Six) months.
Acting under Section 357 (1) (b) of
Cr.P.C, out of the fine amount the
complainant is entitled for Rs.2,50,000/-
(Rupees Two Lakhs Fifty Thousand Only) fine amount as compensation.
Acting under Section 357 (1) (a) of Cr.P.C, the balance amount of Rs.10,000/- (Rupees Ten Thousand Only) is defrayed to the State for the expenses incurred in the prosecution.16 C.C.23855/2017
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
XVIII A.C.M.M., BENGALURU.