Bangalore District Court
Dr. Nagaraju. E vs Thyagadakatte Puttappa on 5 October, 2016
IN THE COURT OF XIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU.
:: PRESENT ::
SMT. C.G. VISHALAKSHI, B.A.L, L.L.B.,
XIII A.C.M.M Bengaluru.
C.C. NO. 22470/2015
Dated: This the 5th day of OCTOBER - 2016
COMPLAINANT/S: Dr. Nagaraju. E.
S/o. Eshwarappa,
Aged about 41 years,
R/at. No.662/1, 10th 'D' Main,
Dr. Rajkumar Road,
Rajajinagara 6th Block,
Bangalore - 560010.
ACCUSED: Thyagadakatte Puttappa
Bargeshappa,
S/o. Puttappa Thyagadakkate,
Lakkappa,
Aged about Major,
R/at. No.20, 2nd Cross, 1st Main,
Magadi Main Road,
Gollara Hatti, Vishwaneedam Post,
Bangalore - 560091.
And also working at:
Munjanath Bargesh & Associates,
Charted Accounts,
No.56, 10th Cross,
2nd Main, 2nd Stage,
Off West of Chord Road,
Mahalaxmipuram,
Bangalore-560086.
JUDGEMENT 2 C.C.22470/2015
OFFENCE U/s.138 of Negotiable
Instruments Act.
Plea of the accused Pleaded not guilty
Final order Convicted
*****
JUDGEMENT
This complaint is filed against the accused under Section.200 of Cr.P.C. for the offence punishable under Section.138 of Negotiable Instruments Act.
2. The gist of the complaint is as follows:
The complainant and accused are known to each other since several years and he is his friend. In the month of March-2015 the accused had approached the complainant requested him for hand loan of Rs.5,00,000/- to meet his urgent needs and to clear earlier debts. On the very same day the accused had agreed that he would repay the said amount within three months. Accordingly, the complainant being a generous in nature, by believing the words of the accused, had paid a sum of Rs.5,00,000/- JUDGEMENT 3 C.C.22470/2015 infavour of the accused on 05-03-2015. On the same day the accused had issued post dated cheque bearing No.293825, dated: 05-06-2015 for Rs.5,00,000/- drawn on State Bank of India, West of Chord Road Branch, Bangalore infavour of the complainant. The accused had executed promissory note and loan agreement infavour of the complainant for having borrowed the loan. The accused had requested the complainant to present the said cheque on its respective date and assured about its honour. As per the request and direction, when the complainant presented the said cheque for encashment on the date on which it is mentioned on the cheque, then the said cheque was returned unpaid for the reason 'Funds Insufficient' vide memo dated: 06-06-2015. Thereafter, the complainant personally informed the accused about the dishonour of the above said cheque, but accused with an intention to a wrongful gain and cause a wrongful loss to the complainant, has started avoiding the complainant. Hence, the complainant had issued legal notice against the accused on 19-06-2015 calling upon the accused to pay the amount covered under the cheque by narrating the fact JUDGEMENT 4 C.C.22470/2015 of dishonour of the cheque and demanded him to pay the cheque amount. The notice sent under RPAD was duly served on the accused on 22-06-2015. Despite of the same, the accused has failed to comply with demands of notice, but gave evasive reply. Hence, having no other go the complainant approached this court with this complaint against the accused alleging that, the accused has committed an offence punishable under Section.138 of Negotiable Instruments Act and prays to deal the accused in accordance with law.
3. On presentation of the complaint, this court has taken cognizance of the offence, Sworn statement of the complainant was recorded. On perusal of the documents and on hearing the complainant, process was issued against the accused. In pursuance of the process, the accused appeared before this court and enlarged on bail. Copies of the complaint papers supplied to him. Substance of accusation was readover and explained to the accused. Accused did not pleaded guilty and claims to be JUDGEMENT 5 C.C.22470/2015 tried. Hence, the matter was posted for the evidence of the complainant.
4. In order to prove the case of the complainant, the complainant got examined himself as PW.1 and got marked documents as Ex.P1 to P10 and closed his side evidence. After completion of the complainant's evidence, the accused was examined under Section.313 of Cr.P.C. and her statement was recorded. The accused denied all the incriminating evidence appeared against her and chosen to lead her defence evidence. To substantiate his defence and to falsify the claim of the complainant the accused examined himself as DW.1 but no documents marked on his behalf.
5. Heard arguments.
6. Upon reading the entire materials on record and on hearing the arguments, the following points that arise for my consideration:
PIONTS
1. Whether the complainant proves beyond all shadow of doubt that, the JUDGEMENT 6 C.C.22470/2015 accused has committed an offence punishable under Section.138 Negotiable Instruments Act?
2. What order?
7. My answers to the above points are as follows:
Point No.1: In the Affirmative
Point No.2: As per the final order, for the
following.
:: REASONS ::
8. POINT NO.1: As the accused did not pleaded
guilty, the complainant has chosen to examine himself as PW.1 and got marked documents as Ex.P1 to P10.
9. As per the decision reported in ILR 2008 KAR PAGE- 4629 between Shivamurthy V/s Amruthraj and in another decision rendered by the Hon'ble Apex court in AIR-2008 SC-1325 between Krishna Janardharn Bhat V/s Dattareya G. Hegde, in order to attract Sec.138 of N.I Act, the complainant has to satisfy 3 essential ingredients like, 1) there is legally enforceable debt, 2) that the cheque JUDGEMENT 7 C.C.22470/2015 was drawn from the account of the Bank of the accused for discharge of whole or part of any debt or other liability which pre-supposes to be legally enforceable debt, 3) cheque so issued returned unpaid due to Insufficient of funds.
10. Keeping the ingredients of Section.138 of Negotiable Instruments Act, I proceed to discuss the documents of this case.
(a) Ex.P1 is cheque bearing No.293825, dated: 05-06-
2015 for Rs.5,00,000/-, drawn on State Bank of India, West of Chord Road Extension Branch, Bangalore-86. According to complainant, Ex.P1(a) is the signature of the accused. On perusal of the original complaint i.e., Ex.P10, it is clear that it buttress the stand taken by the complainant herein.
(b) Ex.P2 is the cheque return memo, it shows that the above said cheque i.e., Ex.P1 was returned unpaid dated:
06-06-2015, because of the reason that 'Funds Insufficient'.JUDGEMENT 8 C.C.22470/2015
(c) It must be noted as per Clause (b) proviso to Section.138 of Negotiable Instruments Act, the complainant was required to make a demand for payment of the said amount within 30 days from the date of receipt of cheque as un-paid.
(d) Ex.P3 is copy of the legal notice dated: 19-06-2015, which shows that the complainant made demand in writing calling upon the accused to make repayment of the said cheque amount by issuing notice against him which is within 30 days.
(e) Ex.P4 is the postal receipt and Ex.P5 is the postal acknowledgment, which shows that notice was sent against the accused under RPAD.
As per Clause (C) proviso to Section.138 of N.I Act, the accused is entitle 15 days time to make payment of money covered under cheque. Further, as per Sec.142 (b) of N.I Act, complaint has to be filed within 30 days from the date of which the cause of action aroses. Therefore, the complainant had filed this complaint well within time. JUDGEMENT 9 C.C.22470/2015
11. Thus, the complainant has fulfilled all the ingredients, which were required for the completion of the offence punishable under Section.138 of Negotiable Instruments Act.
12. Keeping these documents in view, let us proceed to discuss that, whether the cheque in question belongs to the accused and whether the signatures found on disputed cheques are that of the accused.
13. On reading the entire materials on records, it shows that, there is no dispute with respect to the acquaintance and relationship in between the complainant and accused and so also the fact of monitory transaction in between complainant and accused i.e., about borrowing loan from the complainant. It is also not in dispute so as to the fact that Ex.P1 cheque is belongs to the bank account of the accused and Ex.P1(a) is his signature. It is the defence of the accused that he never borrowed any loan from the complainant to the tune of Rs.5,00,000/- as claimed by the complainant and he never issued this disputed cheque JUDGEMENT 10 C.C.22470/2015 towards discharge of the said debt infavour of the complainant. On the other hand, he was in need of money on 01-03-2015, he had requested the complainant for financial assistance of Rs.2,80,000/- over telephone. The complainant agreeing to pay the loan had asked him to meet him in the evening at his house along with 15 blank cheques on 03-03-2015. Since the accused was in need for loan of Rs.5,00,000/-, the complainant had assured him that he will arrange the said loan and asked him to give 15 blank cheques. Accordingly he went to the house of the complainant on 03-03-2015 along with cheques. The complainant had advanced loan of Rs.2,80,000/- and obtained his signature on blank stamp paper, promissory note, consideration receipt and also obtained 15 signed blank cheques from him. It was agreed in between them to pay interest at the rate of 5% p.m. for the above said loan. Though the complainant had assured to arrange a sum of Rs.5,00,000/- from others, but he has not assisted him for loan. Hence, contended that the complainant by misusing his one of his signed blank cheque pro-notes and documents has filed false complaint against him, though JUDGEMENT 11 C.C.22470/2015 he had borrowed loan only to the tune of Rs.2,80,000/- and he never borrowed a sum of Rs.5,00,000/-. Hence, he denied the very loan transaction in between himself and the complainant to the tune of Rs.5,00,000/-.
14. Thus, there is no dispute so as to the fact that Ex.P1 cheque is belongs to the bank account of the accused and Ex.P1(a) is his signature.
15. It is well settled that, admission furnishes best evidence as per the decision laid down in AIR-1981 PAGE- 2085.
Thus in my opinion, the admission given by the accused is sufficient to come to conclusion about the execution of Negotiable Instruments Act (cheque in question) is admitted as well as proved.
16. In view of the decision reported in 2010 SC 1898 between Rangappa V/s Mohan, once the execution of Negotiable Instruments Act is either proved or admitted, then the court shall draw a presumption U/s.139 of N.I JUDGEMENT 12 C.C.22470/2015 Act, in favour of the complainant to that effect that the said Negotiable Instrument i.e., the disputed cheque has been drawn for valid consideration and it is towards legally recoverable debt and it is drawn for valuable consideration.
17. Having admitted the fact that Ex.P1 cheque is belongs to the bank account of the accused and Ex.P1(a) is her signature, presumption arose infavour of the complainant under Section.139 of Negotiable Instruments Act. Hence, the burden is on the accused to rebut the same with probable evidence.
18. To establish his defence, the counsel for accused has cross-examined PW.1. During cross-examination, the counsel for the accused elicited some evidence from the mouth of PW.1 with regard to the discrepancy in the date of advancement of loan by suggesting that as per Ex.P6 loan agreement and Ex.P7 on demand promissory note, the date of lending loan is mentioned as 03-03-2015, whereas as per the say of the complainant he has advanced loan on 05-03-2015 and elicited that there was no written JUDGEMENT 13 C.C.22470/2015 agreement between the complainant and the accused prior to 05-03-2015 etc., with this the accused made an attempt to say that there was no loan transaction between complainant and the accused on the date of alleged execution of documents like on demand promissory note and consideration receipt i.e., Ex.P7 and P8 and no consideration has been passed to the accused etc. With this the accused made an attempt to say that no loan of Rs.5,00,000/- was advanced in his favour. On the other hand, those documents are concocted and created by misusing his signed stamp paper, pro-note and consideration receipt. But PW.1 has given explanation to the said suggestion that there was prior talks pertaining to loan transaction of Rs.5,00,000/- on 03-03-2015 and documents like loan agreement, demand promissory note and consideration receipt were prepared on 03-03-2015 only, but he has advanced the loan infavour of the accused on 05-03-2015.
19. Further as per the evidence of accused, the alleged loan transaction was on 03-03-2015. That means to say JUDGEMENT 14 C.C.22470/2015 that as per the evidence of DW.1, he was called by the complainant to his home with cheques in respect to the loan transaction on 03-03-2015. This corroborates the fact that there was talks in between the complainant and the accused on 03-03-2015 itself in respect to the loan transaction and the documents like loan agreement, on demand pro-note and consideration receipt were prepared on 03-03-2015 itself. But according to the complainant, he had advanced loan infavour of the accused on 05-03-2015.
20. To substantiate the said fact that he has relied on the documents like demand promissory note and consideration receipt which is marked at Ex.P7 and P8. On careful perusal of the said documents it shows that witness to the said documents like on demand promissory note and consideration receipt i.e., Ex.P7 and P8 namely D.J. Sudhakar and one Naveena have affixed their signatures with date as 05-03-2016. This corroborates the say of the complainant that though documents was prepared on 03- 03-2015, but the complainant had advanced loan amount of Rs.5,00,000/- infavour of the accused on 05-03-2015 JUDGEMENT 15 C.C.22470/2015 and accordingly the accused has executed documents like loan agreement, demand promissory note and consideration receipt on 05-03-2015 on receipt of loan of Rs.5,00,000/- from the complainant in the presence of witness. Thus, the consideration against the accused was passed on 05-03-2015, on evidencing this fact witnesses have affixed their signature. The fact of receipt of amount by the accused is not denied. This clearly goes to show that the alleged loan transaction in between the complainant and the accused was on 05-03-2015 itself, though documents were prepared on 03-03-2015. Mere the fact that there is some discrepancy with regard to the date of the preparation of the documents cannot take away the entire case of the complainant, when there is clear evidence to show that the complainant had advanced loan of Rs.5,00,000/- infavour of the accused on 05-03-2015.
21. Though at one stretch the counsel for the accused made an attempt to say that the documents were got prepared by the complainant himself and he only had purchased stamp paper. No doubt, the documents was got JUDGEMENT 16 C.C.22470/2015 purchased by the complainant only at Rajajinagar Sub- Registrar Office on 03-03-2015, but according to him, it was got prepared by the accused after due discussion with himself and the complainant with regard to the loan transaction and thus, the said documents were brought prepared by the accused on 05-03-2015 and under the said documents he had advanced loan of Rs.5,00,000/- infavour of the accused. Hence, the said technicality or discrepancy does not takeaway the entire case of the complainant.
22. Further, though accused has taken the defence that the complainant though had assured him to assist loan of Rs.5,00,000/- with others and on such assurance had obtained his signed blank cheque, signed blank pro-note and consideration receipt and signature on blank stamp paper etc., and thereafter he had not assisted him for loan of Rs.5,00,000/-, but by misusing his signed documents has filed this false case against him etc. But to substantiate the said defence, nothing has been elicited from the mouth of PW.1 during cross-examination as PW.1 JUDGEMENT 17 C.C.22470/2015 denied each and every suggestions of the accused's counsel in that regard. Thus, except bare suggestion and denial nothing has been elicited from the mouth of PW.1 in explaining the circumstance how his signed blank cheques went to the possession of the complainant.
23. Further though accused has taken the defence of concoction of on demand promissory note and loan agreement by suggesting that the complainant had created the documents by obtaining the signature of the accused on blank stamp paper, pro-note and consideration receipt, etc. But having admitted the signature on the loan agreement, on demand pro-note and consideration receipt, burden is on him to prove the fact that the said document has been created by the complainant by placing necessary evidence. But in this regard except his oral assertion, no material evidence has been placed before this court nor he made any attempt to falsify the said documents like loan agreement, on demand promissory note and consideration receipt by examining so called witness of the said documents. Because, it is specific case of the complainant JUDGEMENT 18 C.C.22470/2015 that the accused had executed on demand promissory note and consideration receipt and so also loan agreement for having borrowed loan of Rs.5,00,000/- on 05-03-2015 in the presence of the witness. But it is denied by the accused by taking defence that the complainant had obtained his signature to the blank stamp paper, blank pro-note and other documents, but to prove the said fact he has not chosen to examine so called witness of the alleged loan agreement on demand promissory note and consideration receipt. On the other hand, DW.1 clearly admitted in his evidence that he has not stated in his reply notice with regard to the fact of giving signed blank cheques, pro-notes and loan agreement infavour of the complainant at the time of alleged advancement of loan of Rs.2,80,000/-. Since, he has clearly admitted the said fact and answered the same in Kannada as follows:
"£À£Àß GvÀÛgÀzÀ £ÉÆÃnøï£À°è £Á£ÀÄ ¤¦.1 gÀ ZÉPï ªÀÄvÀÄÛ G½zÀ 14 ZÉPïUÀ¼À£ÀÄß ¸À» ªÀiÁr SÁ°AiÀiÁV PÉÆnÖzÀÝ §UÉÎ ¥ÉÇÃæ£ÉÆÃmï ªÀÄvÀÄÛ ¸Á®zÀ PÀgÁgÀ£ÀÄß SÁ°AiÀiÁV ¸À» ªÀiÁr PÉÉÆnÖzÀÝ §UÉÎ ºÉý®è JAzÀgÉ ¸Àj."JUDGEMENT 19 C.C.22470/2015
24. If really the complainant had obtained his signature on blank stamp paper, on demand pro-note and consideration receipt and so also had obtained his signed blank cheques as alleged by the accused, then certainly he would have stated the said fact in his reply notice. This creates doubt about the say of the accused that the complainant had obtained his signature on blank stamp paper, on demand promissory note and consideration receipt and so also the cheque by advancing the loan only to the tune of Rs.2,80,000/- assuring about arrangement of loan of Rs.5,00,000/- with others and thereafter he has misused and created the documents like loan agreement, on demand promissory note and consideration receipt. Hence, the defence taken by the accused in that regard holds no water.
25. Further the accused is not an ordinary laymen. On the other hand he is a Charted Accountant having worldly knowledge and legal knowledge. When such being the case the say of the accused that he had given signed blank cheques, on demand promissory note and stamp paper JUDGEMENT 20 C.C.22470/2015 infavour of the complainant knowing about the pros and consequences is creates doubt. Further, if at all was there any circumstance of giving signed blank cheques, then he would have given cheques for the amount advanced in his favour and there was no necessity of giving signed blank stamp paper, pro-note and consideration receipt and signed blank cheques that too 15 signed blank cheques against the loan for Rs.2,80,000/- knowingly about the chances of misusing the signed blank cheques. Hence, the say of the accused about giving signed blank cheques, pro- note and consideration receipt is not acceptable one. Further if at all was there any such circumstance of giving signed blank cheques, on demand promissory notes and consideration receipt, then on knowing the fact that the complainant had not arranged the loan of Rs.5,00,000/- from others etc., certainly he would have insisted the complainant to return his signed blank cheques, on demand pro-note and consideration receipt by taking any legal action against the complainant by writing any letter to the complainant demanding him to return his signed blank cheques, on demand pro-note and consideration receipt by JUDGEMENT 21 C.C.22470/2015 narrating the circumstance in which he had given those signed blank cheques, pro-note and consideration receipt. If the complainant not responded for his letter, then he would have caused legal notice against the complainant asking him to return his signed blank cheques, on demand promissory note, consideration receipt and stamp paper by narrating the circumstance in which he had given and in case if the complainant not complied with demands of notice, then he would have lodged police complaint against the complainant or atleast he would have given 'stop payment' instructions to the bank authorities, requesting them to not to honour the cheques in case of their presentation by explaining the circumstance in which he had given his 15 signed blank cheques infavour of the complainant. But no such legal steps have been taken by the accused and no such overtact is forthcoming on the conduct of the accused. On the other hand, as per the admission of the conduct of the DW.1, he has not taken any steps against the complainant. This creates doubt with regard to the say of the accused that the complainant had obtained his signed blank cheques, on demand promissory JUDGEMENT 22 C.C.22470/2015 note and consideration receipt along with stamp paper by giving false assurance of arrangement of funds of Rs.5,00,000/- with others.
26. Unless the accused has proved that he has acted as normal prudent man he could not rebut the presumption which arose in favour of the complainant under Section.139 of Negotiable Instruments Act. Because no prudent man will remain silent without collecting his singed blank cheque allegedly given in transaction as security if the said transaction was not materialized. Hence, the defence taken by the accused is not probable one to dispel the burden, which arose infavour of the complainant as contemplated under Section.139 of Negotiable Instruments Act.
27. Further, at one stretch the accused has taken the defence of monitory capacity of the complainant by suggesting that he had no monitory capacity to advance the loan to the tune of Rs.5,00,000/-, but PW.1 has stated in his evidence that he is practicing Doctor and he visiting JUDGEMENT 23 C.C.22470/2015 Medical Officer for Tata Company and Texttone Company and he is working for honorary to some blood banks and NGO's. This shows that the monitory capacity of the complainant. Further, having admitted the fact of advancement of loan of Rs.2,80,000/- by the accused, the accused indirectly admitted the very monitory capacity of the complainant in advancement of loan of Rs.5,00,000/-. Since the person who has capacity to lend loan infavour of the accused to the tune of Rs.2,80,000/-, certainly he being practicing Medical Officer, has every capacity to lend loan to the tune of Rs.5,00,000/-. Further the accused nowhere denied the occupation of the complainant and about his earnings by putting any suggestion to PW.1 in that regard. Hence, the defence taken by the accused about the monitory capacity also not helpful to the case of the complainant in establishing his defence.
28. Hence, with all these reasons, this court is of the opinion that though accused made an attempt to rebut the presumption which arose infavour of the complainant under Section.139 of Negotiable Instruments Act, but he JUDGEMENT 24 C.C.22470/2015 failed in his attempt. Hence, onus not shifted on the shoulder of the complainant, but it rests on the shoulder of the accused only. On the other hand, the complainant has proved the fact of advancement of loan of Rs.5,00,000/- infavour of the accused by placing necessary documents like loan agreement, on demand promissory note and consideration receipt allegedly executed by the accused for having borrowed loan and also about issuance of disputed cheque towards discharge of debt and also about bouncing back of the cheque for the reason 'Insufficient Funds' and non-compliance of demand notice by the accused despite of service of demand notice against him. Hence, complainant has maintained this complaint in time. Thus, the complainant has proved all the essential ingredients to bring home the guilt of the accused for the offence punishable under Section.138 of Negotiable Instruments Act. Hence, I answered Point No.1 in the Affirmative.
29. POINT NO.2: In view of my discussions on Point No.1 as above, I proceed to pass the following: JUDGEMENT 25 C.C.22470/2015
ORDER Acting under Section. 255(2) Cr.P.C., the accused is convicted for the offence punishable under Section.138 of Negotiable Instruments Act.
The accused shall pay a fine of Rs.7,00,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for Six Months.
Out of the said amount, accused shall be paid Rs.6,95,000/- to the complainant as compensation, as provided under Section. 357 of Cr.P.C. and Rs.5,000/- shall be remitted to the state as fine.
(Dictated to the stenographer, transcribed by him, corrected and then pronounced in open court by me on this the 5th day of October-2016) (C.G. Vishalakshi) XIII A.C.M.M., Bengaluru.JUDGEMENT 26 C.C.22470/2015
ANNEXURE Witnesses examined on behalf of the complainant:
PW.1 : Nagaraju. E. Documents marked on behalf of the complainant:
Ex.P1 : Cheque Ex.P2 : Bank endorsement Ex.P3 : Legal notice Ex.P4 : Postal receipt Ex.P5 : Postal acknowledgement Ex.P6 : Loan Agreement Ex.P7 : On demand promissory note Ex.P8 : Consideration Receipt Ex.P9 : Letter Ex.P10 : Complaint
Witnesses examined on behalf of the accused:
DW.1 : T.P. Bargeshappa Documents marked on behalf of the accused:
- Nil -
(C.G. Vishalakshi) XIII A.C.M.M., Bengaluru.