Bangalore District Court
M.P.Kariappa vs Basavaraj.K on 9 December, 2016
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 9th day of December - 2016
PRESENT: SRI. S.G.SALAGARE, B.Sc., LL.B.,(Spl)
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.1514/2013
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : M.P.Kariappa,
S/o.Late.Ponappa,
Aged about 59 years,
R/at No.391, 1st Main,
Jagajyothi Basaveshwara Layout,
Mariyappanapalya,
Jnanabharathi,
Bengaluru-56.
Since Dead by his LR's,
Dechamma.M.K,
D/o.M.P.Kariappa,
W/o.Ayappa,
Aged about 30 years,
R/at No.391, 1st Main,
Jagajyothi Basaveshwara Layout,
Mariyappanapalya,
Jnanabharathi,
Bengaluru-56.
(Rep. by Sri.P.M.Chengappa, Adv)
V/S
Accused : Basavaraj.K,
Aged Major,
R/at No.390, 1st Main,
Jagajyothi Basaveshwara Layout,
Mariyappanapalya,
Jnanabharathi,
Bengaluru-56.
(Rep. by Sri.S.P.Sathisha, Adv.)
Judgment 2 C.C.1514/2013
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Convicted.
DATE OF ORDER : 09.12.2016.
(S.G.SALAGARE)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
This complaint is filed by the complainant against the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the complaint are as under:
Complainant and accused are knew each other and they are friends from past three years. On 12.02.2012, accused had approached and requested the complainant for hand loan of Rs.1 lakh for his legal necessities and promised to repay the said amount within six months.
After considering the request of accused, complainant mobilized and paid Rs.1 lakh to the accused on 13.02.2012. Accused to discharge his liability has issued a post dated cheque bearing No.229120, dated:21.09.2012 Judgment 3 C.C.1514/2013 drawn for Rs.1 lakh drawn on Oriental Bank of Commerce, Bannerghatta Branch, Bengaluru in favour of complainant and assured that the said cheque will be honoured on its presentation.
It is further case of complainant that, accused has requested him to present the said cheque on 21.09.2012. On 21.09.2012 the complainant has presented the said cheque through his banker viz., Sudha Co-operative Bank, Kengeri Branch, Bengaluru for collection. On 24.09.2012 the said cheque was returned unpaid for the reasons "Funds Insufficient" in the account maintained by the accused. On 03.10.2012, the complainant brought this fact to the knowledge of accused by issuing demand notice through RPAD as well as ordinary post. The demand notice sent through ordinary post was duly served upon accused and the notice sent through RPAD was returned unserved with a shara 'Not Claimed'. After receipt of notice the accused has neither paid the cheque amount nor replied the notice. Hence, the complainant has filed the complaint against the accused for the offence punishable under Section 138 of Negotiable Instruments Act and prayed to Judgment 4 C.C.1514/2013 punish the accused with maximum sentence and to award compensation to the complainant.
3. My predecessor after perusing records, took cognizance of offence, and recorded sworn statement, ordered to register Criminal Case against the accused for the offence punishable under Section 138 of Negotiable Instruments Act. The accused after service of summons put his appearance through his counsel and has been enlarged on bail. Thereafter, the court has recorded the plea of accused and the accused has pleaded not guilty of the offence and claims to be tried. Hence, the case was posted for trial.
4. During the trial it is reported that the complainant has died on 08.06.2014 leaving behind his wife and daughter. The daughter of complainant came on record and in order to prove the case, the Legal Representative of complainant got examined herself as PW-1 and got marked eleven documents at Exs.P1 to P11 and closed her side. After completion of the evidence of complainant side, the substance of the evidence has been read over and explained to the accused under Section 313 of Cr.P.C., the accused Judgment 5 C.C.1514/2013 denied all the incriminating evidence arisen against him. The accused in order to disprove the case of complainant got examined himself as DW.1 and not produced any document in support of his defence evidence.
5. I have heard the arguments of both side counsels, and perused the materials placed on record.
6. The following points would arise for my consideration:
1) Whether the complainant proves beyond all reasonable doubt that, he had advanced Rs.1 lakh hand loan to the accused and Ex.P1 - cheque bearing No.229120, dated:21.09.2012 drawn for Rs.1 lakh drawn on Oriental Bank of Commerce, Bannerghatta Branch, Bengaluru is issued in favour of complainant for discharge of the said amount, and on its presentation, cheque came to be dishonoured for the reasons 'Funds Insufficient' and even after service of notice, the accused has failed to repay the amount and thereby accused is guilty of the offence punishable under Section 138 of N.I.Act?
2) What Order?
7. My findings on the above points are as under:
Point No.1 : In the Affirmative Judgment 6 C.C.1514/2013 Point No.2 : As per final order, for the following:
REASONS
8. POINT NO.1: It is alleged that, the accused had borrowed an amount of Rs.1 lakh from complainant, and the accused to discharge his liability has issued a post dated cheque bearing No.229120, dated:21.09.2012 drawn for Rs.1 lakh, drawn on Oriental Bank of Commerce, Bannerghatta Branch, Bengaluru in favour of complainant. When the said cheque was presented for encashment, same was dishonoured for the reasons 'Funds Insufficient'. Even after issuance of demand notice, accused has not made any arrangement for return of cheque amount. The accused has denied the accusation made against him.
9. To prove the case, the legal representative of complainant got examined herself as PW.1 by filing her affidavit in lieu of her examination in chief evidence. In support of her contention; PW.1 has got marked eleven documents. Among them cheque bearing No.229120, dated:21.09.2012 drawn for Rs.1 lakh is marked as Ex.P1. The said cheque is drawn on Oriental Bank of Commerce, Judgment 7 C.C.1514/2013 Bannerghatta Branch, Bengaluru in favour of complainant. The signature of accused is marked as Ex.P1(a). Ex.P2 is the Bank Endorsement issued by the Oriental Bank of Commerce, the contents of Ex.P2 disclose that, the cheque bearing No.229120, dated:21.09.2012 drawn for Rs.1 lakh is dishonoured for the reasons 'Funds Insufficient'. Ex.P3 is the Demand Notice dated:03.10.2012, the recitals of Ex.P3 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.1 lakh within 15 days from the date of receipt of notice. Exs.P4 and P5 are the Postal receipts, Ex.P6 is the Computer print copy of post details, Ex.P7 is the Hand Loan Agreement dated:13.02.2012 executed by the accused in favour of complainant M.P.Kariappa, Ex.P8 is the Bank Account Pass book pertaining to complainant account issued by the Sri Sudha Co-operative Bank Ltd., Jayanagar, Bengaluru, Ex.P9 is the Authorization Letter dated:31.07.2015 executed by one Anasu in favour of legal representative of complainant regarding to prosecute the above said case, Ex.P10 is the Death Certificate of Judgment 8 C.C.1514/2013 complainant herein and Ex.P11 is the unserved postal cover.
10. In the cross-examination of PW.1, accused counsel suggested that, "DgÉÆæ¬ÄAzÀ CPÀæªÀĪÁV ºÀt ¸ÀA¥Á¢¸À®Ä DgÉÆæUÉ ¸ÉÃjzÀ ¸À» ªÀiÁrzÀ SÁ° ZÉPÀÌ£ÀÄß zÀÄgÀÄ¥ÀAiÉÆÃUÀ ¥Àr¹PÉÆArgÀÄwÛÃj". Further in the defence evidence accused has stated that, "£À£Àß ªÀÄvÀÄÛ ¦AiÀiÁð¢AiÀÄ £ÀqÀÄªÉ ¢£ÁAPÀB01.02.2011 gÀAzÀÄ gÀÆB20,000/- UÀ¼À ºÀtPÁ¹£À ªÀåªÀºÁgÀ £ÀqÉ¢zÀÄÝ, D ¸ÀªÀÄAiÀÄzÀ°è ¸À» ªÀiÁrzÀ SÁ° ZÉPÀÄÌ ªÀÄvÀÄÛ gÀÆB100 gÀ SÁ° ¨ÁAqï ¥ÉÃ¥Àgï£ÀÄß ¤ÃrzÉÝ". In the chief examination DW.1 stated that, Ex.P1 cheque belongs to him and Ex.P1(a) signature is that of him. Accused has also stated that Ex.P7 bears his signature and stated that the said blank signed bond paper was issued by him to complainant on 01.12.2011. Thus from the suggestion made to PW.1 and the statement made in the examination in chief of accused, it reveals that, accused admits the cheque Ex.P1 belongs to him and signature marked at Ex.P1(a) is that of him. When accused admits the cheque and signature marked at Ex.P1(a), then presumption arises in favour of complainant under Section 118(a) of Negotiable Instruments Act that, Judgment 9 C.C.1514/2013 cheque is issued for valid consideration. Further, on perusal of Ex.P1 to P6 and P11, it is crystal clear that, complainant has complied the provisions of Section 138 of Negotiable Instruments Act. Hence, the initial presumption arises in favour of complainant under Section 139 of Negotiable Instruments Act that accused has issued the cheque for discharge of legally recoverable debt. The presumptions arisen in favour of complainant are rebuttable presumptions, and accused can rebut the presumptions by cross-examining PW.1 or by adducing defence evidence or by both.
At this stage this court has gone through the decision reported in AIR 2010 SC 1898 between Rangappa V/s. Mohan, the Hon'ble Apex court is held that:
"The presumption mandated by section 139 of the Act is in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been Judgment 10 C.C.1514/2013 included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard of proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or Judgment 11 C.C.1514/2013 liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own".
11. From the principle laid down in the above decision, it is crystal clear that, when the accused admits the disputed cheque and his signature on the cheque, then the burden lies on the accused to prove that, the cheque was not issued in favour of complainant for repayment of cheque amount of Rs.1 lakh. In the examination in chief affidavit PW.1 has stated that, accused has borrowed an amount of Rs.1 lakh from complainant to meet his legal necessities, and accused promised to repay the said amount within six months and on the same day for repayment of said amount accused has issued Ex.P1 cheque in favour of complainant. When the cheque was presented for encashment after the stipulated period, the same is dishonoured for the reasons "funds insufficient".
12. It is the defence of accused that, he has not borrowed Rs.1 lakh from complainant and he has not issued Ex.P1 Judgment 12 C.C.1514/2013 cheque for repayment of Rs.1 lakh to complainant. It is the specific defence of accused that, on 01.02.2011 he borrowed Rs.20,000/- from complainant and he had issued signed blank cheque and signed blank bond paper to the complainant. Accused has identified Ex.P1 cheque and stated that, the said cheque was issued to complainant on 01.02.2011 when he borrowed Rs.20,000/- from complainant. Thus accused has admitted that, Ex.P1 belongs to him and accused has stated that, he had issued blank signed cheque and signed blank bond paper on 01.02.2011 and stated that same is produced at Exs.P1 and P7 by the PW.1. Accused has stated that, the complainant has fabricated the hand loan agreement alleged to be executed on 12.02.2012 and misused the blank signed bond paper. Off course the bond paper is dated February 01, 2011. As per the accused contention he borrowed Rs.20,000/- on 01.02.2011 and issued blank singed cheque and blank singed bond paper. Admittedly, bond paper is issued by accused. But 'whether the bond paper was issued on 01.02.2011 has to be proved by accused'. Accused has stated in the defence evidence that, he has repaid Rs.20,000/- to complainant, but accused has Judgment 13 C.C.1514/2013 not stated on which date he has repaid the said amount of Rs.20,000/- to complainant. Admittedly, accused has not claimed the blank signed bond paper and blank signed cheque after the payment of Rs.20,000/-. Accused stated that, he was about to claim the blank signed bond paper from complainant, but at that time complainant was not feeling well and he was suffering from Cancer, therefore he did not claimed the signed blank bond paper. This contention of accused cannot be accepted, because the bond paper and the cheque are instruments of security, and no prudent person would leave the instruments of security with the lenders when the entire amount was repaid. There was no any impediment for the accused to claim return of blank signed cheque and blank signed bond paper and accused ought to have issued legal notice to complainant. When the accused has not taken any steps for return of the alleged blank signed cheque and blank signed bond paper, an inference can be drawn that, accused has not issued the blank signed cheque and blank signed bond paper on 01.02.2011.
Judgment 14 C.C.1514/2013
13. It is the contention of accused that, Ex.P7 is a fabricated document, because it does not bear the signature of complainant. But the recitals of Ex.P7 disclose that, it is a receipt passed by the accused for having received the amount of Rs.1 lakh from complainant. Ex.P7 is does not contain the terms of an agreement. It cannot be termed as an agreement, because accused has approached the complainant seeking financial help to meet his difficulties and considering the request and friendship, the complainant has lent Rs.1 lakh and complainant has not claimed any interest on the said amount. Therefore, Ex.P7 is just a receipt and it does not require the signature of complainant. The recitals of Ex.P7 disclose that, accused has borrowed Rs.1 lakh from complainant on 13.02.2012. Accused has specifically stated in the defence evidence that, he issued Ex.P7 blank singed bond paper in favour of complainant. But accused has not proved that the said blank signed bond paper was issued on 01.02.2011. Therefore, the contention of accused that bond paper was issued on 01.02.2011 cannot be accepted. Judgment 15 C.C.1514/2013
14. PW.1 has stated in her cross-examination that, her father was informed about the transaction with accused to his mother as well as to herself, and therefore she is in well acquaintance with facts and circumstances of this case. PW.1 has clearly denied the suggestion that, Ex.P7 was not executed during the life time of her father. PW.1 has produced the letter of authorization issued by her mother and same is marked as Ex.P9. In the said authorization mother of PW.1 has authorized to proceed with C.C.No.1514/2013. Ex.P10 proves that, complainant has died on 08.06.2014. Accused has failed to establish that, he borrowed Rs.20,000/- from complainant on 01.02.2011 and issued blank signed cheque (Ex.P1) and blank signed bon paper (Ex.P7) in favour of complainant. Thus an inference has to be drawn that, accused borrowed Rs.1 lakh from complainant on 13.02.2012 and issued Ex.P1 cheque and executed Ex.P7 in favour of complainant. Thus accused has failed to rebut the presumptions arisen in favour complainant. On the contrary, the evidence placed on record clearly probablize that, complainant has proved that accused has borrowed the amount of Rs.1 lakh and issued the cheque Ex.P1 knowing that no sufficient funds Judgment 16 C.C.1514/2013 in the account maintained by him. Complainant has complied all the provisions of Section 138 of Negotiable Instruments Act. Complainant has proved that the accused has committed an offence punishable under Section 138 of Negotiable Instruments Act. Hence, in view of the above said reasons, I hold point No.1 in the Affirmative.
15. 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 is convicted for the offence punishable under Section 138 of Negotiable Instruments Act.
The accused is sentenced to pay total fine amount of Rs.1,25,000/- (Rupees One lakh twenty five thousand only). In default accused shall under go simple imprisonment for 03 (three) months.
Out of the total fine amount a sum of Rs.1,20,000/- (Rupees One lakh twenty thousand only) is ordered to be paid to the complainant's legal representative by way of compensation under Section 357 of Cr.P.C. The balance amount of Rs.5,000/- (Rupees Judgment 17 C.C.1514/2013 five thousand only) shall be remitted as fine to the State.
The bail bond and surety bond of the accused stands cancelled.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 9th day of December - 2016) (S.G.SALAGARE) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Dechamma.M.K List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Ex.P1(a) : Signature of accused Ex.P2 : Bank endorsement Ex.P3 : Office copy of legal notice Exs.P4 & P5 : Postal receipts Ex.P6 : Computer print Postal Acknowledgment Ex.P7 : Hand loan agreement Ex.P8 : Bank account pass book Ex.P9 : Authorization letter Ex.P10 : Death Certificate Ex.P11 : Unserved postal cover
List of Witnesses examined on behalf of the defence:
DW.1 : K.Basavaraju List of Exhibits marked on behalf of defence:
- Nil -
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.Judgment 18 C.C.1514/2013
09.12.2016.
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 is convicted for the offence punishable under Section 138 of Negotiable Instruments Act.
Judgment 19 C.C.1514/2013The accused is sentenced to pay total fine amount of Rs.1,25,000/- (Rupees One lakh twenty five thousand only). In default accused shall under go simple imprisonment for 03 (three) months.
Out of the total fine amount a sum of Rs.1,20,000/- (Rupees One lakh twenty thousand only) is ordered to be paid to the complainant's legal representative by way of compensation under Section 357 of Cr.P.C. The balance amount of Rs.5,000/-
(Rupees five thousand only) shall be remitted as fine to the State.
The bail bond and surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.