Bangalore District Court
Mr. Shankarappa .M vs Thimappa on 4 December, 2018
1 C.C.NO.11093 OF 2014
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU
Dated this the 4th Day of December 2018
Present: Sri. Rajkumar .S.Amminbhavi., B.Com., LLB (Spl)
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No. 11093/2014
Complainant: Mr. Shankarappa .M
S/o. Mr. Muniswamappa
Aged about 50 Years
R/at. No.27, 3rd Cross, 1st Main,
Narayana Layout, Doddabettahalli,
Vidyaranyapura Post
Bengaluru-560 097.
Since deceased by his L.R
1. Mrs. Dhanalakshmi
W/o. Late Mr. M. Shankarappa
Aged about 42 years.
2. Mrs. Kavitha .S
D/o. Late Mr.M. Shankarappa
Aged about 25 years
3. Mr. Girish .S
S/o. Late Mr. M. Shankarappa
Aged about 22 Years
4. Mr. Ashith .S
S/o. Late Mr.M.Shankarappa
Aged about 19 Years
All are R/at. No.27, 3rd Cross, 1st
Main, Narayana Layout,
Doddabettahalli
Vidyaranyapura Post
Bengaluru-560 097.
2 C.C.NO.11093 OF 2014
(By T.R.Shankarangappa., Adv)
- Vs -
Accused: Thimappa
Aged about 42 years
Token No. Old-47123
Token No. New-11584
Ring Machine Shop
Federal Mougal Goetze ((India)
Limited, Yelahanka,
Bengaluru-560 064.
(By. B.R.Patil., 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: 04.12.2018.
******
JUDGMENT
This is a complaint 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 accused and the complainant are known to each other for the last 15 years. On account of well acquainted with the complainant, the accused has approached the complainant 3 C.C.NO.11093 OF 2014 and requested for advancement of the hand loan an amount of Rs.60,000/- on 20.03.2013 for the purpose of legal necessities and accordingly, considering the request of the accused and believing the words of the accused and on the humanitarian ground, the complainant has advanced an amount of Rs.60,000/- to the accused by way of cash on 30.03.2013 and on the same the day, the accused had agreed and undertaken that, he would repay the said borrowed loan amount within a period of five months. After lapse of stipulated on repeated request and demand made by the complainant to the accused for repayment of the borrowed loan amount and at that time, for discharge the borrowed the loan amount, the accused had issued cheque bearing No.779731, dated: 28.12.2013 drawn on State Bank of India, Wheel & Axle Plant Branch, Bengaluru in favour of the complainant and assured that, the said cheque would be honoured on its presentation and accordingly, as per the assurance made by the accused, the complainant has presented the said cheque for encashment through his banker i.e., Catholic Syrian Bank, Yelahanka Branch, Bengaluru, but it was dishonoured with an endorsement as "No such Account" 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 13.01.2014 by RPAD calling upon him to repay the said 4 C.C.NO.11093 OF 2014 borrowed loan amount within 15 days from the date of receipt of this legal notice and it was returned with an postal endorsement intimation delivered/returned it amounts to deemed service of the legal notice. Despite of service of the legal notice, the accused neither repaid the borrowed the loan amount nor replied the legal notice issued by the complainant. 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, the complainant got himself examined as PW.1 & got 4 documents marked as Ex.P.1 to Ex.P.4 and PW-1 partly cross-examined and when the matter was posted for further cross of PW-1 and in the meanwhile, the 5 C.C.NO.11093 OF 2014 complainant was reported as died and accordingly, counsel for the complainant has filed a memo by report the death of the complainant and filed an application seeking for brought on record the legal representative of the deceased complainant and accordingly, they are brought on record and subsequently, in order to prove the claim of the complainant, legal representative No.3 of the deceased complainant himself examined as PW-1 and the documents which were already same are got marked as per the Ex.P1 to Ex.P4 and he has been fully cross-examined and the 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 herself examined as DW-1 and in support of his defence, he has got examined as DW-2 who is none other than Bank Manager of SBI, Bank and in support of his defence none of the documents are marked as exhibits and during the course cross of DW-1, the court has got marked one document as per the Ex.C1 and therein signature of the accused marked as Ex.D1(a) 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 6 C.C.NO.11093 OF 2014 accused had issued Cheque bearing No.77931, dated: 28.12.2013 for a sum of Rs.60,000/- drawn on State Bank of India, Wheel and Axle Plant Branch, Bengaluru, for discharge of the amount and when the said cheque presented for encashment, it was dishonoured with an endorsement "No such Account" 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;
REASONS
8. POINT NO.1: On perusal of the evidence of PW-1 who is legal representative No.3 of the deceased complainant, he has reiterated as per the averments made in the complaint and he has got marked 4 documents namely, cheque which is marked as Ex.P1, the signature of the accused therein which is marked as Ex.P1(a), bank endorsement which is marked as Ex.P2, the office of the legal notice which is marked as Ex.P3, returned postal cover which is marked as Ex.P4, copy of the legal notice 7 C.C.NO.11093 OF 2014 which is kept in Ex.P4 which is marked as Ex.P4(a).
9. During the course of cross of PW-1 he has deposed that, he being the legal representative No.3 of the deceased complainant. He deposed that, during the life time of deceased complainant, he was appeared along with his father to the Court and thereby, he came to know about the filing the present complaint. He deposed that, his father was doing financial transaction with other persons and his father had filed complaint against other persons. He deposed that, he being a B.Com graduate and he went to the evening college and day time, he was appeared before the Court through his father. He denied the suggestion that, his father was running business like, was not stated to him about the filing the present complainant and he had appeared before this Court along with one Das. He deposed that, in the name of his father Door and Windows shop is situated at M.S.Palya, Yelahanka New Town, Benglauru. He denied the suggestion that, deceased complainant was not at all advanced the loan in question to the accused and the said Das had obtained the cheque in question from other person and same is misuses and filed false complaint by the complainant. He do not know whether his father and one Das were known to each other or not. He denied the suggestion that, one Das has brought his father to the Court whenever the case called on 8 C.C.NO.11093 OF 2014 hearing. He deposed that, Ex.P1 cheque belonging to bank account of the accused and the himself brought the cheque in question from the accused and given it to his father. He deposed that, the accused was and is working in Federal Mougal Goetze (India) Limited. He do not know whether when the accused was and is working in the said factory, one Das also working. He denied the suggestion that, one Das has obtained the cheques from the different persons and filed the complaint through his father. He denied the suggestion that, there is difference in the signature found on the Ex.P1(a) and contents written on the cheque in question. He denied the suggestion that, legal notice issued by his father through RPAD was not duly served upon the accused. He denied the suggestion that, his father had filed false complaint and he has deposing falsely at the instigation of his father.
10. During the course of defence evidence, the accused himself examined as DW-1 by way of filing an examination- in-chief affidavit and wherein, he has specifically contended that, father of the complainant has filed the present false complaint against him and the allegation made in the complainant are false and baseless. He deposed that, he was not at all borrowed the loan in question from the complainant and he has not at all issued cheque in question for repayment of the borrowed the loan 9 C.C.NO.11093 OF 2014 in question. He deposed that, legal notice issued by the accused was not duly served upon him. He deposed that, one Das was a colleague to him, as both of them were working in the same Company and the said Das has stolen the cheque in question and hand over it to the persons known to them and present complainant filled the contents of the Ex.P1 and forged signature and present it to the bank and same is dishonoured as "No such Account". He deposed that, one Dass has been caught red handed while involving such Modus Operandi and he has dismissed from the service. He deposed that, legal representative of the deceased complainant is also stranger to him. He deposed that, deceased complainant incollusion with the said Das has misused the cheque in question and filed false complaint with an intention to get wrong full gain.
11. During the course of cross of DW-1 he has deposed that, he being a M.A., LLB graduate and he has enrolled as an Advocate, but he was not practicing an Advocate. He deposed that, he is working in Federal Mougal Company for the last 20 years. He do not know present deceased complainant. It is true that, Ex.P1 cheque belonging to his own bank account and the signature found on the Ex.P1(a) is not his own signature. The counsel for the complainant has confronted the vakalath which was filed by the accused through his advocate and wherein, the accused 10 C.C.NO.11093 OF 2014 has admitted that, signature found on the vakalath is his own signature and accordingly, vakalath which is marked as Ex.C1 and wherein signature of the accused which is marked as Ex.C1(a). He denied the suggestion that, he intentionally avoided to receive the legal notice issued by the complainant. It is true that, the address mentioned in Speed Post and RPAD are his own address.
12. During the course of cross of DW-1 he has deposed that, he being a LLB graduate. He deposed that, he has not taken any legal action either the police complaint or private complaint with respect to that, the complainant has misused the cheque in question and filed false complaint against him. He deposed that, his counsel has filed an application for exemption application that, on account of his ill-health he could not appeared before the Court. He denied the suggestion that, on the day, he was filed an exemption application before this Court as he had attend his office. He deposed that, he was not at all borrowed the loan in question from the complainant and he has not at all issued cheque in question to the complainant for discharge the loan in question.
13. During the course of defence evidence, the accused in support of his defence, he has got examined one witness like., as DW-2 by way of oral evidence, wherein he has specifically contended that, cheque in question initially 11 C.C.NO.11093 OF 2014 belonging to SBI, Wheel & Axle Plant Branch, Bengaluru and now said Branch is called as SBI, Yelahanka New Town Branch, Bengaluru. He deposed that, cheque book given to the persons who was having account with respect to Ex.P1.
14. During the course of cross of DW-2 he has deposed that, with respect to any bank account continued only two years in-operate and no there was no sufficient funds in the account and thereby, the banker themselves treated such account like., "Dorement Account" and further whenever the account holder has not having sufficient funds in their account and then the banker have presumed that, that account as "Dorement Account".
15. Further, on perusal of the averments made in the complaint and also documents produced by the complainant is that, it is an admitted fact that, even after issuance of the legal notice by the complainant to the accused prior to filing of the said complaint which was duly served and after receipt of the legal notice, the accused has not given reply notice. Therefore, prior to filing of the said complaint the complainant had complied all the necessary ingredients under Section 138 of N.I.Act. There is no dispute that, Ex.P1 cheque is belonging to his own bank account.
12 C.C.NO.11093 OF 201416. It is case of the complainant is that, both the complainant and accused were known to each other and on account of well acquainted with the complainant, the accused has approached the complainant and requested for the advancement of loan amount of Rs.60,000/- and accordingly, the complainant has advanced the loan an amount of Rs.60,000/- by way of cash and subsequently, for discharge the loan in question the accused has issued cheque in question and assured that, the said cheque would be honoured on its presentation and after presentation of the said cheque, it was dishonoured and same has been informed to the accused, but the accused not responded the same and thereby, the complainant has got issued legal notice through his counsel and same has been duly served upon the accused and despite of service of the legal notice, the accused neither paid the borrowed loan amount nor replied the legal notice issued by the complainant. Hence, the complainant has filed the present complaint.
17. On the other hand, the accused has taken specific defence during the cross of PW-1 and during the course of defence evidence that, he was not at all borrowed the loan in question from the complainant and he was not all issued cheques in question to the complainant and further he has contention defence that, one Das who was working along 13 C.C.NO.11093 OF 2014 with him in the said fact and the said Das has stolen the cheque in question and misused the cheque in question and filed false complaint through the complainant with an intention to get wrong full gain, but to substantiate the same, he ought to have examine the said Das and the said Das was also obtained the cheque of others employees of the said factory and misused the employers cheques and instigated cheque bounce cases against the employees of the said factory and to substantiate said defence, the accused ought to have examine any one of the employees of the said factory. Therefore, non-examination the said Das and employee of the said factory is very much fatal to the alleged defence taken by the accused during the course of cross of PW-1 and his evidence.
18. 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 to substantiate the same, he ought to have take any legal action against the complainant, he ought to have challenged the cognizance taken by this Court, he ought to have take legal action against either the said Das or 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 PW-1 and during the course of his evidence.
14 C.C.NO.11093 OF 201419. There is no dispute that, Ex.P1 cheque is belonging to his own bank account cheque and denied the signature found on the Ex.P1(a) is not his own signature. As per the Section 73 of the Indian Evidence Act, this Court is having ample power with respect to compare the admitted and disputed signature and accordingly, on perusal of the Ex.C1 vakalath which was filed by the accused through his counsel and wherein signature of the accused which is marked as Ex.C1(a) there is slight different, but looking to year of signature put on Ex.P1(a) and Ex.C1(a) was signed after lapse of three years. Therefore, there is slight difference. Therefore, it can be presumed that, the accused might have change the signature with an intention to defeat the claim of the complainant. Therefore, 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, no ordinary prudent man will issue signed blank cheque to any other persons without having monetary transaction.
20. Further, DW-1 during the course of his evidence, has specifically stated that, the persons who was having account when the bank which has been transferred their bank from one Branch to anther 15 C.C.NO.11093 OF 2014 Branch, the holder of the account has been transferred their bank account and the said account would be continued and the accused has not whispered about the the transfer the Bank Account one Branch to another Branch. Hence, an adverse inference is to be drawn that, Ex.P1 is his own bank account cheque and signature found on the Ex.P1(a) is his own signature, only to defeat the claim of the complainant stated that, Ex.P1(a) was not the siganture of the accused.
21. The drawer of the cheque have to take abundant precaution prior to issuance of cheque in question. Therefore, in the instant case also. 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. Further, the complainant has proved his case by adducing cogent and corroborative evidence as per the section 138 of N.I.Act., on the other hand, the accused has failed to rebut his defence by adducing cogent and corroborative evidence. Hence, the probability of the preponderance is higher on the side of the complainant, rather than the accused.
22. Ordinarily offence under Section 138 of N.I.Act "mensrea" is not essential, under Section 138 of N.I.Act , is 16 C.C.NO.11093 OF 2014 bring into operation rule of strict liability, whereas, "mensrea" is essential ingredients in criminal offences. Therefore, The complainant has proved her 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 cheques 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.
23. Looking to the conduct of the parties to the proceedings the accused who being a LLB graduate and the accused has not disputed with respect to the legal representative of the deceased complainant were brought on record and they are contested the present case. Therefore, looking to the trail faced by the complainant already more than five years were elapsed. Hence, imposing fine amount double the cheque amount of Rs.60,000/- as Rs.1,20,000/- is just and proper to meet the interest of justice and equity.
24. Hence, in the light of the above observation, the 17 C.C.NO.11093 OF 2014 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 recoverable debt and double the cheque amount. Therefore, I answer the point No.1 in the affirmative.
25. Point No.2 :- In view of my findings on Point No.1 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.
The accused shall pay a fine of Rs.1,20,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for One Month.
Further, ordered that, out of the said fine amount of Rs.1,18,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of Rs.2,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the 18 C.C.NO.11093 OF 2014 accused stands canceled.
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 4th day of December 2018).
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the complainant:
PW-1 S. Girish 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 Ex.P.4 Returned postal cover Ex.P.4(a) Copy of the legal notice kept in Ex.P4
List of witnesses examined on behalf of the accused :
DW.1 Thimmappa DW.2 Satish Kulakarni
List of documents exhibited on behalf of the accused :
NIL 19 C.C.NO.11093 OF 2014 List of documents exhibited on behalf of the Court :
Ex.C1 Vakalath Ex.C1(a) Signature of the accused
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.20 C.C.NO.11093 OF 2014
04.12.2018.
Complainant : TRA Accused : BRA 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.1,20,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for One Month.
Further, ordered that, out of the said fine amount of Rs.1,18,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of Rs.2,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands canceled.
Free copy issued to the accused.
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
21 C.C.NO.11093 OF 2014 22 C.C.NO.11093 OF 2014Heard Inference 23 C.C.NO.11093 OF 2014