Bangalore District Court
Canvassed Arguments And After Passing ... vs Executed 3 Affidavits As Per Exp.1 To 3 ... on 7 March, 2022
IN THE COURT OF THE XV ADDL CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY.
Dated this the 07th day of March2022
Present: Lokesh Dhanapal Havale, B.A.LL.B
XV Addl.C.M.M., Bangalore.
Judgment U/s.355 of the Cr.P.C. 1973.
1.Sl.No.of the case CC.No.30012/2017
2.Name of the Complainant: Mr.Kiran S. Javali,
Aged 59 years,
S/o.late S.C.Javali,
Residing at No.37, 11th Main,
Vasanthnagar,
Bangalore - 560 052.
3.Name of the accused: Mr.Vishnu Vardhan @ K.V.
Vardan, Age: Major
No.288/18, 7th Cross,
I Block, Jayanagar,
Bengaluru - 560 011.
4.The offence complained of : U/s.138 of Negotiable Instruments
Act.
5.Plea of the accused: Pleaded not guilty.
6.Final Order: Acting U/s.255(2) Cr.P.C., accused is
Convicted.
7.Date of final Order 07th day of March2022.
***
2 CC.NO.30012/2017
This complaint is filed U/Sec.200 of Cr.P.C., by the complainant
against the accused for the offence punishable U/Sec.138 of the
Negotiable Instruments Act, 1881.
2. The facts of the complainant in brief is as under.
The accused approached the complainant for financial assistance.
The accused represented that he entered into sale agreement with one
Vijayakumar.N. and Radha.C., who are the absolute owners of the
schedule property as mentioned in registered sale deed dated 20.06.2006.
The accused told the complainant that the said property was mortgaged
with Canara Bank, Branch Hindiginala, Ittasandra, Bengaluru Rural for an
amount of Rs.20,00,000/by the original owners. The accused sought
financial help of Rs.15,00,000/ from the complainant in order to pay the
mortgage money to the bank. Accordingly he paid the said loan amount to
the accused through RTGS No.0628347 on 17.8.2016 through ICICI Bank
Limited, Cunningham Road branch, Bengaluru to the account of the
accused in Indusind Bank Ltd, Basavanagudi branch bearing
No.151111223357. The accused signed the photocopy of the RTGS receipt
as confirmation of having received the amount. The accused issued
cheque bearing No.689234 dated 30.08.2016 for Rs.15,00,000/ drawn on
Indusind Bank Ltd, Basavanagudi Branch towards the discharge of legally
enforceable debt/liability. He acknowledged the debt and issuance of
cheque vide affidavit dated 17.08.2016. Thereafter the accused issued a
letter dated 15.11.2016 and requested to not to present the cheque and
sought for time to make payment. On 29.11.2016 the accused endorsed
on the affidavit dated 17.08.2016 with his own handwriting, took back the
3 CC.NO.30012/2017
previous cheque and issued fresh cheque bearing No.689229 dated
29.11.2016 for Rs.15,00,000/ drawn on Indusind Bank Ltd,
Basavanagudi Branch. The accused once again acknowledged the debt and
issuance of cheques as aforesaid vide affidavit dated 25.02.2017. He
issued fresh cheque bearing No.521477 dated 25.02.2017 for
Rs.15,00,000/ drawn on Indusind Bank Ltd, Basavanagudi Branch. The
accused postponed the payment on one or the other pretext. Thereafter
the accused again gave another affidavit dated 01.06.2017 admitting debt,
cheques and previous affidavits. The accused agreed to issue 10 cheques
for Rs.1,75,000/ each and agreed to pay the amount in installments. He
also issued cheque bearing No.327389 dated 5.07.2017 for Rs.15,00,000/
drawn on Indusind Bank Ltd, Basavanagudi Branch. The complainant
presented the cheque bearing No.327377 dated 05.07.2017 for a sum of
Rs.1,75,000/ issued by the accused for encashment and it was returned
with endorsement dated 08.09.2017 shara "Funds Insufficient". He
intimated it to the accused nad on his assurance, the complainant
presented the cheque bearing No.327389 dated 5.07.2017 for
Rs.15,00,000/ drawn on Indusind Bank Ltd, Basavanagudi Branch and it
was returned with endorsement dated 04.10.2017 with shara "Funds
Insufficient". As per complainant he has presented both cheques for
encashment purpose and they were dishonored for the reason "Funds
Insufficient". He issued the statutory notice to the accused through
registered post on 16.10.2017. It was served on the accused on
21.10.2017. Despite service of legal notice, the accused failed to pay the
amount. Accordingly, the accused committed an offence punishable
4 CC.NO.30012/2017
U/s.138 of the N.I.Act. He prayed to punish the accused and compensate
the complainant.
3. After the institution of the complaint, cognizance of the
offence was taken and it was registered in PCR. No.14617/2017. The
sworn statement of the complainant was recorded. On the basis of the
sworn statement and other materials on the hand, the criminal case was
registered against the accused and summons was issued to him. In
response to the summons, the accused appeared through his learned
counsel and got enlarged on bail. The prosecution papers were supplied to
the accused and recorded his plea. Accused denied the plea and claimed
for trial.
4. During trial the complainant was examined as PW.1 and got
marked Ex.P.1 to P.11. The accused did not crossexamine PW1 even
after sufficient opportunities were given. Hence the crossexamination of
PW1 was taken as nil on 30.08.2018. The statement of accused was
recorded on 07.09.2018. The accused did not lead defence evidence even
after sufficient opportunities were given. Hence the defence evidence was
taken as nil on 06.10.2018. The Judgment was pronounced convicting the
accused on 12.12.2018. The accused preferred Crl. Appeal No.80/2019
before Hon'ble CCH61, Bengaluru. The Hon'ble Appellate Court observed
that sufficient opportunities were not given to the accused to cross
examine PW1. The statement of the accused U/s.313 of Cr.P.C was
dispensed with. The trial was conducted in the absence of accused without
resorting to coercive steps to secure the presence of the accused and the
Judgment was pronounced in the absence of the accused. The Hon'ble
5 CC.NO.30012/2017
Appellate Court remanded the matter for fresh disposal in accordance
with law.
5. It is pertinent to note that the accused obtained bail on
11.04.2018. On the next hearing date i.e. on 20.04.2018 the counsel for
the accused and the accused filed memo and submitted that the accused
has applied for financial assistance from financial institution and he
undertakes to settle the entire amount to the complainant on or before
14.05.2018. The Court made endeavours to settle the matter at the initial
stage but failed. The complainant led evidence on 19.07.2018. The case
was posted for crossexamination of PW1 on 04.08.2018. The stage
remained same till 30.08.2018. On the said day, the counsel for the
accused present and prays time to crossexamine PW1 and the Court
rejected the prayer and took the crossexamination of PW1 as nil.
Thereafter the case was posted for recording of statement U/s.313 of
Cr.P.C. on 07.09.2018. On the said day the accused remained present and
the statement of the accused U/s.313 of Cr.P.C. was recorded. It shows
that the stage of the case was within the knowledge of the accused. The
accused did not make any effort to recall PW1 for crossexamination. He
claimed falsely before Hon'ble Appellate Court that the statement of the
accused U/s.313 of Cr.P.C. was dispensed even though the Court recorded
it on 07.09.2018. After recording the statement, the stage was posted for
defence evidence on 18.09.2018. Again the accused remained absent on
the subsequent hearing dates and the Court took the defence evidence as
nil on 06.10.2018 and posted the case for arguments on 15.10.2018. The
counsel for the complainant canvassed arguments on 31.10.2018 and the
6 CC.NO.30012/2017
counsel for the accused was present on the said day and prayed time. The
case was posted for arguments on the accused side on 13.11.2018. The
counsel for the accused present on the said day and prayed time.
Thereafter three adjournments were given but arguments were not
canvassed on the side of the accused. Therefore the case was posted for
Judgment on 12.12.2018. The accused and counsel for the accused
remained present and the Judgment was pronounced in their presence.
The accused filed application U/s.389 (3) Cr.P.C. to release him on bail till
the appeal period is over. The said application was allowed and accused
executed bond on the said day and received the copy of conviction
Judgment. It shows that the accused falsely claimed before the Hon'ble
Appellate Court as if the proceedings were taken without his knowledge
and the Judgment was pronounced in his absence. Therefore the
observations were made by Hon'ble Appellate Court as aforesaid.
6. After the remand of the case, this Court proceeded from the
stage of crossexamination of PW1. The order of the Hon'ble Appellate
Court was clear that the party should appear before the Trial Court on
30.01.2020 and proceed with the case without expecting notice from the
Court. Thereafter the case posted for crossexamination on 11.02.2020,
17.02.2020, 06.03.2020 but the accused did not crossexamine PW1 even
though the counsel was present. Therefore the crossexamination of PW1
was taken as nil. The statement of the accused was already recorded on
07.09.2018 and therefore the case was posted for defence evidence on
16.03.2020. Since then the stage is for defence evidence till 08.12.2021.
More than 25 adjournments were given considering the Covid19
7 CC.NO.30012/2017
Pandemic situation. However the accused never turned up before the
Court. The counsel for the accused remained present on substantial
hearing dates and prays time. It shows that the proceedings were within
the knowledge of the accused. On 24.12.2021 the counsel for the
complainant canvassed arguments and after passing the detailed order the
case was posted for arguments on the side of the accused. Thereafter the
stage was for arguments on the side of the accused on 03.01.2022,
11.01.2022, 25.01.2022, 09.02.2022. The counsel for the accused
canvassed arguments on 09.02.2022 and the case was posted for
Judgment.
7. I have heard the arguments and perused the entire materials.
The following points would arise for my consideration.
1. Whether the complainant proves that the accused
issued a cheque bearing No.327389 for Rs.15,00,000/
drawn on Indusind Bank Ltd, Basavanagudi Branch,
Bengaluru in his favour towards the discharge of
legally enforceable debt/liability and on its
presentation for encashment, it was dishonored with
an endorsement of "Funds Insufficient" in the account
maintained by the accused and the accused has not
paid the amount even after 15 days from the date of
service of notice on him and thereby accused
committed an offence punishable U/Sec.138 of N.I.
Act, 1881 ?
2. Whether the accused rebuts the presumption
U/s.139 of N.I.Act?
3. What order?
8 CC.NO.30012/2017
8. My answers to the above points are as under.
Point No.1 : In the Affirmative
Point No.2 : In the Negative
Point No.3 : As per final order for the following;
REASONS
9. Point No.1 & 2: The points are taken together for discussion
to avoid repetition of facts and evidence. At this juncture, it is necessary to
go through the provisions of N.I.Act before proceeding further. The
provisions under Section 118(a) and 139 of the Act., 1881 are extracted
and they reads thus;
"118. Presumptions as to negotiable
instruments. - 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.
(b) as to date: that every Negotiable
Instrument bearing date was made or drawn on
such date;
9 CC.NO.30012/2017
"139. Presumption in favour of holder. 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."
10. On plain perusal of the provisions under Section 118(a) and
139 of the N.I.Act., as extracted herein above, it can be seen that initially
the presumptions constituted under these two provisions favour the
complainant. However, it is open to an accused to raise a defence to rebut
the statutory presumptions. An accused can raise a defence, wherein the
existence of legally enforceable debt or liability can be contested.
11. It is also well established that an accused for discharging the
burden of proof placed upon him under a statute need not examine
himself. He may discharge his burden on the basis of the materials
already brought on record. An accused has constitutional rights to
maintain silence. Standard of proof on part of the accused and that of the
prosecution in a Criminal case is different. The prosecution must prove
the guilt of an accused beyond all reasonable doubts, the standard of
proof so as to prove a defence on the part of an accused is "Preponderance
of probabilities".
12. Under the light of above extracted provisions of the Act, I
have perused the oral and documentary evidence on record. In order to
10 CC.NO.30012/2017
prove his case, the complainant examined himself as PW.1 and got
marked Ex.P.1 to P.11. Ex.P.1 to 3 are the affidavits given by the accused
acknowledging the loan transaction, debt/liability and issuance of cheques
as alleged in the complaint. There is no necessity of repeating the facts of
the complaint. The contents of the affidavits corroborate the facts of the
complaint. ExP.4 is the cheque bearing No.327377 dated 05.07.2017 for
Rs.1,75,000/ drawn on Indusind Bank Ltd, Basavanagudi Branch,
Bengaluru and Ex.P.4(a) is the signature of the accused on the cheque.
Ex.P.6 is the bank endorsement dated 08.09.2017, which was issued with
shara "Funds Insufficient". It is pertinent to note that the accused agreed
to pay the amount of Rs.15,00,000/ by way of installments and issued 10
cheques bearing Nos. 327377 to 327384, 327387 and 327388 for
Rs.1,75,000/ each as per affidavit at ExP.3. He also issued cheque bearing
No.327389 bearing No.327389 dated 05.07.2017 for Rs.15,00,000/
drawn on Indusind Bank Ltd, Basavanagudi Branch, Bengaluru with the
condition that if the cheques issued for the installments returned
unrealized, the cheque bearing No.327389 for Rs.15,00,000/ shall be
presented immediately without any reference to him as per ExP.3. ExP.5 is
the cheque bearing No.327389 dated 05.07.2017 for Rs.15,00,000/
drawn on Indusind Bank Ltd, Basavanagudi Branch, Bengaluru and
Ex.P.5(a) is the signature of the accused on the cheque. Ex.P.7 is the bank
endorsement dated 04.10.2017, which was issued with shara "Funds
Insufficient". ExP.8 is the bank statement of the complainant pertaining to
his account in ICICI Bank. It discloses that the complainant transferred the
amount of Rs.15,00,000/ to the account of the accused through RTGS on
17.08.2016. Ex.P.9 is the legal notice dated 16.10.2017 demanding the
11 CC.NO.30012/2017
repayment of Rs.15,00,000/. ExP.10 is the postal receipt for having sent
the legal notice to the accused. ExP.11 is the postal acknowledgement for
having served the legal notice on the accused.
13. I have perused the exhibits on which the complainant has
placed his reliance. On perusal of the exhibits, it is clear that cheque at
ExP.5 bearing No.327389 dated 05.07.2017 for Rs.15,00,000/ drawn on
Indusind Bank Ltd, Basavanagudi Branch, Bengaluru was presented
through the Bank within its validity for encashment and the Bank issued
endorsement as per Ex.P.7 on 04.10.2017 with a Shara "Funds
Insufficient". The complainant issued statutory notice dated 16.10.2017 as
per Ex.P.9 within time from the date of receipt of Bank Memo. Ex.P.11 is
the postal acknowledgement, which shows that the notice sent to the
address of the accused was served on him on 21.10.2017. The complaint
was filed on 30.11.2017, which is within limitation. The loan amount is
admitted. The issuance of the cheque and the signature on the cheque at
ExP.5 is admitted. There is no dispute as to the transaction between the
complainant and the accused. Therefore, the documents on record clearly
show that the complainant has complied the ingredients of Section 138(a)
to (c) of the N.I.Act. Therefore the presumptions U/s.118 and 139 of the
N.I.Act arise in favour of the complainant. The presumptions are
rebuttable and the burden is on the accused to rebut the presumptions.
The presumption is that the cheque was issued for legally enforceable
debt/ liability. However actual existence debt or liability can be contested.
The accused can rebut the presumptions by raising probable defences and
12 CC.NO.30012/2017
proving it relying on the evidence of the complainant or by leading her
direct evidence.
14. The accused neither cross examined the complainant nor lead
the defence evidence. Instead the counsel for the accused and the accused
filed memo dated 20.04.2018 and submitted that the accused has applied
for financial assistance from financial institution and he undertakes to
settle the entire amount to the complainant on or before 14.05.2018. It is
not that the accused wants to contest the case. However he proceeded
with the case only to bargain time and delay the payment. He even
preferred appeal only to bargain the time and delay the payment. He was
never ready to contest the case as he admitted liability at the initial stage.
Moreover the documents on record makes it very clear that the loan
amount was transferred through bank. The cheque at ExP.5 was issued
finally to repay the loan amount. The said facts are substantiated by bank
statement at ExP.8 and affidavits at ExP.1 to 3. He never disputed them.
There is no defence at all and therefore the accused did not proceed with
the case and cross examined PW.1. If he was not afforded opportunity to
cross examine as alleged by him, which is not correct as per the order
sheet, at least he would have cross examined PW.1 after remand of the
case. No efforts have been made by the accused to contest the case on
merits as discussed above in para 4 to 6, even though he had knowledge
of the each stage of the proceedings. It shows the conduct of the accused
to delay the proceedings as well as in making the payment as agreed. The
notice at ExP.9 was served on the accused as per ExP.11 but he did not
13 CC.NO.30012/2017
issue rely notice. It shows that the accused has no defence at all and there
is truth in the case of the complainant.
15. For the reasons mentioned herein above, it is crystallized that
the accused has no defence at all. On the other hand the complainant has
proved that the accused issued the cheque for the legally enforceable debt;
the cheque was dishonored due to insufficiency of funds in his account
and the notice issued by him was served on the accused and the accused
failed to make payment within 15days from the date of service of notice.
The complainant proved his case beyond reasonable doubt. The accused
failed to rebut the statutory presumptions U/s.118(a) & (b) and 139 of the
N.I.Act. Accordingly the accused is found guilty for the offence punishable
U/s.138 of the N.I.Act. Hence, I proceed to answer the point No.1 in
Affirmative and Point No.2 in the Negative.
16. Point No.3 : In view of the reasons assigned in Point No.1 and 2,
it is clear that the transaction is proved and the transaction is made in the
year 2016. The amount was paid through RTGS on 17.08.2016. The
accused executed 3 affidavits as per ExP.1 to 3 admitting loan and
issuance of cheques. The complaint was filed on 30.11.2017. The accused
was enlarged on bail on 11.04.2018. The accused admitted the liability as
per memo dated 20.04.2018. Thereafter the accused neither cross
examined PW1 nor led the defence evidence even after sufficient
opportunities were given as per the order sheet. The Judgment was
pronounced on 12.12.2018. He preferred appeal on 10.01.2019. The
appeal was allowed on 31.12.2019 and the case was remanded for fresh
14 CC.NO.30012/2017
disposal. It was ordered to appear before this Court on 30.01.2020. Even
after the remand the accused neither made efforts to crossexamine PW1
nor to lead defence evidence. It shows that the accused have played all the
tactics to delay the proceedings and to delay in making the payment to the
complainant. As per the provision U/s 138 of NI Act the Court has power
to impose fine up to double the cheque amount. That apart if the
complainant would have kept the said amount in the bank, it would have
fetched minimum interest @ 6% per annum. Therefore considering the
facts and circumstances of the case, it is just and proper to impose the fine
to that extent. Hence I proceed to pass the following:
ORDER
As per the provisions of Sec.255(2) Cr.P.C. the accused is hereby convicted for the offence punishable u/s.138 of NI Act, 1881 and sentenced to pay fine of Rs.19,10,000/ (Rupees Nineteen Lakhs Ten Thousand only). On deposit of fine amount, the complainant is entitled for compensation of Rs.19,00,000/ (Rupees Nineteen Lakhs Only). The remaining balance amount of Rs.10,000/ is to be forfeited to the State.
In default of payment of the fine amount accused shall undergo simple imprisonment for three months.
15 CC.NO.30012/2017The personal bond executed by the accused is hereby stands cancelled and cash surety of Rs.10,000/ furnished by the accused shall be refunded to him after expiry of appeal period.
Copy of the judgment shall be furnished to the accused at free of cost.
(Dictated to the Stenographer, transcript thereof is computerized and printout taken by him, is verified and then pronounced by me in Open Court on this the 07 th day of March2022.) (Lokesh Dhanapal Havale) XV Addl. CMM., Bangalore.
16 CC.NO.30012/2017ANNEXURE Witnesses examined for the Complainant: PW.1 Kiran.S.Javali Documents marked for the Complainant: Ex.P.1 to P.3 Three Affidavits.
Ex.P.1(a) Confirmation
Ex.P.1(b) Signature.
Ex.P.4 & P.5 Two original cheques.
Ex.P.4a & P.5a Signatures of the accused.
Ex.P.6 & P.7 Two Bank endorsements.
Ex.P.8 Bank Statement.
Ex.P.9 Legal Notice.
Ex.P.10 Postal Receipt.
Ex.P.11 Postal Acknowledgement.
Witnesses examined For Defence: Nil Documents marked for Defence: Nil (Lokesh Dhanapal Havale) XV Addl.CMM., Bangalore.