Bangalore District Court
Sri. Dhananjaya vs Sri. Sudhakar.P on 22 December, 2021
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
Dated: This the 22nd day of December 2021
Present : Sri Siddaramappa Kalyan Rao, B.A., LL.B.,
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
CC.No.32449 of 2018
COMPLAINANT/S: Sri. Dhananjaya,
S/o. Shivanna,
Aged about 28 years,
R/at:No:14/8,
Near Yallamma Temple,
Goragutnepalya,
Bengaluru - 560 022.
(Represented by
Sri. Eshwar.N.Koti., Advocate)
- Vs -
ACCUSED: Sri. Sudhakar.P.,
W/o. Puttananjaiah.,
Aged about 29 years,
R/at: No:6/31, 3rd Floor,
3rd B Cross Road,
Parimalanagara,
Nandini Layout,
Bengaluru - 560 096.
(Represented by
Sri. Krishnamurthy., Advocate)
Offence Under Section 138 of Negotiable
Instruments Act
Plea of the accused Pleaded not guilty
Final Order Convicted
2 CC.No.32449/2018
JUDGMENT
This complaint is filed under section 200 of Cr.P.C for the offence punishable under section 138 of Negotiable Instruments Act. 1881.
2. The brief facts of the complainant case is that:
Accused is the friend of the complainant and well known to complainant for the past several years. Hence in view of above said relationship during last week of March 2018, accused had obtained hand loan of Rs.2,50,000/-
from complainant to get the house on lease / rent with an assurance to repay the same within 3 months. After completion of 3 months, when complainant demanded accused for repayment of said hand loan amount, at that time, accused towards discharge of his liability has issued a cheque bearing No:019153 dated 30/07/2018 for Rs.2,50,000/- drawn on ICICI Bank, Commissariat Road, Bengaluru-25 in favour of complainant and requested complainant to present the cheque after 3rd week of August 2018.3 CC.No.32449/2018
3. It is further contended that as per the instructions of accused, the complainant presented the said cheque through his Banker Canara Bank, Tumkur Road Branch, Bengaluru, but it is dishonoured for the reasons "Account closed" vide memo dated 24/08/2018.
4. Thereafter, the complainant got issued legal notice to the accused on 03/09/2018, but the said legal notice is returned back through postal shara as "No such person / Returned to sender". The accused has not replied to the notice nor paid the cheque amount. Hence, the present complaint is filed on 03/10/2018.
5. After filing of the complaint, this court has taken the cognizance of offence under section 138 of N.I Act and registered a Private complaint. After recording the sworn statement of the complainant, this court has registered the criminal case against the accused for the offence punishable under Section 138 of Negotiable Instruments Act. Summons issued to the accused. The accused 4 CC.No.32449/2018 appeared through his counsel and enlarged on bail. There afterwards, plea of accusation was read over and explained to accused in the language known to him and he pleaded not guilty and claims to be tried.
6. When the case was posted for recording of statement of the accused under section 313 of Cr.P.C., the accused has denied the entire incriminating evidence appearing against him. The accused is examined as D.W.1 but not got marked any documents in support of his defence.
7. In order to prove the case, the complainant is examined as PW-1 and got marked documents from Ex.P.1 to Ex.P.7.
8. It is the specific defence of the accused that accused mother and complainant mother are known to each other since last 3 to 4 years and complainant mother was running chit business from the last 7 to 8 years. 5 CC.No.32449/2018 Accused mother was a member in the chit run by complainant mother during 2017 for a sum of Rs.1,00,000/-. While bidding the said chit, complainant demanded security and accused mother has taken the Ex.P.1 cheque of accused and handed over to complainant as security. After completion of chit, accused mother demanded for return of Ex.P.1 cheque and they quarrelled and did not return the same and promised to return the same when found, but did not return. The other defence raised by the accused is that the notice issued by the counsel for complainant is not served on accused and there is no any liability to be paid by the accused. Hence, on the above said two grounds prays to dismiss the complaint.
9. Heard both sides. Perused the entire oral and documentary evidence placed on record.
10. The following points arose for my consideration:
1. Whether the complainant proves that there is existence of legally recoverable debt as stated in the complaint?6 CC.No.32449/2018
2. If so, whether the complainant proves that Ex.P.1 cheque is issued towards discharge of legally recoverable debt by the accused?
3. Whether the complainant proves that the accused has committed an offence under Section 138 of Negotiable Instruments Act?
4. What order?
11. My findings to the above points are as under:
Point No.1 : In the affirmative;
Point No.2 : In the affirmative;
Point No.3 : In the Affirmative;
Point No 4 : As per final order,
for the following:
REASONS
POINTS NO.1 AND 2:
12. These points are taken together for common discussion in order to avoid repetition of facts.
13. It is the specific case of the complainant that accused is the friend of the complainant and well known to complainant for the past several years. Hence, in view of 7 CC.No.32449/2018 the above said relationship, during last week of March 2018, accused had obtained hand loan of Rs.2,50,000/- from complainant to get the house on lease / rent basis with an assurance to repay the same within 3 months. After completion of 3 months, when complainant demanded accused for repayment of said hand loan amount which has been obtained by accused for obtaining the house on lease / rent basis, at that time accused towards discharge of his liability issued Ex.P.1 cheque bearing No:019153 dated 30/07/2018 for a sum of Rs.2,50,000/- drawn on ICICI Bank, Commissionerate Road, Bengaluru-25 in favour of complainant and requested complainant to present the cheque after 3rd week of August 2018. As per the instructions of accused, the complainant presented the said cheque through his Banker Canara Bank, Tumkur Road Branch, Bengaluru, but it is dishonoured for the reasons "Account closed" as per Ex.P.2 memo dated 24/08/2018.
14. To substantiate the above said contention, the 8 CC.No.32449/2018 complainant is examined as PW-1 and has marked the documents from Ex.P.1 to Ex.P.7.
Ex.P.1 is the cheque of ICICI Bank, Commissionrate Road Branch, Bengaluru-25 bearing No:019153 for a sum of Rs.2,50,000/- issued to Dhananjaya.S i.e., the complainant and it is issued by Sudhakar.P. i.e, the accused. Ex.P.2 is the memo of Canara Bank dated 24/08/2018 with respect to cheque bearing No:019153 for a sum of Rs.2,50,000/- and the above said cheque is came to be dishonoured for the reasons "Account closed". Ex.P.3 is the office copy of legal notice issued to accused dated 03/09/2018. Ex.P.4 is the postal receipt dated 04/09/2018 bearing No:RK961030181IN. Ex.P.5 is the unserved postal cover wherein on 06/09/2018 it is returned for the reasons "No such person". Ex.P.6 is the representation of the complainant counsel before Post Master, CCM Court Complex with regard to non-receipt of acknowledgement. Ex.P.7 is the Postal Track consignment 9 CC.No.32449/2018 dated 10/09/2018 with respect to No:RK961030181IN wherein it is endorsed as "Item delivered".
15. To substantiate the above said contention, complainant is examined as PW-1, he has reiterated the complaint averments in his affidavit evidence and he during his cross-examination has deposed that accused is known to him since from the last 3 to 4 years and has deposed that he is not running any chit business. He has also denied to the suggestion that complainant is running chit business since from the last 7 to 8 years. He has also denied to the suggestion that mother of the accused by name Shobha was a member in the chit business run by the complainant for a sum of Rs.1,00,000/- which was started during the month of March 2017 and he has denied to the suggestion that the above said chit was withdrawn by the accused and for security purpose accused mother has issued Ex.P.1 cheque belonging to the accused. He has also denied to the suggestion that after completion of the above said chit, accused has requested for return of 10 CC.No.32449/2018 Ex.P.1 cheque, but not returned and he has also denied to the suggestion that complainant is not having any financial capacity to pay an amount of Rs.2,50,000/-.
16. Hence, on perusal of the above said cross- examination, it reveals that complainant has stood by the averments what has been stated in the complaint and no where his evidence is shaken. It is specifically stated by complainant that due to the relationship between himself and accused, accused has obtained loan for getting the house on lease or rent basis and he has advanced loan of Rs.2,50,000/- and for discharge of the same, accused has issued Ex.P.1 cheque and the only defence that has been raised by the accused is that accused mother and complainant mother are known to each other and complainant was running chit business from the last 7 to 8 years and accused mother was a member in the chit business which was run by complainant mother and at the time of withdrawing of the chit during the month of March 2017, as security purpose Ex.P.1 cheque has been issued 11 CC.No.32449/2018 by the accused mother and when the entire chit amount has been paid by the accused mother and when demanded by the accused mother for return of the cheque, they did not return the same and promised to return the same when it is traced. However, it has been not returned. However, to substantiate the above said contention that the complainant mother was running chit business and accused mother was a member in the above said chit business for a sum of Rs.1,00,000/-, though accused is examined as D.W.1, but no any documents are forthcoming from the side of the accused to substantiate the contention that accused was a member in the chit business run by the complainant mother. Hence, in view of non production of documentary evidence, the above said defence taken by the accused is not proved by production of documentary evidence. The another defence which has been taken by the accused is that the legal notice issued by the counsel for complainant is not served on accused. Hence, on the above said grounds prays to dismiss the complaint. Further, on close scrutiny of Ex.P.3 which is 12 CC.No.32449/2018 the legal notice which has been issued by the counsel for complainant to accused on 03/09/2018 and it has been sent through Ex.P.4 postal receipt dated 04/09/2018 bearing No:RK961030181IN and as per Ex.P.7 Postal Track consignment with respect to No:RK961030181IN dated 10/09/2018, it reveals that the above said notice issued as per Ex.P.3 has been delivered to the accused. In the Postal Track consignment as per Ex.P.7, it is mentioned as "Item delivered". Hence, as per the Circular issued by Hon'ble High Court of Karnataka vide Ref.No:126/2021 dated 25/11/2021, the Postal Track consignment showing as "Item Delivery confirmed" is deemed to be served. That means the notice issued as per Ex.P.3 is duly served on the accused as per Ex.P.7 and Section 138(b) of N.I.Act is also been complied by complainant.
17. Further, the accused who is examined as D.W.1 admits during cross-examination that complainant is known to him since from the last 3 years and he also admits that he has not given any instructions to the Bank 13 CC.No.32449/2018 with regard to Ex.P.1 cheque. That means if the entire chit amount which was to be paid by the accused mother has been repaid in favour of complainant mother and when complainant and his mother have not returned Ex.P.1 cheque, then at least he could have given instructions to the Banker to not to honour Ex.P.1 cheque. However, to this aspect also no any action has been taken by the accused and not given any reply notice to the complainant, if at all the chit amount has been paid by the accused and Ex.P.1 cheque has been retained by the complainant and his mother illegally. To this aspect also no any steps has been taken by the accused towards complainant and his mother. Therefore, the defence taken by the accused that Ex.P.1 cheque has been given as security in view of chit transaction is without any documentary evidence and further the accused also admits that his signature is appearing at Ex.P.1(a). That means it has been admitted by the accused that the above said Ex.P.1 cheque belongs to his account and his signature is also admitted. That means it goes to show that Ex.P.1 cheque has been issued 14 CC.No.32449/2018 by the accused in favour of complainant for discharge of debt which has been obtained by the accused for obtaining of the house on lease or rent basis and for discharge of the same accused has issued Ex.P.1 cheque. Though in the present case the evidence of the complainant has been rebutted by cross-examining PW-1 and also by leading defence evidence, by it is not convincing, trustworthy and reliable and it is just a plausible explanation given by the accused stating that for payment of the chit amount Ex.P.1 cheque is issued in favour of complainant. On the other hand, on perusal of the complaint averments clubbed with the oral and documentary evidence, it reveals that Ex.P.1 cheque has been issued by the accused in favour of complainant for discharge of debt obtained by the accused for getting house of rent or lease basis and the above said debt is a legally enforceable debt.
18. Further, I rely upon the decision reported in Crl. Appeal No:230-31 of 2019, decided between Bir Singh V/s. 15 CC.No.32449/2018 Mukesh Kumar dated 06/02/2019 wherein at Para No:40 it has been clearly held that :-
"Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt".
Hence, the complainant has proved that Ex.P.1 cheque has been issued by accused in favour of complainant for discharge of debt which has been obtained for getting house of rent or lease basis. Hence, in view of my above discussion, I answer Point No.1 and 2 in the "Affirmative".
POINT No.3:-
19. It is the specific contention of the complainant that accused is the friend of the complainant and well known to complainant for the past several years. During last week of March 2018, accused had obtained hand loan 16 CC.No.32449/2018 of Rs.2,50,000/- from complainant to get the house on lease / rent with an assurance to repay the same within 3 months. After completion of 3 months, when complainant demanded accused for repayment of said hand loan amount, at that time accused towards discharge of his liability has issued Ex.P.1 cheque bearing No:019153 dated 30/07/2018 for Rs.2,50,000/- drawn on ICICI Bank, Commissariat Road, Bengaluru-25 in favour of complainant. When the complainant presented the said cheque through his Banker Canara Bank, Tumkur Road Branch, Bengaluru, it was dishonoured for the reasons "Account closed" dated 24/08/2018 as per Ex.P.2 memo. Thereafter, the complainant got issued legal notice to the accused on 03/09/2018. The said notice is sent through Ex.P.4 postal receipt and the said notice is deemed to be served on accused on 10/09/2018 as per Ex.P.7 Postal Track consignment stating "Item delivered". Thereafter, the accused has not replied to the notice nor gave the cheque amount. Hence, the present complaint is filed on 03/10/2018.
17 CC.No.32449/2018
20. In this regard, it is relevant to peruse Section 138 of the Negotiable Instrument Act, which reads as under:-
"Dishonour of cheque for insufficiency, etc., of funds in the account.--Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:
21. Provided that nothing contained in this section shall apply unless--
a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;18 CC.No.32449/2018
b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
22. Explanation.--For the purposes of this section, "debt of other liability" means a legally enforceable debt or other liability.
23. On going through the said provision of law, it is clear that in order to establish and to prove the fact that the accused has committed an offence under section 138 of N.I.Act, the essential requirements i.e., legally recoverable debt, issuance of the cheque, presentation of the said cheque within the stipulated period for encashment, the dishonour of the said cheque and the 19 CC.No.32449/2018 issuance of the legal notice within the stipulated period calling upon the accused in making the payment of the said cheque amount is within the stipulated period are to be proved by the complainant.
24. On going through the facts and circumstances of the case, it is clear that the accused has issued Ex.P.1 cheque bearing No:019153 for a sum of Rs.2,50,000/-. When the said cheque was presented to the Bank for encashment, it was dishonoured for the reasons "Account closed" as per Ex.P.2 memo dated 24/08/2018. Thereafter, the complainant has issued legal notice through his advocate as per Ex.P.3 on 03/09/2018 and the said notice is sent by RPAD. The notice is sent by RPAD as per Ex.P.4 postal receipt, the said notice is deemed to be served on accused as per Ex.P.7 Postal Track consignment on 10/09/2018 as "Item delivered". The evidence placed on record shows the failure of the accused to pay the above said cheque amount within stipulated period as per section 138(c) of the Act. The present 20 CC.No.32449/2018 complaint has been filed on 03/10/2018 which is well within the period of limitation. In view of this, the complainant has satisfied the entire requirements of section 138 of N.I.Act.
25. On going through the entire oral and documentary evidence and as observed supra, the complainant has proved the existence of legally recoverable debt and issuance of cheque towards discharge of the said debt and also issuance of the legal notice within stipulated period and the failure of the accused to make payment of the said cheque amount within stipulated period. Under such circumstances, I hold that the complainant has clearly proved the existence of legally recoverable debt and also the issuance of cheque towards the discharge of said debt.
26. When the complainant proved that accused has issued Ex.P.1 cheque towards discharge of his liability, he is liable to pay the money as provided U/Sec.138 of N.I.Act. 21 CC.No.32449/2018 The accused can be punishable with imprisonment for a term which may be extended upto 2 years or with fine which may be extended to twice the amount of the cheque or with both. The accused is liable to pay the cheque amount of Rs.2,50,000/- in discharge of his liability in favour of complainant. Hence in view of my above discussion, I answer Point No.3 in "Affirmative". POINT No.4:-
27. In the result I proceed to pass the following:
ORDER Acting under Section 255(2) of Cr.P.C., the accused is hereby convicted for the offence punishable under Section 138 of N.I. Act.
Accused is sentenced to pay a fine of Rs.2,50,000/- (Rupees Two Lakh Fifty Thousand Only) for the offence punishable under Section 138 of N.I. Act. The same shall be paid by the accused within a period of 30 days from the date of this order.
22 CC.No.32449/2018
Out of the said fine amount, a sum of Rs.2,45,000/- (Rupees Two Lakh Forty Five Thousand Only) has been awarded to the complainant as compensation under Section 357 of Cr.P.C.
In default of payment of fine amount, the accused shall undergo simple imprisonment for 6 (Six) months.
The rest of Rs.5,000/- (Rupees Five Thousand only) is ordered to be adjusted to the State as fine.
The cash surety amount of
Rs.3,000/- already deposited by the
accused on 01/10/2019 is forfeited to the State.
Office is directed to supply copy of Judgment to the accused free of cost forthwith. (Dictated to the Stenographer on computer, print out taken by her is verified, corrected and then Pronounced by me in the Open Court on this the 22nd day of December 2021).
(Siddaramappa Kalyan Rao) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
23 CC.No.32449/2018ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 : Sri. Dhananjaya.
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 : Legal notice.
Ex.P.4 : Postal receipt.
Ex.P.5 : Unserved postal cover.
Ex.P.5(a) : Notice in it.
Ex.P.6 : Letter sent to the postal
authority for non-receipt of
acknowledgement.
Ex.P.7 : Postal Track consignment.
List of witnesses examined on behalf of the accused :
DW.1 : Sri. Sudhakar.P. List of documents exhibited on behalf of the accused :
- Nil -
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.24 CC.No.32449/2018
Date: 22/12/2021 Complainant - EN Accused - KPJ Judgment 25 CC.No.32449/2018 Judgment pronounced in the open court vide separate order) ORDER Acting under Section 255(2) of Cr.P.C., the accused is hereby convicted for the offence punishable under Section 138 of N.I. Act.
Accused is sentenced to pay a fine of Rs.2,50,000/- (Rupees Two Lakh Fifty Thousand Only) for the offence punishable under Section 138 of N.I. Act. The same shall be paid by the accused within a period of 30 days from the date of this order.
Out of the said fine amount, a sum of Rs.2,45,000/- (Rupees Two Lakh Forty Five Thousand Only) has been awarded to the complainant as compensation under Section 357 of Cr.P.C.
In default of payment of fine amount, the accused shall undergo simple imprisonment for 6 (Six) months.
26 CC.No.32449/2018The rest of Rs.5,000/- (Rupees Five Thousand only) is ordered to be adjusted to the State as fine.
The cash surety amount of Rs.3,000/- already deposited by the
accused on 01/10/2019 is forfeited to the State.
Office is directed to supply copy of Judgment to the accused free of cost forthwith.
XII A.C.M.M., Bengaluru.