Bangalore District Court
Against The Accused For The Offence vs Agreed To Repay It With Interest Within ... on 8 January, 2020
1 CC.30603/2018 (J)
IN THE COURT OF THE XV ADDL CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY.
Dated this the 08th day of January-2020
Present: Subhash.B.Hosakalle.
B.Com.,LL.B (Spl)
XV Addl.C.M.M., Bangalore.
Judgment U/s.355 of the Cr.P.C. 1973.
1.Sl.No.of the case CC.No.30603/2018
2.Name of the Complainant: Sri.K.M.Shivashankar.,
S/o.Mariswamy,
Aged about 32 years,
No.36, near, Balamuri Ganesh
Temple, Kasuthuri Layout,
Rajagopal Nagar Peenya IInd
Stage, Bengaluru-560058.
3.Name of the accused: Sri.Nandiswarachar.K.N.,
S/o.Gangadhar Achar,
Occupation: Driver.
Aged about 52 years,
R/at.30, 6th Main,
Subbaiah Road,
"Muddanna Nilaya"
Vyalikawal, Bangalore.
OFFICE:
Kumar Krupa, Athithi Gruha,
(Saareege Vibhaga)
High Grounds,
Bengaluru-560001.
4.The offence complained of U/s.138 of Negotiable
: Instruments Act.
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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 08th day of January-2020.
***
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.
The facts in brief is as under.
2. That the complainant and the accused are
known to each other from the past several years and
accordingly accused has approached the complainant and
sought the hand loan of Rs.2 lakhs for his family purpose.
In response to the request on 19.2.2018 complainant lent
loan of Rs.2 lakhs to the accused by way of cash and
accused agreed to repay it with interest within six months.
Accordingly the accused in order to repay the loan amount
issued the cheque No.032462, dated 12.8.2018, for Rs.2
lakhs, drawn on the State Bank of India, Madhavanagar
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Crescent Road, Bengaluru. On 25.9.2018 the complainant
presented said cheque for encashment purpose through
his Banker by name Karnataka Bank Ltd., Nehrunagar
Branch, Bengaluru. The said cheque was returned unpaid
with an endorsement of "Funds Insufficient". The Bank
has issued dishonor Memo on 27.9.2018. The legal notice
dated 11.10.2018 got issued to the accused by registered
post. It was duly served to the accused on 13.10.2018.
The accused issued the untenable reply. According to the
complainant the accused failed to refund the cheque
amount within stipulated time and thereby committed an
offence punishable U/s.138 of N.I.Act. It is prayed to
punish the accused.
3. After the institution of the complaint it has been
registered it in PCR No.14557/2018 and cognizance taken.
The sworn statement of the complainant has been recorded
and on the basis of sworn statement and other materials
on hand the criminal case has been registered against the
accused and issued summons to him. In response to the
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summons the accused put his appearance through his
learned counsel and got enlarged on bail. The prosecution
papers supplied to the accused and recorded plea. The
accused denied the plea and claimed for trial.
4. During trial the complainant was examined as
PW-1 and got marked the Ex.P.1 to P.9. The 313 statement
of accused recorded and accused himself got examined as
DW-1. There was no evidence on behalf of the accused.
5. I have heard the argument of both learned
counsels, perused the entire materials and the following
points would arise for my consideration.
1. Whether the complainant proves that
the Accused towards the discharge of
legally enforceable debt/liability of
Rs.2,00,000/- has issued the cheque
and on its presentation for
encashment purpose it was
dishonored for the reason "Funds
Insufficient" and thereby accused
committed an offence punishable
U/Sec.138 of N.I. Act, 1881 ?
2. What order?
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6. My answers on the above points for
consideration are as under.
Point No.1 : In the Affirmative
Point No.2 As per final order for the following:-
REASONS
7. Point No.1:- I have noticed the provision of
Section 118(a), 138 and 139 of the N.I.Act, 1881. Under
the light of said provisions of the Act, I have perused the
complaint and the evidence placed on record by the parties
to the complaint. The complainant examined as PW-1. He
has filed his evidence affidavit on oath as his examination-
in-chief and wherein he has deposed as per the averments
made in the complaint. The complainant has also
produced the Ex.P.1 to P.9. I have perused the exhibits.
The Ex.P.1 is the cheque dated 12.8.2018 for Rs.2 lakhs
and accused signature marked at Ex.P.1(a), Ex.P.2 is the
counter part of pay-in-slip for having deposited the cheque
for collection purpose, Ex.P.3 is the Bank endorsement
dated 27.9.2018, Ex.P.4 is the office copy of the legal notice
dated 11.10.2018, Ex.P.5 and P.6 are the two postal
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receipts for having sent statutory notice to the accused
through registered post, Ex.P.7 is the postal
acknowledgement card for having due service of the legal
notice on the accused, Ex.P.8 is the postal envelope and
Ex.P.9 is the reply notice dated 02.11.2018. On perusal of
the exhibits which reveals that the complainant has
complied the ingredients of Section 138(a) and (b) of the
Act. In view of the reply notice marked at Ex.P.9, it is
proved that the statutory notice was duly served upon the
accused. The check slip dated 19.11.2018 reveals that the
complainant has filed the complaint well within the time.
8. It is well settled position of law that the accused
need not enter into the witness box to adduce his defence
evidence. On the other hand the accused is at liberty to
utilize the materials produced by the complainant as his
defence evidence and he is at liberty to raise the defence
based on the said materials, on the principle of
Preponderance of probabilities. But in the case on hand
the accused has adduced his defence evidence. The
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accused himself got examined as DW-1. No documentary
evidence on behalf of the accused.
9. The PW-1/Complainant in his examination-in-
chief has deposed that, himself and the accused are close
friends to each other and accordingly the accused to meet
out his family purpose has approached the complainant
and sought for hand loan of Rs.2 lakhs. The PW-1 further
deposed that he lent said loan amount to the accused and
the accused agreed to repay the said loan amount within
six months with interest. He further deposed that the
accused towards the discharge of the debt has issued the
cheque No.032462 dated 12.8.2018, for Rs.2 lakhs, drawn
on the State Bank of India, Madhavanagar Crescent Road
Branch, Bengaluru. As further examination-in-chief
Complainant/PW-1 has deposed that, for collection
purpose he presented said cheque on 25.9.2018, through
his Bankers by name Karnataka Bank Ltd., Nehrunagar
branch, Bengaluru. That the said cheque was dishonored
with an endorsement of "Funds Insufficient". That on
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27.9.2018 Bank has issued dishonor Memo and thereafter
on 11.10.2018 legal notice was issued to the accused
through registered post. He further deposed that despite of
receipt of legal notice the accused failed to repay the
cheque amount and on the other hand he replied to the
statutory notice in an evasive manner. The PW-1 further
deposed to punish the accused.
10. I have perused the cross-examination of the
PW-1. During the cross-examination of the PW-1 it has
been elicited that the complainant and accused are known
to each other since ten years and further it has been
elicited that the complainant and the accused are close to
each other and in the year 2018 accused has requested to
the complainant for hand loan of Rs.2 lakhs. Further it
has been elicited that on 19.02.2018 accused has asked to
the complainant for loan. The PW-1 further stated in his
cross that he lent loan of Rs.2 lakhs to the accused on
19.02.2018 and except cheque he does not obtain any
documents from the accused. In addition to the said
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version the PW-1 further stated that, the accused has
promised to refund the said loan amount within six
months. Further it has been elicited from the mouth of
PW-1 that, there were previous loan transaction between
the complainant and the accused and one year prior to the
instant transaction the complainant had lent loan of
Rs.50,000/- to the accused and in support of said
transaction the complainant had not obtained any
documents from the accused. Further the PW-1 has stated
that there were no negotiation between him and the
accused in respect of the instant loan transaction. The
PW-1 further stated that since the accused agreed to repay
the loan amount within six months. Hence, he could not
obtain any documents from the accused.
11. During further cross-examination of PW-1 it
has been elicited that there was no difficulty on part of the
complainant to lend loan of Rs.2 lakhs to the accused
either by way of cheque or demand draft. In furtherance of
said version the PW-1 has stated that at the request of the
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accused the loan amount has disbursed to the accused by
way of cash. That the complainant do not remember the
date on which the accused issued the cheque.
12. During further cross-examination of the PW-1
the defence party has raised the defence that, the
complainant has approached the accused in the first week
of August 2018 and sought loan of Rs.2 lakhs. Further it
was suggested that, since the accused had no alleged huge
amount with him and hence he issued undated cheque of
Rs.2 lakhs to the complainant. These suggestions have
been specifically denied by the PW-1/Complainant.
Further it has been suggested that, the complainant has
misutilized undated cheque and for wrongful gain has filed
this complaint. This suggestion was also categorically
denied by the complainant.
13. In the case on hand the accused has produced
his defence evidence. Accordingly the accused stepped into
the witness box and got examined him as DW-1. This
DW.1 in his examination-in-chief has deposed that since
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many years he know the complainant and accordingly on
1.8.2018 the complainant has asked him for loan of Rs.2
lakhs. The DW-1 further deposed that he had no money by
that time. He further deposed that at the request of the
complainant he issued the cheque without date and the
complainant presented the said cheque on 12.8.2018. He
further deposed that he received notice and thereafter he
came to know that the complainant had presented the
cheque with the Bank. He further deposed that he replied
to the legal notice. The reply notice has been marked at
Ex.P.9.
14. The DW-1 in his cross-examination has
admitted that he wrote the cheque except the date and also
admits his signature on the cheque. He denied the
suggestion that he took loan of Rs.4 lakhs from the
complainant and issued the cheque towards the discharge
of the said loan amount. This DW-1 in his further cross-
examination has stated that, at no point of time he issued
notice to the complainant asking him to return the cheque
involved in the case on hand. He denied the suggestion
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that he has been deposing falsely with an ulterior
intention.
15. After perusing the defence of the Accused/DW-1,
I have perused the reply notice dated 2.1.2018 which has
been marked at Ex.P.9. In the reply notice the accused
has been categorically denied all the contents of the
statutory notice and per contra the accused in his reply
notice paragraph No.5 has raised the defence that, since
several years he know the complainant and accordingly the
complainant was in need of Rs.2 lakhs in the first week of
August 2018. He further stated in his reply notice that, he
had no that much of amount and accordingly at the
request of the complainant issued cheque which was
undated but signed to the complainant. He further stated
that the complainant had assured to refund the said
amount of Rs.2 lakhs within two months and also assured
to return the undated cheque for Rs.2 lakhs. He further
stated in his notice that, he issued signed undated cheque
bearing No.032462 for Rs.2 lakhs drawn on State Bank of
India, Madhavanagar Branch, Bengaluru. He further
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states in his reply notice that there was no any debt or
other liability owed towards the complainant.
16. Under the given facts and circumstances of the
case and on scrutinization of entire materials placed on
record by the parties to the complaint, prima-facie it is
crystallized that the alleged defence raised by the accused
in his examination-in-chief and in his reply notice is not at
all probable and there is no substance in the said alleged
defence. If at all there was a truth in the alleged defence,
the accused would have produced additional evidence to
show that he initiated legal action against the complainant
for the purpose of recovery of the alleged cheque. The
accused certainly would have issued notice to the
complainant asking him to return the cheque. Absolutely
there is no relevant and trustworthy evidence from the
custody of the accused to that effect. Therefore, there is no
probability in the defence raised by the accused. Hence,
the said defence is not at all sustainable and same is
hereby discarded.
14 CC.30603/2018 (J)
17. On the other hand the evidence discloses that
the accused unequivocally admits the issue of cheque and
his signature on it. In the case on hand the cheque has
been marked at Ex.P.1 and accused signature has been
marked at Ex.P.1(a). Further it is evident that the accused
has issued the cheque out of his A/c bearing
No.64002932571 held in the State Bank of India, Branch
Madhavanagar, Bengaluru-01. Further it is evident that
the accused is the drawer of the cheque. It is also evident
from the evidence that, the complainant for collection
purpose presented said cheque well within the time and it
was returned unpaid for the reason "Funds Insufficient" in
the account maintained by the accused in the said Bank.
Further through evidence the complainant has established
that, he has caused statutory notice to the accused and it
was duly served on the accused. The service of statutory
notice to the accused has been supported by the Ex.P.9 the
reply notice. Further it is evident that the complainant has
filed the complaint well within the period as constituted
U/s.138 of the N.I.Act. Thus, it is crystallized that the
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complainant has complied the ingredients of Section 138(a)
& (b) of the N.I.Act.
18. Already it has been stated that there is no
probability in the defence raised by the accused. On the
other hand, the accused himself unequivocally admitted
issue of the cheque and his signature on it. This
admission of the accused attracts the ratio laid down by
the Hon'ble Supreme Court of India in its decisions
reported in its decisions reported in 2011 (11) SCC 441 -
Rangappa V/s.Sri.Mohan and SCC 2015 (8) Page No.378 -
T.Vasanthakumar V/s.Vijayakumari and the recent
Judgment delivered in Crl. Appeal No.508/2019 - Rohit
Bhai Jeevanlal Patel V/s.State of Gujarath and another.
19. It is crystallized from the evidence that accused
has not produced any materials to show that the instant
cheque has not been issued to the complainant towards
the discharge of legally enforceable debt of Rs.2 lakhs.
Further it is crystallized that the accused failed to establish
the material aspect that there was no existence of legally
16 CC.30603/2018 (J)
enforceable debt between him and the complainant.
Therefore, I am of the view that the accused failed to rebut
the statutory presumption available in favour of the
complainant U/s.118(a) and 139 of the N.I.Act. Hence, for
the aforesaid reasons based on the evidence, 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 the
Affirmative.
20. Point No.2 : In view of the reasons assigned on
Point No.1, I proceed to pass the following:-
ORDER
As per the provisions of Sec.255(2) Cr.P.C. the accused is hereby sentenced for the offence punishable u/s.138 of NI Act, 1881. The Accused shall liable to pay fine of Rs.2,10,000/- (Rupees Two Lakhs Ten Thousand Only.) On deposit of fine amount the complainant is entitled for compensation of Rs.2,05,000/- (Rupees Two Lakhs Five Thousand only). The remaining balance amount of Rs.5,000/- is to be forfeited to the State.
17 CC.30603/2018 (J) In default of payment of the fine amount accused shall undergo simple imprisonment for six months.
The personal bond executed by the accused is hereby stands cancelled and cash surety of Rs.2,000/- furnished by the accused shall be forfeited to the state 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 08th day of January- 2020.) (Subhash.B.Hosakalle) XV Addl. CMM., Bangalore.
ANNEXURE Witnesses examined for the Complainant:-
PW.1 K.M.Shivashankar Documents marked for the Complainant:-
Ex.P.1 Cheque.
Ex.P.1(a) Signature of the accused.
Ex.P.2 Pay-in-slip.
Ex.P.3 Bank Endorsement.
Ex.P.4 Legal Notice.
Ex.P.5 & P.6 Two Postal Receipts.
Ex.P.7 Postal Acknowledgement Card.
18 CC.30603/2018 (J)
Ex.P.8 Postal envelope.
Ex.P.9 Reply Notice.
Witnesses examined For Defence:-
DW-1 Nandiswarachar Documents marked for Defence:- Nil (Subhash.B.Hosakalle) XV Addl.CMM., Bangalore. 19 CC.30603/2018 (J) 08.01.2020 (Judgment Pronounced in the Open Court Vide Separate Order sheet ORDER As per the provisions of Sec.255(2) Cr.P.C. the accused is hereby sentenced for the offence punishable u/s.138 of NI Act, 1881. The Accused shall liable to pay fine of Rs.2,10,000/- (Rupees Two Lakhs Ten Thousand Only.) On deposit of fine amount the complainant is entitled for compensation of Rs.2,05,000/- (Rupees Two Lakhs Five Thousand only). The remaining balance amount of Rs.5,000/- is to be forfeited to the State.
In default of payment of the fine amount accused shall undergo simple imprisonment for six months. 20 CC.30603/2018 (J) The personal bond executed by the accused is hereby stands cancelled and cash surety of Rs.2,000/- furnished by the accused shall be forfeited to the state after expiry of appeal period.
Copy of the judgment shall be furnished to the accused at free of cost.
(Subhash.B.Hosakalle) XV Addl.CMM., Bangalore. 21 CC.30603/2018 (J)