Bangalore District Court
Rbl Bank Ltd vs Eranna on 18 March, 2017
IN THE COURT OF THE XXVI ADDL.CHIEF
METROPOLITON MAGISTRATE, BANGALORE CITY
Dated this the 18th day of March 2017
: PRESENT:
SMT.SHEILA B.M. M.Com. LL.M.
XXVI Addl.C.M.M., Bangalore City.
JUDGMENT U/S 355 OF Cr.P.C
Case No. : C.C No.16436 /2016
Complainant : RBL Bank Ltd.
(Formerly known as the
Ratnakar Bank Ltd.)
Registered office at
1st Lane, Shahupuri,
Kolhapur - 416 001
Branch Office
At G-13, G-14, G-15 & G-17,
Prestige Tower 99 & 100,
Residency Road
Bangalore - 560 025
Rep. by its authorized
Representative
Mr.Rajesh Kumar A
(By Sri.SA - Adv.)
Accused : Eranna
Proprietor of
M/s.Sri. Ganesh Enterprises,
No. 10 1 Ground Floor,
3rd Main Road,
Bangalore - 560 049
Karnataka
(By Sri. MVV - Adv.)
Offence complained of : U/s 138 of N.I.Act.
Plea of the accused : Pleaded not guilty.
Final Order : Accused is acquitted
Date of Order : 18.03.2017
2 CC No. 16436 of 2016
The complainant has filed this complaint against the
Accused for the offence punishable u/s 138 of Negotiable
Instruments Act.
2. The Complainant has stated that the accused had
applied for business loan and he was sanctioned loan.
Accused agreed to abide by the terms and conditions.
Towards repayment of the loan amount the accused issued
cheque dated 30.03.2016 for Rs.2,19,936/- When the said
cheque was presented it was returned dishonoured as
"Funds insufficient" on 31.03.2016. Legal notice was
issued on 07.04.2016. The said notice was returned with
endorsement "door locked" on 18.04.2016. It is stated that
the accused in spite of receipt of Legal notice has failed to
settle the loan amount. Hence the complaint.
3. On presentation of the complaint, cognizance and
statement of the Complainant was recorded and case was
ordered to register against the accused for the offence
3 CC No. 16436 of 2016
punishable u/s 138 of Negotiable Instruments Act. Notice
was sent to the accused.
4. The accused appeared before the court through
his counsel and was enlarged on bail. Copies of the papers
were furnished to him as required u/s 207 of Cr.P.C. The
summons and the substance of the accusation for the
offence punishable u/s 138 of Negotiable Instruments Act
was read over and explained to the accused. The accused
pleaded not guilty and claimed trial.
5. The Complainant has examined its Authorized
Representative as PW1 and got marked Ex-P1 to P10. After
closing the Complainant side, the statement of the accused
u/s 313 of Cr.P.C. was recorded and the accused has
denied the incriminating evidence against him. The
accused examined as DW1.
6. Heard arguments.
4 CC No. 16436 of 2016
7. The points that arise for consideration are as
under:
1) Whether the complainant proves that the
cheque bearing No.469 dated : 30.03.2016 for
a sum of Rs.2,19,936/- drawn on Federal
Bank, Bangalore returned unpaid for the
reason that the funds insufficient in the
account of the Accused ? If so whether the
Complainant proves that the legal notice has
been served on the accused ?
2) Whether the accused proves that, cheque
bearing No.469 dated : 30.03.2016 was not
issued in discharge of any legally recoverable
debt in favour of the Complainant
3) Whether the complaint is maintainable ?
8. My findings on the above points are as under:
Point No.1 : In the affirmative,
Point No.2 : In the affirmative,
Point No.3 : In the negative,
Point No.4: As per the final order for the
following:
5 CC No. 16436 of 2016
REASONS
POINT NO.1:
9. It is undisputed fact that Ex-P2 cheque pertain to
the account of the accused and when the said cheque was
presented it has been dishonoured as "Funds insufficient"
in the account of the accused.
10. The Complainant has stated that subsequent to
the dishonour of the cheque Legal notice was issued on
07.04.2016 as per Ex-P4. Ex-P5 is the RPAD receipt 2 in
number. Ex-P7 returned RPAD cover. It is stated that the
notice has been returned as door locked. The accused
during the cross-examination has admitted that the
address mentioned in the cause title is correct and the
same address has been mentioned in the loan application
and the Legal notice. The counsel for the accused has relied
upon the decision of the Hon'ble SC reported in AIR 2009
SC 1168 wherein the Hon'ble SC has held that,
6 CC No. 16436 of 2016
"Issuance of the notice would not by itself
given rise to cause of action but
communication of the notice would .... Giving of
notice has no precedent over service".
11. In the very same judgment the Hon'ble Supreme
Court has held that,
For constitution of the offence u/s 138 of NI
Act, the notice must be received by the
accused. It may be deemed to have been
received in certain situations. The word
communicate inter alia means to make known,
inform, convey etc.
In present case the notice was taken for almost 6 days and
the door was locked and the notice was returned.
12. In 2007 (3) Crimes 120 (SC) SCC Alva Haji
Palapatti Mohamed and another. The Hon'ble SC has
held,
In view of presumption available u/s 27 it is
not necessary to aver in complaint u/s 138
7 CC No. 16436 of 2016
that service of the notice was evaded by
accused or that accused had role to play in
return of notice un-served - in so far as
question of disclosure of necessary particulars
with regard issue of notice in terms of proviso
B of section 138 in order to enable the court to
draw presumption or inference either under
section 27 of the General Clauses Act or
Section 114 of Evidence Act is concerned there
is no material difference between the two
provisions hence when the notice is sent by
registered post by correctly addressing drawer
of the cheque , mandatory requirement of issue
of notice in terms of the clause B of proviso to
section 138 stands complied with.
13. The accused has not placed any other material to
rebut the statutory presumption hence it can be deemed to
have been served.
14. The Hon'ble SC in Appeal Crl. 767 / 2007,
indiankanoon.org/doc/272690 at para 17 has held,
It is also to be borne in mind that the
requirement of giving of notice is clear
8 CC No. 16436 of 2016
departure from the rule of Criminal Law,
where there is no stipulation of giving of a
notice before filling a complaint. Any drawer
who claims that he did not receive the notice
sent by post, can, within 15 days of receipt of
summons from the court in respect of the
complaint under section 138 of the Act, make
payment of the cheque amount and submit to
the court that he had made payment within 15
days of receipt of summons (by receiving a
copy of complaint with the summons) and
therefore, the complaint is liable to be rejected.
A person who does not pay within 15 days of
receipt of the summons from the court along
with the copy of the complaint under section
138 of the act, cannot obviously contend that
there was no proper service of notice as
required under section 138, by ignoring
statutory presumption to the contrary under
section 27 of the GC Act and section 114 of the
evidence act. In our view, any other
interpretation of the proviso would defeat the
very object of the legislature. As observed in
Bhaskarana case (supra), if the giving of notice
in the context of Clause (b) of the proviso was
the same as the receipt of notice a trickster
cheque drawer would get the premium to avoid
receiving the notice by adopting different
strategies and escape form legal consequences
of section 138 of the act.
15. The said decision applies to the case on hand.
The accused after receiving summons from the court has
9 CC No. 16436 of 2016
not paid the cheque amount within 15 days and therefore
in view of the above decision he cannot contend that there
has been no proper service of notice. In view of the above
discussion point no. 1 is answered in affirmative.
POINT NO.2
16. Once the cheque relates to the accused and his
signature on the said cheque is proved an initial
presumption as contemplated u/s. 138 of Negotiable
Instruments Act has to be raised by the court in favour of
the Complainant. Sec. 139 of the Negotiable Instrument
Act contemplates that it shall be presumed unless contrary
is proved that the holder of the cheque received the cheque
of the nature referred to in the Sec.138 for the discharge of
the whole or in part any debt or liability. The presumption
referred to u/s 138 of Negotiable Instruments Act is
mandatory presumption and in general presumption. But
10 CC No. 16436 of 2016
the accused is entitled to rebut the said presumption.
What is required to be established by the accused in order
to rebut the presumption is different from each case under
given circumstances. But the fact remains that mere
plausible explanation is not expected from the accused and
it must be more than plausible explanation by way of
rebuttal evidence. In other words the defence raised by
way of rebuttal evidence must be probable and capable of
being accepted by the court.
17. The accused has stated that in the month of
September 2015 he approached the bank for Rs.10 lakhs
and on 20.09.2015 he had given signed blank documents.
At that time he had given 8 blank signed cheque to the
Complainant and the cheques are numbered as 000464 to
000471 It is stated that the Complainant had filled the
contents of the blank cheque and had presented it. The
accused has not produced any document to show that he
had given signed blank cheques to the Complainant. The
11 CC No. 16436 of 2016
counsel for the accused had relied upon the decision 2011
(4) Crimes 158 (KER) wherein the Hon'ble Kerala High
court has held,
"The blank cheque can only be treated as cheque
leaf containing admitted signature of the accused
and it will not amount to admission of execution
of cheque"
As already stated the accused has not placed any material
to show Ex-P2 cheque is blank cheque given to the
Complainant hence said decision is not applicable to the
case on hand.
18. However, the counsel for the accused has pointed
out that the Installment period as per Ex-P8 account
statement commences from 05.12.2015. PW1 during cross-
examination has stated that he has not produced the loan
application ; that the amount of interest due and the
principal amount due as on the date of the cheque has not
12 CC No. 16436 of 2016
been mentioned in the complaint and in the notice. He
however admits that the ink in the signature and other
contents of Ex-P2 differs ; and that accused has filed O.S.
No.213/2016 seeking for Injunction from forcable recovery.
It is elicited that they have not taken any collateral security
for the loan nor have taken surety. It is elicited that it is not
mandatory to take collateral security and surety when the
loan is Rs.10 lakhs. The Complainant has produced the
account statement as per Ex-P8 and P10. Ex-P8 is the
account statement up to 20.12.2016. It shows that principal
outstanding status as on 02.12.2016. The cheque is dated
30.03.2016. From this statement it is not possible to know the
balance Installment over due as on the date of the cheque.
19. The Complainant has produced statement of
transaction from 31.10.2015 to 09.01.2017 as per Ex-P10. It
discloses the withdrawal amount, deposit amount and
balance amount. As per the Ex-P8 the period of
installment is 36 months. There is no pleading nor
13 CC No. 16436 of 2016
documents has been produced to show that the entire loan
has been recalled. The balance amount in Ex-P10 is the
balance principal and interest and not the over due balance
installment amount. From the said statement it is not
possible to know that the balance installment over due as
on the date of cheque. As the loan has not been recalled
the Complainant ought to have placed calculation with
regard to the over due installment amount as on the date of
the cheque. The Complainant has also not stated the
installment per month nor has produced loan documents.
Having not done so it can be said that the Ex-P2 cheque is
not issued towards legally recoverable debt.
20. The case put forward by the accused that the
cheque was not given for the discharge of the debt appears
to be probable and convincing. The presumption u/s 118
and 139 of act would stand rebutted. The Complainant
has not placed any other acceptable evidence. In view of
14 CC No. 16436 of 2016
the above discussion point no.2 is answered in the
affirmative.
POITN NO. 3
21. The complaint has been filed by authorized
representative Rajesh Kumar A. who is the Manager. It is
stated that copy of the POA is produced however the
Complainant has not produced the POA. At the time of
filing zerox copy of office order 06.07.2015 was produced
but at the time of evidence office order dated 12.07.2016
Ex-P1 has been produced. Ex-P1 authorizes Rajesh
Kumar from 12.07.2016. The original office order dated
06.07.2015 has not been produced. The zerox copy
resolution has been produced and it has not been marked.
Our Hon'ble High Court in RSA No.1344/2010 has held,
at para 7 of the judgment page 9,
"the xerox copy cannot be secondary
evidence in the absence of the plaintiff
establishing the ground u/s 65 of the
15 CC No. 16436 of 2016
Evidence Act. Therefore such documents
which is unmarked and is the xerox copy
cannot be looked into for any purposes".
The said decision applies to the case on hand. The xerox
copy of the resolution cannot be looked into.
22. In ILR 2014 page 2168 our Hon'ble High Court
has held "The complaint instituted by the appellant in the
Trial Court is not maintainable for the sole reason that X
who has signed the complaint has no authority in law to
represent the company as there is no resolution by the
company authorizing 'X' to file the complaint.
23. The above decision applies to the case on hand.
The authorized representative of the Complainant has
failed to prove that he had authority to file the complaint.
Hence point for consideration is answered in negative.
16 CC No. 16436 of 2016
POINT No.4
24. In view of the affirmative findings on point 2 and
negative findings on point No.3 the Complainant is not
entitled for the relief sought for. In the result I proceed to
pass the following:
ORDER
Acting u/s 255(1) of Cr.P.C., the accused is acquitted for the offence u/s 138 of NI Act.
Bail bond shall be in force for the period of 6 months as provided u/s 437A Cr.P.C. (Dictated to the Stenographer directly on computer (online dictation) and, corrected and then pronounced by me in the open court on this the 18th day of March 2017) (SHEILA B.M.) XXVI ACMM, Bangalore City ANNEXURE Witnesses examined for the Complainant:
PW.1 Rajesh Kumar A Witness examined for the accused:
DW1 Eranna 17 CC No. 16436 of 2016 List of Documents marked for the Complainant:
Ex. P1 Office order. Ex. P2 Cheque.
Ex. P2(a) Signature of the accused on the cheque.
Ex. P3 Endorsement. Ex. P4 Notice. Ex. P5 RPAD receipts two in Number. Ex. P6 Returned RPAD cover (opened in open court)
Ex. P6(a) Notice inside the cover. Ex. P7 Returned RPAD cover (opened in open court) Ex. P7(a) Notice inside the cover. Ex. P8 Certificate along with Account Statement.
Ex. P9 Complaint. Ex. P10 Statement of account.
List of Documents marked for the accused:
NIL XXVI ACMM, Bangalore