Bangalore District Court
No.3 vs S/O. Late H Gangappa on 15 March, 2023
KABC020281892021
BEFORE THE COURT OF XXIV ADDITIONAL SMALL CAUSES
JUDGE AND THE MOTOR ACCIDENT CLAIMS TRIBUNAL &
A.C.M.M. (SCCH26) AT BENGALURU
DATED THIS THE 15th DAY OF MARCH 2023
PRESENT:SRI.ARUN SADASHIV GUDIGENAVAR.
B.A. LLB.,(Hon's) LL.M.
XXIV ADDL. SCJ & ACMM & MEMBER MACT
BENGALURU.
1. Sl. No. of the Case CC.No.9497 of 2021
2. The date of 21102021
commencement of
evidence
3. The date of closing 13.02.2023
evidence
4. Name of the M/s. Apana Finvest Pvt., Ltd.,
Complainant No.3, 2nd Floor,
Thimmaiah Chambers,
1st Cross, Gandhinagar,
Bangalore - 09.
Rep. by its Director,
Mr. Manish Doshi,
S/o. Late Jeevanchand Doshi,
Aged about 40 years.
(By Sri.H C R Advocate)
5. Name of the Srinivasa. G,
Accused S/o. Late H Gangappa,
105, H Gangappa Compound,
Near Ayyappa Temple,
Vijinapura,Dooravaninagar Post,
SCCH - 26 2 CC No.9497/2021
Bangalore - 560 016.
Also at:
Srinivasa G,
Flat No.101, 4/2, Site No.13,
Chairman Krishnappa Layout,
Near Annapoorneswari Layout,
Hagadur, Whitefield,
Bangalore - 560 066.
(By Sri.H A K Advocate)
6. The offence U/s.138 of the
complained of Negotiable Instruments
Act
7. Opinion of the Accused found guilty
judge
JUDGMENT
The complainant has filed this complaint Under Section 200 of Cr.P.C against the accused alleging that he has committed an offence punishable Under Sec.138 of the Negotiable Instruments Act, 1881. (In short N.I.Act).
2. The brief facts of the complainant's case are as under: It is the case of the complainant that the accused is SCCH - 26 3 CC No.9497/2021 one of his customers and obtained loan of Rs.7,50,000/ on 24.06.2017 to purchase the vehicle. The accused has executed hire purchase agreement and other documents in his favour. The accused has issued cheque bearing No.000106 dated 7.4.2021 for Rs.6 lakhs drawn on HDFC Bank, white field main road branch, Bangalore in his favour for repayment of loan amount. He has presented the said cheque for collection at his banker on 29.6.2021 but the same has been returned to him unpaid on 30.06.2021 with endorsement 'dormant/insufficient funds'. Thereafter, on 7.7.2021 he has issued legal notice to the accused demanding him to pay the cheque amount. In spite of service of demand notice, the accused has not paid the cheque amount. Hence, this complaint.
3. After filing of this complaint, the cognizance of the offence has been taken and the complaint has been registered as P.C.R. Thereafter, the sworn statement of the Director of complainant company has been recorded and SCCH - 26 4 CC No.9497/2021 also got marked 17 documents as ExP1 to P17. Thereafter, the case has been registered in Crl.Reg.No.III and summons has been issued to the accused. In pursuance of the summons the accused has appeared before this court through his counsel and obtained bail. The plea has been recorded, read over and explained to the accused. He has pleaded not guilty and claims to be tried. Hence, the case has been posted for complainant evidence. The complainant has adopted sworn statement and ExP1 to 17 as his evidence. Thereafter, statement of accused u/s 313 Cr.P.C. has been recorded. He has denied the incriminating circumstances appearing in the evidence of complainant against him. He has chosen to lead defence evidence. Accordingly, he has examined himself as DW1 and got marked Ex.D.1 to Ex.D.13. It is relevant to note that Ex.D.1 to D.11 have been marked by way of confrontation to PW.1.
4. Heard the arguments from both sides. Perused the entire records.
SCCH - 26 5 CC No.9497/2021
5. The following points arise for my consideration: POINTS
1. Whether the complainant proves that the accused has issued cheque in question in discharge of the legally recoverable debt or any other liability as contended by him?
2. Whether complainant proves that the accused has committed the offence punishable under Sec.138 of NI Act?
3. Whether the complainant is entitled for the relief as prayed in the complaint?
4. What order?
6. My answers to the above points are as follows : Point No.1 to 3 :In the Affirmative Point No.4 : As per final order for the following : REASONS
7. POINT NO.1 to 3: These three points are taken together for common discussion in order to avoid facts and evidences.
8. It is the case of the complainant that the SCCH - 26 6 CC No.9497/2021 accused is one of his customers and obtained loan of Rs.7,50,000/ on 24.06.2017 to purchase the vehicle. The accused has executed hire purchase agreement and other documents in his favour. The accused has issued cheque bearing No.000106 dated 7.4.2021 for Rs.6 lakhs drawn on HDFC Bank, white field main road branch, Bangalore in his favour for repayment of loan amount. He has presented the said cheque for collection at his banker on 29.6.2021 but the same has been returned to him unpaid on 30.06.2021 with endorsement 'dormant/insufficient funds'. Thereafter, on 7.7.2021 he has issued legal notice to the accused demanding him to pay the cheque amount. In spite of service of demand notice, the accused has not paid the cheque amount. As already stated supra the Director of the complainant company has examined himself as PW.1 and got marked 17 documents.
9. PW.1 has filed affidavit for his chief examination . He has reiterated the entire averments of his SCCH - 26 7 CC No.9497/2021 complaint. ExP1 is the Board Resolution. As per this document, PW.1 is authorised to prosecute the case against the accused on behalf of the company. Ex.P.10 is the original hire purchase agreement, Ex.P.11 is the cash voucher, Ex.P.12 is the promissory note, Ex.P.13 is the consideration receipt, Ex.P.14 is the acknowledgment, Ex.P.15 is the letter issued to the Whitefield Motor Pvt ltd., by the complainant and Ex.P.16 is the ledger account. I have perused these documents carefully. As per these documents it appears that the accused has obtained loan of Rs.8 lakhs from the complainant company for purchase of vehicle. Further it appears that the accused has executed hire purchase agreement, on demand promissory note and consideration receipt on 24.6.2017 in favour of the complainant company. Ex.P.17 the letter issued by the accused shows that he has requested the complainant company to disburse the loan amount directly to the account of showroom i.e., Whitefield Motor Pvt. Ltd., Accordingly, the loan amount of Rs.8 lakhs has been SCCH - 26 8 CC No.9497/2021 disbursed directly to the account of the showroom i.e., Whitefield Motor Pvt. Ltd., from whom the accused has purchased the vehicle bearing reg.No.KA03NA7573. Further it appears that as on 30.06.2021 the accused is due by sum of Rs.9,85,267/.
10. Ex.P.2 is the cheque dt.742021 and ExP3 is the bank endorsement dt.3062021. These two documents show that complainant has presented the cheque for collection at his banker, but the same has been returned to him unpaid with endorsement "Dormant ISF". ExP4 is the legal notice dated 7.7.2021, Ex.P.5 and 6 are postal fee paid receipts and Ex.P.7 is returned cover. These documents show that the complainant has issued demand notice to the accused and the same has been returned to him unserved. ExP9 is the track consignment letter issued by post master Bangalore. As per this document, the notice has been delivered to the accused on 8.7.2021. The complainant company has presented the complaint on 28.07.2021.
SCCH - 26 9 CC No.9497/2021 Therefore, the present complaint has been filed well within the time.
11. The documents produced by the PW1 clearly shows that he has complied with the mandatory requirements as envisaged u/s 138 of NI Act. Therefore, the complainant has discharged his initial burden by producing the documentary evidence. Therefore, it gives raise to statutory presumption u/s 118 r/w section 139 of NI Act in favour of the complainant. Section 118 of NI Act reads as under: That every Negotiable Instrument was made or drawn for consideration and that every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration.
12. Further Section 139 of NI Act provides for presumption in favour of holder. It reads as under: 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 or SCCH - 26 10 CC No.9497/2021 any debt or other liability.
13. On combined reading of the above provisions, it raises a presumption in favour of holder of the cheque that he has received the same for discharge in whole or in part of any debt or other liability. It is relevant to note that the law itself provides that such presumptions are rebuttable in nature. The accused has chosen to rebut the presumption by way of cross examination of PW.1 and also by adducing his defense evidence.
14. In order to rebut the presumption, the learned counsel for the accused has crossexamined PW1. I have perused the entire cross examination of PW.1. In his cross examination he has denied the suggestion that he received the cheque in question from the accused as a security at the time of sanctioning loan. He has admitted the receipts shown to him by the learned counsel for the accused. Those receipts have been marked at Ex.D.1 to D.11. PW.1 has admitted that as per D.11 the accused paid sum of SCCH - 26 11 CC No.9497/2021 Rs.58,200/. Further he has deposed that in this regard he has produced the ledger statement before this court. He has also admitted that in his complaint he stated that the accused borrowed loan of Rs.7,50,000/ only. Further he has admitted that he did not mention regarding part repayment made by the accused in the legal notice. He has also admitted that as per Ex.P.7 the legal notice was returned to him with endorsement 'address insufficient'. Further he has admitted that at the time of lending loan he obtained signatures of accused on promissory note and consideration receipt. He has also admitted that he did not obtain the signatures of the witnesses in promissory note and consideration receipt. Further he has admitted that he did not mention regarding rate of interest in promissory note, consideration receipt and in Ex.P.15 - ledger account. He has denied the suggestion that he created ledger account and filed before this court. He has denied the suggestion that the accused had already paid sum of Rs.4 lakhs by way of cash and in spite of that by misusing the cheque given by SCCH - 26 12 CC No.9497/2021 him for the purpose of security, filed this false case against him for Rs.6 lakhs.
15. PW.1 in his further crossexamination has deposed that on 7.4.2021 the accused came to his office and handed over cheque as per Ex.P.2. Further he has denied the suggestion that he did not issue any legal notice to the accused. He has admitted that he did not give any notice to the guarantor as mentioned in Ex.P.10. Further he has denied the suggestion that after the repayment of entire loan amount, the accused in the year 2020 came to his office and requested to return all the documents but he did not return the same and picked up quarrel with accused and in order to take revenge he filed this false case against the accused by misusing his cheque. Further he has denied the suggestion that he did not show the payments made by the accused by way of account transfer and filed this false case against him. Further he has denied the bare suggestions put to him by the learned counsel for the accused.
SCCH - 26 13 CC No.9497/2021
16. From the crossexamination of PW.1 it appears that he has taken up a defense that he issued the cheque in question in favour of complainant as a security at the time of borrowing loan from him. Further he has taken up a specific defense that he had already repaid the entire loan amount in favour of complainant. He has also taken up a defense that in spite of repayment of entire loan amount the complainant by misusing the cheque given for security purpose filed this false case against him. He has also taken up a defense that the complainant by creating Ex.P.15 and P.16 filed this false case against him. Further he has taken up a defense that the complainant did not serve any demand notice to him.
17. It is relevant to note that the accused at the time of recording his statement under Section 313 of Cr.P.C he has admitted that he borrowed sum of Rs.7,50,000/ from the complainant on 24.06.2017 and executed hire purchase agreement. Further he has admitted that he hypothecated SCCH - 26 14 CC No.9497/2021 his vehicle bearing reg.No.KA03NA7573 in favour of complainant for obtaining the loan. However, he has denied the rest of the incriminating circumstances appearing against him in the evidence of complainant. He has chosen to lead defense evidence. Accordingly, he has examined himself as DW.1 and got marked further two documents as Ex.D.12 and D.13. He has deposed that on 5.7.2017 he borrowed loan from the complainant company to purchase the vehicle. At the time of borrowing the loan he handed over 10 cheques to the complainant as a security. Further he has deposed that he repaid the entire loan amount to the complainant company but the complainant company did not return his cheques. He has also deposed that the complainant by misusing his cheque filed this false case against him. He has deposed that for the said transaction one Vinayak stood as a surety for him.
18. The learned counsel for the complainant has cross examined DW.1. In his crossexamination he has SCCH - 26 15 CC No.9497/2021 deposed that at present he has been residing at No.4, 1 st cross, Sapathagiri layout, Channasandra, Whitefield from past 4 years. Further he has admitted that for the purchase of his vehicle the complainant company transferred sum of Rs.8 lakhs to the account of Whitefield Motor by way of RTGS as per his request letter marked at Ex.P.17. Further he has admitted that he was suppose to pay the total loan amount of Rs.10,97,100/ in 36 installments. He has also admitted that in this regard he executed agreement as per Ex.P.10 in favour of complainant company. Further he has admitted that the bouncing of his cheques on various dates and subsequently clearing of those cheques were mentioned in Ex.P.12. He has also admitted that he did not approach the complainant company requesting to issue no due certificate. He has further admitted that he did not give any reply notice to the complainant. Further he has admitted that he did not taken action against the complainant company for alleged misusing of his cheques.
SCCH - 26 16 CC No.9497/2021
19. From the evidence of both the parties it is clear that the borrowing of loan of Rs.8 lakh by the accused from the complainant for the purchase of vehicle, is not in dispute. Further it is clear that the execution of hire purchase agreement, on demand promissory note and consideration receipt in favour of complainant by the accused, is not in dispute. It also makes clear that the sum of Rs.8 lakh transferred by the complainant company to the account of Whitefield Motor by way of RTGS at the request of the accused, is also not in dispute. The signature of the accused in Ex.P.2 cheque is also not in dispute. But the main defense of the accused is that he had repaid the entire loan amount to the complainant but the complainant by misusing his cheque filed this false case against him. I have perused Ex.D.1 to D.11 which are admitted by PW.1. As per these documents, the accused had paid total sum of Rs.3,49,200/ only. As per the admissions given by the accused he was suppose to pay Rs.10,97,100/ to the complainant in 36 installments. But he had paid only Rs.3,49,200/. As per SCCH - 26 17 CC No.9497/2021 Ex.P.16 the ledger account the accused is due by sum of Rs.6,85,267/ as on 30.06.2021. It is relevant to note that the payments made by the accused as per Ex.D.1 to D.11 have been reflected in Ex.P.16 the ledger account. Further it is relevant to note that the accused has not produced any other documents to show that he had repaid the entire loan amount to the complainant company. Therefore, in the absence of cogent documents this court is not inclined to accept the version of the accused.
20. The second defense of the accused is that, he issued the cheque in question in favour of complainant as a security to the transaction but he has not placed any evidence before this court to prove the same. Therefore, the said defense taken up by the accused holds no water. The third defense of the accused is that the complainant by creating Ex.P.15 and 16 filed this false case against him. But in his crossexamination he has clearly admitted his signature in Ex.P.15. Further he has admitted that he did SCCH - 26 18 CC No.9497/2021 not take any action against the complainant company for alleged creating documents or misusing his cheque. Therefore, such being the case the said defense of the accused holds no water.
21. The last defense of the accused is that the complainant company did not serve any notice on him. I have perused the cause title of the complainant. The address of the accused is shown as No.105, H Gangappa compound, near Ayyappa temple, Vijinipura, Dooravaninagar post, Bangalore. The another address of the accused is shown as flat No.101, 4/2, site No.13, Chairman Krishnappa layout, near Annapurneshwari layout, Hagadur, Whitefield, Bangalore. I have also perused Ex.P.4 the legal notice dated 7.7.2021 and Ex.P.10 hire purchase agreement. The above mentioned addresses of the accused have been shown in Ex.P.4 and Ex.P.10. The complainant has sent legal notice to the accused to the said addresses as per Ex.P.4 through RPAD. Therefore, in view of Section 27 SCCH - 26 19 CC No.9497/2021 of General Clauses Act if a letter is sent through registered post acknowledgement due then it is deemed to the served properly unless the contrary proved. In the present case as already stated supra the complainant has sent notice to the accused through registered post acknowledgement due. Hence, it is deemed to be served properly on the accused. Moreover, as per Ex.P.9 the post master grade - I, Bangalore has issued track consignment letter stating that the notice has been delivered on 8.7.2021. The accused has not produced any evidence to show that the said notice was not served on him. Hence, the said defense taken up by the accused holds no water.
22. From the evidence of both the parties I am of the opinion that, the accused has failed to rebut the presumption so as to probable his case. On the other hand, the complainant has successfully proved that the accused issued cheque as per ExP2 in his favour for discharging the balance payment. Further he has proved that the said SCCH - 26 20 CC No.9497/2021 cheque has been dishonoured upon presentation and he issued notice to the accused and the accused in spite of receipt of notice not paid the cheque amount. Hence, the complainant has proved that the accused has committed an offence punishable u/s 138 of NI Act. Therefore, the complainant is entitled for relief as sought. Accordingly, I answer point No.1 to 3 in the Affirmative.
23. Point No.4: For the aforesaid reason, I proceed pass the the following: : O R D E R : By Acting U/s 255(2) of Cr.P.C the accused is hereby convicted for the offence punishable U/s 138 of NI Act.
The accused is hereby sentenced to pay fine of Rs.6,10,000/ (Rupees Six Lakhs Ten Thousand only). In default, the accused shall undergo simple imprisonment for period of six months.
Acting U/s 357(3) of Cr.P.C. out of the total fine amount payable by the accused, a sum of Rs.6,05,000/ shall be paid to the complainant SCCH - 26 21 CC No.9497/2021 as compensation and remaining amount of Rs.5,000/ shall be defrayed as state expense.
It is further made it clear that if the accused opt to undergo imprisonment, it does not absolve him from liability of paying compensation to the complainant.
Office is hereby directed to supply free certified copy of this judgment to the accused forthwith.
(Dictated to the stenographer, directly over computer, typed by her, corrected by me and then pronounced in the open Court on this day 15 th March 2023) (ARUN SADASHIV GUDIGENAVAR) XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU.
ANNEXURE:
WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT:
PW.1 Sri. Manish Doshi DOCUMENTS MARKED ON BEHALF OF THE COMPLAINANT:
Ex.P.1 Original copy of board resolution Ex.P.2 Cheque, signature as Ex.P.2(a) Ex.P.3 Bank endorsement Ex.P.4 Legal notice Ex.P.5&6 2 postal receipts SCCH - 26 22 CC No.9497/2021 Ex.P.7 Unopened postal cover Ex.P.8 Complaint Ex.P.9 Postal track report Ex.P.10 Hire purchase agreement Ex.P.11 Voucher Ex.P.12 On demand promissory note Ex.P.13 Consideration receipt Ex.P.14 RTGS acknowledgment Ex.P.15 Payment letter Ex.P.16 Statement of account Ex.P.17 Letter (marked through Dw.1 by way of confrontation) Ex.P.17(a) Signature WITNESSES EXAMINED ON BEHALF OF THE ACCUSED:
DW.1 Srinivas G DOCUMENTS MARKED ON BEHALF OF THE ACCUSED:
Ex.D.1 to 11 Receipts (marked through PW.1 by way of confrontation) Ex.D.12 Statement Ex.D.13 Certificate u/s 65B of IE Act (ARUN SADASHIV GUDIGENAVAR) XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU.