Bangalore District Court
Dr. B.H. Lakshmipathi vs Mr. C. Thimmaiah on 26 July, 2018
IN THE COURT OF THE XII ADDL. CHIEF
METROPOLITAN MAGISTRATE, AT BENGALURU
Dated this the 26th day of July 2017
Present: Sri. Rajkumar .S.Amminbhavi., B.Com., LLB (Spl)
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No. 27731/2014
Complainant: Dr. B.H. Lakshmipathi
S/o. Hanumantharayappa
Aged about 52 Years
R/at. No.21, Kapila
1st Main, Deshabandunagar
Doddabomasandra
Bengaluru-560 097.
(By Suresh .S.M. Adv)
- Vs -
Accused: Mr. C. Thimmaiah
S/o. Sri Chikkanna
Aged about 60 Years
Hujenahalli
Manniganahalli
Magadi Taluk
Ramangara District.
(By K.Ramesh., Adv)
Offence U/s138 of Negotiable
Instruments Act.
Plea of the accused Pleaded not guilty.
Final order Accused is convicted
Dated: 26.07.2018
******
2 C.C. 27731/2014
JUDGMENT
1. The Complainant filed this Complaint against the accused U/s.200 of Cr.PC for the offence punishable U/s 138 of N.I.Act.
2. The brief facts of the case of the complainant is; that, both the complainant and accused are known to each other as they are family friends. On account of well acquainted with each other, the accused has approached the complainant and requested financial assistance an amount of Rs.10,00,000/- for his personal and domestic necessities and accordingly, on account of believing on good faith, the complainant has advanced an amount of Rs.10,00,000/- to the accused on 20.10.2013 and at that time, the accused has agreed and undertaken that, he would repay the said amount within six months and also executed a demand promissory note in favour of the complainant and after lapse of stipulated period on repeated request and demand made by the complainant to the accused for repayment of the borrowed loan amount and at that time, the accused taken back the pronote and the accused has issued two cheques i.e., (1) Cheque bearing No.373171, dated: 29.05.2014 for a sum of Rs.4,90,000/-, (2) Cheque bearing No.373174, dated:
09.06.2014 for a sum of Rs.4,50,000/- both the cheques drawn on Canara Bank, Peenya Branch, Bengaluru-560 058 and remaining an amount of Rs.60,000/- paid by way of cash and assured that, the said cheques would be honoured on its presentation and accordingly, as per the assurance made by 3 C.C. 27731/2014 the accused, the complainant has presented the cheque bearing No.373171, dated: 29.05.2014 for a sum of Rs.4,90,000/- through his banker i.e., State Bank of India, Jalahalli Branch, Bengaluru and another cheque bearing No.373174, dated:09.06.2014 for a sum of Rs.4,50,000/-
through his banker i.e., Vijaya Bank, Vidyaranyapura Specialized Personal and CCM Branch, Bengaluru and these cheques were dishonoured with an endorsement as "Funds Insufficient" on 07.06.2014 and 17.06.2014 respectively. Thereafter, the complainant has informed the said fact to the accused, but, the accused has not responded the same, then the complainant has issued the legal notice through his counsel on 03.07.2014 by way of RPAD calling upon him to repay the said loan in question within 15 days from the date of receipt of the said legal notice and it was duly served upon him and after receipt of the legal notice, the accused has gave evasive and untenable reply by denying the claim of the complainant and failed to repay the borrowed the loan amount. Hence, the complainant had constrained to file a complaint against the accused for the offence punishable under Section 138 of N.I.Act., which is well within time and on perusal of the documents produced by the complainant, cognizance is taken the complaint is register in PCR register before that Court.
3. After recording of the sworn statement of the complainant and register the case in criminal register and after issuance of summons to the accused, the accused 4 C.C. 27731/2014 appeared before the Court through his counsel and got released bail on him. The substance of the accusation was recorded and read over and explained to him in his language. He pleaded not guilty and claims for trail.
4. In order to prove the case of the complainant, the complainant got himself examined as PW.1 & got 11 documents marked as Ex.P.1 to Ex.P.11 and PW-1 has been fully cross-examined and the statement of accused under Section 313 of Cr.P.C., was recorded, he denied the incriminating statement against him and the accused himself examined as DW-1 and in support of his case none of the documents has been marked and in support of his case, he has got examined as DW-2 who is bank manager of the State Bank of India, Jalahalli Branch and through the DW-2 got marked three documents as per the Ex.C1 to Ex.C3 and after completion of the defence evidence, the matter was posted for arguments.
5. Heard arguments.
6. The following points arise for my determination;
1. Whether the complainant proves that the accused had issued two cheques (1) Cheque bearing No.373171, dated:29.05.2014 for a sum of Rs.4,90,000/- (2) Cheque bearing No.373174, dated: 09.06.2014 for a sum of Rs.4,50,000/- both the cheques drawn on Canara Bank, Peenya Branch, Benglauru, for discharge of the loan amount and when 5 C.C. 27731/2014 the said cheques presented for encashment, they were dishonoured with an endorsement "Funds Insufficient" and after issuance of the legal notice he fails to repay the said amount and Thereby, the accused have committed offence punishable U/s. 138 N.I.Act?
2. What order ?
7. My answer to the above points are;
Point No.1 : In the affirmative
Point No.2 : As per final order for the
following;
REASONS
8. POINT NO.1: On perusal of the evidence of PW-1 he has reiterated as per the averments made in the complaint and he has got marked 11 documents namely, two cheques which are marked as Ex.P-1 and Ex.P2, the signature of the accused therein which are marked as Ex.P1(a) and Ex.P2(a), two bank endorsements which are marked as Ex.P3 and Ex.P4, the office copy of the legal notice issued to the accused which is marked as Ex.P5, postal receipt which is marked as Ex.P6, requisition made by the complainant to the postal authority with respect non-receipt of the postal acknowledgment which is marked as Ex.P7, reply issued by the postal authority to the Ex.P7 which is marked as Ex.P8, the copy of the reply notice which is marked as Ex.P9, 6 C.C. 27731/2014 certified copy of the sale deed dated: 21.01.2013 which is marked as Ex.P10, the certified copy of the sale deed dated:
23.10.2013 which is marked as Ex.P11.
9. During the course of cross of PW-1 he has deposed that, he know the promissory note, since his father had obtained the promissory note from some other persons for repayment of the borrowed loan amount and thereby, he know the promissory note. He deposed that, after returned the promissory note the accused has issued cheques in question and thereby, he has not produced the promissory note which was executed by the accused in his favour at the time of borrowed the loan in question. He deposed that, there was talk took place between himself and the accused on 17.04.2014 through telephonic call and accordingly, he was advanced the loan in question to the accused by way of cash. It is true that, contents and signature written on the Ex.P1 and Ex.P2 are different ink and hand writing. He do not know who wrote the cheque in question. It is true that, he has having qualification as M.sc., and Ph.D in Agriculture Science and he was working as environmental Agro Research and Consultancy. He deposed that, he was having land property and thereby, he was sold the landed property as per the Ex.P10 and Ex.P11 and out of the sale consideration received by him, he was advanced the loan amount to the accused. He deposed that, he was not showing in his income tax returns with respect to the sale consideration received as per the Ex.P10 and Ex.P11. He deposed that, he was 7 C.C. 27731/2014 advanced the loan in question to the accused on 20.10.2013 in his house by way of cash in the presence of his wife's brother by name Chandrashekar and in his legal notice he has not specifically stated that, he was advanced the loan in question in the presence of Chandrashekar. He know the contents of the reply notice. He deposed that, there was no impediment to him to advance the loan in question by way of cheque or DD. He deposed that, he was not obtained any documents from the accused at the time of advancement the loan in question, since he was known to him as close friend for the last 15 years. He deposed that, the accused has given the cheques in question in his house on 25.05.2014 and taken back the promissory note which was executed by the accused in his favour. He denied the suggestion that, he himself got forged the Ex.P1 and Ex.P2 filled the contents incollusion with the bank officials and filed false complaint against the accused. He denied the suggestion that, since both of them are known to each other and they are visited their respective houses often and often and in the absence of the accused, he was stolen the cheques in question and filed false complaint against the accused. He deposed that, he has produced the certified copy of the sale deed dated:
21.01.2013 wherein, he was sold the property valuable sale consideration an amount of Rs.6,00,000/- and the said sale deed which is marked as Ex.P10 and another sale deed dated: 21.03.2013 wherein, he was sold the property for valuable sale consideration an amount of Rs.1,62,000/- and the said amount which was shown in the sale deed for the 8 C.C. 27731/2014 purpose of Government market value, but he has sold the that property for valuable sale consideration an amount of Rs.25,00,000/-. He has deposed that, as per the Ex.P10 and Ex.P11 he was having sufficient source of income for advancement the loan in question to the accused.
10. During the course of defence evidence, the accused himself examined as DW-1 by way of oral evidence, wherein he has specifically stated that, he know the present complainant for the last 25 years as both of them were and are known to each other and prior to loan in question there was no monetary transaction took place between themselves. He deposed that, he came to know about the misuse of the cheque in question, when he was received the legal notice issued by the complainant and thereby, he has gave reply notice. He deposed that, past 15 years the complainant has used to visit his house and at that time, the complainant has stolen the cheques in question and filed false complaint against him. He deposed that, signature found on the Ex.P1(a) and Ex.P2(a) are not his own signature and the said fact has not been stated in his reply notice. It is true that, the complainant being P.hd graduate in Agriculture. He deposed that, the complainant was not having financial capacity for advancement the loan in question to the accused and he was not at all issued cheques in question for discharge the loan in question to the accused.
9 C.C. 27731/201411. During the course of cross of DW-1 he has deposed that, first he was not doing real estate business. He deposed that, he was residing in defence colony. It is true that, he was having bank account in Canara Bank, Peenya Branch, Begnaluru for the last 15 years and to that effect, he was having cheque book. He deposed that, he know reading and writings and he know banking transaction. He deposed that, the complainant has stolen the cheques in question from him and filed false complaint against him. He denied the suggestion that, out of the borrowed loan amount of Rs.10,00,000/-, he was issued cheques in question for a sum of Rs.9,40,000/- and remaining an amount of Rs.60,000/- was paid by the cash to the complainant. It is true that, Ex.P1 and Ex.P2 are pertain to his own bank account, but the signature found on the Ex.P1(a) and Ex.P2(a) are not his own signature and the said fact has been not stated in his reply notice.
12. During the course of defence evidence, the accused in support of his case, he has got examined as DW-2 who is none other than Bank Manager of State Bank of India, Jalahalli Branch, Bengaluru and the DW-2 in his examination-in-chief, he has specifically stated that, he has produced the certificate with respect to service render in the aforesaid Branch and same is marked as Ex.C1. It is true that, Ex.P1 and Ex.P2 wherein IFSC code was not specifically mentioned. It is true that, Ex.P1 and Ex.P2 cheques are issued prior to 2013, since before coming from CTS (cheque 10 C.C. 27731/2014 truncation system). He deposed that, even after non-CTS cheques, they are not banned by the RBI as per the circular wherein specifically mentioned that, Non CTS-2000 cheques with customers will continue to be valid and accepted in all clearing houses (including the cheque truncation system (CTS) Centers) for another four months up to July 31, 2013 subject to a review in June 2013 and same is produced and same is marked as Ex.C2, He has produced the SBI Corporate Center of Bombay on 04.12.2013 which is marked as Ex.C3 and wherein relevant entry which is marked as Ex.C3(a). During the course of his cross-examination, he has deposed that, non CTS cheques are not banned by the RBI till today and these endorsement issued by their bank officials.
13. On perusal of the averments made in the complaint, evidence of the respective parties and coupled with the documents produced by the respective parties. It is an admitted fact that, both the complainant and accused are known to each other. It is an admitted fact that, prior to filing of the present complaint, the complainant has complied all the necessary ingredients under Section 138 of N.I.Act., and after receipt of the legal notice, the accused has gave reply notice as per the Ex.P9. There is no dispute that, Ex.P1 and Ex.P2 are belonging to his own bank account cheques, but he has denied the signature found on the Ex.Pl(a) and Ex.P2(a) are not his own signature.
11 C.C. 27731/201414. It is case of the complainant is that, both of them are known to each other as they family friends and on account of well acquainted with each other for the last 25 years, the complainant has advanced the loan in question to the accused and subsequently, the accused has issued cheques in question for repayment of the borrowed loan amount and same was presented for encashment and they were dishonoured same was informed her, but the accused has failed to responded the same and thereby, the complainant has filed the present complaint after complying all the necessary ingredients under Section 138 of N.I.Act., Therefore, an adverse inference is to be drawn that, the accused has borrowed the loan in question from him and for discharge the loan in question, he was issued cheque in question to the complainant.
15. On the other hand, the accused has taken specific defence in his reply notice and in his evidence and during the course of cross of PW-1 that, he was not at all borrowed the loan amount of Rs.10,00,000/- from the complainant and he was not at all issued cheques in question for repayment of the borrowed loan amount and further, he has taken specific defence that, cheques in question are belonging to his own bank account, but he has not signed the Ex.P1 and Ex.P2 and the said cheques are old and stale and out dated cheques not to be used in transaction in the recent days and in view of the RBI guidelines and to that effect, he has examined DW-2 and the DW-2 has deposed and produced 12 C.C. 27731/2014 the Ex.C2 and Ex.C3 and on perusal of the Ex.C2 wherein it is clearly mentioned that, " C. All residual non-CTS-2010 cheques with customers will continue to be valid and accepted in all clearing houses (including the cheque truncation system (CTS) centers) for another four months up to July 31, 2013 subject to a review in June 2013 and he has produced the guide issued by the RBI which is marked as Ex.C3 wherein specifically mentioned that, "(vii) Payment of old non CTS-2010 standard cheques has been permitted by RBI even after 31st December 2013, which will continue to be payable at Branches/clearing centers. (viii) RBI has also permitted clearance of non CTS-2010 standard cheques at grid based CTS clearing center after 31st December 2013 (under separate clearing sessions with delayed collection period). Therefore, said defence taken by the accused is not sustainable, since cheques are presented on 07.06.2014, but the RBI has not banned the non-CTS cheques and the endorsement issued by the banker that, "Funds Insufficient"
and the said cheques are not issued endorsement that, "invalid". Therefore, the alleged defence taken by the accused is not sustainable.
16. Further, with respect to the avocation of the complainant is that, he being a well qualified in Ph.d in Agricultural and serving as Environmental Agro Research and Consultant and apart from that, he has produced the certified copy of the sale deed which are marked as Ex.P10 and Ex.P11 and on perusal of the Ex.P10 wherein it is clearly 13 C.C. 27731/2014 disclosed that, he was sold the landed property for valuable sale consideration an amount of Rs.6,00,000/- and the complainant has specifically stated that, actually the sale consideration an amount of Rs.25,00,000/-, but they have mentioned in the sale deed an amount of Rs.6,00,000/- as government market value and Ex.P11 wherein, he was sold the land property for valuable sale consideration an amount of Rs.1,62,000/- and out of the sale consideration, he was advanced the loan in question to the accused and prior to advancement the loan in question he was sold the property as per the Ex.P10. Therefore, it can be presumed that, he was having sufficient source of income for advancement the loan in question to the accused.
17. Further, merely non-disclosing in his income tax returns with respect to the advancement the loan in question to the accused it does not defeat the claim of the complainant, since the non-discloser of the advancement the loan in question in his income tax return enquiry is to be held by the separate entity existed as income tax department. Further, there is no dispute that, Ex.P1 and Ex.P2 are belonging to his own bank account, but the signature found on the Ex.P1(a) and Ex.P2(a) are not his own signature and in this context this Court has having ample power with respect to compare the admitted and disputed signature as per the Section 73 of the Indian Evidence Act. Therefore, on perusal of the Ex.P1 and Ex.P2 and therein signature which are marked as Ex.P1(a) and Ex.P2(a) and the accused has put his 14 C.C. 27731/2014 signature at the time of filing the vakalath and enlarged him on bail and the accused has put his signature at the time of recording of his accusation are one and the same and the banker have issued endorsement as Funds Insufficient and not drawer signature differs. Therefore, the alleged defence taken by the accused with respect to his signature is not sustainable.
18. If really, he was not at all borrowed the loan in question from the complainant and she was not at all issued cheque in question to the complainant for discharge the loan in question and the complainant has stolen the cheques in question from his house and same are misused and filed false complaint, but to substantiate the same, he ought to have challenged the cognizance taken by this Court, he ought to have gave stop payment instruction to his banker, he ought to have lodged private or police complaint against complainant. Therefore, non-performing the aforesaid legal proceedings that itself, it is very much fatal to the alleged defence set-up by the accused during the course of cross of PW-1 and in his defence evidence.
19. Further, the accused has filed Criminal Revision Petition No.927/2015 before the Hon'ble Court by challenging that, the complainant has not filed verifying affidavit together with the memorandum of complaint when the matter was posted for defence evidence and the Hon'ble Court after heard the parties to the proceedings had dismissed the petition filed 15 C.C. 27731/2014 by the accused under its order dated: 17.08.2016. Therefore, it can be presumed that, the accused with an intention to protract the proceedings, he has filed the petition before the Hon'ble Court and thereby, case was prolonged. It can be presumed that, the accused has issued the Ex.P1 and Ex.P2 to the complainant knowing fully well without having sufficient funds in his bank account with an intention to defeat the claim of the complainant.
20. It is settled principle that, the drawer himself/herself would take abundant precaution prior to issuance of the signed blank cheque to any other persons. There is no hard and fast rule that, the drawer himself/herself wrote the contents of the cheque and no any ordinary prudent man will issue singed blank cheque to any other persons without having any monetary transaction. Therefore, it can be presumed that, the accused has issued cheque in question to the complainant without having sufficient funds. Further, the complainant has proved his case by adducing cogent and corroborative evidence under Section 138 of N.I.Act., On the other hand, the accused has failed to defend his case by adducing cogent and corroborative evidence to rebut the claim of the complainant as per the provision under Section 139 of N.I.Act., It can be presumed that, no any ordinary prudent man will issue signed blank cheque to any other persons without having monetary transaction between themselves.
16 C.C. 27731/201421. Further, during the course of arguments, the counsel for the accused has relied the some citations namely., AIR 2015 SCW 64, AIR 2008 SC 1325, AIR 2010 SC 1898, AIR 2001 SC 676, AIR 2010 SC 1907, AIR 2014 SCW 3462, 2000 (4) SCC 262, ILR 2014 KAR. 6572 AND 2006 (4) SCC 530 and perused the same and I have gone through the said citations before the I conclude the dispute between the parties to the proceedings.
22. Looking to the conduct of the parties to the proceedings, the complainant has filed the present complaint in the year 2014 already three years have elapsed and thereby, awarding cost of litigation an amount of Rs.30,000/- since the trail faced by the complainant is just and proper to meet the ends of justice and to avoid the multiplicity of the proceedings.
23. Ordinarily offence under Section 138 of N.I.Act "mensrea" is not essential, under Section 138 of N.I.Act , is bring into operation rule of strict liability, whereas, "mensrea" is essential ingredients in criminal offences. Therefore, the complainant has proved his case against the accused, since offence under Section 138 of N.I.Act element of Mensrea has been excluded in general public interest to curb the instances of dishonouring of cheques and to lend the credibility to the commercial transaction. Therefore, in this case also the accused knowing fully he was borrowed the loan in question 17 C.C. 27731/2014 from the complainant and for discharge the loan in question he has issued the Ex.P1 and Ex.P2 to the complainant.
24. Hence, in the light of the above observation, the complainant has successfully proved that, the accused has committed offence punishable under Section 138 of N.I. Act with these reasons, I am the opinion that, the complainant successfully established before the Court, the accused has issued Ex.P1 to the complainant for the legally recoverably debt including cost of litigation. Therefore, I answer the point No.1 in the affirmative.
25. Point No.2 :- In view of my findings on Point No.1 in the affirmative, I proceed to pas the following...
ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of
Rs.9,70,000/-. In default of payment of said
fine amount, the accused shall undergo simple imprisonment for Six Months.
Further, it is ordered that, out of the said fine amount of Rs.9,65,000/- shall be paid to the complainant by way of compensation, as provided U/s 357 of Cr.P.C and remaining an 18 C.C. 27731/2014 amount of Rs.5,000/- shall be remitted to the state as fine.
The bail bond of the accused stands cancelled.
Free copy issued to the accused.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified, corrected and then pronounced by me in the open Court on this the 26th day of July 2017).
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 B.H.Lakshmipathi List of documents exhibited on behalf of the complainant:
Ex.P.1 & 2 Two cheques
Ex.P.1(a) & 2(a) Signature of the accused
Ex.P.3 & 4 Two bank endorsements
Ex.P.5 Office copy of the legal notice
Ex.P.6 Postal receipt
Ex.P.7 Copy of requisition issued by the
complainant to the postal department
Ex.P.8 Reply issued by the postal authority
Ex.P.9 Reply notice
Ex.P.10 Certified copy of sale deed dated:21.01.2013
Ex.P.11 Certified copy of sale deed dated:23.10.2013
Witnesses examined on behalf of the accused :
DW-1 C.Thimmaiah
DW-2 D. Gururajrao
19 C.C. 27731/2014
List of documents exhibited on behalf of the accused :
NIL List of documents exhibited on behalf of the Court :
Ex.C1 Certificate Ex.C2 RBI Guide lines dated:18.03.2013 Ex.C3 RBI e-Circular Ex.C3(a) Relevant entry
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.20 C.C. 27731/2014
26.07.2018.
Complainant : SMS Accused : DS Judgment.
(Vide separate judgment pronounced in the open Court) ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of
Rs.9,70,000/-. In default of payment of said
fine amount, the accused shall undergo simple imprisonment for Six Months.
21 C.C. 27731/2014Further, it is ordered that, out of the said fine amount of Rs.9,65,000/- shall be paid to the complainant by way of compensation, as provided U/s 357 of Cr.P.C and remaining an amount of Rs.5,000/- shall be remitted to the state as fine.
The bail bond of the accused stands cancelled.
Free copy issued to the accused.
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
22 C.C. 27731/2014Inferred