Bangalore District Court
Mr.M.Anthony Christy vs Mr.E.T.Sashidharan on 1 February, 2020
IN THE COURT OF XXXIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, MAYO HALL UNIT,
BENGALURU
: PRESENT :
PADMA PRASAD, BA (Law), LLB.
XXXIII ADDL.CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED THIS THE 1ST DAY OF FEBRUARY, 2020.
C.C.No.56950/2016
COMPLAINANT : Mr.M.Anthony Christy,
Age: about 50 years,
S/o: Late Mariyanathan,
R/o: No.81/2, 1st Cross,
Jayanthi Nagar, Horamau,
Bangalore - 560 043
.Vs.
ACCUSED : Mr.E.T.Sashidharan,
Age : 54 years,
S/o : Late A.U.Nayar,
R/o : R/o: No.150, 1st Cross,
Kalkere Main Road,
Chandra Yadav Layout,
Ramamurthy Nagar,
Bangalore - 560 016
****
JUDGMENT
This complainant filed this complaint against the accused for the offense punishable under Section 138 of Negotiable Instruments Act.
2C.C.No.56950/2016
2. The complaint case in nutshell is that the he was searching for a accommodation on lease basis and came to know that the accused was constructing a residential units in property No.150 Chandra Yadav Layout, 1st Cross, Kalkere Main Road, Ramamurthy Nagar. The complainant claims that when he approached the accused, the accused promised to lease 2nd floor to the complainant on a lease amount of Rs.3,00,000/ and demanded for the immediate payment of Rs.2,00,000/ and the remaining amount of Rs.1,00,000/ to be given while handing over the premises. The complainant accordingly claims that he has paid Rs.2,00,000/ to the accused on 15.01.2011. The accused failed to complete the construction as agreed by him in time. Hence, the accused decided to return the advance of Rs.2,00,000/ and issued the cheque bearing No.445697 dtd:30.04.2012 for Rs.2,00,000/ drawn on HDFC Bank but later on the accused requested not to present the cheque. The complainant further claimed that thereafter the accused has issued another cheque bearing No.385088 dtd:31.05.2014 drawn on State Bank of India, Dooravaninagara 3 C.C.No.56950/2016 Branch and even the said cheque has not been encashed. Subsequently, this accused again issued another cheque bearing No.167407 dtd:31.03.2016 drawn on Vijaya Bank for Rs.2,00,000/ towards the repayment of advance amount. When the complainant presented the said cheque for encashment the said cheque has been returned with bank endorsement dtd:04.04.2016 stating "Payment Stopped by Drawer". Thereafter the complainant caused a legal notice to the accused on 28.04.2016 calling upon the accused to pay the cheque amount. The said notice has been served on to the accused on 05.05.2016. The accused failed to pay the cheque amount inspite of service of notice. Hence, filed the complaint.
3. After filing the complaint, sworn statement of the complainant has been recorded and on perusing the materials on record i.e., cheque, bank endorsement, legal notice and documents for having been caused the notice to the accused, the court has been taken the cognizance of offence and issued summons to the accused.
4C.C.No.56950/2016
4. In response to the summons, the accused appeared through his counsel and he was on court bail. Plea has been recorded; accused pleaded not guilty and claimed to be tried.
5. To prove the case, the complainant got examined himself as P.W.1 and got marked documents at Ex.P.1 to P.6.
6. On closure of complainant side evidence, the accused statement has been recorded under Sec.313(1)(b) of Cr.P.C., by placing the incriminating evidence appeared against the accused that are denied by the accused.
7. The accused in support of her defense examined himself as D.W.1 wherein he admitted the transaction claimed by the complainant and also admitted the issuance of 2 cheques stated in the complaint and also submitted that he could not make the payment. The accused further claimed that in the year 2014 he has repaid the entire amount to the mother in law of the complainant. The accused further calimed that 5 C.C.No.56950/2016 in the year 2016 he has been taken to police station wherein the cheque for Rs.2,00,000/ and letter has been forcibly obtained from him hence, he has issued a stop payment instructions. Accordingly prayed for dismissal of complaint.
8. On the basis of above, the point for consideration is that;
"Whether the complainant has proved that the accused has committed the offence punishable under Sec.138 of Negotiable Instruments Act?"
9. Heard the arguments and perused the materials on record. On that basis my finding on the above point is in the "Affirmative" for the following;
REASONS
10. The complaint case in nutshell is that the he was searching for a accommodation on lease basis and came to know that the accused was constructing a residential units in property No.150 Chandra Yadav Layout, 1st Cross, Kalkere Main Road, Ramamurthy 6 C.C.No.56950/2016 Nagar. The complainant claims that when he approached the accused, the accused promised to lease 2nd floor to the complainant on a lease amount of Rs.3,00,000/ and demanded for the immediate payment of Rs.2,00,000/ and the remaining amount of Rs.1,00,000/ to be given while handing over the premises. The complainant accordingly claims that he has paid Rs.2,00,000/ to the accused on 15.01.2011. The accused failed to complete the construction as agreed by him in time. Hence, the accused decided to return the advance of Rs.2,00,000/ and issued the cheque bearing No.445697 dtd:30.04.2012 for Rs.2,00,000/ drawn on HDFC Bank but later on the accused requested not to present the cheque. The complainant further claimed that thereafter the accused has issued another cheque bearing No.385088 dtd:31.05.2014 drawn on State Bank of India, Dooravaninagara Branch and even the said cheque has not been encashed. Subsequently, this accused again issued another cheque bearing No.167407 dtd:31.03.2016 drawn on Vijaya Bank for Rs.2,00,000/ towards the repayment of advance amount. When the 7 C.C.No.56950/2016 complainant presented the said cheque for encashment the said cheque has been returned with bank endorsement dtd:04.04.2016 stating "payment stopped by drawer". Thereafter the complainant caused a legal notice to the accused on 28.04.2016 calling upon the accused to pay the cheque amount. The said notice has been served on to the accused on 05.05.2016. The accused failed to pay the cheque amount in spite of service of notice. Hence, filed the complaint.
11. The accused in support of her defense examined himself as D.W.1 wherein he admitted the transaction claimed by the complainant and also admitted the issuance of 2 cheques stated in the complaint and also submitted that he could not make the payment. The accused further claimed that in the year 2014 he has repaid the entire amount to the mother in law of the complainant. The accused further claimed that in the year 2016 he has been taken to police station wherein the cheque for Rs.2,00,000/ and letter has been forcibly obtained from him hence, he has issued 8 C.C.No.56950/2016 a stop payment instructions. Accordingly prayed for dismissal of complaint.
12. The complainant in support of his case examined himself as P.W.1 by adopting the sworn statement as evidence. The complainant also got marked documents at Ex.P.1 to 6. The Ex.P.1 is the cheque, Ex.P.2 is the Bank Return Memo, Ex.P.3 is the office copy of the legal notice, Ex.P.4 is the postal acknowledgment, Ex.P.5 is the reply notice, Ex.P.6 is the memorandum of understanding. On the basis of above the complainant claims that he has proved the case beyond reasonable doubt. In the case on hand the accused admitted the issuance of the cheque in favour of the complainant. The signature in the cheque is also not in dispute. The said cheque has been dishonoured. The legal notice issued in time and the complaint is in time. As such it has to be inferred that the complainant has made out a prima facie case to show that the court can draw initial presumption under Sec.139 of N.I.Act in favour of the complainant that the cheque involved in this case has been issued by the accused in favour of the 9 C.C.No.56950/2016 complainant towards the discharge of legally enforceable debt.
13. When the complainant made out a primafacie case to draw the initial presumption under Sec.139 of N.I.Act in favour of the complainant, the burden shifts on the accused to prove the contrary to the complaint case and also to give rebuttal evidence to the complaint case. The specific defense of the accused during his evidence that he has repaid the entire amount due to the complainant in the year 2014 and the cheque has been obtained by the complainant in the police station and that has been misused. The said fact has to be proved by the accused otherwise the case of the complainant has to be accepted.
14. Before proceeding further in this case it is just and necessary to note the admitted facts. The complainant in the complaint claimed that he has advanced Rs.2,00,000/ to the accused to get the house on lease from the accused to be constructed by the accused. The accused not constructed the house 10 C.C.No.56950/2016 as agreed by him in time as agreed by him hence, the accused agreed to repay the amount and issued 2 cheques and thereafter the accused asked the complainant not to present the said cheques for encashment. The accused during his evidence admitted the said facts as well as issuance of 2 cheques. Hence, the payment of Rs.2,00,000/ by the complainant to the accused as well as the issuance of 2 cheques earlier to the cheque involved in this case is an admitted and proved fact in this case.
15. The case of the complainant is based on the cheque bearing No.167407 dtd:31.03.2016. The defense of the accused that whatever the amount due to the complainant has been paid by him to the mother in law of complainant in the year 2014. Hence, these 2 facts to be proved in this case.
16. As stated above the receiving of money of Rs.2,00,000/ by the accused from the complainant is an admitted fact hence, the burden is on the accused that he has repaid the said money to the 11 C.C.No.56950/2016 complainant. The accused has not placed any material before the court to show that he has repaid the money to the complainant in the year 2014 except his oral assertion. Even there is no corroborative evidence to that effect.
17. The accused claimed that as the complainant obtained the cheque forcibly by filing the complaint to the police at K.R.Puram, he has issued the stop payment instruction in respect of the cheque involved in this case. It is true that the cheque is dishonored for the reason of stop payment instructions. The accused also produced the letter written to his banker regarding the issuance of stop payment instruction at Ex.D.1. In the said letter it is stated by the accused that there is no monetary transaction between the accused and the complainant and he is not liable to pay any money to the complainant. The said claim cannot be accepted as there was a transaction between the complainant and the accused. It is also relevant to note that in the entire letter at Ex.D.1 the accused nowhere claimed that whatever the amount received by him promising to 12 C.C.No.56950/2016 provide the house to the complainant on lease has been repaid by him to the complainant or his mother in law in the year 2014. Further, even there is no material on record to show that this accused had Rs.2,00,000/ with him in the year 2014 so that he can pay the money to the complainant.
18. It is the definite case of the accused that the complainant has filed the complaint before the police and in the police station the cheque has been obtained forcibly. If it was so, the complainant ought to have discloses the reason for lodging the complaint. The only admitted and undisputed transaction between the parties is regarding the advancing of amount of Rs.2,00,000/ to obtain the house on lease. As such if really the accused has repaid the amount of Rs.2,00,000/ in the year 2014 that would have been stated by the accused before the police in the year 2016. The accused has not made out any case to show that in spite of his statement to the police regarding the repayment of money to the complainant, the cheque has been forcibly obtained. Further the allegation of accused 13 C.C.No.56950/2016 that his cheque has been forcibly obtained in the police station is general allegation without any substance. The accused not explained that who is the police forced him to give the cheque and why he has not lodged any complaint against such police officials to the higher authorities of such police officials is without any explanation.
19. The claim of the accused also to be considered in view of his evidence. The complainant in the complaint itself claimed that initially as on 30.04.2012 the accused has issued 1 cheque for Rs.2,00,000/ and later on asked the complainant not to present the said cheques. Similarly the complainant further claimed that in the year 2014 the accused has issued one more cheque dtd:31.05.2014 for Rs.2,00,000/ and even the said cheque has been dishonored for want of funds in the bank account of the accused. This accused during his evidence admitted the said facts that he has issued 2 cheques but that has not been encashed due to financial difficulties. The accused also claimed that as he could not repay the money immediately he 14 C.C.No.56950/2016 was making the payment of interest to the aforesaid amount. If it were so what is the amount paid by him towards the interest or for what period he has paid the interest has to be explained by the accused but the accused has not given any evidence to that effect. Further, if the claim of the accused that as he could not repay the money he has paid interest to the amount received by him. Admittedly, the money has been received on 15.01.2011. The alleged repayment of money is i the year 2014. If it were so, the accused has to pay the considerable amount towards interest for a period of 3 years. If really the a; has paid interest for such a long period certainly he would have given the particulars of amount that has been paid by him towards the interest. Therefore, mere oral assertion of payment of interest without any particulars cannot be accepted.
20. It is relevant to note that the accused not disputed the bouncing of his cheque dtd:31.05.2014. If it were so, this accused has no money with him till 31.05.2014. As such, he has to explain that on which date he has arranged the money and paid the 15 C.C.No.56950/2016 money to the complainant. According to the reply notice at Ex.P.5 the accused has repaid the entire lease amount in cash to the complainant in the month of June 2014. If it were so, the accused ought to have Rs.2,00,000/ with him in the month of June 2014. As per the complaint averments the cheque of the accused bearing No.3855088 dtd:31.05.2014 has dishonoured for the want of funds in the bank account of the accused as per bank memo dtd:03.06.2014. Therefore, there was no money with the accused till 03.06.2014. Absolutely there is no material whatsoever on record to show that this accused has Rs.2,00,000/ with him in the month of June 2014 or till December 2014 so that he can make the repayment of money as claimed by him in the year 2014 either to the complainant or his mother in law.
21. The accused claimed that he has repaid the money to the mother in law of the complainant during his evidence. If it were so, the accused ought to have made an attempt to examine the mother in law of complainant to prove that he has repaid the 16 C.C.No.56950/2016 money to her. Of course the mother in law of the complainant may not support the case but the accused not made any attempt to call her as a witness in support of his defense. If at all the mother in law of the complainant not supported the defense the accused would have the opportunity to cross examine the mother in law of the accused in support of his defense. Hence, making no attempts to examine mother in law of the complainant is certainly fetal to the defense of the accused. In contrary to the aforesaid claim that money has been repaid to mother in law of complainant. In the defense evidence, the accused during the course of crossexamination of complainant claimed that money has been paid to the complainant in the month of June 2014. Therefore, to whom actually the money has been paid is not made out by the accused. If really the accused has paid money either to the complainant or his mother in law the accused would have stick on to the fact to whom he actually paid the money as such there is no certainty in the defense of accused. Contradiction regarding the alleged claim of repayment of money also creates suspicion.
17C.C.No.56950/2016
22. It is true that the cheque has been dishonoured for the reasons payment stopped by the drawer. Admittedly, the complainant has paid Rs.2,00,000/ and the said fact is admitted fact in this case. Hence, this accused has the knowledge that the cheque is for Rs.2,00,000/ but there is no material on record to show that this accused had Rs.2,00,000/ in his bank account when the cheque has been presented for encashment. It is also relevant to note that this accused has the knowledge that the cheque amount is Rs.2,00,000/. The accused in his defense evidence specifically claimed that the complainant in the police station got written the cheque amount as Rs.2,00,000/ and the cheque is obtained for Rs.2,00,000/. If at all there were sufficient funds in the bank account of the accused and the cheque has been dishonored for the reasons stop payment instructions certainly the claim of the accused would have been accepted. The accused during his cross examination admitted that when the cheque presented for encashment there was no bank balance exceeding Rs.10,000/ in his bank account. As such, even in the absence of stop payment instructions the 18 C.C.No.56950/2016 cheque at Ex.P.1 would not have been honored. Hence, the mere issuance of the stop payment instructions to the banker itself is not sufficient to hold that the accused is not liable to pay the cheque amount. Apart from that on which date the complainant has filed the complaint against the accused to the police is without any explanation. In fact the accused has not placed any material to show that complaint has been filed before the police and the cheque has been issued in the police station to the complainant.
23. There is no material on record to show that there were criminal antecedents against the complainant that he has the habit of claiming the money illegally from any person and there is also no material on record to show that there is any enmity between the complainant and the accused so that this complainant can file false complaint against the accused and give false evidence before the court. Further, when the accused admitted the payment claimed in the complaint the burden shifts on the accused to prove that he has repaid the said amount.
19C.C.No.56950/2016 Admittedly, this accused pleaded inability for the repayment of money till 31.05.2014. Under such circumstances, without there being any corroborative evidence the claim of the accused that he has repaid the money to the complainant cannot be accepted. Absolutely there is no material on record to disbelieve the claim of the complainant. It is also relevant to note that there is no material on record to show that this complainant has filed any other cheque bounce case other than this case. Therefore, the defense of the accused certainly not a probable defense. When the accused failed to make out a probable defense the court has to accept the complaint case particularly when the accused admitted the receiving o f money as well as issuance of the cheque and the signature in the cheque. Hence, this court is of the humble opinion that the complainant has proved his case beyond reasonable doubt.
24. In this case, the complainant has claimed compensation. As per Section 357 of Criminal Procedure Code and as per the ruling reported in; 2001 Cri.L.J. 950 (SC), (Pankajbai Nagibai Patel 20 C.C.No.56950/2016 V/s State of Gujarath), the court can award compensation and there were no limits for the same. As such, the court has to consider how much compensation could be awarded in this case. As per Section 80 of Negotiable Instruments Act, the interest at 18% P.A. can be granted when there is no agreed rate of interest. As per the proved facts of the case, the accused has issued cheque towards the legally enforceable debt, the accused has issued a cheque dated 31.03.2016 as per Ex.P.1 but the money has been paid to the accused as on 15.01.2011 i.e., almost 9 years prior to this date. Under such circumstances it is a fit case to award double the cheque amount as a compensation. Hence, Rs.4,00,000/ is the double of the cheque amount. The case is pending more than 3 years as such if the cost of Rs.2,000/ is added to the compensation, it will comes to Rs.4,02,000/. Hence, this court is of the humble opinion that in all the complainant is entitled for compensation amount of Rs.4,02,000/. Further as per the ruling reported in 2000 Cri.L.J 1793(b) SC - (State of Karnataka V/s Krishnappa) 21 C.C.No.56950/2016 wherein it is held that while imposing sentence, the courts are expected to properly operate sentence system, it should be impose such sentence for code offence which serve as detention of commission of like offences by others - Socio economic status, prestige, race, caste or creed of accused or victim are irrelevant considerations in sentencing policy. Hence, in this case also, if the accused is punished with simple imprisonment for one year and pay compensation to the complainant. Anyhow the object of Sec.138 of N.I.Act is to have accountability in the business transaction and the intention of the complainant is only to get his money back. The complainant certainly not interested in sentencing the accused for any imprisonment. Further, the offense is punishable with imprisonment or fine. Anyhow the object of Sec.138 of N.I.Act is to have accountability in the business transaction and the intention of the complainant is only to get his money back. The complainant certainly not interested in sentencing the accused for any imprisonment. Further, the offence is punishable with imprisonment or fine. Hence, in this case after awarding the compensation 22 C.C.No.56950/2016 certainly imposing of fine to the accused is sufficient sentence.
25. As per the ruling reported in 2002 Cri.L.L. 1003, SC (Suginthi Suresh Kumar V/s Jagadishan). Where in it is held at page no.1005, at para 5 that:
"In the said decision this court reminded all concerned that it is well to remember the emphasis laid on the need for making liberal use of Section 357(3) of the Code. This was observed by reference to a decisions of this Court in 1988 (4) SCC 551 Hari Singh v. Sukhbir Singh. In the said decision this court held as follows:
"The quantum of compensation may be determined by taking into account the nature of crime, the justness of the claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also very depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by installments, may also be given. The court may enforce the order by imposing sentence in default."23
C.C.No.56950/2016
26. In view of the aforesaid precedent of Hon'ble Apex Court, if the accused is ordered to further imprisonment of a year in default to pay the compensation will make the ends of justice. Accordingly I answer the above point in "Affirmative". In the result, following;
ORDER Acting under Section 255(2) of Cr.P.C., the accused is hereby convicted for the offence punishable under Sec.138 of N.I.Act and sentenced the accused to pay a fine of Rs.5,000/. In default to pay the fine amount the accused shall undergo simple imprisonment for 3 months.
Acting under Section 357 of Cr.P.C., the compensation is awarded and the accused shall pay compensation of Rs.4,02,000/ to the complainant. In default to pay compensation, the accused shall undergo simple imprisonment of a period of 1 year.
24C.C.No.56950/2016 Office to furnish free copy of this judgment to the accused forthwith.
(Dictated to the Stenographer, transcript thereof is corrected and then pronounced by me in the open court on this the 1st day of February, 2020) (PADMA PRASAD), XXXIII ACMM, BENGALURU.
ANNEXURE
1.Witnesses examined on behalf of Complainant:
P.W.1 : Sri.M.Anthony Christy
2. Documents marked on behalf of complainant:
Ex.P.1 : Original cheque
Ex.P.1(a) : Signature of the accused
Ex.P.2 : Bank return memo
Ex.P.3 : O/c of the legal notice
Ex.P.4 : Postal Acknowledgment
Ex.P.5 : Reply notice
Ex.P.6 : Memorandum of Understanding
Ex.P.6(a) : Signature of the accused
25
C.C.No.56950/2016
3. Witnesses examined on behalf of Accused:
D.W.1 : Mr.E.T.Sashidharan
4. Documents marked on behalf of Accused:
Ex.D.1 : Copy of letter dtd:31.03.2016 (PADMA PRASAD), XXXIII ACMM, BENGALURU.