Bangalore District Court
Mr. Dhanaraja Babu.G vs Mr. Madhukar. G. Angur on 31 January, 2020
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
:: PRESENT ::
SRI. NAGARAJEGOWDA.D., B.Com, L.L.B.,
C/C. XII A.C.M.M., Bengaluru
C.C.NO.28233/2017
Dated: This the 31st Day of JANUARY -2020
COMPLAINANT/S: Mr. Dhanaraja Babu.G,
S/o. Sri. Ganesh.P.,
R/at.No:25/1, No.14,
Shankara Park Road,
Shankarapuram,
Bengaluru - 560 004.
ACCUSED: Mr. Madhukar. G. Angur,
S/o. Late Guddappa Angur,
Chancellor,
Alliance University,
Chandapura - Anekal Main
Road,
Bengaluru Urban District.
Also residing at:-
No:1128, 21st A Cross,
HSR Layout,
Bengaluru.
Offence Under Section 138 of Negotiable
Instruments Act
Plea of the accused Pleaded not guilty
Final Order Convicted
**
JUDGMENT 2 CC.No:28233/2017
:: JUDGMENT ::
The complainant filed this private complaint under Section 200 of Cr.P.C alleging that, the accused has committed an offence punishable under Section138 of Negotiable Instruments Act.
2. The brief facts of the complainant case reads as follows:
The complainant is familiar to the accused. The accused was facing various litigations during 2016-17 and he requested for help from the complainant in many manners. The complainant was also appointed as Pro-Vice Chancellor by the accused. The complainant submits that the Hon'ble High Court of Karnataka had freezed all the bank account pertaining to the Alliance University and on account of the same, the accused had financial distress. Due to the financial crisis, the accused had requested the complainant to lend a sum of Rs.4,75,00,000/- as hand loan by way of cash. Though the complainant wanted to pay the amounts through cheque, the accused requested JUDGMENT 3 CC.No:28233/2017 the complainant to pay the amounts by way of cash as all the accounts were freezed and the complainant paid the aforesaid amount by way of cash and towards repayment of the said amount the accused issued a cheque bearing No:670882 dated 21/08/2017 for Rs.4,75,00,000/- drawn on Central Bank of India, BTM Layout Branch, Bengaluru. As per the instructions of the accused, the complainant deposited the said cheque with his Banker Bank of Maharashtra, Basavanagudi Branch, Bengaluru and the same was dishonoured with an endorsement as "Funds insufficient" on 24/08/2017. The same has been intimated to the accused, but the accused did not pay the amount covered under the cheque. There afterwards, the complainant got issued legal notice to the accused on 15/09/2017 and the same has been received by the accused on 18/09/2017. But he has not complied with the demands made in the notice and thus the accused has committed an offence punishable under Section 138 of Negotiable Instruments Act and punish the accused in accordance with law in the interest of justice and equity.
JUDGMENT 4 CC.No:28233/2017
3. After recording the sworn statement of the complainant with documentary evidence, this court has registered the case against the accused for the offence punishable under Section 138 of Negotiable Instruments Act. Summons issued to the accused. The accused appeared through his counsel and enlarged on bail. There afterwards, plea of accusation read over and explained to the accused in the language known by him and he pleaded not guilty and claims to be tried.
4. In support of the case of the complainant, the complainant given his sworn statement as PW-1 and got marked Ex.P.1 to Ex.P.4 and after appearance of the accused permitted the accused counsel to cross-
examination of PW-1 and the complainant got marked Ex.P.5 to Ex.P.34 and thus PW-1 has been fully cross- examined by the accused counsel and thus the complainant closed his side evidence.
5. There afterwards, the accused person examined under Section 313 of Cr.P.C statement, in which he totally denied JUDGMENT 5 CC.No:28233/2017 the entire case of the complainant. In support of his denial, the accused filed affidavit by way of chief- examination as DW-1 and got marked Ex.D.1 to Ex.D.12 and at the time of cross-examination of DW-1 the complainant counsel got marked Ex.P.24 to Ex.P.33 and examined one witness as D.W.2. Through him got marked Ex.C.1 and thus D.W.1 and D.W.2 have been fully cross- examined by the complainant counsel and the accused closed his side evidence.
6. There afterwards, in support of the case of the complainant, the learned counsel for the complainant submitted written arguments by narrating the facts and circumstances of the case and also furnished another written arguments in continuation of his oral submission, in which he narrated the facts and circumstances of the case and hence the complainant had proved the alleged guilt of the accused beyond all reasonable doubts. Hence, the accused may be convicted in accordance with law.
7. In support of the case of the complainant, the learned JUDGMENT 6 CC.No:28233/2017 counsel for the complainant relied on following citations.
(i) Criminal Appeal No.508/2019 (Rohitbhai Jivanlal Patel V/s. State of Gujarat and another) in which Hon'ble Supreme Court of India held that High court has disproved the acquittal of the accused - appellant and, while holding him guilty of the offence under Section 138 of the N.I.Act, has awarded him the punishment of simple imprisonment for a period of 1 year with fine to the extent of double the amount of cheque (i.e., a sum of Rs.6 lakhs) with default stipulation of further imprisonment for a period of 1 year in each case; and, out of the amount payable as fine, the complainant-respondent No.2 is ordered to be compensated to the tune of Rs.5.5 lakhs in each case etc.
(ii) Further relied on decision reported in Criminal Appeal No.1545 of 2018 (Uttam Ram V/s. Devinder Singh Hudan and another) in which Hon'ble Supreme Court of India held that Section 139 introduces an exception to the general rule as to burden of proof and shifts the onus on the accused. The presumption under Section 139 of the Negotiable instruments Act is a presumption of law, as distinguished from presumption of facts. Presumption are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the accused beyond all reasonable doubt etc. JUDGMENT 7 CC.No:28233/2017
(iii) Further relied on decision reported in Criminal Appeal No.63/2012 (S. RAvi V/s. S. Kumaresan) in which Hon'ble Madras High Court held that "yet I am impressed that the complainant has not successfully discharged the initial burden of establishing the subsistence a legally enforceable debt on the date of issue of the cheque or earlier.
Rs.1,50,000/- is a huge amount. The complainant took no security except a post dated cheque which is Ex.P.1. No proof of the complainant's economic position to the extent of lending Rs.1,50,000/- so liberally that he bothered to take no security. True, the burden to prove non-existence of consideration is upon the accused. For this, he need not adduce independent evidence on his side, he may even rely upon the complainant's evidence and bring on record preponderance of probabilities pointing to non-existence of consideration etc.
(iv) Further relied on decision reported in Criminal Appeal No.803/2018 (Kishan Rao V/s. Shankargouda) in which Hon'ble Supreme Court of India held that Section 139 of the Act provides that 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, of any debt or other liability"
etc.
(v) Further relied on decision reported in IV (2007) BC 175 (J.Ramaraj V/s. Iliyaz Khan) in which Hon'ble High Court JUDGMENT 8 CC.No:28233/2017 of Karnataka held that the above ratio as well as the legal position makes it clear that the agent will be liable in the absence of any such endorsement being made and also when he fails to establish that he has been induced to sing the cheques on the assurance that the complainant will only proceed against the principal and not against the petitioner-agent. The finding of both the Courts below that the petitioner did not discharge his responsibility by way of rebuttable evidence cannot be faulted with etc.
(vi) Further relied on decision reported in Criminal Appeal No.1020 of 2010 (Rangappa V/s. Sri Mohan) in which Hon'ble Supreme Court of India held that presumption as to negotiable instruments - until the contrary is proved, the following presumptions shall be made.
(a) of consideration: 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" etc.
(vii) Further relied on decision reported in Criminal Appeal Nos.230-231-2019 (Bir Singh V/s. Mukesh Kumar) in which Hon'ble Supreme Court of India held that Section 138 dishonour of the cheque for insufficiency etc., of funds in the account - where any cheque drawn by a person on an account maintained by him with a banker for payment JUDGMENT 9 CC.No:28233/2017 of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the Bank unpaid, either because of the amount of money standing to the credit of that account etc.
(viii) Further relied on decision reported in (2007) 6 Supreme Court Cases 555 (C.C.Alavi Haji V/s. Palapetty Muhammed and another) in which Hon'ble Supreme Court of India held that (b) S. 138 provisos (b) & (c) course open to drawer where he claims not to have received the notice sent by post, but received copy of the complaint with the summons - Held, he can within 15 days of the receipt of the summons make payment of the cheque amount and on that basis submit to the court that the complaint be rejected - He then cannot contend that there was no proper service of notice.
(ix) Further relied on decision reported in LAWS (MAD) 2017 8 182 (Sujatha Ramanathan V/s. Ramya) in which Hon'ble Madras High Court held in favour of the complainant.
(x) Further relied on decision reported in AIR 2010 (NOC) 308 (MAD) (G.Irusappan V/s. Santhakumari) in which Hon'ble Madras High Court held that dishonour of the cheque - Demand notice - Service of - Accused himself admitted during cross-examination that he continues to JUDGMENT 10 CC.No:28233/2017 stay in same address which was found on Postal endorsement which was returned as "not claimed" - Court was justified in holding that service of notice was proper.
Later, on 29/01/2020, the advocate for the complainant by serving the copy to the other side furnished the additional written submission and relied on citations reported in
(xi) (2001) 6 Supreme Court Cases 16 (Hiten P. Dala V/s. Bratindranath Banerjee) in which Hon'ble Supreme Court of India held that standard of requisite proof for rebuttal - Held, it is obligatory on the court to presume the liability of the drawer for the amount of cheque in every case where the factual basis for such presumption is established etc.
(xii) Further relied on decision reported in AIR 2015 Supreme Court 2240 (T. Vasanthakumar V/s. Vijayakumari) in which Hon'ble Supreme Court of India held that it is unworthy of credit, apart from being unsupported by any evidence - Mere printed date on cheque by itself cannot be conclusive of fact that cheque was issued in 1999 - Order of High Court in acquitting accused is erroneous and set aside.
(xiii) Further relied on decision reported in LAWS (SC) 2002 2 112 (A.V.Murthy V/s. B.S.Nagabasavanna) in which Hon'ble Supreme Court of India held that the respondent JUDGMENT 11 CC.No:28233/2017 seems to have contended that as the loan was advanced four years prior to the issuance of the cheque, the debt or the liability for which the cheque was drawn by him had ceased to be legally enforceable and, therefore, no complaint could have been filed by the complainant under Section 138 of the Act.
(xiv) Further relied on decision reported in (2013) 3 Supreme Court Cases 86 (Vijay V/s. Laxman and another) in which Hon'ble Supreme Court of India held that presumption in favour of holder of cheque as to consideration having been paid by holder and cheque having been received for discharge of debt owed to holder - Scope and rebuttability of presumptions.
(xv) Further relied on decision reported in ILR 2006 KAR 6472 (J.Ramaraj V/s. Iliyaz Khan) in which Hon'ble High Court of Karnataka held that the finding of both the courts below that the petitioner did not discharge his responsibility by way of rebuttable evidence cannot be faulted with.
(xvi) Further relied on decision reported in (2016) 10 Supreme Court Cases 458 (Sampelly Satyanarayana Rao V/s. Indian Renewable Energy Development Agency Limited) in which Hon'ble Supreme Court of India held that under Section 138 - Post dated cheque described as "security" towards repayment of installment of already JUDGMENT 12 CC.No:28233/2017 disbursed loan amount - Dishonour of - Proceedings under Section 138, held, maintainable in case of dishonour of such cheque.
(xvii) Further relied on decision reported in 2006 Crl. L. J. 904 (Smt. Usha Suresh V/s. R.V.Shashidaran) in which Hon'ble High Court of Karnataka held that legally recoverably debt - presumption being rebuttable such rebuttable evidence has to be placed before court by accused - By giving mere explanation, accused cannot get away from penal action - Defence raised by accused must be probable or acceptable to court etc. Accordingly, the learned counsel for the complainant prays for convict the accused in accordance with law.
8. In support of the case of the accused, as per the oral submission of the accused counsel, the learned counsel for the accused also submitted written arguments by narrating the facts and circumstances of the case and submits that the accused had given a rebuttable evidence to the case of the complainant and in support of his contention, the learned counsel for the accused also relied on citations reported in JUDGMENT 13 CC.No:28233/2017
(i) 2008 Crl. L.J. 2405 (Shri Vinay POarulekar V/s. Shri Pramod Meshram) in which Hon'ble Bombay High Court held that presumption as to accused can prove non- existence of consideration by raising probable defence - If accused discharged initial onus of proof by showing that existence of consideration was improbable or doubtful or was illegal, onus will shift to complainant etc.
(ii) Further relied on decision reported in (2015) 1 Supreme Court Cases 99 (K. Subramani V/s. K. Damodara Naidu) in which Hon'ble Supreme Court of India held that legally recoverably debt not proved as complainant could not prove source of income from which alleged loan was made to appellant - accused - Presumption in favour of holder of cheque, hence, held, stood rebutted - Acquittal restored.
(iii) Further relied on decision reported in AIR 2019 Supreme Court 1983 (Basalingappa V/s. Mudibasappa) in which Hon'ble Supreme Court of India held that dishonour of the cheque non-mentioning of date of issuance of cheque by complainant in complaint as well as in his evidence - complainant not satisfactorily explaining contradiction in complaint vis-à-vis his examination-in-chief and cross- examination - His failure to prove financial capacity though he is a retired employee to advance substantial amount to different persons including accused - Findings JUDGMENT 14 CC.No:28233/2017 of Trial court that complainant cannot prove his financial capacity etc. Accordingly, the learned counsel for the accused prays for acquittal of the accused in accordance with law.
9. On the basis of the aforesaid facts and circumstances, the following points arises for my considerations:
POINTS
1. Whether the complainant proves beyond all reasonable doubts that during the year 2016-
17, in order to help to the accused as the complainant was appointed as Pro-Vice Chancellor and also the Hon'ble High Court of Karnataka had freezed all the bank account pertaining to the Alliance University and on account of the same, the accused had financial distress. For that, the complainant lent a sum of Rs.4,75,00,000/- as hand loan by way of cash on the request of the accused?.
2) Whether the complainant proves beyond all reasonable doubts that for repayment of the said loan amount, the accused issued a cheque bearing No:670882 dated 21/08/2017 for Rs.4,75,00,000/- drawn on Central Bank of JUDGMENT 15 CC.No:28233/2017 India, BTM Layout Branch, Bengaluru. As per the instructions of the accused, the complainant presented the said cheque with his Banker Bank of Maharashtra, Basavanagudi Branch, Bengaluru, but the same was dishonoured with an endorsement as "Funds insufficient" on 24/08/2017. After dishonour of the cheque, the complainant got issued legal notice to the accused on 15/09/2017 sent by RPAD and the same has been received by the accused on 18/09/2017. But the accused did not comply the terms of notice?
3) Whether the complainant proves beyond all reasonable doubts that the accused has committed an offence punishable under Section 138 of Negotiable Instruments Act?
4) What order?
10. My answer to the above points are as under:
Point No.1: In the Affirmative,
Point No.2: In the Affirmative,
Point No.3: In the Affirmative,
Points No.4: As per the final order,
for the following.
JUDGMENT 16 CC.No:28233/2017
REASONS
11. At the outset, on 24/12/2019 this court posted this case for passing of judgment, but at the time of preparing the judgment, this court has noticed that the cheque in question was presented through Bank of Maharashtra, Basavanagudi Branch, Bengaluru. Hence, in order to try this case, this court has no jurisdiction. Accordingly placed before C.M.M. with a request to send the record to the concerned court as per Special Notification No:To.No:ADM- I-13-2016 dated 01/08/2016, but as per their letter the Learned CMM on 01/02/2020 sent back the records to dispose off this case in accordance with law since this case is already posted for judgment. Hence, this case was called on 06/01/2020. On that day the complainant counsel filed application under Section 311 of Cr.P.C to recall D.W.1 to lead further cross-examination. After contest, this court had allowed the said application and permitted to cross-examination of DW-1 further, and through him got marked Ex.P.31 to Ex.P.33. Later the complainant counsel also filed another application under Section 311 Cr.P.C to JUDGMENT 17 CC.No:28233/2017 mark the Postal acknowledgement i.e., the demand notice issued to the accused is duly served upon him and after contest, this court was permitted to the complainant to lead further evidence by imposing cost. Accordingly, the complainant lead further examination and got marked Ex.P.34 is the Postal acknowledgement and the accused counsel has further cross-examined PW-1 in full.
12. POINT No.1: The case of the complainant is that, the accused facing various litigations during the year 2016-17 and he had requested for help from the complainant in many manners. The complainant was also appointed as Pro-Vice Chancellor by the accused. The complainant submits that the Hon'ble High Court of Karnataka had freezed all the bank account pertaining to the Alliance University and on account of the same, the accused had financial distress. Due to the financial crisis, the accused had requested the complainant to lend a sum of Rs.4,75,00,000/- as hand loan by way of cash. Though the complainant wanted to pay the amounts through cheque, the accused requested the complainant to pay the JUDGMENT 18 CC.No:28233/2017 amounts by way of cash. Accordingly the complainant had paid the said amount by way of cash.
13. The accused appeared and contest this case by denying the entire case of the complainant. In support of the denial of the accused, the complainant given his sworn statement filed by way of affidavit as PW-1, in which he has stated as per the case of the complainant. In the cross- examination of this PW-1 by the accused counsel, the complainant stated that he was doing quarrey work for the last 4 years at Chamaranagara. Apart from it, he is doing civil work and also he is doing mining work at Chamaranagara and he getting very good income and he is well-off. In his cross-examination at Page No.6, the accused counsel suggested and the relevant portion is in Kannada which reads as follows "2016 gÀ ªÀiÁZïð 18£Éà vÁjÃRÄ 97 ®PÀë gÀÆ.UÀ¼ÀÄ ªÀÄzÀÄPÀgï DgÉÆæUÉ £ÀUÀzÀÄgÀÆ¥Àz° À è PÉÆnÖgÀÄvÉÛãÉ, ¸ÀzjÀ 97 ®PÀë gÀÆ.UÀ¼£À ÀÄß 18-03-2016 gÀAzÀÄ ¥Àæ¸ÀÄÛvÀ DgÉÆæUÉ JUDGMENT 19 CC.No:28233/2017 PÉÆnÖgÀÄvÉÛÃ£É C£ÀÄߪÀ ¸ÀAUÀwAiÀÄ£ÀÄß £À£Àß DzÁAiÀÄ vÉjUÉ jl£ïìð 2015-16 gÀ°è vÉÆÃj¹gÀÄvÉÛãÉ".
On the said suggestion itself goes to show that the complainant had paid Rs.97,00,000/- to the accused and further in order to appreciate the case of complainant, at Page No.8, the relevant portion is in Kannada which reads as follows "DzÀ£ÀAvÀgÀ dÆ£ï 10, 2016 gÀAzÀÄ DgÉÆæUÉ 3 PÉÆÃn 78 ®PÀë gÀÆ.UÀ¼ÀÄ £ÀUÀzÀÄgÀÆ¥Àz° À è ºÀt DgÉÆæUÉ PÉÆnÖgÀÄvÉÛãÉ".
On the basis of the said suggestion itself goes to show that the complainant given the loan amount to the accused by way of cash and the same has been denied by the accused in the cross-examination of PW-1 at Page No.10. But the accused taken a contention that the accused had sufficient amount with him and he having Bank account with crores of rupees etc. Further in the cross-examination of PW-1 got marked Ex.P.10 is the Bank passbook of Bank of Maharashtra stands in the name of the complainant, in JUDGMENT 20 CC.No:28233/2017 which during the year 2016 he had sufficient amount with him. For that as per Ex.P.10 Bank passbook during the year 2015 he had an amount of Rs.10,983/-. Ex.P.11 is the Bank statement of State Bank of Travancore stands in the name of the complainant, in which during the year 2016 he had a Bank balance of Rs.84,765=93. The accused made contention that the alleged cheque in question has been thefted by the complainant and his brother and others though this accused has not at all obtained any loan amount from the complainant etc. In view of the cross- examination of PW-1, the accused examined himself and proved that he had obtained loan amount from the complainant by way of cash and though the accused has not at all stated the particular date on which he obtained the loan amount from the complainant in his complaint, but on the basis of the cross-examination of PW-1 itself, the accused counsel suggested on which date the accused obtained the loan amount from the complainant.
14. The accused has denied the entire case of the complainant. In his defence evidence filed by way of JUDGMENT 21 CC.No:28233/2017 affidavit as D.W.1, he stated that he knows the complainant and he was offered an appointment as a Pro- Vice Chancellor based on what he claimed as his credentials during his oral representation and an appointment order as a Pro-Vice-Chancellor was issued by the office etc. Further he has stated that in Para No:3 of his affidavit that the complainant and his brother Santosh Kumar, Dr. Mohan Kumar, Sri. Keshvamurthy, Sri. Krishnamurthy Dayanand Tejasvi, Sri. Zaheer Pasha and Sri. Prasanna were working / associated in the same university in different capacities. During the year 2017 they have committed a theft in their Alliance University and taken away valuable documents and along with the disputed cheques etc. For that he lodged a complaint to the Ulsoor Police station and the same was registered in Crime No:328/2017 for the offences punishable under Section 379, 420 of IPC. He has further stated that in Para No:6 of his affidavit filed by way of chief-examination that he is the founder of the Alliance University and he have crores of turnovers from the Alliance University and also from other sources and he capable of maintain himself and JUDGMENT 22 CC.No:28233/2017 University and hence the question of borrowing of money from the complainant does not arise for consideration. Further, in Para No:7 of his affidavit filed, he has stated that the Hon'ble High Court of Karnataka was freezed all bank accounts of the said University and on account of the same he was financially distressed are all false, frivolous and baseless and it is a concocted story of the complainant etc. But the said persons have colluded with each other and they are close associates of each other and they have been conspiring and co-ordinating with some common advocates and have filed false, frivolous and baseless cases against him and his wife etc. He has not signed or filled up the contents of the cheque etc. As such, on the basis of the cross-examination of PW-1 and also the defence taken by the accused, the complainant had successfully proved that he had sufficient amount with him and he paid the huge loan amount of Rs.4,75,00,000/- to the accused that too by way of cash as asked by the accused. As such, the decisions relied by the complainant counsel as stated above that he had sufficient amount with him is proved. But the decisions relied by the accused counsel and also JUDGMENT 23 CC.No:28233/2017 the written arguments submitted by the accused counsel as stated above pertaining to the accused having sufficient amount with him are not proved. Accordingly, I answer Point No.1 in the Affirmative.
15. POINT NO.2: It is the further case of the complainant that due to financial crisis, the accused had requested the complainant to lend a sum of Rs.4,75,00,000/- loan by way of cash. Though the complainant wanted to pay the amount through cheque, but the accused requested to pay the amount by way of cash as all the accounts were freezed by the Hon'ble High Court of Karnataka. In order to repay the said amount, the accused issued a cheque bearing No:670882 dated 21/08/2017 for a sum of Rs.4,75,00,000/- drawn on Central Bank of India, BTM Layout Branch, Bengaluru. As per the instructions of the accused, the complainant deposited the said cheque with his Banker Bank of Maharashtra, Basavanagudi Branch, Bengaluru. But the said cheque was returned unpaid with an endorsement as "Funds insufficient" on 24/08/2017. In spite of issuance of legal notice to the accused on JUDGMENT 24 CC.No:28233/2017 15/09/2017, the same has been received by the accused on 18/09/2017. But the accused has not complied the demands made in the notice and he has not paid the amount due under the aforesaid cheque. As per the aforesaid contention of the complainant, the complainant given his sworn statement as PW-1 filed by way of affidavit, in which he reiterated the complaint contention. Though in his further cross-examination recorded on 24/07/2018, the legal notice sent to the accused on 15/09/2017 is returned with "Insufficient address", but in the complaint he has stated that the legal notice sent to the accused is received by the accused. But he did not reply or complied the notice. He got marked Ex.P.1 is the cheque amounting to Rs.4,75,00,000/- and identified the signature of the accused as Ex.P.1(a). Ex.P.1 cheque is dishonoured due to "Funds insufficient" as per Ex.P.2 is the endorsement issued by the Bankers. Ex.P.3 is the copy of legal notice. The notice is sent to the accused by post and the same is delivered to the accused as per Ex.P.34 is the Postal acknowledgement which is marked subsequently. Ex.P.4 is the postal cover returned with the postal shara as JUDGMENT 25 CC.No:28233/2017 "Insufficient address". Ex.P.4(a) is the notice in it. Ex.P.34 is got marked subsequently after contesting this case and the accused counsel cross-examining PW-1 further by denying the sending of Ex.P.3 legal notice to the accused. But in the Ex.P.34, the name of the accused finds place with the Alliance University, Chandapura - Anekal Main Road, Bengaluru. Though this Ex.P.34 Postal acknowledgement is put the seal of the Alliance University, the In-ward Number and date is mentioned as Nil. On the basis of the said oral and documentary evidence of the complainant, though the complainant issued Ex.P.3 legal notice for dishonour of Ex.P.1 cheque, but in spite of service of notice, the accused did not reply or complied the notice, but he taken a untenable contention stating that Ex.P.3 legal notice issued to the accused is not duly served. But in his affidavit filed by way of chief-examination as D.W.1, he has stated and mentioned his HSR Layout address, Bengaluru. But not as per Ex.D.34 i.e, the present address where the accused is residing. But as per Ex.P.3 demand notice issued to the accused, it is mentioned as Chancellor, Alliance University, Chandapura JUDGMENT 26 CC.No:28233/2017
- Anekal Main Road, Bengaluru Urban District. The same is duly served upon the accused as per Ex.P.34. But in spite of service of demand notice to the accused, he did not reply or complied the notice. But the accused taken contention that Ex.P.1 cheque and other cheques have been thefted from his Alliance University and the persons mentioned at his affidavit in Para No:3 are working in the University in different capacities and during the year 2017 they have committed the act of theft. But Ex.P.1 cheque is of the date 21/08/2017 and the accused has not stated the specific date on which they have thefted the cheques and other documents. For that, the accused got marked Ex.D.1 is the certified copy of order sheet in Crime No:328/2017 on the file of XI A.C.M.M, Bengaluru, in which on 16/08/2019 the court passed the order with respect of "B" Report submitted by the Halasur Police station requires to be rejected is concerned, the court held the same in the Affirmative. The "B" report submitted by the Halasur Police station is rejected. IO is directed to conduct the investigation afresh and submit report by 19/10/2019. Ex.D.2 is the order portion. Ex.D.3 is the JUDGMENT 27 CC.No:28233/2017 certified copy of the order sheet in Crime No:297/2017 registered against Dayanad Tejaswi by the Halasur police has been produced by the concerned police and the court passed order on 06/09/2017 by allowing the bail application filed by the said accused and he was enlarged on bail with some condition. Ex.D.4 is the certified copy of FIR in the said Crime No., in which it is mentioned that on 31/08/2017 the complainant by name Priyanka M Anugar who is the wife of the accused herein lodged a complaint against one Krishnamurthy Dayanand Tejasvi stating that on 19/08/2017 they have taken the cheque Nos:0650415602110460001603 in order to cheat the complainant etc. But the accused stated that the complainant and others have thefted the cheques and other documents etc is against the contents of the said Ex.D.4. Along with the said Ex.D.4 produced the certified copy of the order sheet in Crime No:297/2017 in which it is mentioned to hear on "B" report. Ex.D.6 is the W.P.No:52986/2017 in which the accused herein filed the Presentation Form against The Cabinet Secretary and others are made as party dated 17/11/2017. Ex.D.7 is the JUDGMENT 28 CC.No:28233/2017 xerox copy of the Benaka Xerox Centre in which there are 31 xerox copies. Ex.D.8 is the order passed in OS.No:5148/2017 in which Alliance Business School filed the suit for permanent injunction against the accused herein and also his wife upon interim application in I.A.No.1 and 2 and the court passed the order restraining Defendant Nos.1 and 2 in that case by way of temporary injunction from interfering in any manner in the management, affairs and administration of the plaintiff Alliance University. Ex.D.9 is the IT returns of the assessment year 2016-17 stands in the name of the accused, in which his gross total income is shown as Rs.2,30,17,512/- along with the balance sheet and other documents. Ex.D.10 is the Aadhar card of the accused herein who was born on 14/09/1957 and he is residing at HSR Layout, Bengaluru. He has produced the Aadhar card to show that the accused is residing at HSR Layout, Bengaluru and Ex.D.11 is the Savanur Delux Lodge receipt, in which at Davangere this accused was in the lodge on 19/03/2016 for two days. Ex.D.12 is the Convocation of Alliance University dated 12th August 2017 JUDGMENT 29 CC.No:28233/2017 at the Alliance University, along with colour photos of convocation kit distribution function etc. Hence, on the basis of these documentary evidence, in order to show the accused has not at all received the demand notice issued by the complainant in this case, for that the accused has not stated anything about the demand notice issued to him and the same is not duly served upon him etc.
16. In the cross-examination of DW-1, he denied the entire case of the complainant stating that the accused not at all obtained loan amount of Rs.4,75,00,000/- from the complainant and he has not at all issued Ex.P.1 cheque and the same has been thefted by the complainant and his followers etc. In support of his contention, the accused has not examined any one of the witnesses, but examined D.W.2 Nagaraj, who is the Bank Manager of Central Bank of India, Bengaluru who deposed that Ex.P.1 cheque is belongs to this accused and any cheque has been presented for collection, they have to verify whether in the bank account there is sufficient amount or not. Accordingly, they have issued the endorsement and he JUDGMENT 30 CC.No:28233/2017 identified the signature of the accused as Ex.P.1(a) and Ex.P.1(b) and he produced the Account Opening Form as per Ex.C.1 and the signature found of Ex.C.1 specimen signature and the signature found on Ex.P.1(a) appears to be one and the same. But they have not verified the signature at the time of Ex.P.1 cheque is presented for collection to their Bankers and they usually issued if the funds is not sufficient in any particular bank account they will issue as "Funds insufficient" and he was not at all present at the time of presenting the Ex.P.1 cheque to their Bankers, but Ex.P.1 cheque is not a CTS cheque, but he has denied that Ex.P.1 cheque usually sent to RBI and in their Bank they have verified the signature with the specimen signature along with Ex.P.1 cheque and in his cross-examination he denied that Ex.P.1 cheque and Ex.C.1 specimen signature is not directed by this court to produce the same, but upon the request of the accused he voluntarily appeared before this court etc. As such, on the evidence of D.W.2 who is the Bank Manager of Central Bank of India, will not support the case of the accused to disprove their contention. Though the accused had issued JUDGMENT 31 CC.No:28233/2017 Ex.P.1 cheque for discharge of liability, but he has taken a untenable contention without giving any cogent and convincing evidence to disprove the case of the complainant. As such, whatever the cross-examination of PW-1, is not sufficient to meet the case of the accused to show that the accused had given a rebuttable evidence to the case of the complainant. As such, the written arguments submitted by the complainant with citations as stated above are applicable to the case of the complainant, but the written arguments and also the citations relied by the accused counsel as stated above are not applicable to the case of the accused to show that the accused had given a rebuttable evidence to the case of the complainant. As such, on the basis of the aforesaid facts and circumstances, the complainant was able to establish that Ex.P.1 cheque has been issued by the accused and the same is dishonoured due to funds insufficient and in spite of issuance of demand notice to the accused, but the accused did not reply or complied the notice and hence the complainant had proved the said Point No.2 in the Affirmative.
JUDGMENT 32 CC.No:28233/2017
17. POINT NO.3: It is further the case of the complainant that the accused has committed an offence punishable under Section 138 of Negotiable Instruments Act and punish the accused in accordance with law. The accused appeared and contest this case by denying the entire case of the complainant and in support of the case of the complainant, the complainant got marked Ex.P.1 is the cheque of Rs.4,75,00,000/- and identified the signature of the accused as Ex.P.1(a). Ex.P.2 is the endorsement issued by the Banker stating that Ex.P.1 cheque is dishonoured due to "Funds insufficient". Ex.P.3 is the copy of legal notice and the said notice is duly served to the accused as per Ex.P.34 is the Postal acknowledgement. The same is subsequently got marked and Ex.P.4 is the postal cover is returned with the postal shara as insufficient address. Ex.P.4(a) is the notice in it. Ex.P.5 is the IT returns for the assessment year 2013-14 stands in the name of the complainant in which his gross total income is shown as Rs.7,03,052/- along with the statement of income. Ex.P.6 is the another IT returns for the assessment year 2014-15 stands in the name of the JUDGMENT 33 CC.No:28233/2017 complainant in which his gross total income is shown as Rs.9,23,197/-. Ex.P.7 is the another IT returns of the assessment year 2016-17 stands in the name of the complainant in which his gross total income is shown as Rs.9,64,802/-. Ex.P.8 is the another IT returns of assessment year 2017-18 stands in the name of the complainant in which his gross total income is shown as Rs.10,71,523/-. Ex.P.9 is the Bank of Maharashtra statement of accounts stands in the name of the complainant in which during the year 2012 to 2018 the complainant made several Bank transactions. Ex.P.10 is the Bank passbook of Bank of Maharashtra stands in the name of the complainant and also his brother in which this complainant had paid several amounts to his brother. Ex.P.11 is the State Bank of Travancore statement stands in the name of the complainant in which from 2013 to 2016 he made several Bank transactions of 1 crore and above and Ex.P.12 is the certified copy of the order sheet in CC:No:9349/2018 in which one Shankarpura P.S. had filed a private complaint against the accused herein and others for the offence punishable under Section 504, 506, JUDGMENT 34 CC.No:28233/2017 120(b) read with 34 IPC along with the statement of several persons. Ex.P.13 is the certificate of Registration issued in the name of "Indiraa Build Tech" (Construction Zone) in the name of this complainant and he is the Proprietor of the said firm. Ex.P.14 to Ex.P.23 are the Form No.15 stands in the name of the complainant to show that he had sufficient properties. Ex.P.24 is the certified copy of the FIR in Crime No:328/2017 filed by the accused herein about the theft in his Alliance University cheques on 23/09/2017. Ex.P.25 is the "B" report submitted by the police. Ex.P.26 is The Mittal Tower Commercial Owners Association issued letter to the Police Inspector on 15/02/2019. Ex.P.27 is the Alliance University dated 5th January 2016 issued in the name of complainant. Ex.P.28 is the Alliance University letter dated 7th January 2016 is the joining report in the name of the complainant. Ex.P.29 is the letter issued by the accused herein on January 7, 2016 issued by Dr Selvie Das, Governor's Nominee, Alliance University Board of Governors. Ex.P.30 is the letterhead of Alliance University dated 12th January 2016 to this complainant and Ex.P.31 is the Shiju Abraham JUDGMENT 35 CC.No:28233/2017 Verghis advocate issued the reply notice dated 5/10/2017 in the name of M. Mahendranath and Ex.P.32 is the certified copy of the order sheet in PCR.No:13397/2017 filed by the Santosh Kumar against the accused herein along with the certified copy of the complaint. Ex.P.33 is the Form No.45 stands in the name of the accused to show how he put his signature as per Ex.P.33(a). In the cross- examination of PW-1 by the accused counsel, he trying to elicit that the alleged cheque in question has been thefted by the complainant and his associates, but with respect of Ex.P.1 cheque is concerned, the accused has not given any instruction to the Banker for stop payment of the cheque and other things and after issuance of demand notice to the accused, the same is duly served to the accused as per Ex.P.34 Postal acknowledgement, but the accused did not reply or complied the notice though the summons issued to the accused in this case is duly served upon him on the same address, but he contest this case by denying the entire case of the complainant. As such, the accused failed to given rebuttable evidence to the case of the complainant and the complainant had successfully proved JUDGMENT 36 CC.No:28233/2017 the alleged guilt of the accused beyond all reasonable doubts. In view of the facts and circumstances stated above while answering to Point No.1 and 2, the complainant has successfully proved the alleged guilt of the accused beyond all reasonable doubts. But in order to show the complainant had sufficient amount with him, for that the complainant though produced the statement of accounts of his Bank, but he has not withdrawn any amount of Rs.4,75,00,000/- from his bank account, but he paid the said amount out of his pocket. As such, the complainant is entitled only for compensation to the extent of cheque amount. Accordingly, I answered Point No.3 in the Affirmative.
18. POINT NO.4: From the forgoing reasons, I proceed to pass the following:
ORDER Acting under Section 255(2) Cr.P.C the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentenced to pay a fine of JUDGMENT 37 CC.No:28233/2017 Rs.4,75,00,000/- (Rupees Four Crore Seventy Five Lakhs only). The same shall be paid by the accused within a period of 30 days from the date of this order.
Out of the said fine amount, a sum of Rs.4,70,00,000/- (Rupees Four Crore Seventy Lakhs only) has been awarded to the complainant as compensation under Section 357 of Cr.P.C.
In default of payment of fine amount, the accused shall undergo simple imprisonment for 2 (two) years.
The rest of Rs.5,000/- (Five Lakhs Only) is ordered to be adjusted towards the state as fine.
(Dictated to the stenographer, corrected and then pronounced by me in the open court on this the 31st day of January 2020) (NAGARAJEGOWDA.D) C/C. XII Addl. C.M.M., Bengaluru.
JUDGMENT 38 CC.No:28233/2017
ANNEXURE
Witness examined on behalf of the complainant:
PW-1 : Mr. Dhanaraja Babu.G Documents marked on behalf of the complainant:
Ex.P.1 : Cheque.
Ex.P.1(a) : Signature of the accused
Ex.P.2 : Bank Endorsement.
Ex.P.3 : Legal notice
Ex.P.4 : Unserved postal cover
Ex.P.4(a) : Notice in it
Ex.P.5 : IT returns for the assessment
year 2013-14 along with other
documents.
Ex.P.6 : IT returns for the assessment
year 2014-15 along with other
documents.
Ex.P.7 : IT returns for the assessment
year 2016-17 along with other
documents.
Ex.P.8 : IT returns for the assessment
year 2017-18 along with other
documents.
Ex.P.9 : Bank of Maharashtra bank
account statement of the
complainant.
JUDGMENT 39 CC.No:28233/2017
Ex.P.10 : Bank of Maharashtra Bank
passbook.
Ex.P.11 : State Bank of Travancore bank
account statement of the
complainant.
Ex.P.12 : Certified copy of FIR.
Ex.P.12(a) : Certified copy of order sheet in
CC.No:9349/2018.
Ex.P.13 : Certificate of Small Scale
Industrial Unit.
Ex.P.14 to Ex.P.23 : Copies of Form No.15 in the
name of the complainant.
Ex.P.24 : Certified copy of FIR.
Ex.P.25 : Certified copy of B Report.
Ex.P.26 : Certified copy of letter sent to
the Police Inspector.
Ex.P.27 : Alliance University letter dated
05/01/2016.
Ex.P.28 : Alliance University Joining
report.
Ex.P.29 and Ex.P.30 : Alliance University letters dated 07/01/2016 and 12/01/2016.
Ex.P.31 : Certified copy of reply notice dated 05/10/2017.
Ex.P.32 : Certified copy of order sheet in PCR.No:13397/2017.
JUDGMENT 40 CC.No:28233/2017 Ex.P.33 : Certified copy of bail bond. Ex.P.33(a) : Signature of the accused. Ex.P.34 : Postal acknowledgement
Witness examined on behalf of the accused:
DW-1 : Mr. Madhukar. G. Angur
DW-2 : Mr. Nagaraj Hesagar,
Bank Manager of Central Bank
of India.
Documents marked on behalf of the accused:
Ex.D.1 : Certified copy of order sheet in Crime No:328/2017.
Ex.D.2 : Certified copy of order portion in Crime No:328/2017.
Ex.D.3 : Certified copy of the order
sheet in Crime No:297/2017
registered against Dayanad
Tejaswi.
Ex.D.4 : Certified copy of FIR in the
said Crime No.
Ex.D.5 : Certified copy of order sheet in
the said case.
Ex.D.6 : Certified copy of
W.P.No:52986/2017.
Ex.D.7 : Xerox copy bills of the Benaka
Xerox Centre.
JUDGMENT 41 CC.No:28233/2017
Ex.D.8 : Certified copy of order passed
in OS.No:5148/2017.
Ex.D.9 : Certified copy of IT returns of
the assessment year 2016-17
stands in the name of the
accused.
Ex.D.10 : Certified copy of the Aadhar
card of the accused.
Ex.D.11 : Savanur Delux Lodge receipt.
Ex.D.12 : Convocation of Alliance
University dated 12th August
2017 at the Alliance University
along with colour photos of
convocation kit distribution
function etc.
Documents marked on behalf of the Court:
Ex.C.1 : Bank account opening form of
the accused.
Ex.C.1(a) : Signature of the accused.
(NAGARAJEGOWDA.D)
C/C. XII Addl. C.M.M., Bengaluru.
* Accused copy furnished.
JUDGMENT 42 CC.No:28233/2017
31/01/2020
Complainant - CNR, MVR
Accused - MP
Judgment
(Judgment pronounced in the open court vide separate order) ORDER Acting under Section 255(2) Cr.P.C the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentenced to pay a fine of Rs.4,75,00,000/- (Rupees Four Crore Seventy Five Lakhs only). The same shall be paid by the accused within a period of 30 days from the date of this order.
Out of the said fine amount, a sum of Rs.4,70,00,000/- (Rupees Four Crore Seventy Lakhs only) has been awarded to the complainant as compensation under Section 357 of Cr.P.C.
JUDGMENT 43 CC.No:28233/2017 In default of payment of fine amount, the accused shall undergo simple imprisonment for 2 (two) years.
The rest of Rs.5,000/- (Five Lakhs Only) is ordered to be adjusted towards the state as fine.
Supply a free copy of this Judgment to the accused.
(NAGARAJEGOWDA.D) C/C. XII Addl. C.M.M., Bengaluru.