Bangalore District Court
Sri. G.Santosh Kumar vs Sri. A.Chinnappa on 25 October, 2019
1 C.C.No.16265/2019 J
THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated:- This the 25th day of October 2019
Present: SRI.S.B.HANDRAL, B.Sc., L.L.B(SPL).,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.16265/2019
Complainant : Sri. G.Santosh Kumar,
S/o. Late Gopalaiah Shetty,
Aged about 44 years,
R/at No.44, 7th Main,
Banashankari 3rd Stage,
Bengaluru -560 085.
(By Sri.R.Prabhakara, Adv.,)
- Vs -
Accused : Sri. A.Chinnappa,
S/o Late Annaiahappa,
Major in Age,
R/at Khuddos Layout,
Ward No.19,
Devanahalli Town,
Bengaluru Rural.
(Rep. by Sri.Mohan Kumar.M, Adv.,)
Case instituted : 12.6.2019
Offence complained : U/s 138 of N.I Act
of
2 C.C.No.16265/2019 J
Plea of Accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 25.10.2019
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable U/sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, himself and the Accused were known to each other from the considerable time and that, the Accused are in the business of construction and real estate from several years and in the course of Accused business the Accused were in urgent need of an amount of Rs.10 Lakhs to meet his business commitments and that, the Accused were requested him as an amount of Rs.10 Lakhs as hand loan in the last week of May 2018 and that, the Accused had also assured him to repay the hand loan amount of Rs.10 Lakhs within 3 months from the date of borrowal.
3. The complainant further states that, he having utmost trust and faith on Accused and his 3 C.C.No.16265/2019 J family and more over having known about the Accused from the past several years, he agreed to give the hand loan amount of Rs.10 Lakhs to the Accused and in the process he transferred an amount of Rs.9,90,059/= through RTGS from his account maintained in Sri.Charan Soudhardha Co- operative Bank Ltd., Shankarapuram Branch, Bengaluru to accused account on 22.6.2018 and after having received the amount of Rs.9,90,059/= on 22.6.2018, the Accused have promised him to repay the above said amount within a period of 3 months.
4. The complainant further states that, after the expiry of 3 months, he requested the Accused to repay the borrowed amount of Rs.9,90,059/= but the Accused went on postponing the same giving vague reasons and after repeated demands by him finally the Accused have issued a cheque bearing No.483403 dated:20.3.2019, drawn on Corporation Bank, Devanahalli branch, Bengaluru for an amount of Rs.5 Lakhs in his favour and have promised him to repay the balance amount of Rs.4,90,059/= out of the borrower amount of Rs.9,90,059/= within one 4 C.C.No.16265/2019 J month from the date of the above cheque and the Accused have also promised him to honour the cheque on presentation date, and as per the instructions of the Accused, when he presented the said cheque for encashment through his banker, the same came to be returned dishonoured as "Funds Insufficient" vide Bank Memo dated: 27.3.2019, immediately he brought the matter to the notice of the Accused and demanded the payment, but the Accused keep on dodging the time for one or the other reasons and failed to pay the amount to him and further Accused have requested him to re- present the said cheque on 9.4.2019, again he presented the said cheque for encashment, but the said cheque again came to be returned dishonoured as "Funds Insufficient" with bank memo dated:
10.4.2019, thereafter he got issued legal notice to the Accused dated: 29.4.2019 through RPAD calling upon the accused to pay the cheque amount to him within 15 days from the date of receipt of the said legal notice, the said legal notice sent by RPAD was duly served to the Accused on 24.5.2019, but till today the Accused has not paid any amount to him.
Hence the present case is filed by the Complainant 5 C.C.No.16265/2019 J against the accused praying that the Accused be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
5. Before issuing process against the accused, the Complainant is examined as PW.1 and he has filed his affidavit-in-lieu of examination-in-chief, in which, he has reiterated the averments of the complaint. In support of his oral evidence, P.W.1 has relied upon the documentary evidence as per Ex.P.1 to P.8 i.e. the Original Cheque dated:-
20.3.2019 as per Ex.P.1, the signature on the said cheque identified by P.W.1 as that of the accused as per Ex.P.1(a), the Bank Memos as per Ex.P.2 and P.3 respectively, the office copy of the Legal Notice as per Ex.P.4, Postal Receipt as per Ex.P.5, complaint to the postal department as per Ex.P.6, Track Consignment as per Ex.P.7, complaint as per Ex.P.8, signature of the complainant as per Ex.P.8(a).
6. Prima-facie case has been made out against the accused and summons was issued against the accused in turn he has appeared before the court and got enlarged on bail.
6 C.C.No.16265/2019 J7. It is relevant here to mention that, at the stage of summons, the Accused has appeared before this court and has filed his bail application and the complainant /PW.1 and the accused by representing by their respective counsels have also filed Joint Memo before the court on 21.10.2019 and both sides prayed to pass the judgment by taking into consideration of the terms of the joint memo.
8. The contents of the joint memo and submissions made by both parties and their respective counsels are taken into consideration and perused the other records available on the record, the following points that are arise for consideration:
1. Whether the complainant proves that the accused has issued a cheque for Rs.5 Lakhs/=, bearing No.483403 dated:-
20.3.2019 drawn on Corporation Bank, Devanahalli Branch, Bengaluru to discharge legally recoverable debt to the complainant and when the complainant has presented cheque for encashment through his banker it was returned dishonoured for the reasons "Funds Insufficient" on 27.3.2019 and 10.4.2019 and the complainant issued legal notice to the accused on 29.4.2019 and inspite of 7 C.C.No.16265/2019 J it the accused has not paid the cheques amount within prescribed period there by the accused has committed an offence U/s.138 of the Negotiable instruments Act?
2. What Order?
9. The above points are answered as under:
Point No.1: In the Affirmative Point No.2:As per final order for the following:
REASONS
10. Point No.1: Before appreciation of the facts and oral and documentary evidence in the present case, it is relevant to mention that, under criminal jurisprudence prosecution is required to establish guilt of the accused beyond all reasonable doubts however, a proceedings U/s.138 of N.I.Act is quasi criminal in nature. In these proceedings proof beyond all reasonable doubt is subject to presumptions as envisaged U/s.118, 139 and 146 of N.I.Act. An essential ingredient of Sec. 138 of N.I.Act is that, whether a person issues cheque to be encashed and the cheque so issued is towards payment of debt or liability and if it is returned as 8 C.C.No.16265/2019 J unpaid for want of funds, then the person issuing such cheque shall be deemed to have been committed an offence. The offence U/s.138 of N.I. Act pre-supposes three conditions for prosecution of an offence which are as under:-
1. Cheque shall be presented for payment within specified time i.e., from the date of issue or before expiry of its validity.
2. The holder shall issue a notice demanding payment in writing to the drawer within one month from the date of receipt of information of the bounced cheque and
3. The drawer inspite of demand notice fails to make payment within 15 days from the date of receipt of such notice.
If the above said three conditions are satisfied by holder in due course gets cause action to launch prosecution against the drawer of the bounced cheque and as per Sec.142(b) of the N.I. Act, the complaint has to be filed within one month from the date on which cause of action arise to file complaint.
9 C.C.No.16265/2019 J11. It is also one of the essential ingredients of Sec. 138 of N.I.Act that, a cheque in question must have been issued towards legally recoverable debt or liability. Sec. 118 and 139 of N.I.Act envisages certain presumptions i.e.,U/s.118 a presumption shall be raised regarding 'consideration' 'date' 'transfer' 'endorsement' and holder in course of Negotiable Instrument. Even U/Sec.139 of the Act are rebuttable presumptions shall be raised that, the cheque in question was issued regarding discharge of a legally recoverable or enforceable debt and these presumptions are mandatory presumptions that are required to be raised in cases of negotiable instrument, but the said presumptions are not conclusive and or rebuttable one, this proportion of law has been laid down by the Hon'ble Apex Court of India and Hon'ble High Court of Karnataka in catena of decisions. In this regard, it is relevant here to refer a decision reported in "2001 Cr.L.J Page 4647 S.C in a case of "Hiten P Dalal Vs. Bratindranath Banerjee" "2001 Part 8 SCC 458 between K.N.Beena Vs. Muniappan and another", "AIR 1999 SC 3762 between K. Bhaskaran Vs. Vaidhan Balan", "AIR 2010 SC 1898 between 10 C.C.No.16265/2019 J Rangappa Vs. Mohan", "2001 AIR KAR .HCR 2154 between M/s.Devi Tyres Vs. Navab Jan", "AIR 2018 SC 3173 between Kishan Rao Vs. Shankaragowda" and "AIR 2018 SCC 3601 between T.P.Murugan (Dead) Thr. LRs Vs. Bhojan". In the above said decisions the Hon'ble Apex Court of India and Hon'ble High Court of Karnataka held that, presumption is to be raised by virtue of which, it is for the accused to show that, there was no legally recoverable or enforceable debt or liability or that debt or liability was not legally enforceable.
12. The Hon'ble High court of Karnataka in the above said reported decision i.e., 2001 AIR KAR. HCR 2154 at para No.6 held that, issuance of cheque itself was adequate proof of existence of debt or liability. In another decision reported in 2011 ACD 1521 (KAR) between Smt.Usha Suresh Vs. Shashidharan, the Hon'ble High Court held that, issuance of cheque and signature is accepted and admitted by the accused and initial presumptions has to be raised in favour of the complainant that, cheque in question was issued towards legally 11 C.C.No.16265/2019 J recoverable debt though presumptions being rebuttable such rebuttable presumption has to be proved by the accused by placing satisfactory evidence but by giving mere explanation, the accused cannot get away from the final action. The same principles of law has been held in another decision reported in 2011 ACD 1412 (KAR) between N.Hasainar Vs. M.Hasainar S/o. Imrahim" in the said decision it is held that, U/s.118 and 139 of N.I. Act presumption is to be drawn in favour of the complainant that the accused issued cheque towards repayment of legally recoverable debt or other liabilities. The Hon'ble High Court of Karnataka in a decision reported in "2001 AIR KAR HCR 2154 i.e., between M/s. Devi Tyres Vs. Navab Jan" at para No.6 held that the duty of the prosecuting authority ends when it is demonstrated to the criminal court the cheque was issued, it was dishonoured thereafter the amount was not paid despite of service of notice within prescribed period of time. Therefore from the above principles of law laid down by the Hon'ble Apex Court of India and Hon'ble High Court to Karnataka, it is for the complainant to discharge his initial burden that the accused has issued a 12 C.C.No.16265/2019 J cheque in question and it was dishonoured and thereafter the accused has not paid the amount despite of service of notice within a stipulated time.
13. In the present case, the complainant himself examined as PW.1 by filing his affidavit evidence in lieu of oral evidence, wherein he has reiterated the complaint averments i.e. about issuance of cheque by the accused, presentation of cheque, dishonour of cheque, for want of sufficient funds. It is further testified by the complainant that, after receipt of memo of the bank, he has issued a legal notice on 29.4.2019 through his advocate by registered post, the said legal notice was served on the Accused on 24.5.2019 but till today the Accused has not paid any amount to him. In support of his oral evidence, he has produced the Original Cheque dated:- 20.3.2019 as per Ex.P.1, the signature on the said cheque identified by P.W.1 as that of the accused as per Ex.P.1(a), the Bank Memos as per Ex.P.2 and P.3 respectively, the office copy of the Legal Notice as per Ex.P.4, Postal Receipt as per Ex.P.5, complaint to the postal department as per Ex.P.6, Track Consignment as per Ex.P.7, complaint 13 C.C.No.16265/2019 J as per Ex.P.8, signature of the complainant as per Ex.P.8(a). On careful perusal of the documents produced by the complainant i.e., Ex.P.1 to P.8 it established that, the complainant has complied the procedural requirements as contemplated u/s 138 of the Negotiable Instrument Act.
14. It is relevant here to mention that, the learned counsel for the defence has not cross examined the complainant/PW.1. Hence the oral and documentary evidence of the complainant remained as unchallenged. It is settled law that, the unchallenged evidence of the witness cannot be discarded unless it is rebutted. Therefore in view of the unchallenged oral and documentary evidence of the complainant it can be held that the Accused has not disputed the cheque belongs to him and his signature is appearing on the said cheque and he has issued the said cheque to the complainant towards discharge of his legally recoverable debt infavour of the complainant. In this regard it is relevant here to refer a decision reported in 2003(1) SCC 240 in the case of Sarwan Singh Vs. State of Punjab wherein the Hon'ble Apex Court of India held 14 C.C.No.16265/2019 J that, "In respect of appreciation of the evidence in criminal trial that, generally whenever the deponent declines to avail himself of the opportunity to put his cross-examination, in must follow that the evidence tendered on that issue ought to be accepted". Hence by applying the said principles of law to the facts and circumstances of the present case, it can be held that, whatever the version of the complainant i.e., PW.1 is to be accepted in toto as true because admittedly the accused has not cross-examined the PW.1 or denied the contents of the affidavit of the PW.1 and documents produced by the complainant in support of his oral evidence.
15. It is also relevant here to mention that, the accused and the complainant have filed joint memo on 21.10.2019 stating that they have amicably entered into compromise in this case by the advise of well wishers and the complainant and accused voluntarily submitted the said joint memo and it is duly signed by them and their respective counsels, the accused has admitted the case of the complaint as well as the issuance of cheque in question. On an enquiry, the complainant and accused submitted 15 C.C.No.16265/2019 J before the court that they are aware of the terms and conditions of the joint memo and accepted the same with free and voluntarily.
16. It is also seen from the terms of the joint memo, the accused has agreed to pay an amount of Rs.10,00,000/= (Rupees Ten Lakhs only) to the complainant towards full and final settlement and out of the said amount, the Accused has already paid a sum of Rs.4 Lakhs to the complainant and today the Accused has paid Rs.50,000/= by way of cash and Rs.1,50,000/= by way of cheque dated:
23.10.2019 drawn on Axis Bank, Devanahalli Branch, Bengaluru to the complainant and also agreed to pay the balance amount of Rs.4 Lakhs by way of two installments i.e. 1st installment of Rs.2 Lakhs on or before 15.11.2019 and 2nd installment of Rs.2 Lakhs on or before 15.12.2019, and the complainant submitted that, he has received an amount of Rs.4 Lakhs from the Accused and today i.e. on 21.10.2019 he received Rs.50,000/= by way of cash and Rs.1,50,000/= by way of cheque dated:
23.10.2019 drawn on Axis bank Devanahalli branch, Bengaluru and also agreed to receive the 16 C.C.No.16265/2019 J remaining balance amount of Rs.4 Lakhs in terms of the joint memo from the Accused.
17. As the terms and conditions of the joint memo is accepted by the complainant and the accused, in the ends of justice it is just and proper to accept the same and permit the accused to pay the admitted amount or settled amount to the complainant as agreed between the complainant and the advocate in the joint memo. Under these circumstances, the above point is answered in the Affirmative.
18. Point No.2: In the light of discussions made in the above point and as per the terms of joint memo the accused is liable to pay amount to the complainant as agreed by him hence in the ends of justice it is just and proper to pass the following :-
ORDER Acting U/sec.264 of Cr.P.C. the accused is convicted for the offence punishable U/sec.138 of Negotiable Instruments Act.17 C.C.No.16265/2019 J
The accused is sentenced to pay a fine of Rs.10,00,000/= (Rupees Ten Lakhs only) .
Out of the said amount of Rs.
Rs.10,00,000/= (Rupees Ten Lakhs only) the Accused has already paid a sum of Rs.4 Lakhs to the complainant and today the Accused has paid Rs.50,000/= by way of cash and Rs.1,50,000/= by way of cheque dated: 23.10.2019 drawn on Axis Bank, Devanahalli Branch, Bengaluru to the complainant and the Accused shall pay the balance amount of Rs.4 Lakhs by way of two installments i.e. 1st installment of Rs.2 Lakhs on or before 15.11.2019 and 2nd installment of Rs.2 Lakhs on or before 15.12.2019 to the complainant.
The Joint Memo filed by the complainant and the accused shall form part and parcel of this order.
In default the Accused shall under go simple imprisonment for a period of (3) three months for the offence punishable U/sec.138 of N.I.Act.
The Bail bond of the accused stands cancelled.18 C.C.No.16265/2019 J
Office is directed to furnish free certified copy of this judgment to the Accused incompliance of Sec.363(1) of Cr.P.C.
(Directly dictated to the Stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open Court on this the 25th day of October 2019).
(SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri.G.Santhosh Kumar;
2. List of documents exhibited on behalf of the Complainant:-
Ex.P-1 : Original Cheque; Ex.P-1(a) : Signature of the Accused; Ex.P-2 & P-3 : Bank Memos; Ex.P-5 : Office copy of legal notice; Ex.P-5 : Postal Receipt; Ex.P-6 ; Complaint to the postal department; Ex.P-7 : Track Consignment; Ex.P-8 : Complaint; Ex.P.8(a) : Signature of the complainant.
3. List of witness/s examined on behalf of the Accused:-
-Nil -19 C.C.No.16265/2019 J
4. List of documents exhibited on behalf of the Accused:-
-Nil -
(SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.20 C.C.No.16265/2019 J
25.10.2019 Judgment pronounced in the open court vide separate order.
ORDER Acting U/sec.264 of Cr.P.C. the accused is convicted for the offence punishable U/sec.138 of Negotiable Instruments Act.
The accused is sentenced to pay a fine of Rs.10,00,000/= (Rupees Ten Lakhs only) .
Out of the said amount of Rs.
Rs.10,00,000/= (Rupees Ten Lakhs only) the Accused has already paid a sum of Rs.4 Lakhs to the complainant and today the Accused has paid Rs.50,000/= by way of cash and Rs.1,50,000/= by way of cheque dated: 23.10.2019 drawn on Axis Bank, Devanahalli Branch, Bengaluru to the complainant and the Accused shall pay the balance amount of Rs.4 Lakhs by way of two installments i.e. 1st installment of Rs.2 Lakhs on or before 15.11.2019 and 2nd installment of Rs.2 Lakhs on or before 15.12.2019 to the complainant.
The Joint Memo filed by the complainant and the accused shall form part and parcel of this order.
In default the Accused shall under go simple imprisonment for a period of (3) three months for the offence punishable U/sec.138 of N.I.Act.
21 C.C.No.16265/2019 JThe Bail bond of the accused stands cancelled.
Office is directed to furnish free certified copy of this judgment to the Accused incompliance of Sec.363(1) of Cr.P.C.
XVI ACMM, B'luru.