Bangalore District Court
Sri. K.L. Amarnath vs Sri. Rajesh Gopal on 3 February, 2015
IN THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY
Dated this the 3rd day of February, 2015
PRESENT: SMT. ISHRATH JAHAN ARA, B.A.L., L.L.B.,
XIX ADDL.C.M.M.BANGALORE.
Case No: CC No. 8167/2012
Complainant: Sri. K.L. Amarnath
S/o. Lakshminarayan,
Aged about 48 years,
R/at No.44, 10th Main,
13th Cross, Malleshwaram,
Bangalore - 560 003.
Accused: Sri. Rajesh Gopal
S/o. Late V.B. Gopal,
Aged about 37 years,
R/at No.31/9, Hennur Cross,
Hennur Main Road,
Next to Crown Plaza Hotel,
Bangalore -560 043.
Offence complained of: U/s.138 of N.I.Act
Plea of accused: Pleaded not guilty
Opinion of the Judge Accused found guilty
Date of order: 3rd February 2015
JUDGMENT
The complainant has filed this complaint U/s.200 of Cr.P.C. against the accused for the offence punishable U/s. 138 of N.I. Act. 2 C.C.No. 8167/2012
2. The brief facts of the complaint that, the Complainant stated that the accused had approached him for the hand loan of Rs.15,00,000/- for his legal necessity and he had borrowed a hand loan of Rs.15,00,000/- on 5.8.2009. The Accused towards the clearance of his liability and towards the part payment, had issued a cheque bearing No.482937 for a sum of Rs.1,00,000/- dated 20/8/2011 drawn at Andhra Bank, Cooke Town branch, Bangalore with a request to present the said cheque for encashment.
3. It is further submitted by the Complainant that he Complainant presented the said cheque before his banker Vijaya Bank, Sampige Road, Bangalore for encashment. But the said cheque returned dishonoured with "Account Closed" on 22/8/2011 and the same was informed to this Accused. As the Accused has failed to make payment of the cheque amount, the Complainant got issued the Legal Notice on 8/9/2011 through RPAD calling upon the Accused to make payment of the cheque amount within 15 days from the date of receipt of notice and the said notice was duly served on this Accused on 14/9/2011. The Accused even inspite of receipt of Legal Notice neither chosen to payment of the cheque amount nor he has replied the notice. The Accused knowing fully well that his Account has already been closed with an intention to make wrongful 3 C.C.No. 8167/2012 loss to this Complainant and also to make an illegal gain for himself had issued bogus cheque and thereby, the Accused has committed an offence punishable u/Sec.138 of N.I. Act.
4. After recording of sworn statement of the complainant the private complaint lodged by the complainant was registered as a criminal case, summons was issued as against the accused. The accused appeared through his counsel and he was enlarged on bail. Plea of accusation was read over to the accused. The accused pleaded not guilty and claimed to be tried.
5. The complainant himself got examined as PW1 and he got produced 5 documents marked as Ex.P1 to Ex.P5 and closed his side of evidence.
6. After closure of the complainant side evidence, accused Statement u/Sec.313 Cr.P.C. recorded. The accused denied the incriminating evidence in toto and he has not lead any evidence from his side.
7. I Have heard the arguments on the both sides. I have perused the entire records.
8. The only point arise for my consideration is:
4 C.C.No. 8167/2012
1. Whether the Complainant has proved the guilt of the accused u/s 138 of NI Act beyond all reasonable doubts?
2. What order?
9. My findings to the above point are as under:
Point No.1 : In the Affirmative
Point No.2 : As per final order
for the following:
REASONS:
10. Point No.1: The entire burden is on the complainant to prove his case and also to prove the above point. In order to prove the same, the complainant stepped into the witness box, got examined as PW-1 and he filed his affidavit in lieu of the oral evidence by reiterating the complaint averments.
11. PW1 deposed that the Accused approached him for the hand loan of Rs.15,00,000/- and he had advanced the hand loan of Rs.15,00,000/- to this Accused on 5/8/2009. He deposed that the Accused towards the part payment of the loan amount, had issued a cheque bearing No.482937, dtd. 20/8/2011 for Rs.1,00,000/- drawn on Andhra Bank, Cooke Town Branch, Bangalore with a request to present the said cheque for encashment.
5 C.C.No. 8167/2012
12. He further deposed that he presented the said cheque before his banker for encashment. But the said cheque returned dishonoured with an endorsement "Account closed" on 22/8/2011 and the same was informed to this Accused. He further deposed that as the Accused has failed to make payment of the cheque amount, on 8/9/2011 he got issued the Legal Notice through RPAD calling upon the Accused to make payment of the cheque amount within 15 days from the date of receipt of notice and the said notice was duly served upon this Accused on 14/9/2011. He deposed that even inspite of receipt of Legal Notice has neither chosen to make payment of the cheque amount nor he has replied the notice by denying the transaction. He deposed that the Accused intentionally issued the cheque in his favour knowing fully well that his account has already been closed only with an intention to cause a wrongful loss to him and also to make an illegal gain for himself and thereby he has committed an offence.
13. PW1 in order to prove his case got produced the original cheque issued by this accused marked as Ex.P1. He deposed that the signature found on Ex.P1 is that of this accused and he got identified the signature found on the cheque marked as Ex.P1(a). He got produced the bank endorsement marked as Ex.P2. He got produced 6 C.C.No. 8167/2012 copy of the legal notice marked as Ex.P3. He got produced the postal acknowledgement due card for having served the notice to this Accused marked as Ex.P4. He got identified the complaint marked as Ex.P.5 and his signature on the complaint marked as Ex.P5(a).
14. The Accused has denied the entire case of the Complainant and denied very fact that he had borrowed a total hand loan of Rs.15,00,000/- from this Complainant and towards the part payment of the loan amount, had issued the cheque in favour of this Complainant and the same was bounced. The Learned Counsel for the Accused subjected PW1 for cross-examination and he extensively cross-examined the PW1.
15. The PW1 in his cross-examination stated that he has not obtained any documents from this Accused towards the security of the loan amount of Rs.15,00,000/-. He denied the suggestion that he has not disclosed when exactly the Accused had issued a cheque in his favour towards the repayment of the loan amount in his complaint averments as well as in his affidavit. PW1 in his cross- examination sated that he is running a business of "Home Appliances" by having a show room and he is an income tax assessee. Though he stated that he has not disclosed the 7 C.C.No. 8167/2012 advancement of loan to this Accused in his income tax returns. He further admitted that he is having a bank account in his name and he had no difficulty to advance the loan amount in favour of this Accused through cheque. On the contrary, he admitted the suggestion that his wife had lodged a police complaint against this Accused before Yeshwanthpura Police on 18.10.2010 and subsequently, the Yeshwanthpura Police registered the said case in C.C. No.34769/2011 and the said case is pending adjudication.
16. PW1 categorically denied the suggestion that there was no any loan transaction in between him with this Accused and even this Accused has not borrowed any loan from him. He denied the suggestion that based on a false case registered by his wife against this Accused before Yeshwanthpura Police, he has forcefully obtained duly signed blank cheque from this Accused and subsequently, he along with his wife, misused the said duly signed blank cheques and filed different cases against this Accused. He has categorically denied the suggestion that he has no financial capacity to advance a huge hand loan of Rs.15,00,000/- to this Accused. Though PW1 in his cross-examination categorically admitted the suggestion that in a proceedings registered in C.C.34769/2009 he has 8 C.C.No. 8167/2012 given his evidence before the court by stating that his wife has advanced the entire loan amount of Rs.15,00,000/- to this Accused. On the contrary, he has categorically denied the suggestion that his wife had advanced the entire loan amount of Rs.15,00,000/- to this Accused and there was no any loan transaction in between him with this Accused.
17. PW1 in his further cross-examination stated that the Accused after receipt of the loan amount of Rs.15,00,000/- had executed a loan document in his favour but he is not remembered whether the said document produced by him before this court. PW1 has categorically denied the suggestion that he himself has written all the contents of Ex.P.1 for his convenience and filed this false complaint against this Accused with an intention to make a wrongful gain. Though much has been put to PW1 during the cross- examination, by denying the loan transaction and also by denying the issuance of cheque towards the repayment of the loan amount.
18. On the contrary, PW1 has categorically denied the entire suggestions put to him and denied that he has misused the cheque belong to this Accused and he by colluding with his wife, created the said cheques and filed different cases against this Accused. Though 9 C.C.No. 8167/2012 the Accused has denied the issuance of cheques towards the repayment of the loan amount in favour of this PW1. On the contrary, the Accused has categorically admitted that he himself has issued cheques in favour of this Complainant. A suggestion was put to PW1 that the Accused had issued totally three cheques in his favour. The said suggestion was admitted by the PW1. Though PW1 has stated that he is not aware whether his wife had lodged a complaint against this Accused prior to date, he received the cheques from this Accused.
19. On the contrary, As I have discussed supra, the Accused has admitted the issuance of cheques in favour of this Complainant. The Accused has also admitted that Ex.P.1 cheque is belong to him. The Accused even did not chosen to deny his signature found on Ex.P.1 marked as Ex.P.1(a). The Accused even did not chosen to deny a fact that his Ex.P.1 cheque was bounced for the reason "Account closed". No doubt, the Accused has taken up the specific defence that he had borrowed hand loan of Rs.1,00,000/- from this Complainant and towards the security of the said loan amount, he had issued duly signed blank cheque in favour of this Complainant and subsequently, the Complainant was misused his duly signed 10 C.C.No. 8167/2012 blank cheque and created the same as Ex.P.1 and filed this false complaint. Though the said defence was put to him by PW1 during his cross-examination by suggesting that he had advanced only Rs.1,00,000/- to this Accused as a hand loan and towards the security of the loan amount, he had collected duly signed blank cheque from this Accused.
20. On the contrary, PW1 in his cross-examination has categorically denied the entire suggestion put to him and denied the suggestion that he has misused the duly signed blank cheque issued by this Accused towards security of the loan amount of Rs.1,00,000/- and created the same as Ex.P1. PW1 further denied the suggestion that the Accused is not liable to pay cheque amount disclosed in Ex.P.1. Though the Accused has denied the fact that the contents of Ex.P.1 were not that of him and he has not written the contents of cheque. On the contrary, the Accused has failed to convince this court that the Complainant himself for his convenience, written all the contents of the cheque by misusing his duly signed blank cheque.
21. The Accused even did not chosen to deny the issuance of Ex.P.3 notice and even he did not chosen to deny a fact that he has personally received the notice issued as per Ex.P3. On the contrary, 11 C.C.No. 8167/2012 the PW1 has categorically deposed that he immediately after receipt of Ex.P.2 Bank endorsement, within the statutory period of limitation, got issued Ex.P.3 notice calling upon the Accused to make payment of the cheque amount and the same was duly served upon the Accused on 14.9.2011. PW1 further deposed that the Accused even inspite of receipt of Legal Notice neither chosen to make payment of the cheque amount nor he has sent his reply by denying the transaction. Even these facts were denied by the Accused. No suggestion was put to PW1 by denying the issuance of Ex.P3 notice and also by denying the contents of notice along with receipt of the notice.
22. Ex.P3 and Ex.P.4 documents clearly proves that the notice issued u/Sec.138 (b) of N.I. Act was duly served upon this Accused and this Accused even inspite of Legal Notice neither chosen to make payment of the cheque amount nor he has replied the notice. In such situation, an adverse inference can be drawn against this Accused after receipt of the notice and admitting the contents of the notice did not resist the claim of the Complainant by sending his reply. The Accused after admitting contents of Ex.P.3 notice, kept quite without denying the transaction and even without complying the notice by paying the cheque amount. The oral and documentary evidence 12 C.C.No. 8167/2012 adduced by the Complainant before this court clearly proves that the Accused after receipt of the Legal Notice did not chosen to resist the claim of the Complainant by denying the contents of notice.
23. Admittedly, the burden is on this Accused to rebut the case of the Complainant and also to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act. The burden is on this Accused to prove that he had borrowed a hand loan of Rs.1,00,000/- from this Complainant and towards the security of the loan amount, he had issued his duly signed blank cheque in favour of this Complainant and this Complainant has demanded his duly signed blank cheque towards the security of the loan amount. The Accused in order to prove his defence has not chosen to produce any piece of evidence before this court except cross-examining PW1 by putting some suggestion to him, which has been categorically denied by the PW1. The Accused has utterly failed to elicit any fruitful information from the mouth of PW1 to disbelieve his testimony or to discard his evidence.
24. The Accused during the cross-examination of PW1 except suggesting his defence that he had borrowed only Rs.1,00,000/- from this Complainant and towards the security of the said loan amount, 13 C.C.No. 8167/2012 he had issued his duly signed blank cheque and subsequently, the Complainant misused his duly signed blank cheque and created the same as Ex.P.1, has not chosen to prove the same by adducing cogent and convincing evidence before this court. There is nothing on record to believe that Ex.P.1 blank cheque was issued towards the security of the loan amount of Rs.1,00,000/- by this Accused in favour of this PW1. There is no evidence from the side of this Accused to believe his defence.
25. In such situation, without any evidence before this court, it is not possible to believe the defence of the Accused that he had issued his duly signed blank cheque towards the security of the loan amount of Rs.1,00,000/-. Even when this Accused was questioned u/Sec.313 Cr.P.C. by this court, the Accused except denying the incriminating evidence deposed against him by PW1, has not put forth any defence and even he has not stated that he has initiated any legal action against this Complainant for misusing his blank cheque even though he had his duly signed blank cheque towards security of the loan amount of Rs.1,00,000/-. This clearly establishes that the Accused only with an intention to ran away from his liability to pay the cheque amount, has taken up the false defence that he has 14 C.C.No. 8167/2012 taken only Rs.1,00,000/- loan from this Complainant and towards the security of the loan amount, he had issued his blank cheque. The Accused has utterly failed to rebut the presumption available to this Complainant u/Sec.118 and also u/Sec. 139 of N.I. Act it reads thus respectively.
26. As per the provisions of Sec.118, which reads thus:
a. Of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
b. As to date - that every negotiable instrument bearing a date was made or drawn on such date; c. As to time of acceptance - that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; d. As to time of transfer - that every transfer of a negotiable instrument was made before its maturity;
e. As to order of endorsements - that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
f. As to stamps - that a lost promissory note, bill of exchange or cheque was duly stamped; g. That holder is a holder in due course - that the holder of a negotiable instrument is a holder in due course;
Like wise he also failed to rebut the presumption available u/s. 139 of N.I. Act which reads:15 C.C.No. 8167/2012
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.
27. There is no evidence from the side of this Accused to disbelieve the testimony of PW1 or to discard the case of the Complainant. The Learned Counsel for the Accused has vehemently argued that the complaint filed by the Complainant is not maintainable and this Complainant has not proved the existence of debt of other liability as on date of cheque, even though the entire burden is on him to prove the existence of debt or other liability. He argued that the Accused need not prove his defence beyond all reasonable doubts by leading his evidence before this court. He argued that the Accused can very well rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act, by eliciting the facts during the cross-examination of PW1.
28. He further agued that there are lot of contradictions and omissions in the testimony of PW1, which leads to create a doubt about the loan transaction and also about the advancement of huge 16 C.C.No. 8167/2012 loan amount of Rs.15,00,000/-. He argued that the wife of this Complainant in another case filed by her stated that she had advanced the entire loan amount of Rs.15,00,000/- to this Accused and this Complainant has also stated that he advanced the hand loan of Rs.15,00,000/- to this Accused, which is contrary to each other and also which creates a doubt about the loan transaction. He argued that the Complainant by misusing the duly signed blank cheque issued by this Accused towards the security of the loan amount of Rs.1,00,000/-, created the same as Ex.P.1 and filed this false complaint and hence by taking all these facts and circumstances, the Accused has to be acquitted. The Learned Counsel for the Accused in support of his arguments has relied on the judgments reported in ILR 2007 KAR 2709 between M. Senguttuvan vs. Mahadevaswamy wherein it is held that;
"Presumption u/Sec. 139 of N.I. Act need not be rebutted only by leading defence evidence and the said presumptions can be rebutted even on the basis of the facts elicited in the cross-examination of the Complainant. Acquittal of the Accused is justified".
2008 AIR SCW 738 between Krishna Janardhan Bhat Vs. Datttraya G. Hegde wherein it is held that;
"Accused not required to step into witness-box to prove his defence. He may discharge his burden on 17 C.C.No. 8167/2012 the basis of materials already brought on record - Question whether statutory presumption rebutted or not - Must be determined in view of other evidences on record."
2001 CRI. L.J. 745 (karnataka High Court) between B.P. Venkatesulu vs. K.p. Mani Nayar wherein it is held that;
"Material Legal infirmities in Complainant's story effectively displaces and successfully rebuts the presumption u/Sec.139 available in favour of existence of debt or liability against Accused - No other evidence brought on record by Complainant in independent proof of the fact of the said loan transaction between him and Accused - Acquittal of Accused is proper."
2014 AIR SCW 2158 John K. Abraham vs. Simon C. Abraham and another wherein it is held that;
"For drawing presumption u/Sec.118 r/w 139 of N.I. Act, the burden is heavily upon the Complainant - Complainant not sure as to who wrote cheque nor aware as to when and where existing transaction took place for which cheque was issued by the Accused. Defects in evidence of Complainant leads to an acquittal."
ILR 2009 KAR 172 between A. Viswanatha Pai Vs. Sri. Vivekananda S. Bhat wherein it is held that;
"Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act; as, Section 139 merely raises a presumption in favour of the Complainant that the Accused as issued for discharge of any debt and other liability."
ILR 2008 KAR 4629 between Shiva Murthy Vs. Amruthraj wherein it is held that;
18 C.C.No. 8167/2012
"Before considering the conduct of the Accused to find out as to whether or not he has been able to rebut the Statutory Presumption available under Section 139, the Court ought to have considered as to whether the Complainant has proved the existence of legally enforceable debt. It is only after satisfying that the Complainant has proved existence of legally enforceable debt or liability, the courts ought to have proceeded to draw presumption u/Sec. 139 of N.I. Act and thereafter find out as to whether or not the Accused has rebutted the presumption."
29. The arguments canvassed by the Learned Counsel for the Accused along with the judgment relied by the Learned Counsel for the Accused in support of his arguments is not convinced this court and it cannot be accepted.
30. Here in this case, the Accused has taken up the specific defence that he had borrowed only Rs.1,00,000/- from this Complainant and towards the security of the loan amount, he had issued his duly signed blank cheque. In such situation, the burden is heavily on this Accused to prove his defence and also to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act.
31. As I have discussed supra, the Accused has not proved his defence to the satisfaction of the court nor he has rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act. In 19 C.C.No. 8167/2012 such situation, the arguments canvassed by the Learned Counsel for the Accused is not convinced this court and it holds no merit.
32. On the contrary, the learned Counsel for the Complainant has vehemently argued that the Complainant before filing of this complaint followed all the procedures prescribed u/sec.138 of N.I. Act and this Accused even after receipt of Legal Notice neither chosen to make payment of the cheque amount nor he has replied the notice by denying the transaction. He has argued that an adverse inference has to be drawn against this Accused that he after admitting the loan transaction and also after admitting issuance of cheques towards repayment of the loan amount, did not resist the claim of the Complainant by sending his reply. The arguments canvassed by the learned Counsel for the Complainant is fully convinced this court. The Accused even inspite of receipt of Legal Notice neither chosen to make payment of the cheque amount nor he has resisted the claim of the Complainant by denying the contents of notice. In such situation, an adverse inference has to be drawn against him that he after receipt of loan amount in order to repay the part payment of the loan amount, had issued the cheque and the same was bounced.
20 C.C.No. 8167/2012
33. The complainant by adducing oral and documentary evidence before this court has proved the guilt of the accused beyond all reasonable doubt. There is no whatsoever doubt in the mind of court about the case of the complainant. The oral and documentary evidence adduced before this court by the complainant is fully corroborating with each other and convinced this court about this case. The complainant by adducing oral and documentary evidence before this court bring home the guilt of the accused beyond all reasonable doubt. Therefore, by taking into consideration the facts and circumstances and evidence available on record, I answer this Point No.1 in affirmative.
34. Point No.2. In view of my findings on the above point and the reasons stated therein, I proceed to pass the following:
ORDER Acting u/Sec. 255 (2) of Cr.P.C. the accused is hereby convicted for the offence punishable u/Sec. 138 of N.I. Act.
The accused is sentenced to pay a fine of Rs.1,55,000/-(Rupees one lakh and fifty-five thousand only). In any default to pay fine amount shall under go simple imprisonment for 6 months.
Out of fine amount recovered under Section 357 of Cr.P.C. a sum of Rs.1,50,000/- (Rupees one lakh and fifty thousand only) shall be paid to the complainant which includes the cheque amount and 21 C.C.No. 8167/2012 also cost of the proceedings. Remaining fine amount of Rs.5,000/- shall be forfeited to State.
The bail bond and surety bonds of the accused stands cancelled.
Office to furnish free copy of the judgement to the accused forthwith.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified and then pronounced by me in the Open Court on this the 3rd day of February, 2015) (ISHRATH JAHAN ARA) XIX ADDL.C.M.M. Bangalore ANNEXURE:
Witnesses examined on behalf of the Complainant:
PW.1 Mr. K.L. Amarnath Witnesses examined on behalf of the Accused: Nil 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 Copy of the legal notice
Ex.P.4 Postal acknowledgement due card
Ex.P.5 Complaint
Ex.P.5(a) Signature of the Complainant
Documents marked on behalf of the Accused:
Nil
XIX ACMM, B'lore.
22 C.C.No. 8167/2012