Bangalore District Court
Sri. Naveen Kumar vs Sri. Manjunath.N on 12 August, 2015
IN THE COURT OF THE XVIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BANGALORE
DATED : THIS THE 12TH DAY OF AUGUST 2015
PRESENT: LAKSHMINARAYANA BHAT.K., B.A., LL.B.
XVIII ADDL.C.M.M., BANGALORE
C.C.NO: 12068/2013
Complainant: Sri. Naveen Kumar,
S/o. K.R.Veeranna,
Aged about 29 years,
Address: V.L.Tech,
No:S-3, Pete Narasimaiah Industrial
Estate, S.R.S. Road,
Peenya,
Bangalore-560 058.
(Represented by Ms. Usha.K.,
Advocate)
V/s.
Accused : Sri. Manjunath.N.,
S/o. Nanjamari,
Aged about 26 years,
Residing at No: 48, (E 336),
Sri. Lakshmi Narasimha Swamy
Nilaya, 1st Cross,
Abbigere,
Shetty Halli, Ward No.12,
Near Kempe Gowda Garden,
Bangalore-560 015.
(Represented by Sri.Aditya.S.Kumar.,
Advocate)
Offence complained of: U/s.138 of N.I.Act
Plea of accused: Pleaded not guilty
Final order Accused is found guilty
Date of order: 12/08/2015
2 CC.No:12068/2013
JUDGMENT
The complaint was filed against the accused for the offence punishable under Section 138 of Negotiable Instruments Act (hereinafter in short referred as N.I. Act.).
2. After filing of the complaint, cognizance of the offence was taken. After recording sworn statement in pursuance of summons, presence of the accused was secured and he was enlarged on bail. The substance of accusation was recorded and the accused pleaded not guilty.
3. To prove the complaint averments, the complainant was examined as P.W.1 and has produced documents marked as per Ex.P.1 to Ex.P.7. The statement of the accused under Section 313 of Cr.P.C was recorded. The accused entered his defence and was examined as D.W.1. He has not produced any documentary evidence. The father of the accused was examined as D.W.2.
4. Heard the arguments. The learned Advocate appearing for the parties have filed memorandum of written arguments. The learned Advocate appearing for the accused has placed reliance on following reported Judgments.
(1) 2005 Crl.L.J. 576 in Amaravathi Chits Investments V/s.
T.M.Vaidyanathan.
3 CC.No:12068/2013(2) 2005(1) DCR 175 in Kunjamma Cheriyan V/s. Soloman. (3) 2007, 2 Supreme Court Cases 258 in Kalyani Baskar (Mrs.) V/s. M.S.Sampoornam (Mrs.).
(4) 2002 DCR 221 in Ryam Commerce & Plantation Ltd V/s. Motilal Baid and another.
(6) 1996(4) Crimes 522 in Kuruvilla V/s. Sivarama Pillai. (7) 2014(133) AIC 582 (Ker.H.C.) in Purushothaman Nair V/s. Sreekantan Nair.
(8) 2014(3) DCR 462 in K.Yashoda V/s. K.Venkatesh. (9) 2012(1) AIR Kar. R 718 in M.B.Rajasekhar V/s. Savithramma.
(11) Decision in M.A.Nachimuthu V/s. Thiru N Ravichandran as reported in MADLJ (Crl) 2007.
(12) 2013(3) DCR 120 in M/s. Sekhon and Sekhon Finance V/s. Rani.
(13) 2012(2) DCR 724 in Niraj V/s. Ramesh Pratap Singh @ Raju Singh.
(14) 2010(2) DCR 39 in Mr. Antony Francis D'Souza V/s. Mr. Shitakant Salgaonkar.
(15) 2006 Crl.L.J. 2643 in Laxminivas Agarwal V/s. Andhra Semi Conductors Pvt Ltd., Hyderabad and others. (16) 2013(2) DCR 427 in M/s. Aswin Papers V/s.
B.G.Kalathil.
(17) 2003(1) DCR 146 in C.Antony V/s. K.G.Raghavan Nair.
(12) 2013(1) DCR 270 in Kapadvanj People Co-Operative Bank Ltd V/s. Jayantibhai Talasaji Marawadi and another.
(13) 2015 AIR SCW 64 in K.Subramani V/s. K.Damodara Naidu.
4 CC.No:12068/2013
(14) 2012(92) DCR 94 in Dilipbhai Chimanbhai Patel V/s. Haji Shabbirbhai Hasanbhai Vora.
(15) Decision reported by SC in Crl.Appeal No:257/2000.
5. After analyzing the averments made in the complaint, oral and documentary evidence placed on record and after hearing the arguments, at this stage the points that arise for my determination are:-
1) Whether the complainant has proved in the month of February 2012 he had advanced hand loan of Rs.3,50,000/- to the accused and Ex.P.1 cheque issued in discharge of the said debt was dishonoured and even after service of notice, the accused had failed to pay the amount and thereby he is guilty of the offence punishable under Section 138 of N.I.Act?
2) What order?
6. My findings on the aforesaid points are as under:-
POINT NO.1 : Partly in the affirmative, POINT NO.2 : As per final order, for the following:-
REASONS
7. POINT NO.1:- As per the complaint averments, the accused is known to the complainant on account of his business with A-Mat company. The complainant claimed he was supplying materials to A-Mat company in which the accused was the employee. In February 2012 the 5 CC.No:12068/2013 accused alleged to have borrowed a sum of Rs.3,50,000/- from the complainant to meet his marriage expenses. He had assured to repay the said amount to the complainant before April 2012. It is submitted the accused did not make repayment of the said amount as assured by him. In December 2012 the accused in discharge of the said debt issued a cheque in favour of the complainant dated 3/12/2012 for Rs.3,50,000/- drawn on State Bank of India, Peenya Industrial Area Branch, Bangalore. The complainant presented the said cheque but as per memo dated 4/12/2012 it was returned unpaid with an endorsement "Drawers signature differs". It is stated again the complainant has presented the said cheque, but as per memo dated 26/12/2012 and 31/1/2013 it was returned unpaid with endorsements "Payment stopped by the drawer". Thereafter, the complainant had issued legal notice dated 21/2/2013 calling upon the accused to make payment of the cheque amount. After service of the notice, the accused appears to have issued an untenable reply. The complainant in his affidavit filed in lieu of examination-in-chief deposed as per the averments made in the complaint.
8. The accused in his defence evidence denied in the month of February 2012 he had borrowed loan of Rs.3,50,000/- from the complainant or in discharge of the said debt issued Ex.P.1 cheque in his favour. As per his allegations, the complainant is a professional money 6 CC.No:12068/2013 lender doing money lending as business. The accused has specifically admitted in the month of January 2012 he had borrowed a sum of Rs.30,000/- from the complainant and repaid the said amount in February 2012. He further admitted did not make payment of interest on the said amount. According to the accused, the complainant had charged interest on the aforesaid loan of Rs.30,000/- at the rate of 30% per annum. It is admitted Ex.P.1 cheque relates to the Bank account of the accused and his signature appearing in the said cheque. He has denied the date, name of the payee and amount in words and figures are not filled in his hand writing. For the aforesaid reasons the accused has disputed his liability to make payment of the cheque amount to the complainant. Accordingly, he has prayed for dismissal of the complaint.
9. The complainant and accused are acquainted with each other is undisputed. The accused has admitted he had borrowed a sum of Rs.30,000/- from the complainant in the month of January 2012 and in connection with the said loan transaction deposited Ex.P.1 signed blank cheque as a security for the transaction. In order to prove in the month of February 2012 the complainant claimed to have advanced Rs.3,50,000/- hand loan to the accused, he has not produced any documentary evidence. The accused specifically denied borrowed Rs.3,50,000/- from the complainant. Therefore, it is the burden of the complainant to prove advancement of loan of Rs.3,50,000/- to the 7 CC.No:12068/2013 accused in the month of January 2012 as alleged in the complaint. The complainant in Ex.P.5 statutory demand notice, complaint averments or in the affidavit filed in lieu of his examination-in-chief has not disclosed the date of advancement of loan in the month of February 2012. P.W.1 during his cross-examination admitted he is not remembering the date of advancement of loan. Therefore, except the interested testimony of P.W.1 regarding the passing of consideration of Rs.3,50,000/- in the month of February 2012 in favour of the accused, there is no other documentary or oral evidence produced.
10. During cross-examination of P.W.1, the accused has challenged the source of income of the complainant and how he had mobilized huge amount of Rs.3,50,000/-. As per the evidence of the complainant, he was keeping the said amount of Rs.3,50,000/- in his house 2-3 months prior to the date of advancement of loan is unbelievable. The complainant has further admitted he had not withdrawn the said amount from his Bank account. Therefore, the question arises is whether any prudent man will retain cash of Rs.3,50,000/- in his house that too for a period of 2-3 months is highly improbable. As per the evidence of the complainant, in the year 2011-12 there was a profit of Rs.6 Lakhs per annum in his business. In this regard also the complainant had not produced any documents. The accused specifically alleged the complainant for his wrongful gain filled 8 CC.No:12068/2013 Ex.P.1 blank signed cheque for an imaginary sum of Rs.3,50,000/-, presented for encashment and filed a false complaint. The accused has claimed in the month of January 2012 he had borrowed Rs.30,000/- from the complainant and repaid the said amount in the month of February 2012. In support of the aforesaid defence also the accused has not produced any documentary evidence. During cross-examination, D.W.1 specifically admitted there is no proof available with him regarding he had borrowed Rs.30,000/- loan or regarding repayment of the said amount. The accused claimed he had repaid the principal loan amount of Rs.30,000/- to the complainant but did not make payment of interest. According to the accused, the complainant is a money lender and advanced Rs.30,000/- with interest thereon at 30% per annum. During cross-examination, P.W.1 has specifically admitted in Ex.P.1 cheque there is difference in ink in the writings of signature and other contents filled in the cheque. Therefore, the complainant got filled the blank cheque cannot be totally ruled out.
11. Ex.P.1 cheque is dated 3/12/2012 issued in favour of the complainant for Rs.3,50,000/- drawn on State Bank of India, Peenya Industrial Area Branch, Bangalore. The complainant claimed in the month of February 2012 the accused had borrowed loan and promised to repay the said amount within April 2012. As per Ex.P.5 statutory notice, complaint allegations and Para No:4 of the affidavit evidence of P.W.1 9 CC.No:12068/2013 filed in lieu of his examination-in-chief, in the month of December 2012 the accused had issued Ex.P.1 cheque in favour of the complainant. Therefore, as per the admitted case, from February 2012 date of advancement of loan till December 2012 the accused appears to have issued Ex.P.1 cheque in favour of the complainant he was not having any documents in proof of advancement of loan of Rs.3,50,000/-. The above evidence that the complainant without getting executed any documents from the accused had advanced Rs.3,50,000/- for more than 10 months is highly improbable and unbelievable. Even Ex.P.1 cheque amount not includes interest on the loan amount of Rs.3,50,000/- from February 2012 till the date of cheque 3/12/2012. This is one of the strong circumstances to suspect the complaint alleged loan transaction. The complainant during his cross-examination contrary to the aforesaid contention has deposed after 15-20 days from the date of advancement of loan he had obtained Ex.P.1 cheque from the accused. Therefore, Ex.P.1 cheque appears to be in the custody of the complainant probably in the month of February or March 2012. If so, why the complainant was keeping the said cheque till 3/12/2012 is also not properly and satisfactorily explained. In the above circumstances, the complaint averments, evidence of P.W.1 as deposed in his affidavit and contents of Ex.P.5 statutory demand notice are inconsistent with one another. In the above circumstances, in the month of December 2012 the 10 CC.No:12068/2013 complainant filled Ex.P.1 cheque for Rs.3,50,000/- and presented for encashment is more probable.
12. According to the accused, in January 2012 he had borrowed Rs.30,000/- from the complainant as hand loan and at that time the complainant had obtained Ex.P.1 blank signed cheque. In this case the accused has not produced cheque book record slip or Bank passbook or account extract to substantiate his contention. As per Ex.P.2 memo produced by the complainant, Ex.P.1 cheque came to be dishonoured with an endorsement "Drawers signature differs". As per Ex.P.3 and Ex.P.4 memo dated 26/12/2012 and 31/1/2013 issued by the Bank, on subsequent presentation of the cheque on second and third time, it was returned unpaid with endorsements "Payment stopped by the drawer". The accused has not produced copy of the letter given to the Bank and the reason stated in the said letter why he had given such instruction. The complainant has not questioned this fact during cross-examination of the accused. After receipt of Ex.P.5 statutory demand notice sent on behalf of the complainant, the accused got issued Ex.P.7 reply. The defence of the accused during cross-examination of the complainant and in his oral evidence is consistent with the contention taken in Ex.P.7 reply. Therefore, the accused has made use of the earliest opportunity available for him to put forward his contention denying the complaint allegations is prima facie made out from the evidence placed on record. 11 CC.No:12068/2013 Therefore, from the admitted case of the accused, in the month of January 2012 he had borrowed Rs.30,000/- hand loan from the complainant is proved. He has failed to prove he had repaid the said amount in the month of February 2012 as contended in his evidence.
13. As per Section 139 of N.I. Act, there is a presumption in favour of the complainant that unless the contrary is proved Court shall presume that the cheque had been issued in discharge of any debt or liability. The accused in his defence specifically admitted borrowed Rs.30,000/- from the complainant and repaid the said amount. In support of the aforesaid discharge of the debt, the accused has not produced any documentary evidence. Even from the month of March 2012 till sending Ex.P.7 reply on 4/3/2013, the accused did not take any legal action against the complainant by sending notice or he had called upon him to return the said cheque deposited as a security with the complainant. Therefore, the evidence of the accused that he had repaid Rs.30,000/- to the complainant is to be rejected. As per Section 58 of Indian Evidence Act, facts admitted need not be proved. The complainant from the documentary and oral evidence placed on record has failed to prove advancement of loan of Rs.3,50,000/- and passing of said amount in favour of the accused. After considering the facts and circumstances of the case on hand and evidence on record and from the admitted case of the accused, the complainant has proved advancement 12 CC.No:12068/2013 of Rs.30,000/- to the accused and in discharge of the said debt the accused had issued Ex.P.1 cheque in his favour. Hence, for the aforesaid reasons my findings on Point No.1 is partly in the affirmative.
14. POINT NO.2:- In view of my findings on Point No.1., the accused is liable to be convicted for the offence punishable under Section 138 of N.I. Act. Since the complainant has failed to prove advancement of loan of Rs.3,50,000/-, out of the fine amount he is entitled for fine amount only to the extent of transaction admitted by the accused. In the result, I proceed to pass the following:-
ORDER Acting under Section 255 (2) of Cr.P.C, accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act 1881. He is sentenced to pay fine of Rs.50,000/- (Rupees Fifty Thousand Only) and in default shall undergo simple imprisonment for 3 (Three) months.
Acting under Section 357 (1) (b) of Cr.P.C, out of the fine amount the complainant is entitled for Rs.45,000/- (Rupees Forty Five Thousand Only) as compensation.
Acting under Section 357 (1) (a) of Cr.P.C, the balance amount of Rs.5,000/- (Rupees Five Thousand Only) is defrayed to the State for the 13 CC.No:12068/2013 expenses incurred in the prosecution.
(Dictated to the Stenographer, transcribed by her, corrected, revised and signed then pronounced by me in the open court on this the 12th day of August 2015).
(LAKSHMINARAYANA BHAT.K) XVIII A.C.M.M., BANGALORE.
ANNEXURE
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : Sri. Naveen Kumar.
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1 : Cheque No:133097 dated 3/12/2012 for Rs.3,50,000/-.
Ex.P.1(a) : Signature of the accused. Ex.P.2 to 4 : 3 Bank endorsements. Ex.P.5 : Office copy of demand notice. Ex.P.6 : Postal receipt. Ex.P.7 : Reply notice.
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:-
D.W.1 : Sri. Manjunath.N.
D.W.2 : Sri. Nanjamari.M.
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED: -
- Nil -
(LAKSHMINARAYANA BHAT.K)
XVIII A.C.M.M., BANGALORE.
14 CC.No:12068/2013
(Judgment pronounced in Open Court vide a separate Order) ORDER Acting under Section 255 (2) of Cr.P.C, accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act 1881. He is sentenced to pay fine of Rs.50,000/- (Rupees Fifty Thousand Only) and in default shall undergo simple imprisonment for 3 (Three) months.
Acting under Section 357 (1) (b) of Cr.P.C, out of the fine amount the complainant is entitled for Rs.45,000/- (Rupees Forty Five Thousand Only) as compensation.
Acting under Section 357 (1) (a) of Cr.P.C, the balance amount of Rs.5,000/- (Rupees Five Thousand Only) is defrayed to the State for the expenses incurred in the prosecution.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
XVIII A.C.M.M., BANGALORE.