Bangalore District Court
W/O Late Mahaveer Prasad vs Without Realizing That He Is A Cheater. ... on 4 February, 2023
SCCH-2 1 C.C No:5780-2019
KABC020262222019
IN THE COURT OF THE VI ADDL. JUDGE, COURT OF SMALL
CAUSES AND ADDL. CHIEF METROPOLITAN MAGISTRATE,
BENGALURU CITY (SCCH-2).
C.C. NO.5780/2019
Present: Smt. Shainey. K.M. BAL.,LL.B.,
6th Addl. Judge, Court of Small
Causes and ACMM, Bengaluru.
Dated: On this the 4th day of February, 2023.
JUDGMENT U/S 355 OF CR.P.C. 1973.
1. Sl.No. of the Case : C.C. No: 5780 of 2019
2. The date of : 14.10.2019.
commission of the
offence
3. Name of the : Smt. Darshan Devi,
Complainant
W/o Late Mahaveer Prasad,
Aged about 84 years,
Represented by SPA Holder,
Mr. Naresh Kumar,
S/o Late Mahaveer Prasad,
Aged about 62 years.
SCCH-2 2 C.C No:5780-2019
Both residence of
No.1867, 2nd Main,
C Block, Sahakarnagar,
Bengaluru-560 092.
(By Ravi B. Naik Associates, Advocates)
4. Name of the accused : Sri. Lalith Kumar Chavat,
Major by Age,
Sri Ram Jewelers,
No.996/22/2, 4th Cross,
Near SBI Bank, RPC Layout,
Hampi Nagar, Vijayanagar,
Bengaluru-560 104.
(By Sri. Gopal Singh, Advocate)
5. The offence complained : Under Section 138 of the
of or proves Negotiable Instrument Act.
6. Plea of the accused and : Pleaded not guilty.
his examination
7. Final Order : Accused is convicted.
8. Date of such order for : 04.02.2023.
the following
SCCH-2 3 C.C No:5780-2019
:: JUDGMENT ::
This is a complaint against the accused filed under Sec. 200 of Cr. P. C., for the offence punishable under Section 138 of the Negotiable Instruments Act.
02. The brief facts of the complainant's case is as follows:
2.1. Sri. Naresh Kumar is the Power of attorney and son of the complainant. The accused and complainant are known to each other since 15 years and the complainant along with her husband was residing as a tenant in the house belonging to the uncle of the accused at RPC layout, Vijaya Nagar, Bengaluru. The complainant herein is an income tax assessee. She and her husband were in their evening days of their life and the accused used to visit them often and he got very close to them by showing sympathy. The complainant reposed faith in the accused without realizing that he is a cheater. It is contended that accused has requested her for financial assistance to develop the business and borrowed SCCH-2 4 C.C No:5780-2019 Rs.6,60,000/- from complainant. It is contended that accused has agreed to pay an interest at the rate of 2% per annum which he paid initially for a few months only. 2.2. It is contended that after the death of her husband, in the month of April 2017, the complainant started to reside with her son Naresh Kumar. She being an old aged lady, herself and her son demanded for repayment of money. Instead of paying the same, the accused has threatened the complainant and her son with dire consequences and also went to the extent of saying that he would do away with their lives, if they demand the money back and he knows notorious rowdy element. This conduct of the accused put the complainant and her son in panic, state of anguish and without any option they approached the police with a complaint of cheating and criminal intimidation. The police have summoned the accused and thereafter, he tendered apologies to them for his conduct, and admitted his liability to pay a sum of Rs. 6,60,000 and pleaded time for repayment of amount SCCH-2 5 C.C No:5780-2019 in installments, which she had to agree without any option. The accused has issued the following cheques towards discharge of liability.
Cheque Amount Date Branch
number
170073 1,00,000/- 15.02.2019 State bank of India,
RPC layout.
170074 1,00,000/- 15.04.2019 State bank of India,
RPC layout.
170075 1,00,000/- 15.06.2019 State bank of India
RPC layout.
170076 1,00,000/- 15.08.2019 State bank of India,
RPC layout.
170077 1,00,000/- 15.10.2019 State bank of India,
RPC layout.
170078 1,00,000/- 15.12.2019 State bank of India,
RPC layout.
170079 50,000/- 15.02.2020 State bank of India,
RPC layout.
2.3. It is contended that the 1st of the above cheque issued by the accused was duly honored and as such, there is no grievances of the complainant in respect of the cheque bearing no: 1700073 dated 15.02.2019 for a sum of Rs. 1,00,000/-. However, cheque bearing no:
170074 dated 15.04.2019 issued for a sum of Rs.1,00,000/- has been returned unpaid with a banker's SCCH-2 6 C.C No:5780-2019 memo "insufficient Fund" and cheque bearing no: 170075 dated 15.06.2019 has been returned with a banker's memo for a reason stating "payment stopped by drawer".
2.4. It is further contended that cheque bearing no:
170076, dated 15.08.2019 for a sum of Rs. 1,00,000/- was returned by the bank with an endorsement dated 17.08.2019 stating "payment stopped" by the drawer.
Immediately, after receipt of such an endorsement from the banker, the complainant has conveyed the same to the accused and requested him to pay the amount at the earliest, but he neither responded positively nor came forward to repay the debt. That on 12.09.2019, the complainant issued a demand notice to accused through her counsel and same was duly served on the accused. Despite due service of statutory notice, neither accused has replied the notice nor paid the cheque amount. Hence, this complaint.
SCCH-2 7 C.C No:5780-2019
03. On filing of the private complaint, the Court has taken cognizance of the above offence and proceeded with the case as there was ground to proceed against the accused.
04. The accused has put appearance before the court through his counsel, filed bail application, and offered cash surety for appearance before the court and enlarged on bail.
05. The plea of accused was recorded, read over and explained to the accused, for which, he has not pleaded guilty and claimed to be tried.
06. In support of complainant's case, General Power of Attorney of the complainant was examined as Pw:1. Exhibits were marked as Ex-P:1 to 9 and closed the evidence. Ex.P.8 and 9 were marked in cross- examination of D.W.1. Learned counsel for accused has cross examined P.w.1.
07. Statement U/Sec. 313 of Cr.P.C., was recorded and read over, explained to accused and he has denied the SCCH-2 8 C.C No:5780-2019 contents of statement as false. Accused has examined himself as D.W.1. Ex.D.1 to 4 were marked in re- examination of D.W.1.
08. Heard the arguments of complainant and accused. Both parties have filed memo with decisions. Perused the material placed on record, now, following points arises of the consideration for the disposal of the case.
POINTS
1. Whether Complainant proves beyond all reasonable doubt that Accused has committed an offence punishable under Section 138 of Negotiable Instruments Act?
2. Whether accused has rebutted the presumption as contemplated u/sec 139 of N.I Act?
3. What order?
09. My answers to the above points are as follows:
Point no:1 : In the affirmative.
Point no:2: In the negative.
Point no.3: As per final order for the
following:
SCCH-2 9 C.C No:5780-2019
:REASONS:
10. Point No.1 & 2:- This is a private complaint filed
against the accused for the offence punishable under Sec. 138 read with section 142 of NI Act. On perusal of oral and documentary evidence placed by the complainant, it reveals that the present complaint is filed well within time in accordance with the provisions of Negotiable Instruments Act. Moreover, there is no dispute with regard to taking cognizance of the offence punishable under Section 138 of N I Act.
11. At the outset, an essential ingredient of Section 138 of N.I Act is that, the cheque in question must have been issued towards legal liability. Under Section 118 of the Act, a presumption shall be raised regarding consideration, date, transfer, endorsement and regarding holder in the case of Negotiable Instruments. Even under Section 139 of the Act, a rebuttable presumption shall be raised that, the cheque in question was issued regarding discharge of legally enforceable debt. These presumptions are SCCH-2 10 C.C No:5780-2019 mandatory provisions that are required to be raised in case of negotiable instruments.
12. Learned counsel for the accused has relied upon the decisions of hon'ble apex court of Kerala reported in 1) 2001 CRL.LJ 24 Sasseriyil Joseph Vs Devassia. 2) Giridhari Lal RAthi Vs PTV Ramanujachari and Anr reported in 1997 (1) ALT Cri.509. This court has gone through aforesaid decision and aforesaid decisions clarifies that a cheque is issued for a time-barred debt and it is dishonored, the accused cannot be convicted under Sec. 138 of NI Act simply on the ground that the debt was not legally recoverable.
13. In the case on hand, alleged financial transaction in dispute was took place in the year 2015-2016 and the cheque in question was issued in the year 2019. Thus, it is clear that cheque in question was issued by the accused within a period of 3 years from the date of alleged loan transaction. The material placed on record is not sufficient to hold that, the debt is time barred. Moreover, no such SCCH-2 11 C.C No:5780-2019 plea has been raised by the accused that debt is time- barred nor he put such a suggestion to Pw:1 during cross examination. As such, the above quoted decisions are not applicable to the facts on hand.
14. Learned counsel for accused submitted that the cheque was given in the Police Station under duress and coercion , which fact is borne out in the cross-examination of Pw:1 himself and in the absence of any legal liability, the mere fact that the cheque was dishonored cannot be taken to construe that the accused has committed an offence under Section 138 of the Negotiable Instruments Act.
15. On the other hand, the learned counsel for complainant submitted that even no reply notice was issued to the demand notice issued under Section 138 of the Negotiable Instruments Act. This court has considered the rival submissions on behalf of the learned counsel on either side and perused the material records of the case. SCCH-2 12 C.C No:5780-2019
16. The demand notice issued by the complainant after dishonor of cheque was served on accused as per ExP:5 the postal acknowledgement. The signature appearing on ExP:2-cheque in question and ExP:5-the postal acknowledgement are of signature of accused person and it is not in dispute.
17. If the cheque had been obtained under duress in the Police Station, after coming out of the Police Station or thereafter, no complaint, whatsoever, was given to the higher officials by the accused. This apart, he not even sent a reply notice to complainant contending that the cheque was obtained under duress. On top of it, the 1 st cheque bearing no: 170073 dated 15.2.2019 for Rs.1,00,000/- issued by the accused has been duly honored and it is not in dispute.
18. It is an admitted fact that the complainant has lodged complaint with PSI, Vijayanagar Police station against the accused herein for alleged life threat as per ExP:6 and investigating officer has issued SCCH-2 13 C.C No:5780-2019 acknowledgment as per Ex:7. The accused herein and his cousin Pavan Chavat have given statement to Investigating officer during the course of investigating as per ExP:8 and 9, wherein he has undertaken to repay the debt of Rs 6,50,000/- through cheque and it is evident from perusal of Ex-P:8. The accused has clearly admitted contents of Ex-P:8, but it is specific plea that he had signed the statement- ExP:8 on 19.01.2019, under duress in police station without understanding the contents of document.
19. Issuance of cheque is not in dispute. The signature of accused on cheque in question is not in dispute at all. The accused was completely aware of the fact that all cheques issued by him were in the possession of the complainant. The voluntariness of the cheque cannot be doubted for the sake of doubt, because the 1 st cheque out of 7 cheques for Rs. 1 lakh was honored after 25 days of statement given by the accused.
SCCH-2 14 C.C No:5780-2019
20. It is specific contention of the accused that, in the police station, he was forced to give 7 post dated cheques under duress and threat. It is significant to note that after said police station incident, out of which, 1 st cheque issued by the accused to the complainant was honored by the bank, almost 25 days after aforesaid statement given by the accused.
21. The tenor of documents Ex.P:8 does not indicate that the accused was influenced by the police. It does not appear to be given under threat or duress. The PSI, Vijayanagar P.S., has entertained the complaint given by the complainant and having entertained, since the parties have agreed to settle the matter, he recorded the same and closed the complaint.
22. As discussed supra, if the cheque had been obtained under duress in the Police Station, after coming out of the Police Station or thereafter, no complaint, whatsoever, was given to the higher officials by the accused. Under these circumstances, I am unable to accept the contention SCCH-2 15 C.C No:5780-2019 of the learned counsel for the accused that cheque was issued under duress and he signed Ex.P:8 under threat. My reasons are supported with decisions of hon'ble high court of Madras in a case between 1) P. Shanmugam Vs R. Ravichandran, in CRL. R.C No: 467-2019, dated 17.06.2022, and 2) P. Ravichandran Vs R. Anand, 13 March, 2019 in Criminal Appeal No.808 of 2013.
23. To prove complainant's case, Naresh Kumar, the Power of Attorney of complainant has filed affidavit in lieu of examination in chief examined as Pw:1 and reiterated the averments made in the complaint. It is an admitted fact that Power of Attorney of the complainant is none other than her son. He has produced Power of attorney deed, disputed cheque, memo issued by the bank, office copy of demand notice, postal receipt, and Postal Acknowledgment signed by accused, complaint lodged against the accused and endorsement of police at ExP-1 to 7 respectively.
SCCH-2 16 C.C No:5780-2019
24. It is an admitted fact that complainant has not given any information to the concerned Income Tax Department regarding the money lent to the accused. Non giving an intimation regarding this in IT returns or non production of IT returns of the complainant is not a sole ground to acquit the accused in a proceeding under sec 138 of NI Act.
25. It is specific plea of the accused that he is financially well-off and there was no necessity for him to borrow loan from the complainant in the year 2017. It is an admitted fact that the mother of accused is running a jewelry shop in the name of M/S Sri. Ram Jewellers, at RPC layout , Vijayanagar. ExD:1 to 3 are the IT returns of mother of accused for the assessment year 2018-2019, balance sheet and Form GST Reg -06 of aforesaid shop standing in the name of accused's mother. These documents are not at all relevant to the case on hand.
26. First of all the accused is not the owner of aforesaid shop and therefore, these documents are not relevant SCCH-2 17 C.C No:5780-2019 documents to prove defence of the accused. The accused has filed the affidavit in lieu of evidence, deposing he is not the owner of aforesaid jewelry shop, on the other hand, in cross examination Dw:1 has deposed that he, his brother and mother together manages the affairs and business of aforesaid jewelry shop.
27. On careful perusal of the material placed on record it is clear that accused has voluntarily issued cheque in question to the complainant without any fear and duress. In C.C.No.5908/2019, on 11.06.2019, the complainant has filed an interim application under sec 142(B) of NI Act praying for an order to condone the delay of 4 days in filing the case and on 06.09.2019, the accused herein has filed an objection to above application and it is not in dispute.
28. In aforesaid objection, the accused herein has taken a specific contention that he has issued cheque in question as a security collateral many years back. In above objection he further contended that, complainant SCCH-2 18 C.C No:5780-2019 possesses several blank cheques of the accused which were collected many year back and agreed to return by her but, she did not return it to the accused to make unjust profits at the cost of harassment to the accused. The accused is fully aware of the facts stated in the objection filed by him in C.C.5908/2019. In said objection, the accused has not stated anything regarding alleged threat of police or cheque obtained under duress.
29. Therefore, it is clear that belated defence is taken only to escape from the clutches of law. The admitted fact clearly reveals the demand notice was duly served on the accused personally. Despite due service of demand notice, he has not replied the notice denying the alleged transaction.
30. While recording additional statement of accused u/sec 313 Crpc on 14.06.2022, the accused has stated that he had issued the cheque in question under duress as he was arrested by the police on the basis of the complaint lodged by the complainant herein. SCCH-2 19 C.C No:5780-2019
31. It is significant to note that at the initial stage, he has not given any explanation regarding his defence nor he stated anything that cheque was obtained under duress in police station because of the alleged threat put by the police and it is clear from 313 Cr.P.C.,statement of accused recorded on 25.03.2021.
32. After issuance of cheque, the accused herein has been in touch with SPA holder of complainant and sent his a message through WhatsApp before presenting the cheuqe to the Bank and it is not in dispute. The accused has sent photos of air tickets to the Pw:1 through WhatsApp and it is not in dispute. He sent a message to Pw:1 and asked him to present the cheque after his return from Gujarat and it is not in dispute. He has also shared the photos of Air ticket to the Pw:1 on WhatsApp and all these developments have been taken place after the issuance of cheque only.
33. It is admitted fact that accused has issued total 7 cheques to the complainant and out of them 1 cheque for SCCH-2 20 C.C No:5780-2019 Rs. 1 lakh has been honored after almost 1 month of the alleged police threat. No step has been taken by the accused against alleged police harassment and involvement of police to secure the cheque from him forcibly.
34. Firstly, the accused has failed to establish that, cheque was obtained forcibly under duress or with threat of police. Even the parties have exchanged some texts and messages on WhatsApp regarding depositing of cheque in question to Bank after the alleged police threat.
Secondly, he has not replied the demand notice denying the alleged loan transaction with the complainant.
Thirdly, one of the cheuqe issued by the accused in favor of the complainant for Rs. 1 lakhs has been honored by the bank and remaining cheque were dishonored for the reasons funds insufficient and stop payment intimation.
SCCH-2 21 C.C No:5780-2019
Fourthly, in the objection filed by the accused in CC no: 5908-2019, he has clearly admitted that cheques were issued to complainant for the purpose of collateral security.
Fifthly, no action has been taken against concerned police official for alleged threat in securing the cheque from him. No positive evidence is placed on record to show why he has not taken legal action against the complainant.
35. Admittedly, the demand notice issued by the complainant herein has been duly served on accused. A presumption can be drawn that, accused had knowledge of the contents of notice issued by the complainant after dishonour of cheque. The accused has not replied the notice of the complainant and nor challenged the financial capacity of the complainant to lend a sum of Rs. 6,60,000/- This is a fatal to his defence. My reasons are supported by the decision of honble apex court reported SCCH-2 22 C.C No:5780-2019 in a case between Tedhi Singh Vs Narayan Dass Mahant reported in 2022 (6) SCC 735.
36. Materials available on record clearly reveals that complainant and her husband being senior citizens were living at RPC layout, Vijayanagar and Pw:1 was not living with his parents at that relevant point of time. Admittedly, the accused used to visit the complaint very often and helped them out in many times by taking care of them. Naturally, Accused herein has win over the trust of the complainant and borrowed loan from her. So, he issued ExP:2 cheque to complainant towards repayment of loan amount.
37. So, much discussion is not required in this case to hold that, accused is guilty of the offence punishable under Sce.138 of N.I. Act, because, issuance of cheque in favour of complainant has been admitted by the accused. Therefore, it is clear before the court that, accused has committed the offence under Sec.138 of N.I. Act. SCCH-2 23 C.C No:5780-2019
38. The positive evidence adduced by Pw:1 inspires the confidence of the Court. No cogent and corroborative evidence placed on record by the accused to establish that, Ex.P.2-the cheque in question was issued under threat or duress. The oral evidence of complainant is supported with documentary evidence.
39. There is no rebuttal evidence to disbelieve the evidence of Pw:1. Hence, the evidence of the complainant has to be believed. Therefore, decisions relied upon by the accused referred above are not helpful to him. In view of sec. 139 of NI Act, it has to be presumed that a cheque is issued in discharge of any debt or other liability. Coming back to the facts in the present case, this court is of the view that the accused did not raise a probable defence.
40. In the light of the discussion herein above, this court is of the considered opinion that the complainant has proved that the accused has committed the offence punishable under Section 138 of Negotiable Instruments SCCH-2 24 C.C No:5780-2019 Act. Accordingly, I answer point No.1 in the affirmative and point No.2 in the negative.
41. POINT No.3:- The Negotiable Instruments Act is a Special Enactment, and the provisions of the Act prevail over the general provisions contained in Code of Criminal Procedure. Therefore, keeping the relevant provisions of the Act in mind the sentence is to be passed. In the light of the reasons on the point No.1, I proceed to pass the following;
ORDER Acting under Sec. 255 (2) of Cr.PC, the accused is found guilty of the o/p/u/s 138 read with section 142 of NI Act and he is sentenced to pay fine of Rs.1,05,000/- (Rs. One Lakh and Five thousand) out of which Rs.1,00,000/- shall be paid as compensation to the complainant under Sec. 357 of CRPC and Rs.5,000/- shall be payable to the State.
In the event of default in payment within a period of 3 months, the accused shall be convicted to simple imprisonment for a period of 3 months.
SCCH-2 25 C.C No:5780-2019
The bail bond of accused and that of surety stands cancelled.
Supply a free copy of this Judgment to the accused.
(Dictated to the stenographer on official desktop, typed by her, corrected, signed, then pronounced by me in open court on this the 4th February, 2023) (Smt. Shainey. K.M.) VI Addl. Judge and ACMM., Court of Small Causes, Bengaluru.
:ANNEXTURE:
LIST OF WITNESSES EXAMINED BY THE COMPLAINANT P.W.1 : Sri. Naresh Kumar.
LIST OF DOCUMENTS MARKED ON BEHALF OF COMPLAINANT:
Ex.P.1 : Certified copy of Special Power of Attorney dated:10.06.2019.
Ex.P.2 : Original Cheque dated:15.08.2019. Ex.P.2(a) : Signatures of accused. Ex.P.3 : Cheque return memo dt:17.08.2019. Ex.P.4 : Copy of legal notice dt:12.09.2019. Ex.P.4(a) : Postal receipt.
Ex.P.5 : Postal Acknowledgment.
SCCH-2 26 C.C No:5780-2019
Ex.P.6 : True copy of complaint dt:16.01.2019 lodged
by the complainant against accused before Vijayanagar PS. Ex.P.7 : True copy of Acknowledgment issued by the Vijayanagar PS with respect of Ex.P.6- Complaint.
Ex.P.8 : Certified copy of Statement of accused before Vijayanagar PS. Ex.P.9 : Certified copy of Statement of Sri. Pavan Chavat before Vijayanagar PS. LIST OF WITNESSES EXAMINED BY THE ACCUSED D.W.1 : Sri. Lalith Kumar Chavat. LIST OF DOCUMENTS MARKED ON BEHALF OF ACCUSED: Ex.D.1 : Certified copy of Income Tax Return Acknowledgment of Nazree Bai for the assessment year 2018-19.
Ex.D.2 : Certified copy of Income Balance Sheet of Nazree Bai.
Ex.D.3 : Certified copy of GST Registration Certificate of Sri Ram Jewellers.
Ex.D.4 : Certificate under Sec.65B of Indian Evidence Act.
(Shainey K.M.) VI Addl. Judge and ACMM., Court of Small Causes, Bengaluru.