Bangalore District Court
Sri.C.Rajat Pratap Raaya vs Sri.Prakash B.H on 14 June, 2017
IN THE COURT OF THE LVIII ADDL. CHIEF METROPOLITIAN
MAGISTRATE, MAYO HALL UNIT, BENGALURU
Dated this the 14th day of June 2017
PRESENT:
Sri. Nataraj.S. B.A.L, LLB.,
LVIII Addl. Chief Metropolitan Magistrate
Bengaluru.
CASE NO C.C.No.53551/2014
COMPLAINANT Sri.C.Rajat Pratap Raaya,
S/o Sri.Chetan Pratap Reddy,
Aged about 51 years,
R/at No.61, I main,
Royal County Layout,
Parappana Agrahara,
Bangalore-560 100.
ACCUSED Sri.Prakash B.H.
Aged about 36 years,
No.1329/72809-17,
Aircrafts Division,
HAL Bangalore complex,
Vimanapura Post,
Bangalore-17.
Also at:
Sri.Prakash B.H.
C/o Sri Nanjundaiah,
No.521, 2nd Main, Kamakshi Palya,
Bangalore-560 079.
Also at:
2 CC.No.53551/2014
Sri.Prakash B.H.
C/o Sri.Rajanna C (Father-in-law)
Opp.MRF Tyre Showroom,
K.R.S Agrahara Layout,
Kunigal-572130
OFFENCE U/s 138 of Negotiable Instruments Act
PLEA OF THE Pleaded not guilty
ACCUSED
FINAL ORDER Accused is Acquitted
(NATARAJ.S.)
LVIII ADDL.C.M.M.BENGALURU
JUDGMENT
The complainant filed a complaint Under Section 200 of Cr.P.C for the offence punishable Under Section 138 of Negotiable Instrument Act.
2. The case of the complainant is that:
The accused is a friend, to meet his urgent needs he has borrowed Rs.5,00,000/- as a hand loan with assurance to repay at the earliest. Towards repayment of hand loan accused issued cheque bearing No.279332 dated 23.1.2014 for Rs.5,00,000/- drawn on State Bank of India, HAL Bangalore in favour of complainant. The 3 CC.No.53551/2014 cheque was presented by the complainant through his banker State Bank of India, HAL, Bangalore, the same was dishonoured as "funds insufficient" on 27.1.2014. Thereafter, the complainant issued statutory legal notice dated 14.2.2014 through registered post. The notice was refused by the accused on 8.2.2014. The accused failed to pay cheque amount within 15 days, after expiry of 15 days thereafter within 30 days filed the complaint against the accused for offence punishable under section 138 of NI Act.
3. After recording sworn statement the cognizance was taken, summons was issued to the accused. He has appeared through his counsel. The copy of the complaint was furnished to him. The accusation was read over and explained to him, he pleaded not guilty and claimed to be tried.
4. The complainant in prove of his case examined himself as P.W.1 in his support Ex.P.1 to P.9 documents are marked.
5. The statement of accused Under section 313 Cr.P.C. has been recorded. The accused denied the incriminating evidence 4 CC.No.53551/2014 appeared against him. Accused examined as DW1 in his support DW2 to DW4 are also examined. Ex.D.1 to 7 documents are marked.
6. The complainant side counsel in spite of sufficient opportunity not chosen to address arguments. Heard arguments of counsel for accused and he has also filed written arguments.
7. On consideration of contention of both sides and material on records, the following points that arise for consideration are as follows:
1. Whether accused rebuts the presumption under section 118, 139 of Negotiable Instrument Act?
2. Whether the complainant proves that accused committed an offence Punishable Under Section 138 of NI Act?
3. What order?
8. 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;5 CC.No.53551/2014
REASONS:
9. Point Nos.1 & 2 :- Both points interconnected to avoid repetitions of fact both points are taken together.
10. The complainant C.Rajat Pratap Raaya in his affidavit in chief examination deposed that accused is a friend borrowed Rs.5,00,000/- as a hand loan, towards repayment of loan issued a cheque in question, on presentation of cheque it was dishonoured as "funds insufficient", statutory legal notice was issued to him, he has refused to receive the notice and failed to pay cheque amount within 15 days. Therefore, the complainant presented the complaint within time.
11. The counsel for accused argued that there was no transaction between the complainant and accused. The complainant is a stranger to accused. The State Bank of India, HAL Branch, Bangalore in order to change old cheque book to convert as CTS cheques the Bank authorities have sent a CTS cheque book to the accused through registered post. The same was fraudulently received by one Vasanth Kumar who had misused the cheques, the cheque in question is one cheque, forged signature of accused and presented 6 CC.No.53551/2014 to the bank for which the accused lodged a complaint to the police they did not received the complaint, filed a private complaint before Magistrate court. It is further argued that the complainant has no financial capacity to advance huge amount about Rs.5,00,000/-, no documents are placed to establish his financial capacity. It is further argued that the cheque in question was not issued for legally enforceable debt. The complainant in collusion with Vasanth Kumar created the signature and contents of cheque and presented to the bank. The accused by oral and documentary evidence rebutted presumption and prayed for acquittal.
12. On careful consideration submissions of learned counsel for accused on perusal of record Ex.P.1 is the cheque in question admittedly belongs to accused bank account. However, accused disputes the signature on cheque. Ex.P.2 is the bank endorsement wherein cheque was returned for the reasons "funds insufficient" not as signature differs. Therefore, the contentions of the accused that signature is not belongs to him cannot be acceptable. If signature on Ex.P.1 was not belongs to him the reasons for dishonour of cheque would have been different then "funds insufficient" . Ex.P.3 is legal 7 CC.No.53551/2014 notice dated 4.2.2014 and posted to the accused 3 different address as per Ex.P.4 to 6 postal receipts on 7.2.2014. The said notice was issued within 30 days from the date of receipt of information from the bank about dishonour of cheque. Ex.P.7 to 9 are the postal covers, Ex.P.7(a) to 9(a) are the copy of notice sent to accused through registered post to three different address. All the 3 notices were returned as 'refused by the addressee". The accused in the cross examination of PW1 and also in his oral evidence denied receipt of notice from the complainant. The accused in his defense he has not disputed the address mentioned Ex.P7, 7 (a) and Ex.P.3 and the address mentioned in the complaint cause title. Therefore, u/s 114 of evidence Act enables the court to presumption that in the common course of natural events, the communication would have been delivered at the address of the address. Section 27 of General Clause Act gives raise to presumption that service of notice has been effected when it is sent to the correct address by the registered post. It is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice deemed to have been 8 CC.No.53551/2014 effected at the time at which the letter would have been delivered in the ordinary course of business. In the instant case the notice was sent through registered post to the three different address of the accused. There is a presumption of service of notice. The accused has not contended that the address mentioned in the notice is incorrect. So in absence to it there is a deemed service of notice. The accused deemed to have knowledge of the contents of the notice. The accused failed to make payment within 15 days of receipt of notice. Thereafter, within 30 days the complainant presented the complaint.
13. Once the complainant full filled the provisions of section 138 (a) to (c) of NI Act the mandatory presumption would arise U/s 139 of I Act as held by Hon'ble Supreme Court in (2010) 11 SCC 4413 Rangappa Vs Sri Mohan. Therefore, it is for the accused to rebut the presumption either by relying the material elicited from the evidence of complainant or by entering into witness box. Keeping in mind the above said principles in the instant case the accused disputed the entire case of the complainant much less the alleged advancement of loan and issuance of cheque towards dishonour of 9 CC.No.53551/2014 alleged loan and also signature and contents of cheque. Thus, it is the imperative on part of the complainant to establish the transaction, his financial capacity advance the loan, issuance of cheque by the accused. Mere cheque is produced and marked as an exhibit does not prove the execution of cheque, it is to be proved by leading cogent evidence.
14. In the cross examination of DW1 it is elicited by the accused in para-2 that in the complaint and chief examination affidavit he has not stated on what date he has advanced the loan to the accused. On perusal of legal notice at Ex.P.3, complaint averments in para-3 so also the chief examination affidavit, there is no mention of date on which the alleged loan was advanced to the accused. Therefore, the material particulars are not mentioned in the complaint and not stated in the chief examination evidence. Therefore, this is also one of the circumstances to rebut the presumption.
15. The complainant admits in his cross examination para-2 that he has not produced documents to show at the time advancement of loan he had Rs.5,00,000/- with him and he has not 10 CC.No.53551/2014 shown the loan amount in his income tax returns. He is not aware of any amount exceeding Rs.20,000/- has to be paid through instrument. Therefore, it is incumbent upon the complainant to establish that as on the date of alleged advancement of loan he had sufficient amount with him. In spite of denial of complainant financial capacity to advance huge amount of Rs.5,00,000/-, the complainant not chosen to produce either pass book or any other document evidencing his financial capacity to advance alleged loan. Non production of material documents the adverse inference is to be drawn that either he had no such amount at the time of advancement of loan nor there was no such transaction between the complainant and accused. The complainant is admittedly working in HAL so also the accused. The complainant has not stated his income nor produced pass book or account to prove his financial capacity to advance the amount.
16. The complainant in his evidence deposed that the accused had issued a cheque in his house, he denied that the signature on cheque is not that of accused. On perusal of cheque Ex.P.1 on bare eye it could be seen the signature handwriting, ink are different from 11 CC.No.53551/2014 the date, name, amount in words and amount in figures ink and handwriting. It is not case of the complainant that the accused had issued blank signed cheque towards repayment of alleged loan authorizing him to fill the contents as required u/s 20 of NI Act. In absence of any such averments in the complaint or in the notice that the cheque in question was issued in blank authorizing him to complete the incomplete instrument section 20 of NI Act would not come to his aid. Therefore, inference is that when alleged cheque was issued it was blank cheque. The above said circumstances is also one of the ground to rebut the presumption.
17. It is true that the accused has not replied the notice. However his defense in his oral evidence that he and one Vasanth Kumar working in HAL in same division. In the year 2014 he had approached SBI Bank for cheque book, at the time the bank officials had told him the cheque books was sent through post to his company address, for which he has informed that he has not received the cheque book. He further deposed as per the circular of RBI new CTS cheque books sent to account holder without request from account holder. It is further deposed by the accused that one 12 CC.No.53551/2014 Vasanthkumar in collusion with post officials cheque books containing 25 cheque leaves commending from 279326 to 279350 was taken by him, for which he has lodged a complaint against Vasanth Kumar, complainant herein and Kiran for forging and committed theft of cheque book. Ex.D.4 & 5 are the order sheet and complaint field by one Vasanth Kumar in respect of 3 cheques out of 25 cheques stated to have been taken by him in collusion with post officials, which disclose the Vasanth Kumar had filed complaint for dishonour of 3 cheques totally Rs.38,00,000/- ultimately it was dismissed for non prosecution. In Ex.D.6 is the complaint given to police commissioner, Ex.D7 is copy of the letter address to post man.
18. In the cross examination of accused it is elicited that in the year 2005 he opened bank account, at that time he had obtained cheque book, in the month of April 2014 when he had visited the bank to obtain cheque book the officials of bank told on 16.12.2012 the cheque book was sent without request through post he did not lodged the complaint immediately since, he was not aware who had committed theft of cheque book at that point of time. No doubt 2015 he came to know after receipt of summons from the court at the 13 CC.No.53551/2014 time also he did not lodged a complaint as he was not aware of who had committed theft. DW2 is the Manager of SBI, HAL Branch wherein he deposed that cheque book commencing from 279326 to 279350 was sent to accused in the month of December 2012 without requesting from him and this fact is not disputed by the complainant. DW3 is Inspector of post office he speaks about Ex.D.7 the complaint given to the post office regarding theft of his cheque book. DW4 Bageshappa who is witness deposed regarding transaction, but he is only hearsay witness.
19. Considering the evidence on record the complainant first of all has not stated the material particulars about date of advancement of loan and place on payment of loan to the accused. Secondly, the complainant not established his financial capacity to advance huge amount, for which he has not produced his salary statement, passbook or any other documents evidencing financial status. Thirdly, the cheque in question the signature ink and handwriting is different from the other writings on cheque, ink and handwriting. Considering the above said circumstances the defense of the accused is probable and acceptable. The complainant fail to establish 14 CC.No.53551/2014 issuance of cheque towards discharge of debt. The accused rebutted the presumption either by eliciting material from the complainant evidence. As such the accused is entitled for acquittal. Accordingly, I answer Point No.1 in the Affirmative and Point No.2 in the Negative .
20 . Point No.3: For the aforesaid reasons and findings I proceed to pass the following;
ORDER Acting Under Section 255(1) Cr.P.C. accused is acquitted for the offence punishable under section 138 of NI Act.
The bail bond of accused stand cancelled and cash security of Rs.5,000/- deposited by the accused on 23.7.2016 is ordered to be refund to the accused (if not forfeited or lapsed ) after expiry of appeal period.
(Dictated to the stenographer, transcribe and typed by her, corrected by me and pronounced in the open court on this 14th day of June 2017) (NATARAJ.S.) LVIII ADDL.C.M.M.BENGALURU 15 CC.No.53551/2014 ANNEXURE Witness examined for the complainant:
P.W.1: C.Rajat Pratap Raaya Witness examined for the defence:
D.W.1: Prakash D.W.2: C.K.Krishanani D.W.3: Shivaram B.P. D.W.4: Bageshappa Document marked by the complainant:
Ex.P.1 Cheque dt 23.1.2014
Ex.P.2 Bank endorsement
Ex.P.3 Statutory Demand Notice
Ex.P.4 to6 Postal receipts
Ex.P.7 to9 Postal covers
Ex.P.7a to 9a Notices
Document marked by the defence :-
Ex.D.1 Letter to SBI Bank
Ex.D.2 Certified copy of order sheet in
PCR No.50649/2017
Ex.D.3 Certified copy of complaint in PCR
No.50649/2017
Ex.D.4 Certified copy of order sheet in
CC.No.54293/14
Ex.D.5 Certified copy of complaint in
CC.No.54293/2014
Ex.D.6 Complaint to Police Commissioner
Ex.D.7 Complaint to Post Master
LVIII ADDL.C.M.M.BENGALURU
16 CC.No.53551/2014