Bangalore District Court
Smt. Jaya Santhosh vs Sri. H.M.Muninarayana @ on 29 May, 2015
IN THE COURT OF THE XVI ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 29th day of May - 2015
PRESENT: SRI. B.NARAYANAPPA, M.A., LL.B.,
XVI Addl.C.M.M., Bengaluru City.
C.C.NO.10430/2011
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Smt. Jaya Santhosh,
W/o. Late. I.K.Santhosh
Aged about 56 years,
R/at. No. 406, 2nd 'B' Cross,
III Block, Basaveshwaranagar,
Bangalore-78.
(By Sri.I.S.Pramod Chandra.,
Advocate)
- VS -
Accused : Sri. H.M.Muninarayana @
Narayana Swamy,
S/o. Late. Shri. L. Muttappa,
Industrialist and Politician,
Behind Shri Rama Temple,
Hulimavu,
Bannerghatta Road,
Bangalore South Taluk,
Bangalore-76.
Also at No.03,
'Ganganna Nilaya'
Basavapura,
(Near Shastry Memorial School),
Bangalore-560 049.
2) Sri. H.M. Suresh,
S/o. Late. Shri. L. Muttappa,
Industrialist,
Behind Shri Rama Temple,
Hulimavu,
Bannerghatta Road,
Bangalore South Taluk,
2 C.C.No:10430/2011
Bangalore-76.
Also at: M/s. CO-RD Tech. Tools
Pvt ltd.,
Opp. Shri Meenakshi Temple,
Hulimavu, Hulimavu Post,
Bannerghatta Road,
Bangalore-560 076.
(By Smt. Chandrakala.,
Advocate)
Offence complained of U/s 138 of N.I. Act
Plea of accused Pleaded not guilty
Final Order Accused is Convicted
Date of order 29.05.2015
(B.NARAYANAPPA)
XVI Addl.C.M.M., Bengaluru.
JUDGMENT
This is a private complaint filed by the complainant u/S 200 of Cr.P.C., r/w Section 138 of N.I. Act praying to take cognizance of the offence u/S 138 of N.I. Act against the accused no.1 and 2 and the accused be punished in accordance with law and compensate the complainant u/S 357 of Cr.P.C.
2. The brief facts of the case of the complainant is that, the accused no.1 and Mr. I.K.Santhosh, the late husband of the complainant were good friends from the past many years. Thus, the family of accused no.1 on one side and the family of the complainant on the other side had been good family friends. 3 C.C.No:10430/2011 Accused no.2 is the younger brother of accused no.1. Accused no.1 was borrowing amount to the tune of several lakhs of rupees from the husband of the complainant during his urgent needs and he was promptly repaying the said amounts. During the first week of July 2010, accused no.1 approached the complainant at her residence at Basaweshwaranagar when her daughter and son-in- law were present and requested for hand loan of Rs.10 Lakhs for the urgent commitments. The complainant expressed her inability to pay such a huge amount, but accused no.1 pleaded the complainant to lend atleast Rs.5 Lakhs with assurance that he would repay the same within 3 months. Considering the friendship of her late husband with accused no.1, on 7.7.2010 the complainant had paid a sum of Rs.5 Lakhs and to repay the said loan amount the accused had issued 3 cheques bearing Nos.472579, 472580 and 472581 dated 7.10.2010 for 2 Lakhs, 2 Lakhs and 1 Lakh respectively drawn on Corporatation Bank, Arekere Gate Branch, Bangalore in favour of the complainant. The accused during the second week of September 2010 requested the complainant to present the cheque for encashment on or after 10.11.2010. Accordingly, the complainant presented the cheques for encashment through her banker State Bank of Hyderabad, Basaveshwaranagar Branch, Bangalore, but the said cheques were returned unpaid for the reason "Property seal not marked" vide Bank memo dated 13.11.2010. Thereafter, the complainant got 4 C.C.No:10430/2011 issued legal notice to the accused dated 13.12.2010 both by RPAD and UCP and the same was duly served upon the accused on 14.12.2010 and 15.12.2010. But the accused no.1 sent a false and concocted reply and not paid the cheque amount. Hence this complaint.
3. After registering this case, sworn statement of the complainant was recorded and a criminal case has been registered against the accused no.1 and 2 for the offence punishable under Section 138 of N.I. Act and the summons was issued to accused no.1 and 2. The accused persons, after service of summons upon them put their appearance before this court through their counsel and they were released on bail.
4. The prosecution papers were furnished to them. Thereafter, plea of the accused persons was recorded, for which, they did not plead guilty and claimed to be tried and then the case was posted for the evidence of the complainant.
5. The complainant in order to prove her case, got filed her affidavit and affidavit of her one witness by way of examination-in- chief and the same were taken as PW-1 and 2 and got marked twenty one documents at Exs.P1 to P21 and closed her side. After completion of the evidence of complainant, the substance of the evidence has been read over and explained to accused no.1 and 2 5 C.C.No:10430/2011 under Section 313 of Cr.P.C. The accused no.1 and 2 denied all the incriminating evidence read over to them. The accused persons in order to disprove the case of the complainant, accused no.1 got examined himself as DW.1. and got marked Ex.D1 and closed their side.
6. I have heard the arguments of both the sides and at the time of arguments the learned counsel for accused no.1 and 2 has filed his written arguments on behalf of accused persons and also relied on following reported judgments.
1) (2006) 3 Supreme Court Cases (Crl.) 30 between M/s. Narayana Menon Alias mani and State of Kerela and another.
2) 2012 (1) D.C.R. 737 between Prahalad Rai Agarwal and The State of Jharkhand and another.
7. On the basis of the materials placed on record, the points that arise for the consideration of the court are as follows:
1. Whether the complainant proves beyond all reasonable doubt that, accused no.1 and 2 have committed an offence punishable under Section 138 of N.I. Act?
2. What order?
8. My findings on the above said points are as follows:
Point No.1 : In the Affirmative Point No.2 : As per final order, for the following:6 C.C.No:10430/2011
REASONS
9. POINT NO.1: It is the specific case of the complainant that accused no.1 and Mr. I.K.Santhosh, the late husband of the complainant were good friends from the past many years. Thus, the family of accused no.1 on one side and the family of the complainant on the other side had been good family friends. Accused no.2 is the younger brother of accused no.1. Accused no.1 was borrowing amount to the tune of several lakhs of rupees from the husband of the complainant during his urgent needs and he was promptly repaying the said amounts. During the first week of July 2010, accused no.1 approached the complainant at her residence at Basaweshwaranagar when her daughter and son-in- law were present and requested for hand loan of Rs.10 Lakhs for his urgent commitments. The complainant expressed her inability to pay such a huge amount, but accused no.1 pleaded the complainant to lend atleast Rs.5 Lakhs with assurance that he would repay the same within 3 months. Considering the friendship of her late husband with accused no.1, on 7.7.2010 the complainant had paid a sum of Rs.5 Lakhs and to repay the said loan amount the accused had issued 3 cheques bearing Nos.472579, 472580 and 472581 dated 7.10.2010 for 2 Lakhs, 2 Lakhs and 1 Lakh respectively drawn on Corporatation Bank, Arekere Gate Branch, Bangalore in favour of the complainant. The accused during the second week of September 2010 requested the 7 C.C.No:10430/2011 complainant to present the cheque for encashment on or after 10.11.2010. Accordingly, the complainant presented the cheques for encashment through her banker State Bank of Hyderabad, Basaveshwaranagar Branch, Bangalore, but the said cheques were returned unpaid for the reason "Property seal not marked" vide Bank memo dated 13.11.2010. Thereafter, the complainant got issued legal notice to the accused dated 13.12.2010 both by RPAD and UCP and the same was duly served upon the accused on 14.12.2010 and 15.12.2010. But the accused no.1 sent a false and concocted reply and not paid the cheque amount. Hence, the complainant has constrained to file this complaint.
10. On the other hand, it is the defence of the accused in their reply notice that they denied the entire allegations made by the complainant and borrowal of loan of Rs.5 Lakhs from the complainant and issuance of disputed cheques for repayment of the said loan amount and contended that the cheques in question were pertaining to M/s. Sri Ramathertha, a partnership firm in which the accused persons were partners and the said cheques were not issued to the complainant for discharging any loan, but the same was given to the husband of the complainant in the year 1999. In addition to the said cheques, 3 cheques were also given by the accused persons to the husband of the complainant during 1999. At that time, the accused no.1 being an active politician 8 C.C.No:10430/2011 had contested the election. During that period, accused no.1 had entrusted the husband of the complainant I.K.Santhosh, a close friend of accused no.1 with some cheques to enable him to draw money if need arises and instructed to put seal of the company. But the complainant by presenting the unutilised blank cheques of the accused, with an intention to defraud the accused persons had filed this false complaint.
11. The PW.1/Complainant in her affidavit evidence, she has reiterated and reaffirmed the contents of the complaint and got marked Exs.P1 to P21. Ex.P1 to Ex.P3 are the 3 original cheques, Ex.P4 to Ex.P6 are the 3 Bank memos, Ex.P7 is the copy of legal notice, Ex.P8 to Ex.P11 are the 3 Postal receipts, Ex.P12 is the U.C.P, Ex.P13 to Ex.P16 are the Postal acknowledgements, Ex.P17 is the reply notice, Ex.P18 is the original complaint, Ex.P19 and Ex.P12 are the Post Office passbooks and Ex.P21 is the bank passbook.
12. PW-1 in her cross-examination led by the defence counsel, she has stated that she has studied up to 10th standard and she is a house wife. On 23.12.2004 her husband had died. Her husband was doing agriculture at Chikkamagalur. Thereafter, he came to Bangalore and he was in politics and he was P.A. to Devegowda and J.H.Patil. She also stated that her husband was 9 C.C.No:10430/2011 running an Offset printing press at Chikkamagalur. Her daughter is a Software Engineer and her husband is a Coffee Planter, and as such she has no problem to lead her life. The accused persons for their business purpose on several occasions had borrowed loan from her husband but she does not know how much loan they had borrowed and repaid the same. Her husband had opened an account in the Post Office in her name for Rs.3 Lakhs. Accused no.1 came to her house and asked money. On 7.7.2010 she had paid the money to accused no.1. At that time, her son-in-law T.K. Pradeep, accused no.1 and 2 were present. On the day of advancement of loan amount to the accused, the accused had issued the cheque. The financial condition of the accused persons may be sound. She denied the suggestion that accused persons not borrowed any money from her and in turn she had not paid any money to the accused persons and the accused had not issued disputed cheques Ex.P1 to Ex.P3 for the repayment of the loan amount. She denied the suggestion that in the year 1999 accused no.1 had contested for election, her husband and accused no.1 were good friends and as such at that time the accused no.1 issued cheque to her husband for the use of election expenses and she misused the said cheques and filed this false complaint after the death of her husband. In her complaint, she has stated that on 7.7.2010 she had drawn Rs.5 Lakhs from the bank and paid the 10 C.C.No:10430/2011 same to the accused. To that effect, she has produced Ex.P21 passbook.
13. P.W.2. Mr. T.K.Pradeep who is none other than the son- in-law of PW.1, in his affidavit evidence has supported the affidavit evidence of PW.1 in his cross-examination led by learned defence counsel. He has stated that he has studied up to B.Sc. and married the daughter of the complainant in the year 2007. He does not know that in the year 1999 at the time when accused no.1 had contested for election had given some cheques to his father-in-law for the use of election expenses and he further denied the suggestion that the complainant got filled up those cheques and filed a false complaint. He denied the suggestion that when his mother-in-law / complainant had lent money to accused no.1, he was not present and he further denied the suggestion that her mother-in-law never went to bank and never drawn the money and not paid the same to the accused.
14. DW-1/accused in his defence evidence, he has stated that he knows the complainant. Prior to that, he was knowing the husband of the complainant. Through the husband of the complainant he came to know the complainant. He was knowing the husband of the complainant since from the year 1990. He (DW.1) was running mineral water business. The husband of the 11 C.C.No:10430/2011 complainant used to visit him often and often. He never borrowed any money from the complainant. When the husband of the complainant had died, he went to the house of the complainant for the funeral ceremony of her husband. He never issued the disputed cheque to the complainant and hence he is not liable to pay any money to the complainant. Himself and his brother H.M.Suresh were running mineral water plant under the name and style as 'Rama Theertha' as partners. The husband of the complainant by name I.K.Santhosh was with him. In the year 1996-97 he had contested for assembly election. At that time, he had given cheques to the husband of the complainant to meet out the election expenses. Himself and the husband of the complainant were good friends and they were in politics. He admits the suggestion that as and when he required money, he was borrowing the money from the husband of the complainant by name I.K.Santhosh. He denied the suggestion that on 7.7.2010 he had asked loan of Rs.10 Lakhs from the complainant and she told that she was not in possession of Rs.10 Lakhs and paid him Rs.5 Lakhs by drawing the same from the Bank and for repayment of the said loan amount he had issued 3 disputed cheques.
15. It is not in dispute that, the accused no.1 and the husband of the complainant by name I.K.Santhosh were good friends and they were in politics, and as such she came to know 12 C.C.No:10430/2011 the accused through her husband I.K.Santhosh. As admitted by DW.1 / Accused no.1 in his cross-examination that he was borrowing money from the husband of the complainant as and when he was in need of money and he was repaying the same. As admitted by the accused, accused no.1 and 2 are the brothers and they were running mineral water plant under the name and style as 'Rama Theertha' as partners. As admitted by the complainant, her husband I.K.Santhosh and accused no.1 were good friends and many a times accused no.1 was borrowing money from her husband and he was repaying the same. So the acquaintance between the husband of the complainant by name I.K.Santhosh and accused no.1 is not in dispute and it is also not in dispute that through the husband of the complainant by name I.K.Santhosh accused no.1 came to know by the complainant. So the friendship in between the husband of the complainant and accused no.1 was not in dispute and the money transaction in between the husband of the complainant and accused no.1 was also not in dispute during the life time of the husband of the complainant.
16. It is the contention of accused no.1 that he never borrowed loan of Rs.5 Lakhs from the complainant on 7.7.2010 and not issued the cheques towards discharge of the said loan amount. But it is the specific contention of accused no.1 that himself and the husband of the complainant I.K.Santhosh were 13 C.C.No:10430/2011 good friends and they were in politics. Accused no.1 during the year 1999 had contested for assembly election and at that time the husband of the complainant I.K.Santhosh was with him as he was close friend of accused no.1 and the accused no.1 had issued 3 signed cheques to the husband of the complainant by name I.K.Santhosh to meet out the election expenses. After the death of I.K.Santhosh, the complainant misused the said cheques and filed this false complaint against him. But the said contention of the accused has not been proved by the accused because he has not at all produced any material documents to show that he had issued cheques to the husband of the complainant by name I.K.Santhosh to meet out the election expenses of accused no.1 and after the death of I.K.Santhosh the complainant had misused the said cheques and filed this false complaint. Therefore, the aforesaid contention taken by accused no.1 is appears to be a cooked up story and the same is holds no water.
17. On the other hand, it is the specific case of the complainant that in view of friendship in between her husband I.K.Santhosh and accused no.1, accused no.1 and 2 met her in her house in the first week of July 2010 and requested her to lend loan of Rs.10 Lakhs for their urgent commitments. But the complainant shown her inability to pay such a huge amount. Even then accused no.1 pleaded her to lend atleast a sum of Rs.5 Lakhs. 14 C.C.No:10430/2011 Therefore, the complainant by drawing Rs.5 Lakhs from the Bank lent the said amount to accused no.1 on 7.7.2010 and the accused persons to discharge the said amount had issued disputed cheques Ex.P1 to Ex.P3. The complainant in order to show that she had capacity to pay a sum of Rs.5 Lakhs to the accused persons and to show that she was in possession of Rs.5 Lakhs with her, got marked Ex.P21 passbook of State Bank of Hyderabad standing in her name which clearly goes to show that on 7.7.2010 she had drawn a sum of Rs.5 Lakhs from her Bank account. So, from the documentary evidence produced by the complainant at Ex.P21 coupled with her pleadings in her complaint clearly demonstrate that she had drawn a sum of Rs.5 Lakhs from her Bank and paid the same to accused no.1 on 7.7.2010. Therefore, the complainant undoubtedly established that on 7.7.2010 she had paid a sum of Rs.5 Lakhs to accused no.1 after drawing the said money from her Bank account. When such being the clear case of the complainant, the defence taken by the accused No.1 that he never borrowed any money from the complainant and never issued disputed cheques Ex.P1 to Ex.P3 in favour of the complainant and the contention of the accused that himself and the husband of the complainant by name I.K.Santhosh were good friends and in the year 1999 he (accused no.1) had contested for assembly election and he had issued 3 cheques to I.K.Santhosh to meet out the election expenses and after the death of I.K.Santhosh the complainant misused the 15 C.C.No:10430/2011 said cheques and filed this false complaint against him cannot be believed and accepted.
18. As I have already stated above, that the complainant had paid a sum of Rs.5 Lakhs to accused no.1 on 7.7.2010, and in turn accused no.1 had borrowed the said sum from the complainant and to discharge the said sum the accused persons had issued the disputed cheques Ex.P1 to Ex.P3. Therefore, the complainant came into possession of Ex.P1 to Ex.P3 disputed cheques. Moreover, it is not in dispute that the complainant is in possession of disputed cheques and the possession of the same has not been disputed by the accused, and the signatures of the accused no.1 and 2 found on the disputed cheques is also not in dispute. Therefore, it is crystal clear that the accused persons in order to discharge the loan amount of Rs.5 Lakhs borrowed from the complainant had issued disputed cheques Ex.P1 to Ex.P3 in favour of the complainant. But on presentation of the said cheques, they came to be dishonoured with shara "Property seal not marked" which is evident from Ex.P4 to 6. Therefore, the complainant got issued legal notice to accused persons on 13.12.2010 which is evident from Ex.P7 and the legal notice was duly served upon the accused, which is evident from Ex.P13 to Ex.P16 Postal acknowledgement. In spite of it, the accused persons not paid the cheque amount but they had issued reply notice as per Ex.P17. Therefore, the 16 C.C.No:10430/2011 complainant having no other go has filed this private complaint as per Ex.P18 to take action against the accused persons and to be punished in accordance with law. Hence, the complainant before filing this complaint has fulfilled the necessary ingredients of Section 138 of N.I. Act.
19. The learned counsel for the accused has relied upon the judgments reported in (2006) 3 Supreme Court Cases (Crl.) 30, wherein it is held that:
"Negotiable Instruments Act, 1881 - Ss.118(a) 139 & 138 - Dishonour of cheque, a negotiable instrument - Presumptions under Ss.118 and 139 as to issuance of the said instrument for consideration and in discharge of debt - Raising of - Rebuttal thereof - Burden of proof - Nature of said proof - Held, initial burden of proof is on accused to rebut the said presumptions by raising a probable defence".
Whereas in the present case on hand, the accused has failed to rebut the presumption available to the complainant under Section 139 of N.I. Act. Therefore, the aforecited respected ruling will not come to the aid of the accused. The learned counsel for the accused has also relied upon the ruling reported in 2012 (1) D.C.R. 737 of Hon'ble Jarkhand High Court. The said ruling is not binding upon this court.
17 C.C.No:10430/2011
20. The disputed cheques Ex.P1 to Ex.P3 are presumed to be issued for legally enforceable debt or liability. On the other hand, the accused has failed to rebut the presumption available to the complainant under Section 139 of N.I. Act. The complainant has proved her case successfully beyond all reasonable doubts by leading cogent, convincing and believable evidence and by producing documents at Ex.P1 to P21 that the accused persons have committed an offence punishable u/s 138 of Negotiable Instruments Act. Hence, I answer the point No.1 in the Affirmative.
21. POINT NO.2: In view of my findings on point No.1, I proceed to pass the following:
ORDER Acting under Section 255(2) of Cr.P.C., accused no.1 and 2 are convicted for the offence punishable under Section 138 of Negotiable Instruments Act.
The accused no.1 and 2 are sentenced to pay fine of Rs.5,55,000/- (Rupees Five Lakhs Fifty Five Thousand only). In default they shall under go simple imprisonment for 6 (six) months each.
Out of the fine amount of Rs.5,55,000/-, a sum of Rs.5,50,000/- is ordered to be paid to the complainant by way of compensation under Section 357 of Cr.P.C. The balance amount of Rs.5,000/-18 C.C.No:10430/2011
(Rupees Five Thousand only) shall be appropriated to State Exchequer.
The bail bond and surety bond of the accused persons stands cancelled.
Issue free copy of Judgment to the accused forthwith.
(Dictated to Stenographer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 29th day of May - 2015) (B.NARAYANAPPA), XVI Addl. Chief Metropolitan Magistrate, Bengaluru.
19 C.C.No:10430/2011ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Smt. Jaya Santhosh. PW-2 : Sri. T.K.Pradeep.
List of Exhibits marked on behalf of Complainant:
Ex.P1 to 3 : 3 original Cheques Ex.P1(a) to 3(a) : Signatures of the accused no.1 Ex.P1(b) to 3(b) : Signatures of the accused no.2 Ex.P4 to 6 : 3 Bank memos Ex.P7 : Office copy of legal notice Ex.P8 to 11 : Postal receipts Ex.P12 : U.C.P. Ex.P13 to 16 : Postal acknowledgement Ex.P17 : Reply notice Ex.P18 : Original complaint.
Exs.P19 and 20 : Post Office Pass book. Ex.P21 : Pass book
List of Witnesses examined on behalf of the defence:
DW.1 : Sri. H.M.Muninarayana List of Exhibits marked on behalf of defence:
Ex.D.1 : Certified copy of order sheet in PCR No:5097/2011 XVI Addl. Chief Metropolitan Magistrate, Bengaluru.20 C.C.No:10430/2011
::Judgement pronounced in the Open Court ::
ORDER Acting under Section 255(2) of Cr.P.C., accused no.1 and 2 are convicted for the offence punishable under Section 138 of Negotiable Instruments Act.
The accused no.1 and 2 are sentenced to pay fine of Rs.5,55,000/- (Rupees Five Lakhs Fifty Five Thousand only). In default they shall under go simple imprisonment for 6 (six) months each.
Out of the fine amount of Rs.5,55,000/-, a sum of Rs.5,50,000/- is ordered to be paid to the complainant by way of compensation under Section 357 of Cr.P.C. The balance amount of Rs.5,000/-
(Rupees Five Thousand only) shall be appropriated to State Exchequer.
The bail bond and surety bond of the accused persons stands cancelled.
Issue free copy of Judgment to the accused forthwith.
XVI Addl. Chief Metropolitan Magistrate, Bengaluru.