Bangalore District Court
Rajitha.S vs B.S.Ravindra on 4 April, 2024
KABC020001502021
IN THE COURT OF THE XII ADDL. JUDGE, COURT OF
SMALL CAUSES & ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU (SCCH-08)
PRESENT: Sri. Purushothama M.,
B.B.M., M.S.W., LL.M., P.G.D.H.R.M.
C.C. NO: 10/2021
Dated 04th day of April 2024
Complainant : Smt. Rajitha S
W/o Mohan S Reddy,
Aged about 43 years,
Represented by her SPA holder
Mohan S Reddy
"Sri Muneshwara Nivas''
No.2837-2838, 1st floor,
5th main, 15th cross,
Banashankari 2nd stage,
Bengaluru-56070.
(By Sri M R Nanjunda Gowda, Advocate)
:Vs:
Accused : Sri. B S Ravindra
No.B-1-702, "Gokulam Apartments'',
Doddakalasandra,
Kanakapura road,
Bengaluru-560062.
Also R/at:
Sri B S Ravindra
No.1195, 7th main, Mahalakshmi
layout, West of Chord road,
2nd stage, Bengaluru-56086.
(By Sri. P V Vasudevan, Advocate)
SCCH-8 2 CC 10/2021
01. Date of Complaint filed 20.11.2020
02. Date on which accused was 17.08.2022
released on bail by the Court
03. Date of commencement of 04.01.2021
Evidence
04. Date of completion of trial 25.03.2024
05. The nature of offence alleged 138 of N.I.Act
06. Opinion of the judge Accused convicted for an 1.
offence p/u/s/138 of NI
Act
07. Date of pronouncement of 04.04.2024
judgment
08. Duration of the proceeding Year Months Days
03 04 14
JUDGMENT
The Complainant has filed a private complaint under Sec.200 of Cr.P.C., alleging that the accused has committed an offence punishable under Sec. 138 of N.I. Act.
02. The sum and substance of the complainant's case is as follows:
It is stated by the complainant that, she is the absolute owner of the property of an Industrial plot with building bearing No.818, Konunkuntae cross, behind petrol bunk, Doddakalasandra post, Kanakapura road, Bengaluru and accused was tenant under her on monthly rental basis and accused has became the chronic defaulter in terms of paying SCCH-8 3 CC 10/2021 the rents and hence the complainant had caused a legal notice to quit and vacate the physical possession of the property and to clear the arrears of rent but the accused neither paid the rent nor vacated the property. As such the complainant has filed the Civil suit before the Hon'ble City Civil and Sessions Court, Bengaluru for possession and for arrears of rents and it was allocated to LXIV Addl. City Civil and Sessions Judge, CCH-65 bearing case No.1707/2019, but inspite of summons accused remained absent and hence placed Exparte and suit was decreed on 22-11-2019 in favour of complainant. Thereafter accused failed to honour the judgment nor he challenged the judgment, hence complainant constrained to file execution petition in order to enforce the judgment and decree passed in OS No.1707/219, in which complainant obtained an order for break open the lock and to take over the possession of the property. As such the bailiff as per the order dated 09-07-2020 came to the plaint schedule property in OS No.1707/219 with the aid of jurisdictional police, intimated the accused regarding the action as per the court order and after some considerable time, accused voluntarily came to the possession of the property took all his movables lying in the plaint schedule property and endorsed the same to the bailiff which is a part of the court record in Ex No.38/2020 and by admitting his liability filled the entire cheque and handed over the cheque bearing No.190406 for a sum of Rs.8,83,595/- drawn on Axis Bank Ltd., which includes rent from January 2018 up to July 2020 @ Rs.27,750/- p.m., court fees of s.45,345/- to the present GPA holder who is none other than husband of the SCCH-8 4 CC 10/2021 complainant. The complainant has presented the said cheque for encashment through her banker HDFC Bank Ltd., K R road, Bengaluru but the cheque was dishonoured for the reason 'Funds Insufficient' in the account of the accused on 09-09-2020. Inspite of number of telephonic reminders, accused considerably failed to make the payment and hence the complainant issued a legal notice to the accused on 23-09-2020 through RPAD demanding to pay the cheque amount and the said notice was duly served to his present address on 24-09-2020, but the notice sent to his residence was returned with shara Unclaimed on 03-10-2020. Inspite of service of notice the accused has not paid the cheque amount nor replied to the same. Hence the accused has committed an offence punishable under Section 138 of NI Act.
3. After filing of the complaint, the court has taken cognizance and thereafter sworn statement of complainant was recorded. A criminal case was registered against the accused for the offence punishable under Sec. 138 of N.I. Act. The court has issued summons for the appearance of the accused. The accused appeared before the court and he was released on bail. The substance of accusation is read over to the accused. He has not pleaded guilty of the offence and claimed to be tried.
4. In order to bring home guilt of the accused, the GPA holder of the complainant examined himself as PW.1 and produced 11 documents, which were marked as Ex.P1 to Ex.P11.
SCCH-8 5 CC 10/20215. The statement of the accused was recorded under Sec. 313 of Cr.P.C. The accused denied all the incriminating evidence, circumstances found against him in the evidence of the complainant. The accused chose to lead defence evidence and examined himself as DW.1 and got marked the documents from Ex.D1 to D8.
6. I have heard the Arguments.
7. The following points arise for my consideration:
Point No.1:- Whether the complainant proves that the accused issued a cheque bearing No.190406 for Rs.8,83,595/- dated 07-09-2020, drawn on Axis Bank, in favour of the complainant for discharge of liability/debt?
Point No.2:- Whether the complainant proves that the cheque issued by the accused was dishonoured due to 'Funds Insufficient' in the account of accused?
Point No.3: Whether the complainant proves that the accused has committed an offence punishable under Sec. 138 of N.I.Act?
Point No.4: What order?
8. My findings on the above points are as under:
Point No.1 : In the Affirmative,
Point No.2 : In the Affirmative,
Point No.3 : In the Affirmative,
Point No.4 : As per final Order
for the following:
SCCH-8 6 CC 10/2021
REASONS
9. Point Nos.1 to 3: I propose to discuss these points together for common discussion to avoid repetition of facts and for appreciation of evidence.
10. It is the specific case of the complainant that, towards the payment of the arrears of rent the accused issued a cheque bearing No.190406 for Rs.8,83,595/- drawn on Axis Bank and by believing the words of the accused the complainant presented the said cheque for encashment through his banker, but the said cheque was returned unpaid for the reason "Funds Insufficient" in the account of the accused. Thereafter the complainant issued notice to the accused on 23-09-2020 calling upon the accused to make payment of the cheque amount which was duly served on 24-09-2020. Inspite of receipt of the notice, he has not paid the amount.
11. In order to prove the case, the complainant has examined her GPA holder as P.W.1 and produced 11 documents marked as Ex.P1 to Ex.P11. Ex.P1 is the GPA, Ex.P2 is the copy of order sheet in Ex.No.398/2020, Ex.P3 is the copies of memo, mahazar and report of the bailiff in Ex.No.398/2020, Ex.P4 is the letter dated 27-08-2020 issued by the accused, Ex.P5 is the cheque bearing No.190406 dated 07-09-2020 for Rs.8,83,595/- drawn on Axis Bank. Ex.P6 is the endorsement issued by bank goes to show that the Ex.P5 cheque returned unpaid for the reason Funds Insufficient in the account of accused. Ex.P7 is the legal notice dated SCCH-8 7 CC 10/2021 23-09-2020, Ex.P8 & 9 are the postal receipts, Ex.P10 is the postal acknowledgment and Ex.P11 is the unserved RPAD cover which was returned for the reason Unclaimed.
12. The defence of the accused is that, he has given blank cheque with signature. In order to prove his defence, examined himself as DW.1 and got marked the documents from Ex.D1 to D8. Ex.D1 is the Plaint copy in OS No.1707/2019, Ex.D2 is the License, Ex.D3 is the Acknowledgment issued by the labour inspector, Ex.D4 & D5 are the Judgment and decree copy in OS No.1707/2019, Ex.D6 is the copy of the Balance sheet of the wife of the accused, Ex.D7 is the vat certificate and Ex.D8 is the Form No.9(a).
13. The complainant filed the complaint against the accused alleging that the accused committed an offence punishable under section 138 of N.I. Act. Hence Section 138 and 139 of the Negotiable Instrument Act are set out herein below for convenience:
138- Dishonour of cheque for insufficiency, etc., of funds in the account. --Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice SCCH-8 8 CC 10/2021 to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless--
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.-- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
139 - Presumption in favour of holder- 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.
14. The date of cheque is 07-09-2020 and the complainant presented the cheque within time from the date on which it is drawn. The bank issued endorsement on 09-10-2020. The complainant issued a notice through his advocate within the prescribed period as per Ex.P7 on SCCH-8 9 CC 10/2021 23-09-2020 after receipt of the endorsement from the bank and the said notice was duly served to the 2 nd address of the accused on 24-09-2020 and the notice sent to the 1 st address of the accused was returned with shara Unclaimed on 03-10-2020. Thereafter the complainant filed complaint on 20-11-2020 which is within time.
15. The next question is whether the amount mentioned in the cheque is for a legally recoverable debt or for other liability. The interpretation of the expression for discharge of any debt or other liability occurring in section 138 of N.I. Act is significant and decisive in matter. The explanation appended to section 138 express the meaning of the expression debt or other liability for the purpose of section
138. This expression means a legally enforceable or other liability. Section 138 treats dishonour of cheque as an offence if the cheque have been issued in discharge of debt or any other liability. The explanation leaves no manner of doubt that to attract an offence under section 138 there should be legally enforceable debt or other liability. As per section 118 of N.I. Act there is a presumption as to consideration, as to date , as to time of acceptance, as to time of transfer etc until the contrary is proved. As per section 139 of N.I. Act there is a presumption in favour of the complainant that the cheque were issued for discharge of debt or other liability. The said presumption is a legal presumption and it is in favour of the holder of cheque. It is open to the accused to rebut the said presumption.
SCCH-8 10 CC 10/202116. It is the mandate of Section 139 that there is a presumption in favour of the holder of the cheque that the holder received the cheque of the nature referred to in section 138, for the discharge in whole or in part or other liability. Needless to mention that the presumption contemplated under section 139 of N.I. Act is a rebuttable presumption. However the onus of proving that the cheque was not in discharge of any debt or other liability is on the drawer of the cheque/accused. In Hiten P Dalal V/s Bratindranath Banerjee reported in 2001 (6) SCC 16 The Hon'ble Supreme Court held that both Section 138 and 139 require that the court shall presume the liability of the drawer of the cheque for the amounts for which the cheque are drawn.
Section 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused. The presumption under Section 139 of N.I.Act is a presumption of law, as distinguished from presumption of facts.
In Laxmi Dyechem V/s State of Gujarat and others reported in 2012 (13) SCC 375 The Hon'ble Supreme court reiterated that in view of section 139 it has to be presumed that a cheque was issued in discharge of a debt or other liability but the presumption could be rebutted by adducing evidence. The burden of proof was however on the person who wanted to rebut the presumption.
In K.N. Beena V/s. Muniyappan and Anothers reported in 2001(8) SCC 458, the Hon'ble Supreme court held that in SCCH-8 11 CC 10/2021 view of the provisions of section 139 of the N.I.Act read with section 118 thereof the court had to presume that the cheque had been issued for discharging a debt or liability. The said presumption was rebuttable and could be rebutted by the accused by proving the contrary. The accused has to prove by cogent evidence that there was no debt or liability.
17. The proposition of law which emerges from the judgments referred to above is that the onus to rebut the presumption under section 139 that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post dated does not absolve the drawer of a cheque of the penal consequences of section 138 of N.I. Act. A meaningful reading of the provisions of the N.I. Act including in particular, sections 20, 87 and 139 makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of section 138 would be attracted.
18. As far as legally recoverable debt is concerned the complainant produced the copy of the order sheet in Ex.P2 goes to show that the ejectment suit filed by the complainant was decreed and she filed execution petition and in the said execution the court ordered to issue delivery warrant and SCCH-8 12 CC 10/2021 accordingly the bailiff of the court handed over the possession of the property to the complainant / decree holder on 07-08-2020. On 28-09-2020 the execution petition was closed in view of the memo filed by the decree holder who is the complainant herein. The accused himself produced the copy of the plaint in OS No.1707/2019 wherein the present complainant filed ejectment suit and also for recovery of rent at the rent of Rs.27,750/- . The plaintiff / the complainant herein claimed that the present accused was outstanding to pay rent from January 2018 to February 2019. The bailiff of the court handed over the possession on 07-08-2020. So from January 2018 to 07-08-2020 the total months is 31 months. The rate of rent is Rs.27,750/-, hence the total outstanding rent is Rs.8,60,250/-. The cost of the suit is Rs.45,366/-. The total comes to Rs.9,05,616/-. The cheque amount is Rs.8,83,595/-. Hence the cheque amount is within the outstanding amount claimed by the complainant.
19. The accused took defence that he is not liable to pay the rent at the rate of Rs.27,750/-. According to him, his wife is running another unit and as such she is liable to pay the rent to the said unit. The accused produced the vat certificate but it does not depict the wife of the accused is a tenant under the complainant. The wife of the accused has not impleaded herself in the suit to say that the present accused is not a tenant to the entire extent and she is also a tenant to the part of the property and as such she is a necessary party in the said suit. She has not opted to filed any application to implead herself. The accused also not filed SCCH-8 13 CC 10/2021 any written statement to the effect that his wife is also the tenant and he is not liable to pay the entire rent. Both of them failed to contest the matter. The bailiff of the court delivered possession on 07-08-2020. On the same day the accused issued Ex.P5 cheque and also executed letter infavour of the complainant which is marked as Ex.P4. The said letter is written under the letter head of the accused company and the accused put his signature and also affixed the seal. The accused is not an uneducated man. He is running a company. He himself written letter wherein, he clearly admits that he outstanding to pay the rent from January 2018 till July 2020 at the rate of Rs.27,750/-. There is no whisper regarding the part of the property is under possession of his wife and she is the tenant. In the said Ex.P4 he mentioned the cheque amount, the cheque number and every thing is written in the said letter. Now in order to escape from the clutches of liability he denied the claim of the complainant. The accused has not taken any action against the complainant for misuse of the cheque. The accused received the notice issued by the complainant and he has not claimed one more notice issued by the complainant. Now in order to avoid the payment as took defence that he has issued a blank cheque which was misused by the complainant. According to the accused he has paid an advance of Rs.2,60,000/- to the complainant but he has not produced any documents in proof of the same. Ex.P4 was executed on the same day when property was delivered to the complainant. So the say of the accused that he had given blank cheque to the complainant cannot be believable. If the SCCH-8 14 CC 10/2021 cheque and letter were misused then why he has not taken any action against the complainant is not explained.
20. The learned counsel for accused argued that there is no decree with respect to the arrears of rent. When there is no decree with respect to the arrears of rent then the decree holder / complainant cannot execute the decree for recovery of arrears of rent but the accused himself admits that he is liable to pay rent from January 2018 till July 2020. Apart from this the accused has not produced any document to show that he has paid and cleared the rent. The documents produced by the complainant and accused establishes that the accused is liable to pay a sum of Rs.9,05,616/- then it is the accused to rebut the presumption that his wife is the tenant and as such he is not liable to pay the entire rent and he had paid the rent to the complainant and there is no due what so ever to the complainant much less the cheque amount. During the time of recording of 313 statement the accused said that the complainant received the cheque forcefully and obtained signature to one blank paper. If the complainant received the cheque forcefully nothing prevents him to take legal action against the complainant. The accused till today has not taken any action since he is outstanding to pay the rent amount for a period of 31 months at the rate of Rs.27,750/-. The defence taken by the accused before the court is only an after thought. If the complainant forcefully obtained signature on letter then why the accused has not took such defence at the earliest and why he has not issued reply to the notice is also not explained. Just to SCCH-8 15 CC 10/2021 escape from the clutches of liability the accused took defence that he has not received notice, though one of the notice is served on him and another notice is not claimed by him. The Ex.P4 letter is issued by the accused voluntarily in favour of the complainant. Hence what ever the defence taken which is against the Ex.P4 letter is not valid under the eye of law since the documentary evidence prevails over the oral evidence. Hence the amount mentioned in the cheque is legally recoverable debt. The Ex.P4 letter issued by the accused, Ex.P5 cheque and the endorsement issued by the bank strengthen the say of the complainant. The documents placed before the court by the complainant and accused establishes that the cheque was issued by the accused for the discharge of debt and the same was dishonoured. Even after issuance of notice the accused has not paid the amount. Hence he has committed an offence punishable U/Sec.138 of NI Act. Accordingly, I answered the Point No. 1 to 3 in the Affirmative.
21. Point No.4: In view of the foregoing reasons, the accused is found guilty for the offence punishable under Section 138 of N.I. Act. As per section 138 of N.I. Act the court may punish the accused with imprisonment for a term which may extend to two years or with fine which may extend to twice the amount of cheque or both. The N.I. Act is a special statute and as such section 29 of C.R.P.C does not come in the way to impose fine of more than 10,000/- by the Magistrate. The present case is pending from last 3 years. The accused has not paid the rent from January 2018. He delivered possession at the intervention of the court in SCCH-8 16 CC 10/2021 execution petition. Hence if the cheque amount is ordered to pay as compensation to the complainant then injustice is caused to the complainant. Hence, by considering all these aspects, I proceed to pass the following:
: ORDER:
The accused is found guilty of the offence punishable Under section 138 of N.I. Act.
Acting under section 255(2) of C.R.P.C the accused is hereby convicted for the offence punishable under section 138 of N.I. Act and sentenced to pay a fine of Rs.12,25,000/-, in default the accused shall undergo S.I. for a period of 6 months.
After deposit of the amount by the accused, the complainant is entitled to receive a sum of Rs.12,15,000/- as compensation and remaining Rs.10,000/- is defrayed to the state.
The accused is entitled for set off if he was in Judicial custody in this case.
Bail and surety bonds of the accused stands cancelled.
Supply a copy of judgment to the accused at free of cost.
(Dictated to the Stenographer directly on computer and typed by her, the same is corrected and then pronounced by me in the Open Court on this 4th day of April 2024) PURUSHOTHAMA Digitally signed by PURUSHOTHAMA M M Date: 2024.04.05 10:36:14 +0530 (PURUSHOTHAMA M.) XII Addl. Judge & A.C.M.M, Court of Small Causes, Bengaluru.SCCH-8 17 CC 10/2021
ANNEXURE WITNESSES EXAMINED BY COMPLAINANT:
PW.1 : Sri. Mohan S Reddy.
LIST OF DOCUMENTS MARKED BY COMPLAINANT :
Exhibits Particulars of the Document
Ex.P1 GPA
Ex.P2 Order sheet in Ex. No.398/2020
Ex.P3 Memo, mahazar and report of the bailiff in
Ex. No.398/2020
Ex.P4 Letter dated 27-08-2020 by the accused
Ex.P5 Cheque
Ex.P5(a) Signature of Accused on Ex.P5
Ex.P6 Bank Endorsement
Ex.P7 Legal notice
Ex.P8 & 9 Postal receipts
Ex.P10 Postal acknowledgment
Ex.P11 Unserved RPAD cover
LIST OF WITNESSES EXAMINED FOR DEFENCE:
DW.1 : Sri. B S Ravindra.
LIST OF DOCUMENTS EXHIBITED FOR DEFENCE:
Exhibits Particulars of the Document
Ex.D1 Plaint copy in OS No.1707/2019
Ex.D2 License
SCCH-8 18 CC 10/2021
Ex.D3 Acknowledgment
Ex.D4 & 5 Judgment and decree copy in OS
No.1707/2019
Ex.D6 Balance sheet
Ex.D7 Vat certificate
Ex.D8 Form No.9(a)
PURUSHOTHAMA Digitally signed by
PURUSHOTHAMA M
M Date: 2024.04.05 10:36:22 +0530
(PURUSHOTHAMA M.)
XII Addl. Judge & A.C.M.M,
Court of Small Causes, Bengaluru.