Bangalore District Court
Aged About 89 Years vs And The Said Anantharaju Became ... on 30 September, 2015
IN THE COURT OF XIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BANGALORE.
Present: Smt.C.G Vishalakshi, B.A., L.L.B.,
XIII A.C.M.M Bangalore.
C.C. NO.17927/2011
Dated: This the 30th day of September 2015
Name of the Sri.S.N.Muniswamy,
complainant Aged about 89 years,
S/o.late S.Nanjappa,
R/at.No.2243, 9thMain,
E Block,
2nd Stage, Rajajinagar,
Bangalore.
Name of the accused Smt. Narasiyappa,
Aged about 60 years,
S/o.Kadiraiah,
Lakshmi Venkateshwara Service,
Engineer & Contractors,
No.79A, 1st Main,
3rd Cross,
Lakshmidevinagar,
Kemapamma Layout,
Bangalore-560 096.
Offence U/s.138 of Negotiable
Instruments Act.
Plea of the accused Pleaded not guilty
Final order Convicted
****************
JUDGEMENT
This complaint is filed against the accused U/s.200 of Cr.P.C. for the offence punishable U/s.138 of N.I Act. 2 C.C.No.17927/2011 .
2. The gist of the complaint is as follows; The accused is the friend of the complainant and one Milk Vendor M.Anantha Raju. The accused was the employee of KSDL and he had taken retirement from the service and thereafter he started contract work of packing in the same factory. The Anantha raju was the close friend of the accused and he used to come to the shop of the Anantharaju invariably every day to spend time and to exchange his pleasures and to read newspaper Prajavani and Sanjevani. As such, the complainant and accused and the said Anantharaju became friends. In view of the said inter action acquaintance, the accused requested the complainant for financial assistance of Rs.1,50,000/- for the period of 6 months as hand loan assuring that he will repay the said amount after completion of 6 months with interest at the rate of 18% p.a and also offered to execute and issue a cheque for discharge of the said proposed loan. As the accused is his friend and well wisher, the complainant agreed to pay the said sum of Rs.1,50,000/- as hand loan for a period of 6 months, but he refused to take interest. Thereafter, 3 C.C.No.17927/2011 he has paid Rs.1,50,000/- in cash in the presence of witness and accused also acknowledged the same. Since the complainant refused the take interest the accused has issued the cheque bg.No.655862 dt. 9.11.2010 for a sum of Rs.1,50,000/- drawn on Canara Bank, Tumkur Road, Bangalore. While issuing the cheque, the accused had assured about honour of the cheque stating that he would make necessary arrangement of funds. After completion of the statutory period the accused has not paid the amount.
It is further averred that, as per the say of the accused on 9.11.2010 the complainant presented the cheque for collection through his Banker Canara Bank, Tumkur Road, Bangalore and it was dishonoured with an endorsement as 'funds insufficient" and endorsement was received by the complainant on 14.11.2010. Thereafter, the complainant issued a notice of demand against the accused on 7.12.2010 calling him to pay cheque amount within 15 days from the day of notice. The said notice was sent through registered & UCP. Notice sent through UCP was duly served upon the 4 C.C.No.17927/2011 accused. Hence there is deemed service of notice. The accused, inspite of service of notice, neither replied to the same nor paid the cheque amount. Hence, the complainant approached this court contending that, the accused has committed an offence punishable U/s.138 of N.I Act and prays to deal the accused in accordance with law.
3. On presentation of the complaint, this court has taken cognizance of the offence, Sworn statement of the complainant was recorded. On perusal of the documents and on hearing the complainant, process was issued against the accused. In pursuance of the process, the accused appeared before this court and enlarged on bail. Copies of the complaint papers supplied to him. Substance of accusation was readover and explained to the accused. Accused did not pleaded guilt and claims to be tried. Hence, the matter was posted for evidence of the complainant.
4. In order to prove the case of the complainant, he got examined himself as PW.1 & got marked 5 C.C.No.17927/2011 documents as Ex.P.1 to P.8 and closed his side evidence. After completion of the complainant evidence, the accused was examined under U/s.313 of Cr.P.C. and his statement was recorded. The accused denied all the incriminating evidence appeared against him and chosen to lead his defence evidence. To substantiate his defence and to falsify the claim of the complainant, the accused has examined himself as DW1 got marked document Ex.D.1. to D.10. DW2 was examined on behalf of the accused.
5. Heard arguments.
6. Upon reading the entire materials on record and on hearing the arguments the following points that arise for my consideration:
(i) Whether the complainant proves beyond all shadow of doubt that, the accused has committed an offence punishable U/s.138 N.I Act ?
What order?
7. My answer to the above points are as follows:-
Point No.1: In the Affirmative 6 C.C.No.17927/2011 Point No.2: As per the final order, for the following.
REASONS
8. Point No.i : As the accused did not pleaded guilty the complainant has chosen to examine himself as PW1 and got marked documents as Ex.P.1 to P.8.
9. As per the decision reported in ILR 2008 Kar. Pg. 4629 between Shivamurthy Vs.Amruthraj, and in another decision rendered by the Hon'ble Apex court in AIR 2008 SC 1325 between Krishna Janardharn Bhat Vs. Dattareya G. Hegde, in order to attract Sec.138 of N.I Act, the complainant has to satisfy 3 essential ingredients like, 1) there is legally enforceable debt, 2) that the cheque was drawn from the account of the Bank of the accused for discharge of whole or part of any debt or other liability which pre-supposes to be legally enforceable debt, 3) cheque so issued returned unpaid due to Insufficient of funds.
7 C.C.No.17927/2011
10. Keeping in view the ingredients of Sec.138 of N.I Act I proceed to discuss the documents of this case.
(a) Ex.P.1 is the Power of attorney issued by the Complainant in favour of M.Manjunath, who is the son of the complainant.
(b) Ex.P.2 cheque bg.No.655862 dt.09.11.2010 for Rs.1,50,000/-, drawn on Canara Bank, Tumkur Road, Bangalore. According to complainant & PW1, Ex.P.2(a) is the signature of the accused. On perusal of the original complaint, which is marked as Ex.P.8, it is clear that it buttress the stand taken by the complainant herein.
(c) Ex.P.3 is the cheque return memo, which shows that the above said cheque was returned unpaid dt.12.11.2010 because of the reason that, 'funds insufficient.' (d )It must be noted as per Clause (b) proviso to Sec.138 of N.I Act, the complainant was required to make a demand for payment of the said amount within 30 days from the date of receipt of cheque as un-paid. 8 C.C.No.17927/2011
(e) Ex.P.4 is copy of the legal notice dt.07.12.2010, which shows that the complainant made demand in writing calling upon the accused to make repayment of the said cheque amount of Rs.1,50,000/- by issuing notice against him which is within 30 days.
(f) Ex.P.5 to 7 are the RPAD postal receipt and UCP postal receipt & returned postal cover which is returned with shar "not claimed returned to sender", on 13.12.2010. As per Clause ( C) proviso to Sec.138 of N.I Act, the accused is entitle 15 days time to make payment of money covered under cheque. Further, as per Sec.142
(b) of N.I Act, complaint has to be filed within 30 days from the date of which the cause of action aroses.
Therefore, the complainant has filed this complaint well within time.
Thus, the complainant has fulfilled all the ingredients which were required for the completion of the offence punishable U/s.138 of N.I Act. 9 C.C.No.17927/2011
11. Keeping these documents in view, let us proceed to discuss that, whether the cheque in question belongs to the accused and whether the signature found on disputed cheque is that of the accused or not.
On looking the materials on record which shows that, there is no dispute so as to the fact that Ex.P.2 cheque is belongs to the accused Bank account and signature found on Ex.P.2(a) is belongs to the accused, as it is the specific defence of the accused that, the said cheque was not issued in favour of the complainant towards the discharge of any debt or liability. On the other hand, it was issued in favour of the one Prahallada, as security from whom he had borrowed a sum of Rs.10,000/- and the complainant by obtaining the said cheques from the Prahallada to make wrongful gain by creating the said cheque as document of this case has filed this false case against the accused, though there exists no debt or liability in between him and the complainant. Thus there is no dispute with respect to the fact that Ex.P.2 cheque belongs to the Bank account 10 C.C.No.17927/2011 of the accused and Ex.P.1(a) signature is the signature of the accused.
12. It is well settled that, admission furnishes best evidence as per the decision laid down in AIR 1981 Pg. 2085.
Thus in my opinion, the admission given by the accused is sufficient to come to conclusion about the execution of N.I Act (Cheque in question) is admitted as well as proved.
13. In view of the decision reported in 2010 SC 1898 between Rangappa Vs. Mohan, once the execution of Negotiable Instruments Act is either proved or admitted, then the court shall draw a presumption U/s.139 of N.I Act, in favour of the complainant to that effect that the said Negotiable Instrument i.e, the disputed cheque has been drawn for valid consideration and it is towards legally recoverable debt and it is drawn for valuable consideration. No doubt the presumption that arose in favour of the complainant U/s.139 of N.I At 11 C.C.No.17927/2011 is not conclusive proof but it is rebuttable one and it is to be rebutted by the accused with probable defence.
14. On perusal of the entire evidence on record that, it shows that the complainant maintained this complaint against the accused stating that he being closed friend and known person since several years had approached him for financial assistance of Rs.1,50,000/- as hand loan for a period of 6 months & towards the discharge of the same, the accused has issued the cheque bg.No.655862 dt.9.11.2010 for a sum of Rs.1,50,000/- drawn on Canara Bank, Tumkur Road, Bangalore. When the complainant presented the cheque for collection through his Banker Canara Bank, Tumkur Road, Bangalore, it was dishonoured with an endorsement as 'funds insufficient" and issued a notice of demand against the accused through registered post & UCP. Inspite of the same, the accused not complied with the demands and not replied. Hence, it is the allegations of the complainant that the accused has committed an offence punishable U/s.138 of N.I Act. 12 C.C.No.17927/2011
15. But it is the specific case of the accused that the complainant is a stranger and at no point of time, he had borrowed any loan from the complainant as claimed by the complainant. On the other hand, it is the specific defence of the accused that, he had borrowed loan of Rs.10,000/- from one Prahallada prior to retirement of the accused from the factory and at that time, the accused had issued a cheque towards the discharge of Rs.10,000/- as security and thereafter he had cleared the said loan amount and inspite of the same the said Prahallada had not returned the said cheque to the accused and the accused had also not asked for returned of the said cheque from the said Prahallada as he is his close friend. But the complainant by colluding with the said Prahallada by obtaining the said cheque and by misusing the same has filed of this false complaint, though at no point of time, he had borrowed any loan from the complainant.
16. To substantiate the said fact though accused counsel lengthily cross-examined PW1 i.e., the GPA 13 C.C.No.17927/2011 holder of the complainant, but not elicited any material admission from the mouth of PW1 either with regard to the fact that the accused is a stranger to the complainant or with respect to the non borrowing of hand loan from the complainant or about issuance of Ex.P.2 cheque in favour of Prahallada for having borrowed alleged loan of Rs.10,000/- etc., Hence, except bare suggestion and denial nothing has been elicited from the mouth of PW1. On the other hand, PW1 clearly stated that the accused used to borrow loan from his father and he also deposed that at the time of lending loan to the accused he was very much present and he also deposed that, accused used to come to the Milk shop of one Anantha Raju i.e, PW2. Further, PW2 also deposed that accused used to visit his shop frequently. Though accused denied the acquaintance of the complainant and PW2 with him, but during the course of cross-examination suggested PW1 that along with the complainant & PW2 also used lend loan in favour of loan Prahallada. This goes to show that the accused is known person to the complainant PW2 and so also to the said Prahallada. Further DW2 stated that PW2 used to come to the factory and was lending 14 C.C.No.17927/2011 loan. This clearly goes to show that accused and complainant though known to each other and they are friends along with PW2 but inspite of the same just to avoid his liability of repaying the debt taken such false defence.
17. Further though it is the specific case of the accused that, he had issued Ex.P.2 cheque in favour of his friend Prahallada as security for having borrowed loan of Rs.10,000/- from Prahallada. But during the course of cross-examination, the has not suggested with respect to borrowing of loan of Rs.10,000/- from the Prahallada. On the other hand, he had suggested that, he had issued Ex.P.1 cheque in favour of Prahallada in respect to some other transaction. Thus the defence taken by the accrued is not convincing one.
18. Even otherwise the accused has not examined the said Prahallada before this court to substantiate the fact that the said Prahallada was the friend of the accused and he had borrowed from the said Prahallada during the year 2001 and at that time, the said 15 C.C.No.17927/2011 Prahallada had obtained singed blank cheque from him in connection to the said loan as security and the said cheque was mis-used by the said Prahallada in collusion with this complainant and about filing of this false case.
19. If really the accused had given Ex.P.2 cheque in blank infavour of one Prahallada in relation to the alleged loan transaction of Rs.10,000/- and even after discharge of the said loan, if the said Prahallada had not returned the cheque etc., then definitely he would have taken any steps against the Prahallda i.e, he would have lodged complaint with the Police against the said Prahallada or he would have caused notice against him, calling him to return the alleged cheque. Because no prudent man will remain silent without taking any action against a person by giving signed blank cheque. But no such over tact is forth coming on the conduct of the accused. Though DW1 stated that he is a close friend and hence nothing will happen if he did not return the cheque etc., but the said explanation is not convincing and acceptable one.
16 C.C.No.17927/2011
20. If really, the complainant is a stranger to the accused and he has not borrowed any loan from the complainant and Ex.P.2 cheque was not issued in favour of the complainant towards the discharge of any debt or liability. But Ex.P.2 cheque was given in favour of one Prahallada during the year 2001 in connection to loan of Rs.10,000/- allegedly borrowed by him etc., then he had every opportunity to set up the said defence by giving the necessary reply to the notice of demand issued by the complainant on account of dishonor of cheque. But no such reply is given by the accused. On the other hand, he had taken the defence of non service of notice stating that he is residing at 5th Cross, Lakshmidevi Nagar since 32 years etc., and to prove the same he has produced documents like electricity bill, Progress card of his children as per Ex.D.1 to D.10. But as per copy of the pass book the address given in the notice, he is residing at; No.79, 3rd Cross, 1st Main, Lakshmidevinagar, Bangalore, and the said address tallies with complainant notice and it is admitted by the accused during the 17 C.C.No.17927/2011 course of cross-examination. This clearly goes to show that notice of demand is given to the correct address of the accused and inspite of service of notice against the accused under UCP, he has not collected the register post intentionally though intimation was duly delivered to him and inspite of the same he has not given any reply by taking his defence. Hence, the defence taken by the accused is nothing but after thought. Even otherwise, as aforesaid no material evidence is placed before the court to show that he did not borrow any loan from the complainant and Ex.P.2 cheque was not given by him in favour of the complainant towards discharge of debt or liability.
21. Though accused has examined one Ninge Gowda as DW2, his close friend & to substantiate his defence and though DW2 he deposed about borrowing of loan of Rs.10,000/- from one Prahallada during the year 2001-02 but in his chief evidence only, he had stated that the accused might have borrowed loan of Rs.10,000/- either from the said Prahallada or from any other person. This evidence clearly goes to show that, 18 C.C.No.17927/2011 DW2 does not aware about any transaction either in between the accused and the said Prahallada or about the transaction in between the accused and the complainant. But as he is one of the close friend of the accused he has given his evidence just to support him. Hence, the evidence of DW1 is not much helpful to the accused in establishing his defence.
22. Further, though accused examined DW2 before this court to prove his defence that he did not borrowed any loan from the complainant and he is stranger to the complainant etc., and on the other hand, he had borrowed loan from one Prahallada to the tune of Rs.10,000/- during the year 2001 and on that time, the Prahallada had obtained signed blank cheque from him as security and even after repayment of the loan to the said Prahallada, he had not returned the cheque, but the complainant by collecting the said cheque from the said Prahallada and by mis-using the same has filed this false complaint etc., but DW1 has deposed in his evidence that it was Anatha raju who had lend loan to the accused and he has not returned the cheque etc., but it is not the 19 C.C.No.17927/2011 defence of the accused that, he had borrowed loan from Anantha raju but it is his defence that, he had borrowed from one Prahallada. This goes to show that DW2 is not aware of anything about the transaction in between the complainant and the accused. Hence, his evidence is not helpful to the accused in proving his defence.
23. Further, at one stretch the accused has taken the defence that, there was no necessity for him to borrow the said loan from the complainant etc., But according to DW1 only, he had started Lakshmi Venkateshwara Service and Engineers and though he had denied the borrowing of loan from them including the complainant, but stated about borrowing of loan amount from one Prahallada. This clearly goes to show that, he had necessity of money for his business. Hence, the said defence of the accused is not probable one.
24. Further, at one stretch the accused made an attempt to show that there is difference of ink in writing in Ex.P.2. With this the accused made an attempt that the cheque was blank and it was filled up by the 20 C.C.No.17927/2011 complainant. Though PW1 deposed about difference of ink and Ex.P.2 was filled up by his father etc., but stated that, it was filled up by his father on due instructions of the accused. Even otherwise as per Sec. 20 of N.I Act it is read:
"Inchoate Stamped instruments :-
Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in (India), and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the same. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount."
Hence, the said defence also not helpful to the case of the accused in rebutting the presumption which arose in favour of the complainant. Hence, the said defence is not probable one.
25. Hence, with all these reasons, this court is of the opinion that the accused though made an attempt to 21 C.C.No.17927/2011 rebut the presumption available U/s.139 of N.I Act in favour of the complainant, but he has failed in her attempt. Hence, the onus not shifted on the shoulders of the complainant, on the other hand it rests on the shoulder of the accused only. Hence, I am of the opinion that, complainant has proved that the accused has committed an offence punishable U/s.138 of N.I Act. Hence, I answered Point No.1 in the Affirmative.
26. Point No.iv : In view of my discussions on Point No.1 in the Affirmative I proceed to pass the following.....
ORDER
Acting U/s.255(2) Cr.PC, the
accused is convicted for the offence
punishable U/s.138 of N.I.Act.
The accused shall pay a fine of
Rs.2,25,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for Six Months.
Out of the said amount,
Rs.2,20,000/- shall be paid to the
complainant as compensation, as
22 C.C.No.17927/2011
provided U/s.357 of Cr.P.C. and
Rs.5,000/- shall be remitted to the
state as fine.
(Dictated to the stenographer, transcribed by him, corrected and then pronounced in open court by me on this the 30th day of September, 2015) (C.G.Vishalakshi) XIII A.C.M.M., Bangalore.
ANNEXURE Witnesses examined on behalf of the complainant:
PW1 : S.N.Muniswamy, Documents marked on behalf of the complainant:
Ex.P.1 : Original GPA Ex.P.2 : Cheque Ex.P.3 : Bank Endorsement Ex.P.4 : Copy of the Legal Notice Ex.P.5 : RPAD Receipt Ex.P.6 : UCP Receipt Ex.P.7 : Returned postal cover Ex.P.8 : Complaint
Witnesses examined on behalf of the accused:
DW1 : Narsiyappa
DW2 : M.Ningegowda
23 C.C.No.17927/2011
Documents marked on behalf of the accused:
Ex.D.1 to 7 : Electricity Bills Ex.D.8 to 10 : Progress Record Book XIII A.C.M.M Bangalore.
• Accused copy furnished.
24 C.C.No.17927/2011
(Order typed vide separate Sheet) ORDER Acting U/s.255(2) Cr.PC, the accused is convicted for the offence punishable U/s.138 of N.I.Act.
The accused shall pay a fine of Rs.2,25,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for Six Months.
Out of the said amount, Rs.2,20,000/- shall be paid to the complainant as compensation, as provided U/s.357 of Cr.P.C. and Rs.5,000/- shall be remitted to the state as fine. (C.G.Vishalakshi) XIII A.C.M.M., Bangalore.