Bangalore District Court
S.Nagaraj vs R.Panneer Selvam on 10 August, 2016
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 10th day of August - 2016
PRESENT: SRI. S.G.SALAGARE, B.Sc., LL.B.,(Spl)
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.29932/2010
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : S.Nagaraj,
No.171, 2nd Floor,
1st Cross, 4th Main,
Rajajinagar Industrial Town,
Bengaluru-10.
(Rep. by Sri.A.M.Siddaraju, Adv.)
V/S
Accused : R.Panneer Selvam,
S/o.Late.N.Ranganathan,
No.136. Chamundinagar,
5th Block, Rajajinagar,
Bengaluru-10.
(Rep. by Sri.E.Rajagopal, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Convicted.
DATE OF ORDER : 10.08.2016.
(S.G.SALAGARE)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.29932/2010
JUDGMENT
This complaint is filed by the complainant against the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the complaint are as under:
The complainant and accused knew each other.
During the last week of September, 2008, the accused approached and requested the complainant for financial help of Rs.1,50,000/- in order to meet his urgent domestic commitment and promised to repay the same within 5 days. The complainant has arranged and paid an amount of Rs.1 lakh to the accused on 10.10.2008 and on that day the accused has executed promissory note and consideration receipt in favour of complainant. The accused in order to discharge his liability has issued a post dated cheque bearing No.867801, dated:15.10.2008 drawn for Rs.1 lakh drawn on Post Office Savings Bank, Basaveswarnagar Post Office, Bengaluru in favour of complainant and assured that the said cheque will be honoured on its presentation.Judgment 3 C.C.29932/2010
It is further case of complainant that, the accused had requested the complainant to present the said cheque on any day after 25.01.2009, accordingly, the complainant has presented the said cheque for collection. On 28.01.2009, the said cheque was returned unpaid for the reasons "Funds Insufficient" in the account maintained by the accused. On 31.01.2009, the complainant brought this fact to the knowledge of accused by issuing demand notice through RPAD and UCP to accused and the said demand notice was duly served upon accused on 02.02.2009. After receipt of notice the accused has neither paid the cheque amount nor replied the notice. Hence, the complainant has filed the complaint against the accused for the offence punishable under Section 138 of Negotiable Instruments Act and prayed to punish the accused with maximum sentence and to award compensation to the complainant.
3. My predecessor after perusing records, took cognizance of offence, and recorded sworn statement, ordered to register Criminal Case against the accused for the offence punishable under Section 138 of Negotiable Instruments Act. The accused after service of summons Judgment 4 C.C.29932/2010 put his appearance through his counsel and has been enlarged on bail. Thereafter, the court has recorded the plea of accused and the accused has pleaded not guilty of the offence and claims to be tried. Hence, the case was posted for trial.
4. The complainant in order to prove his case, got examined himself as PW-1 and got marked ten documents at Exs.P1 to P10 and closed his side. After completion of the evidence of complainant, the substance of the evidence has been read over and explained to the accused under Section 313 of Cr.P.C., the accused denied all the incriminating evidence available against him. The accused in order to disprove his case got examined himself as DW.1 and not produced any document in support of his defence.
5. I have heard the arguments of both sides, and perused the materials placed on record.
6. The following points would arise for my consideration:
1) Whether the complainant proves beyond all reasonable doubt that, he had advanced Rs.1 lakh hand loan to the accused and Ex.P3-
cheque bearing No.867801, dated:15.10.2008 drawn for Rs.1 lakh drawn on Post Office Judgment 5 C.C.29932/2010 Savings Bank, Basaveswarnagar Post Office, Bengaluru is issued in favour of complainant for discharge of the said amount, and on its presentation, cheque came to be dishonoured for the reasons 'Funds Insufficient' and even after service of notice, the accused has failed to repay the amount and thereby accused is guilty of the offence punishable under Section 138 of N.I.Act?
2) What Order?
7. My findings on the above points are as under:
Point No.1 : In the Affirmative Point No.2 : As per final order, for the following:
REASONS
8. POINT NO.1: It is alleged that, the accused had borrowed an amount of Rs.1 lakh from complainant, and to discharge his liability has issued a cheque bearing No.867801, dated:15.10.2008 drawn for Rs.1 lakh drawn on Post Office Savings Bank, Basaveswarnagar Post Office, Bengaluru in favour of complainant. When said cheque was presented for encashment, same was dishonoured for the reasons 'Funds Insufficient'. Even after issuance of demand notice, accused has not made any arrangement for Judgment 6 C.C.29932/2010 return of cheque amount. The accused has denied the accusation made against him.
9. To prove his case, the complainant got examined himself as PW.1 by filing his affidavit in lieu of his examination in chief evidence. In the affidavit, PW.1 has reiterated the averments made in the complaint and in support of his contention; PW.1 has got marked ten documents. Among them On demand Promissory Note and Consideration Receipt are marked as Exs.P1 and P2 and they are executed by the accused in favour of complainant on 10.10.2008. The signatures of accused are marked as Exs.P1(a) and P2(a). Ex.P3 is the cheque bearing No.867801, dated:15.10.2008 drawn for Rs.1 lakh is marked as Ex.P3. The said cheque is drawn on Post Office Savings Bank, Basaveswarnagar Post Office, Bengaluru in favour of complainant. The signature of accused is marked as Ex.P3(a). Ex.P4 is the Postal Department Endorsement issued by the Basaveswaranagar Post Office, the contents of Ex.P4 disclose that, the cheque bearing No.867801, dated:15.10.2008 drawn for Rs.1 lakh is dishonoured for the reasons 'Funds Insufficient'. Ex.P5 is the Demand Judgment 7 C.C.29932/2010 Notice dated:31.01.2009, the recitals of Ex.P5 disclose that, the complainant has issued this notice to the address of accused through his counsel. By issuing this notice complainant called upon the accused to repay the cheque amount of Rs.1 lakh within 15 days from the date of receipt of notice. Ex.P6 is the Postal Receipt, Ex.P7 is the UCP Receipt, Ex.P8 is the Unserved Postal Cover, Ex.P9 is the Undertaking letter executed by the accused in favour of complainant dated:05.03.2011and Ex.P10 is the Complaint lodged by the complainant against the accused.
10. In the cross-examination of PW.1, the accused counsel suggested to PW.1 that, "he will arrange for bank loan to purchase auto to the accused and obtained a signed blank cheque, On demand pronote and signed blank paper, and the said cheque and On demand pronote are misused by complainant". This suggestion is clearly denied by the PW.1. PW.1 further denied the suggestion of accused counsel that, complainant has fabricated Ex.P9 on signed blank paper obtained from accused. From this suggestion it is crystal clear that, signed blank cheque, On demand pronote and signed blank paper are taken from accused. Judgment 8 C.C.29932/2010 Accused has not specifically denied the execution of Exs.P1, P2, P3 and P9 in the cross-examination of PW.1. But in the chief examination of DW.1, accused has denied his signatures marked at Ex.P1(a), P2(a) and P9(a). Accused has not specifically denied the signature marked on Ex.P3 in the cross-examination of PW.1. But in the cross-examination of PW.1, accused counsel has admitted that, cheque and On demand pronote are belongs to accused. In the chief-examination of DW.1, accused has denied the signatures marked on Exs.P2, P3 and P9. When accused has suggested that signed cheque and On demand pronote are obtained by complainant then it is proved that signatures marked at Exs.P1(a) to P3(a) are that of him. When the accused has admitted cheque Ex.P3 and signature marked at Ex.P3(a) the presumption arises in favour of complainant under Section 118(a) of Negotiable Instruments Act that Ex.P3 cheque is issued for valid consideration. On perusal of documents, it reveals that complainant has complied all the provisions of Section 139 of Negotiable Instruments Act and therefore, the presumption arises under Section 139 of Negotiable Instruments Act that accused has issued Ex.P3 cheque for Judgment 9 C.C.29932/2010 discharge of legally enforceable debt. The presumption arisen in favour of complainant under Sections 118(a) and 139 of Negotiable Instruments act are rebuttable presumption and accused can rebut the presumption by adducing defence evidence or by cross-examining PW.1 or by both.
11. To rebut the presumptions accused has choosen to cross-examine PW.1 and also adduced defence evidence. When the accused has suggested during the course of cross-examination of PW.1 that complainant has obtained the signed blank cheque, On demand pronote and signed blank paper, then an inference has to be drawn that accused has issued the cheque, On demand pronote in favour of complainant for discharge of legally recoverable debt. Now the burden is casted on accused to rebut the presumptions arisen in favour of complainant.
At this stage this court has gone through the decision reported in AIR 2010 SC 1898 between Rangappa V/s. Mohan, the Hon'ble Apex court is held that:
"The presumption mandated by section 139 of the Act is in the nature of a rebuttable presumption and it is open to the accused to raise Judgment 10 C.C.29932/2010 a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard of proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is Judgment 11 C.C.29932/2010 that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own".
12. As per the principle laid down in the above case, the accused has to bring on record or adduce the probable evidence which falsifies the case of complainant. It is not necessary that, accused should disprove the case of complainant beyond reasonable doubt. The evidence adduced by accused must show that the case of complainant is not true. Accused to rebut the presumptions has got examined himself as DW.1. In the examination in chief, accused has stated that, complainant is an advocate and he worked for about 20 years with complainant. Complainant was also doing finance business along with advocate profession. He was recovering the loan amount from the customers of complainant and paying to the complainant. Complainant Judgment 12 C.C.29932/2010 was paying salary of Rs.4,000/- to Rs.5,000/- per month to him. This statement of accused clearly proves that, accused and complainant were well acquainted with each other. It further proves that, complainant was having sufficient money to lend an amount of Rs.1 lakh as he was financing the others and accused was recovering the amount from customers. Accused has taken specific defence that, he was auto driver; complainant had assured that he will arrange for loan to the accused for purchasing auto and in that aspect complainant had taken a cheque and on demand from him, but complainant has not sanctioned the said loan. Complainant has also not paid the 8 months salary to him. In the cross-examination of PW.1 the accused counsel has clearly suggested that, "DgÉÆæ DmÉÆà qÉÊæªÀgï DV PÉ®¸À ªÀiÁqÀÄvÁÛgÉ, DgÉÆæUÉ DmÉÆà Rjâ¸À®Ä ¨ÁåAQ¤AzÀ ¸Á® ªÀiÁr¹ PÉÆqÀÄvÉÛãÉAzÀÄ ºÉý ¸À» ªÀiÁrzÀ SÁ° ZÉPÀÌ£ÀÄß, DArªÀiÁåAqï ¥Àæ£ÉÆÃmï£ÀÄß ¥ÀqÉ¢zÉÝ, ¸ÀzÀj ZÉPÀÌ£ÀÄß ªÀÄvÀÄÛ DArªÀiÁåAqï ¥Àæ£ÉÆÃl£ÀÄß zÀÄgÀÄ¥ÀAiÉÆÃUÀ¥Àr¹PÉÆArgÀÄvÉÛãÉ, ªÀÄvÀÄÛ DgÉÆæ ¤ÃrzÀ ¸À» ªÀiÁrzÀ SÁ° ºÁ¼ÉAiÀÄ ªÉÄÃ¯É ¤¦-9£ÀÄß ¸À馅 ªÀiÁrgÀÄvÉÛãÉ". All these suggestions are denied by PW.1. But from these suggestions it is crystal clear accused has executed on Judgment 13 C.C.29932/2010 demand pronote and consideration receipt and also issued the Ex.P3 cheque. Accused has clearly stated, signed pronote, cheque and blank paper were obtained by the complainant. It is not the case of accused that, the said signed documents are other than Ex.P1, P2, P3 and P9. Admittedly accused is the person who was recovering the amount from the customers of complainant. Thus an inference can be drawn that accused was having worldly knowledge. Accused has not stated from which bank the complainant assured him to sanction the loan. Accused has not stated that, complainant obtained his signature on loan documents. Unless the loan application is submitted it cannot be considered that loan will be sanctioned to accused.
13. No prudent man would issue the blank signed cheque, On demand pronote, Consideration receipt and blank signed white paper without submitting loan application. Accused has not stated from which company the quotation was obtained for purchasing the auto. Thus the accused has failed to substantiate his defence. Accused counsel submitted that, there is no signature of Judgment 14 C.C.29932/2010 witnesses on Ex.P1 and P2. It is not necessary to get the signature of witnesses On demand pronote and consideration receipt. These documents are executed by accused on 10.10.2008 in favour of complainant. It is the contention of complainant that on the date of giving amount accused has executed Ex.P1 and P2 and on 15.10.2008 accused has issued Ex.P3 cheque for repayment of loan amount. Thus accused has failed to rebut the presumptions arisen in favour of complainant. On the contrary, complainant by producing Exs.P1 to P10 and by adducing his oral evidence has proved the existence of legally recoverable debt and accused has issued Ex.P3 cheque for discharge of his legally recoverable debt.
14. Demand notice was issued through RPAD and UCP. UCP notice is duly served upon accused. The RPAD notice was returned back with an endorsement 'intimation delivered'. Accused has not called upon the postal authorities to disprove that notice is not served upon him. Once, the complainant drops the letter in the post box is sufficient that he has issued the notice. Accused has not given reply to the notice issued by the complainant. Ex.P4 Judgment 15 C.C.29932/2010 clearly disclosed that cheque is dishonoured for the reasons 'funds insufficient' in the account of accused. Thus complainant has proved the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act. Hence, in view of the above said reasons, I hold point No.1 in the Affirmative.
15. 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. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act.
The accused is sentenced to pay total fine amount of Rs.1,25,000/- (Rupees One lakh twenty five thousand only). In default accused shall under go simple imprisonment for 3 (three) months.
Out of the total fine amount a sum of Rs.1,20,000/- (Rupees One lakh twenty thousand only) 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 remitted as fine to the State.Judgment 16 C.C.29932/2010
The bail bond and surety bond of the accused stands cancelled.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 10th day of August - 2016) (S.G.SALAGARE) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : S.Nagaraj List of Exhibits marked on behalf of Complainant:
Ex.P1 : On demand promissory note Ex.P1(a) : Signature of accused Ex.P2 : Consideration receipt Ex.P2(a) : Signature of accused Ex.P3 : Original Cheque Ex.P3(a) : Signature of accused Ex.P4 : Postal department endorsement Ex.P5 : Office copy of legal notice Ex.P6 : Postal receipt Ex.P7 : UCP receipt Ex.P8 : Unserved postal cover Ex.P9 : Undertaking dtd:05.03.2011 Ex.P10 : Complaint
List of Witnesses examined on behalf of the defence:
DW.1 : Panneer Selvam List of Exhibits marked on behalf of defence:
- Nil -
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.Judgment 17 C.C.29932/2010
10.08.2016.
Comp -
Accd -
For Judgment Judgment pronounced in the open court vide separate order.
*****
ORDER
Acting under Section 255(2) of
Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act.
The accused is sentenced to pay total fine amount of Rs.1,25,000/- (Rupees One lakh twenty five thousand only). In default accused shall under go simple imprisonment for 3 (three) months.
Out of the total fine amount a sum of Rs.1,20,000/- (Rupees One lakh twenty thousand only) 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 remitted as fine to the State.
Judgment 18 C.C.29932/2010The bail bond and surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.