Bangalore District Court
For The Offence Punishable U/S.138 Of vs By Way Of Cash. In All on 31 August, 2015
IN THE COURT OF THE XV ADDL CHIEF
METROPOLITAN MAGISTRATE: AT; BANGALORE.
Dated this the 31st day of August 2015
Present: Sri V.S.Pandit., B.A., LL B.,
XV Addl. C.M.M., Bangalore.
Judgement U/s.355 of the Cr.P.C. 1973.
1.Sl.No.of the case CC No.25082/2014
2.Name of the Complainant: OM Purushotham
S/o O Peddappa, 53 Yrs.,
R/a No.187/A, 7th Main,
Hongasandra, Begur Road,
Bangalore-560 068.
3.Name of the accused: Sri Mohan
S/o Late Krishnappa, 30 Yrs.,
R/o 6th Main,
Near Govt., Primary School and
Ambedkar Samudaya Bhavana,
Hongasandra, Begur Road,
Bangalore.560 068.
4.The offence complained off U/s.138 of Negotiable
: Instruments Act.
5.Plea of the accused: Pleaded not guilty.
6.Final Order: Acting U/s.255(2 ) Cr.P.C.,
Accused is Convicted.
7.Date of final Order 31st day of August 2015.
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1. The accused has been prosecuted by the
complainant for the offence punishable U/s.138 of
Negotiable Instrument Act - 1881 (hereinafter referred as
NI Act for brevity)
2. Case of the complainant in brief is that:-
a. Complainant is acquainted with the accused
since 7-8 years. On 9.6.2011 accused had borrowed a
sum of Rs.188,000/-. The said amount was paid by way
of cheque bearing NO.635744 drawn on State Bank of
India, Hongasandra Branch, Bangalore-68. It is the
further case of the complainant that in the last week of
June 2011 a sum of Rs.1,62,000/- was paid to the
accused by way of cash. In all, accused had borrowed a
sum of Rs.3,50,000/- for the purpose of construction of
house. The accused assured to repay the amount with
period of two years.
b. It is the case of the complainant after
completion of two years, complainant approached the
accused and requested to refund the amount. On
persistent demand, accused issued cheque for
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Rs.3,50,000/- drawn on Karantaka Bank Ltd.,
Naganathapura Branch, Banglaore-100. Accused
assured the complainant that the cheque will be
honoured on presentation. Cheque was presented for
encashment through State Bank of India, Hongasandra
Branch, Bangalore. But the chqeque returned with an
endorsement Funds Insufficient. Bank has issued memo
on 9.8.2014.
c. Thereafter complainant got issued legal notice on
13.08.2014 by registered post Acknowledgement Due
demanding the repayment of the amount. The said
notice was returned as left/sender insufficient address.
The notice sent to the business address of the accused
duly served on 18.8.2014. Therefore, it is the grievance
of the complainant that despite service of notice, there
was no any compliance. As such the complainant is
constrained to file the complaint.
3. My learned Predecessor in the Office after taking
cognizance issued summons to the accused. In response
to the summons, accused appeared and was enlarged on
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bail. Plea for the offence was read over and explained to
the accused. Accused pleaded not guilty and pleads her
innocence.
4. To sustain the charge leveled against the accused,
complainant examined himself as PW.1 and documents at
Ex.P-1 to P-20 got marked on behalf of the complainant.
5. After conclusion of the evidence of complainant,
statement of the accused U/s.313 Cr.P.C. was recorded.
Accused examined himself as DW.1 and got marked
documents at Ex.D.1 to D.6. One witness by name
Shivashnakar got examined as DW.2 for the accused.
6. Heard both sides.
7. The points that arise for my consideration are
as under:-
1. Whether the complainant has proved
that cheque was issued by the accused
for discharge of legally enforceable debt,
the same was returned unpaid for the
reason 'FUNDS INSUFFICIENT' and
notice was not complied. Hence accused
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committed an offence under Sec.138 of
N.I. Act ?
2. What Order ?
8.My findings on the above points are as follows:
Point No.1 in the Affirmative,
Point No.2 as per final order,
for the following
REASONS
9.Point No.1 - Complainant has come up with the
specific case alleging that on 9.6.2011 a sum of
Rs.1,88,000/- was paid by way of cheuqe. Further in the
last week of June 2011 a sum of Rs.1,62,000/- was paid
by way of cash. To refund the amount in question, cheque
was issued, on presentation the said cheque was returned
unpaid for the reason Insufficient Funds.
10.It is the case of the complainant that he is
acquainted with the complainant. Complainant is the
President of Hongasandra Ayyappaswamy Temple. The
accused had undertaken the work of aluminum fabrication
works of the temple. The estimated cost of the work was
Rs.1,90,000/-. Accused had given concession of
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Rs.2,000/- and for balance of Rs.1,88,000/- cheque was
issued by the complainant. The amount in question i.e.,
Rs.1,88,000/- was paid by the complainant for the
purpose of aluminum fabrication works of the temple and
supply of raw materials.
11.it is specifically denied by the accused with regard
to borrowing of loan to the extent of Rs.1,88,000/- by way
of cheque and Rs.1,62,000/- by way of cash. It is also
denied with regard to issuance of cheque as per Ex.P.P1.
The complainant in the pretext of getting loan from some
others, had obtained the blank cheque and property
documents. When the accused had insisted for return of
property documents, on one pretext or other the other, it
was postponed by the complainant. Finally, the mother of
the accused has filed the complaint to the police as per
Ex.P.D1. After that complainant admitted for having
returning the cheque, but instead of returning the cheque,
has filed the false case. It is contended except signature,
rest of the contents have been filled by the complainant
according to his convenience. Proper reply was issued as
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per Ex.D5. Therefore, for all these reasons, accused
sought for acquittal.
12.The Lrd., counsel for the complainant at the
outset has submitted that drawing of the cheque from the
account of the accused and signature found in the
impugned cheque is not denied by the accused. As such
Court has to presume that the cheque is issued for
discharge of liability. It is for the accused to rebut the
presumption. It is contended that except production of
Ex.D3 and D4, there is no any documents to show that
aluminum fabrication works of the temple is carried out by
the accused. The cheque in question was returned unpaid
for the reason Insufficient Funds. Had the accused issued
the cheque for the security purpose in that event the
accused could have intimated the bank to make the stop
payment. No such attempt was made by the accused.
Therefore, it is the arguments of the learned counsel for
the complainant that accused has failed to rebut the
presumption. As such sought for conviction.
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13.As against these arguments the learned counsel
for the accused as submitted written arguments as well as
oral arguments. The counsel for the accused has
submitted that soon after receipt of the notice, reply notice
was issued, which is at Ex.P.D5. In Ex.P.D5 the accused
has clarified the reasons for issuance of the cheque and
also set up the specific defence with regard to carrying out
of aluminum fabrication works of the temple. It is also
stated in the reply notice that complainant had taken the
blank cheque from the accused on the pretext of getting
loan from the others for the purpose of construction of the
house. The complainant purposely didn't mention the
receipt of the reply notice. No any rejoinder was filed.
Therefore, whatever stated in the notice is admitted by the
complainant.
14.It is contended that as on the date of issuance of
the cheque, it is contended that when the amount of
Rs1,88,000/- was paid a sum of Rs.1,91, 425/- was lying
in the bank account of the complainant. Further as on the
date of alleged payment of Rs1,62,000/- in the last week of
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June 2011, a sum of Rs.4,925/- is lying in the bank
account of the complainant. Therefore, it is totally false
claim made by the complainant with regard to the loan of
Rs.3,50,000/-. If really a sum of Rs.1,88,000/- was paid
as a loan to the accused what made the complainant to
make payment of balance amount of Rs.1,62,000/- by way
of cheque. The complainant could have issue cheaque to
this amount also.
15.It is also contended that according to the
allegation, a sum of Rs.3,50,000/- was paid without
obtaining any security documents. Further no any
interest is charged for a period of two years. The source of
income where the income is generated is not stated in the
complaint. There is nothing on record to show that
complainant is capable of advancing such substantial
amount. Therefore, for all these reasons, counsel for the
accused sought for acquittal.
16.It is not in dispute with regard to the signature
and drawing of the cheque from the account of the
accused. Therefore, initial presumption has to be raised in
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favour of the complainant that cheque is issued for
discharge of liability. However, the said presumption is
rebuttal in nature and it is for the accused to rebut the
presumption by placing direct or circumstantial evidence.
The onus is that of preponderance of probabilities.
17.In the instant case it is the specific defence of the
accused that he undertook the aluminum fabrication work
of the temple and it is in that context a sum of
Rs.1,88,000/- was paid by way of cheque. He has
categorically denied with regard to payment of
Rs.162,000/-. It is his specific defence that his mother
had undertaken construction work, complainant lured the
mother of the accused that he will get the loan from others
and secured the blank cheque from the accused and
misusing of the same present complaint is filed.
18.On perusal of the cross-examination directed to
the complainant suggestion was put with regard to the
payment made by way of cheque for the purpose of
aluminum fabrication work of the temple. But the
suggestion has been emphatically denied by the
11 CC NO.25082/2014
complainant. Apart from that the accused has also
produced cash bills Ex.D3 and D4. Further accused has
also produced Ex.P9 to P19 Photographs of the temple,
further Ex.P20 CD. All these records does not prove that
accused had undertaken the aluminum fabrication work of
the temple. Further accused has relied up Ex.D1 receipt
issued by the police for having received the complaint and
Ex.D2 is the copy of the complaint submitted by the
mother of the accused with regard to the misuse of the
cheque. These Ex.D1 and D2 though admitted by the
complainant, but these records are subsequent to the
complaint filed by the complainant. It is significant to
note that the accused alleges for having issued reply notice
to the legal notice as per Ex.D5. According to the accused
as per Ex.D6, the complainant had received the notice on
16.9.14. But the suggestion forwarded to the complainant
with regard to issuance of reply notice is categorically
denied by the complainant. There is no records to show
that reply legal notice was issued by registered post A.D.
The receipt issued by the postal authorities is not
12 CC NO.25082/2014
produced. The signature in Ex.P.D6 is also denied by the
complainant. Therefore, the say of the counsel for the
accused that non-issuance of rejoinder to Ex.P.D5
unsustainable. The issuance of reply notice in the form of
Ex.P.D5 is not proved by the accused.
19.The cheque in question is returned with an
endorsement Funds Insufficient. Had the cheque issued
for security purpose, the accused could have intimated the
bank to make stop payment of the cheque. Apart from
that suggestion was made to the complainant with regard
to difference in handwritings compared with the signature.
However, no useful result was extracted in the form of
admission.
20.On careful scrutiny of Ex.P8 bank statement of
the complainant, wherein, State Bank of India,
Hongasandra Branch, Bangalore, issued a statement.
Wherein there is a recital, which is at Ex.P8a. Wherein on
9.6.2011 a sum of Rs.1,88,000/- was paid to the accused
by way of cheque. The accused has failed to rebut the
presumption by placing materials that the said amount of
13 CC NO.25082/2014
Rs.1,88,000/- was paid for the purpose of aluminum
fabrication works of the temple. It is not in dispute with
regard to the construction work undertaken by the mother
of the accused. In the absence of material with regard to
the payment made in lieu of temple work it is to be held
that the accused had borrowed a sum of Rs.3,50,000/- for
the purpose of construction work of the house. It is
immaterial whether the construction work was carried out
by the mother of the accused or the accused. When the
cheque is issued from the account of the accused, it is his
responsibility to make the payment. Under such
circumstances, the contention urged that cheque was not
issued for discharge of liability cannot be sustained.
21.Therefore, after ovrall examination of the
material placed on record by the complainant, it is a fit
case where in presumption envisaged U/s118 and 139 of
NI Act is to be invoked. On the contrary, material placed
on record by the accused is not sufficient to rebut the
presumption, as such I answer the point No.1 in the
Affirmative.
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22.Point No.2 - In the result, I proceed to pass the
following
ORDER
Acting Under Sec.255(2) Cr.P.C., the accused is convicted for the offence punishable u/s.138 of the N.I.Act and accused sentenced to pay fine amount of Rs.3,60,000/- (Rupees Three lakh Sixty thousand only.) Out of the said amount, an amount of Rs.3,55,000/- (Rupees Three lakh fifty-five thousand only.) shall be paid to the complainant as compensation and balance amount of Rs.5,000/- shall go to State.
In default, he shall undergo SI for a period of one year.
Copy of the judgment shall be furnished to the accused at free of cost. (Dictated to the Stenographer, transcript thereof is computerized and printout taken by her is verified and then pronounced by me in Open Court on this the 31st day of August 2015.) (V.S.Pandit) XV Addl. CMM., Bangalore.
15 CC NO.25082/2014ANNEXURE Witnesses examined for the Complainant:-
PW-1 OM Purushotham Documents marked for the Complainant:-
Ex.P1 Cheque, Ex.P1a Signature of accused
Ex.P2 and 3 Bank Endorsement Ex.P4 and 5 Postal Receipts Ex.P6 Copy of Legal Notice Ex.P7 Postal Cover Ex.P8 Statement of Account Ex.P8a Relevant Portion.
Ex.P9 to 19 Photographs Ex.P20 CD Witnesses examined For Defence:
DW.1 Mohan DW.2 Shivashankar
Documents marked for Defence:-
Ex.D1 Acknoweldgement Ex.D2 Copy of the Police Complaint
Ex.D3 and 4 Invoice Bills Ex.D5 Reply notice Ex.D6 Postal Acknowledgement Due XV Addl.CMM., Bangalore 16 CC NO.25082/2014 31.08.2015 Separate order pas sed and pronounced in the open Court.
ORDER Acting Under Sec.255(2) Cr.P.C., the accused is convicted for the offence punishable u/s.138 of the N.I.Act and accused sentenced to pay fine amount of Rs.3,60,000/- (Rupees Three lakh Sixty thousand only.) Out of the said amount, an amount of Rs.3,55,000/- (Rupees Three lakh fifty-five thousand only.) shall be paid to the complainant as compensation and balance amount of Rs.5,000/- shall go to State.
In default, he shall undergo SI for a period of one year.
Copy of the judgment shall be furnished to the accused at free of cost.
XV Addl., CMM., Bangalore.
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