Bangalore District Court
Sri.B.Ramanjineyulu vs Sri.D.M.Shashi Shekar on 5 March, 2022
1 C.C. No.20690/2021 Judgt.
IN THE COURT OF THE XXI ACMM, BENGALURU
Dated: This the 05th day of March, 2022.
Present:
Smt. Reshma H.K., B.A.,LL.B.,
XXI ACMM, Bengaluru
C.C.No.20690/2021
Complainant : Sri.B.Ramanjineyulu,
S/o Chinnanarasimhappa,
Aged about 38 years,
R/at: No.9, Krishnappa Building,
Behind Central Bank of India,
2nd Cross, Ganeshnagar Layout,
Vidyaranyapura Post,
Bengaluru - 560 097.
(By Sri.A.J, adv.)
V/s
Accused : Sri.D.M.Shashi Shekar,
Father name not known,
Aged about 60 years,
R/at: No.232, 6th Cross,
Gandhinagar,
Bengaluru - 560 009.
(By Sri.P.R., Adv.)
JUDGMENT
This is the complaint filed by the complainant under section 200 of Cr.P.C. against the accused for the offence punishable under section 138 of Negotiable Instruments Act and to take cognizance of the offence to punish the accused in accordance with law.
2 C.C. No.20690/2021 Judgt.
2. The factual matrix of the complaint is that the complainant approached the accused for a shop premises for rental purpose to open a Men's parlor and the accused agreed to give his shop premises and asked the complainant to pay a sum of Rs.2,00,000/- as advance to the shop. Accordingly, complainant paid a sum of Rs.50,000/- by way of cash on 24.08.2018 and also paid a sum of Rs.48,000/- by way of cheque bearing No.013292 dated:24.09.2018 drawn on Central Bank of India, Kodigehalli Branch, Bengaluru and also paid Rs.2000/- by cash as token advance. Further, on 06.01.2018 paid Rs.1,00,000/- by way of cheque bearing No.013295 drawn on Central Bank of India, Kodigehalli Branch, Bengaluru, intotal complainant paid a sum of Rs.2,00,000/- to the accused. Further the case of the complainant is that, the accused assured that after finishing some repair works in the shop he will execute rental agreement and hand over the possession of the shop to the complainant, but after some time the accused has not executed rental agreement and even not given possession of the shop. Thereafter, complainant approached the accused and demanded to return the advance amount of Rs.2,00,000/-, after several requests accused paid a sum of Rs.1,00,000/- and prays time to return the balance 3 C.C. No.20690/2021 Judgt. amount. Further, after several requests made by the complainant to return the remaining amount of Rs.1,00,000/-, accused issued a cheque bearing No.069109 dated:10.02.2022 for an amount of Rs.50,000/- drawn on Central Bank of India, Sheshadri Road, Gandhinagar Branch in favour of complainant.
3. Further, as per the instruction of the accused, the complainant has presented the above said cheque for encashment on 10.02.2021 through his banker i.e., State Bank of India, Gandhinagar Branch, Bengaluru, but to the shock and surprise of the complainant said cheque returned as 'Payment Stopped by Drawer' as per the bank memo dated:12.02.2021. Thereafter, the complainant approached the accused and inform about the dishonor of the said cheque, but the accused has not bothered to repay the said amount. Thereafter, the complainant issued Legal notice dated:05.03.2021 to the accused through R.P.A.D calling upon him to pay the amount covered under the cheque within the stipulated period and the same was served to the accused on 06.03.2021. Inspite of service of notice accused failed to repay the borrowed amount. Hence, the complainant filed the present complaint against the accused for the offence punishable under section 138 of Negotiable Instrument Act. 4 C.C. No.20690/2021 Judgt.
4. This court after perusing records, cognizance of the offence was taken and there on sworn statement of the complainant was also recorded. The criminal case has been registered against the accused for the offence punishable under section 138 of N.I. Act.
5. Upon service of summons, accused appeared through his counsel and enlarged on bail. Thereafter, the court has recorded the plea of the accused and the accused did not pleaded guilty of the offence and claims to be tried. Hence, the case was posted for trial.
6. The complainant in order to prove his case, he has examined himself as PW-1 and got marked 09 documents i.e., Ex.P-1 to Ex.P-09. Original Cheque marked as Ex.P.1, Signature of accused marked as Ex.P.1(a), Return Memo marked as Ex.P.2, Legal Notice marked as Ex.P.3, RPAD Postal receipts marked as Ex.P.4, Track Consingment marked as Ex.P.5, Receipt marked as Ex.P.6, Reply notice marked as Ex.P.7, Account Statement marked as Ex.P.8 and Bank Pass Book marked as Ex.9.
7. After completion of the evidence of complainant, the substance of the evidence has been read over and explained to 5 C.C. No.20690/2021 Judgt. the accused under section 313 of Cr.P.C. the accused is denied the incriminating evidence available against them and choose to lead evidence and examined as DW.1.
8. The counsel for complainant filed Written Arguments and perused the materials placed before the court. The following points would arise for consideration;
1. Whether the complainant proves that the accused issued cheque bearing No.069109 dated:10.02.2021 for the legally enforceable debt of Rs.50,000/-, in favour of complainant and it was presented within the validity period and same is returned unpaid on account of "Payment Stopped by drawer" and thereby caused the dishonor of cheque and inspite of legal notice, the accused fail to make payment and thereby committed an offence punishable under section 138 of Negotiable Instrument Act?
2. What Order?
9. My findings on the above points are as under:-
Point No.1: In the "Affirmative"
Point No.2: As per the final orders for the following:6 C.C. No.20690/2021 Judgt.
BRIEF STATEMENT OF REASONS FOR THE DECISION
10. Point No.1:
On over all perusal of the oral and documentary evidence adduced by both the parties, it reveals that the case of the complainant is that the complainant paid Rs.2,00,000/- to the accused in the year 2018 as an advance amount to the shop premises of the accused with intend to open a saloon in the said premises. However, accused fails to hand over the premises to the complainant as agreed and hence complainant requested to return his advance amount. Further, the case of the complainant is that after several requests, accused repaid Rs.1,00,000/- and for the repayment of the remaining Rs.1,00,000/- the accused has issued a cheque bearing No.069109 dated:10.02.2022 for an amount of Rs.50,000/- drawn on Central Bank of India, Sheshadri Road, Gandhinagar Branch.
11. On the other hand, during the course of evidence, the accused admitted the borrowing of Rs.2,00,000/- from the complainant, but contended that said amount borrowed as a hand loan to renovate his residential and shop premises and does not received as an advance amount. Further the contention of the accused is that he has issued 4 cheques to the complainant 7 C.C. No.20690/2021 Judgt. for an amount of Rs.2,50,000/-. Thereafter, he has repaid Rs.1,00,000/- by way of cash to the complainant and in response he has returned one cheque, which was issued for an amount of Rs.1,00,000/-. Thereafter, the complainant got encashed two cheques for an amount of Rs.50,000/- each. Further, accused contended that for remaining one cheque he has issued stop payment instruction to the bank as he has cleared all the due amount to the complainant. Further stated that without returning the said cheque and without informing the accused the complainant has misused the given cheque bearing No.069109 and presented the same for encashment and same has been returned. Under the circumstances, it is worth to mention that once the cheque relates to the account of the accused and he accepts and admits the signature on the said cheque, then initial presumption as contemplated under section 139 of the N.I.Act has to be raised by the court infavour of the complainant.
12. Further, in a decision the Hon'ble Apex court, reported in AIR 2010 SC 1898 in a case of Rangappa V/s Mohan the Hon'ble Apex Court held that:-
"Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial 8 C.C. No.20690/2021 Judgt. presumption as contemplated under section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant. Therefore, in view of above said deposition, a presumption under section 139 of Negotiable Instruments Act can be drawn in favour of complainant that the said cheque was issued for a valid consideration. Now it is for the accused to rebut the said presumption. It is a settled law that though the onus on the accused to rebut the presumption is that of preponderance of probabilities but still the accused is required to adduce cogent evidence to rebut the presumption. Mere assertions and explanations of fact in the Court will not amount to rebuttal of presumption. In order to rebut the presumption under section 139 of N.I. Act, the accused by cogent evidence, has to prove the circumstance under which cheque was issued.
As per the above decision of the Hon'ble Apex Court, when accused admitted the issuance of cheque and its signature on the said cheque, then the burden shifted to the accused to prove that under which circumstances the cheque has been issued to the complainant. Hence, in the present case, complainant is successful in drawing initial presumption available in his favour.9 C.C. No.20690/2021 Judgt.
13. Further, to rebut the presumption available to the complainant, the accused stepped into the witness box and got examined himself as DW.1. On overall perusal of the evidence on record, it is crystal clear that during the course of cross examination, the accused/DW.1 clearly admitted the borrowing of Rs.2,00,000/- from the complainant. However, the contention of the accused is that he has issued 4 cheques to the complainant for a total amount of Rs.2,50,000/- as demanded by the complainant. Further, accused contended that he has paid Rs.1,00,000/- to the complainant and has taken back the cheque, which was issued for Rs.1,00,000/- from the complainant. Further, the complainant got encashed 2 cheqeus for Rs.50,000/- each and in total he has paid the entire Rs.2,00,000/- to the complainant. On the other hand, complainant admitted the receiving of Rs.1,00,000/- from the accused by producing two cheques. But, denied the alleged repayment of Rs.1,00,000/- by way of cash as contended by the accused.
14. Furthermore, during the course of evidence the accused contended that after the repayment of entire borrowed amount he has requested the complainant for returning of remaining one cheque, which was issued for Rs.50,000/-, but the complainant 10 C.C. No.20690/2021 Judgt. has not return the said cheque and hence he has issued direction to the bank to stop the payment towards the said cheque. Under the circumstances, I lay my hands to the decision reported in 2002 Crl.L.J 266 (SC), in a case of "M.M.T.C. Ltd. V/s Medchl Chemicals & Pharma (P) Ltd." The Supreme Court reiterated that;
"Even when the cheque is dishonoured by reason of stop payment instructions by virtue of section 139 the Court has to presume that the cheque was received by the holder for the dischage, in whole or in part, of any debt or liability. This being a rebuttable presumption, the accused can thus show that the 'Stop payment' instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there was sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then offence under section 138 would not be made out. Burden of so proving would be on the accused"11 C.C. No.20690/2021 Judgt.
15. Further, in a case of Goaplast Pvt Ltd V/s Chico Ursula D'Souza reported in 2004 Crl.L.J 664 (SC), the Hon'ble Supreme Court held that;
"Ordinarily, the stop payment instructions are issued to the Bank by the account holder when there is no sufficient amount in the account. The reason for stopping the payment, however, can be manifold. It is essential that to issue stop payment instructions, there must be funds in the accounts in the first place as on the date of signing of the cheque, the date of presentation of the cheque, the date on which stop payment instructions were issued to the Bank.
The ratio laid down in the above two decisions are aptly applicable to the instant case as in the entire evidence nowhere the accused produced a single document to show that there was sufficient balance in his account at the time of presentation of the Ex.P.1/Cheque and at the time of issuing stop payment instructions to the bank. Furthermore, the accused has given reply to the legal /Demand notice issued by the complainant and same is marked as Ex.P.7. On careful perusal of the Ex.P.7, it shows that the accused has not stated anything regarding the 12 C.C. No.20690/2021 Judgt. issuance of 4 cheques in favour of the complainant. Despite this, at para No.8 of Ex.P.7 accused denied the issuance of cheque in favour of the complainant. However, during the course of evidence the accused has taken a different contention and these two contentions of the accused creates doubt in the mind of court regarding the trustworthiness of the testimony of DW.1.
16. More so, the complainant has produced Ex.P.6, The Rental Agreement between the accused and complainant and it clearly indicates that the accused received amount from the complainant as alleged. Further, during the course of evidence, nowhere the accused denied his signature on Ex.P.6. Therefore, this court is of the view that it is unsafe to believe the words of accused as he has taken dual contention in his notice and in his evidence and which is quite contrary to each other.
17. It is worth to mention that when there is a presumption available in favour of the complainant regarding legally recoverable debt and the complainant successfully drawn that presumption, then the burden lies on the accused to prove his contention by adducing cogent evidence. Mere denial of the complainant case is not sufficient to prove the innocence of the 13 C.C. No.20690/2021 Judgt. accused. At this juncture, it is worth to relay on the decision passed by the Hon'ble Supreme Court of India in the case of T. Vasanthakumar -Vs- Vijayakumari reported in 2015(4) KCCR 2881 (SC), wherein which it is held that -
"Sections 138 and 139-Acquittal-if justified-Accused not disputing issuane of cheque and his signature on it, Plea that it was issued long back as security and that loan amount was repaid-Not supported by any evidence- Fact that date was printed, would not lend any evidence to case of accused-Acquittal not proper."
18. Further, the decision passed by the Hon'ble Supreme Court of India in the case of T.P. Murugan through Lrs. & Anr. -Vs- Bojan reported in 2018 SAR (Criminal) 923 wherein which it is held that -
" Secs. 139, 138- Dishonour of cheques-
Legally enforceable debt or liability -
Presumption- Under Section 139 of the N.I. Act, once a cheque has been signed and issued in favour of the holder, there is statutory presumption that it is issued in discharge of a legally enforceable debt or liability. This presumption is a rebuttable one, if the issuer of the cheque is able to discharge the burden 14 C.C. No.20690/2021 Judgt. that it was issued for some other purpose like security for a loan - In the present case, the respondent has failed to produce any credible evidence to rebut the statutory presumption- The appellants have proved their case by overwhelming evidence to establish that the two cheques were issued towards the discharge of an existing liability and legally enforceable debt- the respondent having admitted that the cheques and Pronote were signed by him, the presumption under S. 139 would operate- the respondent failed to rebut the presumption by adducing any cogent or credible evidence- hence, his defence is rejected - In view of the facts and circumstances, the impugned order passed in Criminal Revision Petition is hereby set aside, and the order of conviction and fine passed by the Trial Court is restored."
19. Further, in a decision reported in 2014 (3) DCR 558 in a case of "Sripad V/s Ramdas M Shet" the Hon'ble court held that;
" Mere a distorted version or mere taking up the plea or the defence that he is not liable to pay any amount or he discharge the amount are not sufficient to put back the burden on to the complainant 15 C.C. No.20690/2021 Judgt. to prove his case beyond reasonable doubt"
The ratio laid down in all these decisions are aptly applicable to the present case. In the case on hand, though the accused contended that there is no legally recoverable debt as he had issued Ext.P.1 /Cheque as a security, but failed to prove his case by adducing cogent and reliable evidence. A mere saying is not sufficient to rebut the statutory presumption available to the complainant.
20. More so, the complainant succeeded in drawing above stated statutory presumption in his favour. Furthermore, on basis of the material evidence placed before the court, it clearly establishes that the accused had issued Ext.P.1 cheque for an amount of Rs.50,000/- to the complainant and the said cheque presented on the said day it was returned without honoring the same on account of "Payment stopped by drawer"
maintained in the account of the accused. Further on perusing the EX-P.4, the postal receipt and Ex.P.3 the legal notice all these discloses that, inspite of the intimation of the dishonour of cheque accused did not comply the demand made in the legal notice. All these facts clearly establishes that, accused committed an offence under section 138 of N.I. Act. Therefore, I 16 C.C. No.20690/2021 Judgt. answered this point in the "Affirmative".
21. Point NO.2:- Having held the complainant has proved point No.1, the next aspect that arises for my consideration is regarding sentence to be imposed on the accused for having committed an offense punishable under section 138 of Negotiable Instrument Act. It could be seen from the materials that the complainant presented the cheque on 10.02.2021 and the same was returned unpaid. Further, accused fails to repay the said amount about nearly 1 year and made the complainant to suffer for want of funds in her hands. So I am of the opinion that it is required to direct the accused to pay the compensation to the complainant and in that event only it will meet the ends of justice. Hence, for the foregoing reasons and finding to point No.1, I proceed to pass the following:
ORDER By invoking the power conferred under section 255(2) of Cr.P.C., the accused is convicted and sentenced to pay a fine of Rs.60,000/- for the offence punishable U/S.138 of N.I. Act and in default to pay the fine amount the accused shall undergo simple Imprisonment for one year.17 C.C. No.20690/2021 Judgt.
Further, Acting under section 357(1)
(b) of Cr.P.C. the entire fine amount of Rs.55,000/- on recovery shall be paid to the complainant as compensation.
Further, accused is directed to deposit the fine amount of Rs.5,000/- to the State out of fine amount.
Bail bond and surety bond of the accused shall stand cancelled.
Supply a free copy of this judgment to the accused.
Issue conviction warrant.
(Dictated to the Stenographer directly on computer, typed by her, corrected by me, signed then pronounced in the open court on this the 05 th day of March, 2022.) (SMT.RESHMA H.K.) XXI ACMM, BENGALURU ANNEXURE
1. List of witnesses examined on behalf of the complainant:
PW-1 : B.Ramanjineyulu
2. List of witnesses examined on behalf of the accused:
DW-1 : B.M.Shashishekar
18 C.C. No.20690/2021 Judgt.
3. List of documents marked on behalf the
complainant:
Ex.P.1 : Original Cheque
Ex.P.1(a) : Signature of accused
Ex.P.2 : Return Memo
Ex.P.3 : Legal Notice
Ex.P.4 : RPAD Postal receipts
Ex.P.5 : Track Consignment
Ex.P.6 : Receipt
Ex.P.7 : Reply notice
Ex.P.8 : Account statement
Ex.P.9 : Bank Pass Book
4. List of documents marked on behalf of the accused:
-NIL-
(SMT.RESHMA H.K.) XXI ACMM, Bengaluru