Bangalore District Court
Has Filed This Complaint Praying For ... vs Punishing Him And For Awarding ... on 22 February, 2016
SCCH-14 1 CC No.21845/2013
IN THE COURT OF THE XL ADDL.CHIEF METROPOLITAN
MAGISTRATE, BANGALORE CITY. SCCH-14
PRESENT: Basavaraj Chengti., B.Com.,LL.B.,(spl)
XL ACMM,
BANGALORE.
C.C.No.21845/2013
Dated this the 22nd day of February 2016
1. Sl.No. of the case C.C. No.21845/2013
2. The date of Institution 15.04.2013
3. The date of commencement of
the evidence 06.05.2015
4. Name of the Complainant R.Ramachandra Reddy
S/o late M.Rama Reddy,
Aged about 69 years,
No.19, Ist floor,
Muthulakshmi Nilaya,
9th cross, 2nd main,
Maruthi Nagar,
Madiwala, Bangalore-560 068.
(By pleader Sri TKR)
5. Name of the Accused P.Krishna Reddy,
S/o late Pillappa,
Aged about 62 years,
No.97/3, Ist floor,
8th main, 13th cross,
Wilson Garden,
Bangalore-560 030.
(By pleader Sri MS)
[
6. The offence complained of or Under Sec.138 of N.I. Act.
proved
7. Plea of the accused on his Pleaded not guilty
examination
8 Final Order Accused is convicted.
9. Date of such order 22.02.2016.
SCCH-14 2 CC No.21845/2013
JUDGMENT
This is a complaint filed by the complainant against the accused for the offence punishable U/Sec.138 of Negotiable Instruments Act (hereinafter called the Act).
2. Brief averments of the complaint are as under:
The complainant and accused are known to each other for a long time. The accused sought financial accommodation for a short term basis for a sum of Rs.16,00,000/- which the complainant has paid as follows:
Date of payment Amount paid
04.02.2013 Rs.5,00,000/-
05.02.2013 Rs.5,00,000/-
06.02.2013 Rs.6,00,000/-
Total Rs.16,00,000/-
For repayment of the said amount of Rs.16,00,000/-, the accused issued to the complainant a cheque bearing No.604970 dt.18.02.2013 drawn on Canara Bank, Hombegowda Nagar, Bangalore-27. The complainant has presented the said cheque on 22.02.2013 through his banker Bangalore City Co-operative Bank, Koramangala Branch Bangalore for encashment, but the cheque was dishonored and returned with an endorsement "insufficient fund" vide memo dated 23.02.2013. Therefore, the complainant got issued a legal notice to the accused on 20.03.2013, calling upon him to pay the amount of cheque. Inspite of service of notice, the accused has failed to pay the amount of cheque, but he has given an untenable reply dated 30.03.2013. Thus, the accused has SCCH-14 3 CC No.21845/2013 committed the offence punishable U/s 138 of the Act. Hence, the complainant has filed this complaint praying for convicting the accused, punishing him and for awarding compensation.
3. On the basis of the complaint, cognizance of offence was taken and the complaint was registered in PCR No.7381/2013. Then, sworn statement of the complainant was recorded. After hearing the complainant and his counsel, the court found sufficient material to issue process against the accused for the offence punishable U/s 138 of the Act. Accordingly, this criminal case was registered against the accused for the said offence and process was issued. Initially, the complaint was presented before 13th ACMM, Bangalore and it was transferred to this court. In the pursuance of the process, the accused has appeared before the court through his counsel. He is enlarged on bail. Then, substance of accusation was read over and explained to the accused. He has pleaded not guilty. Hence, the complainant was called upon to prove his case.
4. During evidence, the complainant has examined himself as PW.1 and got marked documents as Ex.P1 to Ex.P6, 8 to 12. Complaint is marked as Ex.P7. Then, statement of accused was recorded. The accused has examined himself as DW.1 and examined one witness as DW.2 and got marked documents as Ex.D1 and 2. Ex.P12 was marked during the cross-examination of DW.2.
5. Heard the arguments. The counsel for the complainant has relied upon following rulings;
1. 2015 (4) KCCR 2881 SC: T.Vasanthakumar Vs., Vijayakumari SCCH-14 4 CC No.21845/2013
2. AIR 2000 Kant 169: T.Maregowda & Ors., Vs., Thippamma & Ors.,
3. AIR 2010 SC 1898 : Rangappa Vs., Sri.Mohan
4. SCC 20 of the NI Act.
The counsel for the accused has relied upon following rulings;
1. AIR 1963 SC 746: M.S Anirudhan Vs., Thomco's Bank Ltd.,
2. AIR 1982 Kar 226: Mysore (Now Karnataka) State Road Tranpsort Corporation, Bangalore Vs., Somashankar, N.R.,
3. 2015 (1) SCC 99: K.Subramani Vs., K.Damodaranaidu
4. CC No.1406/2015: Anjur Gupta Vs., Braj Mohan Pendey
5. 2012 (3) KCCR 2057: Verryya Vs., G.K.Madivalar
6. 2005 Crl.L.J 578: Amaravathi Chits Investments Vs., T.M Vaidyanathan
7. 2011 Crl.L.J 552: Amzad Pasha Vs., H.N.Lakshmana
8. 2004 (1) Crimes 567: Avon Organics Ltd., Vs., Poineer Products Lit &Ors.,
9. 2004(1) crimes 1: State of Punjab Vs., Bhag Singh
10. 2015 (4) KCCR 2881: T.Vasanthakumar Vs., Vijayakumari I have gone through the said rulings and perused the records.
6. Now the points arise for my consideration are:
1. Whether the complainant has proved that the accused has issued Ex.P-1 cheque in his favour towards discharge of legally enforceable debt without maintaining sufficient balance in his bank account and failed to pay the cheque amount within time in spite of service of demand notice?
2. What order ?SCCH-14 5 CC No.21845/2013
7. My findings are:
POINT NO.1 : In affirmative.
POINT NO.2 : AS PER FINAL ORDER.
REASONS
8. POINT NO.1: It is the case of the complainant that he and the accused are friends, that the accused has borrowed Rs.16,00,000/- from him in the month of February-2013 and issued Ex.P1 cheque for Rs.16,00,000/- in his favour towards repayment of borrowed amount, that the said cheque came to be dishonored for insufficient funds and then he got issued legal notice to the accused calling upon him to pay the amount of cheque, that instead of making payment of cheque amount, the accused got issued an untenable reply denying his liability to pay the amount of cheque. Hence, he has alleged that the accused has committed the offence punishable U/Sec.138 of the Act. In order to prove his case, he has relied upon his own oral evidence and documentary evidence at Ex.P1 to 6. He got marked the complaint as Ex.P7. After disclosure of defence by the accused during his cross-examination, the complainant has got marked copy of cheque bearing 408645 dated 23.04.2006 drawn on Canara Bank Hombegowda Nagar branch, Bangalore for Rs.5,00,000/-, pass book of his SB account No.8501 of Canara Bank Hombegowda Nagar Branch, certificate issued by his Banker regarding encashment of cheque bearing No.408645, copy of complaint in CC No.21633/2012 filed by one K.V Krishna Reddy against the accused as Ex.P8 to 11.
SCCH-14 6 CC No.21845/20139. On perusal of oral evidence of PW.1 and documents at Ex.P1 to 6, it reveals that a cheque is issued by the accused in favour of the complainant for Rs.16,00,000/- which came to be dishonored for insufficient funds on 23.02.2013, that the complainant has got issued a legal notice demanding the accused to pay the amount of cheque on 06.03.2013 and it was duly served on the accused on 18.03.2013, that the accused has issued reply on 30.03.2013 denying the issuance of cheque for Rs.16,00,000/- in favour of the complainant and his liability to pay the amount of cheque to him, that the accused has alleged about misuse of his blank cheques which were given to the complainant in the year 2006. The said facts clearly indicate that the accused has not paid the amount of cheque to the complainant after the service of legal notice dt.06.03.2013. It is not the defence of the accused that he was having sufficient funds in his bank account as on the date of cheque or on the date of its presentation to the bank for encashment. The accused has admitted that the cheque at Ex.P1 is his cheque and it bears his signature. He has admitted the issuance of reply notice which clearly indicates that the demand notice was duly served upon him on 18.03.2013. The cheque at Ex.P1 is drawn in the name of the complainant. It was duly signed by the accused. The cheque is dated 18.02.2013 and it was presented for encashment on 22.02.2013 as per Ex.P3. The said cheque was dishonoured on 23.02.2013 vide memo at Ex.P2. Notice dated 06.03.2013 is within 30 days from the date of dishonour of cheque. It was served on the accused on 18.03.2013. The accused has issued reply to the notice, but he has not paid the amount of SCCH-14 7 CC No.21845/2013 cheque. There was 15 days time to pay the amount of cheque which came to be expired on 02.04.2013. Cause of action to file the complaint was arose to the complainant on 03.04.2013. This complaint came to be filed on 15.04.2013 which is well within time. Thus, the complainant has complied all requirements of Sec.138 and 142 of the Act. He has discharge his primary burden to prove the ingredients of Sec.138 of the Act. Hence, the Court is bound to draw presumptions U/Sec.118 and 139 of the Act. The said presumptions are rebuttable presumptions. The accused has to rebut the said presumptions by probable defence. The degree of proof required from the accused is of preponderance of probability.
10. The accused has disclosed his defence after issuance of statutory notice before filing of the complaint by way of reply. He has denied the borrowing of Rs.16,00,000/- from the complainant and issuance of alleged cheque to him towards discharge of debt. He has contended that he borrowed some loan from the complainant in the year 2006 by pledging some documents and giving some cheques, that he repaid entire amount to the complainant in the year 2007 and got back original documents, but the complainant has not returned his cheques stating that they were misplaced, that due to friendship and confidence, he did not demand the same, that now the complainant has misused the said cheques, filled up his name and amount and presented the same. He has further contended that the complainant has handed over some cheques retained by him to Gopala Reddy, N.Ravi Kumar and Pilla Reddy and got presented the cheques in their names for taking revenge. (Emphasis is mine).
SCCH-14 8 CC No.21845/201311. The accused has not disclosed the amount of loan borrowed from the complainant in the year 2006 and how many cheques were given to him. The words used in the notice imply that the accused has indicated the delivery of more than one cheque to the complainant at the time of borrowing loan from him in the year 2006. It is his specific contention as per the reply that the cheque at Ex.P1 is the cheque delivered to the complainant at the time of borrowing previous loan.
12. PW.1 was cross examined twice, once prior to marking of Ex.P8 to 11 and second time, after marking of the same. Both times, borrowing of Rs.16,00,000/- and issuance of Ex.P1 cheque for repayment are disputed. During the first cross-examination, PW.1 was suggested that Ex.P1 is the cheque issued long back in the year 2006 towards repayment of small amount borrowed from him. The said suggestions read as under:
"It is true to suggest that the accused has borrowed a small amount from me in the year 2006. Witness volunteers that the accused borrowed Rs.5,00,000/- at that time and had repaid it. It is false to suggest that the cheque at Ex.P1 was delivered to me by the accused in the year 2006 in respect of the said earlier money transaction. It is false to suggest that the accused is not liable to pay me any amount and I have filed a false against him".
At that time, PW.1 was not suggested about delivery 10 cheques, encashment of one of those cheques, retention of remaining 9 cheques. There was no contention by the accused during said cross-examination that Ex.P1 is one of those SCCH-14 9 CC No.21845/2013 10 cheques delivered to complainant at the time of borrowing loan on previous occasion. However, PW.1 was cross examined as to his capacity to lend, his source of income, non disclosure of transaction to IT department, not ascertaining the details of contract work of accused, change of ink in writings over cheque and signature. PW.1 has admitted that he has not withdrawn Rs.16,00,000/- from bank for lending it to the accused, that he has not shown the transaction in his IT returns, that he has not obtained any document other than cheque from the accused, that contents of the cheque are in his hand writing. These admissions made the accused to rely the ruling at Sl.No.1 to 8 and 10 wherein it is held as under:
AIR 1963 SC 748 "Contract Act (1872),S.133- Instrument of guarantee- Alteration on instrument while in custody of guarantor and principal debtor-Alteration of benefit and guarantor-Alteration whether substantial-Guarantor, if can avoid instrument of guarantee".
AIR 1982 KAR 227:
(A) Negotiable Instruments Act (26 of 1881), Ss.87, 20 and 80- Printed Pronote form0Interest column left blank was not an incomplete document under S.20 - Blank filed up by promise without promisor's consent was material alteration".
(2015) 1 SCC 99 "Debt, Financial and Monetary Laws-
Negotiable Instruments Act, 1881 - Ss.118 and 139 - Dishonour of cheque - Legally recoverable debt not proved as complainant could not prove source of income from which alleged loan was made SCCH-14 10 CC No.21845/2013 to appellant accused- Presumption in favour of holder of cheque, hence, held, stood rebutted- Acquittal restored".
CC No.1406/2015 "12. In the present case, the complainant in his complaint and evidence by way of affidavit failed to disclose the date and amount of the alleged loan given to the accused for the reasons best known to him. The complainant admittedly has not produced any document on record to prove the fact of loan allegedly given to the accused. The said loan amount was given in cash as alleged by the complainant. In his cross examination, the complainant submitted that he has not shown the loan amount of Rs. 5 lacs in his ITR. Complainant in his cross examination simply stated that "
.......I did not withdraw the amount of Rs. 5 lacs from my bank account which was allegedly given to the accused. I cannot produce any documents on record to prove that I was having Rs. 5 lacs in cash with me on the date when Ankur Gupta Vs. Braj Mohan Pandey page 5 of 6 the same was given to the accused.........". Hence, the said amount was unaccounted money and it was not a legally recoverable debt. It was held in case tilted as G. Pankajakshi Amma case (supra) that if these are unaccounted transactions then they are illegal transactions. No court can come to the aid of the party in an illegal transaction. Hence, complainant has miserably failed to prove the fact that there is a legally recoverable debt payable by the accused".
2012 (3) KCCR 2057 "A. NEGOTIABLE INSTRUMENTS ACT, 1881, Section 138- Office under - Revision SCCH-14 11 CC No.21845/2013 against conviction and sentence under Section 397 and 401 of Cr.P.C-
complainant's case that he has lent Rs.2,00,000/- to accused and that the cheque was issue in discharge of debt-
Except cheque no other document-
Complainant running a Tailoring shop on foot path with a ten shed- At no point of time had a bank balance of more than Rs.50,000/-- No proof as to other source of income from land - No evidence that he has a Bank balance of Rs.2,00,000/- on the day he has alleged to have advanced the loan - His Civil Suit was dismissed as not proved- Accused's contention that cheque given to his counsel was misused by complainant and his Advocate".
2005 Crl. L.J 576 "Negotiable Instruments Act (26 of 1881), Ss.87, 138- Dishonour of cheque-
Material alteration - Forensic and handwriting expert- clearly indicating that some characters were written using ink and some using ball point pen- Figures inserted using different ink- Material alteration in date of cheque for purpose of limitation, proved- Accused acquitted". 2011 Crl.L.J 552 "(B) Negotiable Instruments Act (26 of 1881), S.138 - Dishonour of cheque -
Accused alleged to have taken loan from complainant- Complainant has not placed any evidence to show that he had financial capacity to lend substantial amount of Rs.4,50,000/- - Admittedly no document evidencing the loan transaction has come into existence - Case of complainant that he had lent Rs.4,50,000/- to the respondent is highly improbable and not acceptable- None of witnesses in presence of whom loan amount was paid by complainant SCCH-14 12 CC No.21845/2013 examined by complaint - Adverse inference can be drawn against complainant -
Accused liable to be acquitted".
2004 (1) Crimes 567 "Negotiable Instruments Act (26 of 1881), Sections 5, 6, 87, 138 and 139 -
Dishonour of cheque - Acquittal by trial court - Appeal - Respondent issued blank cheque without mentioning date and amount and sent it with a letter questing complainant to present it after a month-
Question whether blank cheque will come within definition of cheque? - If cheque is not drawn for a specified amount it would not fall within definition of bill of exchange- Act of complainant in filing up amount portion and date was a material change and it could not be enforced even though it was issued for legal liability - Alteration without consent of party who issued the cheque rendered cheque invalid Acquittal called for no interference".
2015 (4) KCCR 2881 (SC) Negotiable Instruments Act 1881 -
Sections 138 and 139- Acquittal- If justified - Accused not disputing issuance 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".
13. Income Tax department is for levying and collecting tax on our income and not on transactions. An assessee is required to declare his income in ITR and not his transactions. PW.1 has stated that he was not doing money lending business and he has not charged any interest on the amount paid to the accused. Hence, question of showing about loan transaction in IT return does not SCCH-14 13 CC No.21845/2013 arise. PW.1 was asked about his source, but his capacity to lend Rs.16,00,000/- is not denied. He has questioned as to documents that how he collected the amount, but he was not suggested that he was not having funds on the relevant date to lend it to the accused. DW.1 has admitted that complainant is financially sound and he owns several properties. Hence, rulings at Sl.No.3 to 5 and 7 are not applicable to facts of this case.
14. The accused has taken up a specific contention during cross-examination of PW.1 at second time that the complainant has obtained 10 cheques from him as security in connection with the transaction taken place in the year 2006, that even after completion of said transaction, the complainant retained 9 cheques, that the cheque at Ex.P1 was misused by the complainant. The said 10 cheques theory is an improvement of the defence taken in reply notice at Ex.P7 and of the defence taken during cross-examination of PW.1 at the first occasion. The said improvement is a material improvement and it creates doubt.
15. The accused has relied upon rulings at Sl.No.1, 2, 6 and 8 in view of admission of PW.1 regarding difference of ink between contents of cheque and signature on it, regarding filling up the contents of cheque by himself. Material alteration as can be gathered from the said rulings is that a change or alteration to deceive the drawer or making it without consent or knowledge of the maker. Admissions of PW.1 do not indicate that he wrote the contents of cheque to deceive the accused or against his intention without his consent or knowledge. Sec.20 of the Act reads as under:
SCCH-14 14 CC No.21845/2013Sec.20 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 given 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 stamp. 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: provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder".
16. Our Hon'ble High Court has held in ruling reported in AIR 2000 KAR 169 as under:
"Negotiable Instruments Act, 1881- Sections 118, 121- Civil Procedure Code, 1908 (CPC) Section 115-Evidence Act, 1872-Sections 101, 103, 114- Dishonour of cheque-Execution of a promissory note- The trial Court framed as many as eight points for determination and holding that the plaintiffs have not proved execution of the promissory notes and the necessity of the defendants to prove that no consideration was passed under the promissory notes, the suits were ultimately dismissed- If a blank promissory note is given, it cannot be taken as a defence to avoid a decree based on such instrument, once it is found that the document produced before the court satisfies the requirements of a promissory note within the meaning of the Negotiable Instruments Act. The instrument may be wholly blank or incomplete in particular in either case, the holder has the SCCH-14 15 CC No.21845/2013 authority to make or complete the instrument as a negotiable so wide that the party so signing is bound to be a holder in due course-
No doubt, the learned counsel for the respondent relies revision to interfere, with reference to the finding of fact rendered by the Small Causes Court, but those powers do not restrict interference in cases where the law is misunderstood and the finding is an error apparent on the face of the record". Ex.P8 is the copy of cheque bearing No.408645 dt.23.04.2006. The accused has admitted the issuance of said cheque in favour of the complainant in respect of previous transaction. Ex.P9 pass book and Ex.P10 certificate of banker confirm that original of Ex.P8 cheque was encashed by the complainant on 23.04.2006. There is no dispute as to payment made to the complainant under said cheque. DW.1 has admitted that contents of cheque at Ex.P8 were also in the handwriting of the complainant, that he used to issue cheques as proof of advancing of loan. On perusal of Ex.P1 and 8, it reveals that contents of both cheques are in the handwriting of same person i.e., of the complainant. These admissions and observation make it clear that the accused was issuing cheques evidencing the loan transaction and was asking the payee to write the contents. Therefore, the accused cannot be permitted to take a defence of material alteration now. He has admitted the signature of Ex.P1 and above ruling relied by the complainant is applicable to this case. The accused is bound by the contents of Ex.P1. Rulings relied upon by him do not come to his rescue.
17. The counsel for the accused has pointed out the admission of PW.1 as to not having transaction with the accused SCCH-14 16 CC No.21845/2013 after 2006 and before 2013 and argued that the accused has not borrowed any loan from the complainant as alleged. But, it is to be noted that the complainant has admitted as to not having any transaction before 2013, but not during 2013. The transaction of this case is stated to have taken place in February-2013. Hence, argument of the counsel for the accused holds no water.
18. The accused has denied all incriminating evidence against him as false during statement. He has stated that he did not borrow any amount from the complainant as alleged and he has properly replied to notice. To prove his defence, he has examined himself as DW.1 and examined his banker as DW.2. He has got marked copy of memorandum of deposit of title deed and bank statements as Ex.D1, 2, 2(a).
19. DW.1:Krishnareddy has deposed that he borrowed Rs.3,00,000/- from the complainant in the year 2003 under Ex.D1 by depositing title deeds of his property and at that time, the complainant has obtained Ex.P1 from him in blank as security for repayment of amount, that the said cheque was among 10 cheques which were obtained by the complainant at the time of payment of Rs.3,00,000/-, that he has repaid the borrowed amount with interest of Rs.2,00,000/- in the year 2006 to complainant under Ex.P8 which was one of the cheques among 10 cheques, that the complainant has retained 9 cheques stating that they were misplaced, that the complainant has misused his blank signed cheques and filed this case in his name, other cases through his friends by name Ravi Kumar, Gopala Reddy and Pilla Reddy. Ex.D1 is copy of memorandum of deposit of title deed dt.06.06.2003. The SCCH-14 17 CC No.21845/2013 accused has admitted the transaction between him and the complainant mentioned in Ex.D1. He has borrowed Rs.3,00,000/- from the complainant on 06.06.2003 by depositing title deeds of his property bearing Sy No.34/1A, situated at Kudlu village, Sarjapur Hobli, Anekal Taluk, Bangalore. He has repaid the borrowed amount with interest of Rs.2,00,000/- i.e., Rs.5,00,000/- to the complainant under Ex.P8 on 23.04.2006. Ex.P9 and 10 confirm the encashment of said cheque. DW.1 has admitted the return of title deeds by the complainant after payment of said amount. He has denied the return of original of Ex.D1 at one breath. He has specifically stated that he sold the said site and original of Ex.D1 was given to purchaser at another breath. This indicates that the accused is telling a lie.
20. DW.1 Krishnareddy has stated in his examination-in- chief as under:
"The said cheque is old cheque of the year 2005. I gave it to complainant in the year 2005".
He has further stated in his examination-in-chief only that the cheque in question is one of the 10 cheques obtained by the complainant from him at the time of payment of Rs.3,00,000/-. As per Ex.D1, the accused has borrowed Rs.3,00,000/- from the complainant on 06.06.2003. His 10 cheques theory indicates that Ex.P1 was delivered to the complainant on 06.06.2003. Thus, evidence of DW.1 suffers from material contradiction and inconsistency.
SCCH-14 18 CC No.21845/201321. Evidence of DW.1 goes to indicate that Ex.P1 and Ex.P8 are among the 10 cheques given to the complainant on 06.06.2003. The accused has examined DW.2 Vijaya Kumar to prove the date of issuance of cheque book pertaining to Ex.P1. His evidence and bank statements at Ex.D2, 2(a) establish that the cheque at Ex.P1 is an old cheque, that cheque book pertaining to Ex.P1 was issued to the accused on 03.12.2004, that Ex.P1 is non CTS cheque. His following admissions go in favour of complainant.
"It is true to suggest that we will not have any track of issuance of cheque by the customers, but it will be maintained in the system. It is true to suggest that we will not insist the customer for using all the cheques in a cheque book before issuing new cheque book. Witness volunteers that normally we allow the customers to retain 2-3 cheques while issuing new cheque book. It is true to suggest that we have no control over the issuance of the said retained cheques by the customers".
22. The evidence of DW.2 and contents of Ex.D2 reveals that a cheque book containing 10 leaves bearing No.604961 to 604970 was issued to the accused on 03.12.2004. This falsifies the evidence of DW.1 that he delivered 10 cheques to the complainant at the time of payment of Rs.3,00,000/- i.e., on 06.06.2003.
23. Ex.P1 is cheque bearing No.604970. It means, it was the last cheque in the cheque book issued to the accused on 03.12.2004. Ex.P8 is cheque bearing No.408645. This makes it clear that both the cheques are of different series. The cheques in the series of Ex.P8 were used in April-2006 indicating that cheque book of Ex.P1 and that of Ex.P8 were issued to the accused on different SCCH-14 19 CC No.21845/2013 dates. So, question of delivering Ex.P1 and 8 to the complainant on the same date does not arise and it was quite impossible. This aspect also falsifies the evidence of DW.1 as to delivery of blank cheques to the complainant.
24. DW.1 has stated that he delivered 10 cheques in blank to complainant and one among them was encashed and other cheques are misused to file this case in the name of complainant and other cases in the name of Ravi Kumar, Gopala Reddy and Pilla Reddy. DW.1 has admitted that Pilla Reddy has filed 4 cheques bounce cases, Gopal Reddy has filed 3 cases and Ravi Kumar has filed 2 cases. Total number of cases filed by those 3 persons comes to 9. One cheque was encashed by the complainant. It means, the cheque at Ex.P1 was not among the said 10 cheques.
25. DW.1 has stated that he used to borrow money to invest in construction business, that he used to issue cheques for repayment of borrowed amount, that he was doing his financial transactions responsibly. He has further stated that Ex.D1 contains all terms and conditions agreed between him and the complainant, that there is no reference in Ex.D1 regarding delivery of 10 blank cheques to the complainant, that there was no need for him to give additional security to the transaction of Ex.D.1 These admissions clearly indicate that no blank cheque was given to complainant for the transaction mentioned in Ex.D1. If at all any cheque was given, same would have been obtained back on payment of amount under Ex.P8. DW.1 admits return of title deeds and original of Ex.D1. Hence, his evidence as to delivery 10 cheques and retention of 9 cheques by the complainant is unbelievable.
SCCH-14 20 CC No.21845/201326. DW.1 has stated as under during cross-examination:
"I have delivered the said cheques to the complainant at the time of execution of Ex.D1. I have document to show that I delivered 10 cheques to the complainant on the date of Ex.D1. I have obtained acknowledgement from the complainant regarding delivery of said cheques. I have to search for it in my house. I don't remember the contents of said acknowledgement. It is true to suggest that I have not handed over the said acknowledgement to my counsel at the time of issuing reply notice".
The above evidence of DW.1 that he delivered Ex.P1 on the date of Ex.D1 is falsified by the evidence of DW.2 and contents of Ex.D2. The accused has not produced the said acknowledgement which he stated to have obtained from the complainant regarding delivery of blank cheques. Non production of such acknowledgment is fatal to the defence of the accused.
27. Ex.D2 bank statement reveals that cheque No.604961, 604962 and 604969 were encashed on 10.12.2004, 12.12.2004 and 25.01.2005 for Rs.1,630/-, Rs.500/- and Rs.7,500/- by different persons. The said cheques were for paltry sum and the persons encashed the same are not related to the complainant. The cheque at Ex.P1 is the last cheque in the said cheque book. Other 6 cheques of the said cheque book are not at all presented for encasement. There is no control over issuance of cheque by the drawer. The payee does not know that the cheque issued to him is an old cheque or a new one. Hence, contention of the accused that the cheque is of year 2004 is not sufficient to hold that it was issued in the year 2004 or 2005. Encashment of cheques bearing SCCH-14 21 CC No.21845/2013 No.60491, 604962 and 604969 also falsifies the evidence of DW.1 that he has issued 10 blank cheques to the complainant on the date of Ex.D1. Evidence of DW.1 suffers from material inconsistency. Evidence of DW.2 and contents of Ex.D1 and 2 are contradictory to the defence of the accused and go in favour of the complainant. Thus, the accused has miserable failed to prove his defence. His blank cheque theory is improbable and unbelievable. Presumptions U/Sec.118 and 139 of the Act mandates the court to draw a presumption that the cheque at Ex.P1 is issued by the accused in favour of the complainant for consideration and towards discharge of debt or liability. The said presumptions remained unrebutted. Evidence of DW.1 and 2 and contents of Ex.D1 and 2 are not sufficient to rebut the case of the complainant and to rebut the legal presumptions. Evidence, of PW.1 is corroborated by the contents of Ex.P1 to 6, 8 to 10. Ex.P11 and admissions of DW.1 reveal that the accused is facing several other cases of cheque bounce. The oral and documentary evidence of complainant establish his case. Thus, the complainant has proved the point under consideration. The accused has failed to pay the amount of cheque within stipulated time and thereby committed the offence punishable U/Sec.138 of the Act. Hence, I answer the point No.1 in affirmative.
28. POINT NO.2: In view of above discussion and finding, I pass following:
ORDER The accused is found guilty and is convicted U/s 255(2) of Cr.P.C. for the offence punishable U/s 138 of the Negotiable Instruments Act.SCCH-14 22 CC No.21845/2013
The accused is sentenced to pay a fine of Rs.32,00,000/-. In default of payment of fine amount, the accused has to undergo SI for 6 months.
Out of fine amount, Rs.31,90,000/- shall be paid to the complainant as compensation.
The bail bond of accused stands cancelled.
(Dictated to the Stenographer, directly on computer and then corrected by me and pronounced in the open court, on this the 22nd day of February 2016.) BASAVARAJ CHENGTI XL ACMM, BANGALORE.
SCCH-14 23 CC No.21845/2013ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT:
P.W.1 - Ramachandra Reddy LIST OF DOCUMENT MARKED ON BEHALF OF THE COMPLAINANT:
Ex.P1 Cheque
Ex.P1(a) Signature of the accused
Ex.P2 Bank Endorsement
Ex.P3 Bank challan
Ex.P4 Copy of legal notice
Ex.P5 Acknowledgments
Ex.P6 Reply notice
Ex.P7 Complaint
Ex.P8 Xerox copy of cheque bearing No.408645
Ex.P9 Pass book of Canara Bank
Ex.P10 Certificate issued by Canara Bank
Ex.P11 Certified copy of complaint in CC No.21633/12
Ex.P12 Cover of Cheque book
Ex.P12(a) Information to customer
LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENCE:
D.W.1 - P.Krishnareddy
D.W2 K.S.Vijaya Kumar
LIST OF DOCUMENTS MARKED ON BEHALF OF THE DEFENCE:
Ex.D1 Copy of memorandum of deposit
of title deed
Ex.D1(a) & (b) Signatures
Ex.D2 & 2(a) Bank statements
XL ACMM,
BANGALORE.
SCCH-14 24 CC No.21845/2013
Dt.22.02.2016
C-TKR
A-MS
For Judgment
Judgment pronounced in open court
vide separate judgment
ORDER
The accused is found guilty and is convicted U/s 255(2) of Cr.P.C. for the offence punishable U/s 138 of the Negotiable Instruments Act.
SCCH-14 25 CC No.21845/2013The accused is sentenced to pay a fine of Rs.32,00,000/-. In default of payment of fine amount, the accused has to undergo SI for 6 months.
Out of fine amount, Rs.31,90,000/- shall be paid to the complainant as compensation.
The bail bond of accused stands cancelled.
XL ACMM, BANGALORE.
SCCH-14 26 CC No.21845/2013