Bangalore District Court
Smt. Jasbir Kaur vs Sri. Vikas Ravillu. G.B on 1 June, 2018
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 1st day of June, 2018
Present: Smt. Saraswathi.K.N, B.A.L., LL.M.,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.12918/2015
Complainant : Smt. Jasbir Kaur,
W/o. Late A.B. Chopra,
Aged about 70 years,
No. 61 E,
Waipuilani Road, Unit-A,
Kihei, Hi, USA-96753.
Formerly R/at No. B.248,
Sector 26,
Noida, U.P.
Represented by her GPA holder;
Sri. M.S. Sidhu,
S/o Rajinder Singh,
Aged about 49 Yrs,
R/at: Shobha Dew Flower-504,
4th Cross,
Sarakki Main Road,
J.P. Nagar 1st Phase,
Bengaluru.
(Rep. by Sri. G.Jai Raj & Ors., Advs.,)
2 C.C.No.12918/2015 J
- Vs -
Accused : 1. Sri. Vikas Ravillu. G.B.,
S/o G. Babu,
Aged about 34 Yrs,
Flat No. A-92,
Bysani Skyway Apartment,
1st Cross Road, Madhavan Park,
1st Block, Jayanagar,
Bengaluru.
2. Sri. Muniyappa @ Hoodi
Muniyappa,
S/o Rachappa,
Aged about 63 Yrs,
R/at No. 376, Kundanahalli Village,
Kundanahalli Post,
Bengaluru - 560 037. (Deleted)
(Rep. by Sri.S & S Law Associates.,)
Case instituted : 16.5.2015
Offence : U/s 138 of N.I. Act
complained of
Plea of Accused : Pleaded not guilty
Final Order : Accused No.1 is convicted
Date of order : 1.6.2018
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable U/Sec.138 of the Negotiable Instruments Act.
3 C.C.No.12918/2015 J2. Briefly stated the case of the Complainant is that, presently she is residing in USA and she is duly represented by her GPA her nephew Sri.M.S.Sidhu. She is a widow aged about 70 years and while living with her nephew M.S.Sidhu at No.17, Grace Villa, Santhrupti Nagar, Kothanur Main, J.P.Nagar 7th Phase, Bengaluru, she got aquatinted with the Accused No.1 through her nephew and as such he is known to her since several years. During September 2012, the Accused No.1 had induced her to invest a sum of Rs.3 Crores with the Accused No.2 representing that, he had invested a sum of Rs.1 Crore by paying the same to the Accused No.2 on certain terms and conditions including a fixed repayment of money on every month at the rate of 1 % of the investment.
3. The Complainant has further submitted that, believing the words of the Accused No.1 and 2, she has made a payment of Rs. 3 Crores to the Accused and in turn, the Accused No.2 has executed a registered Mortgage Deed on 24.9.2012 in her favour. The Accused No.1 is said to have paid a sum of Rs.1 Crore to the Accused No.2 in the presence of the Sub-Registrar at the time of execution of the mortgage deed. The Accused No.1 was making a monthly payment on behalf of the Accused No.2 to her and as on March 2014, the Accused No.1 has paid a sum of Rs.20 Lakhs only by cheques viz., Rs.6 Lakhs during October 2012, Rs. 7 Lakhs during November 2012, Rs. 5 Lakhs during December 2012 and Rs.2 4 C.C.No.12918/2015 J Lakhs by way of cash in March 2013 as against a sum of Rs. 45 Lakhs payable by him. For the balance of Rs. 25 Lakhs, the Accused No.1 issued post dated cheques bearing No. 713509 for Rs. 10 Lakhs, cheque bearing No. 713503 for Rs. 10 Lakhs and cheque bearing No. 713508 for Rs. 5 Lakhs, all dated: 6.4.2015 drawn on SBI, JP Nagar Branch, Bengaluru in all amounting to Rs. 25 Lakhs.
4. The Complainant has further submitted that for the reasons best known to them, the Accused No.1 & 2 opted and insisted for the discharge of the above mortgage and accordingly, she and the Accused No.1 have executed a deed of discharge of mortgage on 21.3.2014, wherein a sum of Rs. 2 Crores was paid to her by way of two DDs bearing No. 842 and 843, both dated: 14.3.2014 for Rs. 1 Crore each.
5. The Complainant has further submitted that, for the remaining amount of Rs.1 Crore, one Chikkavenkatappa Nagaraja, who is the father-in-law of the Accused No.1 has issued post dated cheque bearing No.000066 dated:
28.10.2014 for a sum of Rs.1 Crore drawn on the Kotak Mahindra Bank, Jayanagar 4th Block, Bengaluru and further undertook the responsibility of clearing the above said cheque on its due date and further agreed to pay interest at 1 % per month every month from August 2014 to October 2014 and 5 C.C.No.12918/2015 J issued another cheque bearing No.000067 dated: 28.10.2014 for Rs.6 Lakhs towards interest.
6. In this regard, the said Chikkavenkatappa Nagaraj has also executed a Deed of Security for cheques in her favour, but the said cheques were dishonored on presentation and separate case has been instituted against the Accused No.1,2 & Mr.Chikkavenkatappa Nagaraj in C.C.No.6226/2015 pending on the file of the 22nd ACMM, Bengaluru.
7. The Complainant has further submitted that, when she presented aforesaid cheques issued by the Accused No.1 for a total sum of Rs.25,00,000/= through her Banker for encashment, the same returned dishonored as "Funds Insufficient" vide Bank endorsement dated 8.04.2015. Thereafter she got issued a legal notice to the Accused No.1 and 2 through RPAD calling upon them to pay the cheques amounts to her within 15 days from the date of the receipt of the legal notice. Despite the service of the said legal notice, they have neither replied nor have they paid the cheques amount to her. Hence this present complaint.
8. The Pre-summoning evidence has been led by the GPA Holder of the Complainant on 16.05.2015. He has filed his affidavit-in-lieu of his sworn statement, in which he has reiterated the complaint averments. Prima-facie case has been 6 C.C.No.12918/2015 J made out against the Accused No.1 and 2 and they have been summoned vide the order of the same date.
9. The Accused No.1 has appeared before the Court on 31.08.2015. He has been enlarged on bail. However, the presence of the Accused No.2 could not be secured before this Court and in the meanwhile, as per the order of the Hon'ble High Court of Karnataka in Crl. Petition No.1074/2016 dated 23.04.2016, the counsel for the Complainant opted to proceed with the case only as against the Accused No.1 and to permit him withdraw the case as against the Accused No.2. Accordingly by order dated 19.09.2016, the Complainant was permitted to withdraw the complaint as against the Accused No.2 and permitted to proceed only as against the Accused No.1.
10. The plea of the Accused No.1 has been recorded by explaining to substance of the accusation, to which he has pleaded not guilty and has claimed to be tried.
11. The Post-summoning evidence of the Complainant has been led through her GPA Holder, who is examined as P.W.1. He has filed his affidavit-in-lieu of his chief examination, in which, he has reiterated the complaint averments.
7 C.C.No.12918/2015 J12. In support of the case of the Complainant, P.W.1 has produced and relied upon the documentary evidence as per Ex.P.1 to P.15 which are as follows:-
Ex.P.1 is the General Power of Attorney executed by the Complainant to her nephew/P.W.1, Ex.P.2 to P.4 are the original cheques, in which he has identified the signatures at Ex.P.2(a) to P4(a) as those of the Accused No.1 respectively, Ex.P.5 to P.7 are the Bank Memos, Ex.P.8 is the office copy of the Legal notice, Ex.P.9 is the Postal Receipt, Ex.P.10 is the Postal Acknowledgement, Ex.P.11 is the certified copy of the Mortgage Deed, Ex.P12 is the certified copy of the Deed of Discharge of Mortgage Deed, Ex.P.13 is the certified copy of the deposition of the D.W.2 in C.C.No.6226/2015, Ex.P.14 is the certified copy of the Judgment in C.C.No.6226/2015 and Ex.P.15 is the Statement of Accounts of the Complainant.
13. The statement of the Accused No.1 u/s.313 of the Cr.P.C. is recorded. He has denied the incriminating evidence found against him and has chosen to lead his rebuttable evidence.
14. The Accused has examined him as D.W.1 and during his evidence, he has filed his affidavit, which has been accepted by this court as per the direction of our Hon'ble High Court in the case of Afzal Pasha Vs., Mohamed Ameerjan, reported in LAWS (KAR) 2016 (8) 131, by 8 C.C.No.12918/2015 J relying upon one of the directions of the Hon'ble Apex Court in the case of Indian Bank Association Vs., Union of India and others, reported in 2014 (5) SCC 590.
15. The gist of the defence of the Accused No.1 in his affidavit is that, the Complainant and he had lent a sum of Rs.4,00,00,000/= to the Accused No.2 as per the registered Mortgage Deed dated 24.09.2012 at Ex.P.11 and out of the said amount of Rs.4,00,00,000/=, the Complainant had lent Rs.3,00,00,000/= and he had lent Rs.1,00,00,000/= to the Accused No.2. However, he had not personally obtained any amount from the Complainant and as such there is no liability on his part to pay any amount to the Complainant along with the Accused No.2.
16. According to D.W.1, the Accused No.2 was a defaulter in the payment of interest for the principal amount and hence on the several demands and requests made by him and the Complainant, the Accused No.2 has paid the entire loan amount along with interest on mutual understanding and some part of the interest was let-off. Thereafter the Complainant and he have executed the Deed of Discharge of Mortgage dated 21.03.2014 as per Ex.P.12 in favour of the Accused No.2.
9 C.C.No.12918/2015 J17. Further according to D.W.1, after the execution of the Discharge of Mortgage deed dated 21.03.2014 as per Ex.P.12, he had approached the Complainant to invest in a different property near Anekal in Bengaluru. At that point of time, the Complainant had requested him to give three blank cheques of himself and two cheques of a surety. For the said purpose, he had given the cheques in dispute as blank cheques to her, which, she has filled them up without his knowledge and consent and presented the same. Therefore as either on the date of the issuance of the cheques in dispute or as on today, he has not borrowed any money from the Complainant and as such, there is no liability on his part to honor the cheques in dispute.
18. Further, his wife had brought two signed blank cheques of his Father-in-law by name Sri.C.Nagaraj, along with a signed blank stamp paper from him and he handed over the cheques in dispute along with the said two cheques of his father-in-law and the signed blank stamp paper of his father-in-law, in respect of which, he and his wife have also signed on an endorsement.
19. According to D.W.1, P.W.1 is not in good terms with him and in view of a civil dispute pending before the Hon'ble City Civil Court at Bengaluru in O.S.No.5621/2014, he has misused the said cheques and managed to make out a false 10 C.C.No.12918/2015 J story and filed this false case, without there being any liability on his part to honor the disputed cheques.
20. It is also defence of the Accused that, he had issued the blank cheques to P.W.1 at his request in order to purchase the property bearing No.A-92, Bysani Apartments, Jayanagar 1st Block, Bengaluru and also an agricultural property near Kengeri, Bengaluru and the GPA Holder of the Complainant has filed this false case against him without having any proper authority from the Complainant to do so.
21. It is also the defence of D.W.1 that, as per the version of P.W.1, the Accused No.2 had to pay interest i.e., alleged liability. It is not the case of the Complainant that the Accused No.2 had paid the interest to the former and that he has not shared it and the Complainant has not even challenged the discharge of Mortgage Deed at Ex.P.12 and as such, there is no liability on his part to honor the cheques in dispute. Accordingly he has prayed for his acquittal.
22. In support of his defence, D.W.1 has relied upon and produced the following documentary evidence:-
Ex.D.1 is the certified copy of the chief-examination affidavit of P.W.1 in C.C.No.6226/2015, Ex.D.2 is the certified copy of the cross-examination of P.W.1 in C.C.No.6226/2015, Ex.D.3 is the certified copy of the Deed of Discharge of 11 C.C.No.12918/2015 J Mortgage dated 21.03.2014, Ex.D.4 is the certified copy of the Judgment in O.S.No.5621/2014 and Ex.D.5 is the certified copy of Special Power of Attorney dated 7.11.2015.
23. D.W.1 has been cross-examined extensively by the learned counsel for the Complainant.
24. The learned counsel for the Complainant has addressed his arguments, during the course of which, he has prayed for the conviction of the Accused No.1 on the following grounds:-
i). That under the Deed of Mortgage at Ex.P.11, though the Accused No.2 was liable to pay amounts to the Complainant, the Accused No.1 has issued the subject cheques in her favour;
ii). The Deed of the Discharge of Mortgage as per Ex.P.12 is accepted by the Accused No.1;
iii). Though the Accused No.1 has denied the service of the legal notice upon him, in his cross-examination, he has admitted the correctness of his residential address and in view of the same, as per Sec.27 of the General Clauses Act, there is a deemed service of the legal notices on him;12 C.C.No.12918/2015 J
iv). Moreover the conduct of the Accused No.1 goes to show that, though he has not replied to the legal notice that was caused to him by the Complainant, in his cross-
examination, he claims that he has replied to the legal notice;
v). The Complainant has fulfilled the ingredients of Sec.138 of the N.I.Act and though the Accused No.2 was one of the parties to the Deed of Mortgage at Ex.P.11, he was only a Dummy Partner, since the entire transaction has been managed by the Accused No.1 alone and for the same reason, the Accused No.1 has issued the cheques in dispute in favour of the Complainant towards the discharge of his legal liability under the Deed of the Discharge of Mortgage at Ex.P.12.
vi). There is no mode of the alleged payment of Rs. 3,00,00,000/= by the Accused to the Complainant recited in the Deed of the discharge of Mortgage at Ex.P.12, since under the said document, post dated cheques in dispute were issued by the Accused No.1 in favour of the Complainant.
vii). Five cheques came to be issued by the Accused No.1 in favour of the Complainant, among which, three cheques belonged to him and two cheques to his father-
13 C.C.No.12918/2015 Jin-law. On the basis of the said two cheques the father- in-law of the Accused No.3 has been admittedly convicted by the Court of the XXII ACMM in C.C.No.6226/2015 and as such, the Accused No.1 is liable to pay the amounts covered under the cheques in dispute.
viii). Sec.41 of the Indian Contract Act applies to the case on hand and as such the Accused No.1 cannot escape from his liability under the cheques in dispute.
Accordingly he has prayed for the conviction of the Accused.
25. On the contrary, the learned Defence Counsel has filed his written arguments and has also advanced his oral arguments, in which, he has prayed for the acquittal of the Accused No.1 on the following grounds:-
i). The Accused No.1 does not dispute the transaction at Ex.P.11. However, as per the recitals of the deed of Mortgage at Ex.P.11, the rate of interest which was shown as 2% per month would come to Rs.6 Lakhs to be paid to the Complainant on her investment of Rs.
3,00,00,000/= with the Accused and Rs.2 Lakhs to be paid to the investment of Rs.1,00,00,000/= by the Accused No.1 with the Accused No.2. However, the 14 C.C.No.12918/2015 J Complainant claims that the Accused was liable to pay monthly interest of Rs.6 Lakhs towards her investment of Rs.3,00,00,000/= under the Agreement at Ex.P.11, which itself goes to show that, the compliant itself is not maintainable.
ii). Admittedly, the term of the Mortgage agreement was only for a period of 11 months and there was also default clause in the Deed of Discharge of Mortgage at Ex.P.12.
iii). The case of the Complainant has changed from 2% of interest to 1% for a period of 15 months, though term of Mortgage Agreement itself was for 11 months. Therefore, it is argued that, the Complainant has changed her version with regard to the rate of interest, for which, the interest was due, so as to tally with the cheques amounts.
iv). There is no document produced by P.W.1 to show that the interest was ever received by the Complainant from the Accused.
v). The defence of the Accused No.1 in this case is that P.W.1 is not duly authorized to file and to give evidence in this case and as such his defence is not legally acceptable.
15 C.C.No.12918/2015 Jvi). The name of the Complainant in the cheques at Ex.P.2 and P.4 is shown as "Jasbir Kaur Chopra", while in Ex.P.3 it is only shown as "Jasbir Chopra". This discrepancy has not been clarified by PW-1.
vii). No action has been taken by the Complainant in respect of the Deed of Discharge of Mortgage at Ex.P.12 and under the said agreement, it is the company who has paid the amount to the Complainant and to the Accused No.1.
viii). The recitals found at Para No.3 on Page No.7 of Ex.P.12 goes to show that the entire amount is received by the Complainant and as such, there was no due to her from the Accused.
ix). When the Accused No.2 has not paid any interest to the Accused No.1, then the latter (Accused No.1) cannot be held liable to pay any amount to the Complainant. There is no proof to show that, the Accused No.2 has paid the amount to the Accused No.1 and as such, there can be no liability of the Accused No.1 under the cheques in dispute.
x). In the plaint of O.S.No.5621/2014, P.W.1 has admitted the receipt of the cheques from the Accused 16 C.C.No.12918/2015 J No.1 and the cheques collected in another transaction have been misused by P.W.1. The Accused No.1 is in no way liable to pay any amount, much less the amounts covered under the cheques in dispute to the Complainant.
Accordingly he has prayed for the acquittal of the Accused.
26. In support of his arguments, the learned Defence Counsel has relied upon the decision of the Hon'ble High Court of Gawhati in Crl.Appeal No.174/2008.
27. By way of his reply arguments, the learned Counsel for the Complainant has argued as follows:-
i). The calculation of interest has been correctly made by P.W.1. If the Accused No.1 had given three blank cheques then the P.W.1 could have filled up the same for Rs.90 Lakhs, instead of Rs.25 Lakhs;
ii). If the Accused No.1 was not liable to pay any interest to the Complainant, then there was no necessity for him to issue his personal cheques to her. Admittedly in Ex.P.12, there is no mode of payment recited. P.W.1 has proved that neither the Accused No.2 nor the Accused No.1 has repaid any amount to the Complainant;17 C.C.No.12918/2015 J
iii). The recital in Ex.P.12 showing the consideration amount to have been paid is a suggestion of fact by the Accused No.1 about the payment, which is required to be proved by him;
iv). Though the Accused No.1 has claimed in his cross-
examination that, he has paid interest to the Complainant by way of cash and cheques, there is no proof of the same;
v). It is further argued that, the finding about the recital of Ex.P.12 is a concurrent finding and as such the said finding cannot be denied by the Accused No.1. The cheques in dispute are returned as "Funds Insufficient"
and not for the reason that there were material alterations found in them;
vi). The cheques referred to by P.W.1 in O.S.No.6226/2014 were the three cheques for
Rs.60,000/= each, that were issued by the Accused No.1 in favour of P.W.1 towards the rent and not the cheques in dispute;
vii). The Accused No.1 has failed to disprove the case of the Complainant by raising any probable defence and as 18 C.C.No.12918/2015 J such he is liable to be convicted. Accordingly he has prayed for conviction of the Accused.
28. I have considered the submissions and perused the record carefully.
29. Sec.138 of the Negotiable Instruments Act has been enacted to lend credibility to the financial transactions.
The main ingredients of the offence under Sec.138 of the Negotiable Instruments Act are:-
(i) Drawing up of a cheque by the Accused towards payment of an amount of money, for the discharge, in whole or in part, of any debt or any other liability;
(ii) Return of the cheque by the Bank as unpaid;
(iii) The drawer of the cheque fails to make the payment of the said amount of money within 15 days of the receipt of the notice under the proviso (b) to Section 138.
The Explanation appended to the Section provides that, the "debt or other liability" for the purpose of this Section means a legally enforceable debt or other liability.
30. Apart from this, Sec.139 of the Negotiable Instruments Act lays down a presumption in favour of the holder of cheque in the following terms:-
"It shall be presumed, unless the contrary is proved, that:-19 C.C.No.12918/2015 J
The holder of a cheque received the cheque, of the nature referred to in Sec. 138, for the discharge, in whole or in part, of any debt or other liability".
31. Also, Sec.118 of the Negotiable Instruments Act states, "Until the contrary is proved, the following presumptions shall be made:-
(a) That every Negotiable Instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration."
32. Thus, the Act clearly lays down presumptions in favour of the Complainant with regard to the issuance of the cheque by the Accused towards the discharge of his liability in favour of the Complainant.
33. Under the scheme of the Act, the onus is upon the Accused to rebut the presumptions in favour of the Complainant by raising a probable defence.
34. It is a well settled position of law that, the defence of the Accused, if in the nature of a mere denial of the case of the Complainant will not be sufficient to hold it as a probable defence. The bare denial of the passing of consideration 20 C.C.No.12918/2015 J apparently does not appear to be any defence. Something which is probable must be brought on record for getting the benefit of shifting the onus of proof to the Complainant.
35. It is also a well settled position of law that, once the cheque is proved to be relating to the Account of the Accused and he accepts and admits the signature on the said cheque, then the initial presumption as contemplated under Sec. 139 of the N.I.Act has to be raised by the courts in favour of the Complainant. The presumption referred to in Sec.139 of the N.I.Act is a mandatory presumption and not a general presumption, but the Accused is entitled to rebut the said presumption. What is required to be established by the Accused in order to rebut the presumption is different from each case under given circumstance. But the fact remains that a mere plausible explanation is not expected from the Accused and it must be more than a plausible explanation by way of rebuttal evidence. The defence raised by the Accused by way of rebuttal evidence must be probable and capable of being accepted by the court.
36. No doubt the initial mandatory statutory presumptions under Sec.118 and 139 of the N.I.Act are in favour of the Complainant. However they are rebuttable presumptions and the Accused is expected to rebut the presumptions by raising a probable defence.
21 C.C.No.12918/2015 J37. Such being the legal position, it would be pertinent to refer to the defences raised by the Accused to rebut the presumptions in favour of the Complainant in this case.
38. It is pertinent to note that, there is no dispute with regard to the acquaintance between the parties as well as with regard to the fact that the cheque in dispute belongs to the Accused No.1 with the signature of the Accused No.2 on it. However there is a serious dispute with regard to the existence of the legally payable liability by the Accused in favour of the Complainant. In such circumstance, the onus of proving the existence of the legally payable liability by the Accused in his favour is upon the Complainant.
39. The first and the foremost defence which is raised by the Accused No.1 is the alleged non-service of the legal notice on him.
40. In this regard, it is seen that, according to the Complainant, the legal notice is duly served both on the Accused No.1 and 2 on 23.4.2015 and 25.4.2015 respectively.
In support of this claim, the GPA Holder of the Complainant/P.W.1 has produced the documentary evidence as per Ex.P8, which is the Postal Acknowledgment, which is received with the signature of one Shwetha on 23.4.2015.
22 C.C.No.12918/2015 J41. However in the cross-examination of P.W.1, it is suggested to him by the Defence Counsel that the legal notice is not sent to the address shown in Ex.P11 i.e., the Deed of Mortgage. Though it is also suggested to P.W.1 that the signature of the receiver on the Postal Acknowledgment at Ex.P8 is not that of the Accused No.1, he has answered that, it is that of his wife. However except the said suggestion, it could be seen that there is no serious denial of the legal notice by the Accused No.1.
42. It is interesting to note that, in his chief evidence, the Accused No.1 has not at all reiterated this defence with regard to the alleged non-service of the legal notice on him. On the other hand, in his cross-examination, it is elicited from D.W.1 that, presently he is at No.154, 2nd Cross, J.P.Nagar II Phase, Bengaluru, in a rented premises and that prior to it, he was residing at No.A-92, Bysani Skyway Apartments, Jayanagar I Block, Bengaluru and that the said address is the one which is shown in this case. He has also admitted the suggestions that, the legal notice has been caused to his same address and that Smt.Shwetha is his wife.
43. It is interesting to note that, this technical defence is given a complete go bye by D.W.1 in his cross-examination, wherein he has voluntarily come up with a new claim that, he has caused the reply notice to the Complainant, though there 23 C.C.No.12918/2015 J is none. However, it is an admitted fact that, there is no reply notice got issued by the Accused No.1 to the Complainant, though he claims to have caused one.
44. Therefore it is seen that, this technical defence raised by the Accused No.1 is also not consistent, since he himself has deviated from his defence version and as such, he is not entitled to take this technical defence and on the other hand, it is clearly proved by the Complainant that, there is due service of the legal notice to the Accused No.1.
45. It is pertinent to note that, the Accused No.1 has also made an un-successful attempt of questioning the authority of P.W.1 to have deposed on behalf of the Complainant in this case.
46. In this regard it could be seen that, during the cross- examination of P.W.1, it is suggested to him that under the GPA at Ex.P1, he has not been authorized by the Complainant to file this case against the Accused and that there is no reference to the cheques in dispute and the name of the Accused in the GPA at Ex.P1.
47. However this defence on the part of the Accused No.1 is also highly untenable, because the authority given to P.W.1 under the GPA at Ex.P1 is omnibus in nature, because under 24 C.C.No.12918/2015 J the said GPA, there is conferment of absolute powers by the Complainant to her nephew/P.W.1 to perform all sorts of acts, including conducting the legal proceedings. Such powers have been widely conferred on P.W.1 as per clauses (6), (18) and (20) of the GPA at Ex.P1.
48. Though it could be seen that, admissions have been elicited from P.W.1 to the effect that, he is not a party either to the Deed of Mortgage at Ex.P11 or to the Deed of Discharge of Mortgage at Ex.P12. However he has denied the suggestion that for the same reason, he does not know as to what is the amount paid by the Accused No.1 to the Complainant under the document at Ex.P12.
49. It could be seen that, apart from having denied that, he has no knowledge with regard to the documents at Ex.P11 and P12, he has voluntarily deposed that, under Ex.P12, the Accused No.1 had issued the post dated cheques to the Complainant, but the details of the said cheques have not been referred to in Ex.P12.
50. It is interesting to note that the Accused No.1 has not reiterated the defence of the alleged non-competence of P.W.1 to represent the Complainant in this case either in his chief evidence or in his cross-examination. Therefore, I have no impediment to hold that, the Accused No.1 has made a 25 C.C.No.12918/2015 J futile attempt to discredit the evidence of P.W.1 though he is duly authorized to represent the Complainant in this case. Therefore this defence is also highly untenable.
51. Now coming to the defence of the Accused No.1 with regard to the transaction in question is concerned, the entire case of the Complainant is based upon the Deed of Mortgage at Ex.P11 and the Deed of Discharge of Mortgage as per Ex.P12.
52. According to the Complainant, she had paid a sum of Rs.3 Crores to the Accused, in respect of which, the Accused No.2 (Muni Hoodiyappa @ Hoodi Muniyappa) is said to have executed a registered Deed of Mortgage on 24.9.2012 in her favour and the Accused No.1 is said to have paid Rs.1 Crore to the said Hoodi Muniyappa at the time of the registration of the Mortgage Deed.
53. According to the Complainant, the Accused was making monthly payment of interest on behalf of Hoodi Muniyappa and as on March 2014, the Accused is said to have paid Rs.20 Lakhs only by cheques from October 2012 to March 2013 by way of cheques and cash as against a sum of Rs.45 Lakhs, which ought to have been paid by him to her. Thereafter at the insistence of the Accused, the Mortgage deed came to be discharged vide Deed of Discharge of Mortgage on 26 C.C.No.12918/2015 J 21.3.2014 and for the balance of Rs.25 Lakhs, the Accused is said to have issued the subject cheques in her favour.
54. In the cross-examination of P.W1, though it is only elicited from him that, he is not the party to either the Mortgage Deed at Ex.P11 or the Deed of Discharge of Mortgage Deed at Ex.P12, there is no denial of the fact that, there were such transactions entered into between the Complainant and the Accused No.1 and 2 as well as with regard to the fact that the Complainant had paid Rs.3 Crores to the Accused under Ex.P11.
55. However the Accused No.1 has made an attempt to come out with a defence that, as per the recitals found in Ex.P12, the total amount of Rs.4 Crores paid to the Accused No.2 has been returned by him to the Complainant and the Accused No.1.
56. However the entire dispute between the parties is on this point itself, because according to the Accused No.1, it was the Accused No.2, who had to pay the amount to the Complainant as was agreed under Ex.P11 and as such he is not liable to pay any amount to the former. But it is the specific case of the Complainant that, as per the agreement, the Accused No.2 had to pay the amount to the Accused No.1, 27 C.C.No.12918/2015 J who in turn had to pay the same to her. This was the arrangement which was agreed to between the parties.
57. However it is interesting to note that, the Accused No.1 has claimed in the cross-examination of P.W.1 that, the amount that was liable to be paid under the Deed of Discharge of Mortgage at Ex.P12, including the interest has been paid to the Complainant entirely by the Accused No.2 on 21.3.2014. But this defence of discharge is denied by P.W.1. In such circumstance, the onus of discharging the said burden by proving the factum of the alleged payment by the Accused No.2 to the Complainant is shifted in favour of the Accused No.1.
58. However it is seen that this defence version taken by the Accused No.1 is given a new turn in his cross- examination, wherein he has claimed that, as per terms of Ex.P11, the Accused No.2 has paid the interest and that the former was paying the said interest amount that, he used to receive from the Accused No.2 to the Complainant by way of cheques as well as by way of cash.
59. But there is absolutely no proof with regard to this claim on the part of the Accused No.1. If this claim of the Accused No.1 was really true, then nothing prevented him from producing at least his bank Passbook or the statement of 28 C.C.No.12918/2015 J accounts to show that, he had in fact received the interest from the Accused No.2 by way of cheques towards the interest amount for the part of his investment of Rs.1 Crore or towards the investment of Rs.3 Crores by the Complainant.
60. It is interesting to note that, contrary to this claim, in his chief evidence, D.W.1 has claimed that, the Accused No.2 was a defaulter in the payment of interest or the principal amount and hence on several demands and requests made by him and the Complainant , the latter had repaid the entire loan amount along with interest on mutual understanding and some part of the interest was let off and thereafter he and the Complainant have executed a Deed of Discharge of Mortgage Deed dated 21.3.2014 at Ex.P12.
61. No doubt, there is a recital in Ex.P12 i.e., in the Deed of Discharge of Mortgage Deed about the alleged receipt of Rs.4 Crores by the Complainant and the Accused No.1 from the Accused No.2 together with applicable interest and by virtue of the receipt of the same, the former are said to have executed a Deed of Discharge of Mortgage as per Ex.P12.
62. However it could be seen that, as rightly pointed out by the learned counsel for the Complainant, there is no recital in Ex.P12 about the mode in which the said amount of Rs.4 Crores is allegedly returned by the Accused No.2 in favour of 29 C.C.No.12918/2015 J the Complainant and the Accused No.1. The mode of payment is conspicuously silent in Ex.P12 and this is a strange situation, since in Ex.P11, the mode of payment of the amount by the Complainant and the Accused No.1 to Accused No.2 is recited in detail, as could be seen from the relevant portion of the recital in Page No.4 of the said document.
63. In such circumstance, there was no reason for the parties to recite about the mode of payment even in Ex.P12, if really there was any such payment made by the Accused No.2 to the Accused No.1 and the Complainant under the said document. Therefore the absence of recital with regard to the mode of refund of the amount in Ex.P12 clearly raises a serious doubt with regard to the claim of the Accused No.1 that the Accused No.2 has paid back the entire amount that he had received under Ex.P11 to the Complainant and him under Ex.P12.
64. Even otherwise, if the defence of the Accused No.1 that the Accused No.2 has returned the entire amount of Rs.4 Crores is presumed to be true, then the former had every opportunity to substantiate at least the alleged receipt of Rs.1 Crore towards his portion of the investment under Ex.P11 from the Accused No.2. There is absolutely no material placed on record even in this regard by D.W.1. As such his claim that the entire amount of Rs.4 Crores is returned by the Accused 30 C.C.No.12918/2015 J No.2 under Ex.P12 to him and to the Complainant has not been substantiated by him through any reliable and cogent proof.
65. On the other hand, the claim of the Complainant that a sum of Rs.2 Crores had been paid by the Accused No.2 to her through two DD's for Rs.1 Crore is clearly admitted even by D.W.1 in his cross-examination wherein he has admitted that, his father-in-law has admitted in C.C.No.6226/15 that Rs.2 Crores has been paid to the Complainant by way of 2 DD's for Rs.1 Crore each towards the Deed of Discharge of Mortgage Deed.
66. In such circumstance, the onus of proving the payment of the balance of Rs.2 Crores by the Accused to the Complainant is upon them. But as already discussed above, there is absolutely no proof regarding the same.
67. It is interesting to note that, when D.W.1 has been questioned with regard to his claim in C.C.No.6226/2015 that he had paid Rs.1 Crore to the Complainant by way of cash and the Accused No.3 therein i.e.,. The Accused No.2 in this case has paid Rs.1 Crore to the Complainant the former has claimed that some third party has cleared that amount.
31 C.C.No.12918/2015 J68. But it is interesting to note that, when admittedly the liability to pay the amount to the Complainant was on the Accused No.1 and 2, there can be no liability on any third party to clear any such amount on behalf of the Accused No.1 and 2. Even otherwise the Accused No.1 has not specified as to who the said third party is? And what was the necessity for such third party to clear the obligation of the former towards the Complainant.
69. Moreover D.W.1 himself has clearly admitted the suggestion that, there is no recital in Ex.D3/P12 i.e., the Deed of Discharge of Mortgage Deed to the effect that, either he having allegedly paid Rs.1 Crore by way of cash or the Accused No.2 having allegedly paid Rs.1 Crore to the Complainant or some third party having allegedly cleared their liable amount of Rs.2 Crores to the Complainant by way of 2 DD's for Rs.1 Crore each.
70. Therefore with this admission, it is clear that, though D.W.1 has tried to substantiate the plea of discharge of his liability towards the Complainant, he has failed to prove the same.
71. It is further interesting to note that, it is also elicited from D.W.1 that, he has deposed in his cross-examination in C.C.No.6225/2015 that, he had issued the subject cheques to 32 C.C.No.12918/2015 J the Complainant as a security towards his loan of Rs.25 Lakhs in the month of May 2014. This admission elicited from D.W.1 also goes to show that, he has come out with all possible improbable defences in his zeal of disproving the case of the Complainant.
72. This admission elicited from DW.1 takes away his defence which is suggested to P.W.1 in his cross-examination that, if the document at Ex.P12 was entered into on 21.3.2014, then there was no necessity for the former to issue the subject cheques on 6.4.2015. This question posed to P.W.1 no longer survives, since it is admitted by D.W.1 himself in C.C.No.6225/2015 that, he had issued the subject cheques to the Complainant in the month of May 2014, which according to him, were issued for the security of the alleged loan of Rs.25 Lakhs from her.
73. Thus it could be seen that, these inconsistent defences raised by the Accused No.1 clearly goes to show that, the same has virtually rendered his defence as a baseless and improbable one.
74. In fact, while cross-examining P.W.1, D.W.1 has also come out with a defence that, as there were number of transactions between him and the former and there arose of 33 C.C.No.12918/2015 J difference of opinion between them, this false case has been filed against him by misusing the subject cheques.
75. However it could be seen that, throughout the cross- examination of P.W.1, there is no whisper, as to, why the subject cheques came to be issued by the Accused No.2 to the Complainant, except having alleged that they have been misused.
76. However for the first time in his affidavit evidence, D.W.1 has claimed that, after the Deed of Discharge of Mortgage Deed dated 21.3.2014 at Ex.P12, he had approached the Complainant for making investment in a different property near Anekal and at the said point of time, the Complainant had requested him to give 3 blank cheques of himself and 2 cheques of surety for security purpose. Accordingly, his wife had brought two blank cheques of her father along with his signed blank stamp paper and he handed over the subject cheques along the aforesaid two cheques and signed blank stamp paper of his father-in-law to the Complainant and at that time, his wife and he had also affixed their signatures and given an endorsement to the said effect.
77. Interestingly this defence is a new version introduced by the Accused No.1 for the first time in his chief evidence, 34 C.C.No.12918/2015 J without the same being corroborated by any cogent proof. In fact this defence version with regard to the issuance of the subject cheques by him to the Complainant goes contradictory to his own admission of the issuance of the subject cheques by him for security purpose of an alleged loan of Rs.25 Lakhs.
78. Thus it could been that, the Accused No.1 has come up with inconsistent and contradictory defences from each stage of the proceeding and ultimately failed in his attempt to come out with a probable defence.
79. It is further pertinent to note that, though P.W.1 has been cross-examined with regard to O.S.No.5621/2014, the Accused No.1 has failed to establish has to how the said proceeding and its result has an impact on this proceeding?
80. On the other hand, the admissions elicited from D.W.1 to the effect that, till date he has not complied with the direction of the civil court in the aforesaid case is indicative of the fact that, he is not sincere enough to abide even by the court order.
81. Therefore the appreciation of the evidence on record clearly goes to show that, though the Accused No.1 has issued the subject cheques to the Complainant towards the discharge of his legal liability, he has made all possible attempts to 35 C.C.No.12918/2015 J escape from his liability, but ultimately, he has failed in his attempt to probabalize his defence.
82. Moreover, if the Complainant really intended to make wrongful gain on the basis of the subject cheques, then she could very well done so, by filling them up with amounts higher than the one found, which according to the Accused No.1 were his signed blank cheques.
83. Therefore viewed from any angle, the defence of the Accused No.1 suffers from total contradictions and inconsistencies and on the other hand, the Complainant has been able to prove her case beyond reasonable doubt.
84. Therefore by appreciating the entire evidence available on record, it can be easily inferred that, the Complainant has proved her case beyond reasonable doubt and on the contrary, the Accused No.1 has failed to probabalize his defence by leading a probable defence, which is capable of rebutting the presumptions available in favour of the Complainant under Sec.118 and 139 of the N.I.Act. Accordingly, I proceed to pass the following:-
ORDER By exercising the power-conferred u/s 255(2) of Cr.P.C., the Accused No.1 is hereby convicted of the offence punishable u/s 138 of Negotiable Instruments Act.36 C.C.No.12918/2015 J
He is sentenced to pay a fine of Rs.30,00,000/= (Rupees Thirty Lakhs only) and in default of payment of fine, the Accused No.1 shall undergo simple imprisonment for 2 (Two) Years.
Out of the fine amount so collected, Rs.29,90,000/= (Rupees Twenty Nine Lakhs and Ninety Thousand Only) is ordered to be paid to the Complainant as Compensation and the balance of Rs.10,000/= (Rupees Ten Thousand only) is ordered to be adjusted towards cost to the State Exchequer.
The bail bond of the Accused No.1 stands discharged.
Issue free copy of the Judgment to the Accused No.1 forthwith.
(Dictated to the Stenographer Online, print out taken by her, verified, corrected and then pronounced by me in the open Court on this the 1st day of June, 2018).
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri.M.S.Sidhu
2. List of documents exhibited on behalf of the Complainant:-
Ex.P1 : GPA dated: 10.04.2016;
37 C.C.No.12918/2015 J
Ex.P2 to 4 : Original Cheques;
Ex.P2(a) to : Signatures of the Accused No.1;
4(a)
Ex.P5 to 7 : Bank Memos;
Ex.P8 : Office copy of the Legal Notice;
Ex.P9 : Postal Receipt;
Ex.P10 : Postal Acknowledgment;
Ex.P11 : The Certified copy of the Registered
Mortgage Deed dated: 24.09.2012;
Ex.P12 : The Certified copy of the Registered
Deed of Discharge of Mortgage dated:
21.3.2014;
Ex.P13 : The Certified copy of the deposition
of the Accused as D.W.2 in C.C.No.
6226/2015;
Ex.P14 : The Certified copy of the Judgment
in C.C.No.6226/2015
Ex.P15 : The Statement of Accounts of the
Complainant.
3. List of witness/s examined on behalf of the Accused:-
D.W.1 : Sri. Vikas Ravillu;
4. List of documents exhibited on behalf of the Accused:-
Ex.D.1 & 2 : The Certified copy of the deposition (Chief-examination and & the Cross-
examination) of P.W.1 in C.C.No. 6226/2015;
Ex.D.3 : The Certified copy of the Deed of Discharge of Mortgage Deed dated 21.3.2014;
Ex.D.4 : The Certified copy of the Judgment in O.S.No.5621/2014;
38 C.C.No.12918/2015 JEx.D.5 : The Certified copy of the Special Power of Attorney dated 7.11.2015 executed by the Complainant in favour of P.W.1.
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.