Bangalore District Court
Sri. Mahesh Hegde vs Sri. Pramod L.P on 20 May, 2016
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 20th day of May 2016
Present: Smt. Saraswathi.K.N, B.A.L., LL.M.,
XVI Addl.C.M.M., Bengaluru City.
JUDGEMENT U/S 355 OF Cr.P.C.,
Case No. : C.C. No.3400/2009
Complainant : Sri. Mahesh Hegde,
Aged about 29 years,
S/o Sri.Annappa Hegde,
R/at No.120, 1st Main Road,
Health Layout,
Srigandhakaval,
Bengaluru-91.
(Rep. by Sri. Dorai Babu.,
Adv.,)
- Vs -
Accused : Sri. Pramod L.P.,
S/o Panduranga Swamy,
Aged about 36 years,
No.46, 4th Block, 4th Stage,
2nd Main, Basaveshwara
Nagar,
Bengaluru - 560 079.
Also at :-
Pramod.L.P.
Proprietor, M/s. S.L.D.Tires,
No.133, Dumlur Service Road,
Indiranagar, Bengaluru-71.
2 C.C.3400/2009
(Rep. by Sri.G.S.Srinivas
Adv.,)
Case instituted : 07/10/2008
Offence complained : U/s 138 of N.I. Act
of
Plea of accused : Pleaded not guilty
Final Order : Accused is Convicted
Date of order : 20-05-2016
JUDGMENT
The Complainant has filed this complaint against the accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. It is the case of the Complainant that, the Accused has approached him for a hand loan of Rs.4,00,000/- for his business needs and he had advanced loan to the Accused by cash of a sum of Rs.4,00,000/- to meet the emergency financial crisis of the Accused. The Accused has acknowledged the said loan by issuing two post dated cheques bearing No.607126 dated 28.03.2008 for Rs.2 Lakhs and another cheque bearing No.607130 dated 10.04.2008 for Rs.2 lakhs drawn on the City Bank, Bengaluru in his favour to discharge the legally recoverable debt.
3. The Cheque bearing No.607130 dated 10.04.2008 for Rs.2,00,000/- lakh drawn on the City Bank, Bengaluru 3 C.C.3400/2009 is the subject matter of the present complaint. When the said cheque was presented for encashment, it got returned with an endorsement "Account Closed/Transferred" as per the endorsement issued by the Banker of the Accused to his Bank. Thereafter he has brought to the notice of the Accused regarding the dishonour of the cheque and requested to arrange for the cheque amount. However, the Accused has not responded to his request. Therefore, he got issued legal notice to the Accused through Registered Post as well as under
certificate of posting to the house and office address of the Accused. Both the notices have been duly served upon the Accused. Inspite of it, the Accused has neither replied nor repaid the cheque amount. Hence the present case.
4. After recording the sworn statement of the Complainant, the same was registered as criminal case, summons was issued to the accused, who appeared through his counsel and got enlarged on bail. The substance of the accusation was read over to him, he pleaded not guilty and claimed to be tried.
5. In order to prove his case, the Complainant has examined himself as PW.1 and relied upon Ex.P1 to 8.
6. Thereafter, the incriminating evidence found in the evidence of the Complainant has been explained to the accused by recording his statement as required under Sec.313 4 C.C.3400/2009 of Cr.P.C., who denied the same and chose to lead his Defence evidence.
7. The Accused has examined himself as DW.1.
8. The records reveal that, after hearing the arguments of the learned counsel for the Complainant and considering the written arguments of the learned Defence counsel, my learned predecessor-in-office has pronounced the judgment of conviction on 04.01.2014. However being aggrieved by the same, the Accused preferred an Appeal in Crl.Appeal No.343/2014. The said appeal preferred by the Accused has been allowed and thereby the judgment of conviction passed by this Court has been set-aside and the matter has been remanded to this Court for fresh disposal in accordance with law from the stage of recording the evidence of the Accused in the manner provided under the Evidence Act as originally in this case, the defence evidence of the Accused was recorded by way of accepting the affidavit of the Accused instead of recording his oral evidence. Therefore for the same reason, the Hon'ble Appellate Court has remanded the matter to record the evidence of the Accused as provided under the law. Subsequent to the remand of the matter, the oral evidence of the Accused has been recorded and he has been examined before the Court as DW-1 and the cross-examination of DW.1 conducted earlier has been adopted by the counsel for the Complainant.
5 C.C.3400/20099. Heard the arguments of the learned counsel for the Complainant and the accused. Originally, prior to the remand of the matter, the learned Counsel for the Accused has also filed his written arguments. I have perused the same.
10. The following points arise for my consideration:-
1. Whether the Complainant has proved beyond reasonable doubt that the accused is guilty of the offence punishable under Sec.138 of the Negotiable Instruments Act?
2. If so, what Order or Sentence?
11. My findings to the above points are as under:-
Point No.1: In the Affirmative, Point No.2: As per the final order for the following:-
REASONS
12. POINT No.1:- According to the Complainant, he has advanced a hand loan of Rs.4,00,000/- by way of cash to the Accused to meet his emergency financial crisis. The Accused has acknowledged the said loan by issuing two post dated cheques bearing No.607126 dated 28.03.2008 for Rs.2 Lakhs and another cheque bearing No.607130 dated 10.04.2008 for Rs.2 lakhs drawn on the City Bank, Bengaluru, in his favour to discharge the legally recoverable debt. When the Cheque bearing No.607130 dated 10.04.2008 for Rs.2,00,000/- lakh drawn on the City Bank, Bengaluru, which is the subject 6 C.C.3400/2009 matter of the present complaint was presented for encashment, it got returned with an endorsement "Account Closed/Transferred" as per the endorsement issued by the Banker of the Accused to his Bank. Thereafter inspite of receiving the legal notice, the Accused has failed to repay the cheque amount.
13. In order to prove his case, the Complainant by examining himself as PW1, has filed his affidavit in which he has reiterated the complaint averments.
14. In support of his oral evidence PW.1 has relied upon the following documentary evidence:-
Ex.P1 is the original cheque in which PW.1 has identified the signature as that of the Accused as per Ex.P1(a), the Bank Endorsement as per Ex.P2, the copy of the legal notice as per Ex.P3, the original complaint as per Ex.P4, the certified copies of the postal receipts and the postal acknowledgments as per Ex.P5 to P8 respectively..
15. By relying upon this documentary evidence, in his cross examination it is deposed by PW-1 that, he came to know the Accused through one Kumar. He was doing Real Estate Business since 4 years prior to his deposing the evidence before the Court, but the said business has not been registered. According to him, he has given hand loan of Rs.4 lakhs to the Accused in December-2007 and by arranging the 7 C.C.3400/2009 said amount from his friend, he has lent the said amount to the Accused. According to him, he has arranged Rs.2 lakhs from his friend Ramesh and Rs.2 lakhs which was with him and totally he has lent Rs.4 lakhs to the Accused. Though, he has deposed before the Court that he has no difficulty to examine his friend Ramesh before the Court, he has not examined the said person before the Court. When PW.1 has been cross-examined in detail with regard to his source of income, he has answered that, earlier he was working as a Manager in Genuine Products and he was undertaking Borewell Contract work in the SC/ST Development Corporation and through the said source, he had the money earned by him. When PW-1 has been questioned, as to who has signed at Ex.P2(a), he has answered that the same has been signed by the Accused. However, he has admitted the suggestion that there are no signatures of the Accused found on the postal acknowledgement at Ex.P9 and 10. Further PW.1 has been cross-examined only by denying the case put-forth by him to accept the denial of his case, nothing has been elicited from his mouth so as to disbelieve his evidence.
16. The only defence suggested to PW.1 is that the Accused was owning a shop by name S.L.D.Tyres and that he also runs Snooker Parlour and one Gym and it is elicited from the mouth of PW.1 that he knows the said places and he also knows the persons working in SLD Tyres and the defence of 8 C.C.3400/2009 the Accused is that PW.1 used to visit the SLD Tyres in the his absence and came in contact with the workers working in SLD Tyres and thereafter he has stolen the cheques of the Accused. Except this defence, there is no reliable and probable defence taken by the accused so as to rebut the presumption available in favour of the Complainant.
17. P.W.1 has also deposed that in November-2007, he was not working, but in the same year, he has earned a total income of Rs.2 lakh, out of which he has spent Rs.80,000/- to 90,000/- thousand towards his personal expenses and from 2006 to 2009, he had no Bank Account and at that time the income derived by him used to be kept by him in his house. Further P.W.1 has been cross-examined at length by the learned Defence Counsel, but nothing has been elicited from his mouth so as to disbelieve his evidence.
18. In order to defend his case, the Accused has examined himself as D.W.1 and though initially he had filed his affidavit, subsequent to the remand of the matter it is the Defence deposed orally by the Accused that he knows the Complainant, but he had no financial transaction with him and that he has not issued the disputed cheque to him. According to him, the disputed cheque along with it's 10 other related cheques were kept in his shop duly signed by him for the purpose of his business and P.W.1 used to visit his shop and on such occasions, without his knowledge, P.W.1 has 9 C.C.3400/2009 stolen the disputed cheque in this case along with 7 other disputed cheques in the other related cases and misused them.
19. By relying upon this oral evidence, in his cross- examination, it is elicited from the mouth of DW.1 that, there are 5 persons who are working in his tyre shop viz., Mahadeva, Bhaskar, Chandru, Krishna and Abrar and among them two of them are working since 7 to 8 years and two of them working since 4 to 5 years and it is admitted by him that, he alone looks after all the financial transactions of his tyre shop including the issuance and the receipt of cheques pertaining to his business. He has also admitted his acquaintance with P.W.1 and also with one Kumara Swamy, who is the Complainant of C.C.No.5438/2009. He has further admitted the suggestion that, there was mutual giving and taking of money between himself and Kumara Swamy. However, he has admitted the suggestion that, the signature at Ex.P1(a) belongs to him, but he has given a vague answer that he doesn't know as to how his cheque has reached the Complainant. But he has admitted that the seal at Ex.P7 belongs to his tyre shop, but has pleaded ignorance to the question as to who has received the notice sent to his residential address. This goes to show that the receipt of the legal notice has not been disputed or denied by DW.1. Further it is also deposed by D.W.1 that, he has not lodged complaint 10 C.C.3400/2009 before the Police alleging that P.W.1 has stolen away his cheques, but he has admitted that his mobile number is 9845077422 and when the SMS's from the said mobile number has been confronted to him, he has denied the same, but the same have been marked for identification purpose as per Ex.N1 to N4.
20. Now by careful appreciation of the entire evidence available on record, it clearly goes to show that, even though the financial capacity of the Complainant has been disputed by the Accused, the defence of the Accused is not probable so as to rebut the presumption available in favour of the Complainant. Moreover, the text messages at Ex.N1 to N4 clearly prove that the Accused himself has prayed to grant some time for the clearance of the loan amount and the evidence of D.W.1 clearly goes to show that, he has failed to prove before the court that his cheques were misplaced and the same have been misused by the Complainant. Moreover, the Accused being a Businessman and an educated person, who claims to have an annual turnover of Rs.80 lakhs to 1 crore cannot be believed to have kept quite even after coming to know that his cheques have been misplaced or stolen by P.W.1 of this case. The conduct of the accused, even to be accepted as that of a man of ordinary prudence would demand that, if really, his cheques were misplaced or stolen, as alleged by him, he would have taken minimum steps against either 11 C.C.3400/2009 P.W.1 or anybody else against whom he alleges the theft of his cheques. But having failed to do so, the defence theory put- forth by the Accused cannot be accepted by the Court.
21. Therefore, on the overall appreciation of the evidence and the materials available on record, this court has no hesitation to conclude that, the Accused has borrowed the amounts covered under the cheque from the Complainant and subsequently, to discharge the said liability, he has issued the disputed cheque. However, the said cheque, upon presentation has remained unpaid due to the reason of "Insufficiency of Funds" in the account of the Accused and thereby the Complainant has proved all the ingredients of Sec.138 of the N.I. Act. Further the materials placed on record are sufficient for this Court to come to the conclusion that the defence theory set up by the Accused is not probable, so as to rebut the presumption available in favour of the Complainant.
22. During the course of his arguments, the counsel for the Complainant has relied upon the following decisions:-
1) In R.Vijayan Vs., Baby and another, reported in (2012) 1 Supreme Court Cases 260;
2) In Mainuddin Abdul Sattar Shaikh Vs., Vijay D.Salvi, reported in (2015) 9 Supreme Court Cases
622.
3) In Rangappa Vs., Mohan, reported in AIR 2010 Supreme Court 1898.
12 C.C.3400/200923. By placing reliance upon these decisions the learned counsel for the Complainant has argued before this court that, considering the long pendency of this case and also the amount involved in the cheque, the Accused is to be convicted and sentenced to pay a fine of twice the amount of the cheque and also interest at 9% p.a.,
24. No doubt the case is of the year 2009. But this case has been disposed off once by judgment by this court and thereafter it has been remanded for rectifying some procedural defects which have occurred in the earlier stage. Therefore I am of the view that if the Accused is held liable to pay compensation to the extent of the cheque amount with simple interest at 9% p.a to the Complainant (i.e., Rs.2,00,000 + interest at 9% p.a. for 6 years), it would serve the ends of justice. In view of the aforesaid reasons and discussions, I answer this Point in the Affirmative.
25. POINT No.2:- In view of the above reasons and discussions, I proceed to pass the following: -
ORDER By exercising the power conferred u/s 265 of the Cr.P.C., the accused is hereby convicted for the offence punishable u/s 138 of Negotiable Instruments Act.
He is sentenced to pay a fine of Rs.3,08,000/- (Rupees Three Lakh Eight Thousand only) within 30 days from today and in default of payment of fine, 13 C.C.3400/2009 he shall undergo simple imprisonment for 6 (six) months.
Out of the fine amount so collected, Rs.3,00,000/- (Three Lakh Thousand Only) is ordered to be paid to the Complainant as Compensation and the balance of Rs.8,000/- (Rupees Eight Thousand only) is ordered to be adjusted towards cost to the State exchequer.
The bail bond and surety bond of the accused stands cancelled.
Issue free copy of Judgment to the accused forthwith.
(Dictated to the stenographer, transcript thereof is computerized and print out taken by her, verified and then pronounced by me in the open Court on this the 20th day of May 2016).
(SARASWATHI.K.N), XVI Addl.CMM., Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the Complainant:
PW.1 : Mahesh Hegde.
List of documents exhibited on behalf of the Complainant:
Ex.P-1 : Original cheque; Ex.P-1(a) : Signature of the Accused Ex.P-2 : Bank Endorsement; Ex.P-3 : Office copy of the legal notice; Ex.P-4 : The Complaint; Ex.P-5 to 8 : The Certified copies of the Postal
Receipts and postal acknowledgements ;
Ex.S 1 and 2 : Photos.
14 C.C.3400/2009List of witnesses examined on behalf of the accused:
DW-1 : L.P.Promod.
List of documents exhibited on behalf of the accused:
Ex.N1 to N4 : Text Messages (SARASWATHI.K.N), XVI ACMM, Bengaluru City.
15 C.C.3400/200920.05.2016 Judgment pronounced in the open court vide separate judgment.
ORDER By exercising the power conferred u/s 265 of Cr.P.C., the accused is hereby convicted for the offence punishable u/s 138 of Negotiable Instruments Act.
He is sentenced to pay a fine of Rs.3,08,000/- (Rupees Three Lakh Eight Thousand only) within 30 days from today and in default of payment of fine, he shall undergo simple imprisonment for 6 (six) months.
Out of the fine amount so collected Rs.3,00,000/- (Rupees Three Lakh Only) is ordered to be paid to the Complainant as Compensation and the balance of Rs.8,000/- (Rupees Eight Thousand only) is ordered to be adjusted towards cost to the State exchequer..
The bail bond and surety bond of the accused stands cancelled.
Issue free copy of Judgment to the accused forthwith.
(SARASWATHI.K.N), XVI Addl.CMM., Bengaluru City.
16 C.C.3400/2009