Bangalore District Court
Mr.G. Srinivasa Reddy vs Mr. K.S. Ramesh Kumar on 4 October, 2018
THE COURT OF LVIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL UNIT, BENGALURU. (ACMM-58)
PRESENT: Sri KAMALAKSHA.D, B.A., LLB.
LVIII ADDL. CHIEF METROPOLITAN
MAGISTRATE,
Dated : This the 4th day of October, 2018.
C.C.No.54508/2015
COMPLAINANT : Mr.G. Srinivasa Reddy
S/o. Late Sri Govinda Reddy,
Aged about 43 years,
R/at No.422, Shilpa Enterprises,
Behind Federal Bank,
Marthahalli,
Bengaluru - 560 037.
(By Sri P.S. Jagadish - Advocate)
V/s
ACCUSED : Mr. K.S. Ramesh Kumar
Aged about 35 years,
R/at Chikka Chenappa Building,
3rd Cross, Kuvempu Layout,
Devasandra, K.R. Puram,
Bengaluru - 560 036.
(By Sri N.S. Sanjay Kumar,
Advocate)
1 Date of Commencement 27.01.2015
of offence
2 Date of report of offence 27.04.2015
3 Presence of accused
3a. Before the Court 26.09.2016
3b. Released on bail 26.09.2016
4 Name of the G. Srinivasa Reddy
Complainant
5 Date of recording of 23.05.2017
evidence
6 Date of closure of 07.09.2018
evidence
7 Offences alleged U/s 138 of the Negotiable
Instruments Act.
8 Opinion of Judge Accused is found guilty.
2 CC.No.54508/2015
JUDGEMENT
The Private Complaint is filed under Section 200 of Cr.P.C against the accused alleging that he has committed the offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the complainant are as follows :
The complainant submits that the Accused is a known person and friend of the Complainant. The Accused carrying painting contract business. To meet some urgent liabilities, the Accused received amount of Rs.10,00,000/- as hand loan from the Complainant during the month of August 2014 in cash and the Accused promised to repay the said amount within 5 months. Inspite of situated period, the Accused failed to maintain his promise. Finally, the Accused issued two Cheques bearing No.000019 for sum of Rs.5,00,000/-
dtd.27.1.2015, drawn on Bank of Baroda, K.R. Puram, branch, Bengaluru and another Cheque bearing No.132963 dtd.27.1.2015 for sum of Rs.5,00,000/- on same date drawn on Federal Bank, Krishnarajapuram branch, Bengaluru.
3. The Complainant further submits that as per the request of the Accused, he presented the first Cheque bearing No.000019 on 27.1.2015 through his banker Karnataka Bank 3 CC.No.54508/2015 Ltd. for realization. The Accused advised not to deposit the second Cheque bearing No.132963 and requested three weeks time. However both the Cheques were dishonoured for the reason "funds insufficient" with endorsement dtd.28.1.2015. Immediately, the Complainant informed the fact of dishonour. As per the assurance of Accused, the Complainant once again presented the Cheques on 4.3.2015. But once again the Cheques were returned for same reason on 5.3.2015. Thereafter, the Complainant issued Legal Notice through RPAD on 28.3.2015. The said notice was served on Accused on 7.4.201.5. But the accused has not paid the cheques amount. Therefore the contention of the Complainant that the accused deliberately issued the Cheques in favour of the Complainant knowingly the fact of insufficient funds in his account. Therefore, the Complainant prays to convict and grant compensation.
4. The cognizance for offence was taken of my learned predecessor. The criminal case came to be registered against the accused. The summons was issued to the accused. The accused in obedience of the summons appeared before the Court and enlarged on bail.
4 CC.No.54508/2015
5. The substance of the accusation was framed, read over and explained to the accused in the language known to him by the learned predecessor of this Court. The accused pleaded not guilty and claimed to try the case. Hence, the case was posted for complainant's evidence.
6. The Complainant got examined himself as PW-1 and got marked 7 documents as Ex.P.1 to Ex.P.8. Ex.D.1 to Ex.D.49 were marked through confrontation during the cross- examination of PW1. The Accused got examined himself as DW1 and got marked 1 document as Ex.D.50.
7. The statement as required under Section 313 of Cr.P.C. was recorded. The accused denied all the incriminating evidence appeared against him.
8. I heard the Arguments of both side.
9. Now the following points that arise for the consideration of this Court are :
1. "Whether the Complainant proves the cheques issued by the accused person dishonoured with an endorsement as "funds insufficient"
and inspite of service of legal notice and demand the accused person failed to pay the cheques amount within stipulated period as 5 CC.No.54508/2015 such he has committed an offence punishable under Section 138 of Negotiable Instruments Act?"
2. What order ?
10. My answer to the above points are as follows :
POINT No.1 : In the Affirmative POINT No.2 : As per final order for the following;
REASONS
11. POINT No.1 - The evidence of the PW1 shows that he is hardware business man from last 25 years carrying in the name and style of M/s. Shilpa Enterprises at Marathahalli. The business of the Complainant carries daily turn over of Rs.75,000/- to 1,00,000/- per day. His shop has two bank accounts in Karnataka Bank, Marathahalli Branch and Federal Bank. The Complainant has personal bank account in Karnataka Bank. The said account is used for daily banking affairs. The Complainant used to pay the amount to his dealers through Cheque. The Complainant used to keep Rs.10,000/- to 15,000/- per day for his daily expenditure. The Accused came to be introduced through one Ravishankar. Accused is painting contractor by profession. Except this transaction, the Complainant has no other financial transaction with the Accused. The Complainant does not know the date in which 6 CC.No.54508/2015 Accused asked hand loan. It is very strange to believe that the Complainant being the payer of the huge amount of Rs.10,00,000/- did not remember the date of demand. But the PW1 says that at the time of asking hand loan along with him, some labourers were present. But, he does not know the name of those labourers. The Complainant paid amount after one week from the date of demand. The evidence of PW1 shows that the Complainant mobilized his amount and withdrew some amount from his account at Karnataka Bank. The PW1 says that the amount of Rs.5,00,000/- was kept in his house and remaining Rs.5,00,000/- was withdrew from the Karnataka Bank.
12. The PW1 says that at the time of payment of loan, except him, no other person was present. The Complainant has not obtained any document from the Accused. The Complainant paid the loan amount by way of cash as per the demand of the Accused. According to the PW1, his annual income is Rs.25,00,000/- to Rs.30,00,000/-. He is an Income Tax Assessee. But the present loan transaction is not mentioned in the I.T. Returns pertaining to 2014-15. Admittedly, the Ex.P.1 Cheque was written by different pens. The Complainant being the possessor of the Cheque does not 7 CC.No.54508/2015 know who has written the contents. The PW1 admits that according to Ex.P.8, no transaction was taken place during the time from 17.7.2014 to 3.9.2014.
13. The PW1 further deposes that various persons have been supplying the materials to his shop. As discussed above, the Complainant used to give payment to that dealers through Cheque or cash. The P.W.1 further says that in every week he gets profit of Rs.35,000/-. The suggestion of the Accused that the Complainant used to take security Cheque from the customers for supply of materials. Therefore, it shows that the Complainant adopts method to supply materials on credit basis by taking security Cheques from such persons. Sometimes, the customers will give blank Cheques or sometimes the customers themselves fill the contents. Admittedly, the same practice was adopted in the transaction with the Accused.
14. According to the PW1, the Accused purchased materials from the Complainant shop on credit basis and Accused used to pay such amount within week or fifteen days. During that period the Complainant demanded to give Cheques as security from the Accused. During the course of cross- examination the PW1 admits the existence of two passbooks in the name of Accused. According to that entry the Accused 8 CC.No.54508/2015 issued 8 Cheques for payment of purchase of materials from Complainant. The Complainant used to give receipt in every occasion. Therefore, the evidence of the PW1 categorically proves that he used to receive many Cheques from customers including the Accused when material are supplied on credit basis. It is suggestion of the Accused that the Complainant received 4 Cheques as security in the year of 2010. But it is denied. During the course of cross-examination the PW1 admits the issuance of 39 receipts for supply of materials. It is further suggestion of the Accused that the Complainant started to sell materials for higher amount than the amount mentioned in the products. Due to that the Complainant and Accused disconnected their transaction. Therefore, in the vengeance the Complainant filed false case. The said suggestion is denied.
15. Ex.P.1 and Ex.P.2 are the Cheques for Rs.5,00,000/- each. Ex.P.3 and Ex.P.4 are the endorsements. On presentation of the two cheques have dishonoured for funds insufficient. Ex.P.5 is the Legal Notice dtd.28.3.2015. Ex.P.6 is the Postal receipt and Ex.P.7 is the acknowledgment. Ex.P.8 is the bank statement for the period of 2.4.2014 to Ex.P.10.6.2017. The so- called loan transaction took place in the month of August 2014. The said document is produced after close of cross-examination 9 CC.No.54508/2015 of PW1 by recalling him. But the Ex.P.8 document does not indicate the exact balance of Complainant in the month of August 2014. The last entry dtd.17.7.2014 shows that the account of the Accused was balanced sum of Rs.15,84,974/-. The very next entry dtd.7.9.2014 shows the account of the Complainant was balanced for sum of Rs.16,00,000/- something. The contention of the Complainant is that he used to withdraw amount of Rs.5,00,000/- from his account and paid it as loan to the Accused including another sum of Rs.5,00,000/- which was in his house. As discussed above, there is no clue available in the Ex.P.8 document about the use of amount of Rs.5,00,000/- as loan to the Accused.
16. To rebut the case of the Complainant, the Accused examined himself as DW1. The DW1 has deposed that the Complainant became his friend while his transaction for purchase of hardware materials from the shop of Complainant. Initially, the Accused purchased the materials on credit basis. At that time the Complainant obtained 4 blank signed Cheques of Accused of Federal Bank and Bank of Baroda. Now the Accused closed the transaction with the Complainant. The trustworthy of the DW1 is questioned in the cross-examination. His transaction with the Complainant is admitted fact. 10 CC.No.54508/2015 Similarly, the Accused admits his Cheques. But he denied the contents of Cheques. The defence of the Accused that the Complainant received 4 blank Cheques for security purpose at the time of purchase of materials. But the Accused did not take any endorsement from the Complainant as to issuance of Cheques is only for security purpose.
17. Similarly, after presentation of said Cheques, the Accused did not inactivate his account. Ex.D.1 to Ex.D.49 are confronted since those documents are admitted by the Accused. Ex.D.1 is the passbook of the Accused. Ex.D2 is the another passbook of the Accused of Federal Bank. The said Ex.D.2 shows that the amount of Rs.50,000/- was withdrawn from the account of Accused as the balance amount for materials. Ex.D.3 to Ex.D.49 are the various bills issued by the Complainant shop in the name of Accused for purchase of materials on various dates for different amounts. These documents concrete the transaction of the Accused with the Complainant. The Ex.D.50 is the certified copy of the police complaint given by the Accused against the Complainant. The said complaint was given on 16.1.2016 much after the date of issuance of Ex.P.5 legal notice. The Accused denies the service of notice. But Ex.D.50 complaint was given after lapse of 9 11 CC.No.54508/2015 months. Suppose the Complainant really misused the security Cheques, the Accused could initiate legal action against the Complainant immediately after refuse to handover the security cheques. Admittedly, the Accused has not taken endorsement or any proof of writing about the deposit of 4 blank cheques as security.
18. The Sec.139 of N.I. Act empowers to draw presumption in favour of the holder of the Cheque unless strong piece of rebuttable evidence. Hence, court shall presume that the holder of the Cheque possesses only for legally recoverable debt. The Accused has not explained or tendered evidence stating that on which date he deposited his Cheques with Complainant for security. The evidence of the Accused is also silent about the reason which prevents the Accused to demand back the security Cheques. Therefore, though the Accused has deposed evidence, the said evidence is not sufficient to rebut the case of the Complainant. It is for the Accused to explain how his Cheques came to the possession of Complainant. For that, the theory of the Accused that those cheques came to the possession of the Complainant for security purpose. Ex.D1 to Ex.D.49 documents indicate the transaction of Accused with the Complainant. Therefore no 12 CC.No.54508/2015 rebuttable evidence is available to defeat the case of the Complainant. Therefore the Point No.1 is answered in the Affirmative.
19. POINT No.2 : In view of discussion held in Point No.1, I proceed to pass the following :
ORDER . Acting under Section 255 (2) of Cr.P.C. the accused is hereby convicted for the offence punishable under section 138 of Negotiable Instrument Act by sentencing to pay fine of Rs.13,05,000/- (Rupees Thirteen Lakhs and Five Thousand only). Out of which, Rs.13,00,000/- (Rupees Thirteen Lakhs only) shall be paid as compensation to the Complainant in term of Sec.357 (1) of Cr.P.C and Rs.5,000/- (Rs. Five Thousand only) shall be paid to the State Ex- Chequer as fine. In default of payment of fine accused shall suffer simple imprisonment for a tenure of 3 months.
The bail bonds executed by the accused stands continued.
Office is directed to comply the Sec.363 (1) of Cr.P.C.
(Dictated to the Stenographer, transcript computerized by her, revised corrected and then pronounced by me in the open Court on this the 4th day of October, 2018) (KAMALAKSHA.D), LVIII ACMM, BENGALURU 13 CC.No.54508/2015 ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 Mr.G. Srinivasa Reddy
2. Documents marked on behalf of complainant:
Ex.P.1 & Ex.P.2 Cheques Ex.P.1(a) & Ex.P.2(a) Signature of the Accused Ex.P.3 & Ex.P.4 Bank endorsements Ex.P.5 Office copy of Legal Notice Ex.P.6 Postal receipt Ex.P.7 Postal acknowledgment Ex.P.8 Bank statement
3. Witnesses examined on behalf of Accused :
D.W.1 Mr. K.S. Ramesh Kumar
4. Documents marked on behalf of Accused :
Ex.D.1 & Ex.D.2 Bank Passbooks
Ex.D.3 to Ex.D.49 Bills
Ex.D.50 Certified copy of complaint
given by the Accused to K.R.
Puram Police
(KAMALAKSHA.D),
LVIII ACMM, BENGALURU.