Bangalore District Court
Aged About 38 Yrs vs Aged About 22 Years on 25 April, 2015
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE BANGALORE
DATED THIS THE 25th DAY OF APRIL, 2015
PRESENT
SRI. C.D.KAROSHI, B.A., LL.B., (Spl)
XIV ADDL. C.M.M., BANGALORE.
CASE NO C.C. NO.26287/2012
Sri. S. Ganesh @ Ganesh Rao .S
S/o. Late Sham Rao
COMPLAINANT Aged about 38 yrs, No.64/6, 1st Cross, J.C.
Nagar, Bengaluru
Sri. Sunil Chavan
S/o. Shivaji Rao
ACCUSED Aged about 22 years, R/o No.6, 1st Cross, 1st
Main Road, Muddamma Block, Benson Town
Post, Bengaluru - 560 006.
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER
Accused is convicted
(C.D. KAROSHI)
XIV ADDL. C.M.M., BANGALORE
2 C.C. No.26287/2012
JUDGMENT
This is a complaint filed by the complainant under Sec.200 Cr.PC against the accused for the offence punishable under Section 138 N.I. Act.
2. In a nutshell it is alleged in the complaint that complainant entered into an agreement of lease dated 22.5.2009 with Smt.Poornima .G mother of accused with respect to a residential house bearing No.6, 1st cross, 1st Main Road, Muddamma Garden, Benson Town Post, Bengaluru for a period of three years and said Smt.Poornima .G received a sum of Rs.4 lakhs by way of cash from the complainant. Further it is arrayed that after completion of lease period, on 16.5.2011 accused has paid a sum of Rs.3,50,000/- and issued a cheque bearing No.124191 dtd.27.6.2011 for Rs.50,000/- drawn on HDFC Bank, I.T.P.L Road branch, Bangalore. As per request of the accused, he has presented the said cheque for encashment twice; it came to be returned with an endorsement as "Funds Insufficient", on receipt of legal notice dated 23.8.2011 through RPAD accused has failed to make payment of cheque amount within the stipulated period and thereby committed the offence punishable under Section 138 Negotiable Instruments Act.
3 C.C. No.26287/20123. Records reveal that on receipt of summons, the accused has appeared and got enlarged on bail. Plea for the offence under Section 138 Negotiable Instruments Act recorded, wherein accused pleaded not guilty. The complainant examined himself as PW.1 and got marked the documents at Ex.P1 to P12. Side of the complainant treated as closed. Statement of the accused as required under Section- 313 of Cr.PC recorded. The accused examined himself as DW.1 and got examined a witness as DW.2.
4. Heard the arguments and perused the material on record.
5. The points that arise for my consideration are :-
1) Whether the complainant proves that as per the agreement of lease dated 22.5.2009, accused has issued a cheque bearing No.124191 dtd.27.6.2011 for Rs.50,000/- drawn on HDFC Bank, I.T.P.L Road branch, Bangalore towards discharge of the existing debt/liability/payment of balance lease amount?
2) Whether the complainant further proves that when he presented the said cheque for encashment, it was returned with an endorsement as "Funds Insufficient" and despite receipt of notice also the accused has not complied and thereby committed an offence punishable under Section 138 of Negotiable Instrument Act?
3) What Order?4 C.C. No.26287/2012
6. My answers to the above points are as follows:
Point No.1 : In the affirmative,
Point No.2 : In the affirmative,
Point No.3 : As per the final order
for the following.......
REASONS
7. Point No. 1: The learned counsel for the
complainant vehemently argued that cheque issued by the accused on behalf of his mother towards refund of balance lease amount came to be dishonoured and despite service of legal notice he did not comply, gave reply stating that he has already paid the entire amount, but fail to prove the same, on these grounds he prayed for convicting the accused. Per contra, the learned counsel for the accused also strenuously argued that dispute is civil in nature, but complainant has filed the case by misusing the cheque collected in the police station. In this connection, relying on decisions reported in 2012 (2) AIR Kar R 203 - (K.M. Nagaraj V/s. T.C. Govinde Gowda), ILR 2008 KAR 3635 - (K.Narayana Nayak V/s. Sri. M.Shivarama Shetty) & 2005 (1) DCR 79 - Jharkhand High Court - (Lalan Prasad V/s. State of Jharkhand & others) urged that accused is entitle for acquittal. I have carefully gone through the principles enunciated in the decisions and the entire material on record.
5 C.C. No.26287/20128. In order to prove his case, the complainant examined himself as PW.1 by reiterating entire averments of the complaint stating that he entered into an agreement of lease dated 22.5.2009 with Smt.Poornima .G mother of accused with respect to a residential house bearing No.6, 1st cross, 1st Main Road, Muddamma Garden, Benson Town Post, Bengaluru for a period of three years and said Smt.Poornima .G received a sum of Rs.4 lakhs by way of cash, after completion of lease period, on 16.5.2011 accused has paid a sum of Rs.3,50,000/- and issued a cheque bearing No.124191 dtd.27.6.2011 for Rs.50,000/- drawn on HDFC Bank, I.T.P.L Road branch, Bangalore towards balance amount, but on its presentation came to be returned with an endorsement as "Funds Insufficient" and despite receipt of notice accused has failed to make payment of cheque amount within the stipulated period and thereby committed the offence. In order to support his oral testimony, PW.1 got marked the documents Ex.P1 to P12. In the cross-examination of PW.1 the learned counsel for the accused try to elicit some undisputed facts regarding lease of the house for an amount of Rs.4 lakhs for the period of three years, two months prior notice to vacate the house, repayment of part lease amount of Rs.3,50,000/- made by the mother of the accused, reply given by the accused, cheque in question was being issued by the accused and his 6 C.C. No.26287/2012 mother on 16.5.2011 in the police station itself, PW.1 admits these suggestions as true and correct. But he has specifically denied the suggestion that he has filed the false case for extracting more interest by misusing/filling the contents of cheque given as security purpose. So except these aspects nothing worth has been elicited to discard the evidence of PW.1.
9. In order to rebut the case of the complainant, accused examined himself as DW.1 stating that he had no transaction with the complainant, but he was residing in the lease house given by his mother for Rs.4 lakhs as lease amount, but before expiry of three years period complainant vacated the house and he gave blank signed cheque in question to his mother. Further states that on 30.6.2011 though they have repaid the balance amount of Rs.50,000/-, but complainant did not return the cheque and lease agreement and filed the case by issuing notice, in turn he gave reply. So also DW.2 who is none else mother of the accused has stated before the court by supporting the version of the accused/DW.1. But in their cross-examination they have categorically admitted the fact that prior to vacating the house it was brought to the notice of DW.2, signatures on Ex.P1 & P2 belongs to them only, he had knowledge to obtain an endorsement for having repaid the balance amount to the complainant, there is a clause in Ex.P8 7 C.C. No.26287/2012 to the effect that soon after refund of Rs.50,000/- balance amount cheque in question was to be returned to the accused on 30.6.2011. Further DW.1 admits that since his mother did not have Rs.4 lakhs, as such they issued the cheque in question towards payment of balance amount of Rs.50,000/-. Further DW.2 being the mother of accused has also admitted that since complainant demanded for payment of interest, as such she did not return the said amount with interest. In such circumstances, this court has to appreciate the documentary evidence along with oral evidence of the parties.
10. It is pertinent to note here that in the case on hand so for as in respect of acquaintance of the complainant as tenant with the accused and his mother is concerned there is no dispute. It is also not in dispute that as per the terms of the lease agreement dated 22.5.2009 marked at Ex.P1 mother of the accused Smt.Poornima .G being the owner has executed the same in favour of the complainant - S.Ganesh Rao. Para 7 of the said agreement reveals that complainant being the lessee has paid an amount of Rs.4 lakhs by cash as on the date of lease agreement itself. Further it is evident from the perusal of cross examination of DWs.1 & 2 along with the endorsement dated 16.5.2011 made on Ex.P1 - Lease Agreement that complainant has received back Rs.3,50,000/- as part payment from the accused and his mother. Further it 8 C.C. No.26287/2012 appears that complainant has received the cheque in question bearing No.124191 dtd.27.6.2011 towards balance amount of Rs.50,000/-. It is not in dispute that Ex.P2-cheque in question was being issued by the accused on behalf of his mother and signature thereon belongs to him only. In this regard, PW.1 has specifically denied the suggestion that he has filed the false case by misusing the said cheque given as security for getting more interest. Further during the course of cross- examination of DW.1, he has admitted the contents of Ex.P8(a) relevant portion of reply given by him to the effect that cheque in question has been issued with a condition that it shall be taken back on 30.6.2011 by making balance amount of Rs.50,000/- and failure to do so complainant is at liberty to present the cheque on 1.7.2011 for encashment, accordingly as per the request of the accused, complainant presented the cheque for encashment twice, but it came to be returned for want of sufficient funds.
11. It is the case of the accused as urged by the defense counsel that he has already paid balance amount of Rs.50,000/- also, but complainant has filed the case by misusing the cheque given as security. On the contrary DW.1 admits that he had aware of taking endorsement for having repaid balance amount of Rs.50,000/. So when the accused and his mother have made an endorsement dated 16.5.2011 9 C.C. No.26287/2012 on page No.2 of Ex.P1 - Lease Agreement for having repaid Rs.3,50,000/- as well as issuance of cheque in question towards repayment of balance amount, then what prevented them to make another endorsement for having repaid the balance amount of Rs.50,000/- is not explained by the accused or his mother through out the proceedings. It may be noted that even with regard to date of cheque which was wrongly typed in para 1 of Ex.P5-legal notice as 16.5.2011 instead of 27.6.2011, has been clarified by issuing Ex.P9- corrigendum dated 16.9.2011, as such on this aspect contention taken by the learned counsel for the accused during the course of cross-examination of PW.1 cannot be sustained.
12. With regard to breach of terms of lease agreement is concerned, as could be seen from the perusal of cross- examination of DWs.1 & 2 that complainant has also complied the terms and conditions as agreed under Ex.P1-Lease Agreement. On page No.5 of the cross-examination of DW.1- accused has specifically admitted the fact that since his mother did not have an amount of Rs.4 lakhs, as such he has issued the cheque towards repayment of balance amount of Rs.50,000/-. DW.2 also states that since complainant demanded for payment of interest and refused to take balance amount, as such the ratio laid down in the case of Lalan 10 C.C. No.26287/2012 Prasad (2005 (1) DCR 79 referred supra cannot be made applicable to the facts of the case on hand. So this being the fact when and how the accused and his mother have repaid balance amount of Rs.50,000/- to the complainant is on the accused to discharge by making their version reasonably probable by adducing supporting oral and documentary evidence before this court. So though it was suggested to the complainant that cheque in question is being misused, but in order to support their contention accused has neither intimated the bank for stop payment or took any action as against the complainant for having misused the cheque in question or stated anything during the course of examination U/s.313 of Cr.PC with plausible explanation, which indicates that this is also an unusual conduct of the accused to avoid criminal prosecution being launched against him.
13. Again with regard to plea of misuse of blank signed cheque in question, the learned counsel for the accused relying on a decision reported in 2012 (2) Kar R 203 (K.M.Nagaraj case) urged that any alteration in the instrument should be with consent of the drawer. It is no doubt true that drawer has to give consent as required U/s.87 of the Act, but in this regard if we go through the cross of examination of PW.1 we can find that he has written the date and name in the presence of then P.S.I, J.C. Nagar police station, as per the say 11 C.C. No.26287/2012 of the accused only, this material evidence remained unchallenged. So section 20 of the Act provides that the person who signs and delivers an instrument either wholly blank or having written thereon, he gives prima facie authority to holder of the cheque to make it complete, therefore the contention of the accused on this aspect also cannot be sustained. Further with regard to plea of misusing the cheque given as security purpose, if we go through the cross- examination of DW.1 we can find that accused being the son has issued the cheque in question towards repayment of balance amount of Rs.50,000/-. This being the fact it can be held that something probable has to be brought on record and burden of proof can be shifted back to the complainant by producing convincing circumstantial evidence by the accused only. In my opinion accused has miserably failed to discharge by making his version reasonably probable so as to believe that cheque said to have been issued as security is being misused, as such ratio laid down in the case of K.Narayana Naik (ILR 2008 KAR 3635) referred supra by the learned counsel for the accused is not made applicable to the facts of the case on hand. For these reasons evidence of DWs.1 & 2 cannot be accepted as worthy of credence. Section 118(1) of the Act provides that every negotiable instrument is presumed to have been made or drawn for consideration. In such circumstances presumption does indeed include existence of 12 C.C. No.26287/2012 legally enforceable debt also. So looking from any angle I find that there are no reasons to discard the evidence of PW.1 or to believe the contention of the accused so as to create doubts about existence of legally enforceable debt or liability of Rs.50,000/- as on the date of issuance of cheque, as such an adverse inference can validly be drawn against the accused. Therefore, arguments advanced by the learned counsel for the complainant holds good and any amount of arguments canvassed by the learned counsel for the accused is turned down, consequently an adverse inference can validly be drawn against the accused. Hence, I answer point No.1 is in the affirmative.
14. Point No.2 : Now, what is to be seen by this court is, whether the complainant has followed remaining requirements as contemplated under Section 138 of Negotiable Instruments Act or not. With regard to service of notice and point of limitation is concerned it is prima facie evident from the perusal of Ex.P6-postal acknowledgement that legal notice issued by the complainant was duly served upon the accused on 27.8.2011, accordingly accused has given reply under Ex.P8, from the date of service of notice by RPAD the 15 days period of making of payment by the drawer under proviso (c) Sec.138 of N.I. Act held, expired on 11.9.2011. Cause of action to file complaint against the accused arose on 13 C.C. No.26287/2012 12.9.2011 itself. The private complaint was filed on 22.9.2011, which is well within the period. Therefore, it can be held that if the cheque is returned with an endorsement as "funds insufficient" and despite receipt of legal notice also drawer failed to comply, it amounts an offence under Section 138 Negotiable Instruments Act.
15. It is to be noticed that the statutory presumption in favour of the complainant, holder of cheque envisaged under Sections 118 and 139 of N.I. Act also stands un-rebutted. Wherefore, I come to conclusion that the complainant has proved his case to believe that accused has committed an offence under Section 138 Negotiable Instruments Act, which provides punishment with imprisonment for a term which may extend to two years or with fine which may extend to twice the amount of cheque or with both. Ex.P2-cheque in question came to be drawn and issued in the year 2011 for a sum of Rs.50,000/-, so considering the facts and nature of offence accused is liable for simple imprisonment and to pay compensation in accordance with law. Hence, I answer point No.2 is in the affirmative.
16. Point No. 3 : For the foregoing reasons, I proceed to pass the following......
14 C.C. No.26287/2012ORDER Acting under Section 255(2) of Cr.PC accused is hereby convicted and sentenced to undergo simple imprisonment for three months for the offence punishable under Section 138 of Negotiable Instrument Act.
Acting under Section 357(3) of Cr.PC accused is directed to pay a compensation/fine of Rs.76,000/- to the complainant towards the loss and injury suffered by him.
In the total compensation amount, a sum of Rs.1,000/- shall be deposited as fine to the State.
In default of the aforesaid compensation/fine amount accused shall further undergo simple imprisonment for fifteen days.
(Typed to my dictation by the stenographer, directly on computer, corrected, signed and then pronounced by me in the open court on this the 25th Day of April, 2015) (C.D. KAROSHI) XIV ADDL.C.M.M., BANGALORE 15 C.C. No.26287/2012 ANNEXURE Witnesses examined for the complainant:
PW.1 : Sri. Ganesh Rao
Witnesses examined for the defence:
DW.1 : Sri. Sunil Chawan
DW.2 : Smt. Poornima
Documents marked for the complainant:
Ex.P1 : Lease Agreement
Ex.P2 : Cheque
Ex.P2(a) : Signature of the accused
Ex.P3 & 4 : Bank endorsements
Ex.P5 : Copy of legal notice
Ex.P6 : Postal acknowledgement
Ex.P7 : Postal receipt
Ex.P8 : Reply notice
Ex.P8(a) : Relevant entry
Ex.P9 : Notice
Ex.P10 : Postal receipt
Ex.P11 & 12 : Postal acknowledgements
Documents marked for the defence:
NIL
(C.D. KAROSHI)
XIV ADDL. C.M.M.,
BANGALORE
16 C.C. No.26287/2012