Bangalore District Court
Mr.D. Umashankar vs Mr. Sampath Kumar on 9 August, 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 9th day of August, 2018.
C.C.No.51819/2016
COMPLAINANT : Mr.D. Umashankar
S/o. Dibbagiriyappa,
Aged about 58 years,
R/at No.121, 14th Cross,
2nd Main Road, Maruthi Nagar,
Yelahanka,
Bengaluru.
(By Sri Basavaraju - Advocate)
V/s
ACCUSED : Mr. Sampath Kumar
S/o. Rajanna,
Aged about 30 years,
R/at No.107, Geddalahalli,
Kottanur Post, Bengaluru East,
Bengaluru - 560 077.
(By Sri. Thyagaraj, Advocate)
1 Date of Commencement 06.11.2015
of offence
2 Date of report of offence 08.01.2016
3 Presence of accused
3a. Before the Court 27.01.2017
3b. Released on bail 27.01.2017
4 Name of the Complainant N.B. Hanumegowda
5 Date of recording of 21.03.2017
evidence
6 Date of closure of 25.07.2018
evidence
7 Offences alleged U/s 138 of the Negotiable
Instruments Act.
8 Opinion of Judge Accused is found guilty.
2 CC.No.51819/2016
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 his family friend for last few years. The Accused had borrowed sum of Rs.4,75,000/- on 11.7.2015 for domestic needs and for expenditure of medical charges of his mother. The Accused promised to repay the said loan when the Complainant made demand for it. In that event, the Accused issued Cheque bearing No.641973 dtd.6.11.2015 drawn on Vijaya Bank, Kothanur branch, Bengaluru for sum of Rs.4,75,000/-. The said Cheque was presented on 6.11.2015. But the concerned bank i.e., Karnataka Bank Ltd., Hunamaranahalli branch, issued endorsement on 11.11.2015 for "account blocked".
3. It is further submitted that the Complainant caused Legal Notice on 30.11.2015 and the said notice was served upon Accused on 7.12.2015. But the Accused did not reply the said notice.
3 CC.No.51819/2016
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.
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 complainants evidence.
6. The Complainant examined himself as PW-1 and 6 documents were marked as Ex.P.1 to Ex.P.6, Ex.P.6(a). Ex.D.1 and Ex.D.2 are marked through confrontation in the cross- examination of PW1. The Accused got examined himself as DW1 and one document was marked from his end as Ex.D.3. He also got examined one more witness as DW2.
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.
4 CC.No.51819/2016
9. Now the following points that arise for the consideration of this Court are :
1. "Whether the Complainant proves the cheque issued by the accused person dishonoured with an endorsement as "Account blocked"
and inspite of service of legal notice and demand the accused person failed to pay the cheque amount within stipulated period as 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 - PW1 says that now he is a jobless person, but he was an employee in Escot and taken voluntary retirement. He had Xerox centre in the year of 2012. The Accused is known to him from last 10 years. The evidence of the PW1 shows that the Accused and Complainant are mutual friends and used to participate in all family functions. It is suggested to the PW1 that he carries chit business, but it is denied. PW1 does not know the purpose of loan. He says he was gaining Rs.500 to Rs.800/- per day from Xerox business. 5 CC.No.51819/2016 According to the PW1 he is an Income Tax Assessee from 2012. But the said transaction has not been mentioned in the Income Tax Returns.
12. The PW1 further says that he has not taken document on 11.7.2015. The evidence shows that the Complainant has experience of bank transaction from last 20 years. He has two bank accounts in Karnataka Bank and South India Bank. It is suggested to the PW1 that the disputed Cheque is issued prior to 2012. But the PW1 does not know whether the disputed Cheque is CTS Cheque or non-CTS Cheque. The defence of the Accused that since the Complainant has been carrying money-lending business he took a disputed Cheque as security from the Accused. But it is denied. It is further suggested to the PW1 that different inks are used to fill the disputed Cheque. But, the PW1 says the said fact is not known to him and Accused has issued the Cheque. It is further suggested to the PW1 that he filled blank Cheques which is given as security and filed false case.
13. The PW1 further says that he has withdrawn sum of Rs.3,30,000/- on 11.6.2015 and he took remaining amount from his daughter and gave that amount as loan to the Accused. But the Complainant has not mentioned in the case 6 CC.No.51819/2016 that he mobilized loan by pledging gold and some amount was collected from his daughter. It is admitted that the account of the Accused was blocked in the year of 2013. It is further suggested that the said cheque has not been issued in year of 2015 and the Complainant filled the Cheque for Accused issuance in the year of 2011 for security purpose and filed false case. The PW1 further says that on the date of transaction, he has not taken any document like On Demand Promissory Note etc. The Complainant is not a habitual payer of loan to the others. It is further suggested to the PW1 that the disputed Ex.P.1 cheque pertaining to the year of 2011 and the Complainant says that the said fact may be true. Therefore the Complainant himself not sure about the Cheque and when it is issued. It is further suggested that a Cheque No.641972 was encashed in the year of 2011. The disputed Cheque No.641973. Therefore the Ex.P.1 Cheque is very next Cheque of early mentioned one which was encashed in the year of 2011. It is categorically admitted that the Cheque transaction pertaining to the Cheque book of Ex.P.1 was stopped in the year of 2013 itself. Therefore, the Complainant admitted that the Cheque transaction pertaining to the Ex.P.1 Cheque and its subsequent Cheques was closed in the year of 2013. In that respect the 7 CC.No.51819/2016 Canara Bank issued an endorsement. The two documents are marked by way of confrontation since PW1 admitted.
14. Ex.P.1 is the disputed Cheque dtd.6.11.2015 for sum of Rs.4,75,000/- allegedly issued by the Accused for repayment of amount. Ex.P.2 is the endorsement. The Karnataka Bank Ltd. issued endorsement stating that account blocked. Ex.P.3 is the notice. In the notice it is explained that the Ex.P.1 has been issued for repayment of amount. Ex.P.4 is the postal receipt. Ex.P.5 is the acknowledgment. Ex.P.6 is the bank statement of the Complainant. The said document is produced to prove that the Complainant had withdrawn the amount of Rs.3,80,000/-.
15. To rebut the evidence of Complainant, the Accused got examined himself as DW1. The defence of the Accused that the Complainant and Accused are the owners of shops which situated near by each other. The Complainant is carrying money-lending business along with Xerox business. The Accused is the one of the members of chit business. The Accused participated chit business for Rs.1,00,000/-, 2,00,000/-, 3,00,000/- and 5,00,000/- In the month of June 2010 he participated chit business for sum of Rs.4,00,000/-. He regularly repaid the said amount by depositing Rs.20,000/- 8 CC.No.51819/2016 per month. The Complainant maintained one book and that book is marked as Ex.D.3. After 10 months from the date of commencement of chit business, the Complainant has taken one blank Cheque as security. Therefore the Accused admits his signature. But he further denies that the contents of Ex.P.1 Cheque are not made by him or the contents of the Cheque are not filled by Accused. The said Cheque was issued in the year of 2011. Even after clearance of the said transaction, the Complainant did not return the blank Cheque. Therefore the defence of the Accused that except chit business, he has no other transaction with Complainant and the Complainant has filed false case.
16. The trustworthy of the DW1 is questioned in the cross-examination. The cross-examination of the DW1 indicates that he has not produced any document to prove the chit business with the Complainant. It is suggested to the DW1 that he borrowed said amount for medical expenditure of his mother It is admitted by the Accused that the Ex.D.3 does not contain the name of Accused.
17. The DW2 has deposed that the Complainant and Accused are friends each other. The DW2 was also one of the members of chit business with the Complainant and he 9 CC.No.51819/2016 participated in chit business with Complainant for sum of Rs.1,00,000/-. Similarly, the Accused has also participated in chit business.
18. The trustworthy of the DW2 is questioned in the cross-examination. It is suggested to the DW2 that he being the friend of DW1, deposes false evidence. But it is denied.
19. The Ex.D.1 is the statement of account of the Accused from 1.1.2010 to 11.7.2017. The said document shows that the Cheque No.664972 was encashed on 18.1.2011. Thereafter the subsequent Cheques have not been encashed or produced. Therefore it may be presumed that the transaction of related Cheques of Ex.P.1 was closed in the year of 2013 itself. Ex.D.2 is the endorsement issued by Vijaya Bank stating that the account of the Accused was inactive status from 6.4.2013. Ex.D.3 is the passbook pertaining to chit business. In the said pass book it is mentioned that the amount of Rs.4,00,000/- was received on 10.8.2010, 10.9.201, 10.10.2010, 10.11.2010, 10.12.2010, 10.1.2011, 19.2.2011, 19.3.2011, 10.4.2011, 10.5.2011. The name of the Complainant is found. But the name of the Accused is not found in the said passbook. Therefore, it is not clear as to who has paid amount to the 10 CC.No.51819/2016 Complainant. Hence, Ex.D.3 is not a cogent documentary evidence to defeat the case of the Complainant.
20. The defence of the Accused may be disbelieved because the remaining Cheques were not surrendered to the concerned bank i.e., Vijaya Bank even after closure of account of the Accused. It is the duty of the Accused to surrender all his related Cheques to the concerned bank immediately after inactive of account. Therefore it shows that the Accused had possessed Cheques of his account after closure of bank account which was existed in his name. Therefore, the ignorance of the Accused shows that he issued the said disputed Cheque even after inactive of his account. The Accused has not produced document of chit business allegedly carried by Complainant. The Accused categorically admits Cheque and his signature. Admittedly, the Demand Notice was served. After service of Demand Notice the Accused has not taken plea of closure of his bank account. Suppose the account of the Accused was really in the state of inactive he could issue reply notice stating the facts of defence. Therefore, the said defence is after thought defence only to curtail the evidence of the Complainant. Once the signature in the Cheque is admitted by the person is 11 CC.No.51819/2016 enough to prove that such Cheque is issued only for legally recoverable debt.
21. Even though the Accused has produced Ex.D.1 document, as discussed above, he has not surrendered related Cheques or subsequent Cheques of Ex.P.1. Therefore it shows that the Accused has issued the disputed Cheque in favour of the Complainant only for legally recoverable debt. The Complainant furnished citation of the Hon'ble Karnataka High Court 2017 (1) Crimes 270 between M/s. Maha Rashtra Apex Corporation Ltd. and Mrs. Rachana Kohli. The sad citation is furnished stating that affidavit of the Accused is not permissible as evidence. The Accused has come to the witness- box. Therefore the said citation is not applicable to the facts of this case.
22. The learned Counsel for the accused furnished notes of arguments. The Accused mentioned in the notes of arguments that the Complainant has not furnished any related document for loan transaction. The admission of Complainant about closure of the account is enough to dismiss the case. The Complainant admitted that the Cheque is pertaining to the year of 2011 etc. In the notes of arguments the Accused has mentioned dictums of Hon'ble Apex court of India and Hon'ble 12 CC.No.51819/2016 High Courts of other States. However when the Accused admit the Cheque and signature, no much evidence is required to prove that the disputed Cheque has been issued only for legally recoverably debt. Point No.1 is answered in the affirmative.
23. 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.5,80,000/- (Rupees Five Lakhs and Eighty Thousand only). Out of which Rs.5,75,000/- (Rupees Five Lakhs and Seventy- five Thousand 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 9th day of August, 2018) (KAMALAKSHA.D), LVIII ACMM, BENGALURU 13 CC.No.51819/2016 ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Mr.D. Umashankar
2. Documents marked on behalf of complainant:
Ex.P.1 Cheque Ex.P.1(a) Signature of the Accused Ex.P.2 Bank endorsement Ex.P.3 Office copy of Legal Notice Ex.P.4 Postal receipt Ex.P.5 Postal acknowledgment Ex.P.6 Notarized copy of bank statement Ex.P.6(a) Relevant entry
3. Witnesses examined on behalf of Accused : D.W.1 D.W.1 Mr. Sampath Kumar D.W.2 Mr. Ramanjinappa
4. Documents marked on behalf of Accused :
Ex.D.1 : Statement of account
Ex.D.2 Letter issued by the bank to Accused
Ex.D.3 Book
(KAMALAKSHA.D),
LVIII ACMM, BENGALURU.