Bangalore District Court
Ramesha vs D.N.Yogesh on 10 October, 2018
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 10th day of October - 2018
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.18978/2017
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Ramesha,
S/o.Siddappa,
Aged about 42 years,
R/at No.3, 3rd Cross,
5th Main, Near Bishop Cotton
School, Hegganahalli,
Bengaluru-91.
(Rep. by Sri.A.Rajesh, Adv.)
V/S
Accused : D.N.Yogesh,
S/o.Narasimhaiah,
Abed about 34 years,
R/at. No.29, Sri Krupa Nilaya,
2nd Main, 2nd Cross,
Peenya Indl. Area,
Chokkasandra,
Maruthi Badavane,
Bengaluru-58.
(Rep.by Sri.M.Mahantheesha, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
Judgment 2 C.C.18978/2017
FINAL ORDER : Accused is Convicted.
DATE OF ORDER : 10.10.2018.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
The complainant has presented the instant complaint against the accused under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act for dishonour of cheque amount of Rs.3 lakhs.
2. The brief facts of the complaint are as under:
The accused was running a mobile shop at Rajagopalanagara and the complainant is residing in same locality and he was visiting the accused's shop, hence, both are knew each other more than 8 -10 years.
The complainant has further contended that, on 25.02.2016 the accused had approached the complainant seeking for financial help of Rs.5 lakhs to augment his immediate financial needs to clear debts and also to invest in his business activities. Accordingly, the complainant Judgment 3 C.C.18978/2017 has mobilized the funds by pledging gold jewels in padmavathi jewels and Bankers and also at Sanjay Enterprises and paid sum of Rs.3 lakhs to the accused by way of cash on 29.02.2016. While borrowing the said hand loan, the accused has promised, he will repay the same within six months along with interest, which may accrue on pledging of his gold jewels.
The complainant further contended that, after stipulated period, the complainant demanded for repayment of the said loan amount, however, in view of demonetization of currency, the accused had further requested time on the said pretext. Finally, in order to repay the borrowed amount, during the 1st week of March, 2017, the accused has issued a cheque bearing No.701509 dated:15.05.2017, drawn for Rs.3 lakhs, drawn on Dhanalakshmi Bank Ltd., in favour of complainant, and assured the complainant that, the said cheque would be honoured on its presentation and the accused had requested the complainant to redeem the gold jewels and he would pay the interest amount which has accrued thereon.
Judgment 4 C.C.18978/2017
The complainant further contended that, at the request of the accused, for encashment of the said cheque presented before his banker viz., Sree Subramanyeshwara Co-operative Bank Ltd., Vijayanagar Branch, Bengaluru on 16.05.2017. But, to utter shock and surprise of complainant, the said cheque was dishonoured with an endorsement dated:17.05.2017 stating, "Funds Insufficient". Immediately, the complainant contacted the accused and disclosed about the dishonour of the cheque, but the accused has went on avoiding and evading the payment with malafide intention. The complainant being left with no other option, got issued legal notice to the accused on 24.05.2017 through his counsel, and the same was duly served upon accused on 26.05.2017. Neither the RPAD cover nor RPAD Acknowledgment was returned, and as such complainant counsel has made complaint before the post master. After receipt of notice, accused has neither paid the cheque amount nor replied the notice. Thereby, he committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, the complaint.
Judgment 5 C.C.18978/2017
3. After presentation of the complaint before this court, my predecessor in office has taken the cognizance and got registered the case and recorded the sworn statement of the complainant and got marked Ex.P1 to P5. Thereafter, since the complainant made out prima-facie case to proceed against the accused, the instant criminal case has been registered and process was issued to the accused.
4. In response to the summons, the accused appeared before this court and obtained the bail. After receipt of the copy of the complaint as required, the accusation read over and explained to the accused, he denied the same and claimed to have the defence. Thereafter, the sworn statement of complainant treated as complainant evidence. Though, the accused has appeared through his counsel, he choosen to filed application required under Section 145(2) of Negotiable Instruments Act, despite given sufficient opportunities for cross-examine the PW.1 and to lead his defence evidence, the accused not choosen todo so or produce any document to rebut the case of the complainant. Thereby made the case of the complainant unchallenged.
Judgment 6 C.C.18978/2017
5. Heard the arguments of complainant counsel. The accused counsel has not addressed the arguments.
6. On going through the materials available on record, the following points have been arising for determination:
1) Whether the complainant proves beyond the reasonable doubt that, on 29.02.2016 he paid sum of Rs.3,00,000/- as hand loan to the accused, and in turn, for repayment of the same, the accused got issued the Ex.P1-cheque bearing No.701509, dated:15.05.2017, drawn on Dhanalaxmi Bank Ltd., Peenya Branch, Bengaluru?
2) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
7. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Affirmative Point No.2 : In the Affirmative Point No.3 : As per final order, for the following:
REASONS
8. POINT NOs.1 and 2: Since these two points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts. Judgment 7 C.C.18978/2017
On going through the materials available on record, the fact that, Ex.P1 cheque and signature found therein belongs to the accused is not in dispute. The fact that, the said cheque within the stipulated period submitted to the bank and got dishonoured for the reason 'Funds Insufficient" as per Ex.P2 is not in dispute. The fact that, within the stipulated period the complainant has issued Ex.P3 legal notice to the accused as per Ex.P4 and the same got served on accused as per Ex.P5 is not in dispute. Totally, the compliance of mandatory provisions made by the complainant which attracts Ex.P1 is not in dispute.
9. In order to prove the case of complainant, the complaint averments has reiterated in the affidavit filed in lieu of his chief examination by the complainant has substantial evidence. The evidence of PW.1 is supported with documents at Exs.P1 to P5, which are:
a) Ex.P1 is the cheque bearing No.701509 issued by the accused for sum of Rs.3,00,000/-, dated:15.05.2017 drawn on Dhanalaxmi Bank Ltd., Peenya Branch, Bengaluru.
b) Ex.P1(a) is the alleged signature of accused.
c) Ex.P2 is the Bank Memo dated:17.05.2017.
d) Ex.P3 is the Legal Notice dated:24.05.2017.Judgment 8 C.C.18978/2017
e) Ex.P4 is the postal receipt, and
f) Ex.P5 is the Track Consignment.
10. No doubt, during the record of plea, the accused denied the very allegations made against him. Thereafter, even the accused has not cross-examined the PW.1 nor put forth any defence throughout the case. No doubt, in decision reported in 2014 AIR SCW 3462 (Indian Bank Association and another V/s Union of India), the Hon'ble Apex Court has set out the mandatory directions to the magistrate courts to follow the prescribed procedures in dealing with Negotiable Instruments cases therein. As per the said dictum, the accused choosen to file application as required under Section 145(2) of Negotiable Instruments Act seeking permission to put forth his defence or cross- examine the PW.1. In this case, the accused has been given sufficient opportunities to cross examine the PW.1 and to lead his defence evidence, but the accused was not led any oral evidence and not produced any document to disbelieve the claim put forth by the complainant.
11. It is pertinent to note that, though accused at the time of recording accusation, denied the very allegations Judgment 9 C.C.18978/2017 made against him, he unable to put forth any specific defence as to why, the Ex.P1 cheque was handed over to the complainant, other than the allegations made in the complaint. Thereby, the accused has failed to demonstrate that, he is not liable to pay the amount covered under the cheque, which is not legally recoverable debt. Even the accused has failed to demonstrate that, how the complainant has came to the possession of the cheque then alleged in the complaint and in that regard, he failed to set out any other defence. Contrary, the complainant has successfully made out that, as required under Section 118 of Negotiable Instruments Act, the Ex.P1 cheque was transferred to the complainant for the consideration. It is pertinent to note that, except bald denial while recording plea, the accused has not taken any specific defence, therefore, it is statutory presumption has raised in favour of the complainant that, the Ex.P1 cheque was issued by the accused for the payment of legally recoverable debt only. It was an opportunity to the accused to rebut the same, but either he has not taken any specific defence or choosen to cross-examine the PW.1 in that regard. Therefore, as per Section 118 of Negotiable Instruments Judgment 10 C.C.18978/2017 Act, the presumption is drawn that, for the payment of consideration made mentioned in the Ex.P1, the accused has issued the Ex.P1 - cheque. But he failed to rebut the said presumption throughout the case.
12. On going through the materials available on record, which relied by the complainant it prima-facie made out that, after complying the mandatory requirement, the complainant has presented the case against the accused. Even the compliance of mandatory provisions as put forth under Section 138 (a) to (c) of Negotiable Instruments Act is also remains unchallenged.
It is relevant to cite the following decisions. In a decisions reported in 2008 (4) SCC 54: 2008 (1) SCR 605, Krishna Janardhan Bhat V/s. Dattatraya G Hegde. The Hon'ble Apex Court has pleased to observe that:
Complaint under section 138 must contain the following ingredients, viz.,
(i) that there is a legally enforceable debt;
(ii) that the cheque was drawn from account of bank for discharge in whole or in part of any debt or other liability which pre-supposes a legally enforceable debt;Judgment 11 C.C.18978/2017
(iii) cheque so issued had been returned due to insufficiency of funds;
13. As per the said dictum also, in the case on hand, the issuance of Ex.P1 cheque as the accused failed to prove the contrary, it pre-supposes that, for the payment of legally enforceable debt, the accused has issued the Ex.P1 cheque. Even for honoring the said cheque, the accused failed to maintain sufficient funds in his account. Though there was legal notice was issued to pay the amount covered under the cheque, the accused failed to utilize the said opportunity in order to discharge his burden.
14. From the point of the above dictum also, it was opened to the accused to adduce the evidence to rebut the statutory presumptions, but he failed to rebut the same to suspect the genuineness of the claim made by the complainant.
It is relevant to cite another decision reported in, (1999) 97 Comp Cas 664 (K.I.George V/s. Muhammed Master). Wherein it was pleased to held that:
The presumption available under section 139 can be rebutted by the accused by adducing evidence. So the burden of proof is on the accused and the evidence available or Judgment 12 C.C.18978/2017 record will have to be appreciated by bearing in mind the above fact regarding burden of proof.
15. In the case on hand, it is the complainant has to prove his case beyond the reasonable doubt. But, the accused has to prove his defence on the principle of preponderance of possibilities. In the case on hand, the complainant by producing documentary evidence as well as oral evidence, has proved his case beyond reasonable doubt. Even, the accused has not taken any probable defence, to rebut the case of the complainant, thereby, the accused has failed to disprove the very case of the complainant. Mere taking bald defence is not enough to suspect the genuineness of claim of the complainant. The accused failed to take any specific defence to rebut the case of the complainant. Therefore, there is no material on record to disbelieve the claim of the complainant. The complainant by producing convincing evidence, has proved his case beyond reasonable doubt.
In view of the judgment of Hon'ble Apex Court in, Writ Petition (Civil) No.18 of 2013 (Indian Bank Association and others V/s. Union of India and others) Judgment 13 C.C.18978/2017 coupled with Section 143 (2) & (3) of Negotiable Instruments Act, the Hon'ble Apex court has several guidelines to dispose the Negotiable Instruments cases expeditiously.
16. In the case on hand, the evidence of the PW.1 remains unchallenged. Though, the accused appeared through his counsel not challenged the testimony of PW.1 as well as documents relied by the complainant. Thereby, made the sufficient grounds to draw the presumption as required under Sections 139 and 118 of Negotiable Instruments Act, that, the accused for the repayment of the loan borrowed by him for sum of Rs.3,00,000/-, got issued the Ex.P1 cheque in favour of the complainant. Though, the said cheque was presented at the instance of the accused for encashment, the same got dishonoured and the intimation was delivered to the complainant by stating "Funds Insufficient". Thereafter, the complainant issued the legal notice, calling upon the accused to repay the money covered under the cheque. Since, the accused not come forward to pay the money, accrued cause of action to the complainant to bring the present case. The very case put forth by the complainant is after strict compliance of mandatory provisions enumerated under Section 138 of Judgment 14 C.C.18978/2017 Negotiable Instruments Act. Though, the accused appeared, but utterly fails to disprove the case of the complainant, and even failed to take any probable defence against the case of the complainant. The PW.1, successfully proved his case by producing material evidence on record. Thereby, the complainant has proved the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act. The accused wantonly issued the cheque for repayment of money without maintaining the sufficient funds, despite issued the legal notice not rectified his mistake by pay the money covered under the cheque. It shows that, intentionally the accused got issued the cheque without maintaining sufficient funds, thereby the accused committed the alleged offence. Even after, the filing of the complaint and till the day, the accused not come forward to pay the money in order to skip from his liability. Thereby the complainant has proved that, the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act.
17. No doubt, the complainant proved the guilt of the accused. Under such circumstances, what is the sentence Judgment 15 C.C.18978/2017 to be imposed on the accused is to be looked into. Keeping in the mind of the object of the introduction of Negotiable Instruments Act as well as the purpose of the loan availed by the accused from the complainant and made use of the same for his personal benefit, it appears this court that, it is a fit case to impose fine sentence rather imprisonment. The fine imposed on the accused in respect of the cheque amount along with fine of Rs.5,000/- payable to the state and major portion has to be payable to the complainant as compensation and meager portion has to be payable to the state as fine. If the accused fails to pay the whole fine amount, as default sentence, he shall undergo simple imprisonment for 10 months. Thereby, one more opportunity has provided to the accused to comply the order. Otherwise, the very purpose of filing complaint will be defeated. As discussed above, the complainant has proved his case beyond reasonable doubt. In the result, the accused shall sentence to pay the fine amount as detailed in the order portion. Accordingly, Point Nos.1 and 2 are answered in the Affirmative.
Judgment 16 C.C.18978/2017
18. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
ORDER Accused found guilty for the offence punishable under Section 138 of Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay fine of Rs.3,05,000/-.
Out of the said fine amount, sum of Rs.3,00,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.5,000/- shall be payable to the state as fine amount.
Failing which, as default sentence,
the accused shall under go simple
imprisonment for 10 (Ten) months.
The bail bond and cash
security/surety bond of the accused
stands cancelled.
The office is hereby directed to
supply the copy of this Judgment to the accused on free of cost.Judgment 17 C.C.18978/2017
(Dictated to the Stenographer directly on computer typed by him, corrected and then pronounced by me in the open court on this the 10th day of October - 2018) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Ramesha List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Ex.P1(a) : Signature of accused Ex.P2 : Bank endorsement Ex.P3 : Office copy of legal notice Ex.P4 : Postal receipt Ex.P5 : Track consignment
List of Witnesses examined on behalf of the defence:
- None -
List of Exhibits marked on behalf of defence:
- Nil -
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.Judgment 18 C.C.18978/2017
10.10.2018.
Comp -
Accd -
For Judgment Case called out.
Complainant is present.
Accused is absent. No
representation on behalf of accused.
Accused remained absent. Hence, the
judgment is passed as per Section 353(6) of Cr.P.C.
Judgment pronounced in the open court vide separate order.
*****
ORDER
Accused found guilty for the offence
punishable under Section 138 of
Negotiable Instruments Act.
Acting under Section 255(2) of
Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay fine of Rs.3,05,000/-.
Out of the said fine amount, sum of Rs.3,00,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount Judgment 19 C.C.18978/2017 of Rs.5,000/- shall be payable to the state as fine amount.
Failing which, as default sentence,
the accused shall under go simple
imprisonment for 10 (Ten) months.
The bail bond and cash
security/surety bond of the accused
stands cancelled.
The office is hereby directed to
supply the copy of this Judgment to the accused on free of cost.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
The convictee and his counsel are absent and not moved any application for suspend the order of judgment till the period of appeal. As already the NBW against the accused/convictee is pending, issue date less NBW and FLW against the convictee.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.