Bangalore District Court
Prasad Palegar vs Anand Basappa on 17 December, 2019
IN THE COURT OF THE XVIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
PRESENT: MANJUNATHA.K.P, B.A.L, LL.B.
XVIII ADDL.C.M.M., BENGALURU
DATED : THIS THE 17th DAY OF DECEMBER 2019
C.C.NO: 15793/2017
COMPLAINANT:- Prasad Palegar,
Aged about 54 years,
S/o Late. D.No.Palegar,
R/o, #22, 8th Cross,
Kumara Park West,
Bengaluru-560 020.
(Repted by Shri.GS, Advocate)
V/s.
ACCUSED:- Anand Basappa,
Aged about 60 years,
S/o Late Basappa,
R/o 35, Cresent Road,
High Ground,
Bengaluru-560 001.
(Repted by Sri.BSR, Advocate)
JUDGMENT
The complainant has presented the complaint under Section 200 of Cr.P.C against the accused for the alleged offence punishable under Section 138 of N.I. Act.
2) The brief facts of the complainant's case is that:-
The accused approached the complainant for a financial help for his business need and accordingly the accused borrowed a hand 2 C.C.15793/2017 loan from the complainant a sum of Rs.71,00,000/- and accused received the same and the accused who is due for a sum of Rs.71,00,000/- to the complainant and on demand for repayment of the above said due amount, the accused had issued a cheque bearing No. 046164 dated 16/3/2017 for a sum of Rs.71,00,000/- drawn on ICICI Bank, Sarjapura Road Branch, Bengaluru. When the complainant presented the cheque for encashment, it was dishonored with an endorsement "Insufficient Funds" on 18/3/2017. Thereafter the complainant issued legal notice on 11/4/2017 calling upon the accused to make payment of the dishonoured cheque amount and the said notice was duly served on the accused. In spite of service of notice, the accused has not complied the same. Hence, complainant is constrained to file this private complaint for the said relief.
3) After receipt of complaint, this court has taken cognizance of the alleged offence and sworn statement of complainant was recorded and process was issued to the accused. He was appeared through his counsel and enlarged on bail and all papers were supplied to him. The substance of plea was recorded and read over and explained in Kannada language to the accused, to which he pleads not guilty and claims to be tried. Hence, posted the case for complainant evidence. 3 C.C.15793/2017
4) In order to prove the complainant case, complainant was examined as P.W.1 and he exhibited Ex.P.1 to Ex.P.8documents and closed his side. Thereafter, the statement of accused under Section 313 of Cr.P.C is recorded, read over and explained in Kannada language to which accused has denied the entire incriminating evidence which appears against him. Per contra, accused examined as D.W.1 and he exhibited Ex.D.1 document and thereafter posted the case for arguments.
5) Heard the arguments on both sides and perused the entire papers.
6) Now, the following points that arises for my consideration are:-
1) Whether the complainant has made out all the ingredients of Section 138 of N.I. Act to prove the guilt of the accused person?
2) What order?
7) 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
8) POINT NO.1:- As the brief facts of the complainant's case as already stated above, hence I need not repeat the same facts once again to avoid the repetition of the same facts. 4 C.C.15793/2017
9) To bring home guilt against the accused, the complainant/prosecution must prove the following ingredients of Section 138 of N.I. Act.
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 presuppose a legally enforceable debt;
iii) Cheque so issued had been returned due to insufficiency of funds.
10) To prove the aforesaid ingredients of Section 138 of N.I. Act, the complainant filed his chief affidavit and was examined as P.W.1. In his chief examination affidavit he reiterated the entire averments of the complaint. In support of his case he has exhibited Ex.P.1 to Ex.P.8 documents. Ex.P.1 is the cheque, Ex.P.2 is the Bank endorsement, Ex.P.3 legal notice, Ex.P.4 Postal receipt and Ex.P.5 complaint settled copy issued by postal authority, Ex.P.6 .loan agreement, Ex.P.7 Bank statement.
11) On careful perusal of the entire oral and documentary evidence, the admitted facts are that there is no dispute that Ex.P.1 cheque is belongs to the accused and it was dishonoured as per Ex.P.2 endorsement and notice has been issued as per 5 C.C.15793/2017 Ex.P.3 and said notice has been served on accused as per Ex.P.5 postal endorsement. As per the postal endorsement legal notice was delivered on accused address on 12/4/2017. Further, the prime dispute in the present case is that existence of debts between the complainant and accused for Rs.71,00,000/- and issuance of cheque by the accused to discharge the legally recoverable debts and other facts. To prove the said fact, complainant examined as P.W.1 and he exhibited Ex.P.1 to 7 documents . On the other hand, accused examined as D.W.1 and in his evidence he stated before the court that he issued cheque in the year 2016 in land transactions and he also admitted that Ex.P.1 cheque is belongs to him and signature also pertaining to him and he also admitted that Ex.D.1 bank document and he further admitted that he has only borrowed Rs. 9 lakhs with the complainant and land transactions were not completed and in spite of request complainant has not return the said cheque etc.,
12) During the course of arguments, complainant counsel Sri. GS filed written arguments and vehemently argued that complainant has proved his case by way of oral and documentary evidence and admissions in the mouth of D.W.1 and admissions of P.W.1 are minor and to be neglected and to 6 C.C.15793/2017 substantiate the complainant case i.e, source of income he exhibited Ex.P.6 agreement and bank statement as per Ex.P.7.
As per bank statement complainant has withdrawn the amount in several times and paid to the accused. On the other hand there is no rebuttal evidence except oral evidence and marking of Ex.D1 document and prays to convict the accused by relying the following rulings.
1.Cr.A.No. 230-231 of 2019 (SLP CRL) Nos.9334-35 of 2018)
2. Cr.A.No. 1523 of 2014 (Arising out of special leave petition (Crl) No.8783 of 2013)
3. Cr.A.No. 1020 of 2010 (Arising out of Special leave petition (crl) No.407 of 2006 )
4. Appeal (crl) 1255-1261 of 2004
5. Appeal (crl) 767 of 2007 On the other hand, Sri. BSR counsel for accused resisted the said arguments and argued that absolutely there is no capacity and source of income to the complainant to pay huge amount of Rs.71 lakhs to the accused and Ex.P.6 paper purchased in the year 2013 and it was created in the year 2017 and admissions of P.W.1 have destroys his case and notice has not served on accused and only Rs.9 lakhs has received by the accused in land transactions and cheque issued for security purpose and there is no legally recoverable debts between the complainant and 7 C.C.15793/2017 accused and prays to acquittal of the accused by relying following rulings.
1. LAWS (SC) 2019 4 39 Basalingappa Vs Mudibasappa
2. (LAWS(SC) 2009 4 47 M.D.Thomas Vs P.S.Jaleel
3. Orders passed by the High court of Madras in SA.No.74/2015 dated 21/6/2019
13) On careful perusal of the entire oral and documentary evidence and arguments addressed by the both counsels , the admitted facts are that Ex.P.1 cheque is belongs to the accused and it was dishonoured as per Ex.P.2 endorsement and notice has been issued as per Ex.P.3 and said notice has been served on accused as per Ex.P.5 postal endorsement. At this stage it is just and necessary to reproduce the admissions of the D.W.1 in his cross-examination for the sake of convenience;
It is true to suggest that I hand over the Ex.P.1 to the complainant witness voluntarily stated that it has issued in blank. One document shown to the witness Witness stated that the said signature is lookes to myself and he also further he stated that it has executed for security purpose and the said document is admitted by the witness hence it is marked as Ex.P.6. It is true to suggest that I 8 C.C.15793/2017 have received amount from the complainant as stated in Ex.P.6.
So, on perusal of the said admissions of D.W.1 clearly indicates to the court that he handed over the Ex.P.1 cheque to the complainant and he also admitted the Ex.P.6 document in his cross-examination at page No.4 and hence it is marked as Ex.P.6 and he also admitted the very significant point in his cross-examination that " It is true to suggest that I have received amount from the complainant as stated in Ex.P.6." . At this stage it is just and necessary to reproduce the recitals of Ex.P.6 for the sake of convenience .
Mr.Prasad Palegar I write to confirm having borrowed a sum of Rs.71,00,000/- as detailed in the statement overleaf for my urgent needs, and I very much appreciate your kind gesture in providing the same to me.
I am hereby issuing a cheque for Rs.71,00,000/- (Rupees Seventy One lakhs only) bearing No. 046164 dated 16/3/2017 drawn on ICICI Bank, Sarjapur Road Branch, Bangalore to discharge the loan amount towards repayment of the same. You may please present the said cheque to your Bankers on that date and I assure you that I will see to it that the same will be honoured by my bankers.
DATE BY AMOUNT IN RUPEES
07-09-2013 CHEQUE/RTGS 13,90,000-00
07-09-2013 CASH CHEQUE 3,60,000-00
28-09-2013 CHEQUE/RTGS 4,00,000-00
9 C.C.15793/2017
28-11-2013 RTGS 4,80,000-00
08-02-2014 CASH CHEQUE 25,000-00
20-02-2014 CASH CHEQUE 25,000-00
22-02-2014 CASH CHEQUE 50,000-00
25-02-2014 CASH CHEQUE 50,000-00
21-03-2014 CASH CHEQUE 25,000-00
25-03-2014 CASH CHEQUE 25,000-00
28-04-2014 CASH CHEQUE 1,00,000-00
27-09-2014 CASH CHEQUE 60,000-00
20-10-2014 CASH CHEQUE 10,00,000-00
03-08-2015 CASH CHEQUE 50,000-00
25-08-2015 CASH CHEQUE 40,000-00
07-09-2015 CASH CHEQUE 25,000-00
07-09-2015 CASH CHEQUE 45,000-00
08-09-2015 CASH CHEQUE 25,000-00
09-09-2015 CASH CHEQUE 50,000-00
10-09-2015 CASH CHEQUE 50,000-00
24-09-2015 CASH CHEQUE 1,00,000-00
28-09-2015 CASH CHEQUE 1,00,000-00
08-10-2015 CHEQUE/D.D 2,59,000-00
28-10-2015 CASH CHEQUE 1,00,000-00
23-11-2015 CASH CHEQUE 50,000-00
25-11-2015 CASH CHEQUE 1,00,000-00
30-11-2015 CASH CHEQUE 2,50,000-00
08-12-2015 CASH CHEQUE 1,00,000-00
15-12-2015 CASH CHEQUE 1,70,000-00
21-09-2016 WDL CHEQUE 7,00,000-00
26-10-2016 CHEQUE/RTGS 9,00,000-00
Total amount (Rupees Seventy 71,03,000-00 received one Lakhs Three Thousand only 10 C.C.15793/2017 So, on perusal of the admissions of D.W.1 and recitals of Ex.P.6 I have no hesitation to believe the case of the complainant as true and correct that as per Ex.P.6 it was prepared on 1st February 2017 . Under the said document Anand Basappa i.e, accused undertaken as well as confirm about the borrowing loan of Rs.71 lakhs with the complainant as stated in the overleaf of the said document and he also agreed for the issuance of Ex.P.1 cheque bearing No.046164 dated 16/3/2017 for the debts as mentioned in the said document. Of course as argued by the accused counsel the said paper purchased dated 6/9/2013 and it was prepared on 1/2/2017. Of course , on careful comparison of the dates on which it was purchased i.e, stamp paper and prepares of said document, creates some doubts about Ex.P.6 but D.W.1 in his cross-examination admitted the said document and he also admitted that about receipt of amount as per Ex.P.6 from the complainant. So, the said admissions are need not be required for further proof is need not be requires under section 58 of Indian Evidence Act. Of course, P.W.1 also admitted the following points in his cross-examination they are
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12 C.C.15793/2017i.e, he admitted that he paid Rs. 71 lakhs to the accused but he forget the date of payment and he paid the amount by way of bank transfer and also about having of receipts for payments is concerned and he also shown the present case amount in IT returns and he also admitted that about different of handwritings in Ex.P.1 cheque etc., But in view of the said admissions, in the cross-examination of D.W.1 as stated supra the admissions of P.W.1 have not support the accused case. Further, in the rulings of the complainant their lordships laid down the following principles that ;
a) once issuance of cheque and signature on cheque is admitted by the accused then presumption under section 139 of NI Act are fallen to the case of the complainant
b) The accused must disprove the complainant case by way of rebuttal evidence i.e., by way of preponderance evidence nor other mode of proof, otherwise accused is liable to be convicted In the rulings of the accused, their lordships laid down the following principles
a) Burden lies on the complainant to prove the source of income and capacity as well as existence of debts between the complainant and accused.
b) Complainant must prove the issuance of cheque by the accused for legally recoverable debts etc., 13 C.C.15793/2017 So, as per the ratios of the complainant rulings, the complainant is entitled for the reliefs as sought in the complaint , because in chief examination and cross-examination of D.W.1, he admitted that ExP.1 cheque is belongs to him and signature also pertaining to him and he admitted that about receipt of Rs.71 lakhs as per Ex.P.6 entries. Accordingly, the ratios of the accused rulings are not helpful to the accused case because D.W.1 has categorically admitted the aforesaid points in his cross-examination as such the complainant is need not be requires for further proof under section 58 of Indian Evidence Act. Further, except oral evidence, the accused has not rebut the complainant case in a proper manner as specified under section 139 of NI Act i.e, about receipt of amount of Rs. 9 lakhs with the complainant and issuance of Ex.P.1 cheque for security purpose, in land transactions etc., Of course, accused has exhibited the Ex.D1 document but it is not supports the accused case. Further, on perusal of Ex.P.7 bank statement indicates to the court that about with drawal of several amounts by the complainant in several dates and payment of said amount to the accused as per Ex.P.6 agreement entries. Accordingly, I am of the opinion that complainant has categorically, cogently and corroboratively proved his case byway of oral and documentary evidence and on admissions in the mouth of 14 C.C.15793/2017 D.W.1, hence, accused is liable to be convicted for the offence punishable under Section 138 of N.I. Act as he is found guilty and I answer this Point No.1 in the affirmative.
13) POINT NO.2:- In view of my discussions as stated supra and my findings on Point No.1., I proceed to pass the following.
ORDER Acting under Section 255 (2) of Cr.P.C, accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act 1881. The accused is sentenced to pay fine of Rs.1,00,20,000/- (Rupees One crore Twenty Thousand Only) and in default shall undergo simple imprisonment for a period of two (2) years.
Acting under Section 357 (1) (b) of Cr.P.C, out of the fine amount the complainant is entitled for Rs.1,00,00,000/- (Rupees One Crore Only) fine amount as compensation.
Acting under Section 357 (1) (a) of Cr.P.C, the balance amount of Rs.20,000/- 15 C.C.15793/2017 (Rupees Twenty Thousand Only) is defrayed to the State for the expenses incurred in the prosecution.
(Dictated to the Stenographer, transcribed by her, corrected, revised and signed then pronounced by me in the open court on this the 17th day of December 2019).
(MANJUNATHA.K.P) XVIII A.C.M.M., BENGALURU.
ANNEXURE
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : Prasad Palegar
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1 : Cheque. Ex.P.1(a) : Signature of the accused. Ex.P.2 : Bank endorsement. Ex.P.3 : Office copy of demand notice. Ex.P.4 : Postal receipt. Ex.P.5 : Reply given Postal Dept Ex.P.6 : Agreement Ex.P.7 : Bank statement
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:-
D.W.1 : Anand Basappa
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED: -
Ex.D.1 : Bank statement
XVIII A.C.M.M., BENGALURU.
16 C.C.15793/2017
11/1/2018
Judgment
(Judgment pronounced in Open Court vide a separate Order) ORDER 17 C.C.15793/2017 Acting under Section 255 (2) of Cr.P.C, accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act 1881. The accused is sentenced to pay fine of Rs.2,60,000/- (Rupees Two Lakhs Sixty Thousand Only) and in default shall undergo simple imprisonment for 6 (Six) months.
Acting under Section 357 (1) (b) of
Cr.P.C, out of the fine amount the
complainant is entitled for Rs.2,50,000/-
(Rupees Two Lakhs Fifty Thousand Only) fine amount as compensation.
Acting under Section 357 (1) (a) of Cr.P.C, the balance amount of Rs.10,000/- (Rupees Ten Thousand Only) is defrayed to the State for the expenses incurred in the prosecution.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
XVIII A.C.M.M., BENGALURU.
18 C.C.15793/2017