Bangalore District Court
Aged About 50 Years vs S/O. Mohan Lal on 18 February, 2020
1
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 18th DAY OF FEBRUARY, 2020
PRESENT
Sri. K. GURUPRASAD, B.A., LL.B (Spl.)
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.53672/2019
Sri. Sridhara .M
S/o. Late Muniraju
COMPLAINANT Aged about 50 years, R/at No.4927, 11th Floor,
High Point 4, Palace Road, Bengaluru - 560 001.
Sri. Naresh Jain,
ACCUSED S/o. Mohan Lal
Aged about 55 years, R/at No.34/46, Pilliar Koil
Street, Ashok Nagar, Bengaluru - 560 025.
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused is convicted
(K. GURUPRASAD)
XIV ADDL. C.M.M., BENGALURU
2
JUDGMENT
The present complaint is filed under Sec.200 Cr.PC for the offence punishable under Section 138 of Negotiable Instruments Act.
2. It is the case of the complainant that, the complainant had entered into Mutual Agreement with accused on 3.9.2018 under which the complainant incurred expenses in solving litigation in O.S.No.2567/2006 between the accused and one Kum.Siri Srinivas and accused in turn agreed to pay Rs.70 lakhs for solving the said litigation. Therefore, said litigation was solved resulting in registration of Sale Deed in favour of accused. Towards said liability, the accused issued cheques bearing No.951887, No.951888, No.951889, No.951890 and No.951891 dated 5.12.2018, 10.12.2018, 15.12.2018, 20.12.2018 and 24.12.2018 for Rs.10 lakhs each drawn on Canara Bank, Infantry Road branch, Bengaluru in favour of the complainant. When the complainant presented the said cheques through his banker i.e HDFC Bank, Infantry Road branch, Bengaluru on 5.12.2018, 10.12.2018, 15.12.2018, 20.12.2018 and 24.12.2018, said cheques came to be dishonoured with bank endorsement "insufficient funds"
and the said fact was intimated to the complainant by the 3 banker of the complainant on 7.3.2019. When the complainant got issued legal notice dtd.19.3.2019 to the accused by registered post, calling upon the accused to pay the cheques amount, the said notice was returned with postal shara dated 20.3.2019 as "no such person ....addressee not known". The accused has not paid the cheques amount in spite of issuance of said notice and as such, the accused is guilty of the offence punishable under Section 138 of N.I. Act. Hence this complaint.
3. After filing of this complaint, cognizance was taken for the offence punishable U/s.138 of N.I. Act. Sworn statement of the complainant was recorded. This court was satisfied as to prima facie case made out by the complainant for issuance of the summons. Accordingly, criminal case was registered against the accused and summons was ordered to be issued.
4. In pursuance of court process issued by this court, the accused has appeared before this court and got enlarged on bail. Thereafter plea was recorded. The accused pleaded not guilty and claimed for trial.
5. In order to prove his case, the complainant has examined himself as PW.1 and got marked Ex.P1 to P28 and closed complainant side of evidence. Thereafter, 4 statement of the accused U/s.313 of Cr.PC was recorded. The accused denied incriminating materials in the evidence of complainant against him. Thereafter, the accused examined himself as DW.1 and also examined another witness as DW.2 and got marked Ex.D1 to D12 and closed defence side of evidence.
6. Heard both sides. Perused the complaint, evidence on record and court records.
7. The following points arise for my consideration and determination;
1) Whether the complainant proves that the accused has issued cheques in question in discharge of legally enforceable debt or liability as contended by him?
2) Whether the complainant further proves that the accused committed the offence punishable under Section 138 of Negotiable Instruments Act?
3) Whether the complainant is entitled for the relief's as prayed in the complaint?
4) What Order?5
8. The above points are answered as under;
Point No.1 to 3 : In Affirmative, Point No.4 : As per the final order, for the following.......
REASONS
9. Point Nos. 1 and 2: Since these two points are inter linked and to avoid repetition they are taken together for discussion.
10. As regard to limitation to file this complaint, Ex.P1 to P5 are the cheques dated 5.12.2018, 10.12.2018, 15.12.2018, 20.12.2018 and 24.12.2018 drawn on Canara Bank, Infantry Road branch, Bengaluru in favour of the complainant. Ex.P6 to P10 are the cheque return memos dated 5.3.2019 issued by HDFC Bank, Infantry Road branch, Bengaluru regarding dishonour of Ex.P1 to P5- cheques. Ex.P11 is copy of legal notice dtd.19.3.2019 got issued by the complainant to the accused calling upon the accused to pay the cheques amount within 15 days from the date of receipt of said notice. Ex.P12 is postal window receipt dtd.19.3.2019 issued by postal department for having sent Ex.P11 notice by registered post to the 6 accused. Ex.P13 is postal cover in which Ex.P11 notice was sent to the accused by registered post, but which has returned with postal shara dtd.20.3.2019 as "no such person....addressee not known".
11. The accused has disputed issuance of Ex.P11- notice to him and contended that he was not residing in the address shown in Ex.P11-notice, but in the address of Srirampuram, Bengaluru. However it is clear from Ex.D3 - plaint in O.S.No.2567/2006, Ex.D7- petition in Ex. Case No.2415/2012 and Ex.D11 - judgment in RFA No.76/2013 (in which accused was party) that address of the accused is shown as No.34/46, Pilliar Koil Street, Ashok Nagar, Bengaluru. It is pertinent to note that Ex.P11-notice was also sent by registered post at the same address. Further it is clear from Ex.P14-Mutual Agreement and Ex.D1-M.O.U that the address of the accused is shown as Pilliar Koil Road, Ashok Nagar, Bengaluru. Even Ex.P16-Agreement of Sale dtd.13.8.2018 executed by the wife of accused Hemalatha, the address of wife of accused is shown as No.34/46, Pilliar Koil Street, Ashok Nagar, Bengaluru. Even DW.1 has admitted on page 9 of his cross-examination that his residential address in the present Electrol records still appears as No.34/46, Pilliar Koil Street, Ashok Nagar, Bengaluru. On the other hand, the accused has not 7 produced any documentary evidence to show that he is residing in Srirampura, Bengaluru and not in Pilliar Koil Street, Ashok Nagar, Bengaluru. In view of these facts and circumstances of this case, it can be concluded that the address of the accused shown in Ex.P11-notice and Ex.P13- postal cover is correct. As per Sec.27 of General Clauses Act when notice is issued by registered post at correct address, the said notice is presumed to have been served on the addressee. The burden of rebutting said presumption is on the person who disputes service of said notice. But in the present case on hand, the accused has not adduced any evidence on record to show that Ex.P4- notice is not received by him or that he is unaware contens of said notice. Hence, it can be concluded that Ex.P11- notice is duly served on the accused.
12. It is clear from P1 to P13 that when the complainant presented Ex.P1 to P5-cheques to his banker I.e HDFC Bank, Infantry Road, Bengaluru within three months from the date of said cheques, the said cheques came to be dishonoured on 5.3.2019 for the reason "funds insufficient" and that when the complainant got issued Ex.P11-notice U/s.138 of N.I. Act on 19.3.2019 I.e within 30 days from the date of intimation of dishonour of said cheques, said notice presumed to have been served on the accused. Hence, the present complaint filed on 8 3.5.2019 i.e after expiry of 15 days from the date of said postal shara on Ex.P13 and within 30 days thereafter is well within time.
13. As regard to legally enforceable debt or liability, in 2010 (11) SCC 441 - (Rangappa Vs Sri. Mohan), it is held that;
" The presumption mandated by Sec.139 of the Act includes a presumption that there exists a legally enforceable debt or liability. This is of course in the nature of a rebutable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, herein, there can be no doubt that there is an initial presumption which favours the complainant"..............."when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the presumption can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own".
14. If the facts and circumstances of this case are considered in light of above said principle of law, it is clear that DW.1 has admitted on page 7 of his cross-examination 9 that Ex.P1 to P5-cheques are drawn on his bank account and that they bear his signatures. Therefore, statutory presumption arises U/s.139 of N.I. Act in favour of the complainant that Ex.P1 to P5-cheques are issued in discharge of any debt or liability. The burden of rebutting the said presumption by probable defence is on the accused.
15. It is the case of the complainant that the complainant and accused entered into Ex.P14-Mutual Agreement on 3.9.2018 under which the complainant agreed to solve litigation of accused in O.S No.2567/2006 and to incur expenses in that regard and the accused in turn agreed to pay Rs.70 lakhs out of which, the complainant received Rs.10 lakhs through RTGs and Rs.10 lakhs in cash and issued Ex.P1 to P5 post dated cheques towards payment of balance amount of Rs.50 lakhs, which came to be dishonoured. It is further case of the complainant that the litigation arising out of O.S.No.2567/2006 was solved resulting in registration of sale deed in favour of the accused. On the other hand, it is the defence of the accused that in 2016 DW.2 - Manikchand introduced the complainant to accused and nine other adjacent site owners. The accused and nine other site owners entered into Ex.D1-M.O.U with complainant under which the complainant agreed to help 10 them to get B katha Extract and NOC from B.D.A etc. It is further defence of the accused that he had filed suit for Specific Performance in O.S. No.2567/2006 against one Siri Srinivas which was decreed and confirmed in R.F.A No.76/2013 and execution proceedings were pending in Ex. Case. No.2415/2012 for registration of sale deed. It is further defence of the accused that on the request of complainant, the accused changed his counsel in the said Civil litigation and engaged V.Anand -Advocate to represent in the Civil case in 2017. It is further defence of the accused that they prolonged the matter for 6 to 8 months and thereafter when the complainant insisted the accused to arrange money for litigation expenses, in August 2018, he paid Rs.10 lakhs through RTGs to the complainant while DW.2- Manikchand paid Rs.10 lakhs in cash to complainant for settlement of litigation. It is further defence of the accused that when the complainant insisted the accused to give post dated five cheques of Rs.10 lakhs each by way of security, at the time of execution of Ex.P14-Mutual Agreement, the accused issued said post dated cheques and entered into Ex.P14-Mutual Agreement on 3.9.2018 and only thereafter sale deed was executed in the name of the accused through Court Commissioner. It is further defence of the accused that the complainant promised to return five post dated cheques to the accused after 11 accused gives share in the said property, but the complainant prolonged the completion of registration process and also failed to settle the land dispute. It is further defence of the accused that the complainant misused Ex.P1 to P5-cheques and intentionally sent Ex.P11-notice at the previous address of the accused and filed this false complaint though the accused is not liable to pay any amount to the complainant.
16. On careful perusal of evidence on record, it is clear that defence of the accused is not probable nor does it inspire confidence of this court. It is because, Ex.D1- M.O.U dtd.27.6.2016 and Ex.P14-Mutual Agreement dtd.3.9.2018 contain terms and conditions of contract between the complainant and accused. Ex.D1-M.O.U shows that the accused and nine other site owners entered into said agreement with complainant and the complainant agreed to get A Katha from BBMP at his costs and expenses while the accused and other site owners agreed that after getting such A-Katha, the accused and other site owners shall give 50% share in the said sites to the complainant. It is further clear from Ex.D1 that the accused and other site owners executed a separate General Power of Attorney in favour of the complainant empowering him to get A-katha from BBMP on their behalf. Further Ex.P14-Mutual Agreement shows that the 12 complainant actually participated in solving the litigations of accused at the cost and time of the complainant and the complainant successfully solved the said litigation of the accused and the complainant also paid amount of Rs.3 lakhs to the tenant who is in the site of the accused. It is further clear from Ex.P14 that the accused initially agreed to pay a sum of 35% of the sale revenue to be sold by the accused, but the accused now agreed under Ex.P14- Mutual Agreement to pay a sum of Rs.70 lakhs as fee and expenses for solving the litigation and paid Rs.10 lakhs through RTGs on 27.8.2018 and DW.2 paid Rs.10 lakhs by way of cash and the accused issued five post dated cheques I.e Ex.P1 to P5. It is further clear from Ex.P14- Mutual Agreement that the accused agreed under the said document that Ex.P1 to P5-cheques shall be honoured and if the post dated cheques are dishonoured, the complainant is at liberty to take action against the accused U/s. 138 of N.I. Act or alternatively the accused agreed to part with the land proportionately to the extent of Rs.70 lakhs in Sy. No.5/3, Site No.10 i.e site of the accused. It is further agreed by the accused under Ex.P14-Mutual Agreement that the complainant shall not be liable for any disputes or litigations arising out of site of the accused in future and that the accused shall honour Ex.P1 to P5- cheques irrespective of any future litigation. It is pertinent 13 to note that the accused and DW.2 have admitted execution of Ex.D1-M.O.U and not seriously disputed execution of Ex.P14-Mutual Agreement. But now it is the defence of the accused that he has given Ex.P1 to P5- cheques not for the repayment of balance amount of Rs.50 lakhs, but by way of security to the complainant at the time of execution of Ex.P14-Mutual Agreement and that the accused agreed to return said cheques after accused gives share in the site of the accused. Dws.1 and 2 have deposed regarding said fact. However there is nothing in Ex.P14-Mutual Agreement to show that Ex.P1 to P5- cheques have been given to the complainant by the accused by way of security. On the other hand, Ex.D1 and Ex.P14 show that the accused and other site owners took assistance of complainant for getting A katha from BBMP and that the complainant also actively participated in the litigation of the accused and solved said litigation at his own expenses and cost and as such the accused agreed to pay Rs.70 lakhs to the complainant, out of which a sum of Rs.20 lakhs has already been paid and Ex.P1 to P5-cheques have been issued by way of post dated cheques for payment of balance amount of Rs.50 lakhs. Dws.1 and 2 have admitted payment of Rs.10 lakhs through RTGs and payment of Rs.10 lakhs in cash to the complainant. However it is the defence of the accused that said 14 payment of Rs.20 lakhs to the complainant is for arranging litigation expenses and not consideration amount for solving the litigation. However said defence of the accused that Ex.P1 to P5-cheques have been issued by way of security and that said payment of Rs.20 lakhs is not consideration amount for solving the litigation but by way of arrangement of litigation expenses is contrary to terms and conditions of Ex.P14-Mutual Agreement. Since the accused is party to Ex.P14-Mutual Agreement and DW.2 is witness to Ex.P14, the oral evidence of Dws.1 and 2 which is contrary to and inconsistent with the terms and conditions of Ex.P14-Mutual Agreement cannot be believed. The accused has failed to prove that he has executed and signed Ex.P14-Mutual Agreement in ignorance of the terms and conditions of Ex.P14-Mutual Agreement. Therefore evidence of Dws.1 and 2 which is inconsistent with recitals of Ex.P14-Mutual Agreement cannot be accepted. There was also no difficulty for the accused and complainant to enter into separate agreement stating that said five cheques have been given only by way of security and not for any other purpose. Nothing also prevented the accused and complainant to disclose in Ex.P14-Mutual Agreement that Ex.P1 to P5-cheques have been given only by way of security and not for any other purpose.
1517. Further, subsequent conduct of the accused also goes against defence of the accused. DW.1 has deposed on page 8 of his cross-examination that on 3.9.2018 the complainant took Ex.P1 to P5-cheques by way of security and assured to solve dispute within three months and that complainant presented Ex.P1 to P5-cheques after five months from 3.9.2018 without instruction of the accused. However it is pertinent to note that the accused has not taken any legal action against the complainant who failed to solve said said land dispute after said period of three months. The accused has also not given stop payment instruction to the banker regarding five cheques though the complainant failed to solve the land dispute even after expiry of period of three months, as agreed by him. The accused has also not got issued any notice to the complainant to return Ex.P1 to P5-cheques as the complainant has failed to solve land dispute within three months as promised by the complainant. Any prudent person in place of the accused under similar circumstances would have promptly given stop payment instruction to his banker and got issued legal notice to the complainant to return the cheques and would have taken legal action against the complainant who had failed to solve land dispute after three months as promised by the complainant. However the accused has failed to take such 16 actions even though he contends that the complainant has not solved the land dispute within three months as promised by the complainant. This inaction on the part of the accused to give stop payment instruction to his banker, to issue notice to the complainant to return the cheques and to take legal action against complainant who failed to solve the dispute within three months, raises serious doubt regarding the defence of the accused. The explanation offered by DW.1 during cross-examination for not taking such steps is not satisfactory nor does it inspire confidence of this court.
18. Furthermore, it is clear from evidence on record that on 3.9.2018, the registered sale deed was executed in the name of accused through Court Commissioner but the registration was pending for non-payment of full stamp duty. DW.1 has admitted on page 10 of his cross- examination that it is his duty as purchaser to pay necessary stamp duty on the sale deed. When it is asked to DW.1 on page 10 of his cross-examination that if DW.1 paid necessary stamp duty to Government, DW.1 will get absolute sale deed and became owner, DW.1 has replied that even if the sale deed is executed and registered, the land dispute will not be solved because there are unauthorized persons in the occupation of said land and 17 the area of said land is not 9500 sq. ft but is less than 2000 sq. ft. Therefore, it appears from the evidence of DW.1 that the accused thinks that the land dispute is not yet solved by the complainant as the unauthorized persons in possession of site of accused are not vacated and that the actual area of his site is less than 2000 sq. ft and not 9500 sq. ft. However, it is clear from the recitals of Ex.P14 and Ex.D1 to which the accused is party that the accused has admitted in said documents that area of his site is 9500 sq. ft. The description of site of the accused as measuring 9500 sq. ft in Ex.P14 and Ex.D1 is not at all disputed by the accused. The accused has also not produced any documentary evidence to show that the actual area of his site is not 9500 sq. ft but less than 2000 sq. ft. Hence, the ground of the accused that the area of his site is less than 9500 sq. ft cannot be accepted. Further even though the accused has contended that there are still unauthorized persons in occupation of site of the accused, there is no recital in Ex.P14-Mutual Agreement that there are unauthorized persons in the site of the accused and as such the land dispute is not yet over. On the other hand, it is clear from the terms and conditions of Ex.P14 that a sum of Rs.3 lakhs has already paid to the tenant for vacating the site of the accused and it is agreed between the parties that the complainant has successfully 18 solved the litigation and the accused shall honour the cheques in question irrespective of any future litigation. Therefore defence of the accused is inconsistent with recitals and terms and conditions of Ex.P14-Mutual Agreement. If at all there is any person or persons in unauthorized possession of site of the accused, they can be vacated with due process of law through Court in execution proceedings, once the registration of sale deed of the accused is complete after payment of stamp duty. Moreover the complainant had agreed to get A katha from the BBMP under Ex.D1-M.O.U and it is clear from Ex.P16- Sale Agreement dtd.13.8.2018 that A-katha of sites in question have already been obtained from BBMP and some of the sites, out of ten sites have been sold to the third persons. Hence, the accused has utterly failed to prove that the complainant has not completely solved land dispute as per Ex.P14-Mutual Agreement.
19. There are certain circumstances which go against defence of the accused that the complainant has not completely settled the land dispute of the site of the accused. It is clear from Ex.P14 that the accused has alternatively agreed to part with land proportionately to the extent of Rs.70 lakhs in his site. It is pertinent to note that suggestion has been put by counsel for the accused to 19 CW.1 on page 11 of his cross-examination as to whether CW.1 is ready if the accused executes registered sale deed in his favour alienating land worth of Rs.70 lakhs as stated in Ex.P14-Mutual Agreement. CW.1 has declined to accept said offer and replied that at this stage, it is not possible to accept such offer and he wants money only and not land. If the complainant had really not completely settled the land dispute, no such offer would have been made by accused to CW.1 during cross-examination, offering land worth of Rs.70 lakhs as agreed in Ex.P14. This conduct of accused offering land worth of Rs.70 lakhs leads to conclusion that the complainant has completely settled the land dispute. Further DW.1 has admitted on page 10 of his cross-examination that he has not independently taken on his own, any legal action to solve land dispute without assistance of the complainant. No doubt, DW.1 has tried to explain that since his money is with complainant and as he was made to involve in this case, he has not taken any such legal action independently. However this explanation offered by DW.1 does not inspire confidence of this court because nothing prevented the accused to independently proceed with legal action for solving the said land dispute without assistance of the complainant. This conduct of the accused not taking any independent action to solve the land dispute without assistance of complainant goes to 20 show that the complainant has completely solved the land dispute and as such there is nothing further to be solved. Even in Ex.P14-Mutual Agreement, there is nothing to show that the complainant is yet to solve any land dispute regarding site of the accused. In view of these facts and circumstances of this case, it can be concluded that the accused has failed to prove that complainant has not finally solved the land dispute pertaining to site of the accused.
20. The complainant has produced Ex.P22 to P28 which are income tax returns with annexures for the period from 2013 - 2014 to 2019 - 2020. Annexures to the said income tax returns disclose that the complainant has disclosed in loans and advances statement annexed to income tax returns that the complainant has lent amounts to the accused from time to time. No doubt, the accused has disputed genuineness of annexures to said income tax returns by stating that said annexures are not furnished to income tax department along with Form No.5 and that said annexures have been subsequently created by the complainant. However these denials are not sufficient to disprove Ex.P22 to P28, particularly when the accused has not taken any steps to summon income tax department to produce the income tax returns of the complainant for the 21 year 2013 - 2014 to 2019 - 2020 to disprove the genuineness of those documents produced by the complainant. Therefore, Ex.P22 to P28 income tax returns also lend support to the case of the complainant.
21. Counsel for the accused has contended that the complainant has no financial capacity to lend such huge amount and the complainant has also not proved the source of funds for giving such amount to the accused. It is further argued that there is no self drawn entry in Ex.P18-bank account. It is further argued that there is no entry in Ex.P18-bank statement for having paid amounts to the accused through RTGs or through cheque. It is further argued that only total sum of Rs.6,60,450/- has been drawn through self cheques for the period from 2014 to 2019, as can be seen from Ex.P19. It is further argued that only a sum of Rs.92,540/- has been drawn through self cheques in 2016 as can be seen from Ex.P19. Therefore, it is argued that the complainant has utterly failed to prove the source of funds from which the complainant has given amounts to the accused.
22. However above said contention of the accused cannot be accepted because it is not the case of the complainant that he has paid entire amount to the accused 22 through cheque or RTGs or by drawing the amount from the bank accounts. On the other hand, PW.1 has deposed during cross-examination that he has paid amounts to the accused in cash. Therefore non-existence of any entry in Ex.P18 and P19 regarding payments through cheques or through RTGs etc., is not fatal to the case of the complainant. Even otherwise since the accused has utterly failed to prove his defence, the complaint cannot fail merely because the complainant has failed to prove his financial capacity and source of funds to lend loan amount, as held in 2019 SCC online SC 389 - (Rohitbhai J. Patel Vs The State of Gujarat and another). Even in the present case on hand, since the accused has failed to prove his defence that he has issued Ex.P1 to P5-cheques by way of security to the complainant, merely because the complainant has failed to produce the documentary evidence to prove source of funds for lending amounts to the accused, the case of the complainant cannot be disbelieved.
23. Counsel for the accused has argued that the complainant has entered into Ex.P14-Mutual Agreement to help the accused to solve litigations and to approach BBMP and other public authorities for change of katha and to solve land dispute of the accused and the complainant is to 23 take share in the profits of such litigation or share in the said property of the accused. It is further argued that such agreement amounts to maintenance and champerty and is hit by the provisions of Sec.23 of Contract Act. It is therefore argued that if debt or liability is incurred contrary to the provisions of Sec.23 of Contract Act or the Performance of Act for which money was lent or obligations to be performed by the accused is forbidden of law, such liability cannot be enforced by taking recourse to the provisions of the Negotiable Instruments Act. It is therefore argued that such debt or liability is not legally enforceable debt or liability and as such the accused is to be acquitted in this case. The counsel for the accused relied upon unreported decision in Crl. Appeal No.16/2014 dtd.28.2.2014 and 2018 (4) KCCR 3464.
24. However above said contention of the accused does not hold any water because if the recitals Ex.D1- M.O.U and Ex.P14-Mutual Agreement are considered, there is nothing therein which is forbidden by law and contrary to the Provisions of Sec.23 of Contract Act. Lending amount to any party to litigation for litigation expenses or helping any land owner to solve land dispute by itself is not forbidden by law nor contrary to the Provisions of Sec.23 of Contract Act. In fact, it is clear from Ex.D1-M.O.U that 24 the accused and other site owners executed power of attorney in favour the complainant to make representation to BBMP for change of A katha extract and to spend money and put efforts for the same. Such acts do not amount to maintenance and champarty under Indian Law. If the accused bribes any public official or exerts unlawful influence for change of katha or for solving litigation etc., then such agreement to do so would be contrary to Sec.23 of Contract Act and is forbidden by law. In the present case on hand, there is nothing on record to show that the complainant bribed by any public authority or used his influence for change of katha or for solving any litigation or for solving land dispute etc. Therefore the contention of the accused that Ex.P14 or Ex.D1 is contrary to Sec.23 of Contract Act cannot be accepted. Moreover, this contention was taken for the first time during arguments itself. No suggestion has been put to CW.1 during cross- examination that Ex.D1 or Ex.P14 is contrary to Sec.23 of Contract Act and is forbidden by law. Even DW.1 has not deposed so in his evidence. Therefore, such contention cannot be taken at the stage of arguments without necessary legal evidence on record and above decisions relied upon by the counsel for accused are not applicable to the present case on hand.
2525. Counsel for the accused has relied upon the decisions in AIR 2019 SC 1983, AIR 2008 SC 1325, 2018 (4) KCCR 3266, 2005 Crl. L. J. 4095 and ILR 2008 KAR 4629.
26. Since the accused has utterly failed to prove his defence that he has issued Ex.P1 to P5-cheques only by way of security to the complainant and not for the payments of balance amount under Ex.P14, above said decisions are not helpful to the accused, though there is no dispute regarding the principles of law laid down in those decisions.
27. In view of my above discussion, I am of considered opinion that the accused has utterly failed to prove or probablize his defence and thereby to rebut the said statutory presumption available in favour of the complainant. It clearly appears from the evidence on record that the defence put up by the accused is only an afterthought without any basis. Unless and until the accused rebuts the statutory presumption with convincing and cogent evidence, burden cannot be shifted on the complainant. As discussed above, the complainant has placed sufficient materials on record to establish his contention as put up by him. The evidence on record is sufficient to accept the case of the complainant that 26 accused had issued the cheques in question towards discharge of legally enforceable debt and the complainant has proved all the requirements of Sec.138 of N.I. Act, so as to constitute the offence against the accused. Therefore, Points Nos.1 & 2 are answered in affirmative.
28. Point No.3: As discussed in connection with Points Nos.1 & 2, the complainant has proved his case as to commission of the offence punishable U/s.138 of N.I. Act by the accused. The punishment prescribed for the said offence is imprisonment for a period which may extend to two years or with fine. Considering the facts and circumstances of this case, nature, year of the transaction, nature of the instrument involved, provisions of Sec.117 of N.I. Act, cost of litigation and the rate of interest proposed by Hon'ble Supreme Court in 2012 (1) SCC 260 (R.Vijayan Vs Baby), etc., this court is of the considered view that it is just and desirable to impose fine of Rs.55,20,000/- and out of the said amount a sum of Rs.5,000/- has to be remitted to the State and the remaining amount of Rs.55,15,000/- is to be given to the complainant as compensation as provided U/s.357(1) of Cr.PC and accordingly Point No.3 is answered in Affirmative.
2729. Point No.4: For the reasons discussed in connection with Point Nos.1 to 3 this court proceed to pass the following......
ORDER Acting under Section 255(2) of Cr.PC accused is hereby convicted for the offence punishable under Section 138 of Negotiable Instruments Act. The accused shall pay a fine of Rs.55,20,000/- for the offence punishable U/s.138 of N.I. Act. In default of payment of fine amount, the accused shall under go simple imprisonment for a period of eight months.
By exercising the power conferred U/s.357(1) of Cr.PC., out of total fine amount of Rs.55,20,000/-, a sum of Rs.55,15,000/- is ordered to be paid to the complainant as compensation and Rs.5,000/- is ordered to be remitted to the State.
The bail bond of the accused stands cancelled. The cash security deposited by the accused is ordered to be continued till expiry of the appeal period.
Supply the free copy of this judgment to the accused forth with.
(Dictated to the stenographer, transcript thereof, computerized and print out taken by him is verified, corrected and then pronounced by me in open court on this the 18th Day of February, 2020) (K. GURUPRASAD) XIV A.C.M.M., Bengaluru 28 ANNEXURE Witnesses examined for the complainant:
PW.1 : Mr. Sridhara .M Witnesses examined for the defence: DW.1 : Mr. Naresh Jain DW.2 : Mr. Manikchand Documents marked for the complainant: Ex.P1 to P5 : Five Cheques
Ex.P1(a) to P5(a): Signature of the accused Ex.P6 to P10 : Bank endorsements Ex.P11 : Legal notice Ex.P12 : Postal receipt Ex.P13 : Returned postal cover Ex.P14 : Mutual Agreement Ex.P14(a) : Signature of the witness Ex.P15 : Deposit slip Ex.P16 : Certified copy of sale agreement Ex.P17 : Receipt Ex.P17(a) : Signature of Manikchand Ex.P18 : Bank statement Ex.P19 : Account statement Ex.P20 : Income Tax Return - 2011 - 12 Ex.P21 : Income Tax Return - 2012 - 13 Ex.P22 : Income Tax Return - 2013 - 14 Ex.P23 : Income Tax Return - 2014 - 15 Ex.P24 : Income Tax Return - 2015 - 16 Ex.P25 : Income Tax Return - 2016 - 17 Ex.P26 : Income Tax Return - 2017 - 18 Ex.P27 : Income Tax Return - 2018 - 19 Ex.P28 : Income Tax Return - 2019 - 20 29 Documents marked for the defence:
Ex.D1 : Xerox copy of M.O.U Ex.D2 : Certified copy of order sheet Ex.D3 : Certified copy of Plaint Ex.D4 : Certified copy of judgment Ex.D5 : Certified copy of plaint Ex.D6 : Certified copy of decree Ex.D7 : Certified copy of Ex.Case No.2415/12
Ex.D8 and D9 : Certified copies of two vakalaths Ex.D10 : Certified copy of order sheet Ex.D11 : Certified copy of R.F.A No.76/2013 Ex.D12 : Notice dtd.12.11.2019 (K. GURUPRASAD) XIV A.C.M.M., BENGALURU