Bangalore District Court
Narayana Gowda.N.N vs Thimmegowda on 3 March, 2020
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 3rd day of March - 2020
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.20517/2016
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Narayana Gowda.N.N,
Aged about 44 years,
S/o.Late.Narasegowda,
R/at No.152, 1st Main Road,
Priyadarshini Layout,
Mudalapalya,
Bengaluru-72.
(Rep. by Sri.N.N.Jayaramu, Adv.)
V/S
Accused : Thimmegowda,
S/o.Late.Subbe Gowda,
Aged about 45years,
R/at No.21, G Floor,
9th C Main Road, Byraveshwaranagar,
Nagarabhavi Main Road,
Bengaluru-72.
Also at
Gulekayi Hosahalli Village,
Bidarakere Post,
Nagamangala Taluk,
Mandya District.
(Rep. by Sri.R.Prakasa, Advocate)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
Judgment 2 C.C.20517/2016
FINAL ORDER : Accused is Convicted.
DATE OF ORDER : 03.03.2020.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
The complainant has presented the instant complaint against the accused on 24.05.2013 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.1,44,000/-.
2. Earlier on account of accused not cross-examined the PW.1, convicted the accused on 23.06.2017. The accused has challenged the said judgment by preferring the Criminal Appeal No.1027/2017, wherein, the judgment of this court came to be set-aside and remanded the matter for fresh disposal by giving necessary opportunity to the accused to cross-examine the PW.1 and to lead his evidence. Accordingly, the said direction is complied by this court and taken the matter for judgment after giving sufficient opportunities to both side.
3. In nut shall, the case of the complainant is: Judgment 3 C.C.20517/2016
The complainant and accused were knew each other and both are residents of adjacent localities. On 24.04.2014, the accused approached the complainant and represented that, he was in urgent need of fund for his family necessities and to improve his vegetable business and for educational expenses of his children and promise to repay the said loan within six months.
The complainant has further averred and alleged that, he obliged the request of accused with good intention to help him to overcome his financial necessities and agreed to lend sum of Rs.80,000/-, accordingly, by way of cheque bearing No.232923 dated:24.04.2014 drawn on State Bank of India, had paid Rs.30,000/- and on the very same day got paid sum of Rs.50,000/- to the accused by way of cash. The accused encashed the cheque and received cash.
The complainant has further contended that, subsequently, in the last week of August, 2015, accused once again approached the complainant for additional hand loan of Rs.64,000/- for his necessities and promised to repay the loan amount in another period of six months. Even then, the complainant with an good intention to help the accused lent a loan of Rs.15,000/- by way of cheque bearing No.068427 dated:31.08.2015 drawn on Janatha Seva Co- Judgment 4 C.C.20517/2016 operative Bank Ltd., Mudalapalya Branch, Bengaluru and on the same day paid the cash of Rs.49,000/-. The accused had received the same and in total the accused had received sum of Rs.1,44,000/- from the complainant and he assured to repay both the loans within another period of 6 months.
The complainant has further allege that, after lapse of agreed period, the accused failed to repay the said loan, when the complainant had requested the accused to repay the said loan, then he postponing the payment on one or other pretext and assured to pay the amount within a short period and at last, the accused had issued a post dated cheque baring No.609474 for sum of Rs.1,44,000/- dated:26.04.2016 drawn on ING Vysya Bank Ltd., Nagamangala Branch, Mandya District, in favour of complainant towards the repayment of the loan and assured the complainant to honour the said cheque on the date of its presentation and he also requested the complainant to present it after 2 months.
The complainant has further alleged that, on the instructions of accused, he presented the said cheque for encashment through his banker viz., Janatha Seva Co-operative Bank Ltd., Mudalapalya Branch, Bengaluru. On seeing the bank memo dated:19.07.2016, he got shock and dismay, the said cheque came to be dishonoured for Judgment 5 C.C.20517/2016 the reasons "Account Closed". Thereafter, he requested the accused to pay the amount, he failed to pay the amount, hence, he got issued legal notice to the accused by way of R.P.A.D to both the address of accused on 25.07.2016, one R.P.A.D returned stating that, "Not Claimed" returned to sender/Door Locked and another R.P.A.D returned stating that, "Intimation Delivered, Refused". The accused not paid the cheque amount nor issued any reply. Thereby, he committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
4. After receipt of the private complaint, my predecessor in office took the cognizance and got registered the PCR and recorded the sworn statement. Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process.
5. In response to the summons, the accused appeared through his counsel and obtained the bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to him, wherein, he denied the same and claimed to have the defence.
6. To prove the case of the complainant, he himself choosen to examined as PW.1 and got marked Exs.P1 to P9. The PW.1 was subjected for cross-examination by the advocate for the accused. Judgment 6 C.C.20517/2016
7. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same and the answer given by him was recorded. In this case, the accused not choosen to entered in to the witness box and also not produced any document.
8. I have heard the argument of complainant counsel. The accused counsel not addressed his side arguments.
9. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:
1) Whether the complainant proves beyond the reasonable doubt that, the amount covered under the Ex.P1-cheque is the existence of legally enforceable debt payable by the accused?
2) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
10. 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:Judgment 7 C.C.20517/2016
REASONS
11. POINT NOs.1 and 2: Since both the points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
The PW.1 to prove his case choosen to examined himself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P9, they are:
a) Ex.P1 is the cheque bearing No.609474 issued by the accused for sum of Rs.1,44,000/- dated:26.04.2016, drawn on ING Vysya Bank Ltd., Nagamangala Branch, Nagamangala.
b) Ex.P1(a) is the alleged signature of accused.
c) Ex.P2 is the Bank Memo dated:19.07.2016.
d) Ex.P3 is the Legal Notice dated:25.07.2016.
e) Exs.P4 and P5 are the Postal receipts.
f) Exs.P6 and P7 are the Not claimed R.P.A.D covers.
g) Exs.P6(a)and P7(a) are the legal notice at Exs.P6 & P7.
h) Ex.P8 is the statement of account pertaining to complainant herein for the period from 01.04.2014 to 13.07.2016.
i) Ex.P9 is another statement of account pertaining to the complainant herein for the period from 01.04.2014 to 31.03.2015.
The PW.1 was subjected to the cross-examination by the advocate for the accused.
Judgment 8 C.C.20517/2016
12. In case, the accused has not choosen to entered into witness box and also not produced any documents.
13. After cross-examination of PW.1, the incriminating evidence made against the accused was read over and explained to him as required under Section 313 of Cr.P.C., wherein, he denied the same and claimed to have the defence. In the 313 of Cr.P.C. statement, the accused has admitted the receipt of legal notice and stating that:
"¦AiÀiÁð¢¬ÄAzÀ gÀÆB35,000/- ªÀiÁvÀæ ¸Á® ¥ÀqÉzÁUÀ, ¸À» ªÀiÁrzÀ SÁ° ZÉPï ¨ÀszÀævÉUÉ ¤ÃrzÉÝ£ÀÄ. CzÀsðzÀµÀÄÖ ºÀt »A¢gÀÄV¹zÉÝãÉ. ¦AiÀiÁ𢠺ÉaÑ£À ªÉÆvÀÛ PÉý ¸ÀļÀÄî ¥ÀæPÀgÀt zÁR°¹zÁÝgÉ. ZÉPï£À ªÉÆvÀÛ ¤ÃqÀ®Ä ¨ÁzÀså£À®è."
14. As per the said statement given by the accused personally before the open court and stated that, he only borrowed Rs.35,000/- from the complainant on the cash security of signed blank cheque and half portion of amount were repaid by him and complainant demanding more money, filed false case and he is not liable to pay any money. The said statement of the accused is not been seen while cross-examining the PW.1. No doubt, in this case, the accused not entered into witness box to prove the probable defence. However, he placed his defence before this court by way of cross- examining the PW.1.
Judgment 9 C.C.20517/2016
15. Thus from the cross-examination of PW.1, it is crystal clear that, Ex.P1 cheque belongs to accused and signature marked at Ex.P1(a) is that of accused. When the accused admits the cheque and signature on the cheque, then the initial presumption arises in favour of complainant under Section 118(a) of Negotiable Instruments Act that, complainant is holder of cheque Ex.P1 for valid consideration. Further, from the perusal of records, it reveals that complainant has complied the provisions of Section 138 of Negotiable Instruments Act. Hence, the initial presumption under Section 139 of Negotiable Instruments Act arises in favour of complainant that, accused has issued the cheque Ex.P1 for discharge of legally recoverable debt. The initial presumptions arisen in favour of complainant under Sections 118(a) and 139 of Negotiable Instruments Act are rebuttable presumptions, and accused is at liberty to rebut the presumptions by cross-examining PW.1 or by adducing the defence evidence or by both.
At this stage this court has gone through the decision reported in AIR 2010 SC 1898 between Rangappa V/s. Mohan, the Hon'ble Apex court is held that:
"The presumption mandated by section 139 of the Act is in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of Judgment 10 C.C.20517/2016 a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard of proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that 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 prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted Judgment 11 C.C.20517/2016 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".
16. From the principle laid down in the above decision, it is crystal clear that, when accused has admitted the cheque and signature made on cheque, the burden lies on the accused to prove that, Ex.P1 cheque was not issued for discharge of legally recoverable debt in favour of complainant. To prove this fact accused has choosen to cross-examine PW.1. In this case, the accused has not choosen to entered into witness box and also not produced any documents in support of his defence.
However, it is an appropriate to cite the decisions of the Hon'ble Supreme Court in (2008) 2 Supreme Court Cases (Criminal) 166 (Krishna Janardhan Bhat V/s. Dattatraya G Hegde) and 2010 AIR SCW 2946 (Rangappa V/s. Mohan).
"The accused need not enter into witness box and he could rebut the presumption envisage under Section 139 of Negotiable Instruments Act by setting up a probable case. As such, there is no strict rule that, the accused should enter into the witness box in support or proof of his defence. The accused has got every right to prove his defence from the cross-examination of PW.1 or the materials already brought on record. It is also held that, the standard of evidence be to led by the accused is Judgment 12 C.C.20517/2016 preponderance of probabilities and no proof beyond reasonable doubt. On the contrary, for the complainant he should prove his case beyond all reasonable doubt".
17. As per the said dictum, the accused need not require to enter in to the witness box to prove his probable defence, but he can prove his defence by way of cross-examining the PW.1 and relied upon the documents of the complainant. From the point of above dictum, the non entering into the witness box by the accused is not a ground or hindrance to his probable defence. Therefore, whatever the defence placed by the accused by way of oral say through PW.1 is to be appreciated.
18. No doubt, the complainant has bought the present case based on the questioned cheque at Ex.P1, alleged tobe issued by the accused for discharge of existence of legally recoverable debt, it was issued by the accused, therefore, it is the statutory initial burden, is cased upon the accused that, the said cheque was issued for discharge of existence of legally recoverable debt, unless and until contrary prove. Therefore, it made clear that, it is the initial burden on the accused to rebut the statutory presumption as well as factual circumstances made out by the complainant.
19. No doubt, in this case, the accused not took risk to enter into witness box nor produce any documents, however, choosen to Judgment 13 C.C.20517/2016 cross-examine the PW.1. Therefore, whatever the defence placed by him by way of cross-examine the PW.1 is to be seen to prove the probable defence of the accused. The PW.1 during the course of cross-examination has deposed that, he is working with the engineer as well as Surakshitha Properties as writer and also stated, doing real estate business. The said working capacity and financial capacity of the complainant is not been denied. Moreover, the PW.1 is deposed that, accused is his friend and he is having shop nearby his house, the said factum also remains unchallenged. No doubt, during the course of cross of PW.1, he clearly deposed that, while accused asked for the loan of Rs.80,000/-, he came along with one Lakshmipathy, who is the adjacent shop owner of the accused. That apart, at that time, one Krishna and Bhaskar were also present and those facts were intimated to Bhaskar. Though, PW.1 has deposed as such, along with Lakshmipathy, accused came to the complainant and at that time, other 2 persons by names Krishna and Bhaskar were also present, while accused asked for the loan, accused has not denied the same. Therefore, unless he denied the presence of other persons, who present and witnesses about the request made by the accused as to borrowing of loan, no need to examine those witnesses.
Judgment 14 C.C.20517/2016
20. During the further cross of cross of PW.1, he specifically stated that:
"DgÉÆæUÉ £Á£ÀÄ ªÉÆzÀ® ¨Áj gÀÆ.80,000/- PÉÆnÖzÉÝ£ÀÄ. D ¥ÉÊQ gÀÆ.30,000/- ªÀ£ÀÄß J¸ï©L ¨ÁåAPï£À ZÉPï£À ªÀÄÄSÁAvÀgÀ ºÁUÀÆ gÀÆ.50,000/- £ÀUÀzÁV ¢£ÁAPÀ 24.04.2014 gÀAzÀÄ PÉÆnÖzÉÝ£ÀÄ. ZÉPï£À ªÀÄÄSÁAvÀgÀ DgÉÆæUÉ ºÀt dªÀiÁ DzÀ §UÉÎ ¢£ÁAPÀ 24.04.2014 gÀ ¤¦.8 gÀ ¸ÉÖÃmïªÉÄAmï£À «ªÀgÀzÀ°è PÀAqÀÄ §gÀĪÀÅ¢®è JAzÀgÉ ¸ÀjAiÀÄ®è. DgÉÆæUÉ ¸ÀzÀj ZÉPï ªÀÄvÀÄÛ £ÀUÀzÀ£ÀÄß ¤ÃqÀĪÁUÀ PÀȵÀÚ ªÀÄvÀÄÛ ¨sÁ¸ÀÌgï gÀªÀgÀÄ ºÁUÀÆ DgÉÆæ ®QëäÃ¥ÀwgÀªÀgÀ£ÀÄß PÀgÉzÀÄPÉÆAqÀÄ §A¢zÀÄÝ, CªÀgÉ®ègÀÆ E¢ÝzÀÝgÀÄ. D «µÀAiÀĪÀ£ÀÄß £À£Àß ªÀQîjUÉ w½¹zÉÝãÉ. £Á£ÀÄ aÃnAiÀÄ£ÀÄß £ÀqɸÀÄwÛzÀÄÝ, DgÉÆæ CzÀgÀ ¸ÀzÀ¸Àå£ÁVzÀÄÝ, ºÀt ¥ÁªÀwAiÀÄ ¨ÀszÀævÉUÁV DgÉÆæ¬ÄAzÀ ¸À» ªÀiÁrzÀ SÁ° ZÉPÀÌ£ÀÄß ¥ÀqÉzÀÄPÉÆArzÉÝ JAzÀgÉ ¸ÀjAiÀÄ®è. DgÉÆæUÉ ¤¦.8 gÀ°è PÀAqÀÄ §gÀĪÀAvÉ gÀÆ.15,000/- ºÀtªÀ£ÀÄß aÃnAiÀÄ ºÀtªÀ£ÀÄß ZÉPï£À ªÀÄÄSÁAvÀgÀ ¥ÁªÀw ªÀiÁrzÉÝãÉAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÁQëAiÀÄÄ DgÉÆæAiÀÄ ªÀÄUÀ£À C£ÁgÉÆÃUÀåzÀ ¤«ÄvÀÛ DvÀ£À ºÉAqÀwAiÉÆA¢UÉ §AzÀÄ D ¸Á®ªÀ£ÀÄß ¥ÀqÉ¢zÉÝ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ."
21. On going through the said testimony of PW.1, he deposed in the line of complaint allegation stating that, Rs.30,000/- were paid by him to the accused by way of cheque drawn on State Bank of India, and Rs.50,000/- were paid in cash to the accused on 24.04.2014. It Judgment 15 C.C.20517/2016 is significant fact to note that, the said fact is not been denied by the accused. Though, the accused has denied that, regarding payment of cheque is not been seen in the Ex.P8 bank statement, on meticulous perusal of the Ex.P1, it clearly discloses that, by way of cheque on 24.04.2014 sum of Rs.30,000/- were paid to the accused. Therefore, the said document is significant role in proving the passing of consideration of Rs.30,000/- by way of cheque. The said entry is not disputed by the accused. No doubt, Ex.P8 statement is not pertaining to the State Bank of India, but it is pertaining to Janataha Seva Co-operative Bank Ltd., and it is not his case that, through the said bank cheque he paid money. Hence, the payment of Rs.30,000/- made to the accused, as found in Ex.P9 remains unchallenged.
22. That apart, the PW.1 also deposed that, while he paid the money in cash as well as cheque to the accused, the persons by name Krishna, Bhaskar and Lakshmipathy were present and he intimated about the same to his advocate. But the presence of those persons is not been denied by way of suggestion to PW.1. Unless, the accused has disputed the presence of those persons, the complainant had paid cash and cheque to the accused, the question of examining those witnesses in respect of undisputed fact does not warranted. The said cross of PW.1 also discloses the suggestion Judgment 16 C.C.20517/2016 that, the complainant run the chit business, accused was the member and for security of the chit, he gave signed blank cheque and as found in Ex.P8 only paid Rs.15,000/- chit money to the accused. But the said factum is denied by the PW.1 and voluntaries that, for the purpose of meet the expenses of ill-health of son of accused; he came along with his wife and took the loan. The said evidence is not been disputed. If at all, the accused was subscribed chit with the complainant, definitely, it is him to state its particulars as to, when it was commenced, what was its value, what was its premium and duration and how many members and who were subscribed along whim, nothing has suggested to PW.1 and only suggested plausible defence, as to run the chit without any base and bald suggestion does not make prove the defence of accused. The accused utterly failed to prove that; complainant had run the chit business.
23. So far as, 2nd loan transaction is concern, as alleged by the complainant, he paid Rs.49,000/- by way of cash and Rs.14,000/- by way of cheque dated:31.08.2015. On meticulous perusal of the Ex.P8, it discloses, the payment of Rs.15,000/- to the accused account on 31.08.2015 by way of cheque. Even, in his cross- examination, he reasserted the same. But it was suggested by the accused advocate that, the said Rs.15,000/- was paid to the accused Judgment 17 C.C.20517/2016 in respect of chit amount, not the loan amount. But when he himself failed to prove that, the chit particulars, how it possible to state that, the said Rs.15,000/- was paid by the complainant in respect of chit money. In going through the cross of PW.1, he not suspected the very transaction put forth by the complainant based on the documents produced herein and PW.1 has successfully withstood his contention. Though, accused has contended, the questioned cheque was issued as security for chit transaction, he utterly failed to prove the same and the PW.1 has withstood his contention and stating that, in all he paid Rs.1,44,000/- loan amount to the accused and he not repaid, for its payment got issued questioned cheque, the same also came to be dishonoured. Hence, the present complaint emerged.
24. On going through the case papers, it is noticed that, though accused has appeared in the earlier occasion, not cross-examined the PW.1, therefore, my predecessor in office convicted the accused as per judgment dated:23.06.2017. Later, the accused by preferring Crl.A.No.1027/2017, challenged the judgment of this court and successfully in getting set-aside the same and got remand the matter for fresh disposal.
Judgment 18 C.C.20517/2016
25. After remand, this court taken the matter for fresh disposal by giving sufficient opportunities to both the parties. Accordingly, after remand, the advocate for the accused cross-examined the PW.1 in detail. Thereafter, the incriminating evidence as required under Section 313 of Cr.P.C. was recorded, but in this case, the accused not choosen to entered into witness box and also not produced any documents in support of his defence.
26. It is significant fact to note that, in this case, the accused has not questioned or denied the compliance of mandatory provision. In the 313 of Cr.P.C. statement of the accused, he clearly admitted the receipt of legal notice. That apart, though, accused counsel were suggested about, run the chit business by the complainant, wherein, accused was one of the subscriber, his own statement, he stated that, only he borrowed loan of Rs.35,000/- on the security of signed blank cheque and half portion amount was repaid, the complainant demanding more money, filed the false case. The defence suggested by the advocate for accused to the PW.1 as well as the voluntary statement given by the accused, while record 313 of Cr.P.C. statement, he placed altogether different defence, which is not tallied, which itself creates doubt, as to the bonafidness of the accused. If at all, accused had any strong defence, he could have placed while cross-examining the PW.1 and obtain necessary Judgment 19 C.C.20517/2016 admissions, but he would failed to convince about the running of chit, as alleged by the accused is also not been proved through the mouth of PW.1. In that regard, the accused not choosen to entered into witness box nor examine any other witnesses alleged to be present to substantiate his contention. Hence, it is considering opinion of this court that, the accused has utterly failed to prove his probable defence. He himself took the inconsistence bald and baseless defence, which does not disturbed the very case and evidence put forth by the PW.1.
27. On going through the materials available on record, it made clear that, as the accused has no defence, when the movement of he received the legal notice, not cause any reply. Thereby, not made use of the opportunity to rectify the wrong committed by him, to pay the amount covered under the cheque. The same is also continued, even after filing the present case. Moreover, he by way of suggesting unacceptable defence, failed to disprove the statutory presumption as well as case of the complainant. Hence, it is the consider opinion of this court that, the complainant has established his case beyond the reasonable doubt and made proved that, the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. There is no substance in the probable defence of the accused, contrary to the complainant has discharged Judgment 20 C.C.20517/2016 his burden and proved the guilt of the accused. Therefore, keeping in the mind of the object of introduction of Negotiable Instruments Act, it appears this court, it is fit case to convict the accused coupled with the amount covered under the cheque at Exs.P1 at Rs.1,44,000/-. The same offence has been continued till this day, therefore, the complainant has successfully established the guilt of the accused, regarding commission of offence punishable under Section 138 of Negotiable Instruments Act. The complainant has complied the mandatory requirement and established his case successfully. Despite that, the accused has not set right the wrong committed by him as per Section 138 of Negotiable Instruments Act.
28. As discussed above by way of furnishing clear, convincing, corroborative, oral as well as documentary evidence has proved that, the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Therefore, looking into the transaction, it is the considered opinion of this court that, the accused has taken bald and inconsistence defence without any base and failed to prove his improbable defence. Contrary, the PW.1 has established his case beyond the reasonable doubt through oral as well as documentary evidence. Thereby, unnecessarily cause the complainant to approach this court of law, therefore, the accused is liable to be punished by way of imposing fine sentence. Therefore, Judgment 21 C.C.20517/2016 the accused is to be convicted by imposing the cheque amount. Out of the said fine amount, sum of Rs.1,34,000/- shall be payable to the complainant as compensation and remaining amount of Rs.10,000/- shall be payable to the state as fine amount. Accordingly, if the accused fails to pay the whole fine amount, 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.
29. 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.1,44,000/-. Judgment 22 C.C.20517/2016
Out of the said fine amount, sum of Rs.1,34,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.10,000/- shall be payable to the state as fine amount.
In default of pay the fine amount, 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.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 3rd day of March - 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Narayana Gowda.N.N 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
Judgment 23 C.C.20517/2016
Exs.P4 & P5 : Postal receipts
Exs.P6 & P7 : Not claimed R.P.A.D covers
Exs.P6(a) & P7(a) : Legal notice at Exs.P6 & P7
Exs.P8 & P9 : Statements of account
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 24 C.C.20517/2016
03.03.2020.
Comp -
Accd -
For Judgment 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.1,44,000/-.
Out of the said fine amount, sum of Rs.1,34,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Judgment 25 C.C.20517/2016 Rs.10,000/- shall be payable to the state as fine amount.
In default of pay the fine amount, 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.
Judgment 26 C.C.20517/2016Judgment 27 C.C.20517/2016 IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY Dated this the 23rd day of June - 2017 PRESENT: SRI. S.G.SALAGARE, B.Sc., LL.B.,(Spl) XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.20517/2016 JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Narayana Gowda.N.N,
Aged about 44 years,
W/o.Late.Narasegowda,
R/at No.152, 1st Main Road,
Priyadarshini Layout,
Mudalapalya,
Bengaluru-72.
(Rep. by Sri.N.N.Jayaramu, Adv.)
V/S
Accused : Thimmegowda,
S/o.Late.Subbe Gowda,
Aged about 45years,
R/at No.21, G Floor,
9th C Main Road, Byraveshwaranagar,
Nagarabhavi Main Road,
Bengaluru-72.
Also at
Gulekayi Hosahalli Village,
Bidarakere Post,
Nagamangala Taluk,
Mandya District.
(Rep. by Sri.R.Nagaraju, Advocate)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
Judgment 28 C.C.20517/2016
FINAL ORDER : Accused is Convicted.
DATE OF ORDER : 23.06.2017.
(S.G.SALAGARE)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
This complaint is filed by the complainant against the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the complaint are as under:
Complainant and accused are knew each other from past several years and they are friends, they are residents of adjacent localities. On 24.04.2014, accused has approached the complainant and requested for hand loan of Rs.80,000/- for improvement of his vegetable business, family necessities and for his children education, and accused promised to repay the same within six months. After considering the request of accused, complainant has paid Rs.30,000/- to the accused by way of cheque bearing No.232923, dated:24.04.2014 drawn on State Bank of India, Automic Energy Department Campus, Bengaluru and on the same day complainant has paid Rs.50,000/- to the accused by way of Judgment 29 C.C.20517/2016 cash, and accused has encashed the above said cheque. It is stated that, in the last week of August, 2015 accused once again approached the complainant for an additional hand loan of Rs.64,000/- for his necessities by promising to repay both the loan amounts in another period of six months. After considering the request of accused, complainant has paid Rs.15,000/- to the accused by way of cheque bearing No.068427, dated:31.08.2015 drawn on Janatha Seva Co- operative Bank Ltd., Mudalapalya Branch, Bengaluru and on the same day complainant has paid Rs.49,000/- to the accused by way of cash, and accused has encashed the above said cheque. After stipulated period, complainant demanded for return of amount, and In order to repay the borrowed amount, accused has issued a post dated cheque bearing No.609474, dated:26.04.2016 drawn for Rs.1,44,000/-, drawn on ING Vysya Bank Ltd., Nagamangala Branch, Mandya District in favour of complainant and accused requested the complainant to present the said cheque for encashment to the bank after two months.
It is further case of complainant that, as per instructions of accused, the complainant has presented the said cheque Judgment 30 C.C.20517/2016 through his banker viz., Janatha Seva Co-operative Bank Ltd., Mudalapalya Branch, Bengaluru for collection. On 19.07.2016, the said cheque was returned unpaid for the reasons "Account Closed". On 25.07.2016, the complainant brought this fact to the knowledge of accused by issuing demand notice through RPAD to both the address. The notice sent through RPAD to Bengaluru address was returned unserved with a shara 'Not claimed return to sender/Door locked, on 26.07.2016. The notice sent through RPAD to Mandya address was also returned unserved with a shara 'Intimation Delivered' from 29.07.2016 to
03.08.2016. Even after grace period of 15 days from the date of return of notice accused has neither paid the cheque amount nor replied the notice. Hence, the complainant has filed the complaint against the accused for the offence punishable under Section 138 of Negotiable Instruments Act and prayed to punish the accused with maximum sentence and to award compensation to the complainant.
3. My predecessor after perusing records, took cognizance of offence, and recorded sworn statement, ordered to register Criminal Case against the accused for the offence punishable under Section 138 of Negotiable Instruments Act. The Judgment 31 C.C.20517/2016 accused after service of summons put his appearance through his counsel and has been enlarged on bail. Thereafter, the court has recorded the plea of accused and the accused has pleaded not guilty of the offence and claims to be tried. Hence, the case was posted for trial.
4. The complainant in order to prove her case, got examined himself as PW-1 and got marked nine documents at Exs.P1 to P9 and closed his side. After completion of the evidence of complainant, the substance of the evidence has been read over and explained to the accused under Section 313 of Cr.P.C., the accused denied all the incriminating evidence arisen against him. The accused submitted she has defence evidence, but accused has not led defence evidence.
5. Complainant counsel submitted arguments of complainant side may be taken as heard. The learned counsel for accused has not led argument, hence the case is posted for Judgment on Merit.
6. The following points would arise for my consideration:
1) Whether the complainant proves beyond all reasonable doubt that, he had advanced Rs.1,44,000/- hand loan to the accused, and accused has issued a post Judgment 32 C.C.20517/2016 dated cheque bearing No.609474, dated:26.04.2016 drawn for Rs.1,44,000/-, drawn on ING Vysya Bank Ltd., Nagamangala Branch, Mandya District in favour of complainant for discharge of the said amount, and on its presentation, cheque came to be dishonoured for the reasons 'Account Closed' and even after issuance of notice, the accused has failed to repay the amount and thereby accused is guilty of the offence punishable under Section 138 of N.I.Act?
2) What Order?
7. My findings on the above points are as under:
Point No.1 : In the Affirmative Point No.2 : As per final order, for the following:
REASONS
8. POINT NO.1: It is alleged that, the accused had borrowed an amount of Rs.1,44,000/- from complainant, towards repayment of hand loan, the accused has issued a post dated cheque bearing No.609474, dated:26.04.2016 drawn for Rs.1,44,000/-, drawn on ING Vysya Bank Ltd., Nagamangala Branch, Mandya District in favour of complainant. When the said cheque was presented for encashment, same was dishonoured for the reasons 'Account Closed'. Even after issuance of demand notice, accused has Judgment 33 C.C.20517/2016 not made any arrangement for return of cheque amount. The accused has denied the accusation made against him.
9. To prove his case, the complainant got examined himself as PW.1 by filing his affidavit in lieu of his examination in chief evidence. In the affidavit, PW.1 has reiterated the averments made in the complaint and in support of his contention; PW.1 has got marked nine documents. Among them cheque bearing No.609474, dated:26.04.2016 drawn for Rs.1,44,000/- is marked as Ex.P1. The said cheque is drawn on ING Vysya Bank Ltd., Nagamangala Branch, Mandya District in favour of complainant. The signature of accused is marked as Exs.P1(a). Ex.P2 is the Bank Endorsement issued by the Janatha Seva Co- operative Bank Ltd., the contents of Ex.P2 disclose that, the cheque bearing No.609474, drawn for Rs.1,44,000/- is dishonoured for the reasons 'Account Closed'. Ex.P3 is the Demand Notice dated: 15.12.2014, the recitals of Ex.P3 disclose that, the complainant has issued this notice to the accused through his counsel. By issuing this notice complainant called upon the accused to repay the cheque amount of Rs.1,44,000/- within 15 days from the date of receipt of notice. Exs.P4 and P5 are the Postal Receipts, Exs.P6 and P7 are the Unserved postal covers, Ex.P8 is the statement of accounts for the period from Judgment 34 C.C.20517/2016 01.04.2014 to 13.07.2016 pertaining to complainant issued by the Janatha Seva Co-operative Bank Ltd. and Ex.P9 is the statement of accounts for the period from 01.04.2014 to 31.03.2015 pertaining to complainant issued by the State Bank of India.
10. The order sheet and records disclose that, accused has appeared through his counsel and got released on bail. Complainant got examined himself as PW.1 by filing his affidavit in lieu of examination in chief. Though accused has appeared through his counsel, but not cross-examined PW.1, hence cross-examination of PW.1 was taken as closed and the case was posted for recording of accused statement under Section 313 Cr.P.C. On 24.04.2017 the accused statement is recorded, accused has denied the incriminating circumstances and submitted he has defence evidence. Accused has taken sufficient time, but he has not denied the claim of complainant by cross-examining PW.1 and by adducing defence evidence. When accused has not cross- examined PW.1, an inference has to be drawn that, accused has admitted that, Ex.P1 cheque belongs to him and signature marked at Ex.P1(a) is that of him. When accused Judgment 35 C.C.20517/2016 has not disputed the cheque and signature, the initial presumption arises in favour of complainant under Section 118(a) of Negotiable Instruments Act that, complainant is holder of cheque Ex.P1 for valid consideration. Further, from the perusal of records, it reveals that complainant has complied the provisions of Section 138 of Negotiable Instruments Act. Hence, the initial presumption under Section 139 of Negotiable Instruments Act arises in favour of complainant that accused has issued the cheque Ex.P1 for discharge of legally recoverable debt. The initial presumptions arisen in favour of complainant under Sections 118(a) and 139 of Negotiable Instruments Act are rebuttable presumptions, and accused is at liberty to rebut the presumptions by cross-examining PW.1 or by adducing the defence evidence or by both.
11. Accused has appeared in this case, but he has not choosen to cross-examine PW.1. When accused has not cross-examined PW.1 and not adduced the defence evidence, an inference can be safely drawn that, accused has borrowed an amount of Rs.1,44,000/- from the complainant and issued Ex.P1 cheque for discharge of said amount of Rs.1,44,000/- Judgment 36 C.C.20517/2016 lakhs. If the accused does not dispute the cheque and signature, then the burden is on the accused to prove that Ex.P1 cheque was not issued for discharge of legally recoverable debt. To rebut the presumptions and also to disprove the case of complainant, accused has not entered the witness box and also accused has not choosen to cross- examine PW.1. Accused has also not disputed the receipt of legal notice and thereby accused has not disputed the contents of statutory notice Ex.P3. Accused has denied the incriminating evidence, but he has not adduced the defence evidence. The mere denial of incriminating evidence is not sufficient to hold that, accused is innocent of the alleged offence; accused has to establish that no transaction has taken place between himself and complainant.
12. From the perusal of evidence placed on record it is crystal clear that, accused has issued the cheque Ex.P1 in favour of complainant for discharge of his legal liability. The documents marked at Exs.P1 to P7 disclose that, the complainant has complied the provisions of Section 138 of Negotiable Instruments Act. The documentary evidence and oral evidence adduced by the complainant has remained Judgment 37 C.C.20517/2016 unchallenged, un-rebutted and un-controverted. There is no reason to disbelieve the case of complainant. The complainant has proved that, accused has issued the cheque Ex.P1 for discharge of his legal liability. Hence, complainant has proved that, accused has committed an offence punishable under Section 138 of Negotiable Instruments Act. In view of the above said reasons, I hold point No.1 in the Affirmative.
13. Point No.2: In view of my findings on point No.1, I proceed to pass the following:
ORDER Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act.
The accused is sentenced to pay total fine amount of Rs.1,60,000/- (Rupees One lakh sixty thousand only). In default accused shall under go simple imprisonment for 02 (two) months.
Out of the total fine amount a sum of Rs.1,58,000/- (Rupees One lakh fifty eight thousand only) is ordered to be paid to the complainant by way of compensation under Judgment 38 C.C.20517/2016 Section 357 of Cr.P.C. The balance amount of Rs.2,000/- (Rupees Two thousand only) shall be remitted as fine to the State.
The bail bond and surety bond of the accused stands cancelled.
(Dictated to the Stenographer directly on computer typed by him, corrected and then pronounced by me in the open court on this the 23rd day of June - 2017) (S.G.SALAGARE) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Naraya Gowda.N.N 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 Exs.P4 & P5 : Postal Receipts Exs.P6 & P7 : Unserved postal covers Exs.P8 & P9 : Statement of accounts
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 39 C.C.20517/2016
23.06.2017.
Comp -
Accd -
For Judgment at 3.00 pm Judgment pronounced in the open court vide separate order.
***** ORDER Acting under Section 255(2) of Cr.P.C.
the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act.
The accused is sentenced to pay total fine amount of Rs.1,60,000/- (Rupees One lakh sixty thousand only). In default accused shall under go simple imprisonment for 02 (two) months.
Out of the total fine amount a sum of Rs.1,58,000/- (Rupees One lakh fifty eight thousand only) is ordered to be paid to the complainant by way of compensation under Section 357 of Cr.P.C. The balance amount of Rs.2,000/- (Rupees Two thousand only) shall be remitted as fine to the State.
Judgment 40 C.C.20517/2016The bail bond and 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.