Bangalore District Court
Smt. P.V. Padmavathi vs M/S. Ravi Edible Oil Rafinery on 1 October, 2018
1 C.C.NO. 20986 OF 2017
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU
Dated this the 1st Day of October 2018
Present: Sri. Rajkumar .S.Amminbhavi., B.Com., LLB (Spl)
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No. 20986/2017
Complainant: Smt. P.V. Padmavathi
W/o. P.L. Vishwantha Gupta
Aged about 58 Years
R/at. No.1061, 1st Floor, 7th Main,
3rd Cross, Srinivasanagar, BSK 1st
Stage, Bengaluru-560 050.
Rep. By her Special Power of
Attorney Holder
Sri. P.L. Vishwantha Guptha
S/o. P.V. Lakshminarayana Setty
Aged about 62 Years
R/at. No.1061, 1st Floor, 7th Main,
3rd Cross, Srinivasanagar, BSK 1st
Stage, Bengaluru-560 050.
(By H.C.Ramesh., Adv)
- Vs -
Accused: 01. M/s. Ravi Edible Oil Rafinery
48, 2nd Main, Palace Guttahalli
Bengaluru-560 003
Rep. By its Partner
Mr. Ravi Kumar
02. Mr. Ravi Kumar
Partner
M/s. Ravi Edible Oil Rafinery
48, 2nd Main, Palace Guttahalli
2 C.C.NO. 20986 OF 2017
Bengaluru-560 003.
(By. M.A.Rajendra., Adv)
Offence complained of: U/s. 138 of the Negotiable
Instruments Act
Plea of the accused: Pleaded not guilty
Final Order: Accused is Convicted
Date of order: 01.10.2018
******
JUDGMENT
This is a complaint under Sec.200 of Cr.PC against the accused for the offence punishable under Sec.138 of the Negotiable Instruments Act.
2. The facts of the complaint in brief are that, the complainant has executed SPA in favour of her husband in order to file the present complaint, conduct and to do all acts and deeds in respect of the present complaint and the accused who being the partner of M/s. Ravi Edible Oil Rafinery and further, both the complainant and accused are known to each other. On account of well acquainted with the complainant, the accused has approached the complainant and requested for advancement the loan amount of Rs.9,00,000/- for the improvement his business and accordingly, considering the request of the accused, the complainant and her husband and believing the words of the accused and on the humanitarian ground, the 3 C.C.NO. 20986 OF 2017 complainant has advanced the loan amount of Rs.9,00,000/- to the accused by way of cheque i.e., Cheque bearing No.7036507 for a sum of Rs.6,00,000/- and cheque bearing No.703508 for a sum of Rs.3,00,000/- both dated: 31.01.2013 drawn on ING Vysya Bank Limited, Bengaluru and at that time, the accused has agreed and undertaken that, he would repay the said amount within a period of two years. After lapse of stipulated period on repeated request and demand made by the complainant and subsequently, the accused requested to grant some more time and he has executed letter of acknowledgment- cum-undertaking and to discharge the said existing debt and for discharge the borrowed loan amount, the accused has issued four cheques i.e., (1) Cheque bearing No.528963, dated:10.05.2017 for a sum of Rs.1,00,000/-, (2) Cheque bearing No.528964, dated:10.06.2017 for a sum of Rs.1,00,000/-, (3) Cheque bearing No.528965, dated:10.06.2017 for a sum of Rs.1,00,000/-, (4) Cheque bearing No.528967, dated:10.05.2017 for a sum of Rs.1,00,000/- all the cheques drawn on Bank of Baroda, Palce Orchards Branch, Bengaluru in favour of the complainant and assured that, the said cheques would be honoured on its presentation and accordingly, as per the assurance made by the accused, the complainant has presented the said cheque for encashment through her banker i.e., Kotak Mahindra Bank, Srinivasnagar Branch, 4 C.C.NO. 20986 OF 2017 Bengaluru on 20.06.2017, but the said cheques dishonoured with an endorsement as "Account Closed" as per the Bank endorsement dated: 22.06.2017 and thereafter, the complainant has informed the said fact to the accused, but the accused did not responded the same. Hence, the complainant had got issued the legal notice on 30.06.2017 through her counsel by RPAD calling upon him to repay the said borrowed loan amount within 15 days from the date of receipt of this legal notice and it was duly served upon him and after receipt of the legal notice, the accused has gave evasive and untenable reply and failed to repay the borrowed the loan amount. Hence, the complainant had constrained to file a complaint against the accused for the offence punishable under Section 138 of N.I. Act., which is well within time and based on the records available on record cognizance has been taken and registered it PCR.
3. After recording of the sworn statement of the complainant and complaint is registered in criminal case register and after issuance of summons to the accused, pursuant to the summons the accused No.2 being Managing Director of the accused No.1 had appeared before this Court through his counsel and enlarged on bail. The substance of accusation was recorded and read over to the accused in his vernacular. He pleaded not guilty.
5 C.C.NO. 20986 OF 2017Hence, claims for trail.
4. In order to prove the case of the complainant, the SPA holder of the complainant got himself examined as PW.1 & got 16 documents marked as Ex.P.1 to Ex.P.16 and in support of his case and the statement of accused under Section 313 of Cr.P.C., was recorded and the accused has denied the incriminating statement against him and the accused himself examined as DW-1 and got marked 8 documents as per the Ex.D1 to Ex.D8 in support of his defence and after completion of the defence evidence, the matter was posted for arguments.
5. Heard arguments.
6. The following points arise for my determination;
1. Whether the complainant proves that the accused had issued four Cheques i.e., (1) Cheque bearing No.528963, dated:10.05.2017 for a sum of Rs.1,00,000/- (2) Cheque bearing No.528964, dated:10.06.2017 for a sum of Rs.1,00,000/- (3) Cheque bearing No.528965, dated:10.06.2017 for a sum of Rs.1,00,000/- (4) Cheque bearing No.528967, dated:10.05.2017 for a sum of Rs.1,00,000/- all these cheques drawn on Bank of Baroda, Palace Orchards Branch, Bengaluru for discharge of the amount and when the said cheque were presented for encashment, they were dishonoured with an endorsement "Account Closed" and after issuance of the legal notice he fails to repay the said amount and 6 C.C.NO. 20986 OF 2017 thereby, the accused has committed offence punishable U/s. 138 N.I.Act?
2. What order ?
7. My answer to the above points are;
Point No.1 : In the Affirmative
Point No.2 : As per final order for the
following;
REASONS
8. POINT NO.1: On perusal of the evidence of PW-1, he has reiterated as per the averments made in the complaint and he has got marked 16 documents namely, SPA dated:26.04.2017 executed by the complainant in favour of her husband in order to conduct the present complaint which is marked as Ex.P1, four cheques which are marked as Ex.P2 to Ex.P5, the signature of the accused therein which are marked as Ex.P2(a) to Ex.P5(a), four bank endorsements which are marked as Ex.P6 to Ex.P9, the office copy of the legal notice which is marked as Ex.P10, two postal receipts which are marked as Ex.P11 and Ex.P12, two postal acknowledgment which are marked as Ex.P13 and Ex.P14, certified copy of the statement of account pertain to the bank account of the complainant which is marked as Ex.P15, certified copy of the letter of 7 C.C.NO. 20986 OF 2017 acknowledgment-cum-undertaking dated:25.01.2015 which was executed by the accused in favour of the complainant which is marked as Ex.P16.
9. During the course of cross of PW-1, he has deposed that, the present complainant being his own wife and and his wife had executed SPA in order to file the present complaint and prosecute on her behalf before this Court. It is true that, in Ex.P1 cheques number was not specifically mentioned. He deposed that, the complainant was not having any other source of income and she was not having any FD amount in bank. He deposed that, his wife was not having yearly income, however, his wife being an income tax assessee. He deposed that, in the month of January 2013 there was financial transaction took place. He deposed that, the accused was running the Oil business and at that time, his friend by name Gurudeva was introduced the present accused with an intention to make his son as parter in the accused firm and thereby, he know the present accused. He deposed that, the accused is running partnership firm and in the said firm, mother of the accused was one of the partner. It is true that, in Ex.P14 and in the present complaint, mother of the accused was not made as a party. He deposed that, in Ex.P17 and Ex.P18 wherein, signature of the accused was not found. He deposed that, the accused has issued 8 C.C.NO. 20986 OF 2017 Ex.P20 in his house and at that time, none of the persons were present. It is true that, he came to know first time about the fact that, the accused has closed his bank account, when he was presented the Ex.P2 to Ex.P5 for encasement and same were returned with an endorsement as "Account Closed" on 22.06.2017. He deposed that, he has issued legal notice as per the Ex.P10 through registered post and he do not know whether, the accused has issued reply notice to the legal notice issued by the complainant. He deposed that, the amount in question was not reflected in his income tax returns. He deposed that, he was advanced the loan in question to the accused out of the sale consideration from the sale house property which was stand in the name of his wife, but to that effect, he has not produced any documents. He deposed that, he has advanced an amount of Rs.6,00,000/- on 30.01.2013 an amount of Rs.9,00,000/- on 31.01.2013 through cheque and at that time, he was not obtained any documents from the accused. He deposed that, he was advanced to the loan in question to the accused on the ground that, to make him as partner of the firm run by the accused, but to that effect, he has not produced any documents before this Court. He deposed that, he was not advanced the loan amount on the basis of interest. He deposed that, there is no ambiguity to produce his bank account statement. He denied the suggestion that, the accused has issued two 9 C.C.NO. 20986 OF 2017 cheques on 18.03.2013 for a sum of Rs.2,50,000/- and on 20.03.2013 for a sum of Rs.2,50,000/- in his name and same has been encashmed by him. He denied the suggestion that, since the complainant was intent to being the partner of the accused firm and she had included partner of the said firm and at that time, the accused has issued cheques in question for the security purpose and he himself filled the contents of the Ex.P2 to Ex.P5 except signature of the accused. He deposed that, the accused has paid an amount of Rs.2,50,000/- on 18.03.2013 and an amount of Rs.2,50,000/- on 20.03.2013 that amount relates to the transaction took place in the year 2012 and the said amount not at all pertain to the case in hand, since the accused has received an amount of Rs.5,00,000/- by way of cash and for repayment of the borrowed loan amount of Rs.5,00,000/- the accused has issued two cheques in the name of the complainant and that amount has been received by the complainant. The counsel for the accused has confronted the reply notice and postal receipt and same has been admitted by the PW-1 and same are marked as Ex.D1 and Ex.D2. It is true that, letter of undertaking which is marked as Ex.P20, the accused has put his signature, but the mother of the accused was not made a signature, though she being the partner of the firm. He denied the suggestion that, on 31.03.2013 the accused has paid an amount of Rs.10,00,000/- by way of cash and 10 C.C.NO. 20986 OF 2017 even payment of the said amount, the complainant has failed to return the signed blank cheques which were issued for the security purpose.
10. During the course of defence evidence, the accused himself examined as DW-1 by way of filing an chief affidavit, wherein, he has been specifically stated that, the complainant has obtained signed blank cheques i.e., bearing No.528963, 528964, 528965, 528967, 528966, 528968, 528969, 528970, 528971, 528972, 528953, 528955, 528959, 528960 and 528961 all cheques drawn on Bank of Baroda which were issued for the security purpose and out of the said cheques, the complainant has misused the three cheques i.e., No.528963, 528964, 528965 and 528967 for a sum of Rs.1,00,000/- each, dated: 10.05.2017 total an amount of Rs.4,00,000/- filed present case and remaining cheques i.e., bearing No.528966, 528968, 528969, 528970, 528071, 528972 for a sum of Rs.1,00,000/- each, dated: 10.02.2017 total an amount of Rs.6,00,000/- filed C.C.No.12952/2017 and other cheques i.e., bearing No.528953, 528955, 528959, 528960 and 528961 for a sum of Rs.1,00,000/- each, total sum of Rs.5,00,000/- filed in C.C.No.20987/2017. He deposed that, he has repaid a sum of Rs.5,00,000/- to the complainant by way of cheque bearing No.001875 on 20.03.2013 for a sum of Rs.2,50,000/- and another cheque 11 C.C.NO. 20986 OF 2017 bearing No.001874 on 18.03.2013 for a sum of Rs.2,50,000/- and to that effect, he has produced the documents and same are marked as Ex.D3 to Ex.D6, he has produced the ledger extract pertain to his partnership firm which is marked as Ex.D7 and therein signature of the accused which is marked as Ex.PD(a), he has produced statement of account which is marked as Ex.D8.
11. During the course of cross of DW-1 he has deposed that, he being the partner of the Edible Oil Refinery and so also he has acting as Managing Partner. He deposed that, he has executed Ex.P20 and wherein signature found on the Ex.P20(a) is his own signature. He denied the suggestion that, he himself filled the contents of the Ex.P2 to Ex.P5. He has not specifically stated that, he has given Ex.P18 in favour of the complainant and. It is true that, he has not stated in his reply notice that, he has issued cheques in question for the security purpose in favour of the complainant. It is true that, he has not stated in his reply notice that, he has paid an amount of Rs.10,00,000/- by way of cash to the complainant and he has paid an amount of Rs.2,50,000/- each on 18.03.2013 and 20.03.2018 respectively as per the Ex.D1 to Ex.D8. He denied the suggestion that, he was knowing fully well about the issuance of the cheques in question and he himself gave stop payment instruction to his banker, prior 12 C.C.NO. 20986 OF 2017 to given intimation to the complainant. It is true that, he being a B.Com Graduate and he know the bank transaction. He deposed that, if he putting signature on any documents before reading the contents thereon and then, he would put his signature. It is true that, he was borrowed the loan amount from the complainant through cheques. It is true that, there is no ambiguity for payment of Rs.10,00,000/- by way of DD or cheques, when he was paid said amount to the complainant by way of cash. He denied the suggestion that, he was borrowed the loan amount of Rs.15,00,000/- from the complainant in the year 2013 and that amount has been not repaid to the complainant. He denied the suggestion that, he has deposing falsely before this Court with an intention to defeat the claim of the complainant.
12. On perusal of the averments made in the complaint and oral and coupled with the documentary produced by the parties to the proceedings. There is no dispute that, the complainant has executed SPA in favour of her husband in order to file the present complaint and conduct the same before this Court on her behalf. There is no dispute that, the complainant had complied all the necessary ingredients under Section 138 of N.I.Act., prior to filing of the present complaint. There is no dispute that, Ex.P1 to Ex.P6 cheques are belonging to his own bank 13 C.C.NO. 20986 OF 2017 account and the signature found on the Ex.P2(a) to Ex.P5(a) are his own signature. There is no dispute that, the accused No.2 i.e., DW-1 being the Managing Partner of the accused No.1 firm.
13. It is case of the complainant is that, both of the complainant and accused are known to each other, on account of well acquainted with the complainant, the accused has approached and requested for advancement of total loan amount of Rs.15,00,000/- with respect to all three cases and repayment of the part of the borrowed loan amount, the accused has issued cheques in question Ex.P2 to Ex.P5 and as per the assurance made by the accused, the complainant has presented the said cheques, but the said cheques were returned with an endorsement as "Account Closed" and same has been intimated to the accused, but the accused has failed to responded the same and thereby, the complainant has filed present complaint after complying the all the ingredients under Section 138 of N.I.Act.,
14. On the other hand, the accused has taken specific defence that, he was borrowed the loan amount amount of Rs.15,00,000/- from the complainant and subsequently, he was repaid an amount of Rs.2,50,000/- each on 18.03.2018 and 20.03.2018 respectively and to that effect, 14 C.C.NO. 20986 OF 2017 he has produced the Ex.D3 to Ex.D8 and remaining an amount of Rs.10,00,000/- he was paid by way of cash, but to that effect he has not produced any documents that, he was paid an amount of Rs.10,00,000/- paid by way of cash except oral testimony. Therefore, non-production of any documentary evidence is very much fatal to the alleged defence taken by the accused during the course of cross of PW-1 and during the course of defence evidence.
15. If really, he was borrowed the loan amount amount from the complainant and he was already repaid the entire borrowed loan amount to the complainant, but to substantiate the same, he ought to have take any legal action against the complainant, he ought to have challenged the cognizance taken by this Court, he ought to have produced any documentary evidence with respect to payment an amount of Rs.10,00,000/- by way of cash. Therefore, non-performing the aforesaid legal proceedings that itself, it is very much fatal to the alleged defence set- up by the accused during the course of PW-1 and during the course of his evidence. Therefore, an adverse is to be drawn that, the accused has borrowed the loan in question from the complainant and for discharge the loan in question, the accused has issued cheques in question.
16. On perusal of the bank endorsement which are 15 C.C.NO. 20986 OF 2017 issued by the banker that, "Account Closed", further, to substantiate the same, the accused ought to have produce any documents, whether the banker themselves have closed his bank account or himself closed his bank account and merely the banker have issued with an endorsement as "Account Closed" it does not defeat the claim of the complainant. Since he has not produced any bank account statement or he has not examined his banker stating that, when cheques were presented for encashment, he was having sufficient funds in his bank account. Hence, an adverse inference is to be drawn that, when Ex.P2 to Ex.P5 were presented for encashment, the accused was not having sufficient funds in his bank account.
17. There is no dispute that, Ex.P2 to Ex.P5 cheques are belonging to his own bank account cheque and signature found on the Ex.P2(a) to Ex.P5(a) are his own signature. It can be presumed that, the accused has issued the Ex.P2 to Ex.P5 to the complainant knowing fully well with an intention to defeat the claim of the complainant.
18. The drawer of the cheque have to take abundant precaution prior to issuance of cheque in question. Therefore, in the instant case also. It can be presumed that, no any ordinary prudent man will issue signed blank 16 C.C.NO. 20986 OF 2017 cheque to any other persons without having monetary transaction between themselves. Hence, the probability of the preponderance is higher on the side of the complainant, rather than the accused.
19. Ordinarily offence under Section 138 of N.I.Act "mensrea" is not essential, under Section 138 of N.I.Act , is bring into operation rule of strict liability, whereas, "mensrea" is essential ingredients in criminal offences. Therefore, The complainant has proved her case against the accused, since offence under Section 138 of N.I.Act element of Mensrea has been excluded in general public interest to curb the instances of dishonouring of cheques and to lend the credibility to the commercial transaction. Therefore, in this case also the accused knowing fully he was borrowed the loan in question from the complainant and for discharge the loan in question he has issued the Ex.P2 to Ex.P5 to the complainant. Since the present complaint is summary trial and quasi-criminal in nature, it is like recovery proceedings and punishment is fine or in default of it simple imprisonment.
20. Looking to the conduct of the parties to the proceedings, the accused has borrowed loan amount in the year 2013 already five years elapsed and there is no averments in the complaint with respect to award interest amount upon the principle amount, but this Court is 17 C.C.NO. 20986 OF 2017 having ample power with respect to awarding simple interest at the rate of 6% per annum upon the principle an amount of Rs.4,00,000/-, since 2013 already 5 ½ years elapsed. Hence, approximately total interest i.e., an amount of Rs.1,20,000/- and awarding cost of litigation an amount of Rs.5,000/- since the trial faced by the complainant, is just and proper to meet the ends of justice. Therefore, the accused is liable to pay total an amount of Rs.5,25,000/-.
21. Hence, in the light of the above observation, the complainant has successfully proved that, the accused has committed offence punishable under Section 138 of N.I. Act with these reasons, I am the opinion that, the complainant successfully established before the Court, the accused has issued Ex.P2 to Ex.P5 to the complainant for the legally recoverable debt of Rs.4,00,000/- including interest and the cost of litigation. Therefore, I answer the point No.1 in the affirmative.
22. Point No.2 :- In view of my findings on Point No.1 in the affirmative, I proceed to pas the following...
ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
18 C.C.NO. 20986 OF 2017The accused shall pay a fine of Rs.5,25,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for Three Months.
Further, ordered that, out of the said fine amount of Rs.5,20,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of Rs.5,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands canceled.
Free copy issued to the accused.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified, corrected and then pronounced by me in the open Court on this the 1 st day of October 2018).
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 P.V. Padmavathi 19 C.C.NO. 20986 OF 2017 List of documents exhibited on behalf of the complainant:
Ex.P.1 SPA dated:26.04.2017 Ex.P.2 to 5 Four cheques
Ex.P.1(a) to 5(a) Signature of the accused Ex.P.6 to 9 Four bank endorsements Ex.P.10 Office copy of the legal Notice Ex.P.11 & 12 Two Postal receipts Ex.P.13 & 14 Two Postal acknowledgments Ex.P.15 Certified coy of the statement of account Ex.P.16 Certified copy of the letter of acknowledgment-cum-undertaking Ex.P.16(a) Signature of the accused List of witnesses examined on behalf of the accused :
DW.1 Ravi Kumar List of documents exhibited on behalf of the accused :
Ex.D1 Certified copy of the reply notice Ex.D2 Certified copy of the Postal receipt Ex.D3 Certified copy of the letter to the Bank of Baroda on 06.06.2018 Ex.D4 Certified copy of the letter issued by the Bank of Baroda Ex.D5 Certified copy of the cheque bearing No.001875 Ex.D6 Certified copy of the cheque bearing No.001875 Ex.D7 Certified copy of the Ledger Extract Ex.D8 Certified copy of the Statement of account XII Addl. Chief Metropolitan Magistrate, Bengaluru City.20 C.C.NO. 20986 OF 2017
01.10.2018.
Complainant : MCR Accused : MDR Judgment.
(Vide separate judgment pronounced in the open Court) ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of Rs.5,25,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for Two Months.
Further, ordered that, out of the said fine amount of Rs.5,20,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of Rs.5,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands canceled.
Free copy issued to the accused.
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
21 C.C.NO. 20986 OF 2017 22 C.C.NO. 20986 OF 2017Heard Inference 23 C.C.NO. 20986 OF 2017