Bangalore District Court
S.Prakash Rao vs Sri.R.Venkatarama Naik on 10 March, 2015
IN THE COURT OF THE XX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY
Dated this the 10th day of March 2015
PRESENT: M.RAMESHA B.A., LL.B.,
XX ADDL. C.M.M. Bangalore.
C.C.No.49793/2010
Complainant S.Prakash Rao,
S/o Shama Rao,
Aged about 30 Years,
R/at No.72,
Mahalakshmipuram, 2nd Stage,
Bangalore - 560 086.
(Represented by Sri.P.N.Varadaraj - Advocate)
Vs.
Accused Sri.R.Venkatarama Naik,
R/at No.81, Nagarabhavi, 2nd Stage,
8th Block, 60 Feet Road,
Bangalore - 560 072.
(Represented by Sri.G.S.Shankar -Advocate)
Offence complied of U/S. 138 of N.I. Act.,
Plea of accused Pleaded not guilty
Final Order Accused is Convicted
Date of Order 10-03-2015
2 C.C.49793/2010
JUDGMENT
The complainant has filed this complaint U/S. 200 of Cr.P.C., against the accused for the offence punishable U/S.138 of Negotiable Instruments Act ( in short for "N.I. Act").
2. After taking the cognizance of the offence, on being served the summons, the accused was appeared before the court through his counsel and got released him on bail. The substance of accusation was read over and explained to the accused, wherein he pleads not guilty and claimed to be tried.
3. In order to prove his case, the complainant examined as PW.1 and got marked the documents as per Ex.P.1 to 6. Thereafter, accused has been examined as required U/S 313 of Cr.P.C., by explaining incriminating evidence appeared against him. Wherein, he denied the entire evidence of complainant. In order to substantiate his defence accused himself examined as D.W.1 and got marked the document as per Ex.D.1.
4. In this case, the evidence on record shows that summons trial procedure was adopted and not summary trial.
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5. The Learned Counsel for the complainant has filed written argument and accused side argument taken as nil.
6. Now the points that arise for my consideration are as follows;
POINTS
1. Whether the complainant has made out all the ingredients of Sec.138 of N.I. Act. to prove the guilt of the accused?
2. What Order?
Now my answer to the above points is as follows;
1. Point No.1: In the affirmative
2. Point No.2: As per the final order for the following;
REASONS
7. POINT No.1: I have perused the complaint, oral and documentary evidence available on record. It is the specific case of the complainant that, the accused is well known to him and he was approached the complainant and borrowed hand loan of Rs.2,50,000/- on 25.05.2006 agreeing to repay the same within two years. On the same day of borrowing the loan the accused was executed Indemnity Bond in favour of the complainant. Subsequently even after lapse of two years the accused failed to repay the loan amount. when the complainant demanded for repayment of the loan amount then the accused had issued a 4 C.C.49793/2010 cheque bearing No.231457 dated 08.12.2009 for Rs. 2,50,000/- in favour of the complainant, drawn on Panjab National Bank, Chikkapet Branch, Bangalore - 560 053. When the complainant was presented the said cheque for realization through his banker, it was dishonoured for the reason "ACCOUNT CLOSED" and returned with bank endorsement dated 10.12.2009. Thereafter, inspite of issuing the demand notice dated 22.12.2009 through RPAD and UCP to the accused, calling upon him to pay the cheque amount within 15 days from the date of service of notice, but the accused failed to pay the cheque amount and has issued evasive reply. Hence the present complaint.
8. In support of his case the complainant has filed his affidavit of chief examination by reiterating the complaint averments. Further the complainant has produced the documents which are marked at Ex.P. 1 to Ex.P. 6. Ex.P. 1 is the cheque in question said to have been issued by the accused, Ex.P. 2 is the bank endorsement, which reveals that the Ex.P. 1 cheque was dishonoured for the reason "ACCOUNT CLOSED", Ex.P. 3 is office copy of the demand notice dated 24.02.2014, Ex.P. 4 is the reply notice. All these documents goes to show that after dishonour of the cheque and after receiving the bank return memo the complainant had issued demand notice to the accused within time and after completion of 15 days from the date of service of notice complaint came to be filed within time. 5 C.C.49793/2010
9. On the other hand the accused has raised the defence stating that he did not acquainted with the complainant and he did not borrowed any loan from him. Further he contented that Ex.P. 1 cheque is also not issued to the complainant for repayment of any amount. Further he contended that on 13.06.2006 he was lost some cheques, on the same day he was lodged the police complaint and also issued "stop payment intimation" to the bank by mentioning the cheques numbers. Only after receiving the demand notice from the complainant, the accused came to know that his lost cheques were with the complainant and the said cheques were misutilized by the complainant.
10. It is pertinent to note that, ordinarily in cheque bouncing cases, what the court has to consider is whether the ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 of the Act. Once the cheque relates to the account of the accused and he/she accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the court in favour of the complainant. The presumption referred in Section 139 of the N.I. Act is a mandatory presumption and not a general presumption.
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11. Considering the facts of the case on hand, it is to be taken note of that the accused has clearly admitted that the cheque in question belongs to his account and also admitted his signature on the cheque. When such being the case unless and until presumption is rebutted by the accused, this court shall draw the presumption in favour of the complainant as contemplated U/S.139 of N.I. Act, that the cheque in question issued for discharge of legally enforceable debt or liability. Now it is to be looked into whether the accused is able to rebut the presumption U/S.139 of the N.I. Act or not. Once the accused is rebutted the presumption , then the burden is again shifts back on to the complainant to establish the existence of legally enforceable debt.
12. Now let me see the evidence brought on record by the accused to prove his defence. The accused himself examined as DW.1 and also produced one document at Ex.D.1 copy of the police complaint 13.06.2008 lodged before the police regarding the missing of his cheques. According to the accused that on 13.06.2008, when he was going to his friend's house at about 6.50 p.m. near Prasanna theater he was lost his hand bag in that bag he was kept 7 signed blank cheques including Ex.P.1 cheque. Immediately he searched his bag but not found, then lodged police complaint before the Magadi road police as per Ex.D.1. Further it is the contention of the accused that he was also given "stop payment intimation" to the bank regarding 7 C.C.49793/2010 the missing cheques. It is pertinent to note that except Ex.D.1 copy of the police complaint lodged before the police nothing has been brought on record by the accused such as copy of "stop payment intimation" given to the bank. Further in his cross examination the accused clearly admitted that no difficulty for him to produce the copy of the "stop payment intimation" given to the bank, but he did not produced any such document. If really the accused had issued "stop payment intimation" mentioning the missing cheques numbers, then there is no hurdle for him to produce the copy of the same, but he did not chosen to produce the same. It shows that the accused was not given any "stop payment intimation" to the bank, so that he did not able to produce the same.
13. Further it is pertinent to note that in the Ex.D.1 police complaint lodged by the accused all the cheques numbers were clearly mentioned. According to the Ex.D.1 accused was lost 7 cheques i.e.,. 5 cheques of Panjab National Bank account and 2 cheques of SBM bank account. It is very surprising to know how it is possible to the accused to mention the cheques numbers of all the missing 7 cheques. In a natural course it is highly difficulty for a person to remember the cheque numbers, but the accused has mentioned the cheque numbers of all the 7 cheques in his complaint, it is also give room to suspect the genuinety of the Ex.D.1 complaint. Further it is to be taken note of that except the copy of the complaint 8 C.C.49793/2010 he has not produced the endorsement issued by the concerned police regarding the registration of the case. Further, in the Ex.D.1 complaint it is mentioned that the accused is a Manager, working at BHEL company, Mysore Road. It reveals that the accused is not a lay man, he is working as a Manager in a such big company and he know all the procedure and consequences of issuing the cheques. Further it is pertinent to note that, according to the Ex.D.1 complaint the accused was kept 7 signed blank cheques in his hand bag, but he did not put forth any explanation that, why he was kept the 7 signed blank cheques in his hand bag. Admittedly in a normal course nobody will kept the signed blank cheques that too in 7 numbers. When such being the case in the absence of any explanation by the accused that why he was kept 7 signed blank cheques that too belongs to different bank accounts and the same will give room to suspect the contention taken by the accused regarding missing of cheques and lodging police complaint as per Ex.D.1.
14. According to the complainant on the date of advancing the sum the accused has executed Indemnity Bond as per Ex.P.5. It is pertinent to note that the accused neither in the reply notice nor in his evidence before the court or in the cross examination of PW.1 or in the Ex.D.1 police complaint it is not mentioned about the Ex.P.5 Indemnity Bond said to have been executed by him. According to the 9 C.C.49793/2010 accused he was lost only signed blank cheques and amount of Rs. 600/-, but he is not mentioned about Ex.P.5 Indemnity Bond. On perusal of the signature of accused at Ex.P.5 (a) and the signature of the accused in Ex.D.1 complaint and signature on the cheque in juxta position, it is very clear that all the signatures are tally with each other . Added to this it is to be taken into consideration that the accused did not denied the execution of Ex.P.5 Indemnity Bond in favour of the complainant.
15. Further on perusal of the Ex.P.4 reply notice issued by the accused, it is clearly goes to show that he did not mentioned the date of lost the cheques and date of lodging the police complaint. If really the accused was missing his cheques on 13.06.2008 and was lodged the complaint as per Ex.D.1 and the same day he should be mentioned the date of lodging the complaint in the reply notice. Non mentioning the date of lodging police complaint and also date of missing the cheques and non production of the documentary evidence regarding "stop payment intimation" given to the bank are clearly draw back to the accused and the same will give room to suspect the genuinety of the defence taken by the accused. No doubt, on careful consideration of the oral and documentary evidence available on record, this court is of the clear view that the accused has created Ex.D.1 copy of the complaint for the purpose of this case and he has raised the false defence, that the cheque in question was 10 C.C.49793/2010 not issued in favour of the complaint and the said cheque was missing. No doubt this court is of the clear view that the accused has failed to rebut the presumption U/S.139 of the N.I. Act.
16. On the other hand the evidence of PW. 1 along with documentary evidence are clearly and categorically established all the ingredients of section 138 of N.I. Act and the complainant has proved the fact that the cheque in question had issued by the accused to the complainant in order to discharge of legally enforceable debt and the said cheque was dishonoured for the reason "ACCOUNT CLOSED". Thereafter inspite of issuing the demand notice to the accused, but he failed to pay the cheque amount within 15 days from the date of service of the notice. Hence the dishonour of the cheque in question is clearly attracts the penal provision of section 138 of the N.I. Act. No doubt the complainant has proved the guilt of the accused for the offence punishable U/S 138 of N.I. Act. Accordingly, I answer point No. 1 in the affirmative.
17. POINT NO.2: In view of my above findings and reasons, I proceed to pass the following;
ORDER Acting U/S 255(2) of Cr.P.C., accused is hereby convicted for the offence punishable U/S 138 of N.I. Act and accused is sentenced 11 C.C.49793/2010 to pay a fine of Rs.2,60,000/- (Two Lakh Sixty Thousand only). In default thereof he shall suffer simple imprisonment for 3 (Three) months.
The fine if realized, Rs. 2,50,000/-
( Two Lakh Fifty Thousand only) there from
shall be paid to the complainant as a
compensation, remaining fine amount of
Rs.10,000/-(Ten Thousand only) is defrayed to the state for the expenses incurred in the prosecution.
The bail bond of the accused and that of surety stands cancelled.
Office to supply the copy of this Judgment to the accused immediately on free of cost.
{Dictated to the stenographer, transcribed and computerized by her, corrected and then signed by me and then pronounced in the open court on this 10th day of March 2015} (M. RAMESHA), XX ACMM, Bangalore.
ANNEXURE List of witnesses examined on behalf of the prosecution:
P.W.1 S.Prakash Rao 12 C.C.49793/2010 List of Exhibits marked on behalf of the prosecution:
Ex.P. 1 Cheque Ex.P. 1(a) Signature of the accused Ex.P. 2 Bank endorsement Ex.P. 3 Copy of the legal notice Ex.P. 4 Reply notice Ex.P. 5 Indemnity Bond Ex.P. 6 Complaint Ex.P.6(a) Signature of the complainant List of witnesses examined for the defence: D.W.1 Venkataram Naik
List of documents marked on behalf of defence:
Ex.D. 1 Police complaint
XX A.C.M.M.,
Bangalore.
13 C.C.49793/2010
14 C.C.49793/2010