Bangalore District Court
Sri. Shekar vs Sri. Siddartha .B.S on 19 March, 2018
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU
Dated this the 19th Day of March 2018
Present: Sri. Rajkumar .S.Amminbhavi., B.Com., LLB (Spl)
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No. 6059/2016
Complainant: Sri. Shekar
S/o. Venkataramu
Aged about 32 Years
R/at. No.388/1
4th A Cross, Hegganahalli
Srigandadanagar
Vishwaneedam Post
Bengaluru-560 091.
(By L.Siddesha Ummathur. Adv)
- Vs -
Accused: Sri. Siddartha .B.S
S/o. Shivanna
Aged about 35 Years
C/o. Usha Ravi
R/at. No.21, Havanur Layout
Ward No.14, 15th Cross
Begalagunte, Nagasandra Post
Bengaluru-560 073.
(By. A.B.Narayanaswamy. 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: 19.03.2018
2 CC No.6059/2016
******
JUDGMENT
This is a complaint filed by the complainant 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, father of the accused approached to the complainant by stating that, even got a jot to complainant at BHEL Bengaluru within one month and after negotiations the complainant has paid an amount of Rs.1,80,000/- on 22.10.2014 to the father of the accused by way of cheques, however the father of the accused had failed to keep up his promise in getting job to the complainant and the father of the accused either refunded the aforesaid amount or to get the job to the complainant for which the complainant has demanded the said amount from the father of the accused, but the father of the accused postponing the one or other pretext with malafide intention to cheat the complainant and the complainant was waited till 23.12.2015 and thereafter, the complainant was lodged the police complaint before the Commissioner of Police, Bengaluru against the father of the accused, the police commissioner have referred it to the Peenya police for the investigation and the Peenya police have summoned the father of the accused before the police station and the father of the accused has admitted the transaction with the complainant for which the father of the accused has given under taking letter on 05.08.2015 and also under taking that, 3 CC No.6059/2016 the said amount of Rs.1,80,000/- will be refunded to the complainant, on that day the accused also accompanied with the father of the accused, further the accused has voluntarily agreed to clear the said liability on behalf of father of the accused to the complainant for which the accused had issued two post dated cheques beraring No.000041, dated: 24.09.2015 for a sum of Rs.90,000/- and cheque bearing No.000042, dated: 24.10.2015 for a sum of Rs.90,000/- both the cheques drawn on Kotak Mahendra Bank Limited, Kormangala Branch, Bengaluru and assured that, the said cheques would be honoured on its presentation and in the meanwhile the accused has requested the complainant not to present 1st of the aforesaid cheques and paid an amount of Rs.50,000/- on 02.10.2015 to the complainant by way of cash and remaining balance an amount of Rs.40,000/- against the 1st cheque, he will undertake to pay the said balance within 5 days, however, the accused has failed to pay the balance amount of Rs.40,000/- towards the 1st aforesaid cheques, inspite of repeated request the complainant and the complainant has waited till 18.12.2015 and on 18.12.2015 the complainant has presented the 1st of the aforesaid cheques through his banker i.e., Corporation bank, Peenya Branch, Bengaluru to shock and surprise of the complainant that, the said cheque came to be returned by the accused banker with a share "Funds Insufficient" on 21.12.2015, the said facts of the dishonoured the cheque to the accused, but the accused kept quiet and failed to make payment of the cheque amount and subsequently, the complainant has 4 CC No.6059/2016 presented the second of the aforesaid cheques through his banker i.e., Corporation Bank, Peenya Branch, Bengaluru on 02.08.2015, but the said cheque was dishonoured with an endorsement as Drawer's signature differs" on 06.01.2016 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 14.01.2016 through his counsel by RPAD calling upon her to repay the said borrowed loan amount an amount of Rs.1,30,000/- out of the cheque an amount of Rs.1,80,000/- within 15 days from the date of receipt of this legal notice and it was duly served upon the accused. Despite of service of the legal notice, the accused neither repaid the borrowed loan amount nor replied the legal notice issued by the complainant. 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 against accused 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 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. Hence, claims for trail.
5 CC No.6059/20164. In order to prove the case of the complainant, the complainant got herself examined as PW.1 & got 14 documents marked as Ex.P.1 to Ex.P.14 and the statement of accused under Section 313 of Cr.P.C., was recorded and he denied the incriminating statement against him and the accused himself examined as DW-1 and none of the documents have been in support of his case 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 Cheques (1) Cheque bearing No.000041, dated:24.09.2015 for Rs.90,000/-, (2) Cheque bearing No.000042, dated:24.10.2015 for Rs.90,000/- both the cheques drawn on KOtak Mahindra Bank, Koramangala Branch, Bengaluru for discharge of the amount and when the said cheque presented for encashment, they were dishonoured with an endorsement "Funds Insufficient" & "Drawer signature differs" and after issuance of the legal notice she fails to repay the said amount and Thereby, the accused have committed offence punishable U/s. 138 N.I.Act?
2. What order ?
7. My answer to the above points are;
6 CC No.6059/2016 Point No.1 : Partly 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 14 documents namely, two cheques which are marked as Ex.P1 and Ex.P2, the signature of the accused therein which are marked as Ex.P1(a) and Ex.P2(a), two bank endorsement which are marked as Ex.P3 and Ex.P4, two bank counter-foils which are marked as Ex.P5 and Ex.P6, the office of the legal notice which is marked as Ex.P7, the postal receipt which is marked as Ex.P8, postal acknowledgment which is marked as Ex.P9, the copy of the complaint which is marked as Ex.P10, the copy of the statement given by the accused before the police station which is marked as Ex.P11, the copy of the statement given by the father of the accused before the police station which is marked as Ex.P12, the copy of the acknowledgment issued by the Peenya police station which is marked asEx.P13, the copy of the letter issued by the complainant to the accused which is marked as Ex.P14 and therein signature of the accused and the complainant which are marked as Ex.P14(a) and Ex.P14(b). the bank pass book pertain to the complainant bank account which is marked as Ex.P15 and therein relevant entries which are marked as ex.P15(a) to Ex.P15(c).
7 CC No.6059/20169. During the course of cross of PW-1, he has deposed that, he was studied as Pitter in ITI Course and he was and is working in Adharash Control System as Mechanic for the last 12 years and even he was not permanent employee till today. It is true that, he was first seen the accused before the Peenya Police station, since the complaint was lodged by the complainant before the Commissioner of Police and they have referred the complaint to the Peenya Police station for investigation and on 05.08.2015 he has seen the accused first time before the police station. He know the father of the accused by name Shivanna in the year 2014 itself, when he was went to the Cyber center for making Ration Card situated at Bagalagunte. It is true that, he was residing at 2nd Stage, Egganahalli, Bengaluru and wherein the cyber center is available. It is true that, he has not filed an application for obtain the job in BHEL as per the advise of the father of the accused, but as per the oral information given by the father of the accused, he has paid amount to the father of the accused by way of cash and cheque in all an amount of Rs.1,80,000/- and there was understanding between the complainant and the father of the accused for payment of Rs.3,00,000/-, he has only paid an amount of Rs.1,80,000/- near 8th Maili, Bus stop, Bengaluru by way of cheque an amount of Rs.30,000/-, Rs.30,000/- and Rs.50,000/- and remaining amount by way of cash and with respect to the payment of amount by way of cheque, he has produced the bank account passbook which is marked asEx.P15 and relevant entries which are marked as Ex.P15(a), Ex.P15(b) & Ex.P15(c) and an amount of 8 CC No.6059/2016 Rs.70,000/- was paid by way of cash on different dates. It is true that, in his complaint on 22.10.2014 he has paid an amount of Rs.1,80,000/- by way of cheque is mentioned, but he was volunteers that, out of the an amount of Rs.1,80,000/-, he was paid an amount of Rs.1,10,000/- by way of cheque and an amount of Rs.70,000/- was paid by way of cash. It is true that, on Ex.P1 and Ex.P2 payee name and date column is written in different letters and different hand writings, but he was volunteers that, before the police station, he has written the payee name in his own hand writing and other contents written by the accused, at the instance of the accused, he himself wrote the payee name and date. He denied the suggestion that, since the accused has given signed blank cheque at the instance of the police and he himself wrote the contents of Ex.P1 and Ex.P2 and filed false complaint against the accused. He denied the suggestion that, the legal notice was not duly served upon him.
10. During the course of defence, the accused himself examined as DW-1 by way filing an affidavit as examination- in-chief, wherein, he has specifically stated that, there was transaction between himself and the complainant, but he has not issued Ex.P1 and Ex.P2 to the complainant. He denied the suggestion that, his father was approached the complainant with respect to get a job in BHEL, Bengaluru and after negotiation, the complainant has paid an amount of Rs.1,80,000/- on 22.10.2014 to his father. He deposed that, his father was only liable to pay an amount of Rs.90,000/- to 9 CC No.6059/2016 the complainant and out of that amount, he has paid an amount ofRs.50,000/- on 02.10.2015 to the complainant before the Peenya Police Station and same has been acknowledged by the complainant and he was undertaken that, he would pay an amount of Rs.40,000/- within a period of 5 days and another cheque bearing No.000042 is not issued by him for legally enforceable debit and the signature on theEx.P2 is not his signature and writing on the Ex.P1 and Ex.P2 are not his own hand writings.
11. During the course of cross of DW-1, he has deposed that, he was working in IT Company under the name and style as Manyath Teck Park for the last 10 years. It is true that, address mentioned in the legal notice issued by the complainant as per the Ex.P7 is true and correct. It is true that, Ex.P1 and Ex.P2 are cheques belonging to his own bank account and signature found on the Ex.P1(a) and Ex.P2(a) are his own signature. It is true that, signature found on Ex.P11(a) and Ex.P12(b) are his own signature and signature found on the Ex.P12(a) is his father signature. He deposed that, he know reading and writing kannada language and prior to putting is signature on Ex.P11, he after understand the contents written on the Ex.P11 and put his signature. It is true that, till today, he has not taken any legal action against the Peenya police station by alleging that, Ex.P1 and Ex.P2 have forcible given to the complainant at the instance of the Peenya Police station. It is true that, signature found on the Ex.P14(a) is his own signature. It is true that, he has 10 CC No.6059/2016 not given stop payment instruction to his banker by alleging that, Ex.P1 and Ex.P2 the complainant has forcibly taken before the Peenya Police Station. It is true that, his father was received an amount of Rs.30,000/- from the complainant through self-cheque. He do not know whether his father was encashed an amount of Rs.30,000/- from the complainant bank account through self-cheque on 09.04.2015. It is true that, as per the undertaken given by the accused, he has not paid remaining balance an amount of Rs.40,000/-. It is true that, he has not gave reply notice to the complainant, even though, he was received the legal notice issued by the complainant. It is true that, Ex.P1 and Ex.P2 are given before the Peenya Police station and in that statement Ex.P1 and Ex.P2 are mentioned and those cheques have been given by him on behalf of his father.
12. On perusal of the averments made in the complaint, evidence and coupled with the documents produced by the respective parties. There is no dispute that, both were and are very well known to each other. There is no dispute that, prior to filing of the present complaint, the complainant has complied all the necessary ingredients under Section 138 of N.I.Act., and even after receipt of the legal the accused has failed to gave reply notice. There is no dispute that, Ex.P1 and Ex.P2 cheques are belonging to his bank account and the signature found on the Ex.P1(a) and Ex.P2(a) are his own signature.
11 CC No.6059/201613. It is specific defence taken by the accused during the course of his evidence and during the course cross of PW-1 is that, his father was only due an amount of Rs.90,000/- from the complainant and for payment of the due amount, he was paid an amount of Rs.50,000/- to the complainant before the police station and wherein, he has undertaken to repay the remaining balance an amount of Rs.40,000/- and subsequently, he was not paid the remaining amount of Rs.40,000/- to the complainant as per undertaken given by him before the police station. If really, his father was not at all received total amount of Rs.1,80,000/- from the complainant and he was not at all issued Ex.P1 and Ex.P2 for the discharge the said amount in question to the complainant and he was only borrowed the an amount of Rs.90,000/- from the complainant and out of the said amount, he was already paid an amount of Rs.50,000/- by way of cash to the complainant and he was liable to remaining an amount of Rs.40,000/- only to the complainant. To substantiate the same, he ought to have challenged the cognizance taken by this Court, he ought to have lodged either criminal complaint or private complaint against the complainant, he ought to have gave reply notice, he ought to have gave stop payment instruction to her banker. 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 cross of PW-1 and during the course of his evidence.
12 CC No.6059/201614. It is specific case of the complainant is that, he was advanced an amount of Rs.1,80,000/- to the complainant and out of the said amount, an amount of Rs.1,10,000/- he was advanced by way of cheque and to substantiate the same, he was produced his bank account pass book and same is marked and remaining an amount of Rs.70,000/-, he was paid by way of cash and for discharge the loan in question, the accused has issued Ex.P1 and Ex.P2 and subsequently, the accused has paid an amount of Rs.50,000/- by way of cash out of the borrowed loan amount of Rs.1,80,000/- as per averments stated by the complainant. Therefore, it can be presumed that, the accused is liable an amount of Rs.1,30,000/- to the complainant.
15. Therefore, it can presumed that, the complainant has proved his case by adducing cogent and corroborate evidence under Section 138 of N.I.Act., On the other hand, the accused has failed to defend his case by adducing cogent and corroborate evidence as per provision under Section 139 of N.I.Act., to rebut the claim of the complainant. It can be presumed that, the accused has issued the Ex.P1 to Ex.P2 to the complainant knowing fully well without having sufficient funds in his bank account with an intention to defeat the claim of the complainant. It can be presumed that, no any ordinary prudent man will issue signed blank cheque to any other persons without having monetary transaction between themselves. Hence, the probability of the preponderance is 13 CC No.6059/2016 higher on the side of the complainant, rather than the accused.
16. 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 his 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 cheque 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.P1 and Ex.P2 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. In this context I am relying the citation reported in AIR 2009 NOC 404 (Kerala) in Babu V/s. K.J. Joseph. It is argued that, it is evident from Section 356(6) of Cr.P.C., that, in case of judgment is one of acquittal or fine only. It is not necessary for personal presence of the accused to receive the copy of the judgment. Hence, in this case also in the absence of the accused, the Court will pass the judgment.
17. Hence, in the light of the above observation, the complainant has successfully proved that, the accused has 14 CC No.6059/2016 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.P1 and Ex.P2 to the complainant for the legally recoverably debt, but as per averments made in the complaint, the complainant has specifically stated that, he has advanced hand loan an amount of Rs.1,80,000/- to the accused and out of that amount, the accused has paid an amount of Rs.50,000/- to him and thereby, considering the version of the complainant, the accused is liable to pay an amount of Rs.1,30,000/- to the complainant. Therefore, I answer the point No.1 partly in the affirmative.
18. Point No.2 :- In view of my findings on Point No.1 partly 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.
The accused shall pay a fine of
Rs.1,32,000/-. 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.1,30,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of 15 CC No.6059/2016 Rs.2,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands cancelled.
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 19th day of March 2018).
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 Shekar List of documents exhibited on behalf of the complainant:
Ex.P.1 & 2 Two cheques
Ex.P.1(a) & 2(a) Signatures of the accused
Ex.P.3 & 4 Two bank endorsements
Ex.P.5 & 6 Two bank counter-foils
Ex.P.7 The office of the legal notice
Ex.P.8 The postal receipt
Ex.P.9 The postal acknowledgment
Ex.P.10 The copy of the complaint
Ex.P.11 The statement of accused
Ex.P.12 The statement of father of the accused
Ex.P.13 The copy of the acknowledgment issued by
the police
Ex.P.14 The copy of the letter issued by the
complainant to the accused
Ex.P.14(a) & (b) Signature of the complainant and accused
Ex.P.15 Bank passbook
16 CC No.6059/2016
Ex.P.15(a) to (c) Relevant entries in Ex.P15 List of witnesses examined on behalf of the accused :
DW.1 Siddarath .B.S. List of documents exhibited on behalf of the accused :
NIL XII Addl. Chief Metropolitan Magistrate, Bengaluru City.17 CC No.6059/2016
19.03.2018.
Complainant : LSV Accused : ABN 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.1,32,000/-. 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.1,30,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of Rs.2,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands cancelled.
Free copy issued to the accused.
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
18 CC No.6059/2016 19 CC No.6059/2016Heard Inference 20 CC No.6059/2016