Bangalore District Court
Sri. Sunil Sanjay vs Sri. Basavaraj.S on 26 August, 2019
1 C.C.No.4365/2019 J
THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated:- This the 26th day of August, 2019
Present: SRI.S.B.HANDRAL, B.Sc., L.L.B(SPL).,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.4365/2019
Complainant : Sri. Sunil Sanjay,
Rep. By his GPA Holder
Sri.M.V. Anoop Kumar,
Aged about 35 years,
Having office at No.2,
Anoop Kumar Associates,
1st Floor, SVK Building,
3rd Main Road,
Near old Mathikere Bus Stop,
Mathikere,
Bengaluru -560 054.
(By Sri. Anoop Kumar Associates,
and others, Advs.,)
- Vs -
Accused : Sri. Basavaraj.S,
S/o. Late. Shivappa,
Aged about 68 years,
Residing at No.315,
4th Cross Road, Guttha,
Dr. Ambedkar Nagar,
Whitefield,
Bengaluru - 560 066.
(Rep. by Sri. R.A. Devanand., Adv.,)
2 C.C.No.4365/2019 J
Case instituted : 16.11.2018
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 26.8.2019
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable U/sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, he is a GPA holder for his principal/his client Mr.Sunil Sanjay, vide GPA dated:-31.7.2018. The accused along with his wife Smt. Sujatha and his son Mr.B.Shivkumar had availed hand loan on various occasions from father of the complainant i.e. Principal/his client i.e. late Mr.Sailesh Sham @ Sanjay Satish and had leased out 9 houses bearing house No.492 Built in Site No.232, 10th Cross, Ambedkar Nagar, Pattandaru Gutta, Whiefiled, Bengaluru for a total lease amount of Rs.45 Lakhs to Late Mr. Sailesh Sham @ Sanjay Satish, Mr. Sunil Sanjay and Smt. Sanjana, W/o. Mr. Sailesh Sham @ 3 C.C.No.4365/2019 J Sanjay Satish. The Principal/Mr.Sunil Sanjay narrated to the complainant that, due to the ill health of Mr. Sailesh Sham @ Sanjay Satish and as complainant's principal/Mr.Sunil Sanjay and his mother Smt. Sanjana had shifted to Newzealand, the accused was asked to collect the monthly rent from the tenants of Mr. Sailesh Sham @ Sanjay Satish i.e. Complainant principal's father, whom the accused had rented out and had agreed to deposit Rs.1,25,000/= monthly to the Andhra Bank Account of Complainants principal father Mr.Sailesh Sham @ Sanjay Satish, bearing Account No.149110100063413.
3. The complainant further submitted that, on 2.4.2018 Mr.Sailesh Sham @ Sanjay Satish was murdered and the case was registered in K.R.Puram police station vide Crime No.200/2018 and when the complainant principal who was in Bengaluru after attending the cremation rights of his deceased father contacted the accused to receive the monthly rent, for which, the Accused and his wife Smt. Sujatha and his son Mr.Shivakumar insisted the complainant's principal that, the accused and all his 4 C.C.No.4365/2019 J family members will settle the lease payment once for all, total amount to Rs.45 Lakhs and issued three post dated cheque dated: 29.8.2018 and assured the complainants principal and same will be honoured, out of which, one cheque bearing No.000215 amount to Rs.20 Lakhs drawn on Andhra Bank, Whitefield Branch, Bengaluru issued in favour of the complainants principal/Mr.Sunil Sanjay. As per the assurances of the accused, when complainant principal presented the said cheque for encashment through his banker, the same came to be returned dishonoured as "Funds insufficient" vide bank endorsement dated:-30.8.2018. Thereafter he intimated the same to you, but you started giving evading answers, hence left with no other alternative the complainant as a GPA holder to complainant's principal/complainant's client issued a legal notice dated: 28.9.2018 through RPAD calling upon him to pay the cheques amount to him within 15 days from the date of receipt of the said legal notice, despite the service of the same, the Accused failed to reply for the notice and also neither bothered to repay the dishonoured cheque amount to him. Hence the present case is filed by the Complainant against the 5 C.C.No.4365/2019 J accused praying that the Accused be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
4. Before issuing process against the accused, the GPA holder for complainant's principal Mr. Sunil Sanjay, of the Complainant is examined as PW.1 and he has filed his affidavit-in-lieu of examination- in-chief, in which, he has reiterated the averments of the complaint. In support of his oral evidence, P.W.1 has relied upon the documentary evidence as per Ex.P.1 to P.10 i.e, the certified copy of the General Power of Attorney dated:- 31.7.2018 as per Ex.P.1, Original Cheque dated:- 29.8.2018 as per Ex.P.2, the signature on the said cheque identified by P.W.1 as that of the accused as per Ex.P.2(a), the Bank Challan as per Ex.P.3, the Bank Memo as per Ex.P.4, the office copy of the Legal Notice as per Ex.P.5, the Postal Receipt as per Ex.P.6, the postal acknowledgement as per Ex.P.7, the Track Result as per Ex.P.8, Pass book of Andhra bank as per Ex.P.9, the complaint as per Ex.P.10 and the signature found on the said complaint as that of the Complainant as per Ex.P.10(a).
6 C.C.No.4365/2019 J5. Prima-facie case has been made out against the accused and summons was issued against the accused in turn he has appeared before the court and got enlarged on bail and the substance of the accusation has been read over to him, to which he pleaded not guilty and claims to be tried and also stated that he has defence to make.
6. In view of the principles of law laid down and as per the directions of the Hon'ble Apex Court in the decision of the Indian Bank Association Vs., Union of India, reported in 2014 (5) SCC 590, after recording the plea of the accused, as he intended to set out his defence, the case was posted for the cross-examination of PW.1.
7. It is relevant here to mention that when the case is posted for cross-examination of PW.1, the GPA holder of the complainant/PW.1 and the accused by representing by their respective counsels have filed Joint Memo before the court on 21.8.2019 and both sides prayed to pass the judgment by taking into consideration of the terms of the joint memo.
7 C.C.No.4365/2019 J8. The contents of the joint memo and submissions made by both parties and their respective counsels are taken into consideration and perused the other records available on the record, the following points that are arise for consideration:
1. Whether the complainant proves that the accused has issued cheque i.e cheque for Rs.20,00,000/= bearing No.000215 dated: 29.8.2018 drawn on Andhra Bank, Whitefield Branch, Bengaluru to discharge legally recoverable debt to the complainant and when the complainant has presented a cheque for encashment through his banker but the said cheques have been dishonoured for the reasons "Funds Insufficient" on 30.8.2018 and the complainant issued legal notice to the accused on 28.9.2018 and inspite of it the accused has not paid the cheques amount within prescribed period there by the accused has committed an offence U/s.138 of the Negotiable instruments Act?
2. What Order?
9. The above points are answered as under:
Point No.1: In the Affirmative Point No.2: As per final order for the following:8 C.C.No.4365/2019 J
REASONS
10. Point No.1: Before appreciation of the facts and oral and documentary evidence in the present case, it is relevant to mention that, under criminal jurisprudence prosecution is required to establish guilt of the accused beyond all reasonable doubts however, a proceedings U/s.138 of N.I.Act is quasi criminal in nature. In these proceedings proof beyond all reasonable doubt is subject to presumptions as envisaged U/s.118, 139 and 146 of N.I.Act. An essential ingredient of Sec. 138 of N.I.Act is that, whether a person issues cheque to be encashed and the cheque so issued is towards payment of debt or liability and if it is returned as unpaid for want of funds, then the person issuing such cheque shall be deemed to have been committed an offence. The offence U/s.138 of N.I. Act pre-supposes three conditions for prosecution of an offence which are as under:-
1. Cheque shall be presented for payment within specified time i.e., from the date of issue or before expiry of its validity.9 C.C.No.4365/2019 J
2. The holder shall issue a notice demanding payment in writing to the drawer within one month from the date of receipt of information of the bounced cheque and
3. The drawer inspite of demand notice fails to make payment within 15 days from the date of receipt of such notice.
If the above said three conditions are satisfied by holder in due course gets cause action to launch prosecution against the drawer of the bounced cheque and as per Sec.142(b) of the N.I. Act, the complaint has to be filed within one month from the date on which cause of action arise to file complaint.
11. It is also one of the essential ingredients of Sec. 138 of N.I.Act that, a cheque in question must have been issued towards legally recoverable debt or liability. Sec. 118 and 139 of N.I.Act envisages certain presumptions i.e.,U/s.118 a presumption shall be raised regarding 'consideration' 'date' 'transfer' 'endorsement' and holder in course of Negotiable Instrument. Even U/Sec.139 of the Act 10 C.C.No.4365/2019 J are rebuttable presumptions shall be raised that, the cheque in question was issued regarding discharge of a legally recoverable or enforceable debt and these presumptions are mandatory presumptions that are required to be raised in cases of negotiable instrument, but the said presumptions are not conclusive and or rebuttable one, this proportion of law has been laid down by the Hon'ble Apex Court of India and Hon'ble High Court of Karnataka in catena of decisions. In this regard, it is relevant here to refer a decision reported in "2001 Cr.L.J Page 4647 S.C in a case of "Hiten P Dalal Vs. Bratindranath Banerjee" "2001 Part 8 SCC 458 between K.N.Beena Vs. Muniappan and another", "AIR 1999 SC 3762 between K. Bhaskaran Vs. Vaidhan Balan", "AIR 2010 SC 1898 between Rangappa Vs. Mohan", "2001 AIR KAR .HCR 2154 between M/s.Devi Tyres Vs. Navab Jan", "AIR 2018 SC 3173 between Kishan Rao Vs. Shankaragowda" and "AIR 2018 SCC 3601 between T.P.Murugan (Dead) Thr. LRs Vs. Bhojan". In the above said decisions the Hon'ble Apex Court of India and Hon'ble High Court of Karnataka held that, presumption is to be raised by 11 C.C.No.4365/2019 J virtue of which, it is for the accused to show that, there was no legally recoverable or enforceable debt or liability or that debt or liability was not legally enforceable.
12. The Hon'ble High court of Karnataka in the above said reported decision i.e., 2001 AIR KAR. HCR 2154 at para No.6 held that, issuance of cheque itself was adequate proof of existence of debt or liability. In another decision reported in 2011 ACD 1521 (KAR) between Smt.Usha Suresh Vs. Shashidharan, the Hon'ble High Court held that, issuance of cheque and signature is accepted and admitted by the accused and initial presumptions has to be raised in favour of the complainant that, cheque in question was issued towards legally recoverable debt though presumptions being rebuttable such rebuttable presumption has to be proved by the accused by placing satisfactory evidence but by giving mere explanation, the accused cannot get away from the final action. The same principles of law has been held in another decision reported in 2011 ACD 1412 (KAR) between N.Hasainar Vs. M.Hasainar S/o. Imrahim" in the 12 C.C.No.4365/2019 J said decision it is held that, U/s.118 and 139 of N.I. Act presumption is to be drawn in favour of the complainant that the accused issued cheque towards repayment of legally recoverable debt or other liabilities. The Hon'ble High Court of Karnataka in a decision reported in "2001 AIR KAR HCR 2154 i.e., between M/s. Devi Tyres Vs. Navab Jan" at para No.6 held that the duty of the prosecuting authority ends when it is demonstrated to the criminal court the cheque was issued, it was dishonoured thereafter the amount was not paid despite of service of notice within prescribed period of time. Therefore from the above principles of law laid down by the Hon'ble Apex Court of India and Hon'ble High Court to Karnataka, it is for the complainant to discharge his initial burden that the accused has issued a cheque in question and it was dishonoured and thereafter the accused has not paid the amount despite of service of notice within a stipulated time.
13. In the present case, the GPA holder of the complainant himself examined as PW.1 by filing his affidavit evidence in lieu of oral evidence, wherein he has reiterated the complaint averments i.e. about 13 C.C.No.4365/2019 J issuance of cheques by the accused, presentation of cheques, dishonour of cheques, for want of sufficient funds. It is further testified by the complainant that, after receipt of memo of the bank, he has issued a legal notice on 28.9.2018 through his advocate by registered post and after the service of the notice, the Accused failed to reply for the notice and also neither bothered to repay the dishonoured cheque amount. In support of oral evidence, the certified copy of the General Power of Attorney dated:- 31.7.2018 as per Ex.P.1, Original Cheque dated:- 29.8.2018 as per Ex.P.2, the signature on the said cheque identified by P.W.1 as that of the accused as per Ex.P.2(a), the Bank Challan as per Ex.P.3, the Bank Memo as per Ex.P.4, the office copy of the Legal Notice as per Ex.P.5, the Postal Receipt as per Ex.P.6, the postal acknowledgement as per Ex.P.7, which discloses that, the notice issued by the complainant was served on the accused, On careful perusal of the documents produced by the complainant i.e., Ex.P.1 to P.7 it established that, the complainant has complied the procedural requirements as contemplated u/s 138 of the Negotiable Instrument Act.
14 C.C.No.4365/2019 J14. It is relevant here to mention that, the learned counsel for the defence has not cross examined the GPA holder of the complainant/PW.1. Hence the oral and documentary evidence of the complainant remained as unchallenged. It is settled law that, the unchallenged evidence of the witness cannot be discarded unless it is rebutted. Therefore in view of the unchallenged oral and documentary evidence of the complainant it can be held that the Accused has not disputed the cheque belongs to him and his signature is appearing on the said cheque and he has issued the said cheque to the complainant towards discharge of his legally recoverable debt infavour of the complainant. In this regard it is relevant here to refer a decision reported in 2003(1) SCC 240 in the case of Sarwan Singh Vs. State of Punjab wherein the Hon'ble Apex Court of India held that, "In respect of appreciation of the evidence in criminal trial that, generally whenever the deponent declines to avail himself of the opportunity to put his cross-examination, in must follow that the evidence tendered on that issue ought to be accepted". Hence by applying the said principles of law to the facts and circumstances of 15 C.C.No.4365/2019 J the present case, it can be held that, whatever the version of the complainant i.e., PW.1 is to be accepted in toto as true because admittedly the accused has not cross-examined the PW.1 or denied the contents of the affidavit of the PW.1 and documents produced by the complainant in support of his oral evidence.
15. It is also relevant here to mention that, the accused and the complainant have filed joint memo on 21.8.2019 stating that they have amicably entered into compromise in this case by the advise of well wishers and the complainant and accused voluntarily submitted the said joint memo and it is duly signed by them and their respective counsels, the accused has admitted the case of the complaint as well as the issuance of cheque in question. On an enquiry, the complainant and accused submitted before the court that they are aware of the terms and conditions of the joint memo and accepted the same with free and voluntarily.
16. It is also seen from the terms of the joint memo, the accused along with his son have agreed 16 C.C.No.4365/2019 J to pay an amount of Rs.10,50,000/= (Rupees Ten Lakhs and Fifty Thousand Only) to the complainant towards the full and final settlement and out of which Rs.5,00,000/= (Rupees Five Lakhs Only) was already been paid to the complainant during the pendency of the above case and balance of Rs.5,50,000/= (Rupees Five Lakhs and Fifty Thousand Only) will be paid in two installments and the accused has agreed to pay 1st Installment of Rs.1,50,000/= (Rupees One Lakh and Fifty Thousand Only) and issued post dated cheque bearing No.442905 dated:-19.8.2019 infavour of Mr. Sunil Sanjay drawn on City Union Bank, Whitefield Branch, Bengaluru and 2nd installment of Rs.4 Lakhs (Rupees Four Lakhs only) and issued post dated cheque bearing No.000043 dated:-20.9.2019 infavour of Mr.Sunil Sanjay drawn on City Union Bank, Whitefield Branch, Bengaluru and also agreed that, if the said amount issued by way of post dated cheques are not encashed, the complainant is at liberty to recover the same in accordance with law.
17 C.C.No.4365/2019 J17. As the terms and conditions of the joint memo is accepted by the complainant and the accused, in the ends of justice it is just and proper to accept the same and permit the accused to pay the admitted amount or settled amount to the complainant as agreed between the complainant and the advocate in the joint memo. Under these circumstances, the above point is answered in the Affirmative.
18. Point No.2: In the light of discussions made in the above point and as per the terms of joint memo the accused is liable to pay amount to the complainant as agreed by him hence in the ends of justice it is just and proper to pass the following :-
ORDER Acting U/sec.264 of Cr.P.C. the accused is convicted for the offence punishable U/sec.138 of Negotiable Instruments Act.
The accused is sentenced to pay a fine of Rs.10,50,000/= (Rupees Ten Lakhs and Fifty Thousand Only).18 C.C.No.4365/2019 J
The said amount of Rs.10,50,000/= (Rupees Ten Lakhs and Fifty Thousand Only)
shall be paid to the complainant as compensation towards the full and final settlement, out of which, for Rs.5 Lakhs (Rupees Five Lakhs only) already been paid to the complainant during the pendency of the case and balance amount of Rs.5,50,000/= (Rupees Five Lakhs and Fifty Thousand only) shall be paid in two installments, accused has agreed to pay 1st Installment of Rs.1,50,000/= (Rupees One Lakh and Fifty Thousand only) and issued post dated cheque bearing No.442905 dated:-19.8.2019 and 2nd installment of Rs.4 Lakhs (Rupees Four Lakhs only) and issued post dated cheque bearing No.000043, dated:-20.9.2019 infavour of Mr. Sunil Sanjay drawn on City Union Bank, Whitefield Branch, Bengaluru.
The Joint Memo filed by the complainant and the accused shall form part and parcel of this order.
In default the Accused shall under go simple imprisonment for a period of (3) three months for the offence punishable U/sec.138 of N.I.Act.
19 C.C.No.4365/2019 JThe Bail bond and surety bond of the accused stands cancelled.
Office is directed to furnish free certified copy of this judgment to the Accused incompliance of Sec.363(1) of Cr.P.C.
(Directly dictated to the Stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open Court on this the 26th day of August 2019).
(SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri.M.V.Anoop Kumar; ( GPA Holder of Complainant)
2. List of documents exhibited on behalf of the Complainant:-
Ex.P-1 : Certified copy of the General Power of Attorney Ex.P-2 : Original Cheque; Ex.P-2(a) : Signature of the Accused;
Ex.P-3 : Bank Challan;
Ex.P-4 : Bank Memo;
Ex.P-5 : office copy of the Legal Notice;
Ex.P-6 : Postal Receipt;
Ex.P-7 : Postal Acknowledgement.
Ex.P-8 : Track Result;
20 C.C.No.4365/2019 J
Ex.P-9 : Pass Book of Andhra bank;
Ex.P-10 : Complaint;
Ex.P-10(a) : Signature of the complainant.
3. List of witness/s examined on behalf of the Accused:-
-Nil -
4. List of documents exhibited on behalf of the Accused:-
-Nil -
(SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.21 C.C.No.4365/2019 J
26.8.2019 Judgment pronounced in the open court vide separate order.
ORDER Acting U/sec.264 of Cr.P.C. the accused is convicted for the offence punishable U/sec.138 of Negotiable Instruments Act.
The accused is sentenced to pay a fine of Rs.10,50,000/= (Rupees Ten Lakhs and Fifty Thousand Only).
The said amount of Rs.10,50,000/= (Rupees Ten Lakhs and Fifty Thousand Only) shall be paid to the complainant as compensation towards the full and final settlement, out of which, for Rs.5 Lakhs (Rupees Five Lakhs only) already been paid to the complainant during the pendency of the case and balance amount of Rs.5,50,000/= (Rupees Five Lakhs and Fifty Thousand only) shall be paid in two installments, accused has agreed to pay 1st Installment of Rs.1,50,000/= (Rupees One Lakh and Fifty Thousand only) and issued post dated cheque bearing No.442905 dated:-19.8.2019 and 2nd installment of Rs.4 Lakhs (Rupees Four Lakhs only) and issued post dated cheque bearing No.000043, dated:-20.9.2019 infavour of Mr. 22 C.C.No.4365/2019 J Sunil Sanjay drawn on City Union Bank, Whitefield Road, Bengaluru.
The Joint Memo filed by the complainant and the accused shall form part and parcel of this order.
In default the Accused shall under go simple imprisonment for a period of (3) three months for the offence punishable U/sec.138 of N.I.Act.
The Bail bond and surety bond of the accused stands cancelled.
Office is directed to furnish free certified copy of this judgment to the Accused incompliance of Sec.363(1) of Cr.P.C.
XVI ACMM, B'luru.