Bangalore District Court
Sri. B.S. Nagaraj vs Sri. N. Krishna Murthy on 19 June, 2015
IN THE COURT OF XVI ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE, BENGALURU CITY
Dated this the 19th day of June 2015
Present: Sri B. Narayanappa, M.A., LL.B.,
XVI Addl. Chief Metropolitan Magistrate,
Bengaluru.
JUDGEMENT U/S 355 Cr.P.C.,
Case No. : C.C. No.24387/2011
Complainant : Sri. B.S. Nagaraj,
S/o Late D.Shama Rao,
Aged about 60 years,
R/at No.316/G, 9th "A" Main,
40th Cross, 5th Block, Jayanagar,
Bengaluru 560 041.
- VS -
Accused 1. Sri. N. Krishna Murthy,
Major
2. Smt. K. Mamatha
W/o N. Krishna Murthy,
Major,
Both are R/at No. 205-D,
6th Main, 27th Cross,
3rd Block, Jayanagar,
Bengaluru 560 011.
And also as Chairman & Secretary of:
3. Sri. Sigandooreshwari Educational
Trust, No. 21, 22, 23, NH 206, Ullur,
Sagar 577 401, Shimoga District.
16th ACMM
C.C.No.24387/2011
2
Also at:
The Sagar Gangothri College of B.Ed.,
S.P.M. Road, Sagar 577 401,
Shimoga District.
Offence complained of U/s 138 of N.I. Act
Plea of accused No.1 and 2 Pleaded not guilty
Final Order Accused No.1 & 2 are convicted
Date of order 19.06.2015
J U D G M E N T
This is a private complaint filed by the complainant u/s 200 of Cr.P.C., r/w 138 of N.I. Act praying to take cognizance of the offence u/s 138 of N.I. Act against the accused persons and accused persons be punished in accordance with law and compensate the complainant u/s 357 of Cr.P.C.
2. The brief facts of the case of the complainant is that the accused No.3 is the registered trust. The accused No.1 and 2 are the Chairman and the Secretary of the accused No.3. Under the accused No.3, the accused No.1 and 2 have been running Educational Institutions at Ullur, Sagar, Shimoga District from primary school to colleges like Sagar Gangotri College of B.Ed., Nursing and other many courses and the accused No.1 and 2 are the husband and wife and they have been residing at Bengaluru. In the month of February 2011, accused No.1 and 2 have approached the complainant pleading that, they are in need of financial help as an emergency situation arose to 16th ACMM C.C.No.24387/2011 3 the tune of Rs.35 lakhs, which is short in the account to show the required amount in the trust account to complete certain formalities required by the Regulatory Statutory Council in order to continue to conduct the certain courses. Considering the requests of the accused and reposing confidence upon accused No.1 and 2, the complainant had transferred a sum of Rs.35 lakhs through RTGS vide cheque No.665936 dated 7.2.2011 drawn on Karnataka Bank Ltd. The accused persons had promised that they would pay back the said amount within a week, as soon as they complete the formalities, but, they failed to keep up their promise. Hence, the complainant requested the accused persons to pay back the amount, therefore, the accused persons issued cheque dated 13.4.2011 bearing No. 184976 drawn on Canara Bank, Sagar, in favour of the complainant, but, on presentation of the said cheque through his account maintained in Karnataka Bank at Bengaluru, which was returned unpaid for the reasons "funds insufficient" in the account of the accused by an endorsement dated 19.4.2011. Thereafter, the complainant requested the accused persons to pay the cheque amount through telephonically and personally, but, they dodged the issue. Hence, on 13.5.2011, complainant got issued legal notice to the accused persons by registered post, the same was served upon the accused persons, inspite of it, the accused persons neither paid the cheque amount nor replied the notice and thereby accused persons have committed an offence u/s 138 of N.I. Act. Hence, this complaint.
16th ACMM C.C.No.24387/2011 4
3. After registering this case, sworn statement of the complainant was recorded and a criminal case has been registered against the accused persons for the offence u/s 138 of N.I. Act and the summons was issued to the accused persons. The accused persons after service of summons upon they put their appearance before this court through their counsel and they were released on bail.
4. The prosecution papers were furnished to them. Thereafter plea of the accused persons were recorded, for which, they did not plead guilty and claimed to be tried and then the case was posted for the evidence of the complainant.
5. The complainant in order to prove his case, got filed his affidavit by way of examination-in-chief and the same was taken as PW-1 and got marked Ex.P1 to P25 and closed his side. After closure of the evidence of the complainant side, the statement of the accused persons as required u/s 313 of Cr.P.C. have been recorded. The accused persons denied the incriminating evidence read over to them and they submit that they would lead defence evidence on their behalf. Accordingly, the accused No.2 got examined herself as DW-1 and not got marked any documents and closed their side.
6. After closure of defence evidence, I have heard the arguments of complainant counsel. The advocate for accused not canvassed arguments on behalf of the accused persons.
16th ACMM C.C.No.24387/2011 5
7. On the basis of the materials placed on record, the points that arise for the consideration of the court are as follows:
1. Whether the complainant proves beyond all reasonable doubt that the accused has committed an offence punishable u/s 138 of N.I. Act?
2. What order?
8. My findings on the above said points are as follows:
Point No.1: In the affirmative Point No.2: As per final order, for the following:-
REASONS
9. Point No.1: It is the specific case of the complainant that the accused No.3 is the registered trust, the accused No.1 and 2 are the Chairman and the Secretary of the accused No.3. Under the accused No.3, accused No.1 and 2 have been running Educational Institutions at Ullur, Sagar, Shimoga District from primary school to colleges like Sagar Gangotri College of B.Ed., Nursing and other many courses and the accused No.1 and 2 are the husband and wife and they have been residing at Bengaluru. In the month of February 2011, accused No.1 and 2 have approached the complainant pleading that, they are in need of financial help as an emergency situation arose to the tune of Rs.35 lakhs, which is short in the account to show the required amount in the trust account to complete certain formalities required by the Regulatory Statutory Council in order to continue to 16th ACMM C.C.No.24387/2011 6 conduct the certain courses. Considering the requests of the accused and reposing confidence upon accused No.1 and 2, the complainant had transferred a sum of Rs.35 lakhs through RTGS vide cheque No.665936 dated 7.2.2011 drawn on Karnataka Bank Ltd. The accused persons had promised to pay back the said amount within a week, but, they failed to keep up their promise. Hence, the complainant requested the accused persons to repay the loan amount, therefore, the accused No.1 and 2 issued cheque dated 13.4.2011 bearing No. 184976 drawn on Canara Bank, Sagar, in favour of the complainant, but, on presentation of the said cheque through his account maintained in Karnataka Bank at Bengaluru, which was returned unpaid or the reasons "funds insufficient" as per the bankers memo dated 19.4.2011. Thereafter, the complainant requested the accused persons to pay the cheque amount through telephonically and personally, but, they dodged the issue. Hence, on 13.5.2011, complainant got issued legal notice to the accused persons by registered post, the same was served upon the accused persons, inspite of it, the accused persons neither paid the cheque amount nor replied the notice. Hence, the complainant has constrained to file this complaint.
10. On the other hand, accused No.1 and 2 being the Chairman and Secretary of trust of accused No.3 and they are husband and wife. It is the defence of the accused No.2 that she does not know the money transaction held in between the complainant and the accused No.1. She does not know the complainant had paid an amount 16th ACMM C.C.No.24387/2011 7 of Rs.35 lakhs to accused No.1, but, she has stated that accused No.1 told her that he had obtained a sum of Rs.35 lakhs from the complainant, but, she had not seen that accused No.1 had obtained loan of Rs.35 lakhs from the complainant.
11. PW-1/complainant in his affidavit evidence, he has reiterated and reaffirmed the contents of the complaint and got marked Ex.P1 to P25. Ex.P-1 is the Original Cheque. Ex.P2 is the Bank memo, Ex.P3 to P8 are the Copies of legal notice, Ex.P9 to P14 are the postal receipts, Ex.P15 to P20 are the postal acknowledgement, Ex.P21 is the Original complaint, Ex.P22 to P24 are the statement of accounts and Ex.P25 is the letter.
12. PW-1 in his cross-examination led by the defence counsel, he has stated that he is doing granite export and marble import and township business and also working as Power Project consultant and he has studied up to M.Sc. In front of his office, house of accused is situated, as such, he knows the accused since 7 - 8 years, through his bank account he had transferred money by way of RTGS to the account of the accused. From the cross-examination of PW-1, it is crystal clear that the learned defence counsel has not at all disputed the transferring of amount of Rs.35 lakhs by the complainant through RTGS to the account of the accused.
13. DW-1/accused No.2 in her evidence, she has stated that she knows the complainant, there is no connection in between them and 16th ACMM C.C.No.24387/2011 8 the accused No.3 the trust and she does not know the money transaction held in between the complainant and accused No.1 and she does not know the complainant had paid a sum of Rs.35 lakhs to accused No.1, but, witness voluntarily says that accused No.1 told her that he had obtained a sum of Rs.35 lakhs from the complainant, but, she had not seen that the accused No.1 had obtained a sum of Rs.35 lakhs from the complainant. Accused No.1 is running accused No.3 trust.
14. DW-1, in her cross-examination led by the complainant counsel, she has stated that she is residing at 3rd Block Jayanagar, in front of their house, the office of the complainant is situated. Accused No.1 is the Chairman of trust of accused No.3 and she was the Secretary of the trust of accused No.3 during the year 2007 to 2008. She denied the suggestion that herself and accused No.1 went to the office of the complainant and asked money of Rs.35 lakhs from the complainant, as such, the complainant transferred an amount of Rs.35 lakhs through his account by way of RTGS to the trust account of accused No.3. She admitted the suggestion that Ex.P1, the cheque is belongs to the account of trust of accused No.3, on which the accused No.1 had signed. The signature of accused No.1 is at Ex.P1(a). She used to sign on the cheques of the trust of accused No.3, while she was working as Secretary and she clearly admits the suggestion that herself and accused No.1 had signed the disputed cheque Ex.P1, their signatures are at Ex.P1 (a) and P1(b) and she further clearly 16th ACMM C.C.No.24387/2011 9 admits the suggestion that the complainant had filed a Civil Case in O.S. No.30/2012 against the trust of accused No.1.
15. At this juncture, it is relevant to mention Sec. 138 of N.I. Act, it reads thus:
"Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for (a term which may be extended to two year), or with fine which may extend to twice the amount of the cheque, or with both;
Provided that nothing contained in this section shall apply unless-
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, (within thirty days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.
16th ACMM C.C.No.24387/2011 10 At the same time, it is relevant to mention Section 139 of N.I. Act, it reads thus:
"It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability."
In the decisions reported in AIR 2010 Supreme Court page 3897 it is held that:
"The presumption under Section 139 of the Act is a presumption of law, it is not a presumption of fact. This presumption has to be raised by the Court in all the cases once the factum of dishonour is established. The onus of proof to rebut this presumption lies on the accused. The standard of such rebuttal evidence depends on the facts and circumstances of each of case. Such evidence must be sufficient, cogent and should prove beyond any reasonable doubt. Therefore, a mere explanation is not enough to repel this presumption of law".
In cases of u/s 138 of Negotiable Instruments Act, the burden of proving the ingredients of Sec. 138 of N.I. Act is heavily lies upon the complainant. If he is able to prove the ingredients of Sec. 138 of N.I. Act he will succeed the case otherwise no.
16. It is not in dispute that the accused No.1 and 2 being the husband and wife respectively running trust of accused No.3 under the name and style as Sri Sigandureswari Educational Trust at Ullur, Sagar Taluk, Shimoga district and it is also not in dispute that the accused No.1 is the Chairman and accused No.2 is the Secretary of accused No.3 trust and it is also not in dispute that accused no.1 and 2 16th ACMM C.C.No.24387/2011 11 are residing at 3rd Block Jayanagar, Bengaluru, in front of their house, the office of the complainant is situated, as such, it is not in dispute that the complainant and accused persons are acquainted with each other since 7 - 8 years and it is not in dispute that the disputed cheque Ex.P1 is belongs to the trust of accused No.3, which bears signatures of accused No.1 and 2. DW-1/accused No.2 in her evidence has clearly stated that accused No.1 told her that he had obtained a sum of Rs.35 lakhs from the complainant. From this admitted fact of DW-1, it is crystal clear and it is undisputed fact that the accused persons had obtained a sum of Rs.35 lakhs from the complainant. It is the specific case of the complainant that in the month of February 2011, accused No.1 and 2 had approached him and requested financial help of Rs.35 lakhs, which amount is required by accused No.1 and 2 in the trust account to complete certain formalities required by the Regulatory Statutory Council in order to continue to conduct the certain courses. Considering the request of accused No.1 and 2 and reposing confidence on accused No.1 and 2, as they are doing yeoman service to the public at large in the educational field, he had transferred a sum of Rs.35 lakhs through RTGS vide cheque No.665936 dated 7.2.2011 drawn on Karnataka Bank Ltd., to the account of accused No.3. The aforesaid contention of the complainant is supported by the documentary evidence at Ex.P22, the statement of account of Karnataka Bank Ltd., pertaining to account of the complainant, which clearly shows that on 7.2.2011, the complainant had transferred a sum of Rs.35 lakhs through RTGS to the trust of 16th ACMM C.C.No.24387/2011 12 accused No.3 vide cheque No.665936. So, from the aforesaid contention of the complainant, coupled with documentary evidence Ex.P22, it is crystal clear that on 7.2.2011, the complainant had transferred a sum of Rs.35 lakhs to the trust account of accused No.3 by way of RTGS through cheque No. 665936 and as I have already stated above, that it is undisputed facts by the accused persons that they had received a sum of Rs.35 lakhs from the complainant on 7.2.2011, which is evident from the evidence of DW-1 as DW-1/accused No.2 has clearly stated in her evidence that accused No.1 told her that he had obtained a sum of Rs.35 lakhs from the complainant and from Ex.P25, the letter written by accused No.1 in favour of the complainant, it is crystal clear that the complainant had transferred a sum of Rs.35 lakhs as hand loan through RTGS drawn on Karnataka Bank Ltd., Jayanagar 4th Block branch to the trust of accused No.3 i.e., Sri Sigandooreshwari Educational Trust, Sagar and it is also evident from Ex.P25 that for repayment of said loan, the accused had issued the disputed cheque Ex.P1. Therefore, it is crystal clear that the accused persons to discharge the loan of Rs.35 lakhs borrowed from the complainant had issued disputed cheque Ex.P1 in favour of the complainant. Therefore, the complainant came in possession of the disputed cheque Ex.1.
17. It is further case of the complainant that he had filed the suit in O.S. No.30/12 before the Senior Civil Judge & JMFC Court at Sagar against the accused persons and obtained a decree dated 16th ACMM C.C.No.24387/2011 13 15.11.2012 for Rs.35 lakhs. As per the said decree the accused persons are jointly and severally liable to pay a sum of Rs.35 lakhs with interest at 6% p.a., which is evident from the certified copy of the order passed by the Additional Senior Civil Judge & JMFC, Sagar in Execution No.6/2013 on IA's No.8. Therefore, it is crystal clear that Execution No.6/2013 is pending before the Additional Senior Civil Judge & JMFC, at Sagar, which is filed by the complainant against the accused for recovery of decreetal amount of Rs.35 lakhs with interest at 6% p.a.
18. As I have already stated above, it is not in dispute that accused persons had obtained a hand loan of Rs.35 lakhs from the complainant on 7.2.2011 and the complainant had transferred the said amount to the account of trust of accused No.3 on 7.2.2011 through Karnataka Bank Ltd., by way of RTGS vide cheque No. 665936 and to discharge the said loan, accused No.1 and 2 had issued the disputed cheque Ex.P1, but, on presentation of the said cheque by the complainant through his banker, which was returned unpaid for the reasons insufficient funds in the account of the accused, as per the bankers memo dated 19.4.2011, which is evident from Ex.P2. Therefore, the complainant got issued legal notice to the accused persons on 13.5.2011 calling upon the accused persons to pay the cheque amount, which is evident from Ex.P3 to P8 copies of legal notice, inspite of service of legal notice to accused persons, which is evident from Ex.P15 to P20, the postal acknowledgements, accused 16th ACMM C.C.No.24387/2011 14 persons neither paid the cheque amount nor replied the notice. Therefore, the complainant having no other go has filed this private complaint as per Ex.P21 against the accused persons praying to take cognizance of the offence punishable under Section 138 of N.I Act and they be punished in accordance with law.
19. On going through the complaint averments, affidavit of PW- 1 and his cross-examination and Ex.P1 to P25 and the evidence of DW- 1 and her cross-examination, it is crystal clear that the complainant before filing this complaint has fulfilled the necessary ingredients of Sec. 138 of N.I. Act. The onus of proof to rebut the presumption available to complainant u/s 139 of N.I. Act is lies upon the accused persons. The standard of such rebuttal evidence depends on the facts and circumstances of each case. Such evidence must be sufficient, cogent and should be proved beyond all reasonable doubt. The accused persons have failed to rebut the presumption available to complainant u/s 139 of N.I. Act. The cheque Ex.P1 presumed to be issued for the legally enforceable debt. On the other hand, the complainant has proved his case that accused persons have committed offence punishable u/S 138 of Negotiable Instruments Act by adducing cogent, convincing and believable evidence and by producing documentary evidence at Ex.P1 to P25. Therefore, I answer the point no.1 in the affirmative.
20. Point no.2: In view of my findings on point no.1, I proceed to pass the following:
16th ACMM C.C.No.24387/2011 15 ORDER Acting u/s 255(2) of Cr.P.C., the accused No.1 and 2 are convicted for the offence punishable u/s 138 of Negotiable Instruments Act.
The accused No.1 and 2 are jointly sentenced to pay fine of Rs.40,10,000/- (Rupees forty lakhs ten thousand only). In default they shall under go simple imprisonment for 2 (two) years each.
Out of the fine amount, of Rs.40,10,000/- a sum of Rs.40,00,000/- is ordered to be paid to the complainant by way of compensation under Section 357 of Cr.P.C. The balance amount of Rs.10,000/- (Rupees ten thousand only) shall be appropriated to State Exchequer.
The bail bond and surety bond of the accused No.1 and 2 stands cancelled.
Issue free copy of Judgment to the accused persons forthwith.
(Dictated to the stenographer, transcript thereof is computerized and printout taken by him, and then verified, and then pronounced by me in open Court on this the 19th day of June 2015).
(B.NARAYANAPPA), XVI Addl.,Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 B.S. Nagaraj
16th ACMM
C.C.No.24387/2011
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List of documents exhibited on behalf of the complainant:
Ex.P-1 Original Cheque
Ex.P-1(a) & (b) Signatures of accused No.1 & 2
Ex.P-2 Bank Memo
Ex.P-3 to P8 Copy of Legal Notice
Ex.P-9 to P14 Postal receipts
Ex.P-15 to P20 Postal acknowledgement
Ex.P-21 Original Complaint
Ex.P-22 to P24 Statement of accounts
Ex.P-25 Letter
Ex.P-25(a) Signature of accused.
List of witnesses examined on behalf of the accused:
DW.1 Mamatha List of documents exhibited on behalf of the accused:
Nill XVI ACMM., Bengaluru.