Bangalore District Court
S/O Late Papaiah vs 4. The Accused Has Put His Appearance ... on 16 March, 2022
SCH.No: 2 1 C.C No:3088/2019
IN THE COURT OF THE VI ADDL. JUDGE, COURT OF SMALL
CAUSES AND ADDL. CHIEF METROPOLITAN MAGISTRATE,
BENGALURU CITY.
C.C. NO.3088/2019
Present: Smt. Shainey K.M. BAL.,LL.B.,
6th Addl. Judge, Court of Small
Causes and ACMM, Bengaluru.
Dated: On this 16th day of March, 2022.
JUDGMENT U/S 355 OF CR.P.C. 1973.
1. Sl.No. of the Case : C.C.No.3088/2019
2. The date of : 25.02.2019.
commission of the
offence
3. Name of the : Sri. K.P. Shivashankar,
Complainant
S/o Late Papaiah,
Aged about 50 years,
No.7/A, 5th Cross,
Azadh Nagar,
Chamarajapete,
Bangalore-560 018.
(By Sri. S.K. Mohan Kumar, Advocate)
SCH.No: 2 2 C.C No:3088/2019
4. Name of the Accused : Mr. Shivanandh N.C.,
@ Shivananda N.C.
S/o Late Boraiah,
Aged about 43 years,
No.399, Srikrishna Nivas,
4th Main, Vivek Nagar Main
Road, Vivek Nagar Further
Extension,
Bangalore-560 047.
And also available at:
Mr. Shivanandh N.C.,
Wife. Manjula,
Aged about 43 years,
M/s Sundaram Motors,
107, Kasturba Road,
Bangalore-560 001.
(By Sri. J. Ravindran, Advocate)
5. The offence complained : Under Section 138 of the
of or proves Negotiable Instrument Act.
6. Plea of the accused and : Pleaded not guilty.
his examination
7. Final Order : Accused is Convicted.
8. Date of such order for : 16.03.2022.
the following
SCH.No: 2 3 C.C No:3088/2019
JUDGMENT
This is a complaint against the accused filed under Sec.200 of Cr. P. C. for the offence punishable under Section 138 of the Negotiable Instruments Act.
2. The brief facts of the complainant's case is as follows:
2.1. It is contended that, parties to the case are friends and well known to each other since 2012. Complainant is the owner of Auto rickshaw and he also drives school van in Bengaluru. Complainant owns a residential house at Chamarajapet, Bengaluru. The accused is also runs an Ola cab in Bengaluru and also he is owns a residential house in Kavika Layout, Bengaluru.
2.2. It is contended that, during the month of August-
2017, the accused has approached the complainant seeking financial assistance in the form of hand loan to refund the lease amount and meet other legal necessities as well. On believing the words of the accused, the SCH.No: 2 4 C.C No:3088/2019 complainant herein has withdrawn a sum of Rs.5,20,000/- from his bank account on 16.08.2017 and remaining amount of Rs.80,000/- was with him. The complainant has paid Rs.6,00,000/- to the accused in the presence of K.M. Venkatesh in bank premises by cash. The accused has agreed and assured to repay the loan within two months after disbursement of housing loan, which he had already applied for. After expiry of 2 months, the complainant met the accused and demanded for the repayment of loan, then, that on 21.12.2018 accused has issued a cheque bearing No.356916 dated:31.12.2018 for a sum of Rs.6,00,000/- drawn on Karnataka Bank Ltd., Kasturba Road.
2.3. The complainant has presented the above said cheque on the request of accused for encashment on 31.12.2018 through his banker, but same has been dishonored with a memo dtd:01.01.2019 stating "Funds Insufficient". That on 30.01.2019, the complainant issued SCH.No: 2 5 C.C No:3088/2019 a legal notice to accused through his counsel and same has been returned unclaimed, intimation delivered on 08.02.2019. It is contended that another copy of notice sent to alternative address of the accused was duly served on him on 31.01.2019 through Registered Post. However, the accused has neither repaid the above loan amount nor replied the legal notice of the complainant. Hence, this complainant.
3. On filing of the private complaint, the Court has taken cognizance of the above offence and proceeded with the case as there was ground to proceed against the accused.
4. The accused has put his appearance before the court through his counsel, filed bail application, and offered cash surety for his appearance before the court and enlarged on bail.
SCH.No: 2 6 C.C No:3088/2019
5. The plea of accused was recorded, read over and explained to the accused, for which, he has not pleaded guilty and claimed to be tried.
6. The sworn statement of the complainant has been treated as evidence in view of Sec 142 (1) of N.I Act.
7. In support of his case, complainant and witness were examined as Pw:1 and 2 respectively, exhibits were marked as ExP:1 to 9 and closed evidence. Learned counsel for accused has cross examined P.W.1 and 2.
8. Statement U/Sec. 313 of Cr.P.C. was recorded and read over, explained to accused, accused has denied the contents of statement as false. The accused did not adduce defence evidence.
9. Heard the arguments of complainant. Learned counsel for accused filed written arguments with list of decisions. Perused the material placed on record, now following points arises of the consideration for the disposal of the case.
SCH.No: 2 7 C.C No:3088/2019
POINTS
1. Whether Complainant proves beyond all reasonable doubt that Accused has committed an offence punishable under Section 138 of Negotiable Instruments Act?
2. Whether accused has rebutted the presumption as contemplated u/sec 139 of N.I Act?
3. What order?
10. My answers to the above points are as follows:
Point no:1 : In the Affirmative.
Point no:2: In the Negative.
Point no.3: As per final order for the following:
:REASONS:
11. Point no:1 & 2: This is a private complaint filed
against the accused for the offence punishable under sec 138 read with section 142 of NI Act. To prove his case, complainant was examined himself as P.W.1 and he produced cheque in question, memo issued by the bank, SCH.No: 2 8 C.C No:3088/2019 legal notice and postal acknowledgment in respect of legal notice, postal track consignment, bank account statement, at Ex.P.1 to 6. On demand pro-note executed by the accused, Pan Card and Aadhaar card of complainant were marked as EX.P.7 to 9.
12. P.W.1 has deposed in evidence that, during the month of August 2017 he paid Rs.6,00,000/- to accused as hand loan in bank premises in the presence of K.M. Venkatesh. To substantiate his contention, he has examined aforesaid Venkatesh as P.W.2. P.W.1 deposed that, he had Rs.80,000/- with his hand and withdrawn Rs.5,80,000/- from the bank and thereby accumulated the money in order to give it to accused. To substantiate his contention, he has produced his bank statement of account at EX.P.6. The entries made in Ex.P.6 discloses that, Rs.1,25,000/- each was withdrawn by P.W.2- Venkatesh through cheque bearing No.394746 and 394747.
SCH.No: 2 9 C.C No:3088/2019
13. The financial capacity of complainant to lend money to accused is not seriously disputed by the accused. It is specific defence of the accused that, except Ex.P.1 cheque, no other additional documents have been obtained by the accused to prove the alleged loan transaction. However, the complainant has produced the on demand pro-note dated:16.08.2017 executed by the accused and perusal of the same reveals that, accused has received Rs.6,00,000/- as hand loan from the complainant in the presence of witness under Ex.P.7(a)- the on demand pro-note and consideration receipt.
14. It is suggested to P.W.1 in the cross-examination that, he is involved in money lending transactions, but he has denied it as false. To establish the close acquaintance between the parties herein, the complainant has produced the photographs of the residential house of accused situated at Kavitha Layout, however, these photographs have not been marked as SCH.No: 2 10 C.C No:3088/2019 exhibits in evidence as it was not accompanied with C.D., of photographs. P.w:1 clearly deposed in evidence that, he has given Rs.5,20,000/- in bank premises and remaining Rs.80,000/- to the accused in the house of P.W.2- Venkatesh.
15. It is admitted fact that, no civil suit has been instituted by the complainant herein against the accused for the recovery of loan amount on the basis of Ex.P.7-pro- note. The accused has denied and disputed the genuinity of his signature found in Ex.P.7. In the cross-examination, P.W.1 deposed that, he has no objection to refer Ex.P.7 to the handwriting expert to compare the admitted signature of accused with the signature found in Ex.P.7.
16. No positive evidence is placed on record to establish that, Ex.P.7(a) signature not of accused and moreover, he has not taken any appropriate steps to prove that, Ex.P.7(a) signature has been manipulated or forged by the complainant herein. Moreover, the accused himself did SCH.No: 2 11 C.C No:3088/2019 not enter into the witness box to deny the claim of the complainant. So, an adverse inference can be drawn against the accused for not entering the witness box to give defence evidence.
17. Financial Capacity: The financial capacity of the complainant to lend money to accused is not much disputed by the accused. Moreover, the complainant has produced his statement of account at ExP: 6 to show that, he had sufficient amount in his bank to give money to accused as hand loan.
18. It is the burden of the accused to establish that, there was no financial transaction taken place between himself and the complainant as contended in the complaint.
19. Firstly, It is not the case of the accused that, disputed cheque was misplaced somewhere else or stolen by the complainant herein. No complaint has been lodged SCH.No: 2 12 C.C No:3088/2019 with jurisdictional police station for misuse of cheque belonging to the accused.
Secondly, the accused has not replied the legal notice sent by the complainant after dishonour of cheque. ExP:3 is office copy of legal notice. ExP:3 a and b are postal receipts. ExP:4 is the legal notice which was returned un-served on accused. The notice issued to alternative address of the accused was duly served on him as per Ex.P.5-the track consignment produced by the complainant. The receipt of legal notice by the accused is not at all in dispute. It is not the defence of the accused that, he did not receive the legal notice sent by the complainant. No explanation is coming out from the mouth of accused why he did not reply the legal notice sent by the complainant. Thus, it is clear before the court and it can be safely assume that, accused had knowledge of cheque being presented by the complainant for SCH.No: 2 13 C.C No:3088/2019 encashment. Even after receipt of legal notice, he has not taken any legal action the complainant.
20. Moreover, he has not lodged any complaint with jurisdictional police against the complainant alleging that, cheque was misused or stolen by the complainant.
21. On perusal of the oral and documentary evidence placed by the complainant, it reveals that the present complaint is filed well within time in accordance with the provisions of Negotiable Instruments Act. Moreover, there is no dispute with regard to taking cognizance of the offence punishable under Section 138 of N I Act.
22. At the outset, an essential ingredient of Section 138 of N.I Act is that the cheque in question must have been issued towards legally enforceable debt. Under Section 118 of the Act, a presumption shall be raised regarding consideration, date, transfer, endorsement and regarding holder in the case of negotiable instruments. Even under Section 139 of the Act, a rebuttable presumption shall be SCH.No: 2 14 C.C No:3088/2019 raised that, the cheque in question was issued regarding discharge of legally enforceable debt. These presumptions are mandatory provisions that are required to be raised in case of negotiable instruments.
23. Keeping in mind the position of law as stated supra, let me deviate to appreciate the evidence of Pw-1. The accused did not dispute his signature found in Ex.P.1 cheque. The signature of the accused was marked as Ex.P.1 (a). ExP:2 is the memo issued by the bank.
24. The accused has also not even given any reply to the notice as per ExP:5- Track consignment and he resides in the same address shown in postal receipt and demand notice. When such being the case, the Judgment of Rangappa Vs Mohan reported in AIR 2010 SC 1898 is aptly applicable to the case on hand. In the absence of rebuttal evidence, the court ought to have to convict the accused.
25. The positive evidence adduced by Pw:1 inspires the confidence of the Court. No cogent and corroborative SCH.No: 2 15 C.C No:3088/2019 evidence placed on record by the accused to establish that, Ex.P.1-the cheque in question was misused by the complainant. The accused has executed on demand promissory note in the presence of witnesses after receipt of loan amount as per Ex.P:7- on demand pro-note. The oral evidence of complainant is supported with documentary evidence.
26. The complainant has stated supra to substantiate the claim, has produced Cheque in question at Ex.P.1, which is said to has been issued by the accused in discharge of debt. There is no rebuttal evidence to disbelieve the evidence of Pw:1. Hence, the evidence of the complainant has to be believed.
27. The accused has failed to establish that, he did not sign the cheque in question. The accused has issued above cheque to complainant, it indicates that he has failed to rebut the presumption, which is in favour of complainant. As appreciated and discussed supra, the complainant has SCH.No: 2 16 C.C No:3088/2019 proved by placing convincing evidence to show that accused is due of payment of cheque amount. To repay the liability accused had issued Ex.P.1, cheque and executed Ex.P.7-On demand pro-note.
28. In this connection, it is not out of place to refer a decision reported in 2006 Crl. L. J. 3760 in case of Smt. Umaswamy Vs- K. N. Ramaiah; wherein the Hon'ble High Court of Karnataka has observed at para 4 of its judgment that;
"The cheque whether issued for payment of debt or as security make no distinction in law. The cheque is a negotiable instrument, it may be that sometimes the cheque is issued with a request on the part of the drawer to defer the presentation of the cheque for some time to enable the drawer to make payment by cash and take back the cheque or allow time to arrange funds for encashment of cheque. When the amount is not paid as per oral understanding the payee is well justified to SCH.No: 2 17 C.C No:3088/2019 present the cheque for encashment. The cheque even if it is issued as a security for payment, it is negotiable instrument and en-cashable security at the hands of payee. Therefore, merely because the drawer contends that it is issued as security is not a ground to exonerate the penal liability u/s. 138 of the N. I. Act."
29. As observed in the above citation, it has to be presumed that the cheque in question was issued by the accused to discharge the legally recoverable debt or liability. The accused can place rebuttal evidence so as to show that there was no financial transaction between himself and complainant. However, he did not adduce defence evidence in this case nor enter the witness box to substantiate his defence. The oral and documentary evidence placed by the complaint is sufficient to believe that accused has committed the offence punishable u/sec 138 of NI Act. Hence, decisions relied by the accused reported in 2006 (6) SCC 39, ILR 2008 KAR 4629 and Crl.
SCH.No: 2 18 C.C No:3088/2019 Appeal 200057/2016 is not helpful to his defence. As
appreciated supra accused has failed to put acceptable and satisfactory evidence to probabilise the defence. Therefore, there is no question of saying that the cheque was not issued for liability.
30. In the light of the discussion hereinabove, I am of the considered opinion that the complainant has proved that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Accordingly, I answer point No.1 in the affirmative and point No.2 in the negative.
31. POINT No.3:- The Negotiable Instruments Act is a special enactment, and the provisions of the Act prevail over the general provisions contained in Code of Criminal Procedure. Therefore, keeping the relevant provisions of the Act in mind the sentence is to be passed. In the light of the reasons on the point No.1, I proceed to pass the following;
SCH.No: 2 19 C.C No:3088/2019
ORDER
The accused is convicted under Section 255 (2) of Cr.P.C., for the offence punishable under Section 138 of the Negotiable Instruments Act, and he is sentenced to pay a fine of Rs.6,05,000/- (Rupees Six Lakhs and five thousand, only). In default to pay fine the accused shall undergo simple imprisonment for a period of three months.
Further, acting under Section 357(1)(a) of Cr.P.C., out of fine amount of Rs.6,05,000/- a sum of Rs.5,000/- (Rupees five thousand only), shall be defrayed as prosecution expenses to the state.
Further, acting under Section 357(1)(b) of Cr.P.C., a sum of Rs.6,00,000/- (Rupees Six Lakhs only), amount on recovery of fine shall be paid as compensation to the complainant.
Bail bond of the accused and that of surety shall stand cancelled.
SCH.No: 2 20 C.C No:3088/2019 Supply a free copy of this Judgment to the accused.
(Dictated to the stenographer on laptop, typed by her, corrected, signed, then pronounced by me in open court on this the 16th March, 2022) (Shainey K.M.) VI Addl. Judge and ACMM., Court of Small Causes, Bengaluru.
:ANNEXTURE:
LIST OF WITNESSES EXAMINED BY THE COMPLAINANT P.W.1 : Sri. K.P.Shivashankar.
P.W.2 : Sri. Venkatesh K.M. LIST OF DOCUMENTS MARKED ON BEHALF OF COMPLAINANT:
Ex.P.1 : Original Cheque dated:31.12.2018. Ex.P.1(a) : Signature of the accused. Ex.P.2 : Cheque return memo dtd:01.01.2019. Ex.P.3 : Copy of legal notice dtd:30.01.2019.
Ex.P.3(a)& : 2 Postal Receipts.
3(b)
Ex.P.4 : Unserved postal cover.
Ex.P.4(a) : Unserved legal notice.
SCH.No: 2 21 C.C No:3088/2019
Ex.P.5 : Postal track consignment.
Ex.P.6 : SBI Bank statement of account of
complainant.
Ex.P.7 : On demand promissory note.
Ex.P.7(a) : Consideration receipt.
Ex.P.8 : Attested copy of Pan Card of
complainant.
Ex.P.9 : Attested copy of Aadhaar card of
complainant.
LIST OF WITNESSES EXAMINED BY ACCUSED
- Nil -
LIST OF DOCUMENTS MARKED ON BEHALF OF ACCUSED:
- Nil -
(Shainey K.M.) VI Addl. Judge and ACMM., Court of Small Causes, Bengaluru.