Bangalore District Court
Sri. M.Malleshaiah vs Dr. P.Nagaraju on 3 April, 2018
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU
Dated this the 3rd Day of April 2018
Present: Sri. Rajkumar .S.Amminbhavi., B.Com., LLB (Spl)
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No. 15757/2015
Complainant: Sri. M.Malleshaiah
S/o. Late Mallaiah
Aged about 63 Years
R/at. No.97, Vinayaka Layout
4th Cross, Boopasandra Main
Road, RMV 2nd Stage
Bengaluru-560 094.
(By S.Arunchalam. Adv)
- Vs -
Accused: Dr. P.Nagaraju
S/o. Puttaswamy
Aged about 58 Years
R/at. 2nd Cross, BB Road
Near Rajarajeshwari Choultry
Road, Gandhinagar
Yelahanka
Bengaluru-560 064.
(By.G.N.Venkataramappa 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: 03.04.2018
******
2 CC No.15757/2015
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, both the complainant and accused are very well known to each other as they are family friends. On account of well acquainted with the complainant, the accused has approached the complainant and requested for advancement of hand loan an amount of Rs.15,00,000/- during the first week of October 2014 in order to purchase a site and other legal necessities and accordingly, considering the request of the accused and believing the words of the accused and on humanitarian ground, the complainant has advanced the loan amount of Rs.10,00,000/- to the accused on 10.10.2014 by way of cash and on that day, the accused has agreed and undertaken that, he will repay the said amount within a period of three months. After lapse of stipulated period on repeated request and demand made by the complainant to the accused for repayment of the borrowed loan amount and at that time, the accused for discharge the loan in question had issued cheque bearing No.752407, dated: 14.02.2015 for a sum of Rs.10,00,000/- drawn on Karnataka Bank Limited, Yelahanka New Town Branch, Bengaluru in favour of the complainant and assured that, the said cheque would be honoured on its presentation. Then, as per the assurance 3 CC No.15757/2015 made by the accused, the complainant has presented the said cheque for encashment through his banker i.e., Canara Bank, GKVK Branch, Bengaluru, but it was dishonoured with an endorsement as "Funds Insufficient" 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 23.01.2015 through his counsel by RPAD calling upon him to repay the said borrowed loan amount 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.
4 CC No.15757/20154. In order to prove the case of the complainant, the complainant got himself examined as PW.1 & got 13 documents marked as Ex.P.1 to Ex.P.13 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 in support of his case none of the documents have been marked and in support of his case, he has got examined one witness as DW-2 who is none other than his Bank manager in which bank he was having account and through the DW-2, he has got marked one document as Ex.D1 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 cheque bearing No.752407, dated:14.02.2015 for Rs.10,00,000/- drawn on Karnataka Bank Limited, Yelahanka New Town Branch, Bengaluru for discharge of the amount and when the said cheque presented for encashment, it was dishonoured with an endorsement "Funds Insufficient" and after issuance of the legal notice he 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;
5 CC No.15757/2015 Point No.1 : 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 13 documents namely, cheque which is marked as Ex.P1, the signature of the accused therein which is marked as Ex.P1(a), bank endorsement which is marked as Ex.P2, the bank counter-foils which is marked as Ex.P3, the office of the legal notice which is marked as Ex.P4, postal receipt which is marked as Ex.P5, the courier receipt which is marked as Ex.P6, non-receipt of postal acknowledgment , requisition issued to the postal master which is marked as Ex.P7, reply issued by the postal department to the complainant for Ex.P7 which is marked as Ex.P8, the true copy of the complaint given to the Police Commissioner which is marked as Ex.P9, the copy of the prescription issued by the RMV Diagnostic Center which is marked as Ex.P10, the copy of the complaint given to the Sanjayanagar Police Station which is marked as Ex.P11, the copy of the acknowledgment issued by the Sheshadripuram Police Station which is marked as Ex.P12, the copy of the requisition given to the DYSP, Bengaluru which is marked as Ex.P13.
6 CC No.15757/20159. During the course of cross of PW-1, he has deposed that, he was served in Agricultural university and for the last 6 years he was retired from his service and after his retirement he was not doing any work and he was not having any source of income except his pensionary benefit, but deposed that, he is having four house and out of four house, he has let-out on lease basis two houses and remaining house let-out on rental basis and he is owning 2 acres of land situated at Malavalli and in that said land he was and is raising Sugar Cane and Paddy and apart from that, he was kept an amount of Rs.10,00,000/- in bank as FD and to that effect, he was having documents. He denied the suggestion that, he was not owning house property and he was not let- out his house property on rental basis as well as lease basis. He denied the suggestion that, he was not having any other source of income except his pensionary benefit. He denied the suggestion that, he was not having house property at No.6/66, Sanidevara Temple Road, 1st Main Road, Allasandra. He know the accused for the last 15-16 years and he was served as doctor in his house without obtaining any decree as medical practitioner and the said fact came to know him for the last 3-4 years. He deposed that, during the month of October-2014 he came to know that, the accused has made assurance to the aspirants to provide a Government employment. He deposed that, prior to loan in question the accused was borrowed the loan amount of Rs.50,000/- from him and that amount has been repaid by him and on account believing on good faith, he has again 7 CC No.15757/2015 advanced an amount of Rs.10,00,000/- by way of cash out of the amount received from his lease house property and retirement service benefit, to that effect, he has not produced any documents. He deposed that, at the time of advancement the loan in question, he was not obtained any documents from the accused except cheque in question. It is true that, he has not stated in his complaint that, out of the lease amount of Rs.10,00,000/- and that amount has been advanced to the accused by way of cash. It is true that, cheque number wrongly typed in his complaint and in his examination-in-chief on account typographical error. It is true that, the address mentioned in the cause title of the complaint is his rented house address. He denied the suggestion that, he was not having any residential houses. He deposed that, on 13.02.2015 he was approached and requested the accused for repayment of the borrowed loan amount and at that time, the accused has issued Ex.P1. He denied the suggestion that, he has obtained the signed blank cheque from the accused and he himself filled-up the contents of the Ex.P1 and filed false complaint against the accused.
10. After the recording the statement of the accused under Section 313 of Cr.P.C., during the course of defence evidence, the accused himself examined as DW-1 by adducing oral evidence, wherein, he has specifically stated that, he was not at all borrowed the loan in question from the complainant and he has not at all met with the complainant for the 8 CC No.15757/2015 purpose of purchase the site, he was not at all demanded an amount of Rs.15,00,000/- from the complainant out of that, he was not at all borrowed the loan amount of Rs.10,00,000/- He deposed that, he has not at all issued Ex.P1 to the complainant. He deposed that, Ex.P1 cheque belonging to his own bank account cheque, but the signature found on the Ex.P1(a) and other contents written on the Ex.P1 are not his own signature. He deposed that, he has lodged the complaint before the Yelahanka Police Station with respect to the Ex.P1, to that effect, he was having document and he has not issued Ex.P1 for discharge the alleged loan in question. During the course of his cross-examination, he has deposed that, he was working as RMP medical practitioner for the last 15 years at Yelahanka and for the last 3 years he was stopped his medical practice profession. He denied the suggestion that, he was borrowed the loan in question from the complainant and for discharge the loan in question, he was issued Ex.P1 to the complainant for discharge the loan in question.
11. During the course of defence evidence, the accused in support of his case, he has got examined one witness as DW-2 who is none other than his bank manager and the DW-2 in his examination-in-chief, he has specifically stated that, since 2016 he is working as Branch Manager in Karnataka Bank, Yelahanka New Town, Branch at Bengaluru. He deposed that, the accused was opened his bank account in their bank on 21.12.2009 and to that effect, he has produced the certified copy of bank account opening form of 9 CC No.15757/2015 the accused which is marked as Ex.D1 and wherein specimen signature of the accused which is marked as Ex.D1(a). He deposed that, signature found on the Ex.P1(a) and the signature found on the Ex.D1(a) are not tally with each other. He deposed that, Ex.P1 which was presented for encashment to their branch, their banker have issued Ex.P2 i.e., it was dishonoured with an endorsement as "Funds Insufficient". He deposed that, whenever, if any of the person presented the cheque for encashment, then they will first verify that, whether the bank account holder was having sufficient funds or not and thereafter, they have to verify other requirements like, signature of the drawer, etc., During the course of his cross-examination, he has deposed that, he has deposed falsely that, signature found on the Ex.P1(a) and Ex.D1(a) are different at the instance of the accused.
12. On perusal of the averments made in the complaint and evidence of the respective parties and coupled with the documents produced by the respective parties. There is no dispute that, both of them 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 after receipt of the legal notice, the accused knowing fully, he was failed to gave reply notice to defend his defence that, he was not at all borrowed the loan in question from the complainant and he was not at all issued Ex.P1 for the discharge the loan in question.
10 CC No.15757/201513. During the course of defence evidence, the accused in support of his case, he has got examined as DW-2 who is the banker manager of his bank in which he having bank account with respect to the Ex.P1 and during the course of DW-2 he has specifically stated that, there was little difference between the signature found on the Ex.P1(a) and the signature found on the Ex.D1(a). But, on perusal of the signature of the accused which was found in the Vakalath, accusation, statement of accused under Section 313 of Cr.P.C., and his evidence on record are one and same. It can be presumed that, the accused knowing fully well he might change little bit his signature and also on perusal of the signature of the accused, as per the documents produced by the complainant obtaining under RTI Act which is marked as Ex.P9, wherein recital of the Ex.P9 it is reveals that, the accused was filed the complaint before the Police Commissioner, Benglauru on 11.12.2015 by alleging that, he was not at all borrowed the loan in question from the complainant and he was not at all issued Ex.P1 to the complainant for discharge of the loan in question and the complainant was stolen his signed blank cheque and given threat to him and he has signed on Ex.P9 in "Kannada" language, whereas, DW-2 has produced bank account opening form pertain to the accused bank account and wherein, specimen signature of the accused which is marked as Ex.D1(a) and which was in English language and also before this Court when he was appear before this Court through his counsel at the time of enlarge bail, he has filed 11 CC No.15757/2015 vakalath, accusation, statement of accused under Section 313 of Cr.P.C., and his evidence, he was signed as in English language. Therefore, the documents available on record that, it is apparently on the face of the document it is clearly goes to show that, he might have little bit change his signature in Ex.P1 which is marked as Ex.P1(a). Therefore, conduct of the accused apparently on the face of documents on record that, itself clearly goes that, he was not diligent to defend his case.
14. Further, the complainant was also filed complaint against the accused before the Sanjayanagar Police as per the Ex.P11 and another persons by name Bhagyalakshmi was also filed complaint against the accused, wherein he was borrowed the loan amount from one Bhagyalakshmi and the police have called him to police station and they have made enquiry before the police station and during the course of police enquiry, the accused has submitted that, he was borrowed the loan amount from the complainant and he will agreed to pay the amount in four monthly installments. Therefore, it can presumed that, the accused knowing fully, he was borrowed the loan in question from the complainant and for discharge the loan in question, he was issued Ex.P1 and when the Ex.P1 was presented for encashment and it was dishonoured with an endorsement as "Funds Insufficient"
and not "Drawer's signature differs"
15. Further, the during the course of cross of PW-1, the accused has not at all disputed that, the complainant was 12 CC No.15757/2015 retired from his service and the accused was not denied with respect to that, he was not filed the complaint, before the police Commissioner of Bengaluru as per the Ex.P9 and he was not at all dispute that, with respect to that, he was not filed to the complaint filed by the complainant and one Bhagyalakshmi against him.
16. On perusal of the evidence of DW-1 it is reveals that, he was only denied that, he was not borrowed the loan in question from the complainant and not issued Ex.P1 for discharge the loan in question. The DW-1 was deposed in his examination-in-chief that, he was issued Ex.P1 to the complainant before the Yelahanka New Town Police Station that itself it is clearly goes to show that, he was issued Ex.P1 to the complainant. Further, with respect to the avocation of the accused, the complainant has deposed that, he was worked as private medical practitioner without having authenticity certificate from the competent authority and that fact has been admitted by the accused that, he was worked as medical practitioner and during the course of his cross- examination, he has deposed that, for the last 3 years he was stopped his medical practitioner work.
17. Further, with respect to the source of income of the complainant during the course of his cross-examination he has deposed that, he was worked in Agricultural University and for the last 6 years, he was retired from his service and he was having residential house and he was let-out two house 13 CC No.15757/2015 on lease basis and remaining house let-out on rental basis and to that effect, he has produced the Xerox copy of the rent agreement, even though he was not produced document with respect of the property extract of the house owned by him, but he was Government Servant and he was retired from his service and at the time of retirement, he was received retirement benefit from his department and getting monthly pension. Therefore, it can be presumed that, he might having sufficient source of income for the advancement the loan in question to the accused.
18. Looking to the conduct of the parties to the proceedings, the accused was worked as medical practitioner and thereby, he know cause and consequences for issuance of the signed blank cheque to any other persons without having monetary transaction under the due process of law. Hence, in the instance case, on perusal of the Ex.P1 there is no ambiguity. Therefore, it can be presumed that, the accused knowing fully well to defeat the claim of the complainant, he was filed complaint before the police commissioner as per the Ex.P9.
19. Though, there is some typographical error in cheque number in the complaint and sworn statement is mentioned as cheque "No.75240" and on perusal of the cheque in question, wherein cheque number is mentioned as No.752407-Ex.P1 and to that effect, "7" number missed in the complaint and sworn statement. Therefore, it can be presumed that, cheque is criteria for trail of the case in hand 14 CC No.15757/2015 and to that effect, typographical error "7" missed in his complaint and sworn statement with respect to the cheque number to that effect, the counsel for the complainant has filed memo for rectification of the cheque number in his complaint and sworn statement and as per the submission made by the counsel for complainant by filing memo, he will not press for memo and then said memo was disposed off not pressed. Therefore, for trail of the case, mere numerical missing of "7" number of the cheque number it will not defeat the claim of the complainant, since the cheque in question is primary evidence for trail of the case.
20. If really, he was not at all borrowed the loan in question from the complainant and he has not at all issued cheque in question for discharge the loan in question, 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 his 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. 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 15 CC No.15757/2015 as per provision under Section 139 of N.I.Act., to rebut the claim of the complainant.
21. It can be presumed that, the accused has issued the Ex.P1 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 higher on the side of the complainant, rather than the accused.
22. 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. Looking to the conduct of the parties to the proceedings, the complainant is an retired Government servant, he was retired from his service more than 6 years, the accused was un-authorized private medical practitioner period of trail faced by the complainant already more than 2 years have elapsed for awarding cost of litigation an amount of Rs.30,000/- is just and proper to meet the ends 16 CC No.15757/2015 of justice. On perusal of the Ex.P1 there is no ambuiguity. 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 to the complainant.
23. Hence, in the light of the above observation, the complainant has successfully proved that, the accused has 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 to the complainant for the legally recoverably debt and cost of litigation of Rs.30,000/-. Therefore, I answer the point No.1 in the affirmative.
24. Point No.2 :- In view of my findings on Point No.1 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.10,30,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for One year.
Further, ordered that, out of the said fine amount of Rs.10,25,000/- shall be paid to the 17 CC No.15757/2015 complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of Rs.5,000/- 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 3rd day of April 2018).
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 M. Malleshaiah List of documents exhibited on behalf of the complainant:
Ex.P.1 Cheque
Ex.P.1(a) Signature of the accused
Ex.P.2 Bank endorsement
Ex.P.3 Bank counter-foils
Ex.P.4 Office copy of the legal Notice
Ex.P.5 Postal receipt
Ex.P.6 Courier receipt
Ex.P.7 Requisition given to the Post office
Ex.P.8 Reply issued by the postal department
Ex.P.9 The copy of the complaint given to the
Police Commissioner
Ex.P.10 The prescription issued by the RMV
Diagnostic Center
18 CC No.15757/2015
Ex.P.11 The copy of the complaint given to
Sanjayanagar Police Station
Ex.P.12 The copy of the acknowledgment
Ex.P.13 Requisition given to DYSP, Bengaluru
List of witnesses examined on behalf of the accused :
DW.1 Nagaraj .P DW.2 Tarunkumar
List of documents exhibited on behalf of the accused :
Ex.D1 Account Opening Form Ex.D1(a) Signature of the accused
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
19 CC No.15757/201503.04.2018.
Complainant : A Accused : SNM 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.10,30,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for One year.
Further, ordered that, out of the said fine amount of Rs.10,25,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of Rs.5,000/- 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.
20 CC No.15757/2015 21 CC No.15757/2015Heard Inference 22 CC No.15757/2015