Bangalore District Court
Smt.Vandana Prakash vs Jaga Mithra Vhavale on 24 March, 2016
BEFORE THE COURT OF SMALL CAUSES AND XXXV
ADDITIONAL CHIEF METROPOLITON MAGISTRATE,
AT BANGALORE (SCCH-16)
PRESENT: SRI. SATISH J.BALI,
B.Com., LL.M.,
X Addl.Judge, Court of Small Causes
(SCCH-16) Bangalore.
DATED THIS THE 24th DAY OF MARCH-2016.
C. C.No.26070/13
*****
COMPLAINANT: Smt.Vandana Prakash
W/o.Prakash Murthy
Indian, Major,
No.11/3, 1st Cross,
Mouna Guru Mutt Road,
Thimmaiah Garden, Cox town,
Bangalore-05.
V/s.
ACCUSED: Jaga Mithra Vhavale,
S/o late.Govinda Rao
No.89, Fruit Street,
Kamaraja Road,
Bangalore-01.
Also at No.37, Fruit Street,
Kamaraja Road, Bangalore-01.
*****
JUDGMENT
The complainant has filed the private complaint under Sec.200 of Cr.P.C., by alleging that the accused has 2 C.C.No.26070/13 SCH-16 committed the offence under Sec.138 of the Negotiable Instruments Act.
2. The case of the complainant, as set-out in the complaint, is as follows:
The complainant and accused are brother and sister. One Amarnath, who is brother of accused and complainant, during his life time, he had filed a suit for partition in respect of the property bearing No.17 New No.89, Fruit Street, Kamaraja Road Cross, Bangalore. It is submitted that the accused without the knowledge of other brothers and sisters tried to sell the aforesaid property to the prospective purchaser and tried to deprive her share including the share of his other brothers and sisters in the above said property. Due to intervention of friends and well wishers, the matter was settled between the complainant, accused and other brothers and sisters vide agreement dt.19-4-12, wherein, accused had agreed to pay a sum of Rs.2,00,000/-to each share holder in the aforesaid property.
3. It is the specific case of the complainant that the accused had issued a post dated cheque bearing No.606917 dated 10-5-12 for a sum of Rs.2,00,000/- drawn on 3 C.C.No.26070/13 SCH-16 Corporation bank, cantonment branch, Bangalore towards payment of amount, in favour of complainant. It is further stated by the complainant that as per the agreement dt.19-4- 2012, accused issued a cheque to her and when she presented the said cheque to her banker, Bank of Baroda, Frazer Town Branch, Bangalore, which came to be dishonoured with an endorsement "funds insufficient" on 20-7-2012. Thereafter wards, notice for dishonour of cheque was issued to the accused on 16-8-2012 through RPAD, which was returned with shara as "addressee left". The accused has not paid the dishonoured cheque amount. Hence, the present complaint.
4. The cause of action for the complainant aroused after lapse of 15days from 17-8-12, when the notice was sent to the accused informing about dishonour of cheque and calling upon him to make payments. On all these grounds, complainant prayed to take suitable action against the accused for having committed the offence punishable under Sec.138 of Negotiable Instrument Act.
5. This court registered the complaint as private complaint, and taken the cognizance, recorded the sworn 4 C.C.No.26070/13 SCH-16 statement of the complainant and having found the prima facie case, ordered to proceed against the accused by registering this criminal case against him.
6. The accused appeared before this court through his counsel in response to the summons and he was enlarged on bail. The substance of the accusation for the offence punishable under section 138 of NI ACT was read over and explained to the accused, in known language, he pleaded not guilty and claimed to be tried.
7. The complainant in order to prove her case, examined herself as PW-1 and got marked Ex.P.1 to P.10 documents.
8. The incriminating circumstances appearing in the evidence of complainant read over to the accused under Sec.313 of Cr.P.C. The accused denied the said incriminating circumstances and chosen to lead evidence on his behalf. The accused examined himself as DW-1 and got marked documents at Ex.D.1 to D.6.
9. I have heard the arguments and perused the materials on record. The learned counsel for accused submitted his written notes of arguments.
10. The points arose for my considerations are: 5 C.C.No.26070/13
SCH-16
1. Whether the complainant proves that she has complied Sec.138 of N.I.Act?
2. Whether the complainant proves that the accused, issued Ex.P.1-cheque bearing No. 606917 dt.10-5-2012 for Rs.2,00,000/-, drawn on Corporation Bank, Cantonment Branch, Bangalore towards discharge of his legally recoverable debt to the complainant?
3. Whether the complainant proves that the accused has committed an offence punishable under Sec.138 of N.I.Act?
4. What Order?
11. By considering the oral and documentary evidence on record and because of my below discussed reasons, I answer the above points in the followings:
POINT NO.1: IN THE AFFIRMATIVE. POINT NO.2 : IN THE AFFIRMATIVE POINT No.3 : IN THE AFFIRMATIVE POINT No.4 : AS PER FINAL ORDER REASONS POINT NOs.1 and2:
12. These two points are taken together for discussion in order to avoid the repetition as these two points are interconnected.
The relationship between the accused and the complainant is not in dispute. It is also not in dispute that 6 C.C.No.26070/13 SCH-16 the O.S.25999/10 and O.S.9021/2001 were filed for partition in respect of property bearing No.89, Fruit street, Kamaraja Road Cross, Bangalore. From the defence of the accused, it is quite clear that the O.S.9021/2001 was pending between the accused and the complainant, his brothers and sisters. As per the defence of the accused, the property No.89, situated at Fruit street, Kamaraja Road Cross, Bangalore, originally belonged to Saraswathi Bai under registered sale deed dated 20-4-1931 and she bequeathed the same in favour of her husband Govinda Rao under Will dt.5-7-1941. By virtue of Will, Govinda Rao, became the absolute owner of the said property and Govinda Rao, in turn, bequeathed the said property in favour of accused under registered Will dt.19-5- 1988. It is further defence of the accused that, the daughter of Saraswathi Bai i.e., Yogini bai has filed a criminal case and one civil suit in respect of above said property, in which the complainant is defendant No.9.
13. As per the defense of the accused, Smt.Saraswathi Bai bequeathed the above said property in favour of her husband Govinda Rao under Will dt.5-7-1941 and in turn, the said Govinda Rao executed the Will in favour of the 7 C.C.No.26070/13 SCH-16 accused through Will. Further defence of the accused is that the complainant obtained Ex.P.1-cheque by threatening the accused on the ground that they have duplicate copy of Will.
14. The complainant as PW-1 deposed inconsonance with the complaint averments. She got marked the alleged cheque said to have been issued by the accused at Ex.P.1, endorsement issued by the Bank of Baroda, Postal receipt is marked as per Ex.P.3, unserved copy of legal notice dt.16-8- 2012 is at Ex.P.4, unserved postal covers at Ex.P.5 and P.6, another office copy of legal notice which was returned dated 16-8-12 at Ex.P.7 and P.8. Agreement dated 19-4-2012 at Ex.P.9 and another agreement dated 19-4-2012 at Ex.P.10.
15. Per contra, the accused got marked the certified copy of Will at Ex.D.1, order sheet of OS.9021/01, rojanama, memo, plaint, affidavit are marked at Ex.D.2 to D.6, endorsement issued by the registrar for having deposit of original Will at Ex.D.2.
16. In the cross-examination, the complainant has stated that the accused had filed a civil suit for partition against Amarnath and in that suit, the complainant is also one of the defendant. PW-1 has further stated that as per the 8 C.C.No.26070/13 SCH-16 agreement, Ex.P.1-cheque was issued by the accused. The said agreement was entered into in the year 2012. At the time of said agreement, brothers and sisters were present. PW-1 has further stated that the said agreement was entered into at the office of the advocate and as per the said agreement, she was agreed to receive a sum of Rs.3,50,000/- in lieu of her share, in the property bearing No.89, out of which, Rs.1,50,000/- was paid in cash and for the remaining balance of Rs.2,00,000/- Ex.P.1-cheque was issued.
17. In the cross-examination, DW-1 has admitted that amaranth who is his brother has filed a partition suit in respect of property bearing No.89 in O.S.3599/2010, which is pending before CCH-29. He also admitted that in order to develop the property, agreement was entered into joint development agreement with the developer, without obtaining the consent of other brothers and sisters. He also admitted that as per the said development agreement, the developer constructed four flats. One of the flat agreed to be sold to Sanjay and they went to sub Registrar office, but it was not registered as there was interim injunction order in the partition suit, so the flat could not be registered. DW-1 9 C.C.No.26070/13 SCH-16 further admitted that the said suit was withdrawn on the ground that they have entered into settlement deed. DW-1 was confronted the copy of settlement deed dt.19-4-2012 which been admitted by the accused. The said settlement deed is marked as per Ex.P.9 and P.10. DW-1 has agreed that as per the said agreement, he agreed to pay a sum of Rs.1,50,000/- in cash and the remaining Rs.2,00,000/-paid by way of cheque. DW-1 has specifically admitted that Ex.P.1- cheque was issued for the balance amount of Rs.2,00,000/-. DW-1 further admitted that Ex.P.1-cheque belongs to his account and admitted his signature as per Ex.P.1(a). DW-1 admitted that he was convicted in another case for the offence punishable under Sec.138 of N.I.Act for bouncing/dishonour of cheque issued in lieu of her share in the property bearing No.89 to the Yogini Bai and she has filed a criminal case in CC.15087/12. Though, DW-1 has stated that by forcibly Ex.P.1-cheque was obtained by the complainant, but he admitted that no complaint was filed in this regard against the complainant before the jurisdictional police.
10 C.C.No.26070/13
SCH-16
18. On perusal of above said cross-examination of the accused, it is quite clear that during the pendency of OS.3599/2010, filed for partition in respect of property No.89, the accused and the complainant and other brothers and sisters have entered into a settlement deed as per Ex.P.9 and P.10. I have carefully perused Ex.P.9 and P.10. The complainant herein is arrayed as defendant No.9 in the above said settlement deed. As per the said settlement deed, cheque bearing No.606917 dated 10-5-2012 was issued by the accused to the party Nos.6 to 10 of the said settlement deed. The parties have put their signatures to the said settlement deed in the presence of witnesses. It is specifically stated in Ex.P9 and P.10, that out of Rs.3,50,000/- a sum of Rs.1,50,000/- shall be paid by cash and Rs.2,00,000/- was agreed to be paid by way of DD to the complainant. Further the said settlement deed reveals that Ex.P.1-cheque was issued for the remaining balance to be paid by the accused to the complainant out of settled amount of Rs.3,50,000/-. The accused has specifically admitted that Ex.P.1-cheque belongs to him and the signature appearing on Ex.P.1(a) also belongs to him. When such being the case, when cheque at Ex.P.1 11 C.C.No.26070/13 SCH-16 presented for payment, it came to be dishonoured for "insufficient funds".
19. It is to be noted that as per Sec.139 of N.I Act, there is initial presumption in favour of the complainant that the cheque at Ex.P.1 was issued for discharge of legally recoverable debt. The said presumption is rebutable presumption and the accused can rebut the said presumption. It is also not necessary for the accused to enter into the witness box to rebut the said presumption. It is sufficient, if the accused brings infirmities in the evidence of complainant in order to rebut the said presumption. This view of mine is supported by AIR 2010 SC 1898 (Rangappa Vs Mohan) , (2002)1SCC 234( M.M.T.C.Ltd., and another vs Medchl Chemicals and Pharma Pvt.Ltd., and (1999) 3 SCC 35( Bharat Barrel and Drum Manufacturing company vs Amin Chand Pyarelal. In the above said citations, the Hon'ble Apex court discussed the presumption available to the complainant under Sec.139 of N.I.Act and come to the conclusion that the initial presumption has to be drawn in favour of the complainant that the cheque was issued for discharge of legally recoverable debt. It is also held in the 12 C.C.No.26070/13 SCH-16 above said citations, that it is not necessary that the accused should step into the witness box in order to rebut the said presumption and it is suffice, if the accused brings in contradictions in the evidence of complainant in order to rebut the said presumption.
20. In this case, though DW-1 has stepped into the witness box, but he clearly admitted that in pursuance of settlement deed at Ex.P.9 and P.10, he issued cheque at Ex.P.1 to the complainant and on presentation of the said cheque for encashment, it came to be dishonored, which could be seen as per Ex.P.2-endorsement issued by the bank. The accused issued the cheque at Ex.P.1 to the complainant to discharge his liability on 10-5-2012 for Rs.2,00,000/- without having sufficient funds in his account and the said cheque was dishonoured for "insufficient funds".
21. The learned counsel for the accused in his written notes of arguments has submitted that the property bearing No.89, Fruit Street, Kamaraj road Cross, Bangalore was originally belonged to one Smt.Sarswathi Bai and the said property acquired by her under the registered sale deed dt.20- 4-1931 and she in turn bequeathed the same in favour of her 13 C.C.No.26070/13 SCH-16 husband Govinda Rao under Will dt.5-7-1941. By virtue of the said Will, Govinda Rao became the absolute owner and he in turn bequeathed the said property in favour of accused dated 19-5-1988. Thereby, the accused has become absolute owner of the said property.
22. It is also submitted by the learned counsel for the accused that one Yogini Bai and others have filed civil suit in OS.No.9021/2001 against the accused and others by suppressing the true facts for partition and separate possession in respect of the property bearing No.89. The accused further submits that the Yogini Bai, the complainant and others have misleading the accused to settle the dispute in respect of suit property and forced to take their share by collecting the cheque as they were aware of the property in question is absolute property of accused. The learned counsel for the accused further argued that the accused has filed a suit in OS.26631/12 before the city civil Judge, Bangalore for declarative relief against Yogini Bai and others and the said suit is pending for adjudication for the relief of declaration.
23. The accused further contended that the complainant got examined as PW-1. In the cross-examination, 14 C.C.No.26070/13 SCH-16 PW-1 has clearly admitted that the property bearing No.89, Fruit street, Kamaraj road cross, Bangalore was originally belongs to Govinda Rao and she has not produced anything about the flow of title to the said property. It is further contended that Ex.D1 to D6 reveals that the original suits were pending in respect of above said property and notice dated 16-8-2012 is not received by the accused and as on the date of issue of notice, the accused was not residing in the said address given by the complainant and hence notice was not deemed to be served.
24. I have tested the above said arguments of the learned counsel for the accused with the evidence on record. However, in the cross-examination of Pw-1, the accused has not taken defence that the notice, which was issued by the complainant has not been served. No single suggestion for having not served the notice was put to the complainant. On perusal of the copy of legal notice at Ex.P.4 to P8 unserved postal covers reveals that the said notices were returned with an endorsement that the "addressee left". Hence, it cannot be said that the accused was not served with the legal notice. 15 C.C.No.26070/13
SCH-16 The accused has not placed any record to show that he was not residing at the address shown in legal notice.
25. In this case, Ex.P.1-cheque was issued on 10-5- 2012, which was presented within six months from the date of its issue and the said cheque was dishonoured as per Ex.P.2 on 20-7-2012. The accused on 16-8-12, issued legal notice and on 27-9-2012 filed the present complaint. The complainant has complied the Sec.138 of N.I.Act by issuing mandatory notice as contemplated under Sec.138 of N.I.Act. The notice issued to the accused were returned with an endorsement "addressee left", which is held sufficient in the eyes of law. Inspite of service of notice, the accused has not made any efforts to make payment of said cheque amount. The complainant by issuing legal notice within the stipulated period and filing the present complainant within the period has complied the Sec.138 of N.I.Act. The accused committed an offence punishable under Sec.138 of Negotiable Instruments Act. Hence, I answer point Nos.1&2 in the affirmative.
POINT No.3:-
16 C.C.No.26070/13
SCH-16
26. While discussing Point Nos 1&2, this court has come to the conclusion that the accused had issued cheque at Ex.P.1 to discharge his liability/debt and on presentation of Ex.P.1 to the bank for encashment, it came to be dishonoured for "insufficient funds". The complainant got issued legal notice within the stipulated period and filed the present complainant within the stipulated period. The accused by issuing Ex.P.1 for legally recoverable debt and the said cheque was bounced for "insufficient funds" and he committed an offence punishable under Sec.138 of N.I.Act. Hence, I answer this point in the affirmative.
POINT No.4:-
27. In this case, the accused and the complainant are brother and sister. It has come in the evidence that Ex.P.1- cheque was issued in lieu of share of the complainant in property No.89,Fruit street, Kamaraja Road Cross, Bangalore. The accused has not challenged the settlement deed, which was entered between him and the complainant and other sisters and brothers before any court of law. He issued Ex.P.1 in pursuance of Ex.P.9 and P.10, which came to be dishonored as per bank endorsement at Ex.P.2. Cheque at 17 C.C.No.26070/13 SCH-16 Ex.P.1 pertains to the year 2012. Hence, even if the amount mentioned in cheque was deposited by the complainant, she could have earned reasonable interest as the cheque was issued in the year 2012. Now, we are in the year 2016. Hence, it cannot be ruled out that the complainant ought to have earned interest of Rs.5,000/-per annum. Hence, considering the said fact, that the accused is sentenced to pay compensation of Rs.2,20,000/- to the complainant towards loss suffered by her. Accordingly, I proceed to pass the following order:
ORDER Acting u/s. 255(2) of Cr.P.C. the Accused is hereby convicted for an offence punishable U/s.138 of Negotiable Instrument Act and ordered to pay fine of Rs.2,20,000/-. In default the Accused has to undergo Simple Imprisonment for 6 months.
Further acting U/s 357(3) of Cr.P.C. accused is directed to pay fine amount Rs.2,20,000/- to the Complainant as a compensation.
Out of total compensation amount of
Rs.2,20,000/- a sum of Rs.5,000/-shall be
deposited to the state as fine amount.
Further Office is directed to issue a copy of the judgment to the Accused with free of cost. 18 C.C.No.26070/13
SCH-16 The bail bond executed by the accused and his surety stands cancelled.
******* (Dictated to the stenographer, transcribed by her, corrected and then pronounced in the open court on this the 24th day of March 2016) (SATISH.J.BALI), X Addl.Judge & XXXV ACMM, BANGALORE.
ANNEXURE
Witnesses examined on complainant
PW-1 Smt.Vandana Prakash.
Documents marked on behalf of Complainant:
Ex.P.1 : Cheque
Ex.P.1(a) : Signature of the accused
Ex.P.2 : Bank endorsement
Ex.P.3 : Postal receipts
Ex.P.4 : postal acknowledgements
Ex.P.5&6 : Returned postal covers
Ex.P.7&8 : unserved legal notice
Ex.P.9&10 : Agreements
Witnesses examined on behalf of Accused:
DW-1 : Jagamithra Documents marked on behalf of the Accused:
Ex.D.1 : Will copy
Ex.D.2 : deposit of will receipt
Ex.D.3 : O.S.9021/01 memo
Ex.D.4 : Memo for withdrawal
Ex.D.5 : plaint in CC.26070/13
Ex.D.6 : Will copy
(SATISH.J.BALI),
X ADDL.Judge, XXXV ACMM,
Bangalore.