Bangalore District Court
Sri.Bhojaraju.N vs Sri.Devidas Gaonkar on 17 December, 2016
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 17th day of December 2016
Present: Smt. Saraswathi.K.N, B.A.L., LL.M.,
XVI Addl.C.M.M., Bengaluru City.
JUDGEMENT U/S 355 OF Cr.P.C.,
Case No. : C.C. No.6523 /2015
Complainant : Sri.Bhojaraju.N,
S/o.K.R.Narayanappa,
Aged about 40 years,
No.1, 8th Cross,
Maruthi Nagar,
Ittamadu, BSK III Stage,
Bengaluru-85.
(Rep. by Sri.B.M.Vinay Kumar.,
Adv.,)
- VS -
Accused : Sri.Devidas Gaonkar,
S/o.S.Gaonkar,
Aged about 48 years,
Karnataka State Co-op
Organic Producers
Federation Ltd.,
Old Executive Engineers
Office, APMC,
Tumkar Road,
Yeshwanthpura,
Bengaluru-22.
2 C.C. No.6523 /2015 J
(Rep. by Sri.Krishna.S.Vyas.,
Adv.,)
Case instituted : 22.01.2015
Offence complained : U/s 138 of N.I. Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is Convicted
Date of order : 17.12.2016
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, the Accused and he are friends, having good acquaintance with each other for more than 5 years. Both of them were introduced to each other through common friends viz., Gururaj and Sharvan Sharma. The Accused was running the business by establishing his office at No.1881, 39th Cross, 11th A main, 4th T Block, Jayanagar, Bangalore in 2013.
3 C.C. No.6523 /2015 J3. The Complainant further submits that he, being the owner of the agricultural property in the year 2013 had proposed to sell and in this connection he was possessing part of sale consideration amount. The Accused, who had the knowledge about the same, requested him to lend a loan of Rs.30 lakhs on 1/2/2013 for the purpose of improving his business. After detail discussion and considering his friendship with the Accused, he lent a loan of Rs.25 lakhs to the Accused on 8/2/2013. The terms and the conditions were incorporated in the Loan Agreement dated 8/2/2013 entered into between them. Apart from the execution of the loan Agreement, the Accused has also executed an On Demand Pronote and the Consideration Receipt dated 8/2/2013 in his favour.
4. As per the Loan Agreement, the Accused had agreed to repay the loan along with interest on 8/5/2014, but subsequently he requested to extend the time for its repayment. Thereafter the Accused issued a cheque bearing No.0053807 dated 10/11/2014 for a sum of Rs.27,75,000/- drawn on the SBM, JP Nagar I Phase, Bengaluru, in his favour, assuring that upon presentation, the same would be encashed.
4 C.C. No.6523 /2015 J5. Believing the promise and the assurance made by the Accused, when he presented the said cheque for encashment through his Banker, to his utter shock and surprise the said cheque came to be dishonoured with an endorsement "Funds Insufficient" on 1411.2014. Hence left with no other alternative, he got issued legal notice to the Accused, to which though the Accused has sent an untenable reply through his counsel by suppressing the true and real facts. Hence the present complaint.
6. Thus it is alleged by the Complainant that, dishonor of the cheque by the Accused has been malafide, intentional and deliberate. Feeling aggrieved by the conduct of the Accused, he has filed the present complaint praying that the Accused be summoned, tried and punished in accordance with Sec.138 of Negotiable Instruments Act.
7. The Complainant led the pre-summoning evidence on 3/3/2015. Prima-facie case was made out against the Accused and he was summoned vide order of the same date.
5 C.C. No.6523 /2015 J8. The Accused appeared before the Court on 3.6.2015. The substance of the accusation has been read over to him on 22.7.2015, to which he has pleaded not guilty and has claimed the trial.
9. In his post-summoning Complainant's evidence, the Complainant examined himself as PW1 and filed his affidavit, wherein he has reiterated the averments made in the complaint.
P.W.1 has also relied upon the following documentary evidence:-
Ex.P1 is the disputed cheque, in which, the signature is identified by P.W.1 as that of the Accused as per Ex.P1(a), the Bank challan as per Ex.P2, the Bank memo as per Ex.P3, the office copy of the Legal Notice as per Ex.P4, the postal receipts as per Ex.P5 & 6, the postal acknowledgement as per Ex.P7, the loan agreement as per Ex.P8, the signatures as per Ex.P8(a) to 8(d), the Pronote and Consideration receipt as per Ex.P9 & 10, the signatures as per Ex.P9(a) & Ex.P10(b), the sale deed as per Ex.P11, the reply notice as per Ex.P12, the returned postal notice as per Ex.P13, the postal cover as per Ex.P14, the postal receipt as per Ex.P15, the postal 6 C.C. No.6523 /2015 J acknowledgment as per Ex.P16, the Bank Pass Book as per Ex.P17, the loan sanction letter as per Ex.P18, the copy of Mutation register as per Ex.P19, the RTC extract as per Ex.P20, the Visiting card as per Ex.P21, the Brochure as per Ex.P22, the ITR B-form as per Ex.P23.
10. The statement of the Accused under Sec.313 of Cr.P.C., has been dispensed with as the Accused has remained continuously absent before the Court.
11. Heard the arguments of the counsel for the Complainant, who has prayed for the conviction of the Accused on the ground that, even though the Accused has denied the entire case as per the contents of the reply notice in Ex.P12, for the reasons known to him, the Accused has failed to bring on record any cogent evidence in order to prove his defence. It is further argued that, the signature on the cheque in question and the issuance of the cheque as well as the entire case as claimed by the Complainant has remained undisputed and unchallenged and which is lastly argued that, the presumption under Sec.118 r/w.139 of the N.I. Act is in favour of the Complainant and thus the Accused be 7 C.C. No.6523 /2015 J convicted for the offence punishable under Sec.138 of the N.I. Act.
12. In support of his arguments, the learned counsel for the Complainant has relied upon the following decisions:-
1. In M/s.K.M.Enterprises Vs., Garware Synthetics ltd., & others, reported in Legal Crystal-Indian Law Search Engine,
2. In Rangappa Vs., Mohan, reported in Crl.Appellat No.12020 of 2010,
3. In Rangaraj Urs Vs., J.T.Muniraju, reported in Legal Crystal-Indian Law Search Engine.
13. I have considered the submissions and perused the record carefully.
14. Sec.138 of the Negotiable Instruments Act has been enacted to lend credibility to the financial transactions.
The main ingredients of the offence under Section 138 Negotiable Instruments Act are:-
8 C.C. No.6523 /2015 J(i) Drawing up of a cheque by the Accused towards payment of an amount of money for the discharge in whole or in part of any debt or any other liability
(ii) Return of the cheque by the bank as unpaid.
(iii) The drawer of the cheque fails to make the payment of the said amount of money within 15 days of the receipt of notice under proviso (b) to Section 138.
The Explanation appended to the Section provides that, the "debt or other liability" for the purpose of this Section means a legally enforceable debt or other liability.
15. Apart from this, Sec. 139 of the Negotiable Instruments Act lays down a presumption in favour of the holder of cheque in the following terms, "It shall be presumed, unless the contrary is proved, that:-
The holder of a cheque received the cheque, of the nature referred to in Sec. 138, for the discharge, in whole or in part, of any debt or other liability".
Also, Sec. 118 of the Negotiable Instruments Act states, 9 C.C. No.6523 /2015 J "Until the contrary is proved, the following presumptions shall be made:-
(a) That every negotiable instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;"
16. Thus, the Act clearly lays down presumptions in favour of the Complainant with regard to the issuance of the cheque by the Accused towards the discharge of his liability in favour of the Complainant.
17. Under the scheme of the Act, the onus is upon the Accused to rebut the presumptions in favour of the Complainant by raising a probable defence.
18. Such being the legal position, it would be pertinent to refer to the defences raised by the Accused to rebut the presumptions in favour of the Complainant in this case.
19. It is pertinent to note that, the Accused in the present case has failed to discharge the onus of rebutting the presumption available in favour of the Complainant 10 C.C. No.6523 /2015 J by raising a probable defence. It is pertinent to note that, this oral as well as the documentary evidence of the Complainant has not been subjected to cross- examination by the defence counsel, even though sufficient opportunities have been given to him. It is a well settled principle of law that, if either of the parties to the proceedings, even after knowing the status of his case, does not choose either to prosecute or to defend the case, as the case may be, an adverse inference is liable to be drawn against such a party. Even in the present case, the entire case of the Complainant has remained unchallenged and un-rebutted. It is not the situation that, in the present case, the Accused is not aware of the accusations leveled against him by the Complainant, since this Court has recorded his plea. The defence of the Accused that is evident in his plea is one of entire denial. No doubt it is also a well settled principle of law that, the Accused need not enter witness box so as to defend his case, but it is sufficient if the Accused is able to establish his defence by relying upon the materials placed on record by the Complainant. But in the present case, it is pertinent to note that, the Accused has failed to make use of even the right of his cross-examination of PW1. As 11 C.C. No.6523 /2015 J a result, the conduct of the Accused clearly goes to show that, his defence is one of bare denial and he has not taken any pain in order to defend himself.
20. It is pertinent to note that though the Accused has taken up his defence in the Reply Notice at Ex.P12, which is the defence taken by him first in point of time, he has failed to prove the said defence theory. Therefore it if the said defence version were really true, then nothing prevented the Accused from putting forth the said defence by cross examining the Complainant. But the Accused has failed to do so. Moreover the Accused has also not denied or disputed that the cheque in question as well as the signature therein does belong to him and he has failed to explain as to how his cheque has come in the possession of the Complainant. This also gives rise to an adverse inference against the Accused.
21. On the contrary, the evidence of the Complainant, both oral as well as documentary, has remained unchallenged and rebutted. Therefore in the absence of any dispute or challenge to the unchallenged testimony of PW1, this Court has no hesitation to hold 12 C.C. No.6523 /2015 J that the Complainant is entitled to the benefit of the presumption available U/s.118 and 139 of the N.I. Act. Hence, I proceed to pass the following: -
ORDER By exercising the power-conferred u/s 265 of Cr.P.C., the Accused is hereby convicted for the offence punishable u/s 138 of Negotiable Instruments Act.
He is sentenced to pay a fine of Rs.28,00,000/- (Rupees Twenty Eight Lakhs only) within 30 days from today and in default of payment of fine, he shall undergo simple imprisonment for one year.
Out of the fine amount so collected Rs.27,90,000/-(Rupees Twenty Seven Lakhs and Ninety Thousand Only) is ordered to be paid to the Complainant as Compensation and the balance of Rs.10,000/- (Rupees ten thousand only) is ordered to be adjusted towards cost to the State exchequer..
The bail bond and surety bond of the Accused stands cancelled.
Issue free copy of Judgment to the Accused forthwith.
13 C.C. No.6523 /2015 J(Directly typed by me on the computer, print out taken by my Stenographer, verified, corrected and then pronounced by me in the open Court on this the 17th day of December, 2016).
(SARASWATHI.K.N), XVI Addl.CMM., Bengaluru City.
ANNEXURE
1. List of witnesses examined on behalf of the Complainant:
PW.1 : Bhojaraju
2. List of documents exhibited on behalf of the Complainant:
Ex.P-1 : Original cheque; Ex.P-1(a) : Signature of the Accused; Ex.P-2 : Bank challan; Ex.P-3 : Bank memo; Ex.P-4 : Office copy of the legal notice; Ex.P-5 & 6 : Postal receipts; Ex.P-7 : Postal acknowledgment; Ex.P-8 : Loan agreement;
Ex.P-8(a) to : Signatures on Ex.P8; 8(d) Ex.P-9 & 10 : Pronote & consideration receipt; Ex.P-9(a) & : Signatures on Ex.P-9 & 10;
10(a)
Ex.P-11 : Sale deed;
Ex.P-12 : Reply notice;
Ex.P-13 : Returned postal Notice;
Ex.P-14 : Postal cover;
14 C.C. No.6523 /2015 J
Ex.P-15 : Postal receipt;
Ex.P-16 : Postal acknowledgment;
Ex.P-17 : Bank Pass Book;
Ex.P-18 : Loan sanction letter;
Ex.P-19 : Mutation register copy;
Ex.P-20 : RTC extract;
Ex.P-21 : Visiting card;
Ex.P-22 : Brochure;
Ex.P-23 : ITR B-form.
3. List of witnesses examined on behalf of the Accused:
- Nil -
4. List of documents exhibited on behalf of the Accused:
- Nil -
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.15 C.C. No.6523 /2015 J
17.12.2016 Judgment pronounced in the open court vide separate order.
ORDER By exercising the power-
conferred u/s 265 of Cr.P.C., the Accused is hereby convicted for the offence punishable u/s 138 of Negotiable Instruments Act.
He is sentenced to pay a fine of Rs.28,00,000/- (Rupees Twenty Eight Lakhs only) within 30 days from today and in default of payment of fine, he shall undergo simple imprisonment for one year.
Out of the fine amount so collected Rs.27,90,000/-(Rupees Twenty Seven Lakhs and Ninety Thousand Only) is ordered to be paid to the Complainant as Compensation and the balance of Rs.10,000/- (Rupees ten thousand only) is ordered to be adjusted towards cost to the State exchequer..
16 C.C. No.6523 /2015 JThe bail bond and surety bond of the Accused stands cancelled.
Issue free copy of Judgment to the Accused forthwith.
(SARASWATHI.K.N), XVI Addl.,Chief Metropolitan Magistrate, Bengaluru City.