Bangalore District Court
Sri.Chandra.R vs M/S.Tirumala Industrial on 3 November, 2018
IN THE COURT OF LVII ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL UNIT, BENGALURU
-: PRESENT :-
PADMA PRASAD, BA (Law), LLB.
LVII ADDL. CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED THIS THE 3RD DAY OF NOVEMBER, 2018
C.C.No.51965/2014
COMPLAINANT : Sri.Chandra.R.
Aged 38 years,
S/o.D.Ramaiah,
No.93, Devasandra,
K.R.Puram Post,
Bangalore - 560036.
.Vs.
ACCUSED : M/s.Tirumala Industrial
Corporation,
Represented by its authorised
signatory Sri.Babu,
Aged about 47 years,
S/o Sri.Sabjan, At Masjid road,
Devasandra, K.R.Puram Post,
Bangalore 560036.
Also available, as at.
Sri.Babu,
Aged about 47 years,
S/o Sri.Sabjan,
Authorised signatory of
M/s Tirumala Industrial corporation,
Door No.6/1, 10 Cross,
At Masjid road, Devasandra,
K.R.Puram Post,
Bangalore - 560036.
****
2 C.C.No.51965-2014
JUDGMENT
The complainant filed this complaint against the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
2. The complaint case in nutshell is that the accused is the family friend of the complainant and in the month of September 2013 the accused approached the complainant for a loan of Rs.10,00,000/-. The complainant paid Rs.5,00,000/- to the accused in cash. The accused by acknowledging the said amount in cash has issued the post dated cheque bearing No.377754 dtd:05.12.2013 in favour of the complainant for a sum of Rs.5,00,000/- drawn on ING Vysya Bank. The complainant when presented the said cheque for encashment that has been returned without encashment with bank memo dtd:09.12.2013 stating "Funds Insufficient". The complainant claims that he has collected the bank memo on 19.12.2013. Thereafter the complainant caused a legal notice to the accused on 28.12.2013 that has been returned unserved as "insufficient address". The complainant further claimed that on 09.01.2014 he has issued one more notice under the registered post that has been served on the accused on 11.01.2014 Inspite of the receipt of the notice the accused failed to comply with the notice. Hence, filed the complaint.
3. After filing the complaint, sworn statement of the complainant has been recorded and on perusing the materials on record i.e., cheque, bank endorsement, legal notice and documents for having 3 C.C.No.51965-2014 been caused the notice to the accused, the court has been taken the cognizance of offence and issued summons to the accused.
4. In response to the summons, the accused appeared through his counsel and he was on court bail. Plea has been recorded; accused pleaded not guilty and claimed to be tried.
5. To prove the case, the complainant got examined himself as P.W.1 and got marked documents at Ex.P.1 to P.8.
6. On closure of complainant side evidence, the accused statement has been recorded under Sec.313(1)(b) of Cr.P.C., by placing the incriminating evidence appeared against the accused that are denied by the accused.
7. The accused examined himself as D.W.1 in support of his defense and also got marked documents at Ex.D.1 to 3. The accused totally denied the complaint case. The definite defense of the accused is that he has borrowed Rs.5,00,000/- from one D.A.Gopal in the year 2011 and at that time he has issued 2 signed blank cheques in favour of said D.A.Gopal. The accused further claimed that he has repaid the said amount to D.A.Gopal in the year 2012 through cheque but said D.A.Gopal has not returned the said cheque to him. The accused further claimed that he has not supported said G.A.Gopal in the Corporation Election. The accused also claimed that he has issued a stop payment instructions in respect of said cheques to his banker as the said D.A.Gopal failed to return the cheques. The 4 C.C.No.51965-2014 accused also disputed the service of notice. Accordingly prayed for dismissal of complaint.
8. On the basis of above, the point for consideration is that;
"Whether the complainant has proved that the accused has committed the offence punishable under Sec.138 of Negotiable Instruments Act?"
9. Heard the arguments and perused the materials on record. On that basis my finding on the above point is in the "Negative" for the following;
REASONS
10. The complaint case in nutshell is that the accused is the family friend of the complainant and in the month of September 2013 the accused approached the complainant for a loan of Rs.10,00,000/-. The complainant paid Rs.5,00,000/- to the accused in cash. The accused by acknowledging the said amount in cash has issued the post dated cheque bearing No.377754 dtd:05.12.2013 in favour of the complainant for a sum of Rs.5,00,000/- drawn on ING Vysya Bank. The complainant when presented the said cheque for encashment that has been returned without encashment with bank memo dtd:09.12.2013 stating "Funds Insufficient". The complainant claims that he has collected the bank memo on 19.12.2013. Thereafter the complainant caused a legal notice to the accused on 28.12.2013 that has been returned unserved as "insufficient address". The complainant further claimed that on 5 C.C.No.51965-2014 09.01.2014 he has issued one more notice under the registered post that has been served on the accused on 11.01.2014 Inspite of the receipt of the notice the accused failed to comply with the notice. Hence, filed the complaint.
11. The accused examined himself as D.W.1 in support of his defense and also got marked documents at Ex.D.1 to 3. The accused totally denied the complaint case. The definite defense of the accused is that he has borrowed Rs.5,00,000/- from one D.A.Gopal in the year 2011 and at that time he has issued 2 signed blank cheques in favour of said D.A.Gopal. The accused further claimed that he has repaid the said amount to D.A.Gopal in the year 2012 through cheque but said D.A.Gopal has not returned the said cheque to him. The accused further claimed that he has not supported said G.A.Gopal in the Corporation Election. The accused also claimed that he has issued stop payment instructions in respect of said cheques to his banker as the said D.A.Gopal failed to return the cheques. The accused also disputed the service of notice. Accordingly prayed for dismissal of complaint.
12. The complainant in support of his case examined himself as P.W.1 by filing evidence affidavit wherein he stated in consonance with the complaint case. The complainant also produced the documents at Ex.P.1 to 8 support of his case. The Ex.P.1 is the cheque, Ex.P.2 is the bank endorsement, Ex.P.3 and Ex.P.8 are the office copy of the legal notice, Ex.P.4 and 5 are two postal receipts, 6 C.C.No.51965-2014 Ex.P.6 is the returned postal cover and Ex.P.7 is the postal acknowledgment. On the basis of these documents, the complainant claims that he has advanced the money of Rs.5,00,000/- to the accused and towards the discharge of said debt, the accused has issued the Ex.P.1 cheque that has been bounced for want of funds in the bank account of the accused. Thereafter he has issued the legal notice and the accused inspite of the receipt of notice failed to comply with the notice. Hence, claimed that accused has committed the offence punishable under Sec.138 of N.I.Act.
13. In this case the accused totally disputed complaint case. The accused disputed the issuance of the cheque in favour of the complainant. The specific claim of the accused is that this cheque has been issued to one D.A.Gopal who is the relative of complainant and the said D.A.Gopal misused the cheque through this complainant. The accused also disputed the issuance of notice within 30 days from the bank endorsement and claimed that the accused failed to comply with sub Section (b) of 138 of N.I.Act. The accused also claimed that he has issued the stop payment instructions in respect of this cheque. The burden of proving all these facts are on the accused.
14. As the accused disputed the transaction as well as causing of notice in time, the burden shifts on the complainant to prove that he has advanced the money to the accused in time and the said cheque has been bounced and thereafter he has caused the legal notice in 7 C.C.No.51965-2014 time. At this juncture, it is also relevant to note that relative of this complainant namely Gowtham who is the son of D.A.Gopal filed one more case against this accused in C.C.No.51967/14. The case made out in both the cases are identical to each other and the defense is also identical in both the cases.
15. In this case the complainant claims that during the 1st week of September 2013, this accused approached the complainant for a hand loan of Rs.10,00,000/-. Considering the acquaintance with the accused, the complainant paid Rs.5,00,000/- to the accused in cash. The complainant also claims that the accused in acknowledging the receipt of the same has issued a post dated cheque bearing No.377754 dtd:05.12.2013 for a sum of Rs.5,00,000/- and when the complainant presented the said cheque that has been dishonoured and thereafter caused a notice and filed a complaint etc., but the entire complaint nowhere discloses the date of advancing the loan. Why the complainant has not discloses the date of advancing of the loan is without any explanation.
16. The accused also claimed that this cheque involved in this case has been issued to one D.A.Gopal, when he has borrowed a sum of Rs.5,00,000/- from D.A.Gopal in the year 2011 and at that time he has issued 4 blank signed cheques and the accused has repaid the same in the year 2012 and inspite of repayment of money, the said D.A.Gopal has not returned the said cheques to the complainant. Subsequently, when the said D.A.Gopal contested the Corporation 8 C.C.No.51965-2014 Election, this accused has not supported him. Hence, the said D.A.Gopal has got filed false cases against this accused through his son Gowtham as well as this complainant who is his relative.
17. In support of the aforesaid contention, the accused has produced the used cheque book at Ex.D.1 and his bank statement at Ex.D.2 as well as stop payment register extract at Ex.D.3. The Ex.D.1 is the document maintained by the accused. The said document can be accepted only if the accused produces the corroborative evidence to that effect. Ex.D.2 discloses that this accused has paid Rs.5,00,000/- to D.A.Gopal as on 24.02.2012. The Ex.D.1 also discloses the issuance of various other cheques. When these cheques have been encashed is not explained by the accused and even the bank statement does not disclose the encashment of those cheques.
18. The accused also claimed that he has issued stop payment instructions as the complainant failed to return the cheque but when actually this accused has issued the stop payment instructions is without any explanation. The accused produced the stop payment register extract maintained by the Kotak Mahindra Bank at Ex.D.3. The said stop payment register extract at Ex.D.3 discloses that it is from 04.12.2015 to 04.12.2015. Of course in the 1st column it is stated the date of cheque but when actually stop payment instructions has been issued by the accused to the bank or when the bank has received such stop payment instructions by the accused is 9 C.C.No.51965-2014 not revealed in the said document. Hence, the admission given by the accused during the cross-examination has to be considered and accepted. During the course of cross-examination, this accused claimed that he has issued the stop payment instructions to his banker after filing of this case by the complainant. The complainant filed this complaint in the year 2014. The stop payment register extract discloses that it is from 04.12.2015 to 04.12.2015. The said entry leads to draw inference that the accused might have issued the stop payment instructions in respect of these 4 cheques as on 04.12.2015 otherwise this accused would have made out a case that on which date he has issued the stop payment instructions.
19. Admittedly, this accused claimed that he has repaid the amount due to D.A.Gopal as on 24.02.2012. If it were so, the accused ought to have issued the stop payment instructions in the year 2012 itself but there is no material on record to show that the accused has issued the stop payment instructions in the year 2012. It is relevant to note that the cheque has been bounced for the reasons "Funds Insufficient". Therefore, it is clear that the cheque has not been dishonoured in view of the stop payment instructions. If at all this accused has issued stop payment instructions to his banker, the cheque would have dishonoured for the said reasons and not for want of funds in the bank account of the accused. Even this fact as well as date found in Ex.D.3 discloses that there are no stop payment instructions by the accused to his banker as on the date when the cheque has been presented for encashment by the 10 C.C.No.51965-2014 complainant. Apart from that if really this accused has issued stop payment instructions in the year 2012, the accused would have called for the letters submitted by him regarding the issuance of the stop payment instructions or he would have retained some copies with him for having been sent the stop payment instructions. Apart from that what is the reason assigned by him for issuing the stop payment instructions to his banker is without any explanation. All these facts sufficiently discloses that the stop payment instructions is an afterthought by the accused otherwise certainly this accused would have given a reply to the notice or he would have chosen to examine the bank officials regarding the stop payment instructions. In the absence of any such case, the case of the accused cannot be accepted.
20. It is true that the notice sent by the complainant to the accused after bouncing of the cheque has been returned with the postal endorsement stating "insufficient address". The complainant subsequently as on 09.01.2014 issued one more notice that has been duly served on the accused. Inspite of the service of notice, the accused has not issued any reply. Apart from that the accused also disputed the service of notice. In spite of receipt of 2nd notice, the accused denied the service of notice. All these facts sufficiently disclose that this accused has taken false defense in the case. It is well settled principle of law that false defense always conjoins the missing link in the prosecution case.
11 C.C.No.51965-201421. Further, the defense of the accused also appears that it is an afterthought and not a valid or true defense. Further, it is also relevant to note that the accused claimed that he has repaid the money to the D.A.Gopal as on 24.02.2012. Thereafter, the accused has not issued any notice in writing to said D.A.Gopal claiming that he has issued 4 cheques to him and asking him to return the said cheques. Further, if at all there is any stop payment instruction by the accused/account holder in respect of the cheque, then the bank will deduct some charges for stop payment instructions from the respective bank account. The accused would have produced his bank statement to show that in view of the stop payment instructions, his banker has deducted some charges. Why the accused has not produced his complete bank statement is also without any explanation. All these facts certainly falsifies the claim of the accused and probablise the case of the complainant that this accused has borrowed money not only from D.A.Gopal and also from this complainant and towards the discharge of said debt, he has issued the Ex.P.1 cheque in favour of the complainant and that has been dishonoured for want of sufficient funds in the bank account of the accused.
22. The accused has taken one more defense in the case is that no legal notice has been served to the accused or issued within 30 days from the dishonour of cheque. Admittedly, in this case the cheque has been dishonoured as per the bank memo dtd:09.12.2013. The complainant claimed that he has received the said bank memo as on 12 C.C.No.51965-2014 19.12.2013. The said fact has been seriously disputed by the accused claiming that this complainant has received the bank endorsement as on 09.12.2013. The claim of the accused is that the date 19.12.2013 has been claimed by the complainant is to bring the case in time. Hence, the admission given by the complainant is also relevant regarding the receiving of bank endorsement. In the cross- examination at page No.3, 2nd paragraph, 2nd line onwards the admission given by the complainant reads as;
"It is true that when I have visited bank on 09.12.2013 I came to know about the fact that the cheque issued by the accused has been bounced. It is true that on 09.12.2013 itself I have received the bank memo at Ex.P.2 and Ex.P.1 cheque".
23. This admission of complainant sufficiently discloses that he has received the bank memo at Ex.P.2 as on 09.12.2013. As per sub Section (b) of Section 138 of N.I.Act; the complainant has to issue demand notice within 30 days from the receipt of bank memo. Even if the date of receipt of bank memo i.e., 09.12.2013 has been excluded, even then the complainant ought to have issued notice on or before 08.01.2014. In this case the complainant has issued the 2nd notice on 09.01.2014 which is beyond 30 days time prescribed under Sec.138(b) of N.I.Act.
24. The claim of the complainant that after the dishonour of cheque, he has issued the 1st notice on 28.02.2013 and that has 13 C.C.No.51965-2014 been deliberately not received by the accused and accordingly claims that there is a valid service of notice. Hence, the address stated in both the notices is a relevant factor to be considered that whether the notice has been duly served or whether the complainant has sent the notice to the correct address of the accused. The 1st notice dtd:28.12.2013 has been returned without service as per Ex.P.6 postal cover with postal endorsement "insufficient address returned to sender". The address stated in the said notice reads as;
"M/s.Tirumala Industrial Corporation Rep. by.
Sri.Babu S/o.Sabjan At. Masjid Road, Devasandra, K.R.Puram Post, Bangalore 560036."
25. The complainant has to prove that this is the correct postal address of the accused otherwise, it cannot be said that there is a valid service of the notice as the notice has been returned with the postal endorsement stating "insufficient address". According to the postal authority the address mentioned in the Ex.P.6 postal cover is not the complete address so that they can deliver the notice. Now, whether the said address is the correct address of the accused or not to be considered by this court. It is relevant to note that the complainant has issued one more notice at Ex.P.8. In the said Ex.P.8 notice, the complainant has mentioned the aforesaid address along with one more address that reads as;
14 C.C.No.51965-2014"Sri.Babu, Represented by authorized signatory of M/S. Tirumala Industrial Corporation, R/at No.6/1, 10th Cross, Near Hotel Shareef, Maszid Road, Devasandra, K.r.Puram Post, Bangalore 560036."
26. The notice to the accused has been served to this address as per postal acknowledgment Ex.P.7. It is relevant to note that this notice has been returned with postal endorsement stating "insufficient address". The 2nd address stated in the legal notice at Ex.P.8 discloses that the complete address has been stated by the complainant. Therefore, it is clear that the 1st notice has not been posted to the correct address of the accused and the address stated in the 1st notice is incomplete address.
27. It is also relevant to note that P.W.1 during his cross- examination at page No.3, 1st paragraph last 3 lines stated that;
"The place wherein the accused is doing his business situated beyond 4 streets from Masjeed road"
28. Even this admission given by the complainant discloses that no notice has been sent to the correct address as per Ex.P.6. Hence, the question of service of notice certainly does not arise and it cannot be accepted that notice has been sent to the correct address so that it can be inferred that the notice has been duly served or the accused has the knowledge of the notice.
15 C.C.No.51965-201429. The 2nd notice has been issued on 09.01.2014 which is beyond the period of 30 days. Hence, it has to be accepted that the complainant has failed to cause the demand notice within 30 days from the receipt of bank memo after the dishonour of cheque. When the complainant failed to comply with the statutory provisions under Sec.138 (b) of N.I.Act, certainly it cannot be accepted that the accused has committed the offence under Sec.138 of N.I.Act. If the complainant satisfies that Sec.138 (a) to (c) of N.I.Act. has been complied, then only the offence under Sec.138 of N.I.Act will be completed. In the instant case on hand, the complainant failed to establish that the 1st notice has been sent to the proper and correct address. Admittedly, the said 1st notice has been returned with postal endorsement stating "insufficient address". Subsequently, the complainant has sent one more notice dtd:09.01.2014 by mentioning the specific door number, specific cross and has given a complete address. The said notice has been duly served. If at all this accused has any knowledge of the 1st notice and if he has deliberately not received the notice and managed to return the notice, certainly he would have also refused to receive the notice and also would have managed to get similar endorsement to that of 1st notice. The material on record clearly shows that the accused has received the notice dtd:09.01.2014. In view of these facts it cannot be said that the complainant has posted the 1st notice dtd:28.12.2013 to the correct address and so that the court can infer the service of notice as per Sec.27 of General Clauses Act.
16 C.C.No.51965-201430. In this case it is relevant to note Sec.138(b) of N.I.Act that reads as;
"(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"
31. The aforesaid provision of law makes it clear that the demand for the payment of cheque amount after the bouncing of the cheque must be made within 30 days from the date of receipt of bank memo. The complainant specifically during the cross-examination admitted that he has received the bank memo as on 09.12.2013. As per the General Clauses Act, even if the date of bank memo is excluded even then the demand notice ought to have been sent on or before 08.01.2014. Admittedly, the 2nd notice is issued on 09.01.2014. If at all there is any service of notice as per the notice sent on 28.12.2014, there is no necessity for the complainant to cause the 2nd notice. Apart from that the 2nd notice is totally unknown to Sec.138 of N.I.Act. In this case, the demand notice has not been sent to the correct address of the accused within 30 days from the date of receiving the bank memo.
32. Section 138 of N.I.Act makes it clear that the compliance of sub Section (a) to (c) is mandatory to complete the offence under 17 C.C.No.51965-2014 Sec.138 of N.I.Act. In the instant case on hand, the complainant has failed to prove that there is a compliance of Sec.138(b) of N.I.Act. When the complainant failed to comply with Sec.138(b) of N.I.Act, it cannot be said that the accused has committed the offence under Sec.138 of N.I.Act. Of course the complainant has proved that he has advanced the amount of Rs.5,00,000/- to the accused and the accused issued the cheque towards the discharge of said debt and that has been dishonoured for want of funds in the bank account of the accused but as he failed to comply Sec.138(b) of N.I.Act, it cannot be said that the accused has committed the offence punishable under Sec.138 of N.I.Act. Therefore, this court is of the humble opinion that the accused has failed to prove his case beyond reasonable doubt. Accordingly I answer the above point in "Negative". In the result, following;
ORDER Acting under Sec.255(1) of Cr.P.C. the accused is hereby acquitted for the offence punishable under Sec.138 of Negotiable Instrument Act.
The bail bond stands cancelled.
(Dictated to the Stenographer, transcript thereof is corrected and then pronounced by me in the open court on this the 3rd day of November, 2018) (PADMA PRASAD), LVII ACMM, BENGALURU.
18 C.C.No.51965-2014ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Sri.Chandra R
2. Documents marked on behalf of complainant:
Ex.P.1 : Cheque
Ex.P.1(a) : Signature of the accused
Ex.P.2 : Bank return memo
Ex.P.3 : O/c of the legal notice
Ex.P.4 & : 2 Postal receipt
Ex.P.5
Ex.P.6 : Unserved postal cover
Ex.P.6(a) : Unserved notice
Ex.P.7 : Postal acknowledgment
Ex.P.8 : O/c of the legal notice
3. Witnesses examined on behalf of Accused:
D.W.1 : Sri.Sheikh Babu
4. Documents marked on behalf of Accused:
Ex.D.1 : Cheque with counter foil
Ex.D.1(a) : Relevant page in Ex.D.1
Ex.D.2 : Bank statement
Ex.D.2(a) : Relevant page in Ex.D.2
Ex.D.3 : The stop payment register extract
(PADMA PRASAD)
LVII ACMM, BENGALURU.