Bangalore District Court
Sri. D.S. Krishna Murthy vs Jithesh .N. Mehtha on 31 October, 2017
IN THE COURT OF THE XII ADDL. CHIEF
METROPOLITAN MAGISTRATE, AT BENGALURU
Dated this the 31st day of October 2017
Present: Sri. Rajkumar .S.Amminbhavi., B.Com., LLB (Spl)
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No. 27005/2010
Complainant: Sri. D.S. Krishna Murthy
@ D.S.K. Murthy
S/o. Late Satyanarayana Gupta
Aged about 57 years
R/at. No.103, Susheela Road
Dodda Mavalli
Bengaluru-560 004.
(By Smt. Kalpana Sukumar. Adv)
- Vs -
Accused: Jithesh .N. Mehtha
S/o. Nanalal .G. Mehta
Aged about 45 Years
R/at. No.25, Kanakapura Road
Bengaluru-560 004.
(By A.C.Nagaraj. Adv)
Offence U/s138 of Negotiable
Instruments Act.
Plea of the accused Pleaded not guilty.
Final order Convicted
******
JUDGMENT
2 C.C.27005/2010
1. The Complainant filed this Complaint against the accused U/s.200 of Cr.PC for the offence punishable U/s 138 of N.I.Act.
2. The brief facts of the case of the complainant are; both the complainant and accused are well known to each other, since they are residing the same locality from more than 5 years and the accused being the chit member in the complainant chit company run under the name and style as Sri. Gaurav Chits Private Limited. On account of well acquainted with the complainant, the accused had requested and demanded for advancement of hand loan amount of Rs.1,00,000/- in the month of March 2009 for his immediate requirements and accordingly, believing on good faith and on humanitarian ground, the complainant had advanced an amount of Rs.1,00,000/- to the accused on 10.03.2009 and at that time the accused had assured that, he will repay the said amount within a period of August 2009. After lapse of stipulated period, on repeated request and demand made by the complainant to the accused for repayment of the said amount and at that time the accused for the discharge of the said borrowed loan amount, he had issued cheque bearing No.435349, dated:10.08.2009 for a sum of Rs.1,00,000/- drawn on The Consoms Co-Operative Bank Limited, Pune, Basavanagudi Branch, Bengaluru in favour of the complainant and assured that, the said cheque would be honoured on its presentation and as per the assurance made by the 3 C.C.27005/2010 accused, the complainant has presented the said cheque through his banker i.e., Srinidhi Sahakar Co-Operative Bank, V.V.Puram Branch, Bengaluru and it was dishonoured with an endorsement as "Funds Insufficient"
on 27.08.2009 and thereafter, the complainant has informed the said fact to the accused, but the accused did not responded the same, then, the complainant has got issued the legal notice on 08.09.2009 through his counsel by way of RPAD to the accused calling upon him to repay the borrowed the loan amount within 15 days from the date of receipt of the said legal notice and it was duly served upon the accused and after receipt of the legal notice the accused has gave evasive and untenable reply by taking specific defence as per the para No.3 that, " Our client submit that, he has entered into an agreement with your client to subscribe a chit for Rs.1,00,000/- and every month, he has promptly plaid the cash amount by way of installment as follows:-
Chit No. Date Receipt Amount Paid
No. Mode
1 13.10.2007 4,000.00 Cash
2 15.11.2007 137 4,000.00 Cash
3 15.12.2007 204 2,604.00 Cash
4 12.01.2008 224 2,605.00 Cash
5 15.02.2008 357 2,876.00 Cash
6 15.03.2008 380 2,856.00 Cash
7 15.04.2008 2,780.00 Cash
4 C.C.27005/2010
8 15.05.2008 629 2,956.00 Cash
9 15.06.2008 725 2,996.00 Cash
10 08.07.2008 755 2,820.00 Cash
11 17.08.2008 902 3,000.00 Cash
12 19.09.2008 880 3,328.00 Cash
13 08.10.2008 986 3,396.00 Cash
14 25.11.2008 1170 3,424.00 Cash
15 24.12.2008 3,560.00 Cash
16 15.01.2009 1315 3,600.00 Cash
17 20.02.2009 1464 3,640.00 Cash
18 19.03.2009 1540 3,640.00 Cash
19 16.04.2009 1636 3,684.00 Cash
20 19.05.2009 1735 3,744.00 Cash
Total 65,509
Our client has paid the installments amount up-to date on 12.06.2009 our client was the highest bidder in respect of Auction conducted by your client on 12.06.2009 and the said chit was auctioned for R.5,100/- and your client has requested our client to furnish a blank cheque duly signed by your client with an assurance that, he will make the payment after receiving the cheque. Our client duly issued a cheque bearing No.435349 drawn on the Cosmos Co-Op Bank Limited., Basavanagudi Branch, Bengaluru. Despite our client personal visits and repeated request your client has not paid the chit amount which comes to Rs.94,900/-. Hence, our client got issued a legal notice dated:06.09.2009."
Further, denied the claim of the complainant and not paid the borrowed the loan amount. Hence, the complainant 5 C.C.27005/2010 had constrained to file the present complaint against the accused for the offence punishable under Section 138 of N.I.Act., which is well within time and perused the documents and taken cognizance and register the case in PCR.
3. After recording the sworn Statement of the complainant and the register 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. In order to prove the case of the complainant, the complainant got himself examined as PW.1 & got 7 documents marked as Ex.P.1 to Ex.P.7 and during the course of cross-examination of PW-1 the counsel for the accused has confronted certified copy of the complaint in PCR No.24608/2011 on the file of 8th ACMM Court at Bengaluru and same is admitted the complainant and same is marked as Ex.D1 and he has been fully examined and the statement of the accused under Section 313 of Cr.P.C., was recorded and he denied the incriminating statement recorded against him and the accused himself examined as DW-1 and during his cross-examination the counsel for the complainant has confronted that, the 6 C.C.27005/2010 certified copy of the cheque, Pronote and surety bond which were marked as Ex.P1, Ex.P11 and Ex.P12 in C.C.No.27019/2010 and same are admitted by the DW-1 and same are marked as Ex.P8 to Ex.P10 respectively 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.435349, dated:10.08.2009 for a sum of Rs.1,00,000/- drawn on The Cosmos Co-Operative Bank Limited, Pune, Basavanagudi 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;
Point No.1 : In the Affirmative
Point No.2 : As per final order for the
following;
REASONS
7 C.C.27005/2010
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 7 documents namely, cheque which is marked as Ex.P1, the signature of the accused therein which is marked as Ex.P1(a), the bank endorsement which is marked as Ex.P2, the office copy of the legal notice which is marked as Ex.P3, the reply notice which is marked as Ex.P4, reply by the postal authority which is marked as Ex.P5, the DTDC Courier receipt which is marked as Ex.P6, the complaint which is marked as Ex.P7.
9. During the course of cross of PW-1, he has deposed that, he was running the chit business in the year 2007 and for which he was obtained the license from the competent authority. He deposed that, he was running the chit business of Rs.50,000/-, Rs.1,00,000/-, Rs.2,00,000/- and Rs.3,00,000/- and now he was stopped chit business of Rs.50,000/-. It is true that, the accused was member of the chit amount of Rs.1,00,000/- in the year 2007 and in the said chit 25 members were having membership and they were paying monthly installments amount of Rs.4,000/- for a period of 10 months. He deposed that, the accused was took chit amount of Rs.81,440/- through cheque and an amount of Rs.3,560/- by way of cash. He denied the suggestion that, at that time, he was obtained the Ex.P1 cheque for the security purpose. He deposed that, at that time he has took three documents i.e., surety 8 C.C.27005/2010 bond, receipt bond and promissory notice from the accused, when he had paid above said chit amount to the accused. He deposed that, ten monthly installment chit amount of Rs.4,000/- was closed, but the accused has not paid the entire chit amount and he was due an amount of Rs.20,000/- and to that effect, he has filed the petition before the Arbitration against the accused for due amount of Rs.20,000/- pertain to the last five monthly installments due amount and with respect to the due amount, he has not issued letter to the accused. It is true that, he used to submit all particulars of chit transactions in every month to the Registrar. He deposed that, wife of the accused was also member of the chit amount of Rs.3,00,000/- by paying monthly installments of Rs.15,000/-. He deposed that, the accused was also chit member of the Dhanalakshmi Group for Rs.3,00,000/- and Varalakshmi Group for Rs.1,00,000/-. He deposed that, with respect to the Danalakshmi Group the accused was due an amount of Rs.1,05,000/- and to that effect, he had filed the petition before the Arbitration for recovery of the said amount.
10. During the course of further cross the PW-1 has deposed that, loan in question was paid by him to the accused on 10.03.2009 in his office by way of cash and at that time his wife was also present. He deposed that, he has paid the said amount of Rs.1,00,000/- to the accused out of it the amount of Rs.60,000/- by way of cash kept in 9 C.C.27005/2010 his house and remaining amount of Rs.40,000/- received from his wife and at that time his wife was also director of the chit business run by him. He deposed that, he has maintained his personal bank account in Srinidhi Co- Operative Bank, Subramanya Co-Operative Bank, V.V.Puram, Bengaluru and he has deposited his personal amount in his personal account. It is true that, he has not shown the date of loan in question as on 10.03.2009 either in his complaint or in his legal notice. He denied the suggestion that, he has not having capacity for advancement of the loan in question to the accused. It is true that, he has not shown in his complaint and legal notice, evidence that, he has took an amount of Rs.40,000/- from his wife and advanced the same along with an amount of Rs.60,000/- from him. He denied the suggestion that, the writings in Ex.P1 cheque, date column and other writings and signature are different ink. He denied the suggestion that, the accused has not at all issued Ex.P1 cheque for discharge the loan in question and same was kept with him towards chit funds. He deposed that, apart from said chit, wife of the accused was also one of the chit member of Rs.3,00,000/- and the wife of the accused was bid the chit amount, but he has not paid the chit amount to the accused till today. It is true that, the chit fund of Rs.3,00,000/- of the accused is still with him, because wife of the accused still not paid an amount of Rs.1,05,000/- for which, the accused has stood as surety.
10 C.C.27005/2010He deposed that, since an amount of Rs.1,00,000/- is his personal amount, he had not made any efforts to adjust the same out of the chit amount of Rs.3,00,000/- nor such intention was communicated to the accused in writing. It is true that, there is no difficult for him to convey such information in writing. He deposed that, subsequent to the bidding of the chit amount of Rs.3,00,000/- by the accused, he has taken a surety bond, receipt bond, pronote bond and cheque in relation to future installments payable by him. It is true that, he has also filed similar case against the wife of the accused before the 27th ACMM Court at Bengaluru. It is true that, he has also taken a surety bond, receipt bond, pronote bond and cheque from the wife of the accused in relation to the prize amount of Rs.3,00,000/-. He know the rules and regulation with respect to the chit funds business.
11. During the further cross of PW-1, he denied the suggestion that, prior to get the license to run the chit business, he was doing illegal money transaction. He deposed that, at the time of advancement the loan in question on 10.03.2009 he was not taken any receipts from the accused except Ex.P1. It is true that, in the year 2008 wife of the accused was bid the chit amount of Rs.3,00,000/- for prize amount of Rs.2,47,7000/-. It is true that, on 10.03.2009 the accused was to repay of Rs.1,00,000/- towards personal loan. He denied the 11 C.C.27005/2010 suggestion that, if really he was liable to discharge the loan in question by the accused, he should have deduct the liability out of the chit prize amount which was paid to his wife. It is true that, there is no impediment to him to reflect the factum of issuance of Ex.P1 by the accused on 10.03.2009 in his legal notice issued by him as per the Ex.P3 and also, he has not reflected in his legal notice, complaint and examination-in-chief that, the accused has issued Ex.P1 on 10.03.2009. He has deposed that, he has not produced any documents before this Court except the cheque in question to show that, as on 10.03.2009 the accused was due an amount of Rs.1,00,000/- as personal loan. It is true that, as on the date of bidding or before the payment of chit prize amount, he used to take a cheque, receipt, surety bond and promissory note from the bidder. It is true that, the accused was become the member of a chit for Rs.1,00,000/- in the year 2007 and that chit amount was bid and he had received the said prize amount. It is true that, at the time of paying the chit prize amount, he had taken a cheque, on demand promissory note, surety bond and receipt from the accused, but he was volunteers that, except the cheque, he has not taken other documents. He deposed that, he is an income tax assessee and he used to pay the income tax and in the year 2008-09 he was submitted his income returns to the competent authority, but this transaction in question is different from, the chit transaction and thereby, he has not shown the 12 C.C.27005/2010 said loan in question in his income tax returns and thereby, he has not produced any documents with respect to the income tax return submitted by him. He denied the suggestion that, the accused has given the cheque in relation to the chit amount of Rs.1,00,000/- run by him, but witnesses volunteers that, the accused has given fully filled up cheque in question in his own hand writing. He denied the suggestion that, contents written on the Ex.P1 are different ink and with different hand writing from the said signature marked as Ex.P1(a). He deposed that, he has no objection to refer writing on the Ex.P1 cheque for expert opinion. It is true that, the date written on the cheque is in different ink from the ink found in the Ex.P1(a), but witness volunteers that, date written by him and same has been endorsed and acknowledged with his signature by the accused.
12. It is true that, he was running chit business by obtaining the license from the competent authority and the accused being the one of the chit member of Dhanalakshmi Chit for an amount of Rs.3,00,000/-, since the Dhanalakshmi chit is different from the transaction in question and thereby, he has not produced any documents before this Court, since the accused was bid the chit amount of Dhanalakshmi chit, but he has not paid the prize amount, since the accused being the one of the surety to the another member of the said chit and thereby, he has not paid the chit prize amount to the accused with respect 13 C.C.27005/2010 to the Dhanalakashmi chit. He deposed that, the accused has issued Ex.P1 on 10.03.2009 on the date, when he was advanced the loan in question and to that effect, he has not specifically stated in his legal notice and in his examination-in-chief, since the date of advancement the loan in question on 10.03.2009 the accused has issued Ex.P1 and to that effect, he has not obtained any documents from the accused. He deposed that, he has advanced the loan in question out of the amount kept in his house and the said amount was paid by way of cash. He deposed that, as on 10.03.2009 the accused was paid 13 monthly chit amount with respect to the Dhanalakshmi chit fund and that amount was retained with him, since the accused was as stood as security for one of the member of chit viz., Smt. Mithra and the said Mithra was not paid installments amount and thereby, he was got transferred said 13 installment amount of the accused in the membership account of Smt. Mithra. It is true that, he has filed two petition before the Registrar of Co-Operative Societies against the accused, but to that effect, he has not produced any documents in this case, since the accused was due an amount of Rs.1,05,000/- with respect to the Dhanalakshmi Chit funds and an amount of Rs.20,000/- with respect to the Varalakshmi Chit Funds. He deposed that, he was doing chit business apart from that, he was doing real estate business, but to that effect, he has not produced any documents. He deposed that, in the year 14 C.C.27005/2010 2009 he was running Ashwarya Chit Groups, Gajalakshmi Chit Groups, Varalakshmi Chit Groups and Dhanalakshmi Chit Groups and he was running the said chits groups as per the rules and regulations. It is that, in the year 2011 he was filed the complaint against the wife of the accused before the 8th ACMM Court in PCR No.24608/2011 and copy of the complaint is confronted to the PW-1 and same is marked as Ex.D.1. It is true that, on 19.01.2011 he has filed the petition before the Registrar Corporative Society, Bengaluru-560 022. He denied the suggestion that, in the year 2007 he was running illegal chit business and at that time he has obtained the Ex.P1 cheque from the accused for the security purpose. He denied the other suggestion.
13. During the course of defence evidence the accused himself examined as DW-1 by way of filing his examination-in-chief by way of affidavit, wherein he has specifically stated that, he know the complainant since 15 years, himself and his wife by name Divya Metha were members of the chit run by the complainant. He deposed that, in the year 2006 their financial transaction was started and he being the member of the chit run by the complainant for Rs.1,00,000/- paying the monthly installments amount of Rs.4,000/- for 25 months and there is no written agreement with respect to the chit run by the complainant. He deposed that, he was bid above said chit in the month of June 2007 and at that time the 15 C.C.27005/2010 complainant has taken his cheque Ex.P1 for the security purpose with respect to the further installments and as per the request made by the complainant, he has given cheque in his personal name. He deposed that, the complainant was started the registered chit Company under the name and style as "Sri. Gaurav Chits Private Limited in the month of October 2007 and in that chit company he was one of the chit member an amount of Rs.1,00,000/- by paying monthly installments of Rs.4,000/- for a period of 20 months and he being one of the chit member and to that effect, agreement was entered between himself and the complainant under the Chit Fund Act.
14. Further, he deposed that, when the unregistered chit came to end and he had requested the complainant to return his cheque in question which was given by him for the future security, at that time, the complainant has stated that, said cheque was misplaced and thereby, he need not give another cheque, when he was bid for the chit of Rs.1,00,000/- believing on their relations at that time, he was trusted him and let him keep the cheque within him. Thereafter, the complainant again started another chit for a sum of Rs.3,00,0000/- in the month of May-2008 payable at Rs.5000/- every monthly installments for a period of 20 months and thereon he had subscribed for two chits i.e., one chit in his name and another chit in his wife's name. He deposed that, three months before the 16 C.C.27005/2010 alleged loan date i.e., 10.03.2009 on 30.12.2008 he had given a personal loan of Rs.3,00,000/- to one of the friend of the complainant i.e., Mohan who lives in Mysore, the amount was handed over to his wife i.e., Nagashree in the office of the complainant and the complainant has put his signature as witness to the transaction and at that time the complainant has also collected commission from her and stated that, he has recommended Mr. Jithesh to give the money. He deposed that, he had given an amount of Rs.3,00,000/- to one Nagashree on 30.12.2008 against the deposit of her property documents and Mohan had returned the money of Rs.3,00,000/- in the first week of February 2009 and the amount of was lying with him even till and at the end of March 2009 there was no need to borrow any loan amount from the complainant. Further, he has deposed that, he has subscribed for three chit in the chit company run by the complainant i.e., one chit an amount of Rs.1,00,000/- in his name, another chit an amount of Rs.3,00,000/- in his name and one more chit an amount of Rs.3,00,000/- in the name of his wife i.e., Divya J.Metha. Further, he has submitted that, as on the date of alleged loan in question on 10.03.2009 the accused was eligible to bid for any of the three chit, but he did not bid for any one of the three chits, because, he was not in need of any money and there was a credit balance in all three chits an amount of Rs.4,02,000/- i.e., one chit an amount of Rs.1,65,000/-, another chit an amount of Rs.1,65,000/-
17 C.C.27005/2010and one more chit an amount of Rs.72,000/-, since there was no necessity for borrowed the loan in question from the complainant and on the alleged date only when he has given Ex.P1 cheque for the security purpose for his future installments and thereafter, the complainant has misused the cheque in question and filed the false complaint against the accused. Hence, for all other reasons, he prays for dismissal of the present complaint.
15. During the course of cross of DW-1 he has deposed that, he know the complainant since four years. He deposed that, Ex.P1 cheque is belonging to his own bank account cheque and signature found on the Ex.P1(a) is his own signature. It is true that, he being the member of the chit under the name and style as "Sree Gaurav Chits"
which was run by the complainant an amount of Rs.1,00,000/- and another chit having an amount of Rs.3,00,000/- in the name of his wife. It is true that, his wife is an household women and she was not having any other source of income, but witness volunteers that, his wife running Tuition Classes and getting income. It is true that, he used to pay the chit installments amount in his name and also in the name of his wife name. It is true that, in C.C.No.27019/2010 cheque which was marked as Ex.P1 with respect to an amount of Rs.1,20,000/- and he has bid the chit amount in the name of his wife and accordingly, he had issued his wife's bank account cheque 18 C.C.27005/2010 in the name of "Gaurav Chits Funds Limited" and the certified copy of the cheque Ex.P1 which was marked in C.C.No.27019/2010 and said Ex.P1 which was confronted to the accused and he has admitted said document and which is marked as Ex.P8. It is true that, contents written on the Ex.P8 in his own handwriting. It is true that, in Ex.P8 mentioned an amount of Rs.1,20,000/- for future installments amounts and the said cheque had been issued for future installments amount. It is true that, at the time of making installments amount on behalf of his wife in the aforesaid C.C.No.27019/2010 he had given pronote and surety bond and the said documents were marked in that case as per Ex.P11 and Ex.P12 and same are confronted to DW-1 and he has admitted those Ex.P11 and Ex.P12 same are marked in this case as Ex.P9 and Ex.P10. He denied the suggestion that, there was personal financial transaction held between himself and complainant. He deposed that, he has never borrowed the loan in question from the complainant. It is true that, he has not lodged any police complaint or private complaint against the complainant with respect to the Ex.P1 was stolen by the complainant. He denied the suggestion that, he was first deposing falsely time before this Court that, Ex.P1 was stolen.
16. In further cross of DW-1 he denied the suggestion that, chit fund amount was withdrawn by him in the name 19 C.C.27005/2010 of his wife on 15.04.2009 and that amount was kept in his house, because he has not having any other amount in his house by way of cash, but witness volunteers that, he was doing real estate business and to that effect, that amount kept in his house. It is true that, he has not produced any documents with respect to that, he was doing real estate business and from his real estate business how much commission amount received on which dates. He denied suggestion that, he was not doing real estate business and he was not receiving any amount on commission basis and thereby, he has not produced any documents to that effect. He denied the suggestion that, in his examination-in-chief at para No.9 and 10 stated that, his friend by name Mohan and his wife Nagashree were borrowed the loan from him and said amount was paid to them in office of the complainant. He denied the suggestion that, there was no transaction held between himself and Nagashree and her husband and it was not at all related to the case in hand, since the Ex.P8 to Ex.P11 are related to the chit transaction and thereby, said documents are not pertain to the case in hand. He denied the suggestion that, knowing fully he was borrowed the loan in question from the complainant and for discharge the loan in question, he has issued Ex.P1 without having sufficient funds in his bank account with an intention to defeat the claim of the complainant, he as deposing falsely.
20 C.C.27005/201017. On perusal of the averments made in the complaint, evidence of the respective parties and coupled with the documents produced by the respective parties. It is an admitted fact that, both the parties were and are very well known to each other. Prior to filing of the present complaint, the complainant has complied all the necessary ingredients under Section 138 of N.I.Act., There is no dispute that, the complainant was running the chit business with respect to an amount of Rs.50,000/-, Rs.1,00,000/- and Rs.3,00,000/- and present accused and wife of the accused were also members of the chit run by the complainant, but transaction in question as per the case of the complainant, it is private loan transaction held between the complainant and accused and the complainant has advanced the loan amount of Rs.1,00,000/- to the accused on 10.03.2007 by way of cash in his house.
18. As per the specific defence of the accused in his reply notice which is marked as Ex.P4 is that at para No.3 there was a agreement entered between the complainant and accused with respect to the chit amount of Rs.1,00,000/- and the accused used to pay monthly installments chit amount of Rs.4,000/- with respect to the 20 months and he has paid up-to-date installments till 19.05.2009, totally he was paid an amount of Rs.65,509/- and he being the highest bidder of the chit on 12.06.2009 and chit auction 21 C.C.27005/2010 of Rs.5100/- and at that time, as per the request made by the complainant, the accused has issued his signed blank cheque for the security purpose and thereafter, the accused inspite of repeated request and demand made for payment of said chit bind amount of Rs.94,900/- and at that time the complainant has failed to pay the said bid amount and to that effect, the accused has issued legal notice to the complainant on 06.09.2009 with respect to that, the complainant has committed breach of trust by misappropriate the funds and defraud the funds, but to substantiate the said defence taken by the accused in his reply notice that, the accused neither produced any documentary evidence nor examine any member of the chit. If really, he has issued the Ex.P1 for the security purpose, he ought to have gave stop payment instruction to his banker, he ought to have lodged either police or private complaint, he ought to have examine any member of the chit, he ought to have produced any documents with respect to the chit transaction. Therefore, non-compliance of the aforesaid legal proceedings is very much fatal to the alleged defence taken by the accused in his reply notice.
19. During the course of the cross of PW-1 the counsel for the accused has made suggestion to the PW-1 that, the accused has issued the Ex.P1 for the security purpose, but the said suggestion has been denied by the complainant and the PW-1 to that effect, volunteers that, the accused 22 C.C.27005/2010 has issued fully filled up cheque and duly acknowledged with his signature and so also on the date mentioned in the Ex.P1, the accused has endorsed his signature. On perusal of the Ex.P1, apparently on the face of it, there is no ambiguity. There is no dispute that, Ex.P1 cheque is belonging to his own bank account cheque and signature found on the Ex.P1(a) is his own signature, but he has denied the contents written on the Ex.P1, but to that effect, during the course of cross of PW-1, counsel for the accused had made suggestion that, PW-1 he has not objection to refer the writings of Ex.P1 cheque for expert opinion, but the accused has not filed any application under Section 45 of Indian Evidence Act., for send the Ex.P1 for hand writing expert opinion. Hence, an adverse inference is to be drawn that, the accused himself wrote the contents of Ex.P1 and issued Ex.P1 for dishonoured of borrowed the loan in question.
20. On perusal of the Ex.P8 to 10 which are certified copy of the documents which are marked in C.C.No.27019/2010 wherein case is pertain to the chit funds and wife of the accused was accused in that case and the said document has been admitted by the accused during the course of his cross-examination and even on perusal of the Ex.P8 which is issued in the name of Gaurav Chit Funds Private Limited Company for a sum of Rs.1,20,000/-, on 26.08.2009, on perusal of the said Ex.P8 which was marked in that case as marked as Ex.P1 and it was endorsed by the wife of the 23 C.C.27005/2010 accused with respect to the "date column" and that it was dishonoured with an endorsement as "Payment Stopped by drawer". Therefore, wife of the accused was also one of the member of the chit run by the complainant under the name and style as "Gaurav Chit Private Limited" and for balance due amount wife of the accused was issued Ex.P1 in that case and that cheque was issued in the name of "Gaurav Chit Private limited". Whereas, in the present case, Ex.P1 is issued in the name of the complainant in "individual capacity" and not in name of "Gaurav Chit Private Limited". Therefore, the alleged defence set-up by the accused that, he was issued Ex.P1 cheque on 12.06.2009, when he was highest bidder of the chit amount of Rs.1,00,000/- run by the complainant and at that time, he was issued Ex.P1 for to defeat the claim of the complainant for the security purpose is not justifiable. Therefore, the transaction relates to the chit funds which has been run by the complainant and wherein the accused and his wife were also members are altogether different with respect to the transaction in question.
21. Looking to the conduct of the parties, the accused has not lay man and he was and is well known with respect to the financial transaction and he being the one of the chit member what was different with respect to the private transaction. Since the accused and his wife were not paid the due installments with respect to the aforesaid 24 C.C.27005/2010 chit transaction and to that effect, the complainant was initiated separate proceedings against the accused and wife of the accused before the Registrar of Co-Operative Society and that litigations are different from, with respect to the case in hand.
22. Further, with respect to the source of income, the complainant has deposed that, he was paid the said amount of Rs.1,00,000/- which was kept in his house by way of cash out of the amount of Rs.60,000/- his earning amount and apart from an amount of Rs.40,000/- was received from his wife and to that effect, he has not produced any documents before this Court and he was not reflected it in his income tax returns with respect to the loan in question, but, non-production of the documents and non reflected the loan in question in his income tax returns it will not take away claim of the complainant, though the complainant has submitted details with respect to the chit transaction regularly to the competent authority and he used to reflect in his income tax returns with respect to the chit funds transaction, since it is personal transaction and thereby, he cannot disclose the loan in question in his income tax returns.
23. During the course of arguments, the counsel for the accused has relied the citation reported in 2015 AIR SCW 64 - K. Subramani V/s. K.Damodara Naidu, it is 25 C.C.27005/2010 observed that, in the said citation cheque amount of Rs.14,00,000/-, but in this case in hand meager cheque amount of Rs.1,00,000/- only and another citation reported in 2008 (1) DCR 8 - John K. John V/s. Tom Vergese and another it is observed that, it is with respect to the chit funds business, but in the instant case, it is private complaint with respect to the hand loan. Therefore, the facts and circumstances of the said citations and the facts and circumstances of the present case in hand are altogether different and thereby, said citations are not at all applicable to the present case in hand.
24. Therefore, it can presumed that, the complainant has prove his by way adducing oral and documentary evidence as per the Section 138 of N.I.Act., On the other hand the accused has failed to defend his case by way of adducing cogent and corroborative evidence as provision of Section 139 of N.I.Act., Hence, the probability of the preponderance is higher on the side of the complainant rather than the accused.
25. 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 26 C.C.27005/2010 curb the instances of dishonouring of cheques and to lend the credibility to the commercial transaction. Therefore, in this case also the accused knowing fully that, 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.
26. Further, looking to the period of trail faced by the complainant, the complainant has filed the present complaint in the year 2009 already more than sever years have elapsed. Though there is no awarding rate of interest with respect to that it has not been elicited in the complaint. But, looking to the relationship between the parties to the present case in hand and conduct of the parties to this proceedings, awarding simple interest at the rate of 6% per annum as per the Section 27 of the General Clause Act upon the principle amount, it is just and proper to meets the ends of justice. Therefore, the accused is liable to pay interest an amount of Rs.42,000/- upon the principle amount of Rs.1,00,000/- from the year 2009 and thereby, the accused is liable to pay total sum of Rs.1,42,000/-.
27. 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 of the opinion that, the complainant successfully established before the Court that, the accused has issued Ex.P1 to the complainant for the 27 C.C.27005/2010 legally recoverably debt including the interest. Therefore, I answer the point No.1 in the affirmative.
28. 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.1,42,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for three months.
Further, ordered that, out of said fine amount of Rs.1,40,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining amount of Rs.2,000/- 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 31st day of October 2017).
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
28 C.C.27005/2010ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 D.K.Krishnamurty 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 Office copy of the legal Notice
Ex.P.4 The reply notice
Ex.P.5 Reply issued by the postal authority
Ex.P.6 DTDC Courier receipt
Ex.P.7 Complaint
Ex.P.8 Certified copy of the cheque bearing
No.932144
Ex.P.9 Certified copy of Pronote
Ex.P.10 Certified copy of bond
List of witnesses examined on behalf of the accused :
DW-1 Jithesh N. Metha List of documents exhibited on behalf of the accused :
Ex.D.1 Certified copy of complaint XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
29 C.C.27005/2010(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.1,42,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for three months.
Further, ordered that, out of said fine amount of Rs.1,40,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining amount of Rs.2,000/- 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.
30 C.C.27005/2010 31 C.C.27005/2010Heard Inference