Bangalore District Court
Sri.Lakshmana vs Sri.Rajesh K.L on 14 December, 2021
1
C.C.No/19002/2016
IN THE COURT OF THE XIX ADDL. CHIEF
METROPOLITAN MAGISTRATE AT BENGALURU CITY.
Dated this the 14th day of December 2021.
PRESENT: SRI.FAROOQ ZARE, B.A. (Law), LL.B., L.L.M.,
XIX ADDL.C.M.M., BENGALURU.
Case No: :- C.C.No.19002/2016
COMPLAINANT :- Sri.Lakshmana
S/o Late Ramiah,
Aged about 74 years,
R/at No. 993, 2nd Floor,
10th Main road, 6th Cross,
Near S.G. International
Public School,
Vijayananda Nagar,
Nandini Layout,
Bengaluru-560096.
Since the complainant Dead
Rep. By his son
Kumarswamy.L
S/o Late Lakshmana,
10th Main Road,
6th Cross,
Near S.G. International
Public School,
Vijayananda Nagar,
Nandini Layout,
Bengaluru-560096.
(By Sri. S.K.N., Advocate)
-V/s-
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C.C.No/19002/2016
ACCUSED :- Sri.Rajesh K.L
S/o Sri.Lakshmana,
Aged about 40 years,
R/at No.67,
Siddalingeshwara Nilaya,
1st Main Rad, 1st Cross,
Micolayout, J.C.Nagar,
Mahalakshipuram,
Bengaluru-560086.
(By Sri.S.H., Advocat)
Offence complained of: :- U/s.138 of N.I.Act.
Plea of accused: :- Pleaded not guilty.
Opinion of the Judge: :- Accused found guilty.
Date of order: :- 14th December, 2021.
JUDGEMENT
The complainant has filed this complaint U/s.200 of Cr.P.C. against the accused for the offence punishable U/s.138 of N.I.Act.
2. The brief facts of the complaint are that; The complainant is the owner of immovable property bearing No.24 situated at Saneguravanahalli Village Yeshwanthpur Hobli, Bengaluru North Taluk, Bangalore, which was formed by Sri.Maruthi Housing Co-operative 3 C.C.No/19002/2016 Society, vide Sale Deed dated 11.02.1970. Subsequently in the year 1990 the complainant's father constructed Ground Floor and in the year 2007-08 First Floor was constructed in the said property by the complainant.
3. The accused and his wife Smt.Jalajakshi with an malafide intention, dishonestly and having inducing the complainant have secured signatures of complainant forcefully on the Gift Deed dated 29.08.2007 which was registered in favour of accused in respect of First Floor. The accused again on 19.03.2008 to have wrongful gain to him, has cheated the complainant and got executed Rectification Gift Deed in his favour by rectifying "First Floor of the schedule property" and the property gifted to accused as per Gift Deed dated 29.08.2007 is the entire schedule property, which includes the Ground Floor and First Floor with exclusive right of possession of enjoyment.
4. The complainant was aware of the above said transaction regarding transferring of his title over above 4 C.C.No/19002/2016 said property till his fourth son K.L.Kumarswamy having gone through the copies of the Gift Deed and Rectification of Gift Deed and the complainant was informed the fraudulent of the accused being son of the complainant.
5. After getting Rectification Deed and Gift Deed the accused was making all attempts to sell the property of the complainant as the said property was standing in his name. The purchaser one Smt.Tulasamma demanded for the signatures of complainant and his other sons Sri. Kumarswamy K.L, Chetan K.L, for conveying the property. The accused as well as his wife offered to complainant that if complainant is ready to sell the aforesaid property to the purchaser Smt.Tulasamma, accused would pay Rs.32,00,000/- out of the sale consideration and a sum of Rs.20,00,000/- by way of Demand Draft and a sum of Rs.10,00,000/- by way of cash to each son's of complainant. The accused had collected the demand draft bearing No.148051 dated 13.04.2015 drawn on State Bank of Mysore, Basaveshwarnagar Branch, Bengaluru which 5 C.C.No/19002/2016 belongs to complainant and he got realized the same amount without the knowledge and consent of the complainant. For the illegal acts committed by the accused in collusion with his wife, the complainant has filed private complaint before the 4th ACMM., Bengaluru in P.C.R No. 3179/2016 and the mater was refereed to Kamakshipalya police station for investigation. When the accused was called upon to Kamakshipalya Police station for enquiry on 24.04.2016 the accused voluntarily approached complainant in his house for settling the dispute at the intervention of well wishers and family members. Accordingly the accused agreed to return a sum of Rs.23,00,000/- in favour of complainant. In order to discharge his liability, the accused issued post dated cheque bearing No.000015 for Rs,8,00,000/- dated 2.05.2016 drawn on HDFC Bank West of Chord Road, Basaveshwarnagar, Bengaluru towards part payment and instructed the complainant to present the said cheque. Accordingly on 12.05.2016 the complainant had presented 6 C.C.No/19002/2016 the cheque in question for encashment through his banker Punjab National Bank, Mahalakshmilayout Branch, Bengaluru and the said cheque was returned unpaid on 13.05.2016 with remarks "Payment Stopped By Drawer".
6. The Complainant on receipt of the said information got issued legal notice dated 08.06.2016 intimating to the accused as to the dishonored of the cheque and calling upon the accused to make payment of amount covered under the cheque within 15 days from the date of receipt of notice. Despite service of notice, the accused has not complied with the demand made in the notice and he has committed offence U/s 138 of N.I.Act.
7 On presentation of the complaint, the cognizance was taken of the offence punishable U/sec.138 of N.I. Act and registered it as P.C.R.7081/2016. The sworn statement of the complainant was recorded. Since there was sufficient materials to proceed against the accused, it was 7 C.C.No/19002/2016 registered No.III and the process was issued to the accused.
8. On receipt of the summons, the accused appeared before the court through his counsel and secured bail. He was furnished with the prosecution papers. The substance of the accusation was read over and explained to him. He pleaded not guilty and claimed to tried.
9. The complainant himself got examined as PW1 and got marked documents Ex.P1 to Ex.P8. Thereafter during the pendency of the case, the complainant had died his son viz., Kumarswamy K.L. was brought on the record as his legal representative pursuant to application filed by him. Kumarswamy K.L has entered the witness-box and got marked documents at Ex.P9. The Special Power of Attorney at Ex.P9 has been marked subject to objection raised by the learned counsel for the accused as the said 8 C.C.No/19002/2016 power of attorney was executed by the deceased complainant during his lifetime.
10. The statement of the accused U/sec.313 of Cr.P.C., was recorded. He denied the incriminating evidence appearing against him. In his defence evidence he himself got examined as DW-1. In support of his case he got examined one witness Smt.Tulasamma wife of K.Ramchanaraya as DW2.
11. Heard the arguments of both the sides.
12. The points that arise for my consideration are as under;
1. Whether the Complainant proves that the accused has issued the cheque at Ex.P1 for Rs.8,00,000/- in favour of complainant towards discharge of liability.
2. Whether the complainant further proves that the said cheque got dishonored with an endorsement "Payment Stopped 9 C.C.No/19002/2016 by Drawer".
3. Whether the complainant further proves that he has complied with the mandatory provisions of section 138 of N.I.Act.
4. What order ?
13. My findings to the above points for consideration are as under:
Point No.1:- In the Affirmative. Point No.2:- In the Affirmative. Point No.3:- In the Affirmative. Point No.4:- As per final oder for the following;
:: R E A S O N S ::
14. Point No.1:- It is the case of the complainant that the accused got the property detailed in the Rectification Deed at Ex.P7 from his father by playing fraud and prior to this, he got executed Gift Deed relating to property detailed in Ex.P.6 by playing fraud. It is further case of the complainant that, as the property records stand in the name of accused, he was making effort to 10 C.C.No/19002/2016 alienate said property and as such one Tulasamma came forward to purchase the said property and insisted him to get the signatures of the complainant and his other sons. The accused offered to the complainant that on subscribing signatures he would pay a sum of Rs.32,00,000/- out of the sale consideration and a sum of Rs.20,00,000/- by way of DD and a sum of Rs.10,00,000/- by way of cash to other sons of the complainant. It is alleged by the complainant that the accused had collected the DD bearing No.148051 dated 13.04.2015 drawn on State Bank of Mysore, Basaveshwarnagar Branch, pertains to the complainant and the accused got realized the same without the consent and knowledge of the complainant.
15. It is further alleged that the complainant filed private complaint before 4th ACMM Bengaluru against the accused regarding his illegal acts and the said case registered in the P.C.R No.3179/2016 and it was referred to Kamakshipalya police station for investigation. Thereafter, the accused was called to police station for enquiry. On 24.04.2016 the accused voluntarily 11 C.C.No/19002/2016 approached the complainant in his house for settling the dispute and he agreed return a sum of Rs.23,00,000/- to the complainant and in order to discharge of his liability, the accused had issued post dated chque in question for Rs.8,00,000/-.
16. It is to be noted here that the original complainant was examined as PW1 and through him Ex.P1 to Ex.P8 are marked. However, during the pendency of the case he died and his son Kumarswamy.L was ordered to be brought on record has legal representative of deceased complainant. He was examined as PW2. He admitted Ex.P1 to Ex.P8 which were marked through PW1 the Special Power of Attorney was marked at Ex.P9 subject to objections. PW2 in his examination chief has reiterated averments of the complainant .
17. In the cross-examination of DW1 he has admitted the contents found in disputed cheque at Ex.P1. However, he has denied having issued disputed cheque in faovur of the complainant by him. He has further deposed 12 C.C.No/19002/2016 that the said cheque was obtained by the complainant in the police station under coercion. It is clear form the about testimony of the accused that, the accused admits the chque in question belong to him. But his defence is that the disputed cheque at Ex.P1 was obtained under coercion through the intervention of police. It is relevant to note here that, once the accused admits the chque belongs to his account, the presumption U/sec.139 of N.I.Act to the effect that cheque was issued towards discharge of legally enforceable debt or liability. It is profitable to refer to a decision of Hon'ble Supreme Court in the case of APS Forex Services PVT., Ltd., v/s Sakthi Fashion International Fashion Linkers reported in AIR 2020 SC 945 wherein the Hon'ble Apex Court has clearly held that once issuance of cheque is admitted, there is always presumption that there exists enforceable debt or liability. In the case on hand also, the accused has admitted that cheque pertains to him. Therefore, the burden is on the accused to rebut this presumption operating U/sec.139 of N.I.Act. To prove the theory of 13 C.C.No/19002/2016 obtaining disputed cheque at Ex.P1 under coercion by the police, accused himself has entered the witness box and got examined one witness as DW2.
18. To prove his defence that cheque was obtained under coercion he cross examined PW1. It is elicited that Rs.10,00,000/- was given to original complainant by way of DD. PW2 during the trial has admitted that he was given Rs.20,00,000/- under DD. PW2 has stated that the house property was sold to one Tulasamma for total sale consideration amount of Rs.1,85,00,000/- and out of which Rs.45,00,000/- was to be given to his father and in this regard a cheque for Rs.8,00,000/- was given by the accused to the complainant. However, it is stated in the complainant that accused offered to pay a sum of Rs,32,00,000/-. It appears that there is an infirmity in the evidence of PW2 which does not affect case of the complainant unless the accused has rebutted the statutory U/sec.139 of N.I.Act.
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C.C.No/19002/2016
19. From the records it appears that the dispute between the parties at the initial stage arose with regard to Gift Deed at Ex.P6 and Rectification Gift Deed at Ex.P7 alleged to have been executed by the deceased complainant in favour of the accused. According to the complainant, the accused mis-utilized the DD pertains to the complainant by way of illegal means and complaint was lodged against the accused in this regard. During the course of cross examination of DW1 the complaint as well as FIR, Charge sheet in Crime No.169/2016 registered with the Kamakshipalya Police Station based on the complaint filed by the deceased complainant were confronted and same were as marked Ex.P10, Ex.P11 and Ex.P13. From these records it is clear that the case was registered against the accused for the offence punishable U/sec.403, 406 and 420 and other provisions of IPC. Ex.P12, the true copy of complaint was also confronted to DW1 and was marked on admission. It is clear that the deceased complainant corresponded to the Commissioner of Police, Bengaluru at Ex.P12 regarding mis-utilizing of 15 C.C.No/19002/2016 his DD by the accused and transferring his case to R.T.Nagar Police station.
20. DW1 in his cross examination has also admitted that after death of his father, his brother Kumarswamy.K.L filed a complaint against him with the Basveshwarnagar Police station and case was registered U/secs. 468,471,406,420 and other provisions of IPC. The copy of complaint and FIR were marked at Ex.P14 and Ex.P15 on admission of DW1. The copy of order in criminal petition No.9477/2017 was also confronted to DW1 and it was marked at Ex.P16. The said criminal petition came to be dismissed by Hon'ble High Court of Karnataka dated 28.06.2019. From the above records at Ex.P10 to Ex.P15 it is also clear that the complainant as well as his son by making certain serious allegations against the accused have got registered criminal cases against the accused. Though there is no whisper in the complaint regarding registering the complaint before the Basaveshwarnagar Police station against the accused, only during the trial 16 C.C.No/19002/2016 same was brought on recored by confronting copies of FIR as well as complaint to the accused.
21. It is relevant note here that DW1 in his cross examination has admitted the B-report at Ex.P13. This B- report has been filed after investigation pergunt to the complaint filed by the original complainant against the accused. DW1 has stated in his cross-examination that as his father issued self declaration for withdrawing money to him for clearing debts, B-report has been submitted. He has feighned ignorance regarding whereabout of said self declaration. He has admitted that his father has challenged B-report in the court. However, he has reiterated in his cross examination that the cheque in question was obtained by him under coercion through the intervention of police. The burden is on the accused to prove his defence of coercion. Since Ex.P9 the Special Power of Attorney was executed by the deceased complainant in favour of PW2 during his lifetime, and after his death, Ex.P9 does not have any value in the eye of law. 17
C.C.No/19002/2016
22. Learned counsel for the accused has argued that the original complainant had gifted away the property detailed in Ex.P6 and P7 in favour of the accused through which the accused had become the absolute owner of the said property. He has drawn the attention of this court towards recital of Ex.P8 the certified copy of sale deed. According to him in terms of Ex.P8, Rs.10,00,000/- was given to original complainant under DD, Rs.20,00,000/- was given to the Kumarswamy K.L under DD and another 20,00,000/- was given to the another son of complainant Chethan K.L. No doubt the recitals of Ex.P8 depict that the money as stated above was given to the complainant as well as other sons. PW2 has also been in his cross- examination admitted that he has received Rs.20,00,000/- through DD and his father received Rs.10,00,000/- through DD. It is the argument of the learned counsel for the accused that so far the complainant or his other sons have not challenged the gift deed, or Rectification gift deed before any competent court of law. This arguments is also supported by the admission given by PW2 in his cross- 18
C.C.No/19002/2016 examination that he has not challenged, sale deed, gift deed and rectification gift deed before any Civil Court. In the opinion of this court merely because the said documents have not been challenged in the manner know to law before any competent of law is not a sole ground for the accused to rebut the statutory presentation U/sec.138 of N.I.Act.
23. The learned counsel for the complainant has drawn the attention of this court towards cross- examination of DW1 to contend that the accused has not lodged any complaint against the accused before the police for obtaining his cheque under coercion. I accept this argument because DW1 in his cross-examination has stated that he has not filed complaint before higher authority regarding obtaining a cheque under coercion.
24. If at all the cheque in question was obtained under coercion, the accused would have questioned at the earliest point in time. Ex.P3 the statutory notice was sent by the complainant to the accused on 08.06.2016. It is the 19 C.C.No/19002/2016 not the case of the accused that the said notice was sent to the wrong address or the address shown therein was not his address. It is evident from Ex.P4 the postal acknowledgement that notice was served upon him. In the notice the accused has alleged about got executing gift deed as well rectification gift deed in his name by illegal means, registering criminal case against him as also bouncing of cheque at Ex.P1 given by him on its presentation. It is to be noted here that when notice containing serious allegations and financial implications was issued, if the case of the complainant was false, no man of ordinary prudence sits quit without contravening those allegations by issuing reply.
25. In support of his case accused has got examined the vendor of the property, as DW2. In her examination of chief she has deposed regarding purchasing property by her under a sale deed and transferring money to the original complainant as well as his other sons by way of DD. DW2 is subjected to cross-examination. In the cross- examination she has admitted that she was called upon by 20 C.C.No/19002/2016 the police for investigation. However, she has denied that as complainant lodged police complaint against her, at the instance of the accused he has been deposing on behalf of the accused. She has stated in her cross-examination that an agreement was executed regarding sale transaction. This statement has not been stated so by her in her examination in chief. Apart from it the so called agreement has also not been produced before the court. From the evidence of DW2 this court of the opinion that her evidence is not at all helpful to prove the case of the accused.
26. The learned counsel for accused has argued that in the proceedings initiated U/sec.138 of N.I.Act it is bounden duty of the complainant to prove that the cheque was issued for discharge of legally enforceable debt and there must be specific averments in the complaint in this regard. In support of his argument he has relied upon reported judgment of Hon'ble High Court of Karnataka in Crl.P.No.1387/2011 R.Parimala Bai v/s Bhaskar Narasimhaiah. Keeping in mind the line of argument 21 C.C.No/19002/2016 advanced by the learned counsel for the accused, I have carefully gone through averments of the complaint The Hon'ble High court of Karnataka has held that in order to attract Section 138 of N.I.Act the party has to plead with regard to be existence of legally recoverable debt. If he pleads with regard to the existence of the legally recoverable debt U/s 138 of N.I.Act, then only presumption U/s 139 of N.I.Act can be raised in favour of the complainant. However, in the original complaint as well as amendment complainant it is clearly pleaded that in order to discharge the liability, the accused has issued post dated cheque. It is relevant note here that in the proceedings initiated U/sec.138 of N.I.Act the complainant has to prove the cheque in question was issued by the accused for discharge of legally enforceable debt or other liability. At this juncture I opt to refer to decision in the case of K.N.Beena v/s Muniyappan reported in (2001) 8 SCC 458 wherein the Hon'ble Apex Court held that U/sec.118 of N.I.Act, unless the contrary is proved, it is to be presumed that negotiable instruments (including a 22 C.C.No/19002/2016 cheque) had been made or drawn for consideration. It is also held that U/sec.138 of N.I.Act the court has to presume, unless the contrary is proved that the holder of the cheque for discharge in whole or in part of debt or liability and in the complaint U/s 138 of N.I.Act, the court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However the burden of proving that the chaque has not been issued for debt or liability is on the accused. According to the complainant regarding dispute relating to property detailed at Ex.P6 and P7, for settling the matter the accused agreed to give a sum of Rs.23,00,000/- to the complainant and in order to discharge said liability he had issued cheque in question. The cross of PW1 as well as evidence of accused and DW2 noway advance the defence of the accused that cheque in question at Ex.P1 was obtained under coercion through the intervention of police. Therefore it is clear that the accused has failed in rebutting the statutory presumption U/sec.138 of N.I.Act operating in favour of the complainant. Since there is 23 C.C.No/19002/2016 specific averments in the complainant to the effect that cheque was issued for discharge of liability, the decision relied upon by the learned counsel for the accused does not come rescue the accused. Therefore for these reasons and discussions this court is of the opinion that the complainant has proved that cheque in question at Ex.P1 was issued by the accused for discharge of his liability. Accordingly point No.1 is in the Affirmative.
27. Point No.2:- According to the complainant the chque at Ex.P1 got dishonored with an endorsement "Payment Stopped by Drawer". The bank endorsement is produced at Ex.P2 which revels that the cheque in question was returned unpaid for the reason Payment stopped by drawer. This aspect has not been denied by the accused during the trial. Thus I answer point No.2 in the Affirmative.
28. Point No.3:- Before a person is held to be guilty of the offense punishable U/sec.138 of N.I.Act, the complainant has to prove the mandatory requirements of 24 C.C.No/19002/2016 Section 138 of N.I.Act. It is not in dispute that, the cheque at Ex.P1 drawn on account of the accused. In view of the above discussion it is also held to be proved that it was issued for discharge of liability. From the evidence of PW2 and also cheque return memo at Ex.P2 it is established that the cheque at Ex.P1 was dishonored for the reason "Payment Stopped by Drawer". A notice as per Ex.P3 was issued within one month from the date of dishonor is also not in dispute.
29. The complainant has produced the postal receipt at Ex.P3(a) and postal acknowledgment at Ex.P4 and courier receipt at Ex.P5. It is clear from Ex.P4 that notice has been served upon the accused. During the course of trial the accused has not raised the contention that the legal notice was not served to him. Therefore,in the case on hand on perusal of the evidence on recored it is clear that all the essential ingredients of Sec.138 of N.I. Act have been complied with. As accused has not repaid the cheque amount within the stipulated period, he has 25 C.C.No/19002/2016 committed offence U/sec.138 of N.I.Act. In view of the above discussion this court is of the opinion that the complainant has proved the Point No.3. Accordingly same is answered in the Affirmative.
30. Point No.4:- In view of my findings on the above point and the reasons stated therein, I proceed to pass the following;
ORDER Accused is convicted U/sec.255 (2) of Cr.P.C., for the offence punishable u/Sec. 138 of N.I.Act.
The accused is sentenced to pay a fine of Rs.8,75,000/-(Rupees Eight Lakhs Seventy five Thousand). In default of payment of fine, the accused shall undergo simple imprisonment for a period of 6 (six) months. Out of the total fine amount, an amount of Rs.8,65,000/- shall be paid to the Kumarswamy.L S/o late Lakshmana as compensation U/S 357 26 C.C.No/19002/2016
(i) b of Cr.P.C. The remaining amount of Rs.10,000/- shall be remitted to the state.
The bail bond of the accused and surety bond stands canceled.
Office to furnish a free copy of
this Judgment to the accused
forthwith.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by him is verified and then pronounced by me in the Open Court on this the 14 th day of December 2021) (FAROOQ ZARE) XIX ADDL.C.M.M., Bengaluru.
ANNEXURE:
Witnesses examined on behalf of the Complainant:
PW.1 :- Sri.Kumarswamy.L Documents marked on behalf of the Complainant:
Ex.P1 :- Cheque,
Ex.P1(a) :- Signature of the Accused.
Ex.P2 :- Bank Endorsement.
Ex.P3 :- Office copy of the legal notice.
Ex.P3(a) :- Postal Receipt.
Ex.P4 :- Postal Acknowledgment.
Ex.P5 :- Courier Receipt.
Ex.P6 :- Certified copy of Gift Deed.
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C.C.No/19002/2016
Ex.P7 :- Certified copy of Rectification of Gift
Deed.
Ex.P8 :- Certified copy of Sale Deed.
Ex.P9 :- Special Power of Attorney.
Ex.P10 :- Xerox copy of FIR.
Ex.P11 :- Xerox copy of Memorandum of Private
Complaint.
Ex.P12 :- True copy of police complaint letter
dated 05.07.2016.
Ex.P13 :- Certified copy of Charge Sheet.
Ex.P14 :- Xerox copy of complaint dated
05.10.2017.
Witnesses examined on behalf of the Accused:-
DW.1 :- Rajesh K.L DW2 :- Tulasamma.
Documents marked on behalf of the Accused:-Nil (FAROOQ ZARE) XIX ADDL.C.M.M., Bengaluru.