Bangalore District Court
Sri. N. Ramachandra vs Shri B.R. Nanjundeshwara @ Nanjuda on 11 December, 2018
1 C.C.NO.25972 OF 2017
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU
Dated this the 11th Day of December 2018
Present: Sri. Rajkumar .S.Amminbhavi., B.Com., LLB (Spl)
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No. 25972/2017
Complainant: Sri. N. Ramachandra
S/o. Late Narsinga Rao
Aged about 65 Years
R/at. No.53, 2nd Main,
4th Cross, Maruthinagar
Yelahanka
Bengaluru-560 064.
(By Raam & Company., Adv)
- Vs -
Accused: Shri B.R. Nanjundeshwara @ Nanjuda
No.955/3/1, Papanna Layout
Deveramane Kogilu Main Road
Maruthinagar
Yelahanka
Bengaluru-560 064.
(By. K.Venkateshreddy., Adv)
Offence complained of: U/s. 138 of the Negotiable
Instruments Act
Plea of the accused: Pleaded not guilty
Final Order: Accused is Convicted
Date of order: 11.12.2018.
******
2 C.C.NO.25972 OF 2017
JUDGMENT
This is a complaint under Sec.200 of Cr.PC against the accused for the offence punishable under Sec.138 of the Negotiable Instruments Act.
2. The facts of the complaint in brief are that, both the accused and the complainant are known to each other as both are friends. On account of well acquainted with the complainant, the accused has approached the complainant and requested advancement of the hand loan an amount of Rs.1,50,000/- for his financial assistance and accordingly, considering the request of the accused and believing the words of the accused and on the humanitarian ground, the complainant has advanced an amount of Rs.50,000/- by way of cash in the month of June 2014 and an amount of Rs.1,00,000/- by way of cheque drawn on IDBI Bank, Yelahanka Branch, Bengaluru on 14.05.2015 in favour of the accused and on the said, the accused has agreed and undertaken that, he would repay the borrowed loan amount within a short span and accordingly, for discharge his legally enforceable debt, the accused had issued two cheques i.e., Cheque bearing No.531129, dated:
05.06.2017 for a sum of Rs.50,000/- and another cheque bearing No.531128, dated: 1,00,000/- both the cheques drawn on State Bank of Mysore, Yelahanka, Bengaluru in favour of the complainant and assured that, the said 3 C.C.NO.25972 OF 2017 cheques would be honoured on there presentation and accordingly, as per the assurance made by the accused, the complainant has presented the said cheques for encashment through his banker i.e., M/s. Corporation Bank, Bengaluru, but it they were dishonoured with an endorsement as "Funds Insufficient" and thereafter, the complainant has informed the said fact to the accused, but the accused did not responded the same. Hence, the complainant had got issued the legal notice on 16.09.2017 by RPAD calling upon him to repay the said borrowed loan amount within 15 days from the date of receipt of this legal notice and it was returned with an endorsement as "Not claimed return to sender on 03.10.2017 it amounts to deemed service of the legal notice. Despite of service of the legal notice, the accused neither paid the borrowed the loan amount nor replied the legal notice issued by the complainant. Hence, the complainant had constrained to file a present complaint against the accused for the offence punishable under Section 138 of N.I. Act., which is well within time and based on the records available on record cognizance has been taken and registered it PCR.
3. After recording of the sworn statement of the complainant and complaint is registered in criminal case register and after issuance of summons to the accused, pursuant to the summons the accused had appeared 4 C.C.NO.25972 OF 2017 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 PW-1 has been fully cross-examined and the statement of accused under Section 313 of Cr.P.C., was recorded and the accused has denied the incriminating statement against him and the accused himself examined as DW-1 and he has been fully- examined 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 two Cheques i.e., Cheque bearing No.531128, dated:
05.06.2017 for a sum of Rs.1,00,000/-
another cheque bearing No.531129, dated: 05.06.2017 for a sum of Rs.50,000/- both the cheques drawn on State Bank of Mysore, Yelahanka Branch, Benglauru for discharge of the amount and when the said cheques presented for encashment, they were dishonoured with an endorsement 5 C.C.NO.25972 OF 2017 "Funds Insufficient" and after issuance of the legal notice she 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
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, two cheques which are marked as Ex.P1 and Ex.P2, the signature of the accused therein which are marked as Ex.P1(a) and Ex.P2(a), two bank endorsements which are marked as Ex.P3 and Ex.P4, the office of the legal notice which is marked as Ex.P5, postal receipt which is marked as Ex.P6, returned postal cover which is marked as Ex.P7 and therein contain copy of the legal notice which is marked as Ex.P7(a).
9. During the course of cross of PW-1 he has deposed that, he know the about the contents of present complaint and he know about the all the contents stated in his 6 C.C.NO.25972 OF 2017 examination-in-chief. He deposed that, he was studied B.Com. He deposed that, the accused was doing real estate at Maruthi Nagar, Yelahanka, Bengaluru. He denied the suggestion that, the accused was not doing neither coolie work nor real estate. He deposed that, he was advanced the loan amount of Rs.1,50,000/- out of the said amount, he was advanced an amount of Rs.1,00,000/- and Rs.50,000/- and at that time, he was not obtained any documents from the accused for the security purpose. He deposed that, the accused has borowed the loan in question from him and for discharge the loan in question, the accused had issued cheques in question. He denied the suggestion that, he was not having financial capacity for advancement the loan in question to the accused. He denied the suggestion that, the accused has not at all borrowed the loan in question from him and he has not at all issued cheques in question to him for discharge the loan in question.
10. During the course of defence evidence, the accused himself examined as DW-1 by way of oral evidence, wherein, he has specifically stated that, he know the present complainant, but there was no financial transaction between himself and the complainant. He deposed that, he was borrowed the loan amount of Rs.1,50,000/- from the complainant and at that time, he 7 C.C.NO.25972 OF 2017 has issued cheques in question for the security purpose and even after repayment of the borrowed loan amount, the complainant has failed to return the cheques in question which are issued for the security purpose and same are misused and filed false complaint with an intention to get wrong full gain. He deposed that, after receipt of the legal notice, he has not given reply notice, since he was already repaid the borrowed loan amount. Hence, for all other reasons he prays for acquit him present case in hand.
11. During the course of cross of DW-1 he has deposed that, he was borrowed the loan in question and the said amount he was repaid, in the month of January-2015, but to that fect, he has not produced any documentary evidence. He denied the suggestion that, he was not repaid the borrowed loan amount to the complainant. He deposed that, he was borrowed the loan in question and at that time, he has issued cheques in question for the security purpose and even after repayment of the borrowed loan amount, the complainant has failed to return the cheques in question and same are misused and filed false complaint with an intention to get wrong full gain.
12. On perusal of the averments made in the complaint and also documents produced by the complainant is that, it is an admitted fact that, even after issuance of the legal notice by the complainant to the accused prior to filing of 8 C.C.NO.25972 OF 2017 the said complaint which was duly served and after receipt of the legal notice, the accused has not given reply notice. Therefore, prior to filing of the said complaint the complainant had complied all the necessary ingredients under Section 138 of N.I.Act. There is no dispute that, Ex.P1 and Ex.P2 cheques are belonging to his own bank account and the signature found on the Ex.P1 and Ex.P2(a) are his own signature and both are residents of Maruthinagar, Yelahanka, Bengaluru.
13. It is case of the complainant is that, both the complainant and accused are known to each other and on account of well acquainted with the complainant, the accused has approached the complainant and requested for the advancement of loan amount of Rs.1,50,000/- and accordingly, the complainant has advanced the loan an amount of Rs.1,50,000/- and subsequently, for discharge the loan in question the accused has issued two cheques in question and assured that, the said cheques would be honoured on there presentation and after presentation of the said cheque, they were dishonoured and same has been informed to the accused, but the accused not responded the same and thereby, the complainant has got issued legal notice through his counsel and same has been duly served upon the accused and despite of service of the legal notice, the accused neither paid the borrowed loan 9 C.C.NO.25972 OF 2017 amount nor replied the legal notice issued by the complainant. Hence, the complainant has filed the present complaint.
14. On the other hand, the accused has taken specific defence during the cross of PW-1 and during the course of defence evidence that, he was borrowed the loan in question and at that time, he has issued cheques in question for the security purpose and even after repayment of the borrowed loan amount, the complainant has failed to return the cheques in question and same are misused and filed false complaint with an intention to get wrong full gain, but to substantiate the same, he has not produced any documentary evidence, except oral evidence.
15. If really, he was borrowed the loan in question and at that time, he has issued cheques in question for the security purpose and even after repayment of the borrowed loan amount, the complainant has failed to return the cheques in question and same are misused and filed false complaint with an intention to get wrong full gain, but to substantiate the same, he ought to have gave stop payment instruction to his banker, he ought to have take any legal action against the complainant, he ought to have challenged the cognizance taken by this Court, he ought to have gave reply notice. Therefore, non-performing the aforesaid legal proceedings that itself, it is very much fatal 10 C.C.NO.25972 OF 2017 to the alleged defence set-up by the accused during the course of PW-1 and during the course of his evidence.
16. There is no dispute that, Ex.P1 and Ex.P2 cheques are belonging to his own bank account cheque and signature found on the Ex.P1(a) and Ex.P2(a) is his own signature. Therefore, it can be presumed that, the accused has issued the Ex.P1 and Ex.P2 to the complainant knowing fully well without having sufficient funds in his bank account with an intention to defeat the claim of the complainant. Further, no ordinary prudent man will issue signed blank cheque to any other persons without having monetary transaction.
17. The drawer of the cheque have to take abundant precaution prior to issuance of cheque in question. Therefore, in the instant case also. It can be presumed that, no any ordinary prudent man will issue signed blank cheque to any other persons without having monetary transaction between themselves. Further, the complainant has proved his case by adducing cogent and corroborative evidence as per the section 138 of N.I.Act., on the other hand, the accused has failed to rebut his defence as per Section 139 of N.I.Act., by adducing cogent and corroborative evidence. Hence, the probability of the preponderance is higher on the side of the complainant, rather than the accused.
11 C.C.NO.25972 OF 201718. 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 her case against the accused, since offence under Section 138 of N.I.Act element of Mensrea has been excluded in general public interest to 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 he was borrowed the loan in question from the complainant and for discharge the loan in question he has issued the Ex.P1 and Ex.P2 to the complainant. Since the present complaint is summary trial and quasi-criminal in nature, it is like recovery proceedings and punishment is fine or in default of it simple imprisonment.
19. Looking to the conduct of the parties to the proceedings, the complainant has filed the present complaint on 24.10.2017 already one years have elapsed and awarding cost of litigation an amount of Rs.30,000/- is just and necessary to meet the ends of jusitce, since trail faced by the complainant.
20. Hence, in the light of the above observation, the complainant has successfully proved that, the accused has 12 C.C.NO.25972 OF 2017 committed offence punishable under Section 138 of N.I. Act with these reasons, I am the opinion that, the complainant successfully established before the Court, the accused has issued Ex.P1 and Ex.P2 including cost of litigation to the complainant for the legally recoverable debt. Therefore, I answer the point No.1 in the affirmative.
21. 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.1,80,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for One Month.
Further, ordered that, out of the said fine amount of Rs.1,78,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of Rs.2,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands canceled.
13 C.C.NO.25972 OF 2017Free 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 11th day of December 2018).
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the complainant:
PW-1 N. Ramachandra List of documents exhibited on behalf of the complainant:
Ex.P.1 & 2 Two Cheques Ex.P.1(a) & 2(a) Signature of the accused Ex.P.3 & 4 Two bank endorsements Ex.P.5 Office Copy of the legal Notice Ex.P.6 Postal receipt Ex.P.7 Return postal cover Ex.P.7(a) Copy of the legal notice contain in Ex.P7
List of witnesses examined on behalf of the accused :
DW.1 B.R. Nanjundeshwara @ Nanjuda List of documents exhibited on behalf of the accused :
NIL XII Addl. Chief Metropolitan Magistrate, Bengaluru City.14 C.C.NO.25972 OF 2017
11.12.2018.
Complainant : BSR Accused : KV Judgment.
(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.1,80,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for One Month.
Further, ordered that, out of the said fine amount of Rs.1,78,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of Rs.2,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands canceled.
Free copy issued to the accused.
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
15 C.C.NO.25972 OF 2017 16 C.C.NO.25972 OF 2017Heard Inference 17 C.C.NO.25972 OF 2017