Bangalore District Court
Mr. Manjunatha .V vs Mr. Sharanappa Arakere on 9 January, 2017
IN THE COURT OF THE XII ADDL. CHIEF
METROPOLITAN MAGISTRATE, AT BENGALURU
Dated this the 9th day of January 2017
Present: Sri. Rajkumar .S.Amminbhavi., B.Com., LLB (Spl)
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No. 27726/2014
Complainant: Mr. Manjunatha .V
S/o. Late Veerannagowda
Aged about 42 Years
R/at. No.1, M.M.Road and
Byatarayanapur New Extension
Ganapathi Nagar
Mysore Road
Bangalore-560 026.
(By Dharani. P Adv)
- Vs -
Accused: Mr. Sharanappa Arakere
47 Years, LIC Agent
1st Main, 9th Cross
Corner Building, Near Esawara
Temple, Defense Colony
Banglore-560 073.
Dynamatic Factory
Chokkasanadra
T.Dasarahalli, Bangalore-560 57.
(By Parameshwarappa. Adv)
Offence U/s138 of Negotiable
Instruments Act.
Plea of the accused Pleaded not guilty.
2 C.C. 27726/2014
Final order Convicted
******
JUDGMENT
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; that, in the year 2011 one of the occasion the common friend of complainant and accused by name S.M.Hugar working as a Teacher, has introduced by the complainant, the accused was serving in the renowned factory as a permanent employee at Chokkasandra, T.Dasarahalli, Bengaluru. On account of the introduction made by S.M.Hugar the complainant has developed the friendship with the accused since 3 years. On account of said friendship between themselves, the accused during the first week of April 2014 had approached and requested for financial assistance in order to meet out family commitments and urgent necessities and the accused was agreed to repay the said loan amount as he was in need of said money to pay to the lessee who was intents to vacate his premises, as per the assurance made by the accused, the complainant had agreed, and paid the said amount of Rs.2,00,000/- to the accused on 09.04.2014 by way of cash and the accused voluntarily undertaken and agreed that, to pay nominal interest at the rate of Rs.18% per annum on the said amount and on the said date, the accused had issued cheque bearing No.379649 for sum of 3 C.C. 27726/2014 Rs.2,00,000/- drawn on the Shamrao Vithal Co-Operative Bank Limited, Hesaraghatta Main Road Branch, Mallasandra, Bengaluru-560 057 as security purpose by writing in favour of complainant name and amount and putting his signature without filling the date and month and year in the cheque. Then, the complainant after lapse of aforesaid three months during the last week of July 2014, the complainant has asked the accused to repay the aforesaid borrowed amount, at that time the accused told the complainant, to fill up the aforesaid cheque which was issued as security for the aforesaid borrowed amount in the date, month and year column as 04.08.2014 and present it for encashment and same will be encashed. Then the complainant has presented the said cheque through his banker Karnataka Bank Limited, Amarjyothinagar Branch, Bengaluru. But, it was dishonoured with an endorsement "Payment Stopped by drawer" on 11.08.2014. Therefore, the said fact has been informed by the complainant to the accused. But, he has not responded the same. Then, the complainant had got issued the legal notice through his counsel on 22.08.2014 by registered post to his both the office address and residential address, calling upon him to repay the said borrowed loan amount within 15 days from the date of receipt of the said legal notice, the said legal notices were duly served on 22.08.2014 and 25.08.2014 respectively. Despite of service of the legal notice, neither repaid the said borrowed loan amount nor reply to the legal notice issued by the complainant. Hence, the complainant 4 C.C. 27726/2014 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 cognizance taken and registered in PCR.
3. After recording of the sworn statement of the complainant, registered the said complaint in C.C register and after issuance of summons to the accused and pursuant to summons the accused had appeared through his counsel and enlarged him on bail. Then, substance of accusation was recorded and read over to him in his vernacular. He denied the accusation and he claims for trail.
4. In order to prove the case of the complainant, the complainant got himself examined as PW.1 & got 6 documents marked as Ex.P.1 to Ex.P.6 and the PW-1 has been cross-examined by the accused. Then, statement of the accused under Section 313 of Cr.P.C., was recorded. He denied the incriminating statement against him. The accused himself examined as DW-1 and got 4 documents marked as Ex.D1 to Ex.D4 and during his cross-examination, the complainant has got marked one document as Ex.P7 Court summons issued by this Court and received by the accused and closed his side evidence. Then, matter was posted for arguments.
(As per the judgment passed by their lordship in Cr.R.P.No.1585/2009 on 12.03.2013 of Hon'ble High 5 C.C. 27726/2014 Court, Bangaluru conducting of denova trial does not arises)
5. Heard arguments.
6. The following points arise for my determination;
1. Whether the complainant proves that the accused had issued cheque bearing No.379649, dated:04.8.2014 for Rs.2,00,000/- cheque drawn on The Shamrao Vithal Co-Operative Bank Limited, Hesaraghatta Main Road Branch, Mallasandra, Bengaluru, for discharge of the loan amount and when the said cheque presented for encashment, it was dishonoured with an endorsement "Payment Stopped by drawer" and after issuance of the legal notice they 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 : 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 6 documents namely, the cheque which is marked as Ex.P-1, the signature of the accused therein which is marked as Ex.P1(a), bank endorsement which is marked as Ex.P2, the office copy of the legal notice which is marked as Ex.P3, postal receipt which is marked as 6 C.C. 27726/2014 Ex.P4, two postal acknowledgment which are marked as Ex.P5 and Ex.P6 and during the course of cross of DW-1 the complainant has got marked one document as Ex.P7 i.e., Court summons issued by this Court and his signature marked as Ex.P7(a) and accordingly, it was duly served to the accused for appearance of the accused before this Court.
9. The complainant in his cross-examination he has deposed that, he was studied 2nd PUC in Commerce Course and now he has working as a private car driver in Chandan for the last 7 years and he was getting monthly salary of Rs.15,000/- by way of cash. He deposed that, except driver of the car he was not doing any other avocation. He was not an income tax assessee. He is residing at Byatarayanapura, Mysore Road, Bengaluru. He know the accused and he personally went to the house of the accused. He know the said S.M.Hugar as his friend for the last 4 years. He deposed that, said S.M.Hugar who was the complainant in another case C.C.No.12656/2013 and said case was filed against the present accused which was pending on the file of 13th ACMM. He denied the suggestion that, both of them used to came to the Court on the date of hearing of their case. He denied the suggestion that, the present accused had borrowed the loan amount of Rs.2,00,000/- from the said S.M.Hugar. But, witnesses volunteers that, there was some monetary transaction held between the accused and the said S.M.Hugar. He do not know whether, the said transaction was took place in the year 2009. He do not know whether at 7 C.C. 27726/2014 the time of borrowed the loan amount of Rs.2,00,000/- from the said S.M.Hugar by the accused in the year 2009 and at that time the accused has issued his signed blank cheques bearing No.379649 and 379648. He do not know whether out of the two cheques one of the cheque is Ex.P1 of this case and another cheque bearing No.379648 which was dishonoured with an endorsement as "Funds Insufficient", on that ground, said S.M.Hugar was filed the complaint against the present accused. He do not know whether the accused has given his two signed blank cheque to the said S.M.Hugar on 16.03.2009 and further, he do not know whether said the accused has repaid Rs.1,50,000/- out of Rs.2,00,000/- which has been borrowed by the accused from the said S.M.Hugar and remaining Rs.50,000/- was due by the accused to payable by to the said S.M.Hugar with respect to that his son was issued receipt to the said accused. In further cross- he deposed that, himself and S.M.Hugar are family friends and said S.M.Hugar working as Teacher in Government Primary School. It is true that, said S.M.Hugar is having two children one Male and one female and out of them son was eldest. He do not know whether, when the accused was paid amount of Rs.1,50,000/- to the said S.M.Hugar out of Rs.2,00,000/- borrowed loan amount and at that time the son of the S.M.Hugar had received the amount of Rs.50,000/- from the present accused and for the remaining amount of Rs.50000/- the son of S.M.Hugar had issued receipt to the accused. He know the reading and writing of English language. He denied the suggestion that, 8 C.C. 27726/2014 except signature found on the Ex.P1 and other writings are in different hand writing and he himself got filled the Ex.P1 and filed the false complaint at the instigation of the said S.M.Hugar. He has advanced the said loan amount to the accused on 09.04.2014 in his house and at that time his mother and his brother were present. It is true that, the accused was working in Dynamic Factory as Clerk. He do not know whether the accused was out of station at Bengaluru City since 07.04.2014 to 11.04.2014. It is true that, on the back side of the Ex.P1 the accused wrote like "For security purpose only given" and the said sentence was marked as Ex.D1. He deposed that, on the date of advancement on 09.04.2014 the accused has issued Ex.P1, as per the information given by the accused, he has put date on Ex.P1 as 04.08.2014 and he has presented for encashment. It is true that, he has stated in his examination-in-chief that at para No.3 " I asked accused to repay the aforesaid borrowed amount at that time he told me that, he has to fill up the aforesaid cheque which was issued as security for the aforesaid borrowed amount that in Ex.P1 the date, month and year column as 04.08.2014" said fact has been not given by the accused in writing. But, he has instructed him, he himself present the said cheque for encashment. He denied the suggestion that, signature found on the Ex.P5 and Ex.P6 are not the signature of the accused.
9 C.C. 27726/201410. Then, the statement of the accused under Section 313 of Cr.P.C., was recorded and the accused had denied the incriminating statement against him and to defend his case, the accused himself examined as DW-1 and in his examiantion-in-chief, he has deposed that, he do not know the present complainant and he has not at all issued the Ex.P1 cheque and he has not at all borrowed the loan in question from the complainant. He deposed that, he was issued the Ex.P1 cheque in favour of said S.M.Hugar on 16.03.2009. He deposed that, said S.M.Hugar was introduced by one Sadashiva to him and thereby, he has borrowed the loan amount of Rs.1,00,000/- from the said S.M.Hugar to meet out his family expenses and he has got constructed his house by borrowing the loan and at that time in the presence of the said Sadashiv he has issued his singed two blank cheques in favour of the said S.M.Hugar for the security purpose bearing No.379648 and 379649, out of said two cheques Ex.P1 is one of the cheques of this case and in that Ex.P1 he has wrote on the backside, it was issued for the security purpose only and put his signature. He deposed that, he has issued the Ex.P1 and another cheque to the said S.M.Hugar on 16.03.2009 in the house of the said S.M.Hugar. He has produced the counter foil slip of cheque book which has been issued by his banker Shyamarav Vithal Co-Operative, Bank Limited, containing ten cheque leaves bearing cheque No.379641 to 379650, wherein he has issued aforesaid two cheques to the said S.M.Hugar on 16.03.2009 and said counter foil slip which is marked as Ex.D2 and 10 C.C. 27726/2014 relevant entry which is marked as Ex.D2(a) and he has produced his bank statement of the said bank for the period of 01.01.2008 to 01.08.2014 as per the Ex.D3, out of the said Ex.D2 cheque records slip except two cheques other eight cheques were honoured. Further, he has deposed that, already he repaid the borrowed the loan amount to the said S.M.Hugar prior to 2012 itself, but to that effect, he has not produced any documents. It is true that, said S.M.Hugar was also filed the complaint against him before the 13th ACMM Court at Benglauru i.e., C.C.No.12656/2013 and he has produced the certified copy of the complaint on the file of 13th ACMM Court at Bengaluru which is marked as Ex.D4. He deposed that, signature found on the Ex.P5 and Ex.P6 are not his own signature.
11. The accused in his cross-examination he has deposed that, he was graduate in Diploma Mechanical and working in Technology Limited, Company as a Production Manager and he was working in the said factory for the last 25 years and in that company about 25 persons were working and in that company Senior Manager is working as Drawing Officer. It is true that, any letter correspondence came to his working place address the security guard used to receive the said letter by put Company seal. It is true that, on Ex.P6 their company seal affixed and putting signature on 25.08.2014 as mentioned in Ex.P6. It is true that, in their unit, his named called as 'Sharanappa Arakeri' and none other persons are working in their unit except himself. It is true that, he is also 11 C.C. 27726/2014 working as LIC agent for the last 24 years. He deposed that, his residential address situated at Bagalagunte, Defence Colony, Bengaluru as mentioned in Ex.P5. It is true that, in his absence any letter correspondence came to his residential address at that time, on his behalf his family members were received the said letter. It is presumed that, the said admission given by the DW-1 in his cross-examination that, itself suffice that, the legal notice issued by the complainant as per Ex.P3 was duly served and accused fails to gave reply to the Ex.P3 by taking specific defence to rebut the case of the complainant as per the provision of under Section 139 of N.I.Act. He deposed that, his residential house is consists of three floors building, he was residing in the ground floor and other two floors house have been let-out. He was constructed his house in the year 2009 by borrowing the loan amount from the bank and other persons as hand loan out of three floor house, he has let-out two house and the said house situated within 1 ½ K.M distance from NH-4 and thereby his house will be valued and he has let-out on the lease on rental basis. He know the said S.M.Hugar through one Sadashiva. But, he denied that, he know the present complainant through S.M.Hugar. It is true that, Ex.P1 cheque is belonging to his own bank account and signature found on the Ex.P1(a) is his own signature and he has written on the back side of Ex.P1 "for the security purpose". He denied the suggestion that, he was borrowed the loan amount from the present complainant on 09.04.2014 for Rs.2,00,000/- as he used to pay the lease amount received from the lessee which 12 C.C. 27726/2014 was occupied his house property on lease basis. He denied the suggestion that, as per the instruction of the accused, the complainant has filled the date column on 04.08.2014 on Ex.P1 and present it for encashment. But, said cheque was dishonoured as per the Ex.P2. He denied the suggestion that, only after instruction given by him to the complainant, the complainant put date on Ex.P1 on 04.08.2014 and thereby, he will knowing fully to defeat the claim of the complainant he has gave stop payment instruction to his banker on 09.04.2014, as per the documents produced by him along with Ex.D3. Further, he has deposed that, as per the suggestion made by his counsel in C.C.No.12656/2013 which was filed by S.M.Hugar against him before the 13th ACMM Court, Bengaluru in that case, the accused was borrowed the loan amount of Rs.1,00,000/- in the year 2010 from one Sadashiv, at that time the accused has given signed blank cheque Ex.P1 and Pronote for security purpose. The said suggestion made by the counsel for the accused in C.C.No.12656/2013 during the course of cross of PW-1 and suggestion made by the counsel for the accused in this case during the course of cross of PW-1 all together inconsistency and contrary for alleged defence set-up by the accused for issuance his two cheques of Ex.P1 in both the cases. It is true that, he has received summons issued by this Court through Peenya Police on 28.11.2014 as per the Ex.P7 by putting his signature marked as Ex.P7(a). It is true that, he has not gave reply notice to the Ex.P3. It is true that, in C.C.No.12656/2013 on the file of 13th ACMM Court he was 13 C.C. 27726/2014 accused in that case and cross of PW-1 that case on 14.07.2014 during the course of cross of PW-1 in that case suggestion made by his counsel that, he has deposed that, in the year 2010 he was borrowed the loan amount of Rs.10,000/- from the said Sadashiva and at that time he has executed his signed Ex.P1 and DP for the security purpose. But, that suggestion he was not know that case. It is true that, he was convicted in that case. But, he has deposed that, that case was remanded by the appellate Court for fresh Trail.
12. On perusal of the evidence of the respective parties, coupled with the documents produced by the respective parties. It is an admitted fact that, both the complainant and accused and known to each other through one S.M.Hugar, thereby, he has advanced the loan in question to the accused. It is an admitted fact that, the accused is the permanent employee at Renowned Factory namely Dynamatic Factory, situated at Chokkasandra, T.Dasarahalli, Bengaluru-560 057 and he was also working as LIC agent for the last 25 years. It is an admitted fact that, Ex.P1 cheque is belonging own bank account of the accused and signature found on the Ex.P1(a) is own signature of the accused. Prior to filing of the present complaint, the complainant had complied all the necessary ingredients Under Section 138 of N.I.Act. It is an admitted fact that, the legal notice issued by the complainant as per the Ex.P3 to the both address of the accused i.e., office address and residential address and both 14 C.C. 27726/2014 the legal notices were duly served to him. But, he has not gave any reply to the legal notice issued by the complainant. It is an admitted fact that, prior to filing the present complaint by the complainant, one S.M.Hugar was also filed the complaint against the present accused bearing C.C.No.12656/2013 on the file 13th ACMM Court, Bengaluru and that case was already disposed off. As per the specific defence taken by the accused in his examination-in-chief that, he has issued the Ex.P1 cheque in favour of S.M.Hugar who is working as Primary School Teacher on 16.03.2009 as he was borrowed the loan amount of Rs.1,00,000/- from the said S.M.Hugar and at that time he has given two signed blank cheque bearing No.379648 and 379649 for the security purpose, said S.M.Hugar has been introduced by one Sadashiv to the accused and he has already repaid the borrowed loan amount of Rs.1,00,000/- to the said S.M.Hugar. But, he has not returned his two signed blank cheque which has been given by the accused for the security purpose and to that effect he has produced Ex.D2 which is cheque slip and relevant entry is marked as Ex.D2(a), wherein it is mentioned as 16.03.2009 he has issued the cheque bearing No.379648 and 379649 issued to the said S.M.Hugar for the security purpose, said Ex.D2 out of the 10 cheque leaves eight cheque leaves are encashed. But, remaining said two cheques were not honoured and both the cheques were dishonoured in C.C.No.12656/2013 in that case Ex.P1 was dishonoured with an endorsement as "Funds Insufficient" and in that case was filed by the complainant 15 C.C. 27726/2014 against the accused as he was advanced the amount of Rs.2,50,000/- to the accused and that cheque was dishonoured with an endorsement as "Funds Insufficient"
and that case as per the averments made in the complaint, Ex.P4 legal notice issued by the complainant of that case was duly served to the accused. But, he has not given reply to the said notice. Though, it was duly served upon the accused on 02.04.2013 and 03.04.2013 respectively, that case of the accused that, he was already repaid the borrowed the loan amount form the said S.M.Hugar. Prior to 2012 itself and inspite of that, the said S.M.Hugar was not returned his two signed blank cheque alleged to have been given by the accused for the security purpose and if that was the specific defence, at that time he ought not gave stop payment instruction to his banker. But, in that case said cheque bearing No.379648, dated:03.03.2013 was dishonoured with an endorsement as "Funds Insufficient" on 15.03.2013. Whereas, in this case as per Ex.P1 said accused was borrowed the loan amount of Rs.2,00,00/- from the present complainant in the month of first week of April 2014 and he was agreed to repay the said amount within three months and at that time he has issued undated cheque i.e., Ex.P1 to the complainant and as per the instruction of the accused, the complainant has filled the date column as 04.08.2014 and he was presented the said cheque for encashment as per the Ex.P2 on 08.08.2014. But, it was dishonoured with an endorsement as "Payment Stopped by the Drawer", for that, on perusal of the Ex.P2 inward return cheques from 16 C.C. 27726/2014 08.08.2014, it was returned on 09.08.2014. But, informed to the complainant as per the Ex.P2 on 11.08.2014. Hence, on perusal of the Ex.P2 itself, disclosed that, date 08.08.2014 and 11.08.2014 the documents produced along with the Ex.D3 he has produced the copy of the letter about the stop payment instruction given by the accused to his banker on 09.08.2014 wherein stated that, he has not at all issued the cheque to one Manjunath .V, thereby, he has requested his bank to dishonour cheque in question with respect to the "Payment stopped by the drawer". "The recital of the stop payment instruction given by the accused to his banker on "09.08.2014" itself reads like, reference as per your telephone information with respect to the SB account No.490, after receiving the information from banker he has given "stop payment instruction" to his banker with respect to the Ex.P1 in question. Therefore, on the date of presentation of Ex.P1 his banker have gave information to them by telephone call, for that i.e., his baker issued the endorsement "Payment Stopped by the drawer" on 11.08.2014. Therefore, it can presumed that, present accused to escape liability as per the Ex.P1 cheque issued in favour of the complainant, only after the information given by his banker, he has given stop payment instruction to his banker on 09.08.2014, only when the cheque i.e., Ex.P1 was presented for encashment on 08.08.2014. Therefore, the accused is knowing fully well to escape from liability, in collusion with his banker he has given stop payment instruction to his banker with respect to the Ex.P1 on 09.08.2014. Even on perusal of bank statement 17 C.C. 27726/2014 in the month of April-2014 he has not having sufficient balance in his bank account. Therefore, if really the accused was issued his signed blank cheque in favour of one S.M.Hugar in the year 2009 and if he was already repaid the borrowed the loan amount of Rs.1,00,000/- to the said S.M.Hugar prior to 2012 itself, what prevented him to gave stop payment instruction to his banker in the year 2012 itself and thereby only in that case also Ex.P1 cheque was dishonoured with an endorsement as "Funds Insufficient"
which has been presented by the said S.M.Hugar for encashment and even after the accused is knowing fully well about his one of the cheque was dishonoured on account of "Funds Insufficient" as per the endorsement of that case on 15.03.2013 and that complaint was filed complaint against him and even after also the accused ought not to gave 'stop payment instruction' to his banker with respect to the another cheque alleged to have issued by the accused in favour of the said S.M.Hugar till 09.08.2014. Therefore, the alleged defence set-up by the accused is that, when he was borrowed the loan amount of Rs.1,00,000/- from the said S.M.Hugar in the year 2009 and at that time he was issued two signed blank cheque for the security purpose that, does not suffice to disprove the claim of the complainant, he failed to rebut the case of the complainant as per the provision under Section 139 of N.I.Act.
13. Further, at one stretch the accused has made his defence, in C.C.No.12656/2013, wherein S.M.Hugar was filed 18 C.C. 27726/2014 the complaint against him in that case counsel for the accused was made suggestion to the complainant of that case like on 04.07.2014 that, in the year 2010 the accused was borrowed the loan amount of Rs.10,000/- from one Sadashiva and at that time he has issued his singed blank cheque Ex.P1 of that case and DP note for the security purpose. When the suggestion made by the counsel for the accused in that case to PW-1 i.e., S.M.Hugar same suggestion has been contradict to the present accused during the course of cross-examination of DW-1, he has deposed that, he does not know about the said suggestion made by his counsel in that case. Therefore, it can be presumed that, the alleged suggestion made by the counsel for the accused in that case and in the present case are inconsistent contradictory to each other. Therefore, said contradiction are not helpful to the case of the accused and he ought not to have examine the said Sadashiva, as he was borrowed the loan amount of Rs.10,000/- from the said Sadashiva in the year 2010 as per the suggestion made by the counsel for the accused in that case to the PW-1 of that case. Hence, the suggestion made by the counsel for the accused during the course of cross-examination of that case and in this case that itself, suffice to disprove the alleged defence set-up by the accused that, there is no monetary transaction held between the complainant and accused. The accused is well known about the banking transaction and he was working as Production Manager at Dynamic Technology Private Company about more than 25 years and apart from he was working as 19 C.C. 27726/2014 LIC agent. Therefore, it can presumed that, no any ordinary prudent man will issue singed blank cheque to any other persons without having any monetary transaction between themselves. Hence, the complainant has proved his initial burden casted upon him by adducing oral and documentary evidence. While trail of the complaint under Section 138 of N.I.Act are in summary trail and quasi-criminal in nature. It can be considered, only strictly liability not mensrea. The probability of the preponderance is on higher side of the complainant rather than the accused.
14. The during the course of argument the counsel for the complainant has relied the citation reported in AIR 2015 SC 2240- story brought out by the accused that, cheque was given to complainant long back for the security purpose, the loan was repaid but, the complainant did not return security cheque-is unworthy of credit, apart from being unsupported by any evidence to prove the alleged defence. Therefore, in this case merely contention taken by the accused that, he was borrowed the loan in the year 2009 and at one stretch he was borrowed the loan amount from one Sadashiva in the year 2010, as suggestion made by the counsel for the accused in another C.C.No.12656/2013 is contradict, at the time he was given his signed blank cheque for the security purpose that suggestion was not supported any cogent and corroborative evidence. Hence, in the said citation, order of the High Court in acquittal of the accused has been set-aside. Another citation reported in 2001 Crl.J.L 4647 - (B) 20 C.C. 27726/2014 Negotiable Instruments Act (26 of 1881), Section- 139, 138- dishonour of cheque-presumption that cheque was drawn for discharge of liability of drawer-is presumption of law-ought to be raised by Court in every case-rebuttal evidence-nature- mere plausible explanation is not sufficient-proof of explanation is necessary. Therefore, said citation are aptly applicable to the case in hand. Because, in this case Ex.D2 produced by the accused is not suffice to defeat the claim of the complainant.
15. During the course of arguments the counsel for the accused has relied the citation reported in ILR 2009 KAR 172 Sri. AccusedViswanatha Pai V/sister Vivekananda S.Bhat it is held that, existence of recoverable debt is not a matter of presumption under Section 139 of the Act, as Section 139 merely raises a presumption in favour of the complainant that, cheque was issued for discharge of any debt and other liability. It is also with respect to the accused had issued two signed blank cheque to the complainant and another cheque which has been issued to another persons has been not made any suggestion to the complainant, during the course of cross-examination by the counsel for the accused. But, looking to the facts and circumstances of the said citation and facts and circumstances of the present case in hand are all together different. Because, in that case, cheque was dishonoured with an endorsement as "Funds Insufficient". But, in the instant case the cheque was dishonoured with an endorsement as "payment stopped by the drawer". Therefore, 21 C.C. 27726/2014 the said citation is not at all applicable to the present case in hand. So also another citation reported in 2009(4) Kar.L.J. 26 and another citation reported in 2008(6( Kar. L.J 756, it is also with respect to the under Section 138 of N.I.Act dishonoured of the cheque issued for security purpose and in this case also as per the case of the complainant, the accused had issued the Ex.P1 undated cheque in favour of the complainant and as per the instruction given by the accused, the complainant has filled up date of the cheque and present it the same for encashment and that facts has been clearly stated in his complaint and in his legal notice issued to the accused. Therefore, merely cheque issued for security purpose undated and subsequently the complainant might have put date and presented it for encashment that, itself does not amount to cheque was merely "issued for security"
purpose. Therefore, facts and circumstance of the said citations and facts and circumstances of the present case in hand, are all together different and same is not at all applicable to the present case in hand. Another citation reported in AIR 2008 SCC 1325 it is with respect to the dishonoure of the cheque defend that, he was not stepped into the witnesses box to defend his case. But, in the instant case the accused himself examined as DW-1 and he has got marked documents to defend his case. Therefore, facts and circumstance of the said citation and facts and circumstances of the present case in hand are all together different and same is not at all applicable to the present case in hand. Another citation reported in AIR 2008 SCC 278 it is 22 C.C. 27726/2014 with respect to the rebuttal of presumption under Section 139 of N.I.Act- Court can take notice of conduct of parties. But, in the instant case, as per the case of the complainant, he was advanced the loan in question to the accused in the year 2011, since both the complainant and accused through their common friend by name S.M.Hugar and this fact is specifically averred in the complaint that, at the time of borrowed the loan amount from the complainant the accused had issued Ex.P1 cheque for security purpose writing in favour of the complainant and amount column and without filling the date column of the Ex.P1 and when the complainant was asked for repayment of the borrowed loan amount, he has assured that, to fill the aforesaid cheque date column which has been issued for security purpose and presented it for encashment and same would be encashed. Therefore, as per the instruction given by the accused, the complainant fill the date column of the Ex.P1 and present it for encashment and it was dishonoured with an endorsement as "Payment Stopped by the drawer" as per the memo received by the complainant on 11.08.2014. Therefore, the complainant has specifically averred in the complaint and evidence that, the cheque has been issued by the accused for the security purpose by writing name of the complainant and amount column, but without writing the date column merely cheque has been for the security purpose and as per the instruction of the accused, the complainant had put the date column in the Ex.P1 that itself does not take away the claim of the complainant. Therefore, facts and circumstance of the 23 C.C. 27726/2014 said citations and facts and circumstances of the present case in hand are all together different and same is not at all applicable to the present case in hand.
16. It is specific case of the accused that, prior to filing of the present complaint, one S.M.Hugar was also filed the complaint against the accused bearing C.C.No.12656/2013 on the file of 13th ACMM Court and said case was already disposed off and he was borrowed the loan amount from the said S.M.Hugar and he has issued cheque during the first week of March 2013 for the making payment to sought for construction of his house and said S.M.Hugar was introduced to the accused by name one Sadashiva and he has borrowed the loan amount of Rs.1,00,000/- from the said S.M.Hugar and for the security purpose he has given two signed blank cheques to the said S.M.Hugar in the presence of the said Sadashiva making endorsement on the backside of the cheque that, he has issued only for the security purpose and he has also paid borrowed loan amount of Rs.1,00,000/- from the said S.M.Hugar and that fact he has produced counter-foils of the cheque book which is marked as Ex.D2 and it might mentioned Ex.D2 cheque book counter foils entries has been shown which is marked as Ex.D2(a) and it is serial number 379641 to 379650 and out of that he has mentioned name of the said S.M.Hugar and among the cheque No.379649 is case in hand which is pending on the file of 13th ACMM. On perusal of the certified copy of the complaint which is marked as Ex.D4 the accused had 24 C.C. 27726/2014 borrowed the loan amount of Rs.2,50,000/- from the complainant i.e., S.M.Hugar. Since the accused has not paid the borrowed the loan to the complainant of that case and that, the complainant of that case has been presented the cheque for encashment. But, it was dishonoured with an endorsement as "Funds Insufficient" on 15.03.2013. But, in this case as per the case of the complainant that, cheque was presented for encashment on 04.08.2014. But, it was dishonoured with an endorsement as "Payment stopped by drawer" as per the memo received by the complainant on 11.08.2014, thereby, the complainant has been got issued the legal notice to the accused, but the accused had failed to gave reply to the legal notice issued by the complainant. It can be presumed that, if the accused gave his two signed blank cheque for the security purpose to the said S.M.Hugar on 16.03.2009 as per the documents produced by the accused i.e., Ex.D2 counter-foils of the cheque leaves and as per the complaint filed by the said S.M.Hugar against the present accused bearing C.C.No.12656/2013 it was filed on 26.04.2013 and he has not gave reply to the legal notice issued by the said S.M.Hugar and the said cheque was dishonoured with an endorsement as "Funds Insufficient" on 15.03.2013 and the present complainant was presented the Ex.P1 cheque for encashment through his banker on 04.08.2014. But, it was dishonoured with an endorsement as "Payment Stopped by the drawer" on 11.08.2014 as per the memo received by the present complainant and the accused had also produced the copy of the letter given by the 25 C.C. 27726/2014 accused to his banker about the 'Stop payment instruction"
on 09.08.2014, though the said document was not marked and for the collateral purpose, on perusal of the same "copy of the letter" has been received by Bank Manager of the said bank on 09.04.2014 putting their bank round seal in the subject he has mentioned that, dishonoure of the cheque reference to your telephone information only the accused has gave stop payment instruction it is clear that name of Manjunath .V requesting to payment stop. If really the accused was issued his two signed blank cheque to the said S.M.Hugar for the security purpose as per Ex.D2(a) he ought not gave "stop payment instruction" to his banker from the date of dishonoure of the another cheque bearing No.379648, it was issued to the said S.M.Hugar and it was dishonoured with an endorsement as "Funds Insufficient" on 15.03.2013. Whereas, the present case in hand, cheque has been dishonoured with an endorsement as "Payment stopped by the drawer" on 09.08.2014 as per the information received by the bank officials. Looking to the dishonoure of the another cheque which was presented the said S.M.Hugar on 15.03.2013 and present cheque Ex.P1 it was dishonored on 11.08.2014 there is difference between both the cheques about one and half year the accused was not at all gave "stop payment instruction" to his banker, "knowing fully that, cheque which has been issued to the said S.M.Hugar was dishonoured with an endorsement as "Funds Insufficient" on 15.03.2013 itself and only he had gave stop payment instruction to his banker as per the telephone message given 26 C.C. 27726/2014 by his banker that itself, clearly goes to show that, he has gave stop payment instruction to his banker, only after presenting the said cheque for encashment by the complainant on 04.08.2014 he has gave "stop payment instruction" on 09.08.2014 and thereafter, only his bank officials have issued Ex.P2 like "Stop payment instruction given by the drawer" and even in C.C.No.12656/2013 on the file of 13th ACMM case also he has not gave reply to the legal notice for taking specific defence, as contended by him in the present and in this case also he has not gave reply to the said legal notice which was duly served upon him. Even if he has gave stop payment instruction to his banker, he cannot escape from his liability as he has not produced his bank statement for the period from "01.08.2014 to 31.08.2014". Though he has produced his bank statement as per the Ex.D3 for the period from 1st January 2008 to 1st August 2014. Whereas, the present cheque was dishonoured as per the Ex.P2 of this case on 11.08.2014 and he knowing fully he has not produced his bank statement for the period from 01.08.2014 to 31.08.2014 that, he was having sufficient balance in his account, when cheque was presented for encashment.
17. It can be presumed that, once the cheque is issued by the drawer there would be presumption under Section 139 of N.I.Act and stop payment will not preclude in an action under Section 138 of N.I.Act. Absence of the averments in the in the complaint cheque was dishonoured for "Insufficient 27 C.C. 27726/2014 Funds" it does not fatal to the prosecution of the complainant and the complaint would not be bad for "absence averments"
in the complaint. Hence, the documents which have been produced by the accused to disprove the claim of the complainant that, Ex.D2 it disclose that, only cheque have been presented and other two cheques have been not entered in the cheque leaves column. Therefore, non-production of bank statement of accused for the period form 01.08.2014 to 31.08.2014 is very much fatal to the alleged defence taken by the accused and he has not produced any documents to show that, he was borrowed the loan amount of Rs.1,00,000/- from the said S.M.Hugar and he was repaid said borrowed loan amount, except his oral testimony and he ought not gave any notice to the said S.M.Hugar for return of his signed two cheque alleged to have been issued by the accused for the security purpose and he has not gave reply notice to the said notice, even after said S.M.Hugar was filed the complaint against the present accused after lapse of 1 1/2 years, when the present complaint filed by the present complainant. Therefore, that itself, it is clearly goes to show that, to defeat the claim of the complainant, he has produced contradictory documentary evidence and his evidence is inconsistent one and he ought not to examine the said Sadashiva, where he has borrowed the loan amount of Rs.1,00,000/- from the said S.M.Hugar and at that time, he has issued his two signed blank cheques in the presence of the said Sadashiva on 16.03.2009. Therefore, non- examination of the said Sadashiva is very much fatal to the 28 C.C. 27726/2014 alleged defence taken by the accused during his cross- examination.
18. 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 the opinion that, the complainant successfully established before the Court, the accused has issued Ex.P1 to the complainant for the legally recoverably debt of Rs.2,00,000/-. Therefore, I answer the point No.1 in the partly affirmative.
19. 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.2,02,000/-. In default of payment of said
fine amount, the accused shall undergo simple imprisonment for three months.
Out of the said fine amount, Rs.2,00,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and Rs.2,000/- shall be remitted to the state as fine.
29 C.C. 27726/2014The 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 9th day of December 2016).
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 Manjunatha .V 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 Postal receipt
Ex.P.5 & 6 Two postal acknowledgment
Ex.P.7 Summons issued by this Court to the
accused
Ex.P.7(a) Signature of the accused
List of witnesses examined on behalf of the accused :
DW.1 Saranappa Arakeri List of documents exhibited on behalf of the accused :
Ex.D.1 Back side portion of the Ex.P1 written "For security purpose only"
Ex.D.2 Counter foils of cheque book
Ex.D.2(a) Relevant entry in Ex.D2
Ex.D.3 Statement of account
30 C.C. 27726/2014
Ex.D.4 The complaint in C.C.No.12656/2013 XII Addl. Chief Metropolitan Magistrate, Bengaluru City.31 C.C. 27726/2014
(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.2,02,000/-. In default of payment of said
fine amount, the accused shall undergo simple imprisonment for three months.
Out of the said fine amount, Rs.2,00,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and 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.32 C.C. 27726/2014 33 C.C. 27726/2014
Heard Inference