Bangalore District Court
Vijayendra.D vs Nandish.B on 10 November, 2020
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 10th day of November - 2020
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.25920/2018
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Vijayendra.D,
S/o.Janardhana Gowda.D.R,
Aged about 34 years,
R/at No.850/39, 4th Cross,
4th Main, Near Manuvana Bus Stop,
Vijayanagar, Bengaluru-40.
(Rep. by Sri.Sureshkumar.H.M, Adv.)
V/S
Accused : Nandish.B,
S/o.Basavaraju.B,
R/at. No.953/1, 5th Main Road,
Kalidasanagar, Hosakerehalli,
BSK III Stage, Bengaluru-85.
(Rep.by Sri.M.Parthasarathy, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Convicted.
DATE OF ORDER : 10.11.2020.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.No.25920/2018
JUDGMENT
The complainant has presented the instant complaint against the accused on 20.08.2018 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheques of Rs.5,30,000/-.
2. The factual matrix of the complainant case is:
The complainant has submitted that, accused was well known to him as a friend and in that acquaintance, he took his Cannon 5D Mark-III Camera worth Rs.2.45,000/- for his personal work for 2 days and also availed hand loan of Rs.2,85,000/- by way of cash from the complainant as well as through on-line.
The complainant has averred that, the accused told the complainant that, he lost the said camera and assured to pay the value of the camera and accordingly, he got issued 2 cheques bearing No.000002 dated:18.07.2018 for sum of Rs.30,000/- and another cheque bearing No.000003 dated:21.07.2015 for sum of Rs.5 lakhs drawn on Lakshmi Vilas Bank, Rajarajeshwarinagar Branch, Bengaluru in favour of complainant which duly signed and assured to honour the said cheques on the dates of their presentation.
Judgment 3 C.C.No.25920/2018 The complainant has further alleged that, on the assurance of accused, he presented the said cheques for encashment through his banker viz., HDFC Bank, Richmond Road Branch, Bengaluru. But as per memo dated:23.07.2018 the said cheques came to be dishonoured for the reasons "Signature Differs". Thereafter, he approached the accused and brought the said fact to his knowledge and demanded for payment of amount covered under the cheques, but he went on postponed for one or other reasons and also gave evasive answer. Hence, on 28.07.2018 by way of RPAD he got issued legal notice to the accused, calling upon him to pay the amount covered under the cheques and the same was served on accused. Despite that, he not paid the amount covered under the cheques nor issued any reply. Thereby, he committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
3. After receipt of the private complaint, this court took the cognizance and got registered the PCR and recorded the sworn statement. Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process.
4. In response to the summons, the accused appeared through his counsel and obtained bail. As required, complaint Judgment 4 C.C.No.25920/2018 copy was supplied to the accused. Thereafter, accusation was read over and explained to him, wherein, he denied the same and claimed to have the defence.
5. To prove the case of the complainant, he himself choosen to examined as PW.1 and got marked Exs.P1 to P33. The PW.1 was subjected for cross-examination by the advocate for the accused.
6. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same and answer given by him was recorded. In this case the accused has not choosen to entered into witness box to led any probable defence nor produce any documents.
7. I have heard the arguments of both side counsels.
8. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:
1) Whether the complainant proves beyond the reasonable doubt that, the amount covered under the Exs.P1 and P2-cheques is the existence of legally enforceable debt payable by the accused?
2) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
Judgment 5 C.C.No.25920/2018
3) What Order?
9. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Partly Affirmative Point No.2 : In the Partly Affirmative Point No.3 : As per final order, for the following:
REASONS
10. POINT NOs.1 and 2: Since both the points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
The PW.1 to prove his case choosen to examined himself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P33, they are:
a) Exs.P1 and P2 are the cheques bearing Nos.000003 and 000002 issued by the accused for sum of Rs.5 lakhs and Rs.30,000/- respectively dated:21.07.2018 and 18.07.2018, both the cheques are drawn on Lakshmi Vilas Bank, Rajarajeshwarinagar Branch, Bengaluru.
b) Exs.P1(a) and P2(a) are the alleged signatures of accused.
c) Exs.P3 and P4 are the Bank Memos
dated:23.07.2018.
d) Ex.P5 is the Legal Notice dated:28.07.2018.
e) Ex.P6 is the Postal receipt.
Judgment 6 C.C.No.25920/2018
f) Ex.P7 is the postal acknowledgment card.
g) Ex.P8 is the private complaint.
h) Ex.P8(a) is the signature of complainant.
i) Ex.P9 is the Form No.16 TDS pertaining to complainant.
j) Ex.P10 is the ITR-1 Sahaj Individual Income tax returns for the assessment year 2018-19 pertaining to complainant herein.
k) Ex.P11 is the statement of account pertaining to complainant herein for the period from 01.11.2017 till 30.11.2017 issued by HDFC Bank.
l) Ex.P11(a) to P11(d) some entries of Ex.P11.
m) Ex.P12 is the copy of tax invoice dated:06.06.2016 pertaining to complainant herein.
n) Ex.P13 to P32 are the copies of WhatsApp Messages.
o) Ex.P33 is the C.D. The PW.1 was subjected to the cross-examination by the advocate for the accused.
11. After detailed cross-examination done by the advocate for accused to the PW.1, the complainant got closed his side. Thereafter, whatever the incriminating evidence made against the accused was read over and explained to him as required under Section 313 of Cr.P.C., wherein, he denied the same and specifically gave his statement that, on seeing the Exs.P1 and P2
- cheques, he deposed the same are not of him and signatures Judgment 7 C.C.No.25920/2018 found therein is of him. He gave his statement that, the unknowing friend of complainant took the signatures of the accused on those cheques and denied the service legal notice. In this case, the accused not choosen to entered into witness box and also not produced any documents.
12. On going through the rival contentions of the parties, it made clear that, the accused in this case has seriously attack on the claim put forth by the complainant. On going through the materials it discloses, the complainant has brought the present case against the accused based on the questioned cheques at Exs.P1 and P2. Therefore, it needs to draw the presumption as per Sections 118 and 139 of Negotiable Instruments Act. As per Section 118(g), it shall be presume that, unless the contrary is prove, the holder of the cheque, the complainant received the cheque for discharge of legal liability. This presumption is rebuttable. Accordingly, Sections 139 and 138 of Negotiable Instruments Act, it also requires to presume that, cheques were drawn for discharge of liability of drawer, it is presumption under law. Therefore, it made clear that, by virtue of the above said sections stated, it made clear that, it requires to draw statutory presumption in favour of complainant that, in respect of discharge of existence of legally recoverable debt, the accused got issued Judgment 8 C.C.No.25920/2018 the Exs.P1 and P2-cheques unless and until contrary prove. Therefore, as per those sections, it made clear that, it is the initial onus on the accused to prove his case based on the principles of 'Preponderance of Probabilities'.
It is require to cite the decision reported in AIR 2010 SCC 1898, in a case between Rangappa V/s Mohan. Wherein, the Hon'ble Apex Court pleased to observe that, the obligation on the prosecution may be discharged with the help of presumption of law or facts unless the accused adduce evidence showing the reasonable probability of non-existence or presumed fact. Wherein also it was pleased to observed that, the accused can prove the non-existence of consideration by raising probable defence. If accused is able to discharge the initial onus of proof of showing that, the existing of consideration was improbably or adverse or the same was illegal, the onus would shift to the complainant, who will be obliged to prove it as a matter of fact, and upon its failure to prove would dis-entitle his to grant the relief on the basis of Negotiable Instruments Act. The burden on the accused of proving the non-existence of consideration can either direct or by bringing on record the preponderance of probabilities by referring to the circumstances upon which, he relies could bare denial of passing consideration apparently does not appears to be Judgment 9 C.C.No.25920/2018 any defence. Something which is probable has to be brought on record for getting benefit of shifting the onus of proving to the complainant. To disprove the presumption, the accused has to bring on record such facts and circumstances upon the consideration of which the court may either believe that, consideration did not exist or its non-existence was so probable that, a prudent man would, under the circumstances of the case, act upon that, it did not exist. Therefore, it made clear that, the accused need to take the probable defence mere denial is not enough.
That apart, in a decision reported in ILR 2006 KAR 4672, in a case between J.Ramaraj V/s Hiyaz Khan. Wherein, it was pleased to observed that, mere denial of issuing cheque, whether is sufficient to discharge the initial burden is to be looked into. In that dictum, it was pleased to held that, mere denial of issuing cheques would not be sufficient as it is time and again noted that, once the cheques issued duly signed by the accused, the presumption goes against him as per Section 139 of Negotiable Instruments Act.
13. On going through the provisions referred supra, it made clear that, whereas the presumption must prove that, guilt of Judgment 10 C.C.No.25920/2018 accused beyond the reasonable doubt. The standard or proof so as to prove a defence on the part of the accused is 'Preponderance of Probabilities'. Inference of 'Preponderance of Probabilities' can be drawn, not only from the materials brought on record by parties, but also by reference to the circumstances upon which he relies.
14. On going through the above authorities as well as dictums, it made clear that, it is the initial burden on the accused to prove his probable defence in order to rebut the statutory presumption as well as the case put forth by the complainant. In this case, the accused not choosen to entered into witness box.
However, it is an appropriate to cite the decisions of the Hon'ble Supreme Court in (2008) 2 Supreme Court Cases (Criminal) 166 (Krishna Janardhan Bhat V/s. Dattatraya G Hegde) and 2010 AIR SCW 2946 (Rangappa V/s. Mohan).
"The accused need not enter into witness box and he could rebut the presumption envisage under Section 139 of Negotiable Instruments Act by setting up a probable case. As such, there is no strict rule that, the accused should enter into the witness box in support or proof of his defence. The accused has got every right to prove his defence from the cross- examination of PW.1 or the materials already brought Judgment 11 C.C.No.25920/2018 on record. It is also held that, the standard of evidence be to led by the accused is preponderance of probabilities and no proof beyond reasonable doubt. On the contrary, for the complainant he should prove his case beyond all reasonable doubt".
15. As per the said dictum, the accused need not require to enter in to the witness box to prove his probable defence, but he can prove his defence by way of cross-examining the PW.1 and relied upon the documents of the complainant. From the point of above dictum, the non entering into the witness box by the accused is not a ground or hindrance to his probable defence. Therefore, whatever the defence placed by the accused by way of oral say through PW.1 is to be appreciated. On going through the cross-examination of PW.1, it reveals the probable defence taken by the accused. On going through the cross of PW.1, he has deposed that, he was working as Engineer NTTE Data. He specifically deposed, he possessed Cannon 5D Mark-III Camera worth Rs.2,45,000/- for his personal use and have the bill in that regard. Accordingly, he got produced the bill at Ex.P12 in order to establish, he possessed the said camera. Though PW.1 has deposed, it was the worth of Rs.2,45,000/-, but his bill dated:06.06.2015 discloses, the total value of the said camera was Rs.2,20,547/- only. In order to show that, the worth of the Judgment 12 C.C.No.25920/2018 said camera was Rs.2,45,000/-, he not produced any document, but on production of Ex.P12 he clearly establishes the possession of camera worth about Rs.2,20,547/- only. Thereby, he clearly proved that, he possessed Cannon 5D Mark-III Camera as per Ex.P12 and the same remains unchallenged. In his cross- examination as he deposed that, while gave legal notice and lodged complaint he knew that, he gave the said camera to the accused only for the purpose of 2 days, and by that time, he only took his Aadhaar Card, not obtained any other documents as to the handed over the said camera.
16. In his further cross-examination he withstood his contention that, though he took camera only for 2 days, as he undertaken not returned the same. Therefore, after lapse of 2 days, when he called to the accused despite made repeated, he not picked the telephone calls. Therefore, he went to the accused and asked him to return his camera, then accused told him that, camera was lost and for making payment worth of camera, he gave cheques for Rs.5 lakhs and Rs.30,000/- each at Exs.P1 and P2 - cheques.
17. In his cross-examination, against his own pleading the PW.1 has deposed that:
Judgment 13 C.C.No.25920/2018
"ಆರರರಪಗ ಕಕಮರದ ಜರತಯಲ ರರರ2,55,000/-ವನನ
ನ ನಗದಗ
ಹಗರ ಉಳದ ರರರ30,000/- ವನನ
ನ ನಗದಗ ಆನಲಲನ ಮನಖಖತರ
ಆರರರಪಯ ಖತಗ ಜಮ ಮಡದನ. ಆ ಹಣವನನ
ನ ಆರರರಪಗ
ಸಲದ ರರಪದಲ ಕರಟಟದನನ, ಆ ಬಗಗ ಆತನಖದ ಯವದರ
ದಖಲಯನನ
ನ ಬರಯಸಕರಖಡಲಲ. ರರರ30,000/- ಆನಲಲನ
ಮನಖಖತರ ಆರರರಪಯ ಖತಗ ಜಮ ಮಡದ ಬಗಗ ದಖಲ ಇದ."
18. On going through the said testimony of PW.1 as stated, along with camera, he gave cash of Rs.2,55,000/- and Rs.30,000/- by way of on-line got paid to the account of the accused, as hand loan. In that regard, he not obtained any documents from the accused. He stated that, to show that, made payment through on-line only, he had document for Rs.30,000/-. In that regard, at the later course of his cross-examination he got produced the copy of bank statement at Ex.P11. On going through the Ex.P11 the entries marked at Ex.P11(a) and P11(d) on particular dates 25.11.2017 - 3 times, he remitted sum of Rs.10,000/-, Rs.10,000/- and Rs.5,000/- each to the account of Smt.Pooja and sum of Rs.4,100/- on 25.11.2017 transferred to the account of accused. The PW.1 got produced the Ex.P11, which indicates the passing of consideration of Rs.29,100/- to the accounts of Smt.Pooja and accused herein. Why he sent money to the account of Smt.Pooja and now plead and contended, the Judgment 14 C.C.No.25920/2018 said loan was paid to the accused is to be seen from the evidence of PW.1 that:
"ನನನ ಆನಲಲನ ಮನಖಖತರ ಆರರರಪಯ ಖತಗ ಹಣ ಕಳನಹಸನವ ಸಖದರರ, ಆತ ತನನ ಹಖಡತ ಪಜಳ ಹಸರಗ ಕಳನಹಸನವಖತ ಹರಳದದರನ. ನಖತರದಲ ಆರರರಪಯ ಮನಯ ಬಳ ವಚರಸದಗ, ಆಕ ಆತನ ಹಖಡತ ಅಲಲ ಎಖದನ ತಳಯತನ. ರರರ2,85,000/- ಆರರರಪಗ ಪವತಸದ ಬಗಗ ನರರಟರಸ ನರಡನವಗ ಮತನತ ಪಪಕರಣ ದಖಲಸನವಗ ನನಗ ದನಖಕ ತಳದತನತ ಎಖದರ ಸರ."
19. On going through the said testimony of PW.1, it discloses, when he sent money to the account of accused, he informed him that, send money to his wife Smt.Pooja's account. Later, he came to the house of accused and enquired, then knew that, Smt.Pooja is not of his wife. He deposed that, lent of loan of Rs.2,85,000/- to the accused, he knew the dates, while issued legal notice and filed the present complaint. The PW.1 has stated that, at the instruction of the accused, he sent money to the account of his wife Smt.Pooja, later he came to know that, Smt.Pooja is not his wife. Then under which strong ground the complainant has contended that, Smt.Pooja was consider as the wife of accused. In that regard, the PW.1 has produced the WhatsApp Messages exchanged between complainant and accused sent the passbook photo sent through WhatsApp to the complainant which found in Judgment 15 C.C.No.25920/2018 Ex.P8 and the passbook of the accused and Smt.Pooja, which got print to the WhatsApp version marked at Ex.P31 and P32.
20. On going through the Ex.P18, the message sent by accused it revealed that, by sent photo of Ex.P32 the copy of details of Karnataka Bank Passbook pertaining to the Smt.Pooja.H.V and sent through Ex.P18 messages to the complainant and thereby, the accused has mentioned that, my wife's account. The said Ex.P18 message was passed from the mobile number of the accused, therefore, at the instruction of the accused as he projected Smt.Pooja was his wife, the complainant as found in Ex.P11 to the account of Smt.Pooja as well as accused sent sum of Rs.29,100/-. Hence, it is consider the said amount paid by the complainant as loan at the instruction of the accused, therefore, whatever the amount sent to the account of Smt.Pooja is to be consider as, it was sent at the instance of accused, therefore, accused himself liable to pay the amount remitted by the complainant to the account of Smt.Pooja as well as accused for the tune of Rs.29,100/-. Thereby, the PW.1 has proved that, Rs.29,100/- amount was remitted by him to the accused and account of Smt.Pooja at the instruction of the accused, therefore, only that amount were passed through account.
Judgment 16 C.C.No.25920/2018
21. Though, PW.1 has subjected for cross-examination, as he pleaded, how he pay the cash of Rs.2,85,000/- as he pleaded, is not been established. If at all, along with camera complainant got paid money to the accused as loan for the tune of Rs.2,85,000/- cash as well as through on-line, it his him to prove. The PW.1 able to prove that, as found in Ex.P11 only he transmitted sum of Rs.29,100/- as loan. But failed to prove that rest of remaining amount of Rs.2,55,900/- was paid by him to the accused by way of cash, there is no particulars, there is no explanation nor produced any document as to passing of said consideration to the hands of accused. In that regard, no evidence has been placed by him, therefore, it made clear that, against his contention of lent of Rs.2,85,000/-, he able to prove that, through on-line only he got paid Rs.29,100/-. Hence, he not proved that, sum of Rs.2,55,900/- by way of cash remitted to the accused as hand loan. Thereby, complainant has failed to prove that, he paid cash of Rs.2,55,900/-.
22. That apart, in the pleading the complainant has contended, he gave his Cannon 5D Mark III camera to the accused for 2 days and he not returned, hence, for pay the value of the same, the accused got issued 2 cheques at Exs.P1 and P2 worth about Rs.5,30,000/- including the cash of Rs.2,85,000/-. As said earlier Judgment 17 C.C.No.25920/2018 he failed to demonstrate the payment of cash of Rs.2,55,900/-, but able to prove the passing of cash of Rs.29,100/- to the account of accused and at his instruction complainant got remitted money to the account of Smt.Pooja, therefore, the accused liable for payment of Rs.29,100/- is been proved as discussed earlier. The PW.1 has subjected for cross-examination with regard to handed over camera worth of Rs.2,45,000/- to the accused and he not returned the same, hence, he is liable to pay the amount in respect of the said camera, accordingly, the accused gave the cheques which covered the said amount. With regard to hand over the camera to the accused, whether the accused has admitted the said contention or not? to be seen by way of suggestion made to PW.1. In that regard, in the cross of PW.1, the answer given by the PW.1 and defence suggestion made by the accused to same is to be seen.
"ಲಖಕರಶ ಮತನತ ಪಜ ರವರಗ ಡಎಸಎಲಆರ 650 ಡ ಎಖಬ ಸನಮರನ ರರರ50 ರಖದ 60 ಸವರ ಬಲ ಬಳನವ ಕಕಮರ ಮತ ತ ದ , ಅವರನಗಳನ ಆ ಕಕಮರ ನನನ ಬಳ ಕರಳಲನ ಬಖದಗ, ಅವರಗ ಬರಕಗದನ ಅವರನಗಳ ಸನರಹತರದ ಆರರರಪ ಕರಡ ನನನ ಬಳ ಬಖದದದರನ ಎಖದರ ಸರಯಲಲ. ಸದರ ಡಎಸಎಲಆರ 650 ಡ ಕಕಮರವನನ ನ ನನನ ಪಜ ರವರಗ ನರಡನವಗ ಆಕಯಖದ ರದಪತಗಗ ಸಹ ಮಡದ ಖಲ ನಪ-1 ಮತನತ 2 ರ ಖಲ ಚಕನ ಕ ಗಳನನ ನ ಪಡದನಕರಖಡದ ಎಖದರ ಸರಯಲಲ.
Judgment 18 C.C.No.25920/2018
ಡಎಸಎಲಆರ 650 ಡ ಕಕಮರವನನ
ನ ನನನ ಬಡಗಗ ಕರಡನತತದ
ಎಖದರ ಸರಯಲಲ. ಪಜ ಮತನತ ಲಖಕರಶರವರನ ಸದರ ಕಕಮರವನನ ನ ಬಳಸನವಗ, ಅದಕಕ ಸಖಬಖಧಪಟಟ ಲನನ ಹರಡದನ ಹರರದ ಕರಣ, ಅವರನಗಳನ ಆ ಕಕಮರವನನ ನ ಆರರರಪಯ ಮನಖಖತರ ಕಳನಹಸ ಕರಟಟದದರನ ಎಖದರ ಸರಯಲಲ. ಆ ಸಖದರರ ನನನ ಕಛರರಯಲ ಇರಲಲಲ, ನನನ ಸಬಬಖದಗಳನ ಆರರರಪಯಖದ ಒತತಯಪವರಕವಗ ನಪ- 1 ಮತನತ 2 ರ ಚಕನ ನ ಪಡದದದರನ ಎಖದರ ಸರಯಲಲ. ನಪ-
ಕ ಗಳಗ ಸಹಗಳನನ
1 ಮತನತ 2 ರ ಚಕನ ನ ಆರರರಪ ನನಗ ನರಡದದಲ
ಕ ಗಳನನ ಲ ಎಖದರ ಸರಯಲಲ."
23. On going through the said testimony of PW.1, the accused has clearly admitted that, one Lankesh and Smt.Pooja were need DSLR 650D worth of Rs.50,000/- to Rs.60,000/- camera and in that regard, they have approached the complainant along with the accused herein. The PW.1 has denied the same. The suggestion made to PW.1 that, while they did approach as such, the complainant gave his DSLR 650-D camera to Smt.Pooja on the security of her sighed blank cheques at Exs.P1 and P2, but he denied the same. By making such suggestion to PW.1, the accused has admitted, the accused was also present while Lankesh and Smt.Pooja met the complainant for obtaining the camera from the complainant. Though, accused failed to prove that, it was DSLR 650-D camera by way of production of bill at Ex.P12, the complainant has proved that, it was the camera as Judgment 19 C.C.No.25920/2018 per the invoice it discloses, the same was camera Cannon 5D Mark-III with Kit Lens with default accessories, Kenko 77s Mc Uv 370 Pr and Scarachgaurd 5d Mark3 camera worth of Rs.2,20,547/-. In order to show that, the complainant gave the said camera, he got produced the purchase bill at Ex.P12. In order to show that, the accused along with other 2 persons got received DSLR 650D Camera not produced any evidence before this court. Thereby, the facts remains that, the accused along with his friends stated supra, got received the camera detailed at Ex.P12 stands proved by the complainant. The PW.1 has denied the suggestion that, he used to rented his DSLR 650D Camera. There was suggestion made to PW.1 that, while Smt.Pooja took the said camera from the complainant, she gave her sighed blank cheques at Exs.P1 and P2. By suggesting so, the accused has admitted, the questioned cheques at Exs.P1 and P2 are indirectly belongs to the said Smt.Pooja. If at all, the said cheques were pertaining to account of accused, definitely, it is responsibility of the accused to examine the said Smt.Pooja in connection to the said transaction. Though he contended, accused was his friend he not examined her or produce any bank statement or any other cheques pertaining to the account No.0616313000002253 drawn on Lakshmi Vilas Bank, Rajarajeshwari Nagar Branch, Bengaluru, Judgment 20 C.C.No.25920/2018 no bank particulars of the said Smt.Pooja is not been produced. Even to show that, the account pertaining to Exs.P1 and P2 - cheques stands in the name of Smt.Pooja, the accused has not obtained any account particulars from the said bank and produce before this court, in that regard, no effort is made. At least, as per Section 101 of Evidence Act, it is the burden on the accused, who took the particular contention which claimed to be existed that, the said account is not of the accused only pertaining to Smt.Pooja, it is him to produce necessary bank document or summon the bank officials to produce necessary document and lead evidence, in that regard no effort is made, no scrap of paper is been placed by the accused. Moreover, he took mere plausible defence by way of suggestion, would not suffice to believe the probable defence. Without any base, bold suggestion is made to PW.1 that, questioned cheques at Exs.P1 and P2 were belongs to Smt.Pooja, but they have utterly failed to prove the same.
24. In the said testimony of PW.1, it also suggested that, Smt.Pooja and Lankesh while used the said camera received from the complainant, lens were damaged, therefore, they have sent the said camera through accused to the complainant, but PW.1 has denied the same. By making such suggestion, the accused has clearly admitted that, while taking camera from the Judgment 21 C.C.No.25920/2018 complainant, either by Smt.Pooja or Lankesh, the presency of accused was clearly admitted. Likewise, while return the said camera on getting damaged and sent through accused is also admitted. By way of making such suggestion, the role of the accused while taking camera has been proved by the complainant. It is the duty of the accused to prove that, other than whom, taken the said camera from the complainant, but no necessary explanation or suggestion or evidence has been placed by him. The last of 4 lines of the above said testimony of PW.1 by way of suggestion made by the accused, it clearly established that, the accused got signed the Exs.P1 and P2 - cheques. To show that, the complainant and his people took the signature of accused on the same forcibly, not been proved. If at all, forcibly took signatures of the accused on Exs.P1 and P2 - cheques, if it is not of him, it is him to lodge complaint or issue legal notice or initiate necessary legal action as to the misuse of the cheques by the complainant. In that regard, no explanation is forth coming from the side of accused. It was suggested to him that, the cheques were not issued by the accused at Exs.P1 and P2 to he complainant, but he denied. Then it is the accused has to explain, to whom he gave cheques. By making the last suggestion also it made clear that, the accused gave cheques at Exs.P1 and P2 to Judgment 22 C.C.No.25920/2018 the complainant. Therefore, the PW.1 has successfully withstood his contention, but accused has utterly failed to demonstrate that, the questioned cheques at Exs.P1 and P2 are not pertaining to his account, they why he singed the same. Therefore, it is only one presumption can drawn on the evidence of PW.1 and suggestions made by the advocate for accused that, the role of the accused is been proved while taking camera from the complainant and issuance of Exs.P1 and P2 - cheques with his signatures. Therefore, now by contending questioned cheques are not belongs to the accused, without any valid grounds, accused cannot skip from the obligation. Therefore, the said evidence discloses, whatever the camera taken by the accused from the complainant was not returned and it was damaged. Therefore, it is the responsibility on the accused to pay the worth of camera and it is worth will be discuss later.
25. While cross-examining the PW.1 it was suggested by the accused advocate that, since lens has damaged while Smt.Pooja and Lankesh were used the camera, they sent the same through accused. The PW.1 has denied the said suggestion. If at all, lens damaged, question of pay the entire amount of the camera does not require and what portion was damaged he possible it can be substitute its part. But the accused has not taken any such Judgment 23 C.C.No.25920/2018 contention. If lens was lost, was a chance of got repair under what expenses is also the accused has not suggested. Moreover, the lens damaged camera was returned to the complainant by the accused no evidence has been placed and on which date, under what condition the said camera returned by the accused to the complainant is also not whispered. Simply suggested, lens damaged camera was returned by the accused, accepting the said contention of the accused no materials before this court nor furnished any satisfactory explanation. Therefore, it made clear that, whatever the camera taken by the accused from the complainant was not returned, therefore, the entire amount of the camera is liable to be return by the accused to the complainant. Then needs to ascertain the value of the camera.
26. As said earlier as per Ex.P12 the complainant was purchased the camera very particularly on 06.06.2015. The complainant has not discloses, exactly on which date he handed over the said camera to the accused on hire. On going through the pleading, it discloses, the age of camera was not narrated. By accepting the date of cheques dated:18.07.2018 and 21.07.2018 it has to be consider that, at least prior to the said date, the accused took the camera. On considering the same, it appears that, from the date of purchase till July, 2018 about 3 years were Judgment 24 C.C.No.25920/2018 lapsed from the date of purchase of the said camera. From which it made clear that, for the period of 3 years the complainant got used the said camera purchased as per Ex.P12 by paying amount of Rs.2,20,547/-. Therefore, it made clear that, the complainant has not gave new camera to accused, but it was old one as per Ex.P12. Therefore, 3 years depreciation has to be made by the complainant in receiving the value of the camera. In that regard, 3 years depreciation is not suggested by the accused, even not explained by the complainant. Therefore, 1/3rd value of the camera is lessed out of Rs.2,20,547/-, as the complainant has made use of the same of every years, the rest of the amount is liable to be pay by the accused. What will the 1/3 rd value has to be reduced out of Rs.2,20,547/- is to be seen.
27. On going through the total value of Rs.2,20,547/-, then out of Rs.2,20,547/- after deducting one share, the each share becomes Rs.73,515.67. After deduction of 1/3rd, then 2/3rd value of the total sum become 1,47,003.34 is to be payable by the accused as the value of the said camera. The 1/3rd value deducted for the reasons, the complainant got used the same for the period of 3 years. Therefore, remaining 2/3 rd value of the said camera amounting to Rs.1,47,003.34, the said sum has made rent as Rs.1,47,000/-. After making rent amount of Rs.1,47,000/-, Judgment 25 C.C.No.25920/2018 it is the consider as the value of the camera payable by the accused to the complainant as he lost the same. Along with the value of the said camera, the cash of Rs.29,100/- remitted to the account of accused and Smt.Pooja is also liable to be payable by the accused to the complainant, then it becomes Rs.1,47,000/- + 29,100/- = 1,76,100/-. Accordingly, this court has calculated the amount payable by the accused to the complainant as on the date of filing of complaint was Rs.1,76,100/- only. As the complainant has failed to demonstrate after made used of 3 years of the said camera will he entitle for whole amount of the bill, he has not produced any document. Even he failed to demonstrate that, as he pleaded, he lent the hard cash of Rs.2,85,000/- is not been proved, but able to prove only sent the account transfer of money of Rs.29,100/-. Therefore, the complainant is entitled for Rs.1,76,100/- from the accused.
28. The complainant has utterly failed to demonstrate that, the accused is liable to pay sum of Rs.5,30,000/- as made mentioned in the questioned cheques at Exs.P1 and P2. Likewise, though accused has prosecuted the matter all along, he utterly failed to demonstrate that, the cheques at Exs.P1 and P2 drawn on Lakshmi Vilas Bank, Rajarajeshwari Nagar Branch, Bengaluru is not belongs to him, but admitted his signatures on the same. He Judgment 26 C.C.No.25920/2018 utterly failed to demonstrate that, questioned cheques were not of him, therefore, by affixing his signatures to the same, got admitted that, he got executed and issued the questioned cheques at Exs.P1 and P2 to the complainant for payment of his liability accrued from lost of camera pertaining to the complainant and repayment of Rs.29,100/-. Therefore, the issuance of questioned cheques to the complainant reflected that, which was in respect of payment of liability arose on the accused pertaining to loss of camera pertaining to the complainant and repayment of Rs.29,100/-. Therefore, the issuance of questioned cheques to the complainant reflected that, it was in respect of payment of liability arose on the accused pertaining to lost of camera as well as refund of the account transfer to the account of him as well as Smt.Pooja. Therefore, as calculated by this court as such, the accused is liable to pay sum of Rs.1,76,100/- to the complainant coupled with the additional fine of Rs.3,900/- payable to the state, together with the accused shall pay the fine of Rs.1,80,000/-, failed to pay the same, he shall undergo simple imprisonment for 12 months. Out of the said fine, sum of Rs.1,76,100/- shall be payable to the complainant as compensation and balance amount of Rs.3,900/- shall be payable to the state as fine. If that is done it Judgment 27 C.C.No.25920/2018 will meet the ends of justice and avoid the multiplication of proceedings.
29. As discussed above, the complainant by way of furnishing clear, convincing, corroborative, oral as well as documentary evidence, has partly proved that, the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Therefore, looking into the transaction, it is the considered opinion of this court that, the accused has taken bald, inconsistence defence without any base and failed to prove his improbable defence. Contrary, the PW.1 has partly established his case beyond the reasonable doubt through oral as well as documentary evidence. Thereby, unnecessarily cause the complainant to approach this court of law, therefore, the accused is liable to be punished by way of imposing fine sentence. Therefore, the accused is to be convicted by imposing fine amount of Rs.1,80,000/- against the cheques amount of Rs.5,30,000/-. Out of the said fine amount, sum of Rs.1,76,100/- shall be payable to the complainant as compensation and remaining amount of Rs.3,900/- shall be payable to the state as fine. Accordingly, if the accused fails to pay the whole fine amount within one month, the accused shall undergo simple imprisonment for 12 months. Thereby, one more opportunity has provided to the Judgment 28 C.C.No.25920/2018 accused to comply the order. Otherwise, the very purpose of filing complaint will be defeated. As discussed above, the complainant has partly proved his case beyond reasonable doubt. In the result, the accused shall sentence to pay the fine amount as detailed in the order portion. Accordingly, Point Nos.1 and 2 are answered in the partly Affirmative.
30. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
ORDER Accused found guilty for the offence punishable under Section 138 of Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay fine of Rs.1,80,000/- within 30 days from the date of this order.
Out of the said fine amount, sum of Rs.1,76,100/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.3,900/- shall be payable to the state as fine amount.
In default of pay the fine amount, the accused shall under go simple imprisonment for 12 (Twelve) Months.
Judgment 29 C.C.No.25920/2018 The bail bond and cash security/surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 10th day of November - 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Vijayendra.D.G List of Exhibits marked on behalf of Complainant:
Exs.P1 & P2 : Original Cheques Exs.P1(a) & P2(a) : Signatures of accused Exs.P3 & P4 : Bank endorsements Ex.P5 : Office copy of legal notice Ex.P6 : Postal receipt Ex.P7 : Postal Acknowledgment card Ex.P8 : Private complaint Ex.P8(a) : Signature of complainant Ex.P9 : Form No.16 Ex.P10 : Copy of ITR-1 Ex.P11 : Statement of account Ex.P11(a) to P11(d) : Some entries at Ex.P11 Ex.P12 : Tax Invoice Exs.P13 to P32 : Copies of WhatsApp Messages Ex.P33 : C.D.
List of Witnesses examined on behalf of the defence:
- None -
Judgment 30 C.C.No.25920/2018 List of Exhibits marked on behalf of defence:
- Nil -
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 31 C.C.No.25920/2018
10.11.2020.
Comp -
Accd -
For Judgment
Case called out.
Complainant and accused are
absent. No representation from both side
advocates, despite, web-host the case
proceedings and intimate the date of
pronouncement of judgment. Hence, as
per Section 353(6) of Cr.P.C. the following judgment is pronounced in the open court vide separate order.
***** ORDER Accused found guilty for the offence punishable under Section 138 of Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay fine of Rs.1,80,000/- within 30 days from the date of this order.
Out of the said fine amount, sum of Rs.1,76,100/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.3,900/- shall be payable to the state as fine amount.
Judgment 32 C.C.No.25920/2018 In default of pay the fine amount, the accused shall under go simple imprisonment for 12 (Twelve) Months.
The bail bond and cash security/surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.