Bangalore District Court
Hucchappa vs B.H.Muniraju @ Rajanna on 11 August, 2021
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 11th day of August - 2021
PRESENT: SRI. N.K.SALAMANTAPI, B.A., LL.B.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.25310/2018
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Hucchappa,
S/o.Late.Yelagappa,
Aged about 72 years,
R/at Singahalli,
Chikkajala Hobli, Boodigere Post,
Bengaluru North Taluk,
Bengaluru.
(Rep. by Sri.H.T.Vasanth Kumar, Adv.)
V/S
Accused : B.H.Muniraju @ Rajanna,
Father name not known,
Abed about 50 years,
No.36/1-2, 1st 'G' Cross,
Near Kitti Factory, Ramamandira
Road, Kamakshipalya,
Bengaluru-79.
(Rep.by Sri.H.E.Puttaswamy Gowda, 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 : 11.08.2021.
(N.K.SALAMANTAPI)
XXIII Addl.CMM., Bengaluru.
Judgment - 2 - C.C.No.25310/2018
JUDGMENT
The complainant has presented the instant complaint against the accused under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act for dishonour of cheque amount of Rs.10 lakhs.
2. Earlier on account of accused not cross-examined the PW.1, convicted the accused on 17.01.2019. The accused has challenged the said judgment by preferring the Criminal Appeal No.271/2019, wherein, the judgment of this court came to be set- aside and remanded the matter for fresh disposal by giving necessary opportunity to the accused to cross-examine the PW.1 and to lead his evidence. Accordingly, the said direction is complied by this court and taken the matter for judgment after giving sufficient opportunities to both side.
3. The brief facts of the complaint are as under:
The complainant has absolute owner of the property bearing Sy.No.6P1, measuring 2 acres 39 guntas of land situated at Singahalli, Chikkajala Hobli, Boodigere Post, Bengaluru North Taluk. The said land was acquired by the KIADB for formation of IT Park and Rs.1,72,05,000/- compensation was awarded by the KIADB.
Judgment - 3 - C.C.No.25310/2018 The complainant has contended that he was an agriculturist by profession and he is uneducated person, taking advantage of the same, the accused and his friends by name Narasimhaiah.H, Ravishankar and Maresh Kumar joints together gained the confidence of complainant and get release the award amount from KIADB in favour of complainant as Narasimhaiah.H, is the Chief Planning Officer, Zilla Panchayath, Bengaluru Urban District, he is having a influence in KIADB. The complainant had believed the words of accused and his friends and agreed to proceeds.
The complainant has further contended that the accused and his friends have blackmailed the complainant and took sum of Rs.1 crore from the complainant. Thereafter, the complainant lodged the complaint before the jurisdictional Police Station and Karnataka Lokayuktha. The Karnataka Lokayuktha police have registered a case in Crime No.24/2015 for the offence punishable under Section 13(1)(d) r/w Section 13/2 of PC Act and the same is pending for consideration. Thereafter, the complainant has filed a private complaint bearing No.6659/2017 before the 24th ACMM, Bengaluru for the offence punishable under Sections 417, 418, 419, 420, 504 and 506 r/w 32 of IPC and the Court has referred the matter for investigation to the jurisdiction Police Station. When the said matter was pending for investigation, immediately Judgment - 4 - C.C.No.25310/2018 the accused and his friends have approached the complainant to get compromise by accepting their offence. For which, the accused and his friends have executed a Memorandum of Understanding on 10.03.2018 in favour of complainant and they have affixed signatures therein and agreed to pay sum of Rs.28 lakhs to complainant within three months as full and final settlement.
The complainant has further contended that after completion of three months, the accused has not bothered to pay the said agreed amount and when the Vijayanagar Police have started to file charge sheet, at that time the accused has issued a post dated cheque bearing No.048063, dated 28.06.2018 for Rs.10 lakhs drawn on Axis Bank, in favour of complainant, towards part payment of agreed amount as per the said Memorandum of Understanding. The accused has requested the complainant to present the said cheque for encashment after 15 days, by assuring that the above said cheque will be honoured.
The complainant has further contended that as per instructions of accused, he has presented the said cheque for encashment through his banker viz., Vijaya Bank, Ganganagar Branch, Bengaluru. To utter shock and surprise of complainant, Judgment - 5 - C.C.No.25310/2018 the said cheque was returned unpaid with the bank endorsement dated 16.08.2018, stating "Drawers Signature Differs". Immediately, the complainant tried to inform the accused over telephone, but intentionally, the accused has avoided to meet the complainant and to receive the phone calls. Thereafter, the complainant got issued legal notice to the accused on 23.08.2018, calling upon him to repay the cheque amount within 15 days from the date of receipt of the legal notice with interest at 18% p.a. and the same was duly served upon accused on 27.08.2018. Despite the notice, the accused neither replied the legal notice nor paid the cheque amount. Thus, he committed an offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
4. After receipt of the private complaint, my predecessor in office 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.
5. In response to the summons, the accused appeared through his counsel and obtained bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was Judgment - 6 - C.C.No.25310/2018 read over and explained to accused, wherein, he denied the same and claimed to have the defence.
6. To prove the case of the complainant, he himself choosen to examine as PW.1 and got marked Exs.P1 to P9(a). The PW.1 was subjected for cross-examination by the advocate for the accused.
7. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same. In support of the defence, the accused himself was examined as DW.1 and got marked documents at Exs.D1 to D3. The DW.1 was subjected for cross-examination by the advocate for the complainant.
8. Both side counsels have addressed their arguments. The accused counsel has also submitted his detailed written arguments.
9. On going through the rival contentions, based on the substantial evidence available on record, the following points would arise for determination:
1) Whether the complainant proves beyond the reasonable doubt that the accused got issued Ex.P1-cheque bearing No.048063 to the complainant towards discharge of legal recoverable Judgment - 7 - C.C.No.25310/2018 debt or liability and the said cheque was dishonoured?
2) Whether the complainant proves beyond the reasonable doubt that after dishonour of cheque served notice to the accused in compliance of Section 138(b) of Negotiable Instruments Act?
3) What Order?
10. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Affirmative Point No.2 : In the Affirmative Point No.3 : As per final order, for the following:
REASONS
11. POINT NOs.1 and 2: Since both the points are connected with each other, they have been taken together for common discussion in order to avoid repetition of facts.
In order to prove his case, the complainant filed his affidavit in lieu of his chief examination and himself examined as PW.1, wherein, he has reiterated the averments made in the complaint. In support of his contention, he relied upon the documents at Exs.P1 to P9. Among them, cheque bearing No.048063 issued by the accused for sum of Rs.10,00,000/- dated 28.06.2018, drawn on Axis Bank Ltd., G.G.Arcade Service Road, No.2940/E-5, Judgment - 8 - C.C.No.25310/2018 West of Chord Road, Opp. Maruthi Mandir, Vijayanagar, Bengaluru is marked as Ex.P1. The signature of accused is marked as Ex.P1(a). Ex.P2 is the Bank Endorsement issued by Axis Bank, the contents of Ex.P1 discloses that the cheque bearing Nos.048063 drawn for Rs.10,00,000/- was dishonoured for the reasons "Drawers Signature Differs". Ex.P3 is the Legal Notice dated 23.08.2018, the recitals of Ex.P3 discloses that the complainant has issued this notice to the accused through his counsel. By issuing this notice, complainant called upon the accused to repay the cheque amount of Rs.10,00,000/- within 15 days from the date of receipt of notice. Ex.P4 is the Postal receipt. Ex.P5 is the postal acknowledgment card. Ex.P6 is the private complaint filed by complainant before this court on 14.09.2018. Ex.P6(a) is the signature of complainant. Ex.P7 is the certified copy of FIR dated 16.06.2017 in Cr.No.308/2017. It discloses that the complainant has lodged a complaint against the accused herein and other 5 persons before the Vijayanagar Police Station. Ex.P8 is the certified copy of charge sheet in Cr.No.308/2017 submitted by Vijayanagar Police Station before the learned IV ACMM, Bengaluru. Ex.P9 is the Memorandum of Understanding/Agreement dated 10.03.2018 executed by accused herein and others in favour of complainant herein and Judgment - 9 - C.C.No.25310/2018 Ex.P9(a) is the signature of accused herein. The PW.1 was subjected to the cross-examination by the advocate for the accused.
12. On the other hand, the accused has contended that his address is No.51/1, Ramamandira Road, Kaveripura, Kamakshipalya, Bengaluru-79, therefore the legal notice was not served upon him. But in his evidence affidavit, he has mentioned his residential address is No.36/1-2, 1st G Cross, Near Kitty Factory, Ramamandira Road, Kamakshipalya, Bengaluru-79. The address mentioned in Crl.A.No.271/2019 filed by the accused before the Hon'ble LXII Addl. City Civil and Sessions Judge, Bengaluru (CCH-63) and the address mentioned in the cause title of the present case are one and same.
13. The DW.1 in the cross-examination has admitted that:
ದ , ನನನ ಕದಟದಅಬದ "ನಪ-5 ರ ಅಅಚ ಸಸಸಕಕತ ಪತ ತವ ನನನ ವಳಸಕಕ ಬಅದದದ ಸದಸಸರದ ಸಸಸಕರಸರದತತರ ಎಅದರ ಸರ."
On going through the said testimony of DW.1, it appears that the demand notice (Ex.P3) came to the address of accused and same was received by the family members of accused.
Judgment - 10 - C.C.No.25310/2018 It is relevant to cite the decision reported in ACD 2011 page 1507 (SC) in the case of MD Thomas V/s. P.S.Jaleel and another, the Hon'ble Apex Court, in the said ruling held that;
"the notice of demand was served upon the wife of the appellant and not the appellant. Therefore, there is no escape from the conclusion that the complainant had not complied with the requirements of giving notice in terms of Section 138(b) of Negotiable Instruments Act".
14. As per the said dictum, it also made clear that the legal notice served to the address of the accused is enough for consider the compliance of Section 138(b) of Negotiable Instruments Act. Despite, the legal notice was served to the address of the accused, he is not diligent in cause reply to the legal notice of complainant. Thereby, he avoided to take any specific defence before initiate the present proceedings. Thereby, the accused has created one of the ground that since, he has no specific defence, he has not choosen to cause reply notice, despite, the said legal notice was delivered to the address of the accused is also one of the circumstances caused against the accused.
Judgment - 11 - C.C.No.25310/2018
15. In the present case on hand, the accused has admitted in paragraph No.6 of his cross-examination that the criminal case has been registered by the complainant herein against him, Narasihmaiah, Venkataramaiah, Satish, Ravikumar and Madeshkumar for the offence punishable under Sections 504, 505, 506, 423, 417, 418, 419, 420 r/w 34 of IPC. Exs.P7 and P8 are the FIR and Charge Sheet filed against the accused and others. If really, the accused has not committed any offences, police would have not filed charge sheet against him and other persons for the offence punishable under Sections 504, 505, 506, 423, 417, 418, 419, 420 r/w 34 of IPC. If the complainant took cheque by force, what prevented the accused to give stop payment instructions to his bank authorities and to give the complaint to the jurisdiction Police against the complainant, which is not done by the accused and also not explained by the accused in not taking legal action against the complainant in his entire evidence.
16. In the present case on hand, the complainant herein is 74 years old senior citizen and accused is 54 years old person, how it possible to take the cheque from him by forcefully by the senior citizen complainant. It is impossible to believe the version of accused, about taking cheque by forcefully by the complainant. If Judgment - 12 - C.C.No.25310/2018 really the complainant took the cheque forcefully, definitely, the accused would have lodged the complaint against the complainant and he would have given stop payment instructions to his banker. The accused did not explain on what reason he kept mum till filing of the complaint. Even after filing of the complaint also he did not take any legal action against the complainant. From this, it is made clear that the accused has issued cheque as per Ex.P1 for discharge of legally recoverable debt.
17. In support of his claim, after completion of both side the evidence and when the matter was posted for arguments at that time the accused has produced 3 documents and same were marked as Exs.D1 to D3. Among them, Ex.D1 is the Aadhaar Card pertaining to accused, Ex.D2 is the Ration Card pertaining to accused and his family members and Ex.D3 is the gas delivery receipt pertaining to accused issued by Ekadanta Indane Gas Service. Exs.D1 to D3 documents disclose the residential address of accused is No.51/1, Ramamandira Road, Kaveripura, Kamakshipalya, Bengaluru. But the accused has not produced any property documents pertaining to him or his family members to show that the address mentioned in Exs.D1 to D3 belongs to him. When the complainant side strongly opposed of the address Judgment - 13 - C.C.No.25310/2018 mentioned in the Exs.D1 to D3, it is the duty of the accused to prove the address mentioned in Exs.D1 to D3 belongs to him by producing property documents. But, in this case no relevant documents produced by him to prove that the address mentioned in the Exs.D1 to D3 is belonging to him.
18. The accused has contended that he has not taken any amount from the complainant and the complainant has forcefully took the cheque from him. If accused has not taken the amount from the complainant and if the complainant took the cheque forcefully definitely, accused would have taken legal action against the complainant. If really the accused did not take any amount from the complainant, how it is possible to file the charge sheet against the accused and other persons before the jurisdictional court for the offence punishable under Sections 504, 505, 506, 423, 417, 418, 419, 420 r/w 34 of IPC. If the accused has not issued a cheque for Rs.10 lakhs, he would have challenged the charge sheet - Ex.P8 filed against him. Therefore, it is difficult to believe the version of accused that the complainant, who is 74 years old senior citizen took the blank cheque of accused before the Police Station by forcefully.
Judgment - 14 - C.C.No.25310/2018
19. The accused has further contended that the complainant has not acquainted with him at any point of time and the complainant is a stranger to him. If really the accused was not acquainted with the complainant, how it is possible to lodge the complaint against the accused and other persons for commission of offence punishable under Sections 504, 505, 506, 423, 417, 418, 419, 420 r/w 34 of IPC. The accused has not produced any materials before this court that the KIADB authorities have not acquired the land bearing Sy.No.6/P1, measuring 2 acres 39 guntas and he has not produced any documents to prove that the said land was not belonging to the complainant. On perusal of FIR and Chargesheet and other documents produced by complainant, it is made clear that the KIADB authorities have acquired the land belongs to complainant and in view of the same they have awarded the compensation amount in favour of complainant. From this, it is clear that the complainant was having financial capacity.
20. The accused has taken contention that there is no transaction in between complainant and himself. The counsel for complainant argued that if really the accused did not have any transaction with the complainant, he would have cause reply to the demand notice sent by complainant, inspite of service of Judgment - 15 - C.C.No.25310/2018 demand notice he did not cause any reply. If no such transaction was taken place between himself and complainant, he would have raise the defence that the said cheque was not belonging to him. But the same has not been done by the accused. In support of his arguments, the learned counsel for complainant has relied upon the decisions as under:
a) Crl.A.No.2109 of 2017 in the case of V.R.Shresti V/s. Bhaskar.P.
b) Crl.R.P.No.87 of 2019 c/w 133/2019 in the case of Santosh S Lad V/s. M/s. Rackline Entertainment Pvt. Ltd.,
c) Crl.R.P.No.926 of 2018 in the case of Prabhakar.A V/s.
Praveen Kumar.R. I have gone through the decisions stated supra.
21. While making cross-examination of PW.1, the accused denied his signature found in Ex.P1 cheque, but regarding the same no questions were posed to the PW.1, as to its genuineness. On close perusal of the signature found in Ex.P1(a) cheque as well as the signatures of the accused available on case record, such as plea, 313 of Cr.P.C. statement and depositions, it discloses, the signature appears to be little different. It cannot be ruled out that the accused for the sake of his defence, he got changed his signature subsequent in issuing the cheque at Ex.P1 as no necessary explanation forthcoming in regard to the same.
Judgment - 16 - C.C.No.25310/2018 Even no suggestion is made to PW.1, as to denial of his signature or issuance of questioned cheque for discharge of existence of legally recoverable debt. The PW.1 withstood his contention by giving necessary explanation in the line of his complaint averments. Even a single suggestion is not made to the complainant as to accused not liable to pay the amount covered under the cheque at Ex.P1. Even there is no suggestion with regard to the compliance of mandatory provision. Thereby, the PW.1 withstood his contention, but accused without any base, took bald and baseless contention.
22. On overall appraisal of the materials available on record, it is the consider opinion of this court that the accused has failed to discharge initial burden to rebut the statutory presumption as well as the facts and circumstances placed by the complainant in the present case. Thereby, the complainant has proved the guilt of the accused that the accused is liable to pay the amount covered under the Ex.P1-cheque. There is no substance in the probable defence of the accused, whereas the complainant has discharged his burden and proved the guilt of the accused. Therefore, keeping in the mind of the object of introduction of Negotiable Instruments Act, it appears this court, it is fit case to convict the accused.
Judgment - 17 - C.C.No.25310/2018
23. Therefore, from the perusal of oral and documentary evidence placed on record it reveals that complainant has made out his case and accused has failed to rebut the presumptions arisen in favour of complainant. Thus complainant has proved that accused has committed an offence punishable under Section 138 of Negotiable Instruments Act beyond all reasonable doubt. Hence, in view of the above said reasons, I hold point Nos.1 and 2 in the Affirmative.
24. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
ORDER 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 total fine of Rs.11,00,000/-.
Out of the said fine amount, sum of Rs.10,90,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.10,000/- shall be payable to the state as fine amount.
In default of payment of fine amount, the accused shall under go simple imprisonment for 01 (One) Year.
Judgment - 18 - C.C.No.25310/2018 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 11th day of August - 2021) (N.K.SALAMANTAPI) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Hucchappa List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Ex.P1(a) : Signature of accused Ex.P2 : Bank endorsement Ex.P3 : Office copy of legal notice Ex.P4 : Postal receipt Ex.P5 : Postal acknowledgment card Ex.P6 : Private complaint Ex.P6(a) : Signature of complainant Ex.P7 : CC of FIR in Cr.No.308/2017 Ex.P8 : CC of Charge sheet Ex.P9 : MOU/Agreement
List of Witnesses examined on behalf of the defence:
DW.1 : B.H.Muniraju @ Rajanna Judgment - 19 - C.C.No.25310/2018
List of Exhibits marked on behalf of defence:
Ex.D1 : Original Aadhaar Card
Ex.D2 : Original Ration card
Ex.D3 : Gas receipt
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment - 20 - C.C.No.25310/2018
11.08.2021.
Comp -
Accd -
For Judgment
Judgment pronounced in the open court vide separate order.
***** ORDER 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 total fine of Rs.11,00,000/-.
Out of the said fine amount, sum of Rs.10,90,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.10,000/- shall be payable to the state as fine amount.
In default of payment of fine amount, the accused shall under go simple imprisonment for 01 (One) Year.
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.
Judgment - 21 - C.C.No.25310/2018 Later, the convictee's counsel filed application Under Section 389(3) of Cr.P.C seeking for suspend the sentence for the reasons stated in the application.
Heard.
In the present case, the
judgment was pronounced and
convicted the accused. In view of the
same, the convictee counsel has
prayed that to suspend the sentence
Judgment - 22 - C.C.No.25310/2018
by appeal period. For the reasons
stated in the application, for the
limited period of prefer appeal only,
the application filed by the accused
counsel under Section 389(3) of
Cr.P.C. is hereby partly allowed and
sentence is suspended till appeal
period only.
The convictee is hereby directed
to execute bond for fine amount of
Rs.11,00,000/.
XXIII ACMM, Bengaluru.