Bangalore District Court
Sri. Keshava Murthy N.G vs Sri. V. Ramanujam on 30 August, 2021
IN THE COURT OF XXXIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, MAYO HALL UNIT,
BENGALURU
: PRESENT :
M.Vijay, BA (Law), LLB.
XXXIII ADDL.CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED THIS THE 30TH DAY OF AUGUST, 2021.
C.C.No.57981/2018
COMPLAINANT : Sri. Keshava Murthy N.G
S/o Ganesh Roa
Aged about 67 years,
R/at 1859,2nd Floor, 2nd Main, 6th "C"
Cross, New Thippsandra,
Bangalore560075.
.Vs.
ACCUSED : Sri. V. Ramanujam
S/o Late. G. Vangadaswamy Naidu,
R/at No.85916(old No. 189), 3rd
Cross, 1st main road, new
Byappanahalli, Off Swami
Vivekananda Road, Indira Nagar Post,
Bangalore.560038
JUDGMENT
.
The complainant has filed this private complaint U/s.200 of Cr.P.C., against the accused for the offence punishable U/S 138 of Negotiable Instrument Act.
2C.C.No.57981/2018
2. The factual matrix of the case are as follows: The complainant averred that, accused was represented as a owner of an immovable house property bearing No. 85916 comprising of three floors situated at Byappanahalli, had offered to lease out 2 bed room house situated in ground floor to him for lease to an amount of Rs.10,00,000/, accordingly, he entered in to a lease agreement with the accused on 15.03.2017, as per it, he paid an amount of Rs.9,00,000/ through cheques i.e., cheque bearing No.010779 dated 06.03.2017 sum of Rs.2,00,000/ drawn on Vijaya Bank New Thippasandra, Cheque bearing No.6167802 dated 06.03.2017 for sum of Rs.2,50,000/ in drawn on Karntaka Bank Indiranagar, Cheaque bearing No.676181 dated 30.03.2017 for sum of Rs.2,00,000/ drawn on Karnataka Bank Indira Nagar, cheque bearing No.45165 dated 30.03.2017 for sum of rs.2,00,000/ drawn on on Karnataka Bank Indira Nagar branch, and he agreed to be pay balance amount of Rs.1,00,000/ shall be paid within one year, based on it, he entered into the possession of leased house.
3. Further, he averred that, during the subsistence of lease i.e., in the month of november 2017, he learnt that, 3 C.C.No.57981/2018 the accused had availed loan from Sundram BNP Paribas Home finance limited, by mortgaging the property and the recovery proceeding was already initiated and constructive possession of the said property was already taken, accordingly, he was insisted to vacate and handover, the vacant possession of leased premises, same was brought to the notice of the accused, but, the accused did not to resolve the issue, ultimately on 08.11.2017 the officials of bank, court and police personal have evicted him and his family members from the leased premises as per the court order, during the subsistence of lease, the said fact of pendency of recovery proceedings had concealed by the accused and entered into lease agreement with him, same was questioned to the accused, however, he undertook to repay the lease amount of Rs.9,00,000/, accordingly, in this regard, they have entered into a mutual agreement dated 11.11.2017, in pursuance of it accused had undertaken to repay the lease amount with interest at the rate of 2% p.m., towards discharge of lease amount the accused allegedly issued following 3 cheques i.e., cheaque bearing No.706410 dated 28.05.2018 for sum of Rs.3,00,000/ , cheque bearing No. 706411 dated 04.06.2018 for sum of 4 C.C.No.57981/2018 Rs.3,00,000/, cheque bearing No.706412 dated 04.06.2018 for sum of Rs.3,00,000/ all were drawn on UCO Bank Indiranagar Bangalore, with the promise that, the cheque would be honored on it's presentation, later on the accused has paid sum of Rs.50,000/ to him for alternative accommodation and also agreed to pay the interest on the lease amount.
4. Believing the words of the accused, initially he presented the first cheque i.e., cheque bearing No.706410 dated 28.05.2018, but, it was dishonored, due to "insufficient funds", vide memo dated 29.05.2018, thereafter he presented remaining two cheques i.e., 706411, 706412 through his banker, both were dishonored for "funds insufficient" vide memo's dated 06.06.2018, based on it, he caused legal notice demanding to pay the cheques amount as agreed in mutual agreement on 21.06.2018, same was served on the accused on 25.06.2016, but, accused issued untenable reply, and not returned his lease amount, accordingly, he alleged that, accused has committed an o/p/u/s 138 N.I. Act.
5C.C.No.57981/2018
5. Based on the complaint, the sworn statement affidavit, the documents, by following the guidelines of Hon'ble Apex Court issued in 2014 AIR SCW 3462 between Indian Bank Association Vs. Union Bank of India, the court took cognizance of an offense punishable under Sec.138 of N.I. Act and ordered to be registered a criminal case against the accused for the offense punishable under Sec.138 of N.I. Act.
6. In pursuance of summons, the accused appeared through his counsel and he was on court bail. Plea has been recorded accused pleaded not guilty and claimed to be tried.
7. To prove the case, the complainant got examined himself as PW.1 and relied upon Ex.P1 to P12. On closure of complainant side evidence, the accused was examined U/Sec.313 (1) (b) of Cr.P.C., he denied the incriminating materials on record, and examined himself as Dw.1 and placed reliance on Ex.D1 to D6.
6C.C.No.57981/2018
8. Heard, both the sides, perused the materials on record, the following point arise for my determination.
"Whether the complaint proves beyond all reasonable doubt that accused has committed an o/p/u/s 138 of N.I Act?
2. What Order?
9. My findings to the above points are follows;
Point No1: In the Affirmative.
Point No.2: As per final order for forgoing;
REASONS
10. The specific case of the complainant is that, the accused was represented as a owner of house property bearing No.85916 comprising of 3 floors, on 15.03.2017 he claims to have entered a lease agreement with the accused for lease of ground floor for lease amount of Rs.10,00,000/, as per agreement he paid total Rs.9,00,000/ through cheques to the accused and agreed to pay balance amount of Rs.1,00,000/ after one year from the date of agreement, in pursuance of lease he entered into a possession of leased house, however, 7 C.C.No.57981/2018 during subsistence of lease i.e., in the month of november 2017, he was evicted by Sundaram BNP Paribass Home Finance, bank officials and court officials as per the court order on 08.11.2017, later he learnt that, the accused by concealing the mortgage of house property had entered into a lease agreement with him, in this regard, he demanded the accused to return his security deposit of Rs.9,00,000/, for that the accused had executed a mutual agreement on 11.11.2017 by undertaking to repay the lease amount Rs.9,00,000/ with interest 2% p.m., towards discharge of the same accused allegedly issued 3 post dated cheques i.e., cheque bearing No. 706410 dated 28.05.2018 for sum of Rs.3,00,000/, 706411 dated 04.06.2018 for sum of Rs.3,00,000/, cheque bearing No.706412 dated 04.06.2018 for sum of Rs.3,00,000 all the cheques were drawn on UCO Bank Indira Nagar Branch by assuring him that, the cheques would be honored on its presentation, besides that, accused also paid Rs.50,000/ to him for alternative accommodation, believing the assurance of the accused, he presented the cheque on 28.05.2018 through his banker Karnataka Bank, but, it was dishonored for funds insufficient vide memo dated 29.05.2018, and other 2 cheques were 8 C.C.No.57981/2018 presented on 04.06.2018 both these cheques were also returned unpaid for funds insufficient vide memo's dated 06.06.2018, despite service of legal notice accused not cleared the cheques amount, but, issued untenable reply, hence this complainant.
11. The complainant in order to prove his case got examined himself as PW1 and reiterated the complainant averments in it's evidence affidavit, and placed reliance on cheques Ex.P1 to P3, memo's Ex.P4 to 6, copy of legal notice Ex.P7, copy of reply notice Ex.P10, house lease agreement Ex.P11, mutual agreement Ex.P12, the accused subjected the PW1 for cross examination, wherein, he posed several questions with regard to how much the lease amount, modes of lease amount paid, who filled the contents of cheque, and suggested he paid Rs.50,000/ to the complainant through cheque and another Rs.20,0000/ by cash from wife of the accused and asked whether the PW1 had issued, notice for termination of lease, however, accused does not denied the lease agreement i.e., Ex.P10, mutual agreement i.e., Ex.P11 entered in between him and the complainant, further, he 9 C.C.No.57981/2018 has not denied Ex.P1 to 3 cheques and signature thereon is belongs to him during the course of cross examination.
12. That apart, the accused in his examination chief has admitted that, he leased out his ground floor residential house to the complainant as per Ex.P11 for an amount of Rs.10,00,000/, as per it, he received Rs.9,00,000/ from the complainant and lease period was 3 years, however, he specifically contended that, during subsistence of lease i.e., on 10.11.2017, complainant and other 7 to 8 persons came to him and told him that complainant was vacating the premises, accordingly, asked to return the advance money, at that time he expressed his inability to repay the advance amount, but, complainant forcibly obtained his sign on the memorandum of understanding and also collected his 3 signed blank cheques for sum of Rs.3,00,000/ each, thereafter he claims to have repaid a sum of Rs.50,000/ through cheque and Rs.10,000/ twice through his daughter account.
13. So, considering the evidence on record, it is clear that, there is no dispute that, the complainant was lessee 10 C.C.No.57981/2018 and had taken the residential house premises for lease as per Ex.P11 and paid the lease amount of Rs.9,00,000/ through cheques to the accused, and lease period was 3 years, that apart, Ex.P1 to 3 and signatures Ex.P1(a) to 3(a) are of the accused, Compliance of Sec.138 (a) to (c) of N.I Act is also not in dispute, however, the accused specifically contended the Ex.P1 to 3 and his signature on MOU, Ex.P12 was forcibly obtained by the complainant and he is not liable to pay the claimed amount.
14. In view of admission of the accused that, Ex.P1 to 3 and signatures thereon is belongs to the accused, the complainant has discharged the initial burden that, the cheques Ex.P1 to 3 and signature thereon are that of the accused, so, once it is proved, the initial presumption has to be drawn in favour of the complainant that, the cheques were issued towards discharge of legally enforcible liability, as per Sec.139, 118 (a) of N.I Act at this stage it is worth to note the decision of the Hon'ble Apex Court between Rangappa v/s Mohan;
"Once the cheque relates to the account of the accused and he accept and admit the 11 C.C.No.57981/2018 signature on the said cheque, then initial presumption as contemplated under Sec.139 of N.I. Act has to be raised by the court in favour of the complainant. The presumption referred to in Sec.139 of N.I.Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption."
15. Accordingly, an initial presumption has been drawn in favour of the complainant, however, it is a rebuttble presumption, therefore, the onus is on the accused to rebut the presumption.
16. The accused in order to rebut the presumption has examined himself as DW1, wherein, he specifically stated lease period was 3 years, and denied the eviction of PW1 from leased house premises and contended that, Ex.P1 to 3 and his signature on MOU was forcibly obtained by the complainant and family members, however, during the course of the cross examination he admits that, an order passed by the Hon'ble 10th ACMM in Crl. Misc.
12C.C.No.57981/2018 No.50060/2013 for taking possession of the mortgaged property under SARFAESI Act, further, he also admits the said fact of proceedings initiated under SARFAESI Act was not disclosed in an lease agreement Ex.P11, so, which clearly stands proved the assertion of the complainant that, on 08.11.2017 during subsistence of lease, complainant and his family members were evicted and possession of leased premises was taken by Sundaram Finance, but, despite of his admission, the accused claims that, the possession of leased house was with him during subsistence of lease, is not acceptable.
17. Further, the accused admits the signatures found on Ex.P12 mutual agreement are that of him, however, he specifically contended that, the cheques and signatures on MOU were forcibly obtained by the complainant, but, he admits that, despite of his contention about forcible actions of the complainant he has not lodged any complaint before the Police, so, except his self serving statement about obtaining of signature on MOU, absolutely there is nothing on record to believe his contention, therefore, the Ex.P12 clearly discloses soon 13 C.C.No.57981/2018 after taking possession by the Sundarm Finance the complainant and accused have entered into an mutual agreement, wherein, it is clearly discloses the accused had undertaken to repay the lease amount of Rs.9,00,000/ with interest at 2% p.m., and issued the Ex.P1 to 3 post dated cheques, as held supra, the accused admits his signatures found on each page of Ex.P12 which are marked as Ex.P12(a), 12(b), 12(c), but, he contends that, it was obtained forcibly, but, no action admittedly taken against complainant or against the family members of complainant, so, accordingly, it is stands proved that, during the subsistence of lease the possession of leased house had taken by the Sundaram Finance, as such, question of issuing 3 months advance notice by the complainant for vacating the premises does not arise, as the complainant did not voluntarily vacated the premises, rather, he was evicted by the bank, as per the order passed by the Hon'ble 10th ACMM in Crl.Misc.No. 50060/2013, therefore, the contention of the accused that on 10.11.2017, complainant and 7 to 8 other persons have suddenly intended to vacate premises cannot be acceptable.
14C.C.No.57981/2018
18. That apart, the accused contended that, the claimed amount is not a legally recoverable liability, as he deposited a sum of Rs.50,0000/ to the bank account of the complainant and also he transferred Rs.10,000/ twice from the bank account of his daughter to the account of son of the complainant, and also Rs.50,000/ paid by cash, in all he claims to have paid Rs.1,20,000/ to the complainant, accordingly, he sought to return the cheques for replacement. The complainant admits the receipt of Rs.50,000/, but, denies the receipt of Rs.50,0000/ by cash and Rs.20,000/ by his son through account of accused daughter, so, it is burden on the accused to prove the alleged repayment of Rs.50,000/ by cash and Rs.20,000/ by way of transfer through account, but, though the accused produced Ex.D1 statement of account pertaining to his daughter claiming to have transfered Rs.10,000/ twice on 11.01.2018 to the account of son of complainant, but, he failed to produce material on record to prove that, the account No.8011195 to whom the amount of Rs.10,000/ was transferred and credited was pertaining to an account of the son of the complainant herein for that, absolutely there is no material on record, hence, mere marking of Ex.D1 which 15 C.C.No.57981/2018 doesn't ipso facto proof that, the amount of Rs.20,000/ transferred to the son of the complainant, until and unless he proves that, the account is belongs to son of the complainant, as the complainant specifically denies the same, further, so far as, Ex.D4 to 6 are concern which are printouts of email correspondence said to have held between the son of the complainant and the accused, but not with the complaint, as held supra, the privity of contract between the complainant and accused, but not between the son of the complainant and the accused, therefore, the correspondence held through email between the son of the complainant and the accused is not sufficient proof of payment of amount Rs.1,20,000/ as claimed by the accused, therefore, the contentions of the accused about total repayment of Rs.1,20,000/ cannot be acceptable without any proof to that effect.
19. Further, the learned counsel for the accused has vehemently argued that, the lease period was 3 years, without terminating lease validly by issuing 3 months notice advancely, the claimed liability is not legal and the accused has repaid Rs.1,20,000/ to the complainant same has been suppressed, accordingly, the accused is not 16 C.C.No.57981/2018 liable to pay the claimed amount, on these grounds, he urged to acquit the accused, on the other hand, counsel for the complainant argued that, during subsistence of lease as per the court order the possession of leased house was obtained by the Sundaram Finance, same has been admitted by the accused, therefore, the question of issuing notice in advance for termination of lease doesn't arise, as such, the claimed amount is liability created under lease agreement Ex.P11, accordingly, the accused is liable to pay the lease amount agreed in a document.
20. Having considering arguments with the materials on record, as admitted by the accused, during course of cross examination, the possession of leased house had taken over by the Sundaram BNP Paribas Finance, as per the order of Hon'ble 10th ACMM in Crl.Misc.No. 50060/2013, the fact of mortgage of leased house by the accused to the bank has admittedly not disclosed in Ex.P11, as such, as held supra, notice in advance for termination of lease doesn't arise, because, the complainant has not voluntarily vacated the premises, but, he was evicted through due process of law i.e., as per the court order, 17 C.C.No.57981/2018 therefore, the argument of learned counsel for the accused about lease was not validly terminated is not tenable under law, further, so far as repayment of amount is concern, except receipt of Rs.50,000/ as admitted by the complainant remaining amount of Rs.70,000/ as claimed by the accused has not proved by producing any receipt issued by the complainant or not proved that the amount of Rs.20,000/ credited to the account of the complainant son, therefore, absolutely there is no iota of evidence to prove the repayment of Rs.70,000/, hence, without proof mere contention cannot be acceptable.
21. So, considering the entire materials on record, the accused as per the Ex.P11 had agreed to return the lease amount of Rs.9,00,000/ at the time of vacating the premises as recited in Clause 5 of Ex.P11, so, the liability to return the lease amount has been created under an agreement, the movement when the complainant was evicted from the leased house, through due process of law, as such, the accused though he contended the possession was not taken by the bank and lease was not terminated validly which are not acceptable in view of the 18 C.C.No.57981/2018 possession taken by his financier during subsistence of lease, accordingly, the claimed amount is legally enforcible debt, further, so for as damages claimed by the accused is concern, admittedly accused has not taken legal action to claim the damages before competent court law, as such, the claimed damages can not be adjudicated by this court, therefore, the accused has not produced any probable evidence to believe that, as on the date of issuance of cheque the claimed liability was not in existence, hence, the accused failed to brought out and produced any materials to rebut the presumption drawn in favour of the complainant, as held supra, there is no dispute with regard to compliance of Sec.138 (a) to (c) and the complainant has proved the Ingredients of Sec. 138 of N.I Act, accordingly, the accused is found guilty of o/p/u/s 138 of N.I Act.
22. So far as, sentence and compensation is concern, the materials clearly reveals that, as per Ex.P12 the accused had agreed to return the leased amount with interest at the rate of 2% p.m., on 11.011.2017 and issued post dated cheques for Rs.9,00,000/, but, which were 19 C.C.No.57981/2018 dishonored till date except Rs.50,000/ nothing has return to the complainant, therefore, considering the nature of transaction and lis if the accused is sentenced to pay fine of Rs. 9,55,000/ that would meet the ends of justice, accordingly, accused is hereby sentenced to pay fine of Rs.9,55,000/ out of the fine amount, the complainant is entitled to receive compensation of Rs.9,50,000/, remaining amount of Rs.5,000/ is to be appropriated to the state, in case of the default the accused shall undergo simple imprisonment for a period of 6 months. Accordingly, I answered the above point in "Affirmative".
23. Point No.2: In view of above finding to Point No.1, I proceed to pass following;
ORDER Acting under section 255(2) of Criminal Procedure Code, the accused is convicted of the offence punishable U/s 138 of Negotiable Instrument Act, The accused is sentenced to pay a fine of Rs.9,55,000/ (Rupees Nine lakhs fifty five thousand only) in default, the accused shall 20 C.C.No.57981/2018 undergo simple imprisonment for a period of six months. Out of the fine amount received, Rs.5,000/ is to be appropriated to the State and by way of compensation as per the provision U/s 357(1) of Cr.P.C. the complainant is entitled for Rs.9,50,000/.
The bail bonds and surety bond of the accused shall stand cancelled.
Office is directed to furnish a free copy of the judgment to the accused.
(Dictated to the Stenographer directly on computer, typed by her, corrected, signed and then pronounced by me in the open court, on this the 30th day of August, 2021) (M.Vijay), XXXIII ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Sri. Keshava Murthy N.G
21
C.C.No.57981/2018
2. Documents marked on behalf of complainant:
Ex.P.1 & 3 : Original Cheque's Ex.P.1(a) & 3(a) : Signature of the accused Ex.P.4 to 6 : Bank return memo Ex.P.7 : Office copy of the legal notice dated Ex.P.8 : Post receipt Ex.P.9 : Postal acknowledgment Ex.P.10 : Reply notice Ex.P.10(a) : Cover containing reply notice Ex.P.11 : House lease agreement Ex.P.12 : Mutual agreement
3. Witnesses examined on behalf of Accused:
D.W.1 : V. Ramanuja
4. Documents marked on behalf of Accused:
Ex.D.1 & 2 : Bank Statement
Ex.D.3 : Certificate of U/S 65B of Indian Evidence
Act
Ex.D.4 & 5 : Mail Correspondence
Ex.D.6 : Copy of the letter
(M.Vijay),
XXXIII ACMM, BENGALURU.