Bangalore District Court
Sri. S. Jagadish vs Sri. N. Kuberan on 27 March, 2018
IN THE COURT OF XIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU.
:: PRESENT ::
SMT. C.G. VISHALAKSHI, B.A.L., L.L.B.,
XIII A.C.M.M. Bengaluru.
C.C. NO.20844/2014
Dated: This the 27th day of MARCH-2018
COMPLAINANT/S: Sri. S. Jagadish,
S/o. Shivakumar,
Aged about 43 years,
R/at. No.18/1, 10th Main,
K.P. Agrahara,
Magadi Road,
Bangalore-560023.
ACCUSED: Sri. N. Kuberan,
S/o. Narasimaha Reddy,
Aged about 60 years,
R/at. No.741,
Dr. Rajkumar Road,
Rajajinagar, 6th Block,
Near St. Ann's School Office,
Bangalore-560010.
OFFENCE Under Section.138 of Negotiable
Instruments Act.
Plea of the accused Pleaded not guilty
Final order Convicted
**
JUDGEMENT 2 C.C.20844/2014
JUDGEMENT
This complaint is filed against the accused under Section.200 of Cr.P.C. for the offence punishable under Section.138 Negotiable Instruments Act.
2. The gist of the complaint is as follows:
The complainant and the accused are well known to each other due to business transaction. The accused being original owner of HMV Crane Vehicle bearing No. KA-01 - MC-640, had sold the said vehicle infavour of the complainant for valuable considerations and the R.C. was got transferred to the name of the complainant with respect to the said vehicle. After sometime, the complainant due to business loss, ready to return back the said vehicle to the accused. The accused also had agreed to purchase the said vehicle in his sister's son name Loganathan @ Lokesh for sale consideration of Rs.25,00,000/-. The accused has paid a sum of Rs.7,00,000/- through cheque of his sister's son Loganathan @ Lokesh and Rs.3,00,000/- by way of cash JUDGEMENT 3 C.C.20844/2014 for various dates and towards remaining balance amount of Rs.15,00,000/-, the accused had agreed to pay the amount in installments and issued post dated cheques i.e., cheque bearing No.000024, dated: 19-10-2013 for Rs.4,00,000/- and cheque bearing No.000025, dated: 20- 04-2014 for Rs.5,00,000/- both are drawn on Kotak Mahindra Bank, Rajajinagar Branch and cheque bearing No.356398, dated: 20-10-2014 for Rs.4,00,000/- drawn on S.B.H. and it was assured by the accused that after clearance of the said cheque amount, he would pay another remaining amount of Rs.2,00,000/-.
3. It is further case of the complainant that as per the assurance and promise, when he has presented the cheque bearing No.000024, dated: 19-10-2013 for Rs.4,00,000/- drawn on Kotak Mahindra Bank, Rajajinagar Branch, Bangalore through his banker i.e., S.B.H. Rajajinagar Branch, Bangalore, it was dishonored and returned back with an endorsement dated: 23-01-2014 for the reason 'Instrument out dated'. Immediately, after receipt of such JUDGEMENT 4 C.C.20844/2014 endorsement, the complainant had intimated the accused about the dishonour of the cheque and requested him to pay the amount covered under the cheque. But the accused has agreed to pay the same later pretext or the other postponing the mater.
4. It is further case of the complainant that as per the assurance and promise when the complainant has presented the cheque bearing No.000025, dated: 20-04- 2014, dated: 5,00,000/- drawn on Kotak Mahindra Bank, Rajajinagar Branch, Bangalore for encashment through his banker State Bank of India, Rajajinagar Branch, Bangalore. The said cheque was returned with an endorsement for the reason 'Funds Insufficient' vide memo dated: 17-05-2014. The fact of dishonour of the cheque was brought to the knowledge of the accused, but the accused not paid the amount on one pretext or the other postponing the matter. Hence, the complainant caused legal notice against the accused on 28-05-2013 through RPAD. But the said notice was not claimed by the JUDGEMENT 5 C.C.20844/2014 complainant and as such it was returned to the complainant with shara as 'Not claimed' on 12-06-2014. Despite of issuance of such demand notice, since the accused did not come forward to pay the amount covered under the cheque, having no other go, the complainant maintained this complaint against the accused, alleging that the accused has committed an offence punishable under Section.138 of Negotiable Instruments Act and prays to deal the accused as per law.
5. On presentation of the complaint, this court has taken cognizance of the offence; sworn statement of the complainant was recorded. On perusal of the documents and on hearing the complainant, process was issued against the accused. In pursuance of the process, the accused appeared before this court and enlarged on bail. Copies of the complaint papers supplied to him. Substance of the accusation was read over and explained to the accused. The accused did not plead guilty and JUDGEMENT 6 C.C.20844/2014 claims to be tried. Hence, the matter was posted for the evidence of the complainant.
6. In order to prove the case of the complainant, he got examined himself as PW.1 and examined five more witnesses as PW.2 to PW.6 and got marked documents as Ex.P1 to P18 and closed his side evidence. After completion of the complainant's evidence, the accused was examined under Section.313 of Cr.P.C. and his statement was recorded. To substantiate his defence the accused examined himself as DW.1 and examined one more witness as DW.2, but not produced any documents on his side.
7. Heard arguments. The both the counsels have submitted their written arguments.
To strengthen the case of the complainant has relied upon the following citations:
(2002) 7 Supreme Court Cases 541 Vinod Tanna & Another V/s. Zaher Siddiqui & Others ** JUDGEMENT 7 C.C.20844/2014 2014(3) KCCR 2222 N. Muniswamy Reddy V/s. M. Narayanaswamy ** To strengthen the case of the complainant has relied upon the following citations:
(2003) 8 Supreme Court Cases 75 Narbada Devi Gupta V/s. Birendra Kumar Jaiswal & Anr **
8. Upon reading the entire materials on record and on hearing the arguments the following points that arise for my consideration:
POINTS
1. Whether the complainant proves beyond all shadow of doubt that, the accused has committed an offence punishable under Section.138 Negotiable Instruments Act?
2. What order?
9. My answers to the above points are as follows:
Point No.1: In the Affirmative
JUDGEMENT 8 C.C.20844/2014
Point No.2: As per the final order,
for the following.
:: REASONS ::
10. POINT NO.1: As the accused did not pleaded
guilty, the complainant has chosen to examine himself as PW.1 and PW.2 to PW.6 and got marked documents as Ex.P1 to P18.
As per the decision reported in ILR 2008 KAR PAGE- 4629 between Shivamurthy V/s Amruthraj and in another decision rendered by the Hon'ble Apex court in AIR-2008 SC-1325 between Krishna Janardhan Bhat V/s Dattatreya G. Hegde, in order to attract Sec.138 of Negotiable Instruments Act, the complainant has to satisfy 3 essential ingredients like, 1) there is legally enforceable debt, 2) that the cheque was drawn from the account of the Bank of the accused for discharge of whole or part of any debt or other liability which pre-supposes to be legally enforceable debt, 3) cheque so issued returned unpaid due to Insufficient of funds.
JUDGEMENT 9 C.C.20844/2014
Keeping in view the ingredients of Section.138 of Negotiable Instruments Act, I proceed to discuss the documents of this case.
(a) Ex.P1 is the cheque bearing No.000025, dated: 20-
04-2014 for Rs.5,00,000/-, drawn on Kotak Mahindra Bank, Rajajinagar Branch, Bangalore-560010. As per the say of the complainant, Ex.P1(a) is the signature of the accused.
(b) Ex.P2 is the Bank endorsement issued by the Bank authorities, dated: 17-05-2014 for having dishonour of the cheque for the reason 'Funds Insufficient'.
(c) It must be noted as per Clause (b) proviso to Section.138 of Negotiable Instruments Act, the complainant was required to make a demand for payment of the said amount within 30 days from the date of receipt of cheque as un-paid.
JUDGEMENT 10 C.C.20844/2014
(d) Ex.P3 is copy of the legal notice dated: 28-05-2014 which shows that the complainant made demand in writing calling upon the accused to make repayment of the said cheque amount by issuing notice against him which is within 30 days.
(e) Ex.P4 is the postal receipt and Ex.P5 is the returned envelope cover and Ex.P5(a) is the copy of legal notice, , it shows that notice was sent against the accused under RPAD.
As per Clause (C) proviso to Section.138 of Negotiable Instruments Act, the accused is entitled 15 days time to make payment of money covered under cheque. Further, as per Section.142(b) of Negotiable Instruments Act, complaint has to be filed within 30 days from the date of which the cause of action arose. Therefore, the complainant has filed this complaint well within time.
11. Thus, the complainant has fulfilled all the ingredients, which were required for the completion of the JUDGEMENT 11 C.C.20844/2014 offence punishable under Section.138 of Negotiable Instruments Act.
12. On perusal of the entire materials on record, it shows that the complainant has maintained the complaint against the accused alleging that the accused is the original owner of the vehicle i.., HMV - Crane Vehicle bearing No. KA-01 - MC-640 and had sold the said vehicle in his favour for sale consideration. After receipt of the entire sale consideration amount, the RC was transferred to the name of the complainant, but thereafter some time due to loss in his business, the complainant intends to return back the said vehicle to the accused. The accused also had agreed to purchase the said vehicle in the name of his sister's son Loganathan @ Lokesh for sale consideration of Rs.25,00,000/-. The accused has paid a sum of Rs.7,00,000/- through cheque of the said Loganathan @ Lokesh i.e., sister's son and paid a sum of Rs.3,00,000/- by cash. Towards the balance amount, he had agreed to pay the amount in installments and towards the said JUDGEMENT 12 C.C.20844/2014 payment, the accused had issued three pose dated cheques including the disputed cheques and had agreed to pay the amount of Rs.2,00,000/- after clearance of the said cheque and assured about honoring of the above said cheques. At the time of handing over the vehicle, the accused had executed sale receipt cum agreement on 28-04-2013 infavour of the complainant and he got transferred the said vehicle in the name of sister's name Loganathan @ Lokesh. As per the assurance when the complainant has presented the cheque bearing No.000024 drawn on Kotak Mahindra Bank, Rajajinagar Branch, Bangalore, it was dishonored for the reason 'Instrument out dated' and intimated the said fact to the accused. He had agreed to pay the amount covered under the said cheque, but he postponed the said matter.
13. Further, as per the assurance, when the complainant has presented the disputed cheque for encashment through his banker, it was also got bounced back unpaid for the reason 'Funds Insufficient' and despite of issuance JUDGEMENT 13 C.C.20844/2014 of demand notice against the accused by RPAD and due intimation to the accused, since the accused not claimed the said notice and complied with demands of notice. Hence, the complainant maintained this complaint in time.
14. Per-contra, on reading the line of cross-examination and the defence setup by the accused, it shows that there is no any dispute with regard to the fact that the vehicle i.e., HMV-Crane Vehicle bearing No. KA-01 - MC-640 was belongs to the RC owner of the accused and he had sold the said vehicle infavour of the complainant. But it is the case of the complainant that due to loss in his business, he intends to resell the said vehicle to the accused. But the said fact was denied by the accused stating that he had no intention to repurchase the said vehicle, but admitted about execution of agreement infavour of the complainant and about issuance of disputed cheque infavour of the complainant. But contended that he had not given any authorization to transfer the said vehicle infavour of any other person. Further contends the complainant has not JUDGEMENT 14 C.C.20844/2014 handed over the possession of the vehicle and since the complainant has not given original documents of the said vehicle, the disputed said cheque was not encashed.
15. Further, he denied about the fact of giving instruction to the complainant for transfer and the said vehicle infavour of one Loganathan @ Lokesh contending that he never given any instruction to the complainant for transfer of the said vehicle and thus it is the defence of the accused that since the said vehicle was not transferred to his name and since there is no handing over of the original documents by the complainant in his favour pertaining to the said vehicle, he is not liable to pay any amount covered under the cheque and there was no any liability for him to honor the said cheque. Hence, it is his defence that he has not committed any offence punishable under Section.138 of Negotiable Instruments Act and prayed for acquittal.
16. Thus, there is no dispute so as to the fact that Ex.P1 cheque is belongs to the bank account of the accused and Ex.P1(a) is his signature.
JUDGEMENT 15 C.C.20844/2014
17. It is well settled that, admission furnishes best evidence as per the decision laid down in AIR-1981 PAGE- 2085.
Thus in my opinion, the admission given by the accused is sufficient to come to conclusion about the execution of Negotiable Instruments (cheque in question) is admitted as well as proved.
18. In view of the decision reported in 2010 SC 1898 between Rangappa V/s Mohan, once the execution of Negotiable Instruments Act is either proved or admitted, then the court shall draw a presumption under Section.139 of Negotiable Instruments Act, in favour of the complainant to that effect that the said Negotiable Instrument i.e., the disputed cheque has been drawn for valid consideration and it is towards legally recoverable debt and it is drawn for valuable consideration.
19. Having admitted the fact that Ex.P1 cheque is belongs to the bank account of the accused and Ex.P1(a) is JUDGEMENT 16 C.C.20844/2014 his signature, presumption arose infavour of the complainant under Section.139 of Negotiable Instruments Act. Hence, the burden is on the accused to rebut the same with probable evidence.
20. To prove the case of the complainant, he examined himself as PW.1 and examined five more witnesses as PW.2 to PW.6 and got marked documents at Ex.P1 to P18. In support of his case, the complainant examined witnesses as PW.2 to PW.6.
21. To disprove the claim and the allegation of the complainant and to put forth his defence, the accused examined himself as DW.1, but not marked documents on his side, but examined one witness as DW.2 in support of his defence.
22. On careful scrutiny of the evidence of both the complainant and the accused, both oral and documentary evidence, it shows that there is no any dispute so as to the fact that the accused was the R.C. owner of the vehicle i.e., JUDGEMENT 17 C.C.20844/2014 HMV Crane Vehicle bearing No. KA-01 - MC-640, and he had sold the same infavour of the complainant. But it is the case of the complainant that as there was loss in his business, he intends to resell the said vehicle to the accused. The accused had agreed to purchase the said vehicle for sale consideration of Rs.25,00,000/- in the name of his sister's son namely Loganathan @ Lokesh and accordingly he has purchased the said vehicle in the name of his sister's son Loganathan @ Lokesh and towards payment of the total sale consideration of Rs.25,00,000/-, the accused had paid a sum of Rs.10,00,000/- i.e., a sum of Rs.7,00,000/- by way of cheque drawn from the account of his sister's son Loganathan @ Lokesh and had paid a sum of Rs.3,00,000/- by cash on the date of agreement entered into between the complainant and the accused i.e., on 28-04-2013 and towards balance amount i.e., to pay a sum of Rs.15,00,000/- the accused had issued three post dated cheques including the disputed cheques. Further it was agreed to pay the remaining amount of Rs.2,00,000/- infavour of the accused on clearance of the said cheques. JUDGEMENT 18 C.C.20844/2014 Thereafter though accused has presented one cheque bearing No.000024, but it was dishonoured for the reason 'Instrument out dated' and the said fact was intimated to the accused and the accused had assured the complainant to pay the amount covered under the cheque.
23. Further as per the assurance of the accused, when the complainant has presented this disputed cheque for collection through his banker, the said cheque was also bounced back unpaid for the reason 'Funds Insufficient' and despite of issuance of demand notice against the accused and its due service on him, the accused did not come forward to pay the amount covered under the cheque.
24. Though accused at one stretch denied the fact of his intention to repurchase the said vehicle i.e., HMV Crane Vehicle bearing No. KA-01 - MC-640. But on careful reading the evidence of DW.1, it shows that the accused had an intention to purchase the said vehicle, since there is an evidence with regard to the execution of agreement JUDGEMENT 19 C.C.20844/2014 with the complainant with an intention to purchase the said vehicle.
25. It is the defence of the accused that the said agreement was with respect to the selling away of the said Crane in his favour for sale consideration amount of Rs.15,00,000/- only and contended that the issuance of three cheques stating that as per the complaint he has not handed over original cheques and possession of the said vehicle to the accused and hence, the said cheques were not encashed etc.
26. But to prove the fact that there was an agreement to sell the said vehicle in his favour for a sum of Rs.15,00,000/- and there was a condition to honor the said cheque allegedly given infavour of the complainant towards his payment of the balance sale consideration amount subject to production of the original documents and handing over the possession of the vehicle to the accused, the accused did not produced any evidence before this court and he has not produced any such agreement JUDGEMENT 20 C.C.20844/2014 before this court nor he has not elicited any material evidence from the mouth of PW.1 during his cross- examination.
27. On the other hand, the complainant to prove the fact that there is any agreement to resell the vehicle i.e., HMV Crane Vehicle bearing No. KA-01 - MC-640, which was purchased by him from the accused, not only produced documents like agreement which is marked at Ex.P6, but also to prove the fact of execution of the said sale agreement. He has examined witnesses of the said agreement Ananda Rao as per PW.5 and Raju. P. as per PW.6. Who unequivocally deposed about the fact of agreement entered into between the complainant and the accused in their presence and in the presence of the one Loganathan @ Lokesh in respect to the selling away of the vehicle i.e., HMV Crane Vehicle bearing No. KA-01 - MC- 640 infavour of the accused for sale consideration amount of Rs.25,00,000/-. They also deposed about the payment of advancement of Rs.10,00,000/- i.e., with regard to the JUDGEMENT 21 C.C.20844/2014 issuance of cheque for a sum of Rs.7,00,000/- drawn from the account of the sister son Loganathan @ Lokesh and about the payment of Rs.3,00,000/- by cash. They deposed with respect to the fact of agreement to pay remaining amount of Rs.2,00,000/- on clearance of the said cheques.
28. Though accused at one stretch denied the fact that his intention to purchase the said vehicle from the complainant, but however he only had deposed in his evidence about the fact of an agreement on 28-04-2013 with regard to the purchase of the said vehicle from the complainant. Though accused made an attempt to say that the said agreement was in respect to selling away of the said vehicle in his favour for sale consideration of Rs.15,00,000/-, but as aforesaid to prove the said fact, he did not produced any evidence before this court.
29. On the other hand, on perusal of the said Ex.P6 agreement and also on reading the evidence of PW.1, 5 and 6, it shows that the said agreement was in respect to the JUDGEMENT 22 C.C.20844/2014 purchase of the said vehicle for sale consideration of Rs.25,00,000/-.
30. The accused has taken inconsistency defence with respect to the alleged agreement. Because, at one stretch, the accused has denied the fact of execution of sale agreement, but at another stretch he has taken up the defence about the fact of such agreement on 28-04-2013. Thus, there is inconsistency defence etc., creates doubt about the defence of the accused.
31. Further the complainant to prove the fact that there was an agreement in between himself and the accused on 28-04-2013 produced document like Ex.P6 stating that the accused with an intention to purchase the vehicle i.e., HMV Crane Vehicle bearing No. KA-01 - MC-640 from the accused had executed such agreement and deposed about payment of advancement of amount of Rs.10,00,000/- and deposed about the issuance of cheques including the disputed cheque infavour of the complainant towards payment of the balance amount and agreed to pay a sum of JUDGEMENT 23 C.C.20844/2014 Rs.2,00,000/- on clearance of the above said cheque allegedly given by the accused under the said agreement. But the accused has denied the fact of alleged execution of Ex.P6 agreement in the presence of the complainant and the witnesses contending that he had not affixed his signature to the agreement in the presence of any witnesses. On the other hand, he has taken up the defence that one Babu Swamy had managed everything in respect to the alleged agreement and contended that the said Babu Swamy had brought the document in relation to the said vehicle to his office and had obtained his signature etc., but to substantiate the said defence though he had suggested the suggestion in that regard to the PW.1, 5 and 6 during their cross-examination, but not elicited any material admission from their mouth as they have denied the suggestion of the accused made to them in that regard. On the other hand, though withstood their evidence about the fact of execution of agreement in between the complainant and the accused in their presence and about JUDGEMENT 24 C.C.20844/2014 affixture of the signatures by them and complainant and the accused along with one Loganathan @ Lokesh.
32. Though accused has taken up the defence that he does not know the particulars in the alleged agreement transaction, on the other hand, it is one Babu Swamy had managed everything in respect to the alleged agreement transaction contending that the said Babu Swamy had paid brought an agreement containing two pages and had obtained his signatures along with three cheques. With this he made an attempt to say that he never participated in the alleged agreement transaction and on the other hand it is one Babu Swamy had obtained his signatures and cheques. But to substantiate the said fact, the accused has not chosen to examine the said Babu Swamy before this court.
33. Because, it is the case of the complainant that the alleged Ex.P6 agreement was entered into between the himself and the accused, wherein the accused by agreeing to purchase the vehicle from him for sale consideration of JUDGEMENT 25 C.C.20844/2014 Rs.25,00,000/-, had executed such receipt cum sale agreement in his favour. Under the said agreement, the accused had paid a sum of Rs.10,00,000/- as advance by issuing three post dated cheques including the disputed cheque infavour of the complainant towards payment of the balance sale consideration amount of Rs.13,00,000/- agreeing to pay the remaining amount of Rs.2,00,000/- after clearance of the said above cheques and had affixed his signatures to the said documents in his presence and in the presence of the witnesses and one Loganathan @ Lokesh.
34. But the accused has denied the said fact of execution of Ex.P6 agreement by the parties in his presence, contending that it is one Babu Swamy only had brought agreement containing two pages to his office and had obtained his signatures to the alleged agreement along with his three cheques.
35. If really the said defence of the accused was true, then he would have proved the same by examining the JUDGEMENT 26 C.C.20844/2014 necessary witness i.e., Babu Swamy before this court. But the accused did not chosen to examine the said Babu Swamy before this court by calling him as his witness. The non-examination of the material witness is fatal to the defence of the accused. Hence, doubt created with regard to the defence of the accused.
36. Further, the defence taken by the accused itself creates doubt. Because, the accused is not an ordinary layman, on the other hand he is well educated person and businessman, having worldly knowledge. When such being the case, the say of the accused with regard to the fact of sending the cheque i.e., signed cheques without mentioning the name of the person in the name column through 3rd person i.e., the alleged Babu Swamy is not acceptable and convincing one.
37. Because, no prudent man would give his signed cheque without mentioning the name of the person in the cheque to whom he proposed to give the said cheque JUDGEMENT 27 C.C.20844/2014 knowingly about the consequences of giving type of cheques.
38. If at all was there any circumstance of giving his signed blank cheque, then what was the impediment for the accused to give his duly filled cheques by filing the name column also, to whom he intends to issue those cheques and there was no necessity for the accused to give his cheques and duly filled except leaving the name column in blank. Hence, this creates doubt.
39. Even otherwise, he did not proved the said fact of sending those cheques through the said Babu Swamy by placing any material evidence before this court nor proved the same by examining the said person Babu Swamy. Hence, doubt created with regard to the defence of the accused that he had not participated in the alleged agreement transaction and about the execution of said document i.e., agreement in the presence of the complainant and other witnesses.
JUDGEMENT 28 C.C.20844/2014
40. Further at one stretch, the accused deposed about issuance of disputed cheques i.e., three cheques in the name of the Babu Swamy only. This also creates doubt, since has not proved the said defence by placing any material evidence. Further, at one stretch, the accused has taken up the defence that he had affixed his signatures and LTM in the 1st and 4th at Page of the Ex.P6 agreement and he did not affixed his signature at Page No.2 and 3 in Ex.P6 agreement and contended that the Page No.2 and 3 of the said document is created and the signatures found on the said document at Page. No.2 and 3 are the forged signatures. With this he made an attempt to say that the said agreement is created one and manipulated by the complainant by taking the advantage of the signatures and LTM found on 1st and 4th Pages. But he did not proved the said defence of concoction and creation of the document by the complainant by producing any material evidence before this court.
JUDGEMENT 29 C.C.20844/2014
41. Though accused not denied the signatures and LTM found at Page No.1 and 4 of Ex.P6 agreement, but as aforesaid, he denied the signature found at Page No.2 and 3, but having admitted the fact that the signatures found on Ex.P6 agreement at Page No.1 and 4 and about the fact of execution of said agreement in between himself and the complainant in respect to the sale transaction of the said vehicle i.e., HMV Crane Vehicle bearing No. KA-01 - MC- 640, burden is on the accused to prove the said document i.e., Ex.P6 document is concocted and manipulated by this complainant i.e., about the creation of Page No.2 and 3 in Ex.P6 document. But to prove the said defence except his bare suggestion and denial, he did not produced any material evidence before this court nor elicited any material admission from the mouth of PW.1 nor examined the person through whom he has allegedly sent the signed agreement to the complainant i.e., Babu Swamy as it was specific defence of the accused.
JUDGEMENT 30 C.C.20844/2014
42. No doubt, the accused made an attempt to get reference of the said Ex.P6 agreement for scientific analysis i.e., handwriting expert to get their opinion in respect to the signatures found at Page. No.2 and 3 in Ex.P6 document and about the fact of creation of the said document etc. But though this court was pleased to allow the application of the accused and sent the said document for scientific analysis, but it is the accused only did not come forward to comply with the requirements of scientific analysis i.e., hand writing expert by furnishing genuine old signatures of the accused preferably of the year 2013 by complying the requirements of FSL Authorities inspite of sufficient opportunities. Hence, the said stage was recalled by this court.
43. Thus, accused not proved the said fact of concoction and creation of the document i.e., Ex.P6 agreement. On the other hand, on careful reading of the said Ex.P6 agreement, it shows that there is no any such concoction or creation of the document. Because, there is continuity of JUDGEMENT 31 C.C.20844/2014 the sentence from Page No.1 to 4. That means to say that there is continuity of the matter typed therein from Page No.1 to 4.
44. Further, according to the evidence of DW.1, he had affixed his signature and LTM to the Page No.1 and 4 of Ex.P6 document by reading the contents therein by stating that at the time of signing the said paper i.e., Page No.1 and 4, it was duly typed. This clearly goes to show that the accused after reading the said document, had affixed his signatures and LTM.
45. If the said evidence of the accused was true, that he had affixed his signature and LTM at Page No.1 and 4 in Ex.P6 agreement after reading the contents therein etc., then certainly he would have noticed about the fact that there is some gap in the contents of the said document. That means to say that if really he had affixed his signature and LTM to the Ex.P6 document at Page No.1 and 4, after reading the contents therein, then certainly he would have noticed the fact that the said document is JUDGEMENT 32 C.C.20844/2014 incomplete and not corresponding to the averments of Page No.1 and 4 that there is no connectivity in the matter typed in Ex.P6 agreement i.e., at Page. No.1 to 4 at Ex.P6 agreement.
46. Because, at Page No.1 of the Ex.P6 agreement, there is recitals in respect to the introduction of the parties and the date in which the alleged agreement was entered into between the parties and the Page No.4 commenced with the recital at Clause(d) with respect to the payment of the balance amount of Rs.2,00,000/- after clearance of the alleged cheque, as there is specific usage of the word 'Above said cheques'. It indicates that the cheques details are be written in the earlier Pages. If really the accused had affixed his signature at Page. No.1 and 2 with his LTM that too, after reading the contents therein etc., then certainly he would have noticed about missing of the recitals in the said agreement and on that circumstance, he would have noticed the same and he would have refused to sign the said papers as the said agreement was incomplete one. But JUDGEMENT 33 C.C.20844/2014 the accused has not refused to put his signature, On the other hand, it is his say that he had affixed his signature and LTM to the agreement which contained two pages only, that too after reading the contents therein. This creates doubt with regard to the say of the accused.
47. Hence, the defence taken by the accused that the Ex.P6 document is manipulated and created by the complainant by inserting Page No.2 and 3 etc., holds no water. On the other hand, on reading the Ex.P6 agreement, it clearly goes to show that there is continuity of the matters from Page No.1 to 4 and there is no any insertion of any pages or any averments. Hence, the defence taken by the accused in respect to the Ex.P6 document holds no water. Even otherwise, the accused did not proved the fact of such concoction and creation by placing any material evidence before this court. This clearly goes to show that though accused had executed such Ex.P6 document and had affixed his signatures at all the pages of Ex.P6 agreement, but inspite of the same, he has taken such JUDGEMENT 34 C.C.20844/2014 vague defence of concoction and creation of the document by admitting his signature and LTM only at Page No.1 and 4 of Ex.P6 document, just to overcome the situation.
48. Things would have been different if he had denied the said document in entirety by taking the defence of the affixture of his signature on blank stamp paper. Then under such circumstance, chances of creation of the document would be possible. But in the case on hand, the accused has not denied the Ex.P6 document in entirety, but he made an attempt to deny it by contending that the signature found on Page. No.2 and 3 are not his signatures and they were concocted and created by the complainant contending that he has affixed his signature and LTM at Page. No.1 and 4. But as aforesaid the accused did not proved the said fact by placing any material and cogent evidence.
49. If really was there any such creation of document by the complainant or was there any manipulation of the document, then what prevented the accused to lodge police JUDGEMENT 35 C.C.20844/2014 complaint against the complainant. Because, no prudent man would remain silent without taking any legal actions against the person who creates document by forging his signatures. But in the case on hand, there is no such overtact is forth coming on the conduct of the accused. This creates doubt about the defence of the accused.
50. On the other hand, it shows that though accused only had executed such Ex.P6 agreement with an intention to purchase the said vehicle from the complainant for sale consideration of Rs.25,00,000/- and made some payments as advance sale consideration and issued the cheques including the disputed cheque towards payment of remaining balance sale consideration amount, but despite of the same he has taken the vague defence just to over come the situation.
51. On the other hand, the complainant has proved the fact that Ex.P6 agreement was entered into between himself and the accused in respect of sale of alleged vehicle i.e., HMV Crane Vehicle bearing No. KA-01 - MC-640 JUDGEMENT 36 C.C.20844/2014 infavour of the accused for sale consideration of Rs.25,00,000/- and about receipt of the advance amount of Rs.10,00,000/-.
52. Though accused made an attempt to elicit from the mouth of PW.1 and 5 with regard to the difference in the advance amount allegedly paid by the accused infavour of the complainant by suggesting that as per recitals of Ex.P6 agreement, there is averment about the payment of some of Rs.10,00,000/- as advance and about issuance of cheque for Rs.9,00,000/- and about payment of Rs.1,00,000/- by cash, but it is the case of the complainant that at first instance, the accused had made such payment of Rs.10,00,000/- i.e., a sum of Rs.9,00,000/- by cheque and Rs.1,00,000/- by cash. But thereafter as per the complaint, the accused has taken back the said cheque of Rs.9,00,000/- stating that the loan is not yet sanctioned and thereafter he had issued the cheque for Rs.7,00,000/- drawn from the account of sister's son Loganathan @ JUDGEMENT 37 C.C.20844/2014 Lokesh and paid another sum of Rs.2,00,000/- in addition to Rs.1,00,000/- paid by him.
53. This evidence was not falsified by the accused. On the other hand, it was corroborated with the evidence of PW.2 and 5 attesting witnesses who unequivocally deposed in their evidence about the payment of Rs.10,00,000/- by the accused infavour of the complainant towards payment of the advance sale consideration amount i.e., a sum of Rs.7,00,000/- through the cheque and Rs.3,00,000/- by cash.
54. No doubt, the accused has elicited some discrepancy in the evidence of PW.5 and 6, so for as the alleged agreement i.e., Ex.P6 agreement is concerned by eliciting evidence with regard to the usage of the papers for preparation of Ex.P6 document, since PW.5 in his evidence deposed with regard to the usage of the stamp paper and white sheets. Mere the fact that there is some discrepancy in the evidence with regard to the usage of the bond paper in the preparation of Ex.P6 agreement, it cannot be a JUDGEMENT 38 C.C.20844/2014 ground to suspect the entire case of the complainant, as the human memory is short, naturally there will be some discrepancy in the evidence of the witnesses and we cannot expect stereo type evidence. Because, the alleged agreement had taken place on 28-04-2013. PW.5 had deposed his evidence on 27-04-2016 i.e., more or less after the gap of three years. When such being the case, naturally there will be some variations in the evidence, when there is gap of more or less three years from the date of alleged agreement. Hence, mere the fact that there is some discrepancy in the evidence of PW.5 with regard to the usage of the papers for preparation of Ex.P6 agreement, it does not take away the entire case of the complainant, when there is sufficient materials placed before this court by the accused about the fact of existence of alleged agreement i.e., Ex.P6 agreement on particular date and it was executed in between the complainant and the accused in the presence of the witnesses. Hence, the attempt made by the accused in this regard holds no water. JUDGEMENT 39 C.C.20844/2014
55. Further the advocate for the accused argued that the post dated cheques were issued only for the purpose of purchase of the vehicle. Since the original document of the said vehicle has not been handed over to the accused along with the possession of the said vehicle and they are still in the custody of the complainant only, there was no any existence of liability as on the date of issuance of post dated cheque. Hence, argued that Section.138 of Negotiable Instruments Act does not get attract and the complaint is liable to be dismissed etc.
56. But it is the case of the complainant that as the accused has expressed his willingness to purchase the vehicle for sale consideration of Rs.25,00,000/- in the name of his sister's son Loganathan @ Lokesh, they were entered into an agreement as per Ex.P6. Wherein the accused by agreeing to purchase the said vehicle for sale consideration of Rs.25,00,000/- in the name of his sister's son Loganathan @ Lokesh, not only paid the advance amount through cheque of his sister's son and by cash i.e., JUDGEMENT 40 C.C.20844/2014 cheque for Rs.7,00,000/- drawn from the account of the sister's son Loganathan @ Lokesh, but also issued the cheques including the disputed cheques towards payment of the remaining amount of Rs.15,00,000/-, towards payment of the sale consideration agreeing to pay the remaining balance amount of Rs.2,00,000/- after clearance of the said cheques. Hence, the cheques though issued at the time of agreement as post dated cheque, but certainly they attract Section.138 of Negotiable Instruments Act. Because, as on the date of issuance of cheque, there was existence of liability to pay the remaining balance amount towards sale consideration amount and it is legally enforceable liability. Hence, Section.138 of Negotiable Instruments Act does get attracts.
57. Further, as per the decision reported in Suresh Chand Goil Vs.Anitha Singhal in Cr.R.P.No.706/2014 their lordship has opined that, "The expression security cheque is not statutorily defined expressly in the Negotiable Instruments Act. The JUDGEMENT 41 C.C.20844/2014 Negotiable Instruments Act does not perse carved out an exception in respect of security cheque to say that a complaint in respect of such cheque would not be maintainable. There can to be mirade situation in which the cheque issued by the accused may be called as security cheque or may have been issued by way of security i.e., to provide an assurance to the drawee, that in case failure of primary consideration on the due date, or on the happening (or not happening) of a contingency, the security may be enforced. While in some situation the dishonour of such cheque may attract the penal provision contended in Sec.138 N.I. Act.
58. Thus, when one party give a security to the other implicit in the said transaction, in case of failure of primary obligation the security may be enforced.
59. Thus it makes no difference whether or not the there is an express understanding between parties that, the security may be enforced in the event of failure of debt or to pay the debt or discharge the other liability on the due date. Even if there is no such express agreement, the mere fact that the debtor has given a security in the form of a post dated cheque or a current cheque with agreement that JUDGEMENT 42 C.C.20844/2014 it is security for fulfillment of an obligation to be discharged on future date itself is sufficient to read in the arrangement an agreement that in case on failure of the debtor to make payment on the due date the security cheque may be presented for payment i.e., for recovery of due debt. If that was not so, there would be no purpose of obtaining a security cheque from debtor.
60. Further, held that, Section.138 of Negotiable Instruments Act does not distinguish between the cheque issued by the debtor is in discharge of existing debt or other liability, or a security cheque on the premise and due future debt, the debt which shall have crystallized by them shall be paid so long the debt existence in respect whereof the cheque would attract Section.138 Negotiable Instruments Act in case of its dishonour.
61. Further it is also the argument of the accused that as per the agreement, the complainant had to handover the original document of the vehicle along with possession of the vehicle to the accused. But the complainant did not JUDGEMENT 43 C.C.20844/2014 handed over the original document along with the physical possession of the vehicle. On the other hand, it is still in the possession of the complainant and hence it is his argument that he has no liability to honour the cheque contending that the complainant instead of handing over the original document of the vehicle along with the possession of the same, had sold infavour of the third person. Hence, it is his argument that there was no any liability for him to honour the disputed cheque. With this he made an attempt to say that he has not committed any offence punishable under Section.138 of Negotiable Instruments Act etc. But it is specific case of the complainant that though Ex.P6 agreement was entered into between the complainant and the accused in respect to the selling away of the vehicle i.e., HMV Crane Vehicle bearing No. KA-01 - MC-640 infavour of the accused, but at the time of execution of agreement, the accused had instructed him to transfer the said vehicle to his sister's son namely Loganathan @ Lokesh and as the accused had intended to purchase the said vehicle in the name of his JUDGEMENT 44 C.C.20844/2014 sister's son Loganathan @ Lokesh, he has transferred the said vehicle to the name of he sister's son of the accused i.e., Loganathan @ Lokesh and got changed the R.C. from his name to the name of his sister's son Loganathan @ Lokesh. Hence, the accused had every duty to honour the said cheque i.e., disputed cheque. But the said disputed cheque was not honoured on the date of presentation for encashment by this complainant and despite of issuance of demand notice, since the accused not complied with demands of notice and make good of the amount covered under the cheques within statutory time of 15 days, the accused has committed an offence punishable under Section.138 of Negotiable Instruments Act.
62. No doubt, there is no express terms or condition with regard to the transfer of the said vehicle to the name of the sister's son namely Loganathan @ Lokesh. But as on the date of agreement, the said Loganathan @ Lokesh was also duly present as per the version of the complainant and other witnesses and it is specific claim of the complainant JUDGEMENT 45 C.C.20844/2014 that he has transferred the said vehicle in the name of the sister's son of the accused i.e., Loganathan @ Lokesh with due instruction of the accused.
63. No doubt, there is no any privity of contract in between the complainant and the said Loganathan @ Lokesh and the said Loganathan @ Lokesh was not party to the said Ex.P6 agreement, but it is the specific case of the complainant that he had transferred the said vehicle to the name of the said Loganathan @ Lokesh who happens tobe the sister's son of the accused as per the instruction of the accused. Though accused denied the said fact of giving such instruction, but on reading the conditions of Ex.P6 agreement, it shows that there is clear recital with regard to the fact that there is no objection to transfer the said vehicle to the 1st party i.e., the accused or his nominee. Hence, it is the say of the complainant that he he has got transferred the said vehicle to the name of Loganathan @ Lokesh as it was instructed by the accused JUDGEMENT 46 C.C.20844/2014 himself to transfer the same in the name of his sister's son Loganathan @ Lokesh.
64. The fact that there was instruction of the accused to transfer the said vehicle to the name of the sister's son of the accused was spoken by the witnesses to the said agreement. This evidence corresponds to the say of the complainant and it supported by the recitals of the said Ex.P6 agreement. The signature of the said Loganathan @ Lokesh with said Ex.P6 agreement itself evident the presence of the said person Loganathan @ Lokesh. Hence, it is the say of the complainant that he got transferred the said vehicle to the name of the sister's son Loganathan @ Lokesh on due instruction of the accused. Otherwise, there was no occasion for him to obtain the signature of the said Loganathan @ Lokesh in the Ex.P6 agreement and there was no necessity for him to transfer the said vehicle to the name of the Loganathan @ Lokesh.
65. The fact that the Loganathan @ Lokesh was also participated in the Ex.P6 agreement could be gathered on JUDGEMENT 47 C.C.20844/2014 reading the evidence of DW.2, as he clearly deposed in his evidence with regard to the agreement to purchase the said vehicle. Though DW.2 deposed in his evidence that such agreement was in between himself and the complainant only. But to substantiate the said fact, DW.2 not produced any evidence before this court except his oral testimony. On the other hand, to prove the fact that there was agreement in between the complainant and the accused and it was witnessed by the PW.5 and 6 and also the said Loganathan @ Lokesh, the complainant not only adduced evidence, but also examined the attesting witnesses as PW.5 and 6 who unequivocally deposed about the agreement entered into between the complainant and the accused in their presence and in the presence of Loganathan @ Lokesh. This clearly testifies the fact of presence of DW.2 at the time of agreement. Since there was due instruction for the complainant for transfer of the said vehicle to the said Loganathan @ Lokesh, the said vehicle was got transferred from the name of the complainant to the name of DW.2 and this fact is testifies by the evidence JUDGEMENT 48 C.C.20844/2014 of PW.3 RTO and who by producing documents like R.C. extract which is marked at Ex.P12 clearly deposed with regard to the transfer of the said R.C. ownership of the said vehicle i.e., HMV Crane Vehicle bearing No. KA-01 - MC- 640 from the name of the complainant to the name of the accused. To substantiate the said fact, he has produced documents like receipt having collected necessary fee to transfer the said vehicle to the name of the Loganathan @ Lokesh and also produced documents like Form No.29 and
30.
66. Though accused has denied the fact that the said person whose signatures appear in the Ex.P6 document is not the signatures of his sister's son Loganathan @ Lokesh. But on reading the evidence of DW.2, it clearly goes to show that he is the sister's son of the accused only. Because, he clearly deposed in his evidence that he is working as Crane Serviser at 741/A, 6th Block, Rajajinagar, Bangalore and the said building his belongs to his uncle Kuberan. This fact, clearly testifies the fact that the said JUDGEMENT 49 C.C.20844/2014 DW.2 is none other than the sister's son of the accused to whom the said vehicle got transferred from the complainant on the due instruction of this accused.
67. But the accused went to the extent of denying the very relationship in between himself and the said DW.2 only to overcome the situation. This clearly goes to show that the conduct of the accused that he is not trust worthy witness.
68. Further if the defence of the accused was true and there was no any liability for him to honor the disputed cheque allegedly given by him infavour of the accused for the reason that the complainant had not given the original documents in his favour and not handed over the possession of the said vehicle in pursuance of Ex.P6 agreement, then certainly he would have given any stop payment instruction to the bank authorities by narrating the fact of issuance of disputed cheque infavour of the complainant and about non-compliance of the condition of Ex.P6 agreement by this complainant and would have JUDGEMENT 50 C.C.20844/2014 request them not to honour the those cheques. But no such steps have been taken by the accused in this regard. This also creates doubt with regard to the defence of the accused. On the other hand, it clearly goes to show that since he only had executed Ex.P6 agreement with an intention to re-purchase the said vehicle from the complainant for sale consideration of Rs.25,00,000/- in the name of his sister's son Loganathan @ Lokesh, had paid advance amount of Rs.10,00,000/- by giving the cheque for Rs.7,00,000/- drawn from the account his sister's son and paid a sum of Rs.3,00,000/- by cash and issued the cheques including the disputed cheque towards payment of the balance sale consideration amount. But despite of the fact, he has made an attempt to deny the entire transaction just to avoid the penal liability or to over come the situation. Hence, I am of the opinion that the defence taken by the accused is not acceptable and convincing one. Thus, he utterly failed to rebut the presumption which arose infavour of the complainant under Section.139 of Negotiable Instruments Act. Hence, onus not shifted on the JUDGEMENT 51 C.C.20844/2014 shoulder of the complaint. On the other hand, it rest with the accused only. Inspite of the same, the complainant by placing sufficient evidence proved the fact of existence of liability in between himself and the accused and about issuance of disputed cheque by the accused in his favour towards discharge of the alleged liability of payment of the balance sale consideration. The records speaks that the said cheque was returned unpaid for the reason 'Funds Insufficient and despite of issuance of demand notice and its due service on him, since he did not come forward to settle the amount covered under the cheque.
69. Thus, the complainant has fulfilled all the essential ingredient of Section.138 of Negotiable Instruments Act to bring home the guilt of the accused. Hence, I answered Point No.1 in the Affirmative.
70. POINT NO.2: In view of my discussions on Point No.1 as above, I proceed to pass the following:
JUDGEMENT 52 C.C.20844/2014
ORDER Acting under Section.255(2) Cr.P.C., the accused is convicted for the offence punishable under Section.138 of Negotiable Instruments Act.
The accused shall pay a fine of Rs.8,75,0000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for six months.
Out of the said amount, accused shall paid Rs.8,65,000/- to the complainant as compensation as provided under Section.357 of Cr.P.C. and Rs.10,000/- shall remitted to the state as fine.
(Dictated to the stenographer, transcribed by him, corrected and then pronounced in open court by me on this the 27th day of March-2018.) (C.G. Vishalakshi) XIII A.C.M.M., Bengaluru.JUDGEMENT 53 C.C.20844/2014
ANNEXURE Witnesses examined on behalf of the complainant:
PW.1 : S. Jagadish PW.2 : Prashanth Kumar PW.3 : C. Surendra PW.4 : K.L. Siddeshwara PW.5 : Ananda Rao PW.6 : Raju. P.
Documents marked on behalf of the complainant:
Ex.P1 : Cheque Ex.P2 : Endorsement Ex.P3 : Legal notice Ex.P4 : Postal Receipt Ex.P5 : Returned RPAD Cover Ex.P6 : Sale Receipt cum Agreement Ex.P7 : Complaint Ex.P8 : 'B' Register Extract of Transport Dept. Ex.P9&10 : Statements of accounts Ex.P11 : Photo Extract Ex.P12 : Register Extract Ex.P13 : Receipt Ex.P14&15 : Forms No.29 and 30 Ex.P16 : Forms No.34 Ex.P17 : Election Identity Card Ex.P18 : Account opening form (SBI) JUDGEMENT 54 C.C.20844/2014
Witnesses examined on behalf of the accused:
DW.1 : N. Kuberan DW.2 : Lokesh. M.
Documents marked on behalf of the accused:
- Nil -
(C.G. Vishalakshi) XIII A.C.M.M., Bengaluru. * Accused copy furnished.