Bangalore District Court
B N Sudhakar Reddy vs D M Munirajappa on 19 February, 2024
1
KABC0C0020122019
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
PRESENT
SRI.OONKAR MURTHY K.M.,
B.Sc., L.L.M.,
XIV Addl. C.M.M., Bengaluru
DATED ON THIS 19 th DAY OF FEBRUARY 2024
CASE NO C.C. NO.50476/2019
Sri. B.N. Sudhakar Reddy
S/o. Nagareddy,
Aged about 30 years, R/at Byrathi Village,
COMPLAINANT Bidarahalli Hobli, Bengaluru East Taluk,
Bengaluru- 560 077.
Mob. No.9901929336
(By Sri. R.L.N.Murthy - Adv.,)
1) Sri. D.M. Munirajappa,
S/o. Muniyappa
ACCUSED Aged about 39 years, R/at No.37, 1 st Main, 3 rd
Cross, Hoysala Layout, Amruthahalli, S.K.
Nagar Post, Bengaluru - 560 092.
2) Smt. Jayamma
W/o. Late Muniyappa
Aged about 55 years, R/at No.148, Renukamma
Road, Kalkere Village, Horamavu Post, K.R.
Puram Hobli, Bengaluru East Taluk - 560 083.
(By Sri.B.Srinivasa Reddy - Adv.,)
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused No.1 and 2 are convicted.
Digitally signed
by
ONKARMURTHY ONKARMURTHY
KM KM
Date: 2024.02.19
18:16:47 +0530
(OONKAR MURTHY K.M)
XIV ADDL. C.M.M.,
BENGALURU
JUDGMENT
This is a private complaint filed by the complainant against the accused under Sec.200 Cr.PC alleging the offense punishable under Section 138 of the Negotiable Instruments Act, 1881.
The brief facts of the complaint are as follows ;
2. The case of the complainant is that, the land bearing Sy. No.58, New Sy. No.58/1 of Kyalasanahalli Village, K.R. Puram Hobli, Bengaluru East Tq., measuring 39.08 guntas belongs to the joint family of the complainant. The complainant's great grand father Pillaiah @ Byrathi Pillappa @ Pilla Reddy along with his children 1) Venkataswamy Reddy, 2) Ramareddy 3) Krishnareddy and 4) Lakshman Reddy continued in possession cultivating it personally. Pillaiah @ Byrathi Pillappa died intestate on 17.01.2007.
* Accused No.1 is good friend of complainant and is very well known to his family since long time. Accused No.1 is engaged in real estate business. Accused knowing fully well about possessory title of the complainant and his family, has offered to purchase the said property and fixed the price at Rs.2,40,00,000/- for joint family of complainant excluding legal heirs of Venkataswamy Reddy. Accused No.1 assured to pay the consideration during registration of the sale deed upon settlement of claims of the title holders of the said property viz., one society Muniyappa and family. In good faith, the complainant and his family members have cooperated with accused No.1.
* As per the instructions of accused No.1, the complainant took GPA from his family heads. Accused No.1 got filed a suit of Partition and Separate Possession through the complainant in O.S. No.1281/2014 on 6.8.2014 against the title holders society Muniyappa and family by engaging counsel of his own choice. After institution of the suit, on 16.10.2014, accused No.1 got executed registered agreement of sale from Society Muniyappa and family for megre sale consideration of Rs.8 lakhs by paying Rs.2 lakhs as advance.
* On 10.11.2014, accused No.1 arranged to sell the said property to one Karmashi Gopal Patel and others. Accused No.1 called the family members of the complainant to affix their signatures to the said agreement of sale and assured to pay agreed amount during registration of the sale deed. Under the agreement, Karmashi Gopal Patel and others have paid Rs.5 lakhs to complainant towards part performance as per instructions of accused No.1.
* On 20.03.2015 accused No.1 got issued the cheque bearing No.092817 dtd.19.3.2015 for Rs.5 lakhs from Karmashi Gopal Patel to complainant towards part performance of said agreement. But as per the instructions of accused No.1, the said cheque was not encashed and the same has been returned to accused No.1.
* On 30.04.2015, accused No.1 obtained sale deed dtd.30.04.2015 from Society Muniyappa and family in favour of his own sister accused No.2-Jayamma behind the back of complainant and his family members. Accused No.1 by ignoring the sale agreement in favour of Mr.Karmashi Gopal Patel, attempted to sell the said property to third party for which Mr.Karmashi Gopal Patel instituted a suit for Specific Performance of contract in O.S. No.1416/2016.
* On 5.7.2016, accused Nos.1 and 2 suppressing all the said facts, entered into sale agreement with one Smt.Anisha Margaret Llyod for total sale consideration of Rs.6,45,22,500/-. Due to repeated demands made by the complainant to settle the agreed amount, after prolonged excuses, accused No.1 made the following payments through cheques issued by his sister - accused No.2.
a) Rs.1,50,000/- on 10.8.2016 by transfer of money to complainant's ICICI Bank Account.
b) Rs.10,00,000/- on 20.03.2017 through RTGS to account of complainant.
c) Rs.5,00,000/- on 11.09.2017 through RTGS to account of complainant.
* Accused No.1 with ill motive to make more money, by ignoring earlier agreements, on 16.3.2017 had entered into sale agreement with M/s.DS-Max Realty Pvt., Ltd., and thereafter executed sale deed dtd.15.04.2017 in their favour. Thereafter, when the complainant demanded payment of agreed amount, accused No.1 got issued post dated cheque bearing No.052286 dtd.10.08.2018 for Rs.5 lakhs from accused No.2 drawn at Bank of Maharashtra, Yelahanka branch, Bengaluru towards part payment stating that sale consideration amount is not settled by purchaser company. Further, assured to settle the amount once sale consideration is entirely paid. By believing accused No.1, the complainant received the cheque and continued with physical possession of the property.
* When the complainant and his family members denied to hand over physical possession of the property till amount is settled, accused No.1 came up with proposal to convey two residential flats belonging to M/s.DS-Max Realty Pvt., Ltd., and for the remaining amount, accused No.1 sought time to issue cheques. Later, on discussions it was agreed to sell two flats and amount be paid to complainant towards the agreed amount. Two flats were sold to family members of one Rajesh for total consideration of Rs.63,30,260/- under the sale deed dtd.1.6.2018 by M/s.DS-Max Realty Pvt., Ltd. The complainant and Rajesh are witnesses to the said sale deed and accused No.2 is the confirming party. The said money was received by accused No.2 by way of cheques. Accused No.1 assured to transfer the said amount after its realization.
* After registration of sale deed on 1.6.2018, in the evening accused No.1 has issued two post dated cheques i.e., a)cheque bearing No.279129 dtd.10.08.2018 for Rs.75,19,740/-, b)cheque bearing No.279130 dtd.10.08.2018 for Rs.75,00,000/- both drawn at Andra Bank, Thanisandhra branch, Bengaluru towards final settlement of agreed amount. In acknowledging the same, accused No.1 has got signature of the complainant on blank e-stamp paper.
* On 2.6.2018 accused No.1 along with Company representatives approached the complainant for handing over of possession of property. But the complainant denied to hand over the possession until payments are actually made. Thereafter, accused refused to deposit the cheques received towards sale of flats. With intervention of Company representatives, accused No.1 returned the cheques to flat purchasers and requested them to pay money in cash. Accordingly purchasers paid money of Rs.63,30,260/- in cash to the complainant. Thus complainant has totally received Rs.84,80,260/- out of total agreed amount of Rs.2,40,00,000/-.
* On 12.08.2018, accused No.1 with the aid of rowdy elements started giving threats to deliver possession. On 8.9.2018, accused No.1 attempted to interfere into the property which was resisted by complainant and his family members. Due to vengeance for non-delivering possession of property, accused No.1 got registered false complaint on 10.9.2018 through accused No.2 against complainant and purchaser of company flats falsely alleging that she has not received sale consideration and has been cheated.
* Due to repeated interference by accused No.1 without settling the amount, complainant filed suit in O.S. No.1321/2018 before III Addl. Civil Judge, Bengaluru Rural against accused and the Company and the same is still pending.
* Post dated cheques issued by both the accused were presented by the complainant for encashment on 31.10.2018 through his banker ICICI Bank, Bengaluru. All three cheques were returned dishonoured vide bank endorsement dtd.7.11.2018.
Cheque bearing No.279129 dtd.10.08.2018 issued by accused No.1 returned dishonored for the reason "payment stopped by drawer".
Cheque bearing No.279130 dtd.10.08.2018 issued by accused No.1 returned dishonored for the reason "funds insufficient". Cheque bearing No.052286 dtd.10.08.2018 issued by accused No.2 returned dishonored for the reason "cheque with alteration cannot be processed".
* Thereafter, the complainant had issued legal notice dtd.28.11.2018 demanding payment of cheque amount. The accused have not received the notice. In spite of assurance, both accused have not paid the cheque amount. Therefore, the accused have committed the offense punishable under Sec.138 of Negotiable Instruments Act, 1881. Hence, this complaint.
3. On filing of the complaint, cognizance has been taken for the offense punishable under Sec.138 of Negotiable Instruments Act, 1881 and a private complaint was registered in PCR. No.50676/2019. Sworn statement of the complainant has been recorded by way of affidavit. On hearing the complainant and by considering the documents on record, summons was issued to the accused by registering the criminal case in C.C.No.50476/2019. Later in response to the summons issued, the accused have appeared before the court through his counsel. The accused have been enlarged on bail. Plea of the accused has been recorded. The accused has pleaded not guilty and claims to be tried for which the matter was posted for trial.
4. The sworn statement of the complainant which has been recorded as PW.1 is treated as his examination- in-chief in view of the decision of the Hon'ble Apex Court reported in (2014) 5 SCC 590 - Indian Bank Association and others Vs Union of India and others - [W.P. (civil) No.18/2013]. To prove the guilt against the accused, the complainant has relied on the documents marked at Ex.P1 to Ex.P21. The incriminating circumstances in the evidence of the complainant have been brought to the notice of the accused and their statement under Sec.313 of Cr.PC was recorded. The accused have denied the incriminating circumstances. Further to substantiate his contention, the accused no.1 has examined himself as DW.1 and got marked documents at Ex.D1 to D14. Accused no.2 has examined herself as DW.2 and got marked documents at Ex.D15 to D28.
5. Heard the arguments of both the counsels.
6. The counsel for the complainant has relied on the following citation;
I) Jain P. Jose Vs Santosh & Another -
(2022 LiveLaw (SC) 979).
7. The counsel for the accused has relied on the following decisions;
I) M/s.Sathavahana Ispat Ltd., Vs Umesh Sharma and another - (ILR 2006 KAR 3579).
II) Sameer Rafiq Mulla Vs Asif Abdulhamid Misrikoti - (2022 (1) AKR 678).
III) Basalingappa Vs Mudibasappa - (AIR 2019 SC 1983) IV) Smt.Muniyamma and others Vs Smt. Narayanamma and others - (2019 (2) AKR 756) V) Vinayak Nivrutti Gondhale Vs Sopan Ananda Thakar & anr - (II (2010) BC
563).
VI) Shirish Vasant Borkar Vs Shri Vijaykumar .K Pillienkar Fadke & Another -
(2014 (1) DCR 184).
VII) H.P. Moodalappa Vs C.A. Chowrappa - (2012 CRI. L.J. 804).
VIII) M.S. Narayana Menon @ Mani Vs State of Kerala and another - (AIR 2006 SC 3366).
IX) Dr. K.G. Ramachandra Gupta Vs Dr. G.Adinarayana - (ILR 2000 KAR 1570).
X) B. Indramma Vs Sri. Eshwar - (ILR 2009 KAR 2331).
XI) B. Krishna Reddy Vs B.K.Somashekara Reddy - (2006 (5) Kar. L.J. 318).
XII) Amzad Pasha Vs H.N. Lakshmana - (2011 CRI. L.J. 552).
8. The points that arise for my consideration are:-
1) Whether the complainant proves that the accused no.2 has issued cheque bearing No.052286 for Rs.5 lakhs drawn at Bank of Maharastra, Yelahanka branch Bangalore, accused no.1 has issued cheque bearing No.279130 for Rs.75 lakhs and cheque bearing No.279129 for Rs.75,19,740/- drawn at Andhra Bank, Thanisandhra Branch, Bengaluru, of even dtd.10.08.2018 for discharge of legally recoverable debt and the said cheque bearing No.052286 was dishonored for the reason "cheque with alteration cannot be processed", and cheque bearing No.279130 & 279129 were dishonored for the reason "insufficient funds" and "payment stopped by drawer"
respectively. In spite of issuance of notice dated 28.11.2018, accused have failed to repay the loan amount and thereby the accused have committed the offense punishable under Sec.138 of N.I. Act, 1881?
2) What Order?
9. My findings on the above points are as under;
Point No.1 : In Affirmative,
Point No.2 : As per final order,
for the following.,
REASONS
10. Point No.1: The complainant in support of his contentions, has examined himself as PW.1. In his chief- examination, he has reiterated the entire averments of the complaint. Further to substantiate his contention, PW-1 has produced original cheques bearing No.052286 dated: 10-08-2018 for Rs.5 lakhs drawn at Bank of Maharashtra, Yelahanka Branch, Bengaluru issued by accused no.2 at Ex.P1. Ex.P2 and 3 are the original cheques bearing No.279130 dated: 10-08-2018 for Rs.75,00,000/- and cheque bearing No.279129 dated: 10- 08-2018 for Rs.75,19,740/-, issued by the accused no.1, drawn at Andra Bank, Tanisandra Branch, Bengaluru. Ex.P4 and 5 are the endorsements issued by the bank dated: 02-11-2018 wherein the cheques at Ex.P3 and P2 have been dishonored for the reason "Payment Stopped by Drawer" and "Funds Insufficient" respectively. Ex.P6 is the endorsement issued by the bank dated: 02-11-2018 showing that the cheque at Ex.P1 has been dishonored for the reason "Cheque with alternation cannot be processed in cheque truncation clearing system". Ex.P7 is the legal notice dated: 28-11-2018 wherein both accused no.1 and 2 have been called upon to pay the cheque amount within 15 days from the date of its receipt. Ex.P8 is the postal receipts showing that the said legal notice has been dispatched to the address of the accused no.1 and 2 on 28-11-2018. Ex.P9 is the postal cover addressed to the accused no.2 wherein the same is returned unserved with postal shara dated: 30- 11-2018 as "insufficient address, not known". Ex.P10 is the postal cover addressed to the accused no.1 showing that the said notice has been returned unserved with postal shara dated: 01-12-2018 for the reason "Addressee left". Ex.P11 is the certified copy of the sale agreement dated: 10-11-2014 executed by the Society Muniyappa and his family member in favour of Karmashi Gopal Patel and others agreeing to sell the property of bearing Sy.no.58/1, wherein the complainant Sudhakar Reddy is also shown to be confirming party. Ex.P12 is the certified copy of the compromise petition dated: 15-03-2017 between the plaintiff Karmashi Gopal Patel and others and defendant no.30 Jayamma (accused no.2 herein) in O.S.No.1416/2016. Ex.P13 is the certified copy of order sheet in O.S.No.1416/2016 showing that the complainant Sudhakar Reddy is also made as defendant no.24 along with accused no.1 Munirajappa and accused no.2 Jayamma as defendants no.29 and 30 respectively. Ex.P14 is the certified copy written statement of defendant no.30 (accused no.2 herein) in O.S.No.1416/2016. Ex.P15 is the certified copy of sale deed dated: 30-04-2015 executed by family members of Society Muniyappa and accused no.1 in favour of accused no.2 Jayamma in respect of the land bearing Sy.no.58/1 of Kyalasanahalli Village. Ex.P16 is the certified copy of the agreement dated: 05-07-2016 executed by accused no.2 Jayamma in favour of Smt.Anisha Margaret Lloyd agreeing to sell the said sy.no.58/1 for total consideration of Rs.6,37,07,000/-. Ex.P17 is the certified copy of the deed of cancellation dated: 24-07-2017 executed by Smt.Anisha Margaret Lloyd in favour of accused no.2 thereby canceling the sale agreement in her favour at Ex.P17. Ex.P18 is the certified copy of agreement of sale executed by accused no.2 and her family members in favour of M/s DS-MAX REALITY PVT.LTD in respect of the said land in sy.no.58/1 measuring 39.08 guntas. Ex.P19 is the certified copy of the absolute sale deed dated: 15-04-2017 executed by accused no.2 and her family members in favour of M/S DS-MAX REALITY PVT.LTD in respect of the said land for total consideration of Rs.3,64,88,400/-. Ex.P20 are the certified copies of RTC's in respect of Sy.no.58/1 wherein column no.12 for the year 1966 to 1993 shows the name of Bhairathi Pillaiah/Pillaiah who is stated to be his grandfather/ancestor of the complainant. RTC's of the said land for the year 1994 to 2012 column no.12 shows the name of Kenchamma W/o Chikka Muttaiah. Ex.P21 is the bank statement of the complainant account bearing no.020401526973 showing that the accused no.2 has transferred Rs.1,50,000/- through NEFT on 10-08- 2016, Rs.10,00,000/- through RTGS on 20-03-2017 and Rs.5,00,000/- through RTGS on 11-09-2017 to the complainant's bank account.
11. The accused to substantiate his contention, has examined himself as DW.1. In his chief-examination he has stated that he had a service station at Hennur Main Road. The complainant came in contact there and they have developed good friendship. Land in Sy.no.58/1 of Kyalasanahalli Village belongs to society Muniyappa and his family. They have approached him to sell the said property. Agreeing to purchase it he has entered into registered agreement with them during the year 2014 and 2015. Later he along with the said Society Muniyappa got registered sale deed in the name of his elder sister i.e., accused no.2. Later he along with accused no.2 had sold the said property to M/s DS-MAX REALITY PVT.LTD company.
12. The cheques at Ex.P1 to P3 were kept in his two wheeler vehicle. The said cheques went missing and therefore he has lodged a complaint before Sampigehalli police station as per Ex.D1. The signed cheques were kept by him in his two wheeler for paying dues to service station person. He has not received any notice in writing from the complainant. Also has not received any oral communication in respect of dishonour of cheque. The complainant had never demanded the money covered under the cheque. Until the police along with complainant came to his house, he was not aware of the present complaint.
13. The complainant had filed a suit against himself, his sister/accused no.2 and M/s DS-MAX REALITY PVT.LTD Company. The said case was dismissed for non prosecution by the complainant. The complainant had filed the said suit claiming land in Sy.no.58/1 belongs to him. From 31-05-2018, he had received treatment for 11 days at Dharmastala Chikistalaya. Since, the complainant has sought financial assistance with himself and his elder sister, his elder sister transferred money to the bank account of the complainant through RTGS. He has not paid any money in cash to the complainant. The said money has not been returned by the complainant. When he was receiving treatment, the complainant called him over phone stating that two flats in the name of accused no.2 will be sold by him for Rs.60,00,000/- and has asked to send accused no.2. After selling the said two flats, the complainant has not paid the sale consideration till now. Therefore, he along with accused no.2 have lodged a complaint at Varthur Police Station.
14. To substantiate his contention, the accused no.1 has produced documents at Ex.D1 to D14. Ex.D1 is the complaint dated: 03-04-2018 lodged by accused no.1 before Sampigehalli Police in respect of missing of the cheques bearing no.279129/279130 produced at Ex.P2 and 3. Ex.D2 is the certified copy of the written statement filed by defendant no.3 Narayanaswamy in O.S.No.1416/2016. Ex.D3 is the hand loan agreement dated: 31-05-2018 stated to be executed by the complainant in favour of both accused persons. Ex.D4 to D10 are the RTC Extracts of Sy.no.58 of Kyalasanahalli Village for the year 2005-2012. Ex.D11 and 12 are the RTC Extracts of Sy.no.58/1 wherein 39 guntas is shown to be standing in the name of Society Muniyappa. Ex.D13 is the discharge bill and Ex.D14 is the discharge summary of SDM Yoga and Nature cure Hospital Dharmastala showing that the accused no.1 has taken treatment from 31-05-2018 to 09-06-2018.
15. The accused no.2 in substantiation of her defense has examined herself as DW-2. In her cross- examination DW-2 states that the complainant is good friend of accused no.1. During year 2018 accused no.1 used the keep her blank cheques and the blank cheques belonging to the accused no.1 in his vehicle. The complainant took accused no.1 vehicle during 2018 and has stolen blank cheques kept in the vehicle. When the singed blank cheques kept in the vehicle would not be traced, her brother/accused no.1 had lodged complaint before Sampigehalli Police on 03-04-2018. Society Muniyappa and his family members have executed registered agreement of sale dated: 16-10-2014 in favour of accused no.1. Further, the said Society Muniyappa and his family members have executed registered sale deed dated: 30-04-2015 in her favour. She along with her family members have executed registered sale deed dated: 15-04-2017 in favour of M/s DS-MAX REALITY PVT.LTD. Knowing fully well that accused no.2 is getting money from the said sale of property, to have wrongful gain, the complainant has presented the stolen cheques of herself and her brother/accused no.1.
16. The complainant and his family member have no right or any interest over the said land. Neither herself(accused no.2) or her brother have issued the alleged cheques to the complainant. Under Ex.D3, the complainant had received hand loan for performing marriage of his uncle's children. The complainant used to bring prospective buyers for sale of flats belonging to her. The complainant brought one Rajesh, Smt.Rekha and Smt.Swapna as purchasers. In the sale deed they have mentioned cheque numbers but have not paid a single penny and have cheated her. She has lodged a complaint before Varthur Police in Cr.No.226/2018 against the said three purchasers and the complainant alleging offense U/sec.420 R/w 34 of IPC. IO has written a letter dated: 31-10-2018 to Panchayath Development Officer, Kodathi Grama Panchayath requesting him not to transfer Katha to the buyers of the said flats as they have cheated without paying the sale consideration. By stating that the said complaint is filed to harass her and her brother, has sought for acquittal.
17. To substantiate her contentions, DW-2 has produced documents at Ex.D15 to 28. Ex.D15 is the RTC of Sy.no.58 for the period from 23-08-2001 to 04-07- 2005 and from 05-09-2019 to 07-07-2020. Ex.D16 is the certified copy of the agreement of sale dated: 16-10- 2014 executed by Society Muniyappa and his family in favour of accused no.1 Munirajappa in respect of the land in sy.no.58/1. Ex.D17 and 18 are certified copies the sale deed dated: 01-06-2018 executed by G.Shivagangappa and others in favour of M/s DX-MAX Properties Pvt.Ltd with respect to sy.no.188 of Kodathi Village. Ex.D19 is the certified copy of plaint in O.S.No.1047/2018 filed by Prakash @ Prakash Reddy against accused no.2 and DS-MAX Reality Private Limited. Ex.D20 is the certified copy of the order on IA- 1 filed under order 39 rule 1 an 2 of CPC dated: 05-10- 2018 wherein the same is dismissed rejecting the application of the plaintiff. Ex.D21 is the certified copy of order sheet in O.S.No.1047/2018. Ex.D22 is the certified copy of the withdrawal memo filed by the plaintiff in O.S.No.1047/2018. Ex.D23 is the certified copy of the complaint dated: 03-09-2018 filed by accused no.2 before Kothnur Police Station stating that Prakash Reddy @ Prakash has created memorandum of understanding dated: 06-07-2015. Ex.D24 is the certified copy of FIR registered in Cr.no.170/2018 on the basis of the said complaint. Ex.D25 is the Police endorsement dated: 12-05-2019 issued by Marathahalli sub division intimating the accused no.2 to pursue civil remedy in respect of her complaint towards non receiving of sale consideration of her two flats. Ex.D26 is the Police endorsement dated: 27-02-2020 issued by Marathahalli sub division intimating the complainant to pursue remedy before court in respect of her complaint in Cr.no.226/2018. Ex.D27 is the police notice issued to accused no.2 to produced documents in respect of investigation of Cr.no.170/2018. Ex.D28 is the letter dated: 31-10-2018 wherein the investigating officer/PSI Varthur Police Station has addressed the letter to Panchayath Development Office, Kodathi Grama Panchayath seeking him not to transfer Katha in respect of two flats to the purchasers.
18. On the basis of arguments addressed by the counsel for the accused, suggestions made in the cross- examination of PW-1 and the evidence of DW-1 and 2, the defense of the accused can be deduced as follows:-
1. Single case against two different persons who have issued separate cheques is not maintainable.
2. Neither accused No.1 nor accused No.2 have issued the alleged cheques at Ex.P.1 to P.3 to the complainant. Accused No.1 used to keep signed blank cheques in his two wheeler.
The complainant has stolen the alleged cheques, misused it and has filed this false case.
3. The complainant is in noway related to the property of bearing Sy.No.58 New No.58/1. There is no legally recoverable liability under the said cheques.
4. The complainant, to evade repayment of loan of Rs.16,50,000/- received from the accused No.2 and also to evade sale consideration of Rs.60 lakhs to be paid by him to accused No.2 in respect of sale of her two flats at Kodathi, has filed this false case.
5. Legal Notice is not served on the accused persons.
Principles:
19. In respect of the proof of the fact that the cheque has been issued for discharge of legally enforceable debt, there is a presumption of law under Sec.139 of Negotiable Instruments Act, 1881 in favour of the holder of the cheque which reads as follows:
Sec.139 - Presumption in favour of holder: it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. The presumption under Sec.139 of Negotiable Instruments Act is a presumption of law and not the presumption of fact. The presumption has to be raised in all the cases once the factum of issuance of cheque and its dishonour is established. The onus of proof to rebut the presumption lies on the accused. The accused need not rebut the presumption beyond all reasonable doubt. But the accused has to place sufficient materials to convince the court that his case is more probable when it is compared with the case of the complainant. Accused may adduce direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability. Accused need not enter into witness box to prove his case. He may also rely upon the averments in the complaint, statutory notice and the circumstantial evidence adduced by the complainant during the trial.
Defense- Single case against two different
accused issuing different cheques is
not maintainable.
20. The very first defense urged by the counsel for the accused is that; the cheque at Ex.P.1 has been issued by the accused NO.2. The cheques at Ex.P.2 and P.3 have been issued by accused No.1. Therefore, single complaint against both the accused is not maintainable.
21. For adjudicating said issue, I would like to rely upon the decision of Hon'ble Andhra Pradesh High Court in the case of Rajini Chandra and another Vs. State of Andhra Pradesh and another; Crl.P.2640 of 2009; 2010 ALL MR (Cri) Journal 152 wherein while considering the same point of issue, in para 11, 20 to 22 has held as follows:-
11. Now the point that arises for consideration is whether in the present set of circumstances, where there are two cheques issued by two different persons a single complaint is maintainable ?
.....
20. The question with regard to separate accused would fall with the provisions of Section 223 of the Code of Criminal Procedure, 1973 (for short 'the Code').
"S.223 : What persons may be charged jointly: The following persons may be charged and tried together, namely:-
(a) Persons accused of the same offence committed in the course of the same transaction;
(b) persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence;
(c) persons accused of more than one offence of the same kind, within the meaning of S.219 committed by them jointly within the period of twelve months;
(d) persons accused of different offences committed in the course of the same transaction.
(e) persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first named persons, or of abetment of, or attempting to commit any such last-named offence;
(f) persons accused of offences under Sections 411 and 414 of the Indian Penal Code (45 of 1860), or either of those sections in respect of stolen property the possession of which has been transferred by one offence;
(g) persons accused of any offence under Chapter XII of the Indian Penal Code (45 of 1860) relating to counterfeit coin, and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of, or attempting to commit any such offence; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges:
Provided that where a number of persons are charged with separate offences and such persons do not fall within any of the categories specified in this section, the (Magistrate or Court of Session) may, if such persons by an application in writing, so desire, and (if he or it is satisfied) that such persons would not be prejudicially affected thereby and it is expedient so do do, try all such persons together."
Thus, Section 223(a) says that persons accused of the same offence committed in the course of the same transaction can be charged joint; Section 223(c) says that persons accused of more than one offence of the same kind, within the meaning of Section 219 committed by them jointly within the period of twelve months can be tried jointly. Under Section 223(e) persons accused of an offence, including theft, extortion, cheating, or criminal misappropriation, receiving, retaining or assisting in disposal of stolen property; possession of which is illegal etc., can be tried together and as per the proviso, where number of persons are charged with separate offences and such persons do not fall within any of the categories specified in Section 223, the Magistrate may if such persons by an application in writing, so desire, and if he is satisfied that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all such persons together.
21. In the present case, the facts fall within sub-section (e) of Section 223 of the Code, as here both the petitioners have allegedly committed the same offence in the course of same transaction, as the transaction arises out of a land dealing for which advance was paid, as per the complainant, after settlement, the cheques were issued by both the accused, not only on their behalf, but on behalf of other members of the family towards discharge of a legally enforceable debt. Thus legally it is the same offence committed in the course of same transaction. The present case may also fall within Section 223(c), as per which persons accused of more than one offence of the same kind, within the meaning of Section 219 committed by them jointly within the period of twelve months can be tried jointly.
22. When the decisions referred to above confirm the view that, in the circumstances contemplated under Section 219 of the Code, offences can be tried together, in the circumstances cases falling under Section 223(c) of the Code cannot be said to be tried together.
Further, the proviso to Section 223 of the Code, which contemplates that where number of persons are charged with separate offences and they do not fall within any of the categories specified in Section 223 of the Code, on an application by such accused, all the persons can be tried together, shows that even in cases where the provisions of Section 223 are not covered also, in certain circumstances, joint trial can be held with regard to different accused i.e., on an application by the accused to the concerned Magistrate. Thus joint trial is not totally prohibited and that would not vitiate the trial, as long as no prejudice is shown to have been caused to the accused.
(Emphasis Supplied) In the above precedent it is clearly held that the persons accused of same offence committed in the course of same transaction can be tried together. It is also held that that joint trial is not totally prohibited and that would not vitiate the trial, as long as no prejudice is shown to have been caused to the accused.
22. In the case on hand, the complaint allegations are that knowing fully well about the possessory title of the complainant and his family over the land in Sy.No.58 , new Sy.No.58/1 of Kyalasanahalli village, by agreeing to pay Rs.2,40,00,000/- towards purchase of the said land, the accused No.2 has issued the cheque at Ex.P.1 and accused No.1 has issued the cheques at Ex.P.2 and P.3 to the complainant. It is clearly alleged that the said cheques have been issued in the course of the same transaction I.e, land purchase transaction. Further no prejudice is shown to have been caused to the accused persons by holding joint trial. Therefore by relying upon the above precedent, the arguments of the counsel for the accused that single complaint is not maintainable against two accused who have issued different cheques holds no water.
Defense- The cheques at Ex.P.1 to P3 were stolen and misused by the complainant.
23. The counsel for the accused in the cross- examination of PW-1 dated 25.08.2021 has suggested that the complainant while accompanying the accused No.1 on his vehicle has stolen the signed blank cheques of accused No.1 and 2 kept in his vehicle and has misused it. Unaware of stealing of cheques the accused No.1 has lodged the complaint as per Ex.D.1 before the Sampigehalli Police Station.
24. DW-1 (Accused No.1) in his chief-examination states that he has kept signed cheques in his two wheeler vehicle. Later he found that the said cheques were missing and therefore he has lodged the complaint before the police as per Ex.D.1. Further states that he has kept the said cheques for issuing them to his service station owner and for some other commitments. Also states that he has vacated service station many years back. Further denies the suggestion that he has closed the service station during the year 2015. He admits that there is an Agreement with the service station owner and he will produce it if he can find it in his house.
25. DW-2 (Accused No.2) in her chief- examination states that his brother used to keep blank signed cheques of herself and her brother in his vehicle for the purpose of payment towards the amount for having purchased service station materials. Further states that the Complainant used to come to her brothers house. During the year 2018 complainant had taken his brother's vehicle outside and he has stolen the blank signed cheques kept in the vehicle. When her brother could not trace the cheques in his vehicle, he has lodged the complaint before Sampigehalli Police station on 03.04.2018.
26. DW-1 has produced the complaint dated 03.04.2018 at Ex.D.1 The same is lodged by the Accused No.1 before the Sampigehalli Police Station stating that when he is a two wheeler mechanic; when he was going from R.K.Hegde Nagar towards 80 feet road on 02.04.2018 on his vehicle bearing No. KA-51- U-1089, Hero Plazar, at about 6.00 pm, blank cheques bearing No.279129 and 279130 drawn at Andhra Bank are missing; since there are chances of misusing of cheques, he has sought police for blocking the said cheques. Nowhere in the said complaint it is mentioned that the complainant has accompanied him or taken his vehicle and has stolen the cheques. More over, the complaint is only with respect two cheques bearing No.279129 and 279130 produced at Ex.P.2 and P3. But no such complaint is given in respect of missing of cheque issued by accused No.2 bearing No.052286 produced at Ex.P.1.
27. Further on Ex.D1 it is endorsed by the receiving authority as "Date 03.04.2018 today received complaint". Seal and Signature of Police Inspector (Law and Order) Sampigehalli Police Station is found below the said endorsement at Ex.D.1. This original endorsement with Seal and signature show that Ex.D.1 is not certified copy of the complaint lodged before the Police, but the same is the original complaint itself. It is not forthcoming as to why the police after making endorsement of receiving complaint has returned the same to the complainant (Accused No.1) Further no action is shown to be initiated by the police in the natural course of their official duty. No investigation is shown to have been done that by the police on the said complaint. Therefore no sanctity can be attached to the said document. Except oral assertions that the complainant has stolen the cheques kept in the two wheeler vehicle of the accused no.1, there is nothing on record to believe the said defense. Therefore, the contention of the accused that the complainant by stealing cheques at Ex.P.1 to P.3 has misused them and has filed this false case has no substance.
Defense- The complainant is in no way related to the property bearing Sy.No.58, new No.58/1 and therefore there is no legally recoverable liability existing.
28. The complainant contends that the land bearing Sy.No.58, new no 58/1 of Kyalasanahalli village, K.R.Puram Hobli, Bengaluru East Taluk measuring 39.08 guntas belongs to the joint family of the complainant. The complainant's great grandfather Pillaiah @ Byrathi Pillappa @ Pilla Reddy along with his children (1) Venkata Swamy Reddy, 2) Ramareddy,
3) Krishna Reddy and 4) Lakshmana Reddy continued in possession of the said land cultivating it personally.
Pillaiah @ Byrathi Pillappa @ Pilla Reddy died intestate on 17.01.2017. Accused No.1 who is in real estate business and a good friend of complainant, knowing fully well about the possessory title of the complainant and of his family over the said property offered to purchase it and fixed the price at Rs.2,40,00,000/- for joint family of complainant excluding legal heirs of Venkata Swamy Reddy. Accused No.1 had assured to pay the said consideration during the registration of the sale deed and upon settlement of claims of the title holders of the said property i.e. 1) Society Muniyappa and family in whose name documents are standing. Towards discharge of the same, the accused No.2 has issued cheque at Ex.P.1 and accused No.1 has issued cheques at Ex.P.2 and P.3.
29. On the contrary, the accused contends that the complainant is in no way related to the said land and have denied issuing of the alleged cheques to the complainant. It is seriously contended that there is no legally recoverable liability under the cheques in dispute. Even though, the accused No.1 and 2 have denied the issuance of cheques at Ex.P.1 to P.3, in their evidence have clearly admitted that the cheque at Ex.P.1 belongs to accused No.2 and the cheques at Ex.P.2 and P.3 belongs to accused No.1. They have also admitted their signatures on the said cheques. However, by seriously contending that the complainant is in no way related to the said land have disputed the existence of legally recoverable liability under the cheques at Ex.P.1 to P3. To substantiate their contentions, the accused persons have produced RTC extracts of the said survey number for the year 2005- 2006 to 2014-2015 to show that the name of complainant or his ancestors is not found in the revenue records. As discussed earlier, the accused have failed to substantiate their defense that the complainant has stolen the alleged cheques kept in the two wheeler of accused No.1 and has misused it. When issuance of cheque and the signatures of the accused on the cheque have been prima-facie shown by the complainant, the entire burden is upon the accused to rebut the statutory presumption U/s. 139 of N.I.Act and to show that there is no legally recoverable liability existed.
30. To show his possessory rights over the said land, the complainant has produced certified copy of the sale agreement dated 10.11.2014 at Ex.P.11 which has been executed by one Society Muniyappa and his family members in favour of 1) Karmashi Gopal Patel,
2) Prakash.R & 3) Jayanthilal.K.Patel in respect of the said land in Sy.No.58/1. There is no dispute that the Society Muniyappa and his family members are the title document holders of the said property. In the said agreement, the complainant Sudhakar Reddy is shown as confirming party at serial No.24. In para 2 of the said agreement, it is mentioned that the confirming party having no right over the said property filed suit in O.S.No.1281/2014 by making vendors as defendants No.5 to 10. After convincing his mistake in identifying and claiming the schedule property in the said suit, the confirming party had agreed to file an application Under Order 6 Rule 17 of CPC to delete the said property from the suit schedule and also to file application seeking deletion of the vendors from the said suit and to withdraw his claim over the suit schedule property so that, the vendors will have no legal hurdle. By relying upon the said averments, accused contends that the complainant has no right over the said property and therefore there is no legally recoverable liability under the alleged cheques.
31. The accused have not disputed the fact that Society Muniyappa and family members have executed the sale agreement at Ex.P.11 in favour Karmashi Gopal Patel and others. It is also not in dispute that the said Karmashi Gopal Patel and others have filed a suit seeking specific performance of the said sale agreement against Society Muniyappa and others including complainant and both the accused persons in O.S.No.1416/2016. It is also not in dispute that the said suit was compromised between the said plaintiffs and defendant No.3 (Accused NO.2 herein) as per the compromise petition dated 15.03.2017 produced at Ex.P.12. In the said compromise, the accused No.2/defendant No.30 has clearly admitted the agreement of sale dated 10.11.2014 and also receiving of a sum of Rs.65 lakhs by the vendors towards part sale consideration. The complainant has produced certified copy of the order sheet in O.S.No.1416/2016 at Ex.P.13 wherein the complainant is shown as defendant No.24, accused No.1 is shown as defendant No.29 and accused No.2 is shown as defendant No.30 in the said suit. The complainant has also produced the written statement filed by the defendant No.30/accused NO.2 herein in O.S.No.1416/2016 at Ex.P.14 wherein at para 8 it is averred as follows:-
Para No.8:- The averments made in para- III(3) (xviii) of the plaint that again on 19.03.2015 the defendants made another demand of Rs.20,00,000/- and the plaintiffs have paid the said amount (I) A sum of Rs.15,00,000/- (Rs. Fifteen Lakh only) by way of cash and the said amount has been acknowledged before the witnesses and another sum of Rs.5,00,000/- (Rs. Five lakh only) by way of cheque bearing No.092817 dated 19.03.2015 drawn on Indian Bank, in favour of the defendant No.23 Sudhakara Reddy are all hereby specifically denied as false. Further averments that though the said cheque has been acknowledged, the same has not been presented in the Bank and not encashed is not within the knowledge of this defendant. It is also denied that the defendant No.24 Sudhakar Reddy has received a sum of Rs.65,00,000/- (Rs.
Sixty five lakh only) out of the agreed sale consideration amount is hereby specifically denied as false. The agreement of sale dated 10.11.2014, acknowledgement dated 02.11.2014 and 19.03.2015 produced by the plaintiff are all created and concocted documents by the plaintiffs with a malafide intention to grab the valuable schedule property.
(Emphasis supplied)
32. The accused has also produced certified copy of the written statement of defendant No.3 Narayana Swamy in O.S.No.1416/2016 at Ex.D.2 wherein para No.8 is the replica of written statement filed by defendant No.30/accused No.2 in the said case. The above extracted para No.8 gives an inference that the plaintiffs in their plaint has stated that the defendant No.24 i.e., the present complainant Sudhakar Reddy has received Rs.65 lakhs out of the sale consideration under the sale agreement at Ex.P.11. This probablizes the contention of the complainant that he was having possessory interest over the said property. Further the conduct of accused No.2/defendant No.30 in O.S.No.1416/2016 in entering into compromise on 15.03.2017 with plaintiffs Karmashi Gopal Patel and others by paying Rs.95 lakhs also probablises their contention that they paid Rs.65 lakhs to the complainant Sudhakar Reddy out of total sale consideration. The said compromise has been entered by accused No.2 with the plaintiffs by deleting defendants No.1 to 29 as could be ascertained from the order-sheet dated 15.03.2017 produced at Ex.P.13. This also probablises the correctness of the pleadings of the plaintiffs therein stating that they have paid some money to the complainant.
33. Further the complainant has produced RTC extracts of Sy.No.58 at Ex.P.20 wherein column No.12 for the year 1966 to 1993 discloses the name of ByrathiPillaiah/Pillaiah in column No.12 which also corroborates and probablises the possessory interest of the complainant. If in case the complainant has no interest of any kind over the said property, it is not forthcoming as to why he should have been made as a confirming party to the agreement of sale at Ex.P.11 and also defendant No.24 in OS.No.1416/2016. Under all these circumstances the case of the complainant seems to be more probable than that of the contentions raised by the accused. Therefore, the contention of the accused that the complainant is no way connected to Sy.No.58/1 and therefore there is no legally recoverable liability to the extent of cheque amount cannot be appreciated.
Defense- To evade the repayment of loan of Rs.16,50,000/-borrowed by the complainant and also to evade sale consideration of Rs.60 lakhs, this false case has been filed by the complainant.
34. The complainant contends that the accused No1 through his sister/accused No.2 has made payment of Rs.1,50,000/- on 10.08.2016, Rs.10 lakhs on 20.03.2017 and Rs.5 lakhs on 11.09.2017 towards sale consideration dues. Further contends that the accused persons after purchasing the said land in the name of accused NO.2 under the sale deed dated 30.04.2015 have sold it to M/s.D.S.Max Reality Pvt. Ltd. When the complainant and his family members denied to handover the physical possession of the property till the amount is settled, accused No.1 came up with the proposal to convey two residential flats and has sought time for the remaining amount. Later two flats were sold to family members of one Rajesh for total consideration of Rs.63,30,260/- under sale dated 1.06.2018. The said money was received by accused No.2 by way of cheques. The accused No.1 assured to transfer the said amount after its realization. On 02.06.2018, accused No.1 along with the company representatives approached the complainant seeking possession of the property. When the complainant denied to handover the possession until payments are actually made, with intervention of the company representatives accused No.1 returned cheques to the flat purchasers and requested them to pay money in cash. Accordingly, the purchasers paid money of Rs.63,30,260/- in cash to the complainant. Thus, in all the complainant has received Rs.84,80,260/- out of total agreed amount of Rs.2,40,00,000/-.
35. But the accused contends that all the said three payments on 10.08.2016, 20.03.2017 and 11.09.2017 are the loan lent to the complainant for performing marriage of children of the complainant's uncle. To substantiate it, the accused have produced the loan Agreement at Ex.D.3. In the cross-examination PW-1 admits the suggestion that he has received money from accused No.2 Jayamma as per Ex.D.3. Thereafter he denies it immediately. Further denies his signature on Ex.D.3 but states that the thumb impression on it is his thumb impression. Nowhere in the cross- examination suggestion has made by the accused counsel stating that the money of Rs.16,50,000/- under Ex.D.3 was a loan lent to him towards performing marriage of children of his uncle. Also there is no suggestions as to who is the uncle, when the marriage happened and who is his child who married. Further DW-2 in her cross-examination dated 07.09.2023 has clearly denied her signature on Ex.D.3 stating that she will not put her signature in the manner which is found on Ex.D.3. She has also denied the suggestion that an amount of Rs. 21 lakhs has been transferred from her Bank Account to the complainant's bank account. Therefore, the document at Ex.D.3 is shrouded with suspicion and the same cannot be considered for believing that the said three payments made to the complainant are the loan lent as contended by the accused persons.
36. It is contended by the accused persons that a complaint has been lodged before the Varthur police for non returning of the sale consideration by the complainant in respect of sale of the two flats belonging to accused No.2. In the cross-examination PW-1 states that 'B' Report has been filed with respect to the said complaint. The accused has produced endorsement dated 12.05.2019 at Ex.D.25 issued by Asst. Police Commissioner Marathalli Sub Division, wherein it is stated that in respect of the complaint lodged at Varthur Police Station, a case in O.S.No.1321/2018 has been lodged and therefore has directed the accused No.2 to approach the Civil Court seeking appropriate remedy. Similar endorsement at Ex.D.26 dated 27.02.2020 is also given to accused NO.2 by the Asst. Commissioner of Police, Marathalli Sub- Division in respect of the complaint made in Crime No.226/2018. There is nothing on record to probabalise the contention of the accused that the complainant has cheated by receiving the sale consideration in respect of sale of two flats as contended by the accused persons. Under the circumstances, the contention that a false case has been filed against the accused persons by the complainant to evade the said payments has no substitution.
Defense- Legal Notice is not served on the Accused
37. In the cross-examination dated 25.08.2021, the counsel for the accused has suggested that from the year 2017, accused No.1 and 2 have been residing at Chokkanahalli Layout and Legal Notice is sent to the old address of the accused persons. Therefore the counsel has argued that there is no compliance of Section 138(b) of Negotiable Instruments Act.
38. The complainant has produced legal notice addressed to both accused No.1 and 2 dated 28.11.2018 at Ex.P.7 wherein the address of the accused No.1 is mentioned as B.M.Munirajappa, S/o.Muniyappa, residing at No.37, 1 st Main, 3 rd Cross, Hoyasala Layout, Amruthalli, S.K.Nagar Post, Bengaluru-560092. The same address is also found mentioned by accused No.1 in his complaint dated 03.04.2018 at Ex.D.1 stated to be lodged before the Sampigehalli Police station in respect of missing cheques. This document of the accused falsifies the contention of the counsel for the accused that accused No.1 was not residing in the said address from the year 2017.
39. In the legal notice at Ex.P.7, address of accused No.2 is mentioned as Jayamma, W/o.Late Muniyappa, No.148, Renukamma Road, Kalkare Village, Horamavu Post, K.R.Puram, Bengaluru East Taluk 560083. The same address is also found to have been mentioned in the sale Agreement dated 05.07.2016 produced at Ex.P.16, Cancellation Deed dated 24.07.2017 produced at Ex.P.17, Sale Agreement dated 16.03.2017 produced at Ex.P.18 and the sale deed dated 15.04.2017 produced at Ex.P.19 where accused No.2 is a party.
40. Further the same addresses accused No.1 & 2mentioned in the legal notice is also found mention in the sale deed dated 30.04.2015 produced at Ex.P.15 which is executed in favour of accused NO.2. No doubt, that the postal cover addressed to accused No.1 at Ex.P.10 is returned with postal shara dated 01.12.2018 as "Addressee Left" and the postal cover produced at Ex.P.9 addressed to accused NO.2 has been returned with postal shara dated 30.11.2018 as "Insufficient Address". But when the above documents in which the accused No.1 and 2 are themselves parties clearly show that the legal notice at Ex.P.7 has been sent to the correct address of accused No.1 and 2 through Registered Post, it is to be held that the complainant has complied the requirement of Section 138(b) of Negotiable Instruments Act. Under the circumstances, if the accused contends that addresses are not the correct addresses, it is the burden of the accused to prove the said fact. But the above discussed documents on record falsifies their contention that legal notice has been sent to the old addresses of the accused persons and therefore there is no compliance of Section 138(b) of N.I.Act. Even otherwise to adjudicate the said issue I would like to rely upon the decision of Hon'ble High Court in the case of T.Kumar Vs K.Chennakeshavulu - (2021 (2) AKR 219) at para 16 our Hon'ble High Court has held as follows;
Para 16. When the matter was referred to the Larger Bench of the Hon'ble Supreme Court in C.C.Alavi Haji V. Palapetty Muhammed and Anr. (2007) Cri LJ 3214 answering the reference in para 17 of the judgment it was held as follows:
"17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran's case (supra), if the 'giving of notice' in the context of Clause (b) of the proviso was the same as the 'receipt of notice' a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act."
(Emphasis supplied by me) In the case on hand the accused persons have not repaid the cheque amount within 15 days of his appearing before the court. Under the circumstances, by relying upon the above precedent, the contention of the accused that he has not been served with legal notice and therefore no offense is made out against them holds no water.
Conclusion:
41. Under all these circumstances, the complainant has clearly proved that the cheque has been issued towards the discharge of legally recoverable liability, the same has been presented within its life for encashment and has been dishonoured vide bank endorsement dated
02.11.2018. The complainant has issued legal notice on 28.11.2018 which is deemed to be served on 01.12.2018 to the accused persons. The present complaint is filed on 09.01.2019 which is well within the period of limitation. On the other hand, the accused has failed to probabalise his defence and to rebut the statutory presumption of existence of legally recoverable liability U/s.139 of Negotiable Instruments Act. The materials on record show that the case of complainant is more probable than that of the accused. Therefore, both accused No.1 and 2 are found guilty for the offence punishable U/s.138 of N.I.Act. Accordingly, I hold the Point No.1 in the Affirmative.
42. The accused has also produced documents at Ex.D.19 to D.24 and Ex.D.27 which are related to one Prakash Reddy and the same are in noway related to the present cheque transactions. The accused has also produced discharge bill at Ex.D.13 and discharge summary at Ex.D.14 to show that he has received treatment at Dharmasthala Manjunatheshwara Yoga and Nature Cure Hospital from 31.05.2018 to 09.06.2018 during the period in which the two flats is stated to have been sold. When the accused have failed to probabalise their defense that the complainant has stolen the alleged cheques, the contention that accused No.1 was receiving treatment at Dharmasthala has no bearing on adjudication of the issues in dispute.
43. The counsel for the accused has relied on the decision of Hon'ble Supreme Court in the case of M.S.Narayana Memon Alias Mani Vs State of Kerala & Another - AIR 2006 SUPREME Court 3366 wherein at para 53 as held as follows:-
53. In Kali Ram V. State of Himachal Pradesh (1973) 2 SCC 808 Khanna J., speaking for the 3 Judge Bench, held:
"....... One of the cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal"
(emphasis supplied) In the case on hand the complainant has clearly shown the issuance of alleged cheques at Ex.P.1 to P.3 by accused No.1 and 2. Also has shown that the said cheques have been dishonoured. Notice has also been issued intimating the dishonour and demanding the cheque amount within 15 days from the date of its receipt thereby complying all the mandatory requirements of Section 138 of N.I.Act thereby shifting the burden to rebut the statutory presumption U/s.139 of N.I.Act. But as discussed earlier, the accused have failed to rebut the presumption available to the complainant. Therefore, the above decision relied upon by the counsel for the accused is not helpful for his defence.
44. The counsel for the accused, by contending that single case is not maintainable against two accused who have issued two different cheques, has relied on the decision of Hon'ble High Court in the case of Dr.K.G.Ramachandra Gupta Vs. Dr.G.Adinarayana
- ILR 2000 KAR 1570 wherein at para 22 as held as follows:-
Para.22......So in the circumstances, I find that a combined notice issued on behalf of the complainants in two different cases, though the complainants are related to each other as husband and wife in respect of separate cheques issued in their favour, making a demand for payment of the total value of all the three cheques issued in favour of different complainants is not valid. .... ......I, find that the notices issued in both these cases, are defective and they do not satisfy the requirements of a notice to be issued under the provisions of Section 138 proviso to Clause (b) of the Act. Hence, I find that these two complaints are not maintainable and the respondent-acccused is not liable for the offence punishable under Section 138 of the Act, in these two cases.
(emphasis supplied) In the case on hand no such combined legal notice on behalf of two complainants is issued in this case. The facts in the above precedent are different from the facts and circumstances of this case. Therefore the above decision relied upon by the counsel for the accused is not helpful for his defence.
45. The counsel for the accused has relied on the decision of Hon'ble High Court in the case of B.Krishna Reddy Vs. B.K.Somashekara Reddy - 2006(5)Kar.L.J.318 wherein at para 2 as held as follows:-
Para.2. The accused towards payment of credit purchase issued Ex.P.1a cheque of Rs.1,00,000/- Upon presentation, cheque is dishonoured. Statutory notice issued and complaint is filed. It is the contention of the defence, that cheque Ex.P.1 is a materially altered by the complainant. The cheque was issued in respect of SBI account bearing No.4948. PW.1 admits that since the said account was closed, he altered the account number to 7383 in Ex.P.1 and presented to the Bank for encashment. The Bank as per Ex.P.2 returned the cheque with an acknowledgment "referred to the drawer". PW.1 clearly admits he has altered the Bank account number of the cheque. Section 87 of the Negotiable Instruments Act declares that "any material alteration of negotiable instrument renders the same void as against any one who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties". If the endorsee were to make an alteration, the liability of the endorser is discharged.It is mandatory that in order to attract prosecution under Section 138 of the Negotiable Instruments Act there should be any debt or legal liability. In view of admitted material placed on the part of P.W.1, instrument has become void in law. Therefore, no action in law under Section 138 of the Negotiable Instruments Act could lie. The acquittal of the accused is second and proper. The appeal is dismissed.
(emphasis supplied) In the above precedent complainant has clearly admitted that he has altered the Bank account number of the cheque which amounts a material alteration and therefore the Hon'ble High Court has held that the instrument has become void. However, in the case on hand no doubt the cheque at Ex.P.1 has been returned dishonoured vide bank endorsement dated 02.11.2018 for the reason "Cheque with alteration cannot be processed in cheque truncation clearing system". However, nothing has been elicited in the cross-examination of PW- 1 to the effect that he has altered the cheque at Ex.P.1. However, the amount mentioned in wordings synchronise with the amount mentioned in figures. Further when the accused have failed to substantiate their defence that the complainant has stolen the disputed cheques, the defence that the complainant has materially altered the cheque finds no substantiation. Therefore the decision relied upon by the counsel for the accused is not helpful for his defence.
46. Both parties have also relied on the other decisions cited supra. I have gone through the decisions and I humbly opine that the same are either reiteration of the principles discussed or are not applicable to the facts of this case.
47. Point No.2: The punishment prescribed for the offense U/s.138 of Negotiable Instruments Act is imprisonment for a period which may extend to two years or with fine. In the case on hand the total amount covered under the said three cheques is Rs.1,55,19,740/-. Considering the facts and circumstances of this case, nature, year of the transaction, date of issuance of the cheques I.e, 10.08.2018, nature of the instrument involved, cost of litigation and the rate of interest proposed by Hon'ble Supreme Court in 2012 (1) SCC 260 (R.Vijayan Vs Baby), this court is of the considered view that it is just and desirable to impose fine of Rs.2,45,00,000/- and out of the said amount, it seems to be proper to award a sum of Rs.2,35,00,000/- as compensation to the complainant as provided U/s.357(1)(b) of Cr.PC and the remaining sum of Rs.10,000/- shall go to the State. In view of the discussions made while answering Point No.1, I proceed to pass the following.., ORDER In exercise of power vested under section 255(2) of Cr.P.C., I hereby convict the accused no.1 and 2 for the offense punishable under Sec.138 of Negotiable Instruments Act, 1881.
The accused no 1 and 2 are sentenced to pay fine of Rs.2,45,00,000/- (Two crores forty five Lakh only) for the offense punishable U/s.138 of Negotiable Instruments Act, 1881. In default of payment of fine, the accused no 1 and 2 shall under go simple imprisonment for a period of six months.
In exercise of powers vested under section 357(1)(b) of Cr.P.C., out of fine amount a sum of Rs.2,35,00,000/- (Two crores Thirty five Lakh only) is ordered to be paid to the complainant as compensation and the remaining Rs.10,000/-
(Ten Thousand only) shall go to the State.
The bail bond of both the accused stands canceled. The cash security deposited by both the accused is ordered to be continued till expiry of the appeal period.
Free copy of the judgment shall be supplied to both the accused forthwith.
(Dictated to the stenographer, transcribed thereof, computerized and print out taken by him is verified, corrected and then pronounced by me in open court on this the 19th day of February, 2024) Digitally signed by ONKARMURTHY K ONKARMURTHY M KM Date: 2024.02.19 (OONKAR MURTHY K.M) 18:17:08 +0530 XIV ADDL. C.M.M., BENGALURU ANNEXURE List of witnesses examined by complainant:
PW.1 : Sri. B.N. Sudhakar Reddy List of Documents marked by complainant:
Ex.P1 to P3 : Three Cheques
Ex.P4 to P6 : Bank endorsements
Ex.P7 : Legal Notice
Ex.P8 : Postal receipts
Ex.P9 & P10 : Postal covers
Ex.P11 : Certified Copy of
Sale Agreement dtd.10.11.2014
Ex.P12 : Certified Copy of Compromise
Petition in O.S.No.1416/2016
Ex.P13 : Certified Copy of Order Sheet
in O.S.No.1416/2016
Ex.P14 : Certified Copy of Written
Statement in O.S.No.1416/2016
Ex.P15 : Certified Copy of Sale Deed
Dtd.30.04.2015
Ex.P16 : Certified Copy of Agreement of
Sale Dtd.5.7.2016
Ex.P17 : Certified Copy of Cancellation
of Agreement of Sale
Dtd.24.07.2017
Ex.P18 : Certified Copy of Agreement of
Sale with Dtd.16.03.2017
Ex.P19 : Certified Copy of Absolute Sale
Deed Dtd.15.04.2017
Ex.P20 : Certified Copy of RTCs
Ex.P21 : Bank statement
List of Witnesses examined by defence:
DW.1 : Sri. Munirajappa D.M DW.2 : Smt. Jayamma
List of Documents marked by defence:
Ex.D1 : Complaint dtd.3.4.2018
Ex.D2 : Certified copy of written statement
in O.S. No.1416/2016
Ex.D3 : Hand Loan Agreement dtd.31.5.2018
Ex.D4 to D12 : Copies of RTCs
Ex.D13 : Discharge Bill
Ex.D14 : Discharge Summary
Ex.D15 : Copy of RTC
Ex.D16 : Certified Copy of Agreement of Sale
Dtd.16.10.2014
Ex.D17 & D18 : Certified Copies of Absolute Sale
Deed Dtd.1.6.2018
Ex.D19 : Certified Copy of Plaint in O.S.
No.1047/2018
Ex.D20 : Certified Copy of Orders in O.S.
No.1047/2018 Dtd.05.10.2018
Ex.P21 : Certified Copy of Order Sheet
in O.S.No.1047/2018
Ex.D22 : Certified Copy of withdrawal memo
Ex.D23 : Certified Copy of complaint
dtd.3.9.2018
Ex.D24 : Certified Copy of F.I.R
Ex.D25 : Police Endorsement dtd.12.5.2019
Ex.D26 : Police Endorsement dtd.27.2.2020
Ex.D27 : Police notice dtd.4.9.2018
Ex.D28 : Letter dtd.31.10.2018
Digitally signed by
ONKARMURTHY
ONKARMURTHY KM
KM
(OONKAR MURTHY K.M)
Date: 2024.02.19
18:16:57 +0530
XIV ADDL. C.M.M.,
BENGALURU