Bangalore District Court
Sri.Lingareddy.K. S/O Krishnappa vs Sheela. N. Reddy on 1 August, 2018
IN THE COURT OF LVII ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL UNIT, BENGALURU
-: PRESENT :-
PADMA PRASAD, BA (Law), LLB.
LVII ADDL. CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED THIS THE 1ST DAY OF AUGUST, 2018
C.C.No.52436/2013
COMPLAINANT : Sri.Lingareddy.K. S/o Krishnappa
C/o Gajendrasingh.
Aged about 33 year
No.82, 8th Main,
Opp: Nirmala Medical,
Muthyala Ngara,
Bangalore - 54.
.Vs.
ACCUSED : Sheela. N. Reddy
W/o Rampriya Reddy,
#. 68, 3rd crass,
Kaveri Nagar,
Muregesh playa,
Bangalore - 560017.
****
JUDGMENT
The complainant filed this complaint against the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
2 C.C.No.52436-20132. The complaint case in nutshell is that accused and complainant were running the Zenith Academy of Commerce and Science i.e., the Tutorial at Malleshpalya in the partnership. After some time there was a serious dispute between the complainant and accused hence, the complainant came out from the said partnership. Thereafter on 23.09.2012 there was a settlement between the complainant and accused and in the settlement, the accused agreed to pay Rs.5,00,000/- to the complainant and paid Rs.3,00,000/- and in respect of remaining Rs.2,00,000/-, she has issued cheques. Further, the complainant claims that as per final settlement, the accused has agreed to pay remaining balance amount of Rs.2,00,000/- in favour of the complainant on 23.09.2012 and issued a cheque bearing No.949658 dtd:10.10.2012 for Rs.1,00,000/- and another cheque bearing No.949660 dtd:25.01.2013 for Rs.85,000/- and agreed to pay Rs.15,000/- in cash on 31.12.2012. When the complainant presented the cheque bearing No.949660 dtd:25.01.2013 for encashment, that has been returned with bank memo dtd:09.03.2013 stating payment stopped by the drawer. The complainant caused a legal notice to the accused calling upon her to pay the cheque amount on 20.03.2013. The said notice duly served to the accused on 30.03.2013. This accused instead of complying with the notice has given untenable reply. Hence, filed the complaint.
3 C.C.No.52436-20133. After filing the complaint, sworn statement of the complainant has been recorded and on perusing the materials on record i.e., cheque, bank endorsement, legal notice and documents for having been caused the notice to the accused, the court has been taken the cognizance of offence and issued summons to the accused.
4. In response to the summons, the accused appeared through his counsel and he was on court bail. Plea has been recorded; accused pleaded not guilty and claimed to be tried.
5. To prove the case, the complainant got examined himself as P.W.1 and got marked documents at Ex.P.1 to P.6.
6. On closure of complainant side evidence, the accused statement has been recorded under Sec.313(1)(b) of Cr.P.C., by placing the incriminating evidence appeared against the accused that are denied by the accused.
7. The accused in support of her case examined herself as D.W.1 wherein she admitted the running of Tutorial with partnership with the complainant in the year 2012. the accused claims that the complainant and accused were invested Rs.2,85,000/- each to run the Tutorial. Subsequently the complainant involved into finance business and he was not giving attention to the institution. When the accused asked about the said conduct of complainant, he has abused the accused in filthy words. Thereafter the accused settled the issue with the complainant for Rs.4,00,000/- as he has invested 4 C.C.No.52436-2013 Rs.2,85,000/- and also given teaching for 6 months. The accused claimed that she has paid the said amount of Rs.4,00,000/- in 4 installments. The accused claimed that 1st installment of Rs.1,40,000/- paid on 22.08.2012 through cheque on the same day she has issued 2 more cheques for Rs.80,000/- each to the complainant. The accused also claimed that she has issued 1 post dated cheque for Rs.1,00,000/- dtd:01.10.2012. Thereafter the complainant used to bring rowdy elements to the Tutorial and threatened the accused and the complainant has forcibly taken the accused to the police station wherein by giving the threat the complainant has taken Rs.15,000/- in cash and also taken one cheque for Rs.85,000/- which was not intended to be given by the accused in favour of the complainant. The accused also claims that the Police Inspector has taken her statement forcibly. Hence, she has given stop payment instructions to her banker. In spite of that the complainant presented the cheque twice for encashment; and she has given a reply to the notice and accordingly prayed for dismissal of complaint.
8. On the basis of above, the point for consideration is that;
"Whether the complainant has proved that the accused has committed the offence punishable under Sec.138 of Negotiable Instruments Act?"
9. Heard the arguments and perused the materials on record. On that basis my finding on the above point is in the "Affirmative" for the following;
5 C.C.No.52436-2013REASONS
10. The specific case of the complainant is that accused and complainant were running the Zenith Academy of Commerce and Science i.e., the Tutorial at Malleshpalya in the partnership. After some time there was a serious dispute between the complainant and accused hence, the complainant came out from the said partnership. Thereafter on 23.09.2012 there was a settlement between the complainant and accused and in the settlement, the accused agreed to pay Rs.5,00,000/- to the complainant and paid Rs.3,00,000/- and in respect of remaining Rs.2,00,000/-, she has issued cheques. Further, the complainant claims that as per final settlement, the accused has agreed to pay remaining balance amount of Rs.2,00,000/- in favour of the complainant on 23.09.2012 and issued a cheque bearing No.949658 dtd:10.10.2012 for Rs.1,00,000/- and another cheque bearing No.949660 dtd:25.01.2013 for Rs.85,000/- and agreed to pay Rs.15,000/- in cash on 31.12.2012. When the complainant presented the cheque bearing No.949660 dtd:25.01.2013 for encashment, that has been returned with bank memo dtd:09.03.2013 stating payment stopped by the drawer. The complainant caused a legal notice to the accused calling upon her to pay the cheque amount on 20.03.2013. The said notice duly served to the accused on 30.03.2013. This accused instead of complying with the notice has given untenable reply. Hence, filed the complaint.
6 C.C.No.52436-201311. The accused in support of her case examined herself as D.W.1 wherein she admitted the running of Tutorial with partnership with the complainant in the year 2012. the accused claims that the complainant and accused were invested Rs.2,85,000/- each to run the Tutorial. Subsequently the complainant involved into finance business and he was not giving attention to the institution. When the accused asked about the said conduct of complainant, he has abused the accused in filthy words. Thereafter the accused settled the issue with the complainant for Rs.4,00,000/- as he has invested Rs.2,85,000/- and also given teaching for 6 months. The accused claimed that she has paid the said amount of Rs.4,00,000/- in 4 installments. The accused claimed that 1st installment of Rs.1,40,000/- paid on 22.08.2012 through cheque on the same day she has issued 2 more cheques for Rs.80,000/- each to the complainant. The accused also claimed that she has issued 1 post dated cheque for Rs.1,00,000/- dtd:01.10.2012. Thereafter the complainant used to bring rowdy elements to the Tutorial and threatened the accused and the complainant has forcibly taken the accused to the police station wherein by giving the threat the complainant has taken Rs.15,000/- in cash and also taken one cheque for Rs.85,000/- which was not intended to be given by the accused in favour of the complainant. The accused also claims that the Police Inspector has taken her statement forcibly. Hence, she has given stop payment instructions to her banker. In spite of that the complainant presented the cheque twice for encashment; and 7 C.C.No.52436-2013 she has given a reply to the notice and accordingly prayed for dismissal of complaint.
12. The complainant in support of his case examined himself as P.W.1 by filing evidence affidavit wherein he stated in consonance with the complaint case and the complainant also produced the documents at Ex.P.1 to 6. Ex.P.1 is the cheque, Ex.P.2 is the Bank Return Memo, Ex.P.3 is the O/c of the legal notice, Ex.P.4 is the reply, Ex.P.5 is the bank statement of accused, Ex.P.6 is the settlement letter written by the accused to the Sub-Inspector of Bayyappanahalli Police station. The accused not disputed the issuance of the cheque in favour of the complainant and also not disputed her signature in the cheque though she denied the debt. The cheque has been presented in time for encashment, legal notice has been issued in time and also complaint is in time. Hence, certainly the presumption under Sec.139 of N.I.Act has to be drawn in favour of the complainant that the cheque has been issued by the accused towards the discharge of legally enforceable debt.
13. When the complainant made out a case to draw initial presumption under Sec.139 of N.I.Act, the burden shifts on the accused to prove the contrary or to give rebuttal evidence to the complaint case. It is the specific case of the complainant that Ex.P.1 cheque has been forcibly obtained from her in the police station which was not intended to be given to the complainant from her.
8 C.C.No.52436-2013The said fact has to be proved by the accused as she has taken specific defense in the case.
14. Before proceeding further in the case, it is just and convenient to note the admitted facts. The accused and complainant admitted that they have Tutorial in partnership at Malleshpallya. The complainant and accused also admitted that they have invested the money equally and also admitted that there was a difference of opinion between the complainant and accused in running the said Tutorial. Both the complainant and accused claimed that there was a settlement and this complainant came out of the said partnership. The dispute between the parties is only regarding the quantum of amount to be given to the complainant when he came out from the partnership. The accused claimed that the matter has been settled for Rs.4,00,000/-. Per-contra, the complainant claims that finally the matter has been settled for Rs.5,00,000/-. The difference between the parties is Rs.1,00,000/- and the complainant claimed that regarding the portion of said amount, the accused has issued a cheque for Rs.85,000/- agreeing to pay the remaining amount of Rs.15,000/- in cash. As such, this fact has to be considered and appreciated by the court.
15. The case of the complainant is that when he came out from the partnership, the accused has not paid the agreed amount to be paid to him. As such when he approached the complainant for payment to be paid to him by the accused, this accused has filed a police 9 C.C.No.52436-2013 complaint and in the police station the matter has been settled and this accused has issued the Ex.P.1 cheque in favour of the complainant towards the discharge of amount agreed to be given to the complainant. Per-contra, the accused claimed that even after the receipt of entire amount the complainant started to harass the accused and he was causing nuisance near the Tutorial and the complainant himself forcibly taken the accused to the police station wherein he compelled the accused to issue the cheque. Hence, the issuance of the cheque in the police station is admitted fact. Even the complainant has also admitted that the cheque has been given by the accused before the police station as per Ex.P.6 statement given by the accused to the police.
16. Now, the burden is on the accused to prove that she has been forcibly taken to the police station and wherein under the compulsion or force she has issued the cheque in favour of the complainant. It is well settled principle of law that the police will not call any person to the station for any enquiry unless and until there is a complaint. If the claim of the accused is accepted, then the complainant ought to have filed some complaint before the police. Absolutely there is no material on record to show that this complainant has filed any complaint before the any police station against the accused. Even there is no material on record to show that this accused has been approached the police at any time calling their interference to settle their dispute.
10 C.C.No.52436-201317. It is the specific claim of the complainant that accused herself approached the police and filed a complaint against him. Whether the complaint has been given forcibly or voluntarily. The accused admitted the filing of complaint before the police during her evidence. Inspite of that the accused has not produced the copy of the complaint filed by her to the police. Why the accused has not produced any copy of the complaint before the court is not explained by her. However, she admitted the filing of complaint to the police. The accused / D.W.1 during her cross-examination specifically admitted that she has written a complaint in her own hand writings. The said copy of the complaint is not produced by the accused. The said fact discloses that the accused herself approached the police regarding the dispute between her and the complainant. Why the accused has withheld the said complaint without producing the same to the court is not explained by her. It is also relevant to note that the accused during her cross-examination submitted that she has no objection to produce the copy of the complaint filed by her to the Bayyappanahalli police station. During the course of argument, the complainant has produced the copy of the complaint filed by the accused to the police. It is a summary trial procedure and the court can look into the documents though the documents have not been marked but in the instant case on hand the accused admitted that she herself filed the complaint to the police station and the said complaint is in her own handwriting and she has no objection to produce the copy of said complaint filed by her to the police before 11 C.C.No.52436-2013 the court. As per said complaint, this accused filed a complaint to the police on 23.09.2012 wherein she claimed that the complainant quarreled with her and also claimed that she has paid Rs.3,00,000/- to the complainant when he has come out of the partnership though he has invested Rs.2,85,000/-. It is further claimed by the accused in the said complaint that the complainant demanded the accused to pay Rs.6,50,000/-; as the Tutorial is running under loss, she is not able to pay the said amount. As such the complainant used to come near the Tutorial along his brother and causing a nuisance, hence filed the complaint against the complainant and his brother. The contents of said complaint also admitted by the accused during her cross-examination. Even during the cross-examination the accused admitted that complainant insisted the accused to pay Rs.6,50,000/- in the settlement. It is also the claim of the accused that the accused along with his brother used to come near her Tutorial and causing nuisance. All these claim of the accused was reflected in the said complaint. Therefore, it is clear that it is not the complainant approached the police but it is the accused voluntarily approached the police.
18. The complainant in order to substantiate his claim also relied on the settlement letter written by the accused to the police at Ex.P.6. The said Ex.P.6 is dtd:23.09.2012 and in the said letter the accused admitted that the matter has been settled for Rs.5,00,000/- and the settlement amount is Rs.5,00,000/-. She also claimed that she has already paid Rs.3,00,000/- to the accused in the form of 3 12 C.C.No.52436-2013 cheques and she further admitted that in addition to the earlier payment of Rs.3,00,000/- vide 3 cheques dtd:22.08.2012 she has issued one more cheque for Rs.1,00,000/- dtd:10.10.2012. The encashment of said amount stated in cheque bearing No.944658 dtd:10.10.2012 is not in dispute. Hence, Rs.4,00,000/- has been paid by the accused in favour of the complainant though cheque is admitted and proved fact. The dispute between the parties only regarding the 5th cheque bearing No.949660 dtd:25.01.2013 for Rs.85,000/-. The said cheque has been also issued by the accused herself. In this case the writing in the cheque at Ex.P.1, amount written in the cheque at Ex.P.1 is not in dispute. The entire contents in the cheque at Ex.P.1 has been filled up by the accused is not in dispute. As already stated earlier, this accused claimed that the said cheque has been forcibly obtained by the accused. Per-contra, it is the claim of the complainant that the said cheque has been voluntarily issued by the accused in favour of the complainant towards the discharge of admitted amount towards the settlement.
19. The accused claimed that Ex.P.6 has been forcibly obtained by the police and contents of said document has been dictated by the police. If really the said contents of the document has been dictated by the police, this complainant would have lodged the complaint against the higher authorities of the Bayyappanahalli police or at least she would have filed a complaint before the court at least after the filing of this complaint by the complainant. Till this date this accused has not initiated any legal proceedings either against the 13 C.C.No.52436-2013 complainant or against the Bayyappanahalli Police. It is also relevant to note that the accused claimed that she was doing the PHD in the year 2012. Hence, it is clear that the accused is a highly qualified literate person and she would have initiated proceedings against the police or the complainant if really the Ex.P.6 has been created or taken from her forcibly. It is relevant to note that entire Ex.P.6 is in the hand writings of the accused and she also admitted her signature in the said document. At this juncture, it is relevant to note that the accused claimed that she has issued a stop payment instructions to her banker but when actually she has issued a stop payment instructions to her banker is without any explanation. According to the claim of the accused, the Ex.P.6 letter dtd:23.09.2012 has been obtained forcibly. If it were so, on 23.09.2012 itself the accused has the knowledge that the document has been obtained by the police or the complainant forcibly. If it were so, this complainant ought to have issued the stop payment instructions on the next day itself. When actually the stop payment instructions have been issued is without any explanation.
20. Of course it is true that the cheque has been dishonoured for the reasons of stop payment. When actually stop payment instructions has been issued is without any explanation. The reasons to issue stop payment instructions is also not explained. The accused has not produced the copy of stop payment instructions issued by her. What is the reason assigned by her to issue the stop payment instructions is also not explained. Why the accused has not produced 14 C.C.No.52436-2013 the document regarding stop payment instructions issued to the bank is without any explanation. The accused is fully aware that the cheque has been issued for Rs.85,000/- but it is not the case of accused that she had more than Rs.85,000/- in her bank account so that the cheque would have been honored if there is no stop payment instructions. Hence, it has to be accepted that though there is a stop payment instructions, there is also no sufficient funds in the bank account of accused otherwise the accused would have produced her bank statement to show that there was sufficient bank balance in her bank account and the cheque has been dishonoured only in view of stop payment instruction. Therefore, it is clear that the defence of the accused that the Ex.P.6 has been taken forcibly is an afterthought. The Ex.P.6 is also marked without any objection. The accused is highly qualified literate lady and admitted her signature in the Ex.P.6 and the matter on record also discloses that the accused herself approached the police and not the complainant. Hence, it has to be accepted that the Ex.P.6 has been voluntarily executed by the accused. In this context, it is useful to refer the decision reported in; ILR 2004 Kar 183 in a case of Narbada Bai .Vs. Birendrakumar Jaiswal and another held that;
"Evidence Act Sec.17, 61 and 62. Proof of contents of document - mere production and marking of document as exhibit not enough - execution has to be proved by admissible evidence. But where document produced are admitted by the signatories there to 15 C.C.No.52436-2013 and then marked as exhibits - held - no further burden to lead additional evidence to prove writing and its execution survives".
21. Hence, it has to be accepted that the Ex.P.6 has been voluntarily executed by the accused. As already stated earlier, there is no material on record to show that the matter has been settled for Rs.4,00,000/- as claimed by the accused. Per-contra, the material on record sufficiently discloses that the matter has been settled for Rs.5,00,000/-. It is also relevant to note that even according to the admission given by the accused, the complainant has insisted the accused for payment of Rs.6,50,000/- towards the full and final settlement. Therefore, this claim of the complainant also substantiate the claim of the complainant that the matter has been settled for Rs.5,00,000/- in the police station and in view of the said settlement this accused has issued 2 cheques one cheque is for Rs.1,00,000/- dtd:10.10.2012 and another cheque dtd:25.01.2013 for Rs.85,000/-.
22. It is the case of the accused that the case is not maintainable as the cheque has been presented twice for encashment though the payment has been stopped by the accused. It is true that the cheque has been bounced for the reasons payment stopped by the drawer. It is also true that the cheque has been presented twice; on the basis of this, the counsel for the accused claims that the complaint is not maintainable in view of the decision reported in;
16 C.C.No.52436-20132013 (1) DCR 237. It is true that in the said case also the cheque has been presented twice and in the said judgment the Hon'ble Delhi High Court observed that once the cheque has been dishonoured for the reason payment stopped by the drawer, there is no necessity to present the cheque again and the Hon'ble Delhi High Court considered the said fact is one of the suspicious circumstances to doubt the complaint case and the case is not decided or the accused has not been acquitted only on the ground that the cheque has been presented twice. The said judgment sufficiently discloses that the complainant in the said case has failed to prove the debt as claimed by him but in the instant case on hand the complainant has proved that the matter has been settled for Rs.5,00,000/-. It is also admitted by the accused at Ex.P.6 that she has issued the cheque for Rs.85,000/- as the matter has been settled in the police station. Hence, the accused herself admitted her liability in the police station and admitted the issuance of the said cheque. In view of these cheques the principle laid down in the aforesaid case is certainly not applicable to the facts of this case.
23. Therefore, for the aforesaid reasons it is clear that the accused has failed to make out the probable defense in the case. When the accused has failed to make out probable defense and issuance of the cheque along with its contents and signature of accused not in dispute, the court has to accept that the c has specifically proved that the accused has issued Ex.P.1 cheque towards the discharge of 17 C.C.No.52436-2013 legally enforceable debt. Hence this court is of the opinion that the complainant has proved his case beyond reasonable doubt.
24. In this case, the complainant has claimed compensation. As per Section 357 of Criminal Procedure Code and as per the ruling reported in; 2001 Cri.L.J. 950 (SC), (Pankajbai Nagibai Patel V/s State of Gujarath), the court can award compensation and there were no limits for the same. As such, the court has to consider how much compensation could be awarded in this case. As per Section 80 of Negotiable Instruments Act, the interest at 18% P.A. can be granted when there is no agreed rate of interest. As per the proved facts of the case, the accused has issued cheque towards the legally enforceable debt, the accused has issued a cheque dated 25.01.2013 as per Ex.P.1 and thus, the accused has to pay interest on the cheque amount from the date of cheque and so, the accused has to pay interest for about 5 years 6 months till this date. If the interest is calculated at 18% P.A. to the cheque amount for the above period, certainly, the complainant is entitled for the suitable compensation to the cheque amount as per Section 80 of Negotiable Instruments Act. The cheques amount in this case is Rs.85,000/- and if the interest is calculated for 66 months, the accused shall pay the interest to the complainant at 18% P.A. that amounts to Rs.84,150/-. The case is pending nearly about 5 years 6 months as such if the cost of Rs.2,000/- is added to the compensation, it will comes to Rs.1,71,150/- (Cheque amount is Rs.8,50,000/-, interest is Rs.84,150/- and cost Rs.2,000/-). Hence, this court is of the humble 18 C.C.No.52436-2013 opinion that in all the complainant is entitled for compensation amount of Rs.1,71,150/-. Further as per the ruling reported in 2000 Cri.L.J 1793(b) SC - (State of Karnataka V/s Krishnappa) wherein it is held that while imposing sentence, the courts are expected to properly operate sentence system, it should be impose such sentence for code offence which serve as detention of commission of like offences by others - Socio economic status, prestige, race, caste or creed of accused or victim are irrelevant considerations in sentencing policy. Hence, in this case also, if the accused is punished with simple imprisonment for one year and pay compensation to the complainant. Anyhow the object of Sec.138 of N.I.Act is to have accountability in the business transaction and the intention of the complainant is only to get his money back. The complainant certainly not interested in sentencing the accused for any imprisonment. Further, the offence is punishable with imprisonment or fine. Anyhow the object of Sec.138 of N.I.Act is to have accountability in the business transaction and the intention of the complainant is only to get his money back. The complainant certainly not interested in sentencing the accused for any imprisonment. Further, the offence is punishable with imprisonment or fine. Hence, in this case after awarding the compensation certainly imposing of fine to the accused is sufficient sentence.
25. As per the ruling reported in 2002 Cri.L.L. 1003, SC (Suginthi Suresh Kumar V/s Jagadishan). Where in it is held at page no.1005, at para 5 that:
19 C.C.No.52436-2013"In the said decision this court reminded all concerned that it is well to remember the emphasis laid on the need for making liberal use of Section 357(3) of the Code. This was observed by reference to a decisions of this Court in 1988 (4) SCC 551 Hari Singh v. Sukhbir Singh. In the said decision this court held as follows:
"The quantum of compensation may be determined by taking into account the nature of crime, the justness of the claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also very depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by installments, may also be given. The court may enforce the order by imposing sentence in default."
26. In view of the aforesaid precedent of Hon'ble Apex Court, if the accused is ordered to further imprisonment of a year in default to pay the compensation will make the ends of justice. Accordingly I answer the above point in "Affirmative". In the result, following;
ORDER Acting under Section 255(2) of Cr.P.C., the accused is hereby convicted for the offence punishable under Sec.138 of N.I.Act and sentenced him to pay a fine of Rs.5,000/-. In default to pay the fine amount the accused shall undergo simple imprisonment for 3 months.
20 C.C.No.52436-2013Acting under Section 357 of Cr.P.C., the compensation is awarded and the accused shall pay compensation of Rs.1,71,150/- to the complainant. In default to pay compensation, the accused shall undergo simple imprisonment of a period of 1 year.
Office to furnish free copy of this judgment to the accused forthwith.
(Dictated to the Stenographer, transcript thereof is corrected and then pronounced by me in the open court on this the 1st day of August, 2018) (PADMA PRASAD), LVII ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Sri.Lingareddy K.
2. Documents marked on behalf of complainant:
Ex.P.1 : Cheque
Ex.P.1(a) : Signature of the accused
Ex.P.2 : Bank return memo
Ex.P.3 : O/c of the legal notice
Ex.P.4 : Reply notice
Ex.P.5 : True copy of bank statement
Ex.P.6 : Letter written by the accused to the police
Ex.P.6(a) : Typed copy of Ex.P.6
21 C.C.No.52436-2013
3. Witnesses examined on behalf of Accused:
D.W.1 : Smt.Sheela N. Reddy
4. Documents marked on behalf of Accused:
- Nil -
(PADMA PRASAD)
LVII ACMM, BENGALURU.