Bangalore District Court
Sri.T.Sudhakar Reddy vs Sri. Rajendra Singh Rathod on 1 October, 2019
1 C.C.No.10637/2014 J
THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated:- This the 1st day of October, 2019
Present: Sri.S.B.HANDRAL, B.Sc., L.L.B(SPL).,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.10637/2014
Complainant : Sri.T.Sudhakar Reddy,
S/o. Krishnareddy,
Proprietor of
M/s. Sri Sai Constructions,
No.180, 3rd Cross,
4th Block, 4th Main Road,
BSK III Stage,
Bengaluru - 560 085.
(Rep. by Sri.K. Venkataram
Reddy., Adv.,)
- Vs -
Accused : Sri. Rajendra Singh Rathod,
S/o. Bang Singh,
C/o Hi-Fashions,
No.7, Basement,
Rajath Complex,
A.M.Lane, Chickpet Cross,
Bengaluru -560 053.
(By Sri. Gopal Singh, Adv.,)
2 C.C.No.10637/2014 J
Case instituted : 20.3.2014
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 1.10.2019
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, he is the proprietor of M/s. Sri.Sai Constructions and Accused is known to him since several years and he is doing business in Chickpet and Rajajinagar, having acquaintance, the Accused approached him and requested to lend a hand loan of Rs.40 Lakhs in order to meet his immediate business and financial commitments, heading the request of the accused he has mobilized the amount and paid a sum of Rs.40 Lakhs to the Accused by way of cheque bearing No.156659 dated:-
19.11.2012 for Rs.40 Lakhs drawn on Canara Bank, Banashankari III stage, Bengaluru. The complainant 3 C.C.No.10637/2014 J further stated that, the accused has acknowledged the receipt of the said amount and promised to repay the said loan amount within six months from the date of borrowal and after expiry of six months he requested the accused to repay the hand loan on several times but the accused caused delay in repayment of the same on one pretext and other, finally in order to discharge the loan amount the accused issued two cheques in his favour bearing No.000005 dated: 23.10.2013 for sum of Rs.20 Lakhs and cheque beraing No.000006 dated:
28.10.2013 for sum of Rs.20 Lakhs both are drawn on Laxmivilas Bank, No.102, 110, Avenue Plaza, Bengaluru by assuring that, he will maintain sufficient balance in his account and said cheques would be honoured on its presentation. It is further contended that, as per the request of the Accused he presented the said cheques for encashment through his banker i.e. Canara Bank, Banashankari III Stage branch, Bengaluru but the said cheques returned dishonoured with a shara "Account Closed" vide endorsement dated:-22.1.2014 and thereafter he apprised the dishonour of the cheque to the accused but he did not respond properly and not repaid the 4 C.C.No.10637/2014 J cheque amount and thereafter he got issued legal notice dated: 7.2.2014 through RPAD calling upon the Accused to pay the cheques amount of Rs.40 Lakhs within period of 15 days from the date of receipt of the notice and the said notice was served on the accused on 13.2.2014 despite of it the Accused neither replied nor paid the dishonoured cheques amount to him. Hence he has filed this present complainant against the accused for the offence punishable U/s.138 of Negotiable Instruments Act.
3. Before issuing process against the accused, the Complainant has filed his affidavit-in-lieu of his sworn statement along with original documents, in which, he has reiterated the averments of the complaint.
4. Prima-facie case has been made out against the accused and summons was issued against the accused in turn he has appeared before the court and got enlarged on bail and the substance of the accusation has been read over to him, to which he pleaded not guilty and claims to be tried.
5 C.C.No.10637/2014 J5. Thereafter the complainant himself examined as PW.1 by filing affidavit in lieu of examination in chief and in support of his oral evidence, has relied upon the documentary evidence as per Ex.P.1 to P.10 i.e, the Original Cheques dated:-23.10.2013 and 28.10.2013 as per Ex.P.1 and P.2 respectively, the signatures on the said cheques identified by P.W.1 as those of the accused as per Ex.P.1(a) and P.2(a) respectively, the Bank Memos a per Ex.P.3 and P.4 respectively , the office copy of the Legal Notice as per Ex.P.5, the Postal Receipt as per Ex P.6, Postal Acknowledgement as per Ex.P.7, the complaint marked as Ex.P.8 signature of the complainant as per Ex.P.8(a). Thereafter has produced Bank statement marked as per Ex.P.9 and certified copy of the "B" report filed in Crime No.6/2013 marked as Ex.P.10. The learned counsel for the complainant during the course of cross-examination of Accused confronted the Aadhar card and Ration card of one D.Srinivasa Reddy, the copies of the said Aadhar card and ration card are marked as Ex.N.1 and N.2 respectively.
6. Thereafter, the statement of the accused as 6 C.C.No.10637/2014 J required under Sec.313 of the Cr.P.C. has been recorded. He has denied the incriminating evidence appearing against him and has chosen to lead his rebuttal evidence subsequently he has led his evidence.
7. The Accused himself examined as DW.1 and he has filed his affidavit in lieu of examination- in- chief. The Accused has also produced certified copies of the private complaint filed in PCR No.17757/2012, FIR in Crime No.6/2013 marked as per Ex.D.1 and D.2 respectively. The Accused has also got examined the manager of the Canara Bank, Banashankari III Stage, Bengaluru as DW.2 and True copy of the cheque bearing No.156659 marked as per Ex.C.1 through DW.2 and closed his side.
8. Heard the arguments of both learned counsels for the complainant and the accused and perused the written argument submitted by the learned counsel for the accused and materials on record produced by the both accused and complainant.
7 C.C.No.10637/2014 J9. On the basis of complaint, evidence of complainant and documents and having heard the arguments of both learned counsels for the complainant and the accused, the following points that are arise for consideration are:-
1. Whether the complainant proves that the accused has issued two cheques i.e. cheque for Rs.20 Lakhs, bearing No.000005 dated:- 23.10.2013 and another cheque for Rs.20 Lakhs, bearing No.000006 dated:-
28.10.2013 drawn on Lakshmi Vilas Bank, Avenue Plaza, Bengaluru to discharge legally recoverable debt to the complainant and when the complainant has presented a cheque for encashment through his banker but the said cheque has been dishonoured for the reasons "Account Closed" on 22.1.2014 and the complainant issued legal notice to the accused on 7.2.2014 and inspite of it the accused has not paid the cheque amount within prescribed period there by the accused has committed an offence U/s.138 of the Negotiable instruments Act?
2. What Order?8 C.C.No.10637/2014 J
10. The above points are answered as under:
Point No.1: In the Affirmative Point No.2:As per final order for the following:
REASONS
11. Point No.1 : Before appreciation of the facts and oral and documentary evidence of the present case, it is relevant to mention that under criminal jurisprudence prosecution is required to establish guilt of the Accused beyond all reasonable doubts however, a proceedings U/s.138 of N.I.Act is quasi criminal in nature. In these proceedings proof beyond all reasonable doubt is subject to presumptions as envisaged U/s.118, 139 and 136 of N.I.Act. An essential ingredient of Sec. 138 of N.I.Act is that, whether a person issues cheque to be encashed and the cheque so issued is towards payment of debt or liability and if it is returned as unpaid for want of funds, then the person issuing such cheque shall be deemed to have been committed an offence. The offence U/s.138 of N.I. Act pre-supposes conditions for prosecution of an offence which are as under:
9 C.C.No.10637/2014 J1. Existence of legally enforceable debt or liability and issuance of cheque in discharge of said debt or liability;
1. Cheque shall be presented for payment within specified time i.e., from the date of issue before expiry of its validity.
3. The holder shall issue a notice demanding payment in writing to the drawer within one month from the date of receipt of information of the bounced cheque and 4 The drawer inspite of demand notice fails to make payment within 15 days from the date of receipt of such notice.
If the above said conditions are satisfied by holder in due course gets cause action to launch prosecution against the drawer in respect of bounced cheque and as per Sec.142(b) of the N.I. Act, the complaint has to be filed within one month from the date on which cause of action arise to file complaint.
12. It is also one of the essential ingredient of Sec. 138 of N.I.Act that, a cheque in question must have been issued towards legally recoverable debt or 10 C.C.No.10637/2014 J liability. Sec. 118 and 139 of N.I.Act envisages certain presumptions i.e.,U/s.118 a presumption shall be raised regarding 'consideration' 'date' 'transfer' 'endorsement' and holder in course of Negotiable Instrument. Even Sec.139 of the Act are rebuttable presumptions shall be raised that, the cheque in question was issued regarding discharge of a legally recoverable or enforceable debt and these presumptions are mandatory presumptions that are required to be raised in cases of negotiable instrument, but the said presumptions are not conclusive and or rebuttable one, this proportion of law has been laid down by the Hon'ble Apex Court of India and Hon'ble High Court of Karnataka in catena of decisions.
13. In the present case the complainant got examined as PW.1 by filing his affidavit evidence wherein the complainant has reiterated the entire averments of the complaint, the complainant/PW.1 in his evidence testified regarding the lending of hand loan of Rs.40 Lakhs to the accused by way of cheque bearing No.156659 dated: 19.11.2012 for sum of Rs.40 Lakhs drawn on Canara Bank, 11 C.C.No.10637/2014 J Banashankari III Stage, Bengaluru and accused in turn agreed to repay the said amount within six months from the date of borrowal. The PW.1 further testified that, after expiry of six months he requested the accused to repay the loan amount but the accused went on postponing the same on one pretext or other, finally has issued two cheques bearing No. 000005 dated: 23.10.2013 for sum of Rs.20 Lakhs and another cheque bearing No. 000006 dated:
28.10.2013 for sum of Rs.20 Lakhs both are drawn on Lakshmi Vilas Bank, No.102, 110, Avenue Plaza, Bengaluru by assuring that the said cheque will be honored on its due presentation. The PW.1 further testified that, he has presented the cheques issued by the accused through his banker for encashment and same were returned dishonoured with an endorsement of "Account closed" vide endorsement dated: 22.1.2014 and thereafter he got issued legal notice dated: 7.2.2014 through RPAD and same was served on the accused on 13.2.2014 but the Accused neither replied the notice nor paid the dishonoured cheques amount to him.
14. In support of his oral evidence he has 12 C.C.No.10637/2014 J produced the Original Cheque dated:-23.10.2013 and 28.10.2013 as per Ex.P.1 and P.2 respectively, the signatures on the said cheques identified by P.W.1 as those of the accused as per Ex.P.1(a) and P.2(a) respectively, the Bank Memos a per Ex.P.3 and P.4 respectively , the office copy of the Legal Notice as per Ex.P.5, the Postal Receipt as per Ex. P.6, Postal Acknowledgement as per Ex.P.7, the complaint marked as Ex.P.8 signature of the complainant as per Ex.P.8(a). Thereafter has produced Bank statement marked as per Ex.P.9 and certified copy of the "B" report filed in Crime No.6/2013 marked as Ex.P.10. The learned counsel for the complainant during the course of cross- examination of Accused confronted the Aadhar card and Ration card of one Sri.D.Srinivasa Reddy, the copies of the said Aadhar card and ration card are marked as Ex.N.1 and N.2 respectively.
15. The Accused in this case has not denied his signatures on the cheques i.e. Ex.P.1 and P.2 and also cheques belongs to his account, but he contended that, cheques in question were not issued to the complainant towards discharge of loan as 13 C.C.No.10637/2014 J alleged by the complainant, however the Accused has not disputed the cheques in question and his signatures i.e. Ex.P.1 and P.2 and P.1(a), P.2(a), in such circumstances it can be held that, the complainant has proved that the cheques in question were belongs to the account of Accused and they bears his signatures i.e. at Ex.P.1(a) and P.2(a). It is also seen from Ex.P.1 to P.8 that, the cheques in question were presented within the prescribed period from the date of their issuance. It is a matter on record that, the complainant has been proved that, the cheques in question were presented for encashment and dishonoured for the reason of "Account closed". The legal notice issued by the complainant was also within the 30 days from the date of receipt of intimation of dishonour of cheques and the said notice was also served on the accused, even after receipt of the legal notice, the Accused did not repay the cheques amount.
16. The accused during the course of cross- examination of the complainant has specifically denied the service of notice on him by contending that, the legal notice issued by the complainant to 14 C.C.No.10637/2014 J the wrong address of the accused and his father's name is not Bang Singh and he is carrying business in the address shown by the complainant. In order to prove the service of notice, the complainant has produced copy of the legal notice and postal receipt and postal acknowledgement which are at Ex.P.5 to P.7 respectively which discloses that, the notice issued by the complainant was received by putting signature on the postal acknowledgement. It is true that, the learned counsel for the accused during the cross-examination has disputed that, the name of the father of the accused is not Bang Singh and the accused is not doing his business in the address shown in the cause title of the complaint as "C/o. Hi Fashions" but the complainant in his cross- examination has specifically stated that, he had visited the address of the accused shown in the complaint at the time of collecting the cheques. Though the learned counsel for the accused denied the name of the father of the accused shown by the complainant in the legal notice but has not denied the signature appearing on the Ex.P.7 i.e. the postal acknowledgement is not of his signature, hence it goes to show that, the Accused has admitted his 15 C.C.No.10637/2014 J signature appearing on Ex.P.7 i.e. postal acknowledgement, in such circumstances it can be presumed that, the legal notice issued by the complainant received by the accused. Apart from that, though the Accused has taken such a defence that notice was not served but has not disputed his name in notice and address mentioned on the postal receipt and acknowledgement as it is not his name and address and he is not residing in the said address and even has not produced any document to show that, as on the date of service of notice he was not residing in the said address but he was residing in some other address. The accused in his cross- examination has admitted that, his address shown in the complaint and the one shown in his affidavit are one and the same and also admitted that, he has shown the same of his father in his affidavit as Bagh Singh, hence it goes to show that, the accused has clearly admitted his address shown by the complainant in his complaint as well as in the postal acknowledgement and the address shown by the accused in his affidavit evidence are one and the same. Therefore in view of the admitted fact by the accused it can be presumed that the address of the 16 C.C.No.10637/2014 J Accused shown by the complainant in the legal notice, postal receipt and acknowledgement is the correct address of the Accused. Hence when a notice was sent by a registered post with acknowledgement to a correct address, in such circumstances the service of notice presumed has duly served on the Accused. It is also admitted by the Accused in his cross-examination that, he has not taken any legal action against the postal authorities in respect of the alleged creation of his signature on Ex.P.7 and even the Accused has also not examined the postal authorities to prove that, the signature appearing on Ex.P.7 is not of his signature and it was created, in such circumstances it can be held that, the legal notice issued by the complainant was to the correct address of the Accused and same has been served or otherwise it can be presumed U/s.27 of the General Clauses Act that, where notice is sent to the correct address, the same shall be presumed to have been duly served. In this regard, it is relevant here to refer the decision reported in 2008(4) Civil code cases 027 (SC) "M/s. Indo Automobiles Vs., M/s. Jai Durga Enterprises and others." wherein the Hon'ble Apex Court held that, notice sent by 17 C.C.No.10637/2014 J registered post with acknowledgement to a correct address-service of notice has to be presumed. Therefore, even for sake of discussion if it is assumed that, the Accused has not admitted his signature on postal acknowledgement i.e. Ex.P.7 but he has admitted that, the notice sent by the complainant i.e. address mentioned at Ex.P.5 is of his correct address, therefore in view of the principles of law in the above decision, it can safely be held that, the service of notice on accused is presumed to be served on him since in this case also the complainant has issued notice to the accused to his correct address through registered post and the said notice was served on the accused, hence, the notice issued by the complainant through registered post is held to be proper service and for the above said reasons, the defence taken by the learned counsel for the accused that, the notice issued by the complainant was not served on the accused and the complainant has not complied the mandatory requirements of Sec.138(b) of N.I.Act and complaint is not maintainable cannot be acceptable and not sustainable.
18 C.C.No.10637/2014 J17. Hence from careful perusal of the oral and documentary evidence of the complainant and Ex.P.1 to P.8 makes it clear that, the complainant has proved that, the cheques in question i.e. Ex.P.1 and P.2 were issued by the accused and the signatures thereon are those of the accused i.e. Ex.P.1(a) and P.2(a), thereafter the complainant got issued legal notice to the accused and the said notice was served on him, even after service of the said notice, the Accused has not given any reply or complied with the terms of the notice, therefore the complainant has discharged his initial burden casted upon him and a presumption can be drawn in favour of the complainant as available U/s.118 and 139 of N.I Act. Consequently it is for the Accused to rebut the said presumptions and to show that, the cheques in question were not issued either to the complainant or towards any legally recoverable debt or liability by producing cogent and convincible evidence but not mere suggestions or even plausible explanations.
18. In the present case, there is no dispute with regard to acquaintance of the complainant and 19 C.C.No.10637/2014 J accused, but the accused has taken specific defence that, he has not received any amount from the complainant and also taken defence that, his brother by name Mr. Premsingh had a business in the name and style of M/s. Anmol Creations at Chickpet Bengaluru and he had no business of his own and he had his cheque book and other belongings stored and stock in the shop of his brother, one Srinivas Reddy is a money lender who lends money on very high and exorbitant rate of interest and his brother had borrowed a sum of Rs.3 Lakhs from said Srinivasa Reddy and there was dispute between his brother and Srinivasa Reddy since as there is a delay in payment of installments of loan, at that time i.e. beginning June 2012 the said Srinivasa Reddy had used criminal force and extracted the collection money from the shop of his brother and also taken the cheques pertaining to his brother's account and also that of his account which was kept in the drawer of the shop and a complaint was also lodged before the Chickpet police but they did not taken any action , hence a private complaint in PCR No. 17757/2012 was filed before the court and the said cheques have been misused by making 20 C.C.No.10637/2014 J fillings and are the subject matter of this case. Hence in this back ground now the oral and documentary evidence adduced by the complainant and accused has to be examined.
19. The learned counsel for the accused has cross examined the complainant in length but nothing has been elicited either to discredit or disbelieve the evidence of the complainant, instead of eliciting anything the Accused rather concentrated on issuing of cheque bearing No.156659 dated:
19.11.2012 by the complainant was not an account payee cheque or crossed cheque, it was issued an open cheque, but the complainant has specifically stated in the cross-examination that at the time of issuance of the said cheque he had enquired with the accused about the existence or otherwise of his account and the accused had pleaded urgency, hence he issued an open cheque to the accused The complainant has also denied a suggestion that, he never issued the said cheque to the accused and the accused has never encashed it. The complainant has also stated in his cross-examination that, he has lent Rs.40 Lakhs to the accused by way of cheque on 21 C.C.No.10637/2014 J 19.11.2012 and it was not a crossed cheque and he has verified in his account that is in the Canara Bank, Banashankari III stage branch, Bengaluru that, the cheque for Rs.40 Lakhs having been encashed.
20. The complainant at the earliest point of time has not produced his statement of bank account, subsequently has produced the statement of his bank account which is marked as Ex.P.9. On careful perusal of the Ex.P.9 makes it clear that, on 19.11.2012 an amount of Rs.40 Lakhs has been paid to one Rajendra Singh i.e. the accused in the present case through cheque bearing No.156659 and the said cheque has been encashed from the account of the complainant. The learned counsel for the accused during the course of cross-examination has not disputed the encashment of Rs.40 Lakhs by the accused through cheque bearing No.156659 dated:
19.11.2012 but he is disputing only that, any amount above a particular limits needs to be paid through a crossed cheque, but if the amount of Rs.40 Lakhs is paid through an open cheque it cannot be held that, such a transaction would itself 22 C.C.No.10637/2014 J invalidate, therefore the defence taken by the Accused that, the amount of Rs.40 Lakhs was alleged to be paid through an open cheque is not permissible under the law cannot be acceptable one or it cannot be held that, the complainant has not at all paid the amount to the accused.
21. It is suggested by the learned counsel for the accused during the course of cross-examination of PW.1 that, one Srinivasa Reddy is father-in-law of the complainant and he is doing money lending business and had lent a loan of Rs.3 Lakhs to the brother of the Accused by name Premsingh and though he has paid the considerable amount with interest but the father-in-law of the complainant and his followers had gone to the shop of Premsingh in Chickpet and raised dispute in respect of the transactions on 6.4.2012 and have forcibly entered to the shop of Premsingh and taken away the cheques of said Premsingh and accused, but the said suggestions have been stoutly denied by the complainant. It is also denied by the complainant a suggestion made to him that, he has misused the cheques in dispute which his father-in-law Srinivasa 23 C.C.No.10637/2014 J Reddy had taken away from the shop of Premsingh and filed this false case against the Accused. Hence on perusal of the entire cross-examination of the complainant nothing has been elicited to disbelieve or discredit his evidence and to accept the defence of the Accused that, the cheques in question were taken away by the father-in-law of the complainant i.e. Srinivasa Reddy in respect of the alleged transaction between the brother of the Accused i.e. Premsingh and Srinivasa Reddy and the said cheques have been misused by the complainant by filing this case.
22. The Accused in his defence has specifically denied that, the complainant has paid an amount of Rs.40 Lakhs to him by way of cheque and the complainant's banker has paid cash to the accused is false. The learned counsel for the Accused at para No.5 of written argument has specifically argued on this aspect by contending that, the complainant has failed to prove that he has paid an amount of Rs.40 Lakhs to the Accused by way of cheque and the said amount was encashed by the Accused from the complainant's banker by discussing the evidence of 24 C.C.No.10637/2014 J the Bank Manager i.e. PW.2. It is a relevant here to mention that, the Accused in order to disprove the contention of the complainant that, he has paid an amount of Rs.40 Lakhs by way of cheque to the Accused, the accused has summoned the manager of the Canara Bank, and examined as DW.2 on his behalf and the DW.2 has also produced original cheque bearing No.156659 dated: 19.11.2012 and its true copy has been marked as Ex.C.1 through the DW.2. It is true that, the DW.2 Manager in her evidence has admitted that, the person to whom the money was paid under Ex.C.1 is the signatory as per Ex.C.1(a). It is also admitted that, generally they used to receive the pan card of the persons from whom the bearer cheque produced for encashment and also took their signature on the front side and hind side of the cheque. It is true that, the DW.2 admitted that the signature put on hind side of the cheque in English is not tallying with the signature put by the drawer of the cheque on the front side.
According to the Accused the signature appearing on hind side of the cheque that is Ex.C.1(a) is not of the accused, but in order to prove the said fact the Accused has not made any efforts to get a report 25 C.C.No.10637/2014 J from the expert by sending the disputed signature i.e. marked as Ex.C.1(a). It is true that, the Ex.C.1(a) signature is in English and if it is compared with the signature of the Accused on the disputed cheque herein i.e. Ex.P.1(a), unless and until an expert opinion is taken it can not be held or opined that, the signature appearing at Ex.C.1(a) is not of the accused, therefore the court cannot compare and come to a conclusion that the signature appearing on the disputed cheque i.e. Ex.P.1(a) and the signature appearing at Ex.C.1(a) are not one and the same. Apart from that, in this case the Accused has denied the claim of the complaint that, he has received an amount of Rs.40 Lakhs through cheque, when the Accused himself denied the transaction in question in such circumstances it is for the Accused to prove that, he did not received or encashed the cheque amount by approaching the complainant's bank instead of proving the same the learned counsel for the Accused in the written argument has placed the burden of proving the said fact on the complainant, therefore the arguments canvassed by the learned counsel for the Accused that, it was the duty casted 26 C.C.No.10637/2014 J upon the complainant to procure the proof and footages of the C.C.T.V. to prove the fact that, the Accused approached the complainant's bank and received the cheque amount of Rs.40 Lakhs cannot be acceptable one.
23. It is relevant here to mention that, the bank manager i.e. DW.2 in her cross-examination made by the complainant, has specifically admitted that, whenever they make payment to the payee at that time they used to take signature of the payee on the hind side of the cheque and also take their pan card number and also copy of the pan card of the person to whom the money is paid. On careful perusal of the Ex.C.1 i.e. the cheque issued by the complainant in the name of accused on the hind side of the said cheque it is seen that, the name of the accused and pan card number has been written, the said mentioning of the name of the Accused and pan card number has not been disputed by the Accused, hence it goes to show that, the Accused has admitted writing of his name and pan card number on the hind side of the Ex.C.1 as his name and pan card number, in such circumstances, the arguments 27 C.C.No.10637/2014 J canvassed by the learned counsel for the Accused that the money was not paid to the accused as the DW.2 has not produced the copy of the pan card or any other document of the person to whom the money was paid and collected cannot be acceptable one.
24. On entire perusal of the evidence of DW.2 makes it clear that, the Accused has not elicited anything from DW.2 to believe his defence that, he has not received amount from the complainant's bank by presenting the Ex.C.1 cheque issued by the complainant and the money which was covered under Ex.C.1 cheque was not paid to the Accused and it was paid to someone else as taken in his defence. It is true that, the DW.2 has admitted in her cross-examination that, generally all the banks and more particularly at the cash counter of any bank C.C. T.V. cameras were compulsorily incorporated and also admitted that the said facility ie., CCTV cameras have been incorporated in their bank also and also admitted that, if the CCTV footages are available then she will produce the same before the court . But after completion of evidence of 28 C.C.No.10637/2014 J DW.2 the learned counsel for the Accused has filed an application U/s.91 of Cr.P.C. seeking direction to the DW.2 i.e. the bank manager of Canara Bank, Banashankari III Stage branch, Bengaluru to furnish CCTV footage of the cash counter in receipt of encashment of the cheque bearing No.156659 dated:
19.11.2012 drawn on their bank and the said application was allowed with a direction, if the same are available directed to produce the CCTV footage but on 27.8.2019 the concerned manager of bank appeared before the court and submitted a letter stating that, the backup of CCTV footages are available only up to 90 days and in respect of cheque bearing No.156659 dated: 19.11.2012 is not available with them. Hence in view of the letter submitted by the manager of the concerned bank the court cannot expect to produce the CCTV footages are pertaining to the cheque issued by the complainant dated: 19.11.2012, as the same is not available with the bank, in such circumstances the argument canvassed by the learned counsel for the Accused that, it was the duty of the complainant to secure the proof and footage of the CCTV from the concerned bank and to prove that, the Accused had 29 C.C.No.10637/2014 J been to the bank and received the cheque amount by presenting the cheque alleged to have been issued by him but he did not do it because the complainant has created the events which he knew very well to be false and doctored one and did not take any pain in calling and examining his own banker as his witness, cannot be acceptable one.
25. The Accused during the course of cross- examination of DW.2 has elicited certain fact to creates a doubt in respect of collecting the cash by him from the complainant's banker by referring the Ex.C.1(a) signature that on comparing the signature at Ex.C.1(a) with the signature of the Accused elsewhere in the record, the signature at Ex.C.1(a) is not of the accused, therefore the money was not paid to the Accused and it was paid to someone else whose signature is as per Ex.C.1(a), but in order to prove this fact the Accused has not made any efforts either by getting expert opinion or by denying the name of the Accused and pan card number of the Accused written on the hind side of Ex.C.1(a). In addition to that, the admissions given by the DW.2 i.e., whenever they makes payment at the counter, 30 C.C.No.10637/2014 J though a bearer cheque holder, they would take a copy of the pan card of the person and mention the name of the person to whom the money is paid is corroborates the claim of the complainant that, he has paid a sum of Rs.40 Lakhs to the Accused by way of cheque bearing No.156659 dated:-19.11.2012 and same was encashed by him but not corroborates with the defence of the Accused, therefore the defence of the Accused that, the complainant very well planned to show and create a liability, a payment by cheque, as proof and an attempt is made to fool the system cannot be acceptable one.
26. In addition to the above, the learned counsel for the accused during the course of argument much argued on non production of the documents by the complainant with regard to source of income and also argued that, the complainant himself admitted that, there are no transaction beyond Rs.20,000/= in his bank account i.e Ex.P.12 during the year 2014-15 and there are no documents to show that, the amount shown at Ex.P.12(a) and P.12(b) are withdrawn and paid to the Accused, in such circumstances the complainant 31 C.C.No.10637/2014 J has miserably failed to prove his source of income and also allegedly lend the loan of Rs.8 Lakhs to the accused. As it is already held in the above that, the complainant has produced the documentary evidence to establish his financial capacity i.e. Ex.P.12 and relevant entries Ex.P.12(a) and P.12(b) and the accused has also admitted the amount withdrawn by the complainant at the relevant point of time of transaction in question, in such circumstances the defence raised by the accused with regard to non production of the documents cannot be acceptable one. On the contrary, the Accused himself admitted that, the cheques in question belongs to him and signature appearing on cheque ie. Ex.P.1(a), Ex.P.2(a) are also that of his signatures, therefore the complainant has discharged his initial burden that was casted upon him a presumption can be drawn in favour of the complainant as available U/s.118a and 139 of the N.I. Act. Even the presumption can also be extend to the existence of legally recoverable debt and it is for the Accused to rebut the presumptions as available in favour of the complainant by producing cogent and convincible evidence not by mere 32 C.C.No.10637/2014 J suggestions or plausible explanations. In this regard it is relevant here to refer the decisions reported in 2001 AIR Karnataka HCR 2154 between 'M/s.Devi Tyres V/s.Navab Jan' and in 2011 ACD 1521 (KAR) between 'Smt. Usha Suresh V/s.
Shashidharn', in 2010 SC 1898 between 'Rangappa Vs. Mohan' and 2011 ACD 1412 (KAR) between 'N.Hasainar Vs. M.Hasainar, S/o. Ibrahim'. The Hon'ble High Court of Karnataka in the above decision i.e., 2001 AIR Karnataka HCR 2154 at para No.6 was pleased to hold that issuance of cheque itself was adequate proof of existence of debt or liability. The Hon'ble Apex Court has also held in the decision reported in 2010 SC 1898 in case of 'Rangappa Vs. Mohan' that, presumptions U/sec.118(a) and 139 of N.I. Act indeed does extend to the existence of legally recoverable debt, of course the said presumption is rebuttable one, the accused has to rebut the presumption by taking probable defence. In another decision of Hon'ble Apex court of India reported in CRIMINAL APPEAL NO. 508 OF 2018 DT 15-03-2018 between ROHITBHAI JIVANLAL PATEL Vs STATE OF GUJARAT AND ANR held that "Negotiable Instruments Act facts like source of 33 C.C.No.10637/2014 J funds are not relevant if the Accused has not been able to rebut the presumption. It is further held that "When such a presumption is drawn, the facts relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the Accused has been able to rebut the presumption or not". In another decision of Hon'ble High Court of Karnataka reported in ILR 2019 KAR 493 in the case of Sri.Yogesh Poojary Vs. Sri.K.Shankara Bhat, wherein the Hon'ble High Court held that, the presumption mandated by Sec.139 of N.I Act includes the presumption that, there existed a legally enforceable debt or liability, however such presumption is rebuttable in nature".
Hence the principles of law laid down by the Hon'ble Apex Court of India in the above referred decision are aptly applicable to the case on hand, since in the present case also the complainant has proved his financial capacity by producing his bank account statement i.e. Ex.P.12 and cheque issued to 34 C.C.No.10637/2014 J accused i.e. Ex.C.1 also discharge initial burden by complying the mandatory requirements as required U/s.138 of N.I. Act, in such circumstances, the court has also drawn a presumption of existence of legally enforceable debt as per Sec. 139 of N.I. Act. Therefore under these circumstances the arguments canvassed by the learned counsel for the defence i.e., the complainant has not produced any documents to show the financial capacity or sufficient source of income to lend loan to the accused cannot be acceptable one.
27. The accused in his defence evidence has contended that, the cheques in question were not issued by him by contending that, his brother by name Premsingh had a business in the name and style of M/s. Anmol Creations at Chickpet, Bengaluru and he used to assist and help his brother in his business as he had no business of his own and he had his cheque book and other belongings stored and stock in the shop of his brother. The Accused further stated that, one Srinivas Reddy is a money lender who lends money on very high and exorbitant rate of interest and his 35 C.C.No.10637/2014 J brother had borrowed a sum of Rs.3 Lakhs from said Srinivasa Reddy and there was dispute between his brother and Srinivasa Reddy when there is a delay in payment of installments of loan, at that time i.e. beginning in the month of June 2012 the said Srinivasa Reddy had used criminal force and extracted the collection money from the shop of his brother and also taken the cheques pertaining to his brother's account and also that of his account which was kept in the drawer of the shop of his brother and therefore complaint was also lodged by his brother before the Chickpet police but they did not taken any action, hence his brother filed a private complaint in PCR No. 17757/2012 before the court and the said cheques have been misused by making fillings and they are the subject matter of the case. In support of this defence the Accused has produced certified copies of the private complaint filed in PCR No.17757/2012 and FIR in crime No.6/2013 registered by Chickpet police on the basis of private complaint filed by his brother which are at Ex.D.1 and D.2.
28. According to the accused his brother by 36 C.C.No.10637/2014 J name Premsingh had a business at Chickpet Bengaluru and he used to assist and help him in his business and he had the cheque book and other belonging stored and stocked in the shop of his brother and his brother borrowed a loan of Rs.3 Lakhs from one Srinivas Reddy and a delay has been caused in repayment of the said loan but the said Srinivas Reddy in the month of June 2012 had used criminal force and extracted the collected money from the shop of his brother and also forcibly taken away the cheques belonging to his brother and also that of his account which were kept in the shop and the said cheques have been misused by the complainant by making fillings and are the subject matter of the present case. But on perusal of the private complaint filed by the brother of the Accused i.e. Ex.D.1 wherein though it is mentioned that, one Srinivas Reddy along with goondas and rowdy elements came before the shop of complainant's brother and takes away the collection money of Rs.38,720/= and also cheques pertaining to his account and also his brother Mr.Rajendar Singh (who is the Accused in the present case) kept in his shop. On the basis of Ex.D.1 the Chickpet 37 C.C.No.10637/2014 J police have registered the FIR U/s. 341, 384, 506 and U/s. 3 and 4 of Karnataka Prohibition of Charging Exorbitant Interest Act 2004 in Crime No.6/2013 against one Srinivas Reddy. But the Accused has not produced any docuemtn to show that, whether the concerned police have investigated the complaint filed by the brother of the Accused and whether the allegation made in the private complaint were found to be true and whether charge sheet is filed against the Accused in the said case as alleged by the brother of the Accused in the private complaint. On the other hand, the complainant has produced the copy of "B" report filed by the Chickpet police in the private complaint filed by the brother of the Accused which is at Ex.P.10. On perusal of Ex.P.10 wherein the PSI Chickpet police station, Bengaluru city after investigation has filed "B" report by submitting report that, the complainant has not provided any documentary proof and the relevant evidence to substantiate his allegations and the said dispute is in civil nature and related to financial transactions, hence by considering the same has filed "B" report. The Accused has not disputed the "B" report filed by the concerned police and has not 38 C.C.No.10637/2014 J produced any document to show that, whether his brother was challenged the "B" report filed by the concerned police or whether the "B" report filed by the police was set-aside by the court or not, in such circumstances and in the absence of such documents it cannot be held that, the allegations made by the brother of the Accused in his private complaint are believable and acceptable one.
29. It is a relevant here to mention that, the Accused in his evidence nowhere stated how the said Srinivas Reddy is related to the complainant and for what reason and in which circumstances the complainant has misused the cheques which were allegedly taken away by the said Srinivas Reddy. The Accused has not stated in his evidence the possession of the cheques in question i.e. how they came in the hands of the complainant or how the cheques in question have been entered into the hands of complainant, therefore the burden is on the Accused to prove that, the cheques in question have been misused by the complainant by colluding with said Srinivas Reddy as alleged by the Accused in his defence, but the Accused has miserably failed to 39 C.C.No.10637/2014 J prove the said defence either by examining his brother i.e. Premsingh or by producing documentary proof to that effect, therefore the defence taken by the Accused in his evidence i.e. one Srinivas Reddy forcibly taken away the cheques pertaining to his brother account and also that of his account in connection with the alleged loan transaction between his brother and Srinivas Reddy, which were kept in the shop of his brother, is appears to be denial in nature and in order to over come the claim made by the complainant in this case the Accused has taken such as defence.
30. The Accused during the course of cross- examination of the complainant has elicited that, the said Srinivas Reddy is father-in-law of the complainant but the complainant though he has admitted that, Srinvias Reddy is his father-in-law but he has denied the suggestions that, he was doing money lending business in the name of Sri Sai Constructions and his father-in-law had lent a loan of Rs.3 Lakhs to the brother of the Accused and though the brother of the Accused repaid the considerable amount with interest to father -in-law 40 C.C.No.10637/2014 J of the complainant but father-in-law of the complainant and his followers have gone to the shop of the brother of the Accused in Chickpet in respect of the sale transaction and forcibly entered into the shop and taken away the cheques of the Accused and his brother. The complainant has clearly stated in his cross-examination to the suggestion made to him that, the Premsingh has lodged complaint against Srinivas Reddy of Chikkakallasandra, Banashankari III stage, Bengaluru which is registered as Crime No.6/2013 for the offence punishable U/s.384, 341, 506 of IPC and U/s. 3 and 4 of Karnataka Prohibition on charging of Exorbitant Interest Act, that, the said Srinivas Reddy is not his father -in-law and his father-n-law is aged approximately 74 years. The Accused during the course of his cross-examination has admitted that, one D. Srinivas Reddy who is father-in-law of the complainant is aged about 74 years and his year of birth being 1946 and also admitted the photo copy of the Aadhar card confronted to him which is marked as Ex.N.1. The Accused has also admitted that, the identity card of father-in-law of the complainant issued by Department of Welfare of 41 C.C.No.10637/2014 J Disabled and Senior Citizen and as per the document the name of the father-in-law of the complainant is D.Srinivas Reddy is aged about 74 years, the notarised copy of the senior citizen identity card marked as Ex.N.2 and also admitted that, as per Ex.N.2 the address of the said Srinivas Reddy is No.180, 3rd Cross, 4th Main, 4th Block, BSK III Stage, Bengaluru 85 and the address of the Srinivas Reddy i.e. the Accused in Ex.D.1 is that of Chikkakallasandra address. Hence the documents produced by the complainant i.e. Ex.N.1 and N.2 and admissions of the Accused clearly goes to show that, the Accused by name Srinivas Reddy shown in the private complaint filed by the brother of the Accused is aged about 35 years and resident of Chikkakallasandra is not the father-in-law of the complainant as the age of the father-in-law of the complainant is 74 years and he is residing at No.180, 3rd Cross, 4th Main, 4th Block, BSK III Stage, Bengaluru 85 . Apart from that, the learned counsel for the Accused at page No.11 of cross-examination of PW.1 suggested that, the Accused by name Srinivas Reddy of Crime No.6/2013 is a boy working under him hence the said suggestion itself goes to 42 C.C.No.10637/2014 J show that, the said Srinivas Reddy is not the father- in-law of the Accused as admitted by the Accused himself by suggesting that, the Accused by name Srinvias Reddy in Crime No.6/2013 is working under the complainant, therefore in view of the above said reasons the defence taken by the Accused that, the father-in-law of the complainant i.e. Srinvias Reddy is doing money lending business and his brother has borrowed loan of Rs.3 Lakhs from father-in-law of the complainant and in respect of the said transaction the father-in-law of the complainant and his followers forcibly entered into the shop of the brother of the Accused and taken away the cheques of his brother and his cheques and the complainant has misused the cheques in dispute which were taken by his father in law from the shop of brother of the Accused cannot be acceptable one as the Accused has miserably failed to prove the said fact by proving cogent and convincible evidence.
31. In addition to the above the Accused during the course of cross-examination has taken a defence that the contents of Ex.P.1 and P.2 are not in the 43 C.C.No.10637/2014 J hand writing of the Accused but the complainant has specifically stated that, the Accused has put his signatures on the cheques in his presence and his office boy who accompanied with him filled the rest of the contents. Though the complainant has stated that, the contents of the cheques have been filled up by the office boy of the Accused who had accompanied him and in his presence the Accused put his signatures, but the Accused has not denied the said fact, hence it goes to show that the Accused has admitted his signatures on the cheques in question and the contents were filled up in his presence. For sake of discussion if it is assumed that, the cheques in question have been issued by the Accused and admitted only his signatures on the cheques without admitting the rest of the contents on the cheques, in such circumstances also it is to be presumed that, he has authorized the holder of the cheque to fill up the rest of the contents in the cheque and a presumption can be drawn against the Accused that, the cheques in question were issued by the Accused only. In this regard it is a relevant here to refer a decision of Hon'ble Apex Court of India reported in AIR 2019 SC 2446 in 44 C.C.No.10637/2014 J the case of Birsingh Vs. Mukesh Kumar., wherein also the Hon'ble Apex Court held that, presumption U/s.139 is presumption of law, distinguished from presumption of facts and also held that, presumptions are rules of evidence and do not conflict with presumption of innocence which requires prosecution to prove case against the Accused and also held that obligation on the prosecution may discharged with the help of presumptions of law and presumption of fact unless the accused adduces evidence showing reasonable plausibility of non existence of presumed fact. In the said decision the Hon'ble Apex court has also held that, presumption as to legally enforceable debt is rebuttable, the signed blank cheque if voluntarily presented to payee towards payment payee may fill up amount and other particulars on it in itself would not invalidate cheque and onus would still be on the accused to prove that, cheque was not issued or discharge of debt or liability by adducing evidence. In the present case though the accused has taken specific defence that, the signature appearing on the cheques are those of his signature but he has not written the rest of the contents on the cheques, 45 C.C.No.10637/2014 J hence in such circumstances even for sake of discussion if it is assumed that, the cheques in question were filled up by the office boy of the Accused as stated by the complainant in view of the principles of law laid down in the above decision that itself would not invalidates the cheques in question and it can be presumed that, the cheques filled in presence of the Accused at his request and the said cheques have been issued towards discharge of legally recoverable debt. Therefore the defence taken by the Accused that, he has not issued the Ex.P.1 and P.2 to the complainant in respect of alleged discharge of debt cannot be acceptable one.
32. The learned counsel for the Accused submitted written argument and on careful perusal of the written argument wherein the learned counsel has argued by referring the evidence of the complainant and Accused and the bank manager and also the documents produced by both sides. The arguments canvassed by the learned counsel for the defence are not acceptable, in view of the discussions made by this court in the above while 46 C.C.No.10637/2014 J appreciating the oral and documentary evidence and this court come to a conclusion that, the complainant has proved that, he has lent an amount of Rs.40 Lakhs to the Accused by way of cheque and the said amount was encashed by the Accused and inorder to repay the said amount the Accused has issued the cheques in question and the said cheques were presented by the complainant through his banker and same were dishonoured as "Account closed' and even after issuance of the notice by the complainant and after receipt of the notice by the accused he did not repay the said amount and the Accused has miserably failed to prove his defence, in such circumstances the Accused has committed an offence punishable U/s.138 of N.I. Act, therefore the arguments canvassed by the learned counsel for the defence are not accepted.
33. Therefore considering all these aspects of the case and totality of the circumstances and on careful and meticulous appreciation of evidence adduced on behalf of the complainant and accused the complainant has successfully established beyond all reasonable doubt that, he has lent a sum of Rs.40 47 C.C.No.10637/2014 J Lakhs/= to the accused by way of cheque bearing No. 156659 dated:-19.11.2012 as a hand loan to meet out immediate business and financial commitments and the accused in turn has issued two cheques in question to the complainant towards repayment of the hand loan, thereafter the complainant has presented the said cheques through his banker and same were returned dishonoured with an endorsement of "Account Closed" and thereafter he got issued legal notice to the accused and inspite of service of the said notice, the Accused did not repaid loan amount borrowed by him, hence the complainant filed the present complaint against the accused. On the other hand, the accused has failed to rebut the presumption available infavour of the complainant with regard to the existence of legally recoverable debt under Ex.P.1 and P.2 Cheques. Therefore accused has committed an offence punishable U/s.138 of N.I. Act, accordingly for the above said reasons this point is answered in the Affirmative.
34. Point No.2: Negotiable Instrument Act was enacted to bring credibility to the cheque and 48 C.C.No.10637/2014 J the very purpose of enactment is to promote the use of negotiable instrument, while to discourage the issuance of cheque without having sufficient funds in their accounts. Such being the case the intention of the legislature is that, complainant be suitable compensated while accused be punished for his act. Hence while awarding the compensation the said fact is to be kept in mind and suitable compensation is awarded to the complainant certainly it will not cause injustice to the accused, accordingly the complainant is entitled for the compensation as ordered by the court and for the said reasons, it is just and proper to pass the following :-
ORDER Acting U/sec.255(2) of Cr.P.C.
the accused is convicted for the offence punishable U/sec.138 of N.I.Act.
The accused is sentenced to pay a fine of Rs.40,55,000/= (Rupees Forty Lakhs and Fifty Five Thousand only) within one month from the date of order, in default he shall under go simple imprisonment for a period of (3) three months for the offence punishable U/sec.138 of N.I.Act.49 C.C.No.10637/2014 J
Further acting U/sec.357(1) of Cr.P.C. out of the fine amount on recovery, a sum of Rs.40,50,000/= (Rupees Forty Lakhs and Fifty Thousand only) shall be paid as compensation to the complainant. Further acting U/sec.357(1)(a) of Cr.P.C. out of fine amount on recovery a sum of Rs.5,000/= (Rupees Five Thousand only) shall be defrayed as prosecution expenses to the state.
The Bail bond and surety bond of Accused stands cancelled.
Office is directed to furnish free certified copy of this judgment to the Accused incompliance of Sec.363(1) of Cr.P.C.
(Directly dictated to the stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open Court on this the 1st day of October 2019).
(SRI.S.B. HANDRAL), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri.T.Sudhakar Reddy;50 C.C.No.10637/2014 J
2. List of documents exhibited on behalf of the Complainant:-
Ex.P-1 & P-2 : Original Cheques;
Ex.P-1(a) & P- : Signatures of the Accused;
2(a) Ex.P-3 & P-4 : Bank Memos;
Ex.P-5 : Office copy of the Legal Notice;
Ex.P-6 : Postal Receipt;
Ex.P-7 : Postal Acknowledgement;
Ex.P-8 : Complaint;
Ex.P-8(a) : Signature of the complainant;
Ex.P-9 ; Statement of Accounts;
Ex.P-10 : Certified copies of "B' report of Crime
No.6/2013
Ex.C-1 True copy of the cheque bearing
No.156659;
(Marked through DW.2)
Ex.C-1(a) : Signature
(Marked through DW.2)
3. List of witness/s examined on behalf of the Accused:-
DW.1 : Sri.Rajendra Singh Rathod; DW.2 : Smt. Sonali Srivasthav.
4. List of documents exhibited on behalf of the Accused:-
Ex.D.1 & D.2 : certified copies of the private complaint filed in PCR No. 17757/2012, FIR in Crime No.6/2013;
(Marked through PW.1) 51 C.C.No.10637/2014 J Ex.N.1 and copies of the said Aadhar card and N.2 ration card (Marked through DW.1) (SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.52 C.C.No.10637/2014 J
1.10.2019 Judgment pronounced in the open court vide separate order.
ORDER Acting U/sec.255(2) of Cr.P.C.
the accused is convicted for the offence punishable U/sec.138 of N.I.Act.
The accused is sentenced to pay a fine of Rs.40,55,000/= (Rupees Forty Lakhs and Fifty Five Thousand only) within one month from the date of order, in default he shall under go simple imprisonment for a period of (3) three months for the offence punishable U/sec.138 of N.I.Act.
Further acting U/sec.357(1)
of Cr.P.C. out of the fine amount
on recovery, a sum of
Rs.40,50,000/= (Rupees Forty
Lakhs and Fifty Thousand
only) shall be paid as
compensation to the
complainant.
Further acting U/sec.357(1)(a)
of Cr.P.C. out of fine amount on
recovery a sum of Rs.5,000/=
(Rupees Five Thousand only)
shall be defrayed as prosecution
expenses to the state.
53 C.C.No.10637/2014 J
The Bail bond and surety
bond of Accused stands
cancelled.
.
Office is directed to furnish
free certified copy of this
judgment to the Accused
incompliance of Sec.363(1) of
Cr.P.C.
XVI ACMM, B'luru.