Bangalore District Court
Sri. P.R. Suresh Kumar vs Sri. John Philips David on 1 October, 2021
IN THE COURT OF XXXIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, MAYO HALL UNIT,
BENGALURU
: PRESENT :
M.Vijay, BA L, LLB.
XXXIII ADDL.CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED THIS THE 1ST DAY OF OCTOBER, 2021.
C.C.No.54850/2019
COMPLAINANT : Sri. P.R. Suresh Kumar
S/o. Late. Ramakrishna
Aged about 51 years
R/at No.46, Mathrusree Layout
Margondanahalli, K.R.Puram,
Bangalore560036
.Vs.
ACCUSED : Sri. John Philips David
Father Name not known
Aged about 45 years
R/at No.8, 14th 'A' cross, Chinnappa
Garden, Benson Town Post,
Bangalore560016.
JUDGMENT
.
The complainant has filed this private complaint U/s.200 of Cr.P.C., against the accused for the offence punishable U/s 138 of Negotiable Instrument Act.
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2. The factual matrix of the case are as follows: The complaint averred that, accused is well known friend of him, had approached him on 17.01.2019 for financial assistance of Rs.1,50,000/ to meet family and legal necessity of accused, considering the friendship with the accused, he advanced Rs.1,50,000/ by cash on the very same day i.e., 17.01.2019 on receipt of it accused allegedly issued him a post dated 17.04.2019 cheque bearing No.054287 for Rs.1,50,000/ drawn on Corporation bank Dr.Shivaramakaranth Nagar Branch Bangalore, accordingly, believing the assurance of accused, he presented it through his banker Uco Bank Ramamurthi Nagar branch Bangalore on 17.04.2019, but, it was unpaid due to "insufficient funds" vide memo dated 26.04.2019, immediately, he caused legal notice the accused on 20.05.2019 demanding to pay cheque amount, same was returned as a left on 21.05.2019, however it is deems service, accordingly, he alleges the accused had issued cheque for Rs.1,50,000/ in his favour without maintaining suffcvient amount in his account with an intention to defraud him, accordingly, he alleges that, the accused has committed an o/p/u/s 138 of N.I Act.
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3. Based on the complaint, the sworn statement affidavit, the documents etc., the court took cognizance of an offense punishable under Sec.138 of N.I. Act by following the guidelines of Apex Court issued in Indian Bank Association case and ordered to registered a criminal case against the accused for the o/p/u/s. 138 of N.I. Act.
4. In pursuance of summons, the accused appeared through his counsel and he was on court bail. Plea has been recorded accused pleaded not guilty and claimed to be tried.
5. To prove the case, the complainant got examined himself as PW.1 and relied upon Ex.P1 to P4. On closure of complainant side evidence, the accused was examined U/Sec.313 (1) (b) of Cr.P.C., he denied the incriminating materials on record, accused examined himself as DW1 and marked Ex.D1 on his side.
6. Heard, both the sides, the complainant has filed his written argument, perused the materials on record, the following point arise for my determination.
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1. Whether the complaint proves beyond all reasonable doubt that, accused has committed an o/p/u/s 138 of Negotiable Instruments Act?"
2. What Order?
7. My findings to the above points are follows;
Point No1: In the Affirmative.
Point No.2: As per final order for forgoing;
REASONS
8. Complainant claims to have lent an amount of Rs.1,50,000/ to the accused by way of cash on 17.01.2019, on the same day accused allegedly had issued a post dated cheque on 17.04.2019 towards discharge of loan amount borrowed on 17.01.2019, accordingly, on due date complainant claims to have presented the cheque in his banker, but, it was returned unpaid for "insufficient funds", despite service of legal notice accused not returned the borrowed amount. To substantiate the same, the complainant got examined himself as PW1 by reitereating the complaint averments in his evidence 5 C.C.No.54850/2019 affidavit and placed reliance on cheque, bank return memo, copy of legal notice, postal receipt and returned cover.
9. Per contra, accused denied the transaction and also issuance of Ex.P1 cheque towards discharge of alleged loan and contended that legal notice was not served upon him, accordingly, complainant not complied the Mandatory Provision U/S 138 (b) of N.I Act, however, accused during the course of cross examination of PW1 suggested that, for supply of second handle AC's to the house of the PW1, complainant had paid him Rs.1,00,000/ towards security the complainant had obtained his signed blank cheque i.e., Ex.P1, but, later on complainant has not returned his cheque, even after installation of AC's in the house of complainant, but, same is denied by the complainant, that apart, the accused in his chief examination has stated that, for supplying of AC machines as a security he claims to have issued a signed blank cheque and signed blank letter head to the complainant with an intension to get on order to supply of AC machines, as assured by complainant, so, considering the suggestion of the accused and the 6 C.C.No.54850/2019 testimony of DW1, t is crystal clear that, accused has admitted the issuance of cheque Ex.P1 to the complainant with is signature Ex.P1(a), therefore, though the accused denies the existence of legally enforceable debt i.e., borrowal of loan of Rs.1,50,000/ by the accused on 17.01.2019, in view of his admission about cheque and signature belongs to him, the law mandates to draw a presumption in favour of the complainant U/S 139 and 118(a) of N.I Act that, the cheque Ex.P1 was issued by the accused, towards discharge of legally enforceable debt and for consideration until the contrary is proved, at this stage, it is useful to refer the ratio laid down by the Honble Apex Court on this settle principle of law in Rangappa v/s Mohan;
"Once the cheque relates to the account of the accused and he accept and admit the signature on the said cheque, then initial presumption as contemplated under Sec.139 of N.I. Act has to be raised by the court in favour of the complainant. The presumption referred to in Sec.139 of N.I.Act is a mandatory presumption and not a general 7 C.C.No.54850/2019 presumption, but the accused is entitled to rebut the said presumption."
10. Accordingly, the initial presumption has been drawn in favour of the complainant that Ex.P1 cheque was issued by the accused towards discharge of legally enforceable debt, however it is rebuttable presumption, as such, the onus is on the accused to rebut the presumption and disprove the transaction that, the claimed debt or liability was not in existence and cheque was not issued towards legally enforceable liability, the standard of proofs to rebut the presumption is preponderance of probabalities.
11. The accused in order to rebut the presumption examined himself as DW1, wherein, he sated that, he used to sell second handle AC machines, accordingly, complainant and his friend one Yuvaraja approached him for supply of 5 AC machines as per the order of the complaint, he installed 5 AC machines in the house of complainant, the installation fees as well as price of AC's of Rs.25,000/ was not paid to him, however, the complainant told him that, he got an order for supply of 8 C.C.No.54850/2019 35 AC's from HAL and aero engine and requested him to supply it, as per the order, believing the same the complaint had obtained his signed blank cheque and signed letter head from him, with an assurance that complainant would get an order on Monday for supply of AC machines, but, later on, complainant neither place the order for supply AC machines nor returned his cheque, accordingly, he called so many time over phone to the complainant, but not picked his call, then he learnt that, his cheque has been misused by the complainant, however, same has been denied by the complainant and to substantiate his contention, the accused has not produced any piece of document to show that, he installed 5 AC machines in the house of complainant, later on, he issued Ex.P1 cheque as a security and signed blank letter head to get work order for installation of 30 AC machines in HAL and Aero engines as claimed by him, so, it is clear that, except his self serving statement nothing has been produced on record to rebut the presumption, even is above contention is contradictory to his suggestion put during course of cross examination of PW1, wherein, he suggested that, 9 C.C.No.54850/2019 "To supply second handle AC's complainant has paid him Rs.1,00,000/ by cash at that time the Ex.P1 cheque was obtained by the complainant as a security".
12. So, in one breath accused contented that, to get work order i.e., for supply of 30 AC's to HAL and Aero Engine complaaninat had obtained his cheque, however, nothing has produced to substantiate it, in another breath he contended, Ex.P1 cheque was obtained by the complainant as security when he received Rs.1,00,000/ from complainant for installation of AC's in the house of complainant as security, so, which is contradictory to his own contention and even not produced any iota of evidence to prove the alleged installation of AC machines in the house of the complainant, and obtaining of Ex.P1 cheque from him by the complainant for that transaction, so, except his self serving statement nothing has produced or brought out how his cheque Ex.P1 gone in to the hands of complainant, therefore, in absence of cogent, credible evidence with respect to defence of the accused cannot be acceptable, accordingly, accused failed to probablise his 10 C.C.No.54850/2019 defence, because, admittedly, he is a diploma holder, even his defence cannot be acceptable, because, no prudent man would issue cheque to get a work order from the person who is not admittedly authorised person for the public undertaking institutions even, admittedly has not taken any legal action against the complainant for misuser of cheque issued to get work order it is unnatural and nothing but an after thought, accordingly, nothing has produced to rebut the presumption, hence, failed to rebut the presumption drawn in favour of the complainant U/S 139 of N.I Act.
13. Further, the accused specifically contented that complainant not complied Sec.138(b) of N.I Act i.e., legal notice not served upon his correct residential address door No.8, 14th 'A' cross, Sheshadri road, Chinnappa garden, Benson town post, Bangalore, but not the address mentioned in Ex.P4 legal notice for that, he placed reliance on the Ex.D1 is Adhaar card. On the contrary, the complainant counsel argued that, Ex.P4 was correctly addressed and it was returned as left which deems that, legal notice was served, accordingly, he urges that 11 C.C.No.54850/2019 complainant has complied Sec.138(b) as the notice was addressed to correct address.
14. Considering the rival contention, I have carefully perused Ex.P4 and an acknowledgment attached to it and also cause title, it clearly reflects that, accused does not disputing his residential address mentioned in cause title, and for the very same address the notice was served on him, based on it, he put his appearance before the court on 10.01.2020 and he was enlarged on bail, however, for the very same address the legal notice was addressed, but, 'A' word has been not mentioned, accordingly, accused contending it was not properly addressed, but, same cannot be acceptable, because along with Ex.P4 in acknowledgment attached to the Ex.P4 it has been mentioned that, " Door No.8, 14th 'A' cross, Sheshadri road, Chinnappa garden, Benson town post, Bangalore".
15. Accused does not disputing the above address, therefore merely because word 'A' has not been 12 C.C.No.54850/2019 mentioned in Ex.P4 cover which does not ipso facto ground to believe his contention that, address mentioned in Ex.P4 is wrong or incorrect, therefore, I do not found, any merit on this aspect, as the address of the accused in acknowledgment has been correctly mentioned and accused does not disputing about his identity i.e., door number, name of the road, area, as such, legal notice has been correctly addressed and it was returned with a shara left which deemed to be served as per Sec.27 of General Clauses Act, as such, the decision relied by the accused i.e., Crl.Rev.P.No.438/2017 of Hon'ble Delhi High Court is not applicable to the case in hand, because, in the said case notice was not properly addressed, but, herein this case complainant addressed the legal notice was correctly to the known address of accused, hence, the burden is on the accused to prove that, the legal notice has not served upon him, but, accused except producing Ex.D1 which is admittedly residential address proof of and which has mentioned in the legal notice Ex.P3, cause title and an acknowledgment attached to Ex.P4, therefore, nothing has produced in contrary to service of legal notice, accordingly, complainant has also proved the service of notice and the compliance of Sec.138(a) to (c) N.I Act.
13C.C.No.54850/2019
16. So, considering the entire materials on record the accused though contended cheque was issued for security for supplying of AC machines to the complainant and also to get work order for supplying AC machines to HAL and Aero Engine, but, failed to prove his inconsistance defence to rebut the presumption, accordingly, the complainant has established the Ingredients of Sec.138 of N.I Act, hence, accused is found guilty an o/p/u/s 138 of N.I act.
17. It is well settled law that, an o/p/u/s 138 of N.I Act is primarily is a compensatory in nature punitive is secondary, on considering the object of offence with materials on record, clearly reveals that, complainant has not claimed any interest and also claimed that, accused is his friend advanced loan of Rs.1,50,000/ without any interest, as such, it is crystal clear that, claimed loan is a interest free loan or friendly loan, accordingly, considering the nature of transaction and duration of pendancy of this case, I am of the opinion that, if the accused is sentenced to pay fine of Rs.1,75,000/ that would meet the ends of justice, accordingly, accused sentenced to pay fine of Rs.1,75,000/ out of the fine 14 C.C.No.54850/2019 amount received complainant is entitled to receive a sum of Rs.1,70,000/ as compensation U/S 357(1) of Cr.P.C. remaining amount Rs.5,000/ is to be appropriated to the state, in case of default the accused shall under go simple impressment in the period of 6 months. Accordingly I answer the above point in "Affirmative".
18. Point No.2: In view of above finding to Point No.1, I proceed to pass following;
ORDER Acting under section 255(2) of Criminal Procedure Code, the accused is convicted of the offence punishable U/s 138 of Negotiable Instrument Act, The accused is sentenced to pay a fine of Rs.1,75,000/ (Rupees one lakh seventy five thousand only) in default, the accused shall undergo simple imprisonment for a period of six months. Out of the fine amount received, Rs.5,000/ is to be appropriated to the State and by way of compensation as per the provision U/s 15 C.C.No.54850/2019 357(1) of Cr.P.C. the complainant is entitled for Rs.1,70,000/.
The bail bonds and surety bond of the accused shall stand canceled.
Office is directed to furnish a free copy of the judgment to the accused.
(Dictated to the Stenographer directly on computer, typed by her, corrected, signed and then pronounced by me in the open court, on this the 1st day of October, 2021) (M.Vijay), XXXIII ACMM, BENGALURU.
** ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Sri. P.R. Suresh Kumar
2. Documents marked on behalf of complainant:
Ex.P.1 : Original Cheque
Ex.P. 1(a) : Signature of the accused
Ex.P.2 : Bank return memo
Ex.P.3 : Office copy of the legal notice
Ex.P.4 : Returned postal cover
Ex.P.4(a) : Returned postal cover opened in the
open court and notice therein marked
16
C.C.No.54850/2019
3. Witnesses examined on behalf of Accused:
D.W.1 : Sri. John Philips David
4. Documents marked on behalf of Accused:
Ex.D1 Original Adhaar Card
(M.Vijay),
XXXIII ACMM, BENGALURU.