Bangalore District Court
Aged About 27 Years vs G.M on 23 December, 2017
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 23rd DAY OF DECEMBER, 2017
PRESENT
Sri. Shridhar Gopalakrishna Bhat, LL.B
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.52556/2017
Sri. Krishna .N
S/o. Nagappa
COMPLAINANT Aged about 27 years, R/at No.22,
Narayanappa Street, Opp : Ganesh Temple
Road, Oil Mill Road, Lingarajapura, St.
Thomas Town Post, Bengaluru - 560 005.
Miss. Sridevi N.R
D/o. Rajagopal B.T
Aged about 29 years, R/at C/o. Sumitha
ACCUSED G.M, No.118/1, Hanumanthappa Building,
Rama Temple Street, Jeevanahalli, Cox
Town, Bengaluru - 560 005
Also At : No.7, Subramanyam Temple
Street, 2nd Cross, Subbanapalya, Bengaluru.
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused is acquitted
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU
2 C.C. No.52556/2017
JUDGMENT
The complainant had approached this court with the complaint under Sec.200 Cr.PC against the accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881. (herein after referred as N.I. Act)
2. The case of the complainant is that, the complainant had entered into Lease Agreement dated 14.9.2011 in respect of dwelling house bearing No.22. Narayanappa Street, Opp : Ganesh Temple Road, Oil Mill Road, Lingarajapura, St. Thomas Town Post, Bengaluru with land lord Smt.Bharathi for a period of five years by paying lease amount of Rs.6 lakhs. Since from the date of lease agreement, the complainant has been in peaceful possession and enjoyment of the said premises. It is further case of the complainant that the land lord Smt.Bharathi had sold entire leased property in favour of the accused by registered Sale Deed dated 26.2.2015 and thereby the accused become the owner of the said leased property. After completion of the sale transaction, the accused visited the said property during mid week of September 2016 along with the previous owner Smt.Bharathi and informed the complainant about the sale transaction and change of ownership. The accused had requested the complainant to vacated the rented premises after three months and also agreed to repay the lease 3 C.C. No.52556/2017 amount to the complainant, which was agreed by the complainant also.
3. It is further case of the complainant that during first week of November 2016, again the accused had visited the property and met the complainant and issued post dated cheque bearing No.443652 for Rs.5,50,000/- dtd.9.11.2016 drawn on South Indian Bank, Maruthisevanagara Branch, Bengaluru and further instructed the complainant that she will pay the remaining amount of Rs.50,000/- by cash on realization of the cheque amount and after receiving the entire lease amount of Rs.6 lakhs, the complainant agreed to vacate the leased premises. It is further averred that the complainant had presented the said cheque for encashment on 11.11.2016 through Syndicate Bank, K.G. Halli branch, Bengaluru, but the said cheque was returned dishonoured for the reason "Connectivity Failure" by endorsement dated 14.11.2016. The complainant immediately informed the said fact to the accused and the accused had instructed to re-present the said cheque on 16.11.2016 and accordingly the complainant represented the said cheque on 16.11.2016 through his banker, but again the said cheque came to be dishonoured for the reason "payment stopped by the drawer" by endorsement dated 22.11.2016. Thereafter the complainant got issued statutory notice dated 17.12.2016 by registered post to the two addresses of the accused calling 4 C.C. No.52556/2017 upon the accused to pay the cheque amount. The notice sent to the second address of the accused was served on the accused on 19.12.2016. In spite of the service of notice, the accused neither complied with the demand made therein nor issued any reply to the said notice and thereby intentionally committed the offence punishable U/s.138 of N.I. Act. Accordingly on these grounds, the complainant has prayed for conviction of the accused and for grant of compensation in his favour to meet the ends of justice.
4. After filing of this complaint, cognizance was taken for the offence punishable U/s.138 of N.I. Act. Sworn statement of the complainant was recorded. This court was satisfied as to prima facie case made out by the complainant for issuance of the summons and accordingly Criminal Case was registered against the accused for the offence punishable U/s.138 of N.I. Act and summons was ordered to be issued.
5. In pursuance of the summons issued by this court, the accused has put up her appearance through her counsel and enlarged on bail. Thereafter plea was recorded. The accused has denied the substance of accusation and claimed for trial.
6. In order to prove the case of the complainant, the complainant himself examined as PW.1 and got marked as 5 C.C. No.52556/2017 many as 15 documents as per Ex.P1 to P15 and also examined one witness as PW.2 and closed his evidence. After closure of the complainant's side evidence, statement of the accused as provided U/s.313 of Cr.PC was recorded. The accused had denied the evidence of the complainant which is found against her. The accused has not opted to place any oral evidence on her behalf, but got marked one document as per Ex.D1 during cross-examination of PW.2 and thereby evidence of the parties concluded.
7. Heard the arguments of the learned counsels for the respective parties.
8. On perusal of the entire material available on file and also on hearing the arguments of the learned counsels, the points that would arise for consideration are:-
1) Whether the complainant proves that the accused had issued cheque in question in discharge of the legally recoverable debt as contended by him?
2) Whether the complainant further proves that the accused has committed the offence punishable under Section 138 of Negotiable Instrument Act?
3) Whether the complainant is entitled for the relief as prayed in the complaint?
4) What Order?6 C.C. No.52556/2017
9. The above points are answered as under;
Point Nos.1 to 3 : In Negative,
Point No.4 : As per the final order,
for the following.......
REASONS
10. Point Nos. 1 to 3: Since these points are inter linked and to avoid repetition they are taken together for discussion. Before taking up the disputed facts, it is appropriate to refer undisputed facts at this stage itself, which can be gathered from the material placed before this court. On going through the rival contention of the parties, oral and documentary evidence, it is clear that the accused had purchased the property from one Smt.Bharathi under the registered sale deed dated 26.2.2015 and the complainant claims to be a lessee under the said Smt.Bharathi. Further there is no dispute that the cheque in question belonged to the accused and the same was dishonoured for the reason "payment stopped by the drawer". Further after dishonour of the cheque, the complainant got issued legal notice to the accused and the same was found to be served on the accused for which the accused neither replied nor complied with the demand made therein.
7 C.C. No.52556/201711. With the above admitted facts, now the facts in dispute are analyzed, as already stated the accused has denied the entire case of the complainant as to commission of the offence punishable U/s.138 of N.I. Act while recording her plea for the said offence and also denied the incriminating evidence at the time of recording her statement U/s.313 of Cr.PC, but has not put up any positive case on her behalf at that time. On going through the cross- examination of PW.1, it is clear that the accused has denied the very lease hold right of the complainant and also possession and enjoyment of the property purchased by her. The accused has also specifically denied the issuance of cheque in favour of the complainant towards discharge of lease advance amount as put up by the complainant. It is the specific defence of the accused that the cheque in question was given to one Avinash in connection with chit fund transaction. The complainant had taken the cheque in question from said Avinash and filed the false case to have wrongful gain in collusion with Smt.Bharathi (PW.2), said Avinash and one Suresh and accordingly prayed for her acquittal to meet the ends of justice.
12. Relying on the oral and documentary evidence, the learned counsel for the respective parties vehemently argued as to the contention of the parties. It is needless to say that the proceeding U/s.138 of N.I. Act is an exception 8 C.C. No.52556/2017 to the general principle that the accused is presumed to be innocent until the guilt is proved beyond all reasonable doubt. In the proceedings initiated U/s.138 of N.I. Act, proof beyond all reasonable doubt is subjected to presumption envisaged U/s.139 of N.I. Act. Once the requirement of section 138 of N.I. Act is fulfilled, then it has to be presumed that the cheque was issued for discharge of the legally recoverable debt or liability. The presumption envisaged U/s.139 of N.I. Act is mandatory in nature and it has to be raised in all the cases on fulfillment of the requirements of Sec.138 of the said Act. In the ruling rendered by Hon'ble Apex Court in the case of Rangappa Vs. Mohan reported in AIR 2010 (SC) 1898 by relying on several rulings rendered by the Hon'ble Apex Court including the case of Krishna Janardhan Bhat Vs. Dattathraya G. Hegde reported in AIR 2008 (SC) 1325, it was held that "Existence of legally recoverable debt or liability is a matter of presumption U/s.139 of N.I. Act". The Hon'ble Apex Court disapproved the principle laid down in Krishna Janardhan Bhat's case that "Initial burden of proving existence of the liability lies upon the complainant". In the case of Sri.B.H.Lakshminarayana Vs. Smt.Girijamma reported in 2010 (4) KCCR 2637, it is held that "the presumption that the cheque was issued for legally recoverable debt is to be presumed". Further as provided 9 C.C. No.52556/2017 U/s.118 of N.I. Act, it is to be presumed that the cheque in question was issued for consideration on the date found therein.
13. In the light of the rival contention of the parties at the out set it is to be determined as to whether the complainant had complied with all the requirements of Sec.138 of N.I. Act as contended. It is admitted fact that Ex.P1-cheque belonged to the accused. Along with Ex.P1- cheque, the contents of Ex.P2 and P3 - bank endorsements dated 14.11.2016 and 22.11.2016 are analyzed, it is clear that the complainant had presented Ex.P1-cheque for encashment through Syndicate Bank, K.G. Halli branch, Bengaluru and the said cheque was returned dishonoured for the first time for the reason "Connectivity failure" on 14.11.2016. Thereafter again the complainant presented the cheque for encashment for the second time and again the said cheque was returned dishonoured on 22.11.2016 for the reason "payment stopped by the drawer". The contents of Ex.P4 to P7 i.e legal notice, postal receipts, track consignment copy and returned RPAD envelop are analyzed, they reveal that the complainant got issued legal notice to the accused by registered post to the two addresses of the accused. The notice sent to first address of the accused was found to be returned with an endorsement "left returned to the sender" on 19.12.2016 and the notice sent to the second 10 C.C. No.52556/2017 address was found to be served on the accused on 19.12.2016. The present complaint was filed on 1.2.2017 i.e after lapse of 15 days from the date of service of notice on the accused and within 30 days thereafter. On perusal of these aspects, it is clear that prima facie the complainant had presented the cheque for encashment within its validity and got issued statutory notice within statutory time and filed the present complaint within prescribed period. The accused nowhere disputed the service of notice on her and admittedly the accused had neither issued any reply to the said notice nor complied with the demand made therein. Therefore on going through these documents their remains no doubt that the complainant has complied with all the technical requirements of Sec.138 of N.I. Act so as to constitute the offence against the accused.
14. Added to the above referred documentary evidence, the complainant in his evidence by way of affidavit specifically stated as to compliance of requirements of Sec.138 of N.I. Act. On going through the evidence available on file, it is noticed that virtually the accused has not disputed as to compliance of statutory requirements of Sec.138 of N.I. Act in filing the present complaint. Therefore on conjoint reading of entire oral and documentary evidence their remains no doubt that the complainant had complied with all the requirements of 11 C.C. No.52556/2017 Sec.138 of N.I. Act. This being the fact, as argued by the learned counsel for the complainant in the light of the dictum of the Hon'ble Apex Court, it goes without saying that the statutory presumption available U/s.139 of N.I. Act is required to be drawn and shall presume that the cheque in question was issued towards discharge of legally recoverable debt. It is also to be presumed that cheque was issued for consideration on the date as mentioned therein.
15. As argued by the learned counsel for the accused it is well settled principle of law through catena of decisions that, though the statutory presumptions available U/ss.118 and 139 of N.I. Act are mandatory in nature, they are rebuttable one. It is needless to say that when the complainant proves the requirements of Sec.138 of N.I. Act, the onus of proof shifts and lies on the shoulder of the accused to rebut the presumptions available in favour of the complainant. It is the accused who has to rebut the presumptions with all preponderance of probability with clear, cogent and convincing evidence though not beyond all reasonable doubt. The accused has to make out probable defence by producing convincing acceptable evidence and thereafter only burden shifts shoulder of the complainant. It is also well settled law that to rebut the presumption, the accused can also rely upon presumptions available under the Evidence Act. It is also equally true that, if the accused 12 C.C. No.52556/2017 places such evidence so as to disbelieve the case of the complainant, then the presumptions stand rebutted. This view is also supported with the decision of the Hon'ble Apex court reported in (2006) 3 SCC (Crl.) 30, ILR 2009 (2) 1633 - (Kumar Exports Vs Sharma Carpets) and 2013 SAR (CRI) 373 - (Vijay Vs Laxman and another). Now the question that would arise is whether the accused has rebutted the statutory presumptions available in favour of the complainant.
16. In view of the defence taken by the accused as against the claim of the complainant, now the evidence available on file is analyzed, in this case except cross- examination of the complainant and producing one document i.e Memorandum of Understanding dated 26.2.2015 entered into between the accused and Smt.Bharathi as per Ex.D1, no other evidence is available on behalf of the accused. As already stated the accused has not opted to step into witness box. As argued by the learned counsel for the complainant in this case, the accused has not stepped into witness box and not issued reply to the legal notice issued by the complainant. No doubt the non-issuance of reply to the legal notice is one of the circumstances to support the case of the complainant. However as argued by the learned counsel for the accused, just because the accused has not examined and issued any reply to the legal 13 C.C. No.52556/2017 notice that alone cannot be a sole ground to accept the case of the complainant. It is needless to say that the accused may disprove the case of the complainant either by cross- examination of the complainant's side witness or by placing his own evidence. It is needless to say that whether the presumption is rebutted or not must be determined keeping in view of the evidence on record. For rebut the presumption the accused need not stepped into the witness box and his evidence is not imperative. This view is also supported by the decision by the Hon'ble Apex court reported in AIR 2008 SC 1325 i.e Krishna Janardhan Bhat Vs Dattatraya G Hegde.
17. In the light of the rival contention of the parties, it is pertinent to note that the claim of the complainant is based on the lease agreement with previous owner as per Ex.P8- lease agreement and also on Ex.P13 Memorandum of Understanding dated 6.2.2015 entered into between Smt.Bharathi and the accused. But as already stated the accused has denied Ex.P8-lease agreement contending that the said document is created and the complainant was never the tenant under previous owner Smt.Bharathi and never resided in the property purchased by the accused from Smt.Bharathi. So far as Ex.P13-Memorandum of Understanding is concerned, there is no dispute. In order to prove the lease of the complainant, the complainant has 14 C.C. No.52556/2017 produced lease agreement dated 14.9.2011 as per Ex.P8 and also examined the then land lord Smt.Bharathi as PW.2. But it is pertinent to note that except the lease agreement and evidence of the complainant and that of PW.2 there is no any other supporting material. The complainant has not produced any piece of document to show his possession over the property purchased by the accused under Ex.P9-sale deed. Though the complainant has heavily relied upon Ex.P13 the said document also does not disclose his tenancy as put up by the complainant. None of the documents produced by the complainant reveal the possession of the complainant over the property purchased by the accused under Ex.P9. Even in this regard the evidence of the complainant during the cross-examination is looked into, during cross-examination he has stated that £Á£ÀÄ ¨sÁgÀwAiÀĪÀgÀ ªÀÄ£ÉAiÀÄ°è ªÁ¸ÀªÁVgÀĪÀ ªÀÄ£ÉUÉ UÁå¸ï PÀ£ÉPÀë£ï EzÀÄÝ CzÀPÉÌ ¸ÀA§A¢ü¹zÀ zÁR¯ÁwAiÀÄ£ÀÄß £ÁåAiÀiÁ®AiÀÄPÉÌ ºÁdgÀÄ¥Àr¸À®Ä vÉÆAzÀgÉ E®è. This version of PW.1 disclose that there is document with him to show the possession of the premises as put up by him, but in spite of the specific defence taken by the accused, the complainant has not opted to produce the said available document. Further it is also evidence of PW.1 that he has got his wife's Aadhaar Card to show his possession. But for the reason best known to him, he has not produced 15 C.C. No.52556/2017 said document also. At this juncture, as argued by the learned counsel for the accused, the contents of Ex.P15 are looked into, it disclose the different address of the complainant. No doubt the complainant has given some explanation in that regard stating that for want of time he could not change the address of his S.B account to the leased premises. But the said explanation is found to be only after thought which cannot be accepted. Further though the complainant has produced possession notice issued as per Ex.P14 that also does not disclose the possession of the complainant as put up by him. Therefore as argued by the learned counsel for the accused, absolutely there is no convincing and acceptable evidence to show the possession of the complainant over the property purchased by the accused.
18. As argued by the learned counsel for the complainant, no doubt the complainant has produced the original lease agreement and also examined the previous owner of the premises in that regard. But in the light of Ex.P9 sale deed, evidence of PW.2 is looked into, it is crystal clear that PW.2 is totally interested witness and her evidence totally goes against the contents of registered sale deed executed by herself in favour of the accused. In the light of the contents of Ex.P9, no importance or validity could be given to the evidence of PW.2 to any extent. In the 16 C.C. No.52556/2017 light of the defence taken by the accused, the evidence of PW.2 is looked into, it is clear that she is having hostility with the accused and interested with the case of the complainant. Therefore on the basis of Ex.P8 and evidence of PW.2 the case of the complainant cannot be accepted in toto and creates doubt as to the case of the complainant. On the other hand as contended by the accused the collusion of the complainant and previous land owner i.e PW.2 cannot be over ruled.
19. Along with the above aspects, now the contents of Ex.P13 are looked into, it is clear that there was a Memorandum of Understanding between the accused and PW.2 on 6.2.2015 under which the accused being a second party agreed to return the advance amount to the tenants who are residing in the premises in order to vacate them from the premises. But along with this document the contents of Ex.D1 i.e Memorandum of Understanding dated 26.2.2015 entered into between the accused and PW.2 are looked into, the contents of Ex.D1 goes against the claim of the complainant. In Ex.P13 though the accused has agreed to return the advance amount to the tenants, in Ex.D1 the said Memorandum of Understanding was navigated and it PW.2 who had received Rs.11 lakhs from the accused to see that PW.2 and the tenants to vacate the property purchased by the accused within one month and the said amount was 17 C.C. No.52556/2017 paid to Pw.2 through four cheques drawn on Indian Bank, Bengaluru. Therefore in view of Ex.D1 i.e subsequent Memorandum of Understanding which totally takes away the effect of Ex.P13 and on the basis of Ex.P13 the complainant cannot seek any enforceable liability against the accused. As already stated even in Ex.P13 as well as Ex.D1 there is no reference as to the complainant. Therefore on the basis of Ex.P13 the claim of the complainant cannot be accepted.
20. Along with the above aspects, now the contents of Ex.P9 sale deed are looked into, it is clear that on the date of said sale deed i.e on 26.2.2015 itself PW.2 had handed over the vacant possession of the property and all the original documents in respect of the property purchased by the accused. Nowhere in Ex.P9 there is reference as to payment of any amount to the tenants by the accused. It is needless to say that the claim of the complainant is to the tune of Rs.6 lakhs and if such a huge amount has to be refunded by the accused in view of the purchase of the property, definitely it should have find place in Ex.P9 registered instrument itself. On the other hand as already discussed Ex.D1 which was also executed on the date of Ex.P9 itself goes against the claim of the complainant. Therefore even Ex.P9 is looked into, it no way helps the case of the complainant to substantiate his claim against the accused.
18 C.C. No.52556/201721. In the light of the claim of the complainant it is also noticed that as argued by the learned counsel for the accused absolutely there is no documents to show that the complainant had paid advance amount of Rs.6 lakhs to the previous owner. Further no documents produced before the court reveal that the accused had undertaken to pay the amount of Rs.6 lakhs to the complainant as put up by the complainant. As already stated either in Ex.P9, P13 or in Ex.D1 there is no reference as to the complainant or undertaking of the accused to pay the amount to the complainant. There is no contract/agreement in any form between the complainant and accused revealing the liability of the accused to pay the advance amount to the complainant as put up by the complainant. No document is produced to show the assignment of liability to pay the lease advance amount on the accused by the previous owner. In this angle also the claim of the complainant is liable to be failed as against the accused.
22. Along with the above aspects, it is also to be noted that even if the case of the complainant is to be accepted to some extent, the liability to pay the advance amount arises only when the complainant vacates the premises. The evidence of the complainant and reveals that the still the complainant claims his possession over the property purchased by the accused. This being the fact once 19 C.C. No.52556/2017 again the claim of the complainant cannot be accepted and it cannot be held that there is a liability on the part of the accused as put up by the complainant. No doubt as argued by the learned counsel for the complainant in this case, the accused has not issued any reply to the legal notice and also not produced any proof as to misuse of the cheque and for having taken any legal action for misuse of the cheque as put up by her. But on that account alone the case of the complainant cannot be accepted when the case of the complainant himself on the basis of the documents produced by him is found to be suspicious one.
23. In this case the complainant has also produced the certified copy of the complaints filed by one Vijay Kumar, one Gopinath and one Suresh against the accused for the offence punishable U/s.138 of N.I. Act. But on the basis of the said documents, it cannot be held that the accused had issued cheque in question in favour of the complainant as put up by the complainant. The said documents are no way helpful to the complainant to establish his version as contended.
24 . Thus for the reason discussed above, this court is of the considered view that the complainant is entitled for presumption U/s.139 and 118 of N.I. Act, the same are rebutted by the accused. Under the facts and circumstances 20 C.C. No.52556/2017 of the case and on available evidence on record, the defence taken by the accused is found to be more probable and convincing one. In the ruling of our Hon'ble High Court reported in 2013 (1) DCR 326 (Nandi Agro Fertilizers Vs D.Satish) it was held that "if there are the circumstances to prove the probable defence that itself is sufficient to dismiss the complaint". Hence considering all these aspects, this court is of the considered view that the complainant has failed to prove the commission of the offence punishable U/s.138 of N.I. Act as against the accused and so also issuance of cheque in question towards discharge of any debt/liability as put up by him. Therefore, Point nos.1 & 2 are required to be answered in negative. It is needless to say that when the complainant has failed to prove Point Nos.1 & 2 in his favour as contended, the complainant is not entitled for any relief as sought for in this complaint. Hence, point Nos.1 to 3 are required to be answered in negative and answered accordingly.
25. Point No.4: For the reasons discussed in connection with Point Nos.1 to 3 this court proceed to pass the following....
21 C.C. No.52556/2017ORDER Acting under Section 255(1) of Cr.PC accused is hereby acquitted for the offence punishable under Section 138 of Negotiable Instrument Act.
The bail bond of accused stands
cancelled. The cash security deposited by
the accused is ordered to be refunded in his favour in accordance with law.
(Dictated to the stenographer, typed by him, transcript corrected by me and pronounced in the open court on this the 23rd Day of December, 2017) (SHRIDHAR GOPALAKRISHNA BHAT) XIV ADDL. C.M.M., BENGALURU 22 C.C. No.52556/2017 ANNEXURE Witnesses examined for the complainant:
PW.1 : Sri. Krishna .N
PW.2 : Smt. Bharathi
Witnesses examined for the defence:
DW.1 : Sri. Abdulla
Documents marked for the complainant:
Ex.P1 : Cheque
Ex.P2 & 3 : Bank endorsements
Ex.P4 : Legal Notice
Ex.P5 : Postal receipt
Ex.P6 : Letter issued by post office
Ex.P7 : RPAD returned cover
Ex.P8 : Agreement of Lease
Ex.P9 : Certified copy Deed of Absolute Sale
Ex.P10 to 12 : Certified copies of complaints
Ex.P13 : Memorandum of Understanding
Ex.P14 : Possession Notice
Ex.P15 : Syndicate Bank Pass Book
Documents marked for the defence:
Ex.D1 : Memorandum of Understanding
Ex.D1(a) to (c) : Signature of PW.2
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU