Bangalore District Court
N.B. Suresh vs N.R. Byregowda on 6 February, 2016
IN THE COURT OF THE XII ADDL. CHIEF
METROPOLITAN MAGISTRATE, AT BENGALURU
Dated this the 6th day of February 2016
Present: Sri. Rajkumar .S.Amminbhavi., B.Com., LLB (Spl)
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No. 2175/2014
Complainant: N.B. Suresh
S/o N.C. Basavaraj
Aged about Years
R/at. Nagadasanahalli Village
Rajanukunte Post
Yelahanka Hobli
Bangalore North Taluk
Bangalore-560 064.
( By Prasanna Kumar .T.N. Adv)
- Vs -
Accused: N.R. Byregowda
S/o Ramachandra
aged about years
R/at. Nagadasanahalli Village
Rajanukunte Post
Yelahanka Hobli
Bangalore North Taluk
Bangalore-560 064.
(By S.N.Manjunatha. Adv)
Offence U/s138 of Negotiable
Instruments Act.
Plea of the accused Pleaded not guilty.
Final order Convicted
2 C.C. 2175/2014
******
JUDGMENT
1. The Complainant filed this Complaint against the accused U/s.200 of Cr.PC for the offence punishable U/s 138 of N.I.Act.
2. The brief facts of the case of the complainant are; that, both the accused and complainant are close friends and they are same village, on account of friendship with the complainant, the accused had approached the complainant in the month of June-2012 for financial assistance of Rs.2,00,000/-, since the complainant being well known to the accused, as he has close friend and same village on good faith, the complainant has advanced loan amount of Rs.2,00,000/- to the accused by way of cash. After receiving the said loan amount by the accused, at the time the accused had agreed to pay the borrowed loan amount within seven months from the date of receipt the borrowed loan amount and issued posted dated cheque bearing No.060392, dated:04.02.2013 drawn on IDBI Bank, NO.9, Dinakaran Complex, HIG, A sector, Yelahanka New Town, Bengaluru and after presented the said cheque for encashment through his banker i.e., Aruna Sahakara Bank Niyamitha, 689-MIG-A Sector, 3rd A Cross, Yelahanka New Town, Bengaluru after lapse of seven months, but the said cheque was returned on 04.04.2013with an endorsement as "Payment Stopped". Then the complainant has been informed to the said fact to the accused, but the accused has not responded the same.
3 C.C. 2175/2014Thereafter, the complainant has got issued legal notice through his counsel on 16.04.2013 by RPAD, calling upon to repay the said borrowed loan amount within 15 days from the date of receipt of this legal notice. Despite of service of the legal notice, neither the accused did not repaid the said borrowed loan amount and nor reply the said legal notice. Thereafter, the complainant had constrained to file a complaint against the accused for the offence punishable under Section 138 of N.I. Act., which is well within time.
3. After taking the cognizance of the complaint, on being served the summons, the accused appeared before court through his counsel and got released on bail. The substance of accusation was read over to the accused. Accused pleaded not guilty, claimed to be tried.
4. In order to prove the case of the complainant, the complainant got himself examined as PW.1 & got 5 documents marked as Ex.P.1 to Ex.P.5. The statement of the accused U/s.313 Cr.PC., was recorded. He denied the incriminating statements against him and the accused has not examined, but in support of his case he has examined his banker manager, the bank manger himself examined as DW-1 and got 2 documents marked as Ex.D1 and Ex.D2.
(As per the judgment passed by their lordship in Cr.R.P.No.1585/2009 on 12.03.2013 of Hon'ble High Court, Bangaluru conducting of denova trial does not arises) 4 C.C. 2175/2014
5. Heard arguments from both Counsel for complainant and accused.
6. The following points arise for my determination;
1. Whether the complainant proves that the accused had issued cheque bearing No.060392, dated:04.02.2013 for Rs.2,00,000/- drawn on IDBI Bank, No.9 Dinakaran Complex, HIG, A Sector, Yelahanka New Town, Bengaluru, towards the discharge of legally enforceable debt due to him and when the cheque was presented for encashment, it came to be returned as ""Payment Stopped"" Thereby, the accused has committed offence punishable U/s. 138 N.I.Act?
2. What order ?
7. My answer to the above points are;
Point No.1 : In the Affirmative
Point No.2 : As per final order for the
following;
REASONS
8. POINT No.1 : In this complaint, the complainant
specifically pleaded that, both the accused and complainant are close friends and they are same village, on account of friendship with the complainant, the accused had approached the complainant in the month of June-2012 for financial assistance of Rs.2,00,000/-, since the complainant being well known to the accused, as he has close friend and same village on good faith, the complainant has advanced loan amount of Rs.2,00,000/- to the accused by way of cash. After receiving the said loan amount by the accused, at the 5 C.C. 2175/2014 time the accused had agreed to pay the borrowed loan amount within seven months from the date of receipt the borrowed loan amount and issued posted dated cheque bearing No.060392, dated:04.02.2013 drawn on IDBI Bank, NO.9, Dinakaran Complex, HIG, A sector, Yelahanka New Town, Bengaluru and after presented the said cheque for encashment through his banker i.e., Aruna Sahakara Bank Niyamitha, 689-MIG-A Sector, 3rd A Cross, Yelahanka New Town, Bengaluru after lapse of seven months, but the said cheque was returned on 04.04.2013with an endorsement as "Payment Stopped". Then the complainant has been informed to the said fact to the accused, but the accused has not responded the same. Thereafter, the complainant has got issued legal notice through his counsel on 16.04.2013 by RPAD, calling upon to repay the said borrowed loan amount within 15 days from the date of receipt of this legal notice. Despite of service of the legal notice, neither the accused did not repaid the said borrowed loan amount and nor reply the said legal notice. Thereafter, the complainant had constrained to file a complaint against the accused for the offence punishable under Section 138 of N.I. Act., which is well within time.
9. On perusal of the evidence of PW-1 he has deposed in his chief-examination as per the averments made in the complaint and he has got marked documents like, cheque which is marked as Ex.P1, the signature of the accused therein which marked as Ex.P1(a), two bank endorsement 6 C.C. 2175/2014 which is marked as Ex.P2, the office copy of the legal notice which is marked as Ex.P3, two postal receipt which is marked as Ex.P4, postal acknowledgement which is marked as Ex.P5.
10. The complainant in his cross, he has deposed that, he was studied up-to PUC, he know the english language reading and writing, he has agriculturist by profession. It is true that, both of them are same villagers. He do not know education qualification of the accused. Further, he deposed that, the accused has borrowed loan amount from him for his real estate business for purchasing and selling lands. It is true that, the accused is having office at Kodigehalli Gate, Bengaluru-Bellary Road. He denied the suggestion that, he often and often visiting his office situated at Kodigehalli Gate. It is true that, both of them used to visit to their respective houses in their village. He was the owner of the grape garden, Dandpani has purchased grapes fruits of his garden. In this connection he had borrowed total sum of Rs.5,00,000/- from the said Dandpani. He has paid loan in question to the accused in the month June-2012. But, he cannot recollect the exact date on payment made by him to the accused. He denied the suggestion that, he has not at all advanced the loan in question to the accused. It is true that, in Ex.P1 specifically mentioned that validity of the said cheque i.e., Ex.P1 for a period of three months. He denied the suggestion that, he himself filled the contents of the cheque, he did not know the person who has been written the contents of the 7 C.C. 2175/2014 Ex.P1 cheque. He denied the suggestion that, he has not stated the alleged instructions of the accused to present the cheque for the second time either in his legal notice or in the complaint. He did not gave the legal notice to the accused on the first dishonoure of the cheque. He denied the suggestion that, he himself created the contents of Ex.P1 on the lost cheque of the accused. He did not know about prior presentation of the said cheque the accused gave stopped payment instruction to his banker. He denied the suggestion that, he has not advanced any amount as mentioned in the cheque and the accused has not issued Ex.P1 in favour of the complainant for discharge of any loan or liability. He denied the suggestion, he was not having capacity loan amount of Rs.2,00,000/- to the accused.
11. The accused has not examined, but in support of his case he has examined his bank manager, the bank manger himself as examined as DW-1 and in chief examination, he has deposed that, he was working as the Manger of IDBI Bank for the last 5 years, as per the summons issued by this Court, he was present before this Court and deposed that, as per the statement of account of the accused SB account bearing No.0694104000098120 standing in the name of N.R.Byregowda in their branch, till date this account is in operation. This statement consisting of 10 sheets the Ex.P1 was issued through our branch in the name of the present accused. As per the records available in their bank, the said cheque was dishounred as per the requisition given by the 8 C.C. 2175/2014 accused regarding stop payment instruction dated:06.02.2013. As per the instruction given by the drawer, he has noticed that, the bearing No.60392 and 60393 were lost. In his cross, he has deposed that, the stop payment instruction now shown to him, the drawer of the cheque has given the reasons that his two chques were lost, his stop payment instruction was not supported by the police acknowledgement. Again as per the interim application filed by the counsel for the accused the DW-1 is recalled and in further chief-examination DW-1 deposed that, on 06.02.2013 the said accused was given stop payment instruction to their bank and he has produced the copy of the stop payment instruction given by the accused which is marked as Ex.D2. Further, in his cross he has deposed that, he was studied up- to MBA, in the year 2014 he was working in IDBI Bank, Yalahanka as Manager, the accused ha snot given instruction to their banker for which number of cheque has been lost, on which date, there is any instruction from the RBI to their bank that, if any cheque was lost by the account holder of the cheque the account holder has to be lodged complaint before the jurisdictional police station. It is true that, he himself not personally issued Ex.D2. But, his office of the bank official have issued the stop payment instruction copy to the account holder and after receipt of the stop payment requisition from the account holder they have endorsement as per Ex.D2.
9 C.C. 2175/201412. On perusal of the averments made in the complaint, evidence of the complainant coupled with the documents and also documents produced by the accused through DW-1 who is manager of IDBI Bank, it is case of the complainant that, since both the complainant and accused are friends and accordingly the complainant has arranged said loan and accordingly he has advanced Rs.2,00,000/- by way of cash to the accused and at that time the accused had agreed to repay the said loan amount after seven months and on the same day he had issued Ex.P1 posted dated cheque. After lapse of seven months, he has demanded for repayment of the said borrowed loan amount, but the accused has not repaid the said borrowed loan amount. Thereafter, the complainant had issued legal notice and the said cheque was dishonoured with an endorsement as Stop Payment as per theEx.P2 and inspite of that, again orally requested by the complainant to the accused for repayment of the said borrowed loan amount, but he has not responded the same nor he has gave any reply to the said legal notice and thereafter the complainant has lodged complaint which is well within time.
13. During the course of cross-examination of PW-1 made by the counsel for the accused, he deposed that, he was studied up-to PUC and he know the english language to read and writing and he has also deposed that, he was an agriculturist by profession and both the accused and himself are the same villagers. The accused has doing real estate business by profession like purchasing and selling of land 10 C.C. 2175/2014 and he has also having office at Kodigehalli Gate, Bengaluru- Bellary Road and he used to visit their houses whenever necessary arises with respect to source of income, during the course of cross-examination of the accused to the PW-1, he has deposed that, he has owner of the grape garden, in the said garden the complainant has raised grapes. One Dandapani has purchased the grapes fruits from his land and in that connection he has received total sum of Rs.5,00,000/- from the Dandapani and thereafter out of the said amount he has advanced loan of Rs.2,00,000/- to the accused in the month of June-2012. This suggestion made by the accused counsel, during the course of cross- examination of PW-1 that, itself suffice that at the time advancement made by the complainant to the accused tune of Rs.2,00,000/- out of the total out received from Dandapani when he has purchased grapes fruits from his garden land to the tune of Rs.5,00,000/- that, itself suffice to prove that at the time advancement of the said loan in question to the accused in the month of June-2012, the complainant was having sufficient source of income and the accused was agreed to repay the said borrowed loan amount after seven months and on the same day he has issued Ex.P1 which was post dated cheque. After date of issuance of Ex.P1 issued by the accused, the complainant has presented the said cheque for encashment and the said cheque was dishonounred with an endorsement as stop payment and the said fact has been informed by the complainant to the accused, but again as per the request made by the accused, the complainant again has 11 C.C. 2175/2014 presented the said cheque for encashment, but the said cheque was dishonoured with an endorsement as stop payment on 04.04.2013 and thereby only after issuance of the notice the accused has not repaid the said borrowed loan amount, then the complainant has filed present complaint.
14. During the course of arguments the counsel for the accused argued that, the said cheque has been not presented within stipulated period of three months as there is specific note on the Ex.P1 and the said cheque was valid for three months. During the course of arguments the counsel for the complainant, the said cheque was presented for the bank for encashment within three months from the date as mentioned in the Ex.P1 and not has been mentioned as 04.02.2013 and within three months it means to 04.05.2013. Whereas, the complainant has presented cheque in question, though the it has been presented for two times, but at the time which was returned with an endorsement as Stop payment, as per the endorsement and 2nd time as per instruction given by the accused, he has presented the said cheque for encashment and the said cheque was returned with an endorsement as stop payment on 04.04.2013. Therefore, it is presumed that, Ex.P1 has been presented for encashment by the complainant within stipulated period of three months from the date affixed in the Ex.P1. Therefore, the alleged argument advanced by the counsel for the accused is not sustainable. Further, it is case of the complainant that, since the accused himself not stepped into witness box to defend 12 C.C. 2175/2014 his defence as per the defence taken by the accused in the cross-examination of PW-1 alleging that, he has taken defence that, prior to presentation of the cheque he has gave stop payment instruction to his banker, as the said cheque was lost by him. But, to substantiate his defence he has not lodged any complaint and where it was lost, on which date it was lost by the accused, except alleged defence taken by the accused and evidence of DW-1 stating that, as per the instruction given by the accused, who is the account holder of the their bank, they have endorsed Ex.D2 with respect to stop payment instruction given by the drawer and issued endorsement as per Ex.P2. On perusal of the Ex.D2 it is clearly shows that, stop payment instruction has been given by the accused on 06.02.2013. Whereas, it can be presumed that, the accused, after issuance of the disputed cheque affixing date on 04.02.2013, he has intentionally gave stop payment instruction to his banker on 06.02.2013 as per Ex.D2. He has not produced any police complaint lodged by him, about he was lost the said two cheques as per the Ex.D2 of his account and also he has not produced mentioned in his stop payment instruction Ex.D2 where and when he was lost the said cheques. Therefore, the alleged evidence adduced by the DW-1 will not substantiate to disprove the claim of the complainant that, the accused has not issued Ex.P1 in favour of the complainant with respect to legally recoverably debt.
13 C.C. 2175/201415. Hence, in the light of the argument advanced by the counsel for the accused has relied citation reported in 2015 CRI.L.J. 912 it is with respect to that the complainant had not having sufficient source, at the time of advancement of the loan and thereby Hon'ble Court has acquitted the accused by way of dismissing the complaint. But, in the instant case the complainant was having sufficient source of income as he was raised grapes land and this fact has been elicited by the counsel for the accused during the course of cross-examination of PW-1. Hence, this citation is not at all applicable to the present case in hand and so also another citation reported in 2014 AIR SCW 2158 it is also not applicable to the present case in hand, since facts and circumstances of the present case in hand and said citation all together different and another citation reported in 2012(1) Crimes 405 (Karnt) High Court of Karnataka, it is also with respect to sufficient source of income. But, in this case the complainant is having sufficient source of income for advancement of the said loan. Therefore, the said citation is not applicable to the present case in hand and so also another citation reported in ILR 2008 KAR 3635 it is also with respect to alleged cheque have been issued for security and in that connection I am relied the citation reported in 2015 (1) KCCR 253 Karnataka High Court (Circuit Bench at Gulbarga), it is has been held that, signed blank cheque issued as security for a transaction and the said contentions has been denied by the complainant. The word "security" or "collateral security" has a definite legal connotation, apart 14 C.C. 2175/2014 from the primary/basic document evidencing the loan, if any other moveable or immovable properties are offered as guarantee for repayment of the loan, then such additional offering other than the meaning of law. "The pronote or a cheque does not constitute security". Because they have no inherent tangible asset value unlike movable or immoveable properties offered as pledge or mortgage. Hence, the said citation is not applicable to the present case in hand and also another citation reported in ILR 2009 KAR 1633 SC cheque return back on the ground that, return of the lost of the cheque was issued by the drawer. But, in the instant case it has been observed that, even if the said cheque was lost and the accused who is drawer of the accused, he has not lodged any complaint before the jurisdictional police station, the said contention is not acceptable for accepting provision of Section 138 of N.I. Act.
16. On the other hand, the counsel for the complainant has relied citation reported in AIR 2010 SC 1898 it is with respect to stop payment instruction given by the accused drawer of the cheque under Section 138 of N.I. Act is attracted in para No.9 of the said citation ' Ordinarily in cheque bouncing cases, what the court have to consider is whether the ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 of the Act, with respect to the facts of the present case, it must be clarified that contrary to the trail Court's finding, 15 C.C. 2175/2014 Section 138 of the Act can indeed be attracted when a cheque is dishonoured on account of 'stop payment' instructions sent by the accused to his bank in respect of a post dated cheque, irrespective of insufficiency of funds in the account, this position was clarified by this Court in Goa Plast (Pvt.) Ltd. V. Chico Ursula D'Souza (2003) 3 SCC 232 : (AIR 2003 SC 2035), wherein it was held: Chapter XVII containing Section 138 to 142 was introduced in the Act by Act 66 of 1988 with the object of inculcating faith in the efficacy of banking operation and giving credibility to negotiable instruments in business transactions. These provisions were intended to discourage people from not honouring their commitments by way of payment through cheques. The Court should lean in favour of an interpretation which serves the object of the statute. A post-dated cheque will lose its credibility and acceptability if its payment can be stopped routinely. The purpose of a post-dated cheque is to provide some accommodation to the drawer of the cheque. Therefore, it is all the more necessary that the drawer of the cheque should not be allowed to abuse the accommodation given to him by a creditor by way of acceptance of a post-dated cheque. In view of Section 139, it has to be presumed that a cheque is issued in discharge of any debt or other liability. Therefore, the said citation is very much applicable to the present case in hand and another citation reported 2001 (4) Kar. L.J. 122 as per the Section 138 and 140 blank cheque issue of issuing of cheque duly signed by maker thereof authorizing payee to fill up amount agreed upon will not invalidate cheque as such 16 C.C. 2175/2014 practice is recognized and permitted by law and also another citation reported in (1996) 2 SCC 739 Section 138 of N.I. Act drawer of the cheque having insufficient funds to his credit, held, cannot escape liability issuance of stop payment instruction to his banker. Further, when he failed to make payment within 15 days from the date receipt of the notice under Clause (c) of the proviso, the statutory presumption of dishonest intention is satisfied. However, if the drawer also, before presentation of the cheque, issue notice to the payee not to present the same for encashment. But, in this case the accused knowing fully that, when the complainant has presented the cheque and after date mentioned in Ex.P1 first time and which was returned on 18.03.2013 with an endorsement as stop payment of the drawer of the said fact has been orally informed by the complainant to the accused and again as per the request made by the accused, he has 2nd time presented and again which was returned on 04.04.2013 with an endorsement as stop payment and in instant case also when the accused came to know that, Ex.P1 was endorsed as per Ex.P2, he knowingly about endorsement under Ex.P2 prior to presentation of the said cheque, but he has not issued any notice to the complainant restrained him not present for it presentation. Therefore, the said citation is applicable to the present case in hand and another citation reported in (1998) 3 SCC 249 said citation is with respect to stop payment instruction given by the accused and in this case also he has not issued instruction to the complainant to 17 C.C. 2175/2014 not presented the cheque for encashment. Therefore, the said citation is applicable to the present case in hand.
17. Hence, in the light of the above observation, the complainant has successfully proved that, the accused has committed an offence punishable under Section 138 of N.I. Act. With these reasons, I am the opinion that, the complainant successfully established before the Court, the accused has issued Ex.P1 cheque to the complainant for the legally recoverably debt of Rs.2,00,000/-. Therefore, I answer the point No.1 in the affirmative.
18. Point No.2 :- In view of my findings on Point No.1 in the affirmative, I proceed to pas the following...
ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of
Rs.2,05,000/-. In default of payment of said
fine amount, the accused shall undergo simple imprisonment for six months.
Out of the said amount, Rs.2,00,000/-
shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and Rs.5,000/- shall be remitted to the state as fine.
18 C.C. 2175/2014The bail bond and surety bond of the accused stands cancelled.
Free copy issued to the accused.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified, corrected and then pronounced by me in the open Court on this the 6th day of February 2016).
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the complainant:
List of documents exhibited on behalf of the complainant:
Ex.P.1 Two cheque Ex.P.1(a) Signature of the accused Ex.P.2 Bank endorsement Ex.P.3 The office copy of the legal notice Ex.P.4 The Postal Receipt Ex.P.5 The Postal acknowledgement
List of witnesses examined on behalf of the accused :
DW.1 Jyothi Ranjan Sahu List of documents exhibited on behalf of the accused :
Ex.D.1 Bank Statement
Ex.D.2 Stop Payment instruction given by the
accused
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.19 C.C. 2175/2014
(vide separate judgment pronounced in the open Court) ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of
Rs.2,05,000/-. In default of payment of said
fine amount, the accused shall undergo simple imprisonment for six months.20 C.C. 2175/2014
Out of the said amount, Rs.2,00,000/-
shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and Rs.5,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands cancelled.
Free copy issued to the accused.
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.