Bangalore District Court
Th Main vs 2) M/S. Farm Products on 7 November, 2018
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 7th DAY OF NOVEMBER, 2018
PRESENT
Sri. Shridhar Gopalakrishna Bhat, LL.B
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.26370/2012
Mr. K.S. Chinnaswamy
S/o. Shri. K.S. Swmayappa
Aged about 55 years, R/at No.52, 8th Cross,
COMPLAINANT 10th Main, Maruthinagar, Malleshpalya, New
Thippasandra Post, Bengaluru - 560 075.
1) Mr. Sundarajan .M
S/o. M. Marimurthu
No.134, M/s. Raja Poultry Form,
Behind Vidaranya Home for aged, Budigere
Main Road, Mandoor, Virgonagar Post,
Bengaluru - 560 049.
ACCUSED
2) M/s. Farm Products
No.129, V. Ramaiah Building, Malleshpalya
Main Road, New Thippasandra Post,
Bengaluru - 560 075.
Reptd by its Authorized Signatory
Mr. Sundarajan .M
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused is convicted
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU
2 C.C. No.26370/2012
JUDGMENT
The complainant has approached this court with the complaint under Sec.200 Cr.PC against the accused for the offence punishable under Section 138 r/w Sec.142 of Negotiable Instruments Act, 1881. (herein after referred as N.I. Act)
2. In this case after holding the full pledged trial, this court was pleased to convict the accused by judgment dated 03.07.2014. Thereafter the accused had preferred Crl. Appeal against the judgment in Crl. Appeal. No.25050/2016 and the Hon'ble Appellate Court by its judgment dtd.16.08.2018 pleased to set aside the judgment passed by this court and remanded the matter for fresh disposal by giving opportunity to place oral and documentary evidence by both parties and accordingly matter is again taken up by this court.
3. The case of the complainant is that, on 11.12.2009 the accused had borrowed a sum of Rs.2 lakhs through cheque bearing No.85835 dtd.11.12.2009 and Rs.1 lakh on 23.03.2010 through cheque bearing No.85842 dtd.23.03.2010 drawn on Indian Overseas Bank, Vijaynagar branch, Bengaluru and in all Rs.3 lakhs as loan to meet his financial necessities for poultry shed renovation and poultry business development. In that regard, the accused had also executed promissory notes along with consideration receipts 3 C.C. No.26370/2012 agreeing to repay the said loan amount together with interest @ 2.75% per month. It is further case of the complainant that the son of the accused by name - Harish Kumar.S had also borrowed a sum of Rs.1 lakh on 12.12.2009 through cheque No.85836 dtd.12.12.2009 and Rs.2 lakhs on 07.07.2010 through cheque bearing No.85843 dtd.07.07.2010 drawn on Indian Overseas Bank, Vijaynagar branch, Bengaluru and in all Rs.3 lakhs from the complainant to meet financial necessity of poultry business developments. He had also executed promissory notes along with the consideration receipt agreeing to repay the said loan amount together with interest @ 2.75% per month.
4. It is further case of the complainant that in order to repay the principle amount along with interest accrued thereon borrowed by the accused and his son, the accused being the authorized signatory of accused no.2 had issued cheque bearing No.598608 dtd.16.11.2011 for Rs.8,50,000/- drawn on Indian Overseas Bank, Vijaynagar branch, Bengaluru in favour of the complainant. The complainant presented the said cheque for encashment through his banker
-Indian Overseas Bank, Vijaynagar branch, Bengaluru and the same was returned dishonoured for the reason "funds insufficient" vide memo dated 18.11.2011. Thereafter the complainant got issued legal notice dated 21.11.2011 by Registered Speed Post demanding the accused to make 4 C.C. No.26370/2012 payment of the cheque amount within 15 days from the date of receipt of the said notice. The said notice was served on the 1st accused on 22.11.2011 and the notice sent to the 2nd accused was returned on 22.11.2011 with a shara as "left". Thereafter the complainant again got issued another legal notice dtd.05.12.2011 with more details by Registered Speed Post calling upon the accused to make payment of the cheque amount within 15 days from the receipt of the said notice. The notice so sent was served on the accused 1st accused on 07.12.2011 and notice sent to the accused No.2 was returned on 07.12.2011 with a shara as "left". In spite of the service of notice, the accused had not opted to comply with the lawful demand made in the said notice and thereby intentionally committed the offence punishable U/s.138 of N.I. Act. Under these attending circumstances, the complainant is constrained to file the present complaint and accordingly prayed for conviction of the accused and for grant of compensation in his favour in accordance with law in the interest of justice and equity.
5. 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 5 C.C. No.26370/2012 was registered against the accused for the offence punishable U/s.138 of N.I. Act and summons was ordered to be issued.
6. In pursuance of the summons issued by this court, the accused has put up his appearance through his counsel and enlarged on bail. Thereafter plea was recorded. The accused has denied the substance of accusation and claimed for trial.
7. In order to prove the case of the complainant, the complainant himself examined as PW.1 and got marked as many as 19 documents as per Ex.P1 to P19 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 has denied the incriminating circumstances found in the evidence of the complainant and examined himself as DW.1 and got marked six documents as per Ex.D1 to D6. The complainant during cross-examination of DW.1 got marked three documents as per Ex.P19(a), Ex.P20 and P21. After remanding of the matter by the Appellate court, the accused has produced additional documents and further examined himself and got marked nine documents as per Ex.D7 to D15 and closed his evidence and thereby evidence of the parties concluded.
6 C.C. No.26370/20128. Heard the arguments of the learned counsels for both parties. The learned counsel for the accused has relied upon the following citations ;
i) 2010 CRI. L.J. 1217 - Bombay High Court - (Anil Baburao Kataria Vs Purshottam Prabhakar Kawane)
ii) (2003) 8 SCC 300 - (K.R. Indira Vs Dr G. Adinarayana)
iii) Crl. Appeal No.743/2010 dtd.03.02.2015 - High Court of Karnataka - (Mr.B. Shivaram Vs Mr. M.V. Venkatesh)
iv) (2014) 2 SCC 236 - (John K. Abraham Vs Simon C. Abraham & another)
v) (2009) 2 SCC 513 - (Kumar Exports Vs Sharma Carpets)
vi) 2001 CRI. L.J. 1674 - (ashok Yeshwant Badeve Vs Surendra Madhavrao Nighojakar and another)
vii) 2008 CRI.L.J 3411 - (K. Narayana Nayak Vs M. Shivarama Shetty)
9. On perusal of the entire material available on file and also on hearing the arguments of the learned counsels, in the light of the rulings relied, 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?7 C.C. No.26370/2012
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?
10. The above points are answered as under;
Point Nos.1 & 2 : In Affirmative,
Point No.3 : In affirmative,
Point No.4 : As per the final order,
for the following.......
REASONS
11. Point Nos. 1 and 2: Since these two points are inter linked and to avoid repetition they are taken together for discussion. Before peeping into the disputed facts, it is appropriate to refer the undisputed facts, which can be gathered from the material placed before this court at this stage itself. On going through the rival contention of the parties, oral and documentary evidence, it is clear that the complainant, accused and son of the accused are well known to each other. The accused has admitted the availment of Rs.3 lakhs by him and also Rs.3 lakhs by his son as put up by 8 C.C. No.26370/2012 the complainant. The accused had admitted the issuance of cheque and also execution of pronotes in favour of the complainant. It is admitted fact that the accused had paid Rs.3,50,000/- to the account of the wife of the complainant. The complainant has admitted as to filing of the police petition by the accused at Avalahalli Police Station, Bengaluru. It is also not in dispute that the cheque in question belonged to the accused and the same was signed by him and the said cheque was dishonoured for the reason "funds insufficient". Thereafter the complainant got issued legal notice to the accused and the same was served on him for which the accused had not issued any reply. There is no dispute as to compliance of requirements of Sec.138 of N.I. Act by the complainant in filing the present complaint.
12. With the above referred undisputed facts, now the facts in dispute are analyzed, as already stated the accused had denied the entire case of the complainant as to commission of the offence punishable U/s.138 of N.I. Act while recording his plea for the said offence and also denied the incriminating circumstances found in the evidence of the complainant at the time of recording his statement U/s.313 of Cr.PC. The accused has not put up any positive case on his behalf at the time of recording his plea or his statement U/s.313 Cr.PC. However on going through the cross- examination of the complainant and evidence of the accused, 9 C.C. No.26370/2012 it is clear that the accused has denied the availment of the loan by himself and by his son from the complainant and also issuance of cheque in favour of the complainant as put up by the complainant in toto. In addition to the denial of the case of the complainant, it is found to be a specific defence of the accused that in the year 2006, he had availed loan of Rs.1 lakh from the complainant and at that time he had executed one pronote and cheque which is produced in this case in favour of the complainant for security purpose. Further the accused had repaid the said loan amount to the complainant in the month of December 2016 by selling his property. Thereafter the accused sought for returning of pronote and cheque, but the complainant did not return the same. Though there was no any transaction after 2006, the complainant by misusing the blank cheque taken filed the false case and accordingly prayed for his acquittal in the interest of justice and equity.
13. Further it is also noticed that when the matter was remanded by the Appellate court, the accused has come up with another contention that he had obtained loan of Rs.2,00,000/- in the year 2009 and Rs.1,00,000/- in the year 2010 from the complainant for interest @ 3% per month and his son Harish Kumar had taken Rs.1 lakh in the year 2009 and Rs.2 lakhs in the year 2010 from the complainant for interest @ 3% per month. It is further contention of the 10 C.C. No.26370/2012 accused that after availing the loan, he had paid interest of Rs.9,000/- per month to the complainant till filing of this complaint in the year 2011. Similarly his son had also paid interest of Rs.9,000/- per month. The complainant had taken cheque bearing No.397236 of State Bank of India, Jeevanbhima Nagar, Bengaluru from the son of the accused as security for the loan availed and he had also executed two pronotes in favour of the complainant. The complainant had asked for interest @ 10% per month with the accused and his son for which the accused did not agree and as such the complainant has filed the present complaint and also got filed another cheque bounce case against son of the accused through one Satish Kumar the relative of the complainant. It is further contended that after conviction in this case, the complainant and accused settled the matter between them for Rs.9,50,000/- and accordingly the accused had paid a sum of Rs.3,50,000/- to the account of the wife of the complainant and paid Rs.5,80,000/- in cash on different dates and thereby paid in all Rs.9,30,000/-. After payment the accused requested the complainant to withdraw the case for which the complainant agreed to withdraw the case by filing the memo. Thereafter the complainant contended that if the amount involved in the case filed against the son of the accused is cleared, then only this case will be withdrawn and accordingly the son of the accused had paid Rs.7,84,000/- by settling the case and the complainant himself had received the said 11 C.C. No.26370/2012 amount from the son of the accused. In spite of that the complainant had not withdrawn the case and as such the accused had preferred the appeal. It is also contended that after filing the appeal, though there was no any due amount since the complainant, his wife and Satish Kumar came near to the house of the accused and quarreled with the accused and the accused had lodged police petition in Avalahalli Police Station and accordingly prayed for his acquittal to meet the ends of justice.
14. Relying on the oral and documentary evidence, the learned counsels for 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 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 cheques were 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 12 C.C. No.26370/2012 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 recently the Hon'ble Apex court in Crl. A. No.803/2018 - (Krishna Rao Vs Shankare Gowda) reiterated the above principle. Further as provided 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.
15. 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. In order to prove the case of the complainant, the complainant being PW.1 reiterated the complaint averments in his evidence by way of affidavit. In addition to that the complainant has produced Pronotes with consideration receipts executed by the accused and his 13 C.C. No.26370/2012 son, cheque, bank endorsement, office copy of legal notice dtd.21.11.2011, two postal receipts for having sent notice to the accused, speed post acknowledgement due, returned speed post envelop, notice contained in the returned speed post envelop, another notice dtd.05.12.2011, two postal receipts, speed post acknowledgement due, returned speed post envelop, notice contained in the returned speed post, statement of joint account relating to the account of the complainant and his wife as per Ex.P1 to P19 respectively. The complainant also got marked the copy of the document containing photograph of the son of the accused with his educational qualification, account statement relating to the account of M/s.Farm Products i.e accused No.2 and account of statement of the son of the accused as per Ex.P19(a), Ex.P20 and Ex.P21. The complainant got marked signature of the accused that of his son found in Ex.P1 to P4 as per Ex.P1(a) to Ex.P4(a) and also got marked the relevant entries found in Ex.P20 and P21 as per Ex.P20(a) & Ex.P21(a) to substantiate his contention.
16. As already stated it is admitted fact that Ex.P5- cheque dtd.16.11.2011 belonged to the accused and same was dishonoured for the reason "funds insufficient" as found in Ex.P6 dtd.18.11.2011. Along with Ex.P5 and P6 the contents of Ex.P7 to P18 are analyzed, it is clear that after dishonour of the cheque, the complainant got issued legal 14 C.C. No.26370/2012 notice dated 21.11.2011 as per Ex.P7 to the accused by SPAD as found in Ex.P8 and P9 and notice so sent to the accused was served on the accused on 22.11.2011 as found in Ex.P10 and the notice sent to the 2nd accused was returned with an endorsement as "left" on 22.11.2011. Further Ex.P13-notice dtd.05.12.2011 reveals that the complainant again got issued another legal notice in substitution of earlier legal notice i.e Ex.P7, by SPAD as found in Ex.P14 and P15 and the said notice was found to be served on the accused on 07.12.2011 as found in Ex.P16 and the notice sent to the second accused was returned as "left" on 06.12.2011. The accused has admitted the service of notice on him as put up by the complainant. The complainant presented the complaint on 02.01.2012. Therefore on going through these documents, it is clear that the complainant had presented the cheque for encashment within its validity and got issued statutory notice after dishonour of the cheque within statutory period and presented the present complaint after lapse of 15 days from the date of service of notice on the accused and within 30 days thereafter as required under law.
17. Added to the above 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 as contended. No doubt in this case the complainant got issued two legal notices as per Ex.P7 and P13. Though the 15 C.C. No.26370/2012 complainant got issued two legal notices, in any angle it will not defeat the case of the complainant as to compliance of technical requirements of Sec.138 of N.I. Act. On going through the evidence placed before this court, it is clear that the accused has not disputed the compliance of technical requirements of Sec.138 of N.I. Act by the complainant before filing of this complaint. Therefore on conjoint reading of the entire oral and documentary evidence, their remains no doubt that the complainant had complied with all the requirements of Sec.138 of N.I. Act. This being the fact, as discussed earlier, in the light of the dictum of the Hon'ble Apex Court, it goes without saying that the presumption available U/s.139 of N.I. Act is required to be drawn and shall presume that the accused had issued the cheque as per Ex.P5 towards discharge of legally recoverable debt. It is also to be presumed that cheque was issued for consideration on the date as mentioned therein.
18. 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 16 C.C. No.26370/2012 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 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 - (Tamilnad Mercantile Bank Ltd., Vs M/s.Subaiah Gas Agency and others), 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.
19. In view of the defence taken by the accused, as against the claim of the complainant, now the evidence available on behalf of the accused is analyzed, the accused himself examined as DW.1 and also produced 15 documents i.e notarized copy of the certificate, four marks card of his son, certified copy of the registered sale deed 17 C.C. No.26370/2012 dtd.23.11.2016, certified copy of the order sheet relating to C.C. No.27605/2011, memo dtd.26.02.2016 filed in the said case, complaint relating to C.C. No.27605/2011, sworn statement recorded in the said case, statement of account relating to his account, hand note book, police petition, acknowledgement issued by the police and three challans as per Ex.D1 to D15 to substantiate his contention. The accused being DW.1 stated his defence in his evidence. However on going through the cross-examination of PW.1 and evidence of the accused, it appears that the accused himself is not clear as to his defence. As argued by the learned counsel for complainant, it is found that the contention of the accused during cross-examination of PW.1 is inconsistent with his examination-in-chief. Further examination-in-chief of the accused after remanding of the matter by the appellate court is totally inconsistent with his earlier version.
20. At the first instance, the accused in his examination stated that in the year 2006 he had taken Rs.1 lakh as hand loan from the complainant and repaid the same in December 2006 itself and there was no any monitory transaction with the complainant thereafter. But in this regard the suggestion put to the mouth of PW.1 during his cross-examination is analyzed, it was suggested to him to the effect that accused had availed loan or Rs.1 lakh in 2007 and repaid the said amount in 2008. In this regard there is total inconsistency in 18 C.C. No.26370/2012 the defence of the accused. Further in this regard cross- examination of the accused is analyzed during cross- examination he has specifically stated that " £Á£ÀÄ ¢£ÁAPÀ 11.12.2009 gÀAzÀÄ gÀÆ.2 ®PÀë ZÉPï ªÀÄÆ®PÀ zÀÆgÀÄzÁgÀ¤AzÀ ¸Á® ¥ÀqÉ¢gÀÄvÉÛÃ£É JAzÀgÉ ¤d. D §UÉÎ ¤.¦.1 ¥ÉÇæ£ÉÆÃmï EgÀÄvÀÛzÉ. ¤.¦.2 gÀ ¥ÀæPÁgÀ gÀÆ.1 ®PÀë ªÀÄvÉÛ ZÉPï ªÀÄÆ®PÀ ¥ÀqÉ¢gÀÄvÉÛÃ£É JAzÀgÉ ¤d. ¤.¦.3 ªÀÄvÀÄÛ ¤.¦.4 zÁR¯ÉUÀ¼À°è vÉÆÃj¹zÀAvÉ £À£Àß ªÀÄUÀ zÀÆgÀzÁgÀjAzÀ MlÄÖ gÀÆ.3 ®PÀë ZÉPï ªÀÄÆ®PÀ ¸Á® ¥ÀqÉ¢gÀÄvÁÛ£É JAzÀgÉ ¤d. " This version of the accused himself during cross-examination clearly support the case of the complainant as to availment of Rs.3 lakhs each by the accused and by his from the complainant and executing pronotes with consideration receipt as per Ex.P2 to P4.
21. With the above aspects, now the contention of Ex.P1 to P4 are analyzed, they clearly denote that the accused and his son each availed loan of Rs.3 lakhs on the date as stated by the complainant through cheques. Cheque number is also found in Ex.P1 to P4 through which the amount was lent by the complainant. Ex.P1 to P4 also indicates that the accused and his son agreed to repay the borrowed amount with interest at the rate of 2.75% per month as put up by the complainant. Now the contents of Ex.P19 - statement of account relating to the bank account of the complainant and his wife, Ex.P20- bank account statement of the accused, Ex.P21- bank account statement of 19 C.C. No.26370/2012 the son of the accused and Ex.P20(a) and (b) and Ex.P21(a) & (b) the particular entries are analyzed, their remains no doubt as to claim of the complainant and they totally negate the contention of the accused. Ex.P20 and Ex.P21 are concerned, there is no dispute that they were marked during cross-examination of DW.1 by confronting the same. Though the accused has contended that Ex.P19 is created by the complainant that cannot be accepted in any angle in the light of Ex.P2 to P4, Ex.P20 and Ex.P21 and also in view of the evidence of the accused himself. Therefore their remains no doubt that the defence put up by the accused at the first instance is totally false and that cannot be accepted. Added to that admittedly the statutory notice issued by the complainant was served on the accused. If at all his contention was true, the accused could have issued proper reply to the said notice at the first available opportunity itself. But no such reply was issued by the accused for the reason best known to him. This conduct of the accused also again falsify his contention. Further if at all cheque was given for security purpose and amount was repaid by the accused as contended by him and if at all the security cheque was not returned, the accused could have intimated his banker in that regard so as to avoid misuse of his cheque or could have taken proper legal steps in that regard. But no such steps were being taken by the accused. This fact also again goes 20 C.C. No.26370/2012 against the accused denoting the false contention of the accused.
22. Be the things that it may, as already stated after remanding of the matter by the appellate court, the accused has come up with totally new version, by giving up his initial contentions. The accused having admitted the availment of hand loan from the complainant by himself and by his son as put up by the complainant, come up with plea of discharge by settlement after passing of the judgment by this court. The accused in his further evidence stated that he had paid interest at Rs.9,000/- per month to the complainant till filing of this case and also paid Rs.2 lakhs in 2011. Further his son also paid interest at Rs.9,000/- per month since availment of loan to the complainant. But in this regard, the accused has not produced any acceptable material before this court. On the other hand this contention of the accused is totally found to be false and after thought version. If at all this contention of the accused is true, the accused could have taken this contention at the initial stage itself. Hence this contention of the accused has no merit in it and that cannot be accepted.
23. The another contention of the accused in his evidence that the complainant had sought for interest at the rate of 10% per month from him and his son for which he has not accepted and as such the complainant filed this case and also got filed case against his son through relative of the 21 C.C. No.26370/2012 complainant - one Satish Kumar. It is also his evidence that since the complainant had stated that he will withdraw this case only after receipt of the amount in the case filed against the son of the accused, the son of the accused paid Rs.7,84,000/- by setting the case and the complainant himself had received the said amount. In this regard, the accused has produced certified copy of the order sheet relating to C.C. No.27605/2011, memo field in the said case, copy of the complaint relating to the said case and copy of the sworn statement as per Ex.D7 to D10 respectively. So for as Ex.D7 to D10 are concerned, there is no dispute. The evidence reveals that the complainant specifically denied the contention of the accused that one Satish Kumar is his relative and specifically contended that the said Satish Kumar is neither his relative nor his community person. The accused has not produced any document or evidence to show that the said Satish Kumar is the relative of the complainant. During cross-examination the accused has stated that "
¸ÀwñïPÀĪÀiÁgïgÀªÀgÀÄ ¦gÁå¢üzÁgÀgÀ ¸ÀA§A¢ü JA§ PÀÄjvÀÄ £Á£ÀÄ AiÀiÁªÀÅzÉà zÁR¯ÁwUÀ¼À£ÀÄß £ÉÆÃr®è. £ÁåAiÀiÁ®AiÀÄzÀ°è ¸ÀwñïPÀĪÀiÁgïgÀªÀgÀÄ ¦gÁå¢üzÁgÀgÀ£ÀÄß C¥Àà C¥Àà JAzÀÄ ºÉýzÀÝ£ÀÄß PÉý £Á£ÀÄ CªÀgÀÄ ¸ÀA§A¢üPÀgÉAzÀÄ ºÉüÀÄwÛzÉãÉ. ¦gÁå¢üzÁgÀjUÀÆ ¸ÀwñïPÀĪÀiÁgïgÀªÀjUÀÆ AiÀiÁªÀÅzÉà ¸ÀA§AzÀs«®è ªÀÄvÀÄÛ CªÀgÀÄ MAzÉà d£ÁAUÀzÀªÀgÀÆ ¸ÀºÀ C®è JAzÀgÉ £À£ÀUÉ D §UÉÎ UÉÆwÛ®è."
This version of the accused makes it clear that he is not aware as to relationship of the complainant and said Satish 22 C.C. No.26370/2012 Kumar and his contention is totally imaginary in this regard. In Ex.D13-police petition also there is inconsistency as to alleged relationship of the complainant and Satish Kumar.
24. At this stage, it is to be noted that admittedly the case filed by Satish Kumar against the son of the accused was settled. The contents of Ex.D7 to D9 reveal the same. From the contents of Ex.D9, it is clear that one Satish Kumar had filed cheque bounce case against the son of the accused for Rs.7,84,000/- and the same was settled before lok-adalath on 26.02.2016 as found in Ex.D7 by filing the memo as per Ex.D8. From the contents of Ex.D7, it is clear that on the date of settlement i.e on 26.02.2016, the accused in the said case was not present and complainant was present. After receiving the cheque amount through Demand Draft, the complainant withdraw the case. The order sheet makes it very clear that the complainant i.e, Satish Kumar himself received the Demand Draft for Rs.7,84,000/-. In this regard even the evidence of the accused during cross-examination reveals that Demand Draft given to Satish Kumar in his name only. The accused has specifically stated that " £À£Àß ªÀÄUÀ 7,84,000.00 gÀÆ¥Á¬ÄAiÀÄ£ÀÄß r.r ªÀÄÆ®PÀ ¸ÀwñïPÀĪÀiÁgï gÀªÀjUÉ CªÀgÀ ºÉ¸Àj£À°èAiÉÄà PÉÆnÖzÀÝgÀÄ." From this, it is clear that the accused has falsely contended that the complainant himself had received Rs.7,84,000/- from his son. Hence it is clear that the accused 23 C.C. No.26370/2012 has come up with false contentions knowing its falsehood. Therefore the contentions of the accused cannot be accepted.
25. Yet another contention of the accused as to plea of discharge by settlement is looked into, the accused in his evidence specifically stated that after conviction in this case himself and the complainant settled the matter for Rs.9,50,000/- and he had agreed to pay Rs.9,50,000/- to the complainant. Accordingly he had paid Rs.3,50,000/- by crediting the same to the account of the wife of the complainant - Smt.Jayanti and paid Rs.5,80,000/- in cash to the complainant on different dates. After payment, the complainant had agreed to withdraw this case, but not withdrawn the same, though there is no any due in his favour. In this regard, the accused has produced statement of account relating to his account as per Ex.D11, hand note book as per Ex.D12 and three challans as per Ex.D15. It is pertinent to note that the complainant has admitted the payment of Rs.3,50,000/- to the account of his wife, but not admitted that it was towards payment of the amount involved in this case. In this regard the contents of Ex.D11 and D15 are looked into, it reveals that on 02.07.2014 the accused had paid Rs.30,000/- and Rs.25,000/- on 26.07.2014, Rs.1 lakh on 16.08.2014, Rs.30,000/- on 09.09.2014 through cheque and Rs.30,010 through NEFT on 03.09.2015 to the account of the wife of the complainant. Similarly Ex.D15 24 C.C. No.26370/2012 reveals payment of Rs.1 lakh on 11.04.2015, Rs.15,000/- on 04.02.2015 and Rs.20,000/- on 14.08.2015 to the account of the wife of the complainant. This fact is not in dispute. As argued by the learned counsel for complainant, the contents of the judgment passed by the appellate court is analyzed, the complainant has admitted the receipt of Rs.3,50,000/- in all by his wife from accused No.1 as found in Ex.D11 and D15. But specifically contended that it was towards payment of chit prize amount in favour of his wife and not connected to this case.
26. This contention of the accused is concerned, it is pertinent to note that admittedly the accused was convicted by this court by judgment dated 03.07.2014 and the accused was sentenced to under go imprisonment and also directed to pay the compensation/fine. From the judgment, it is clear that both imprisonment and fine/compensation was imposed. This being the fact, it is not understood, how the accused had settled the matter with the complainant as contended. Even it is clear from the order sheet that on the date of pronouncing the judgment the accused remained absent and this court was pleased to issue open NBW against the accused on the same date for enforcing the judgment. It is further noticed that later on the same date, the accused appeared before the court and filed application for suspension of sentence and accordingly judgment passed was suspended and matter was 25 C.C. No.26370/2012 posted for compliance on 14.07.2014. But on 14.07.2014, since the accused had not furnished the surety, again NBW was ordered to be issued and thereafter open NBW was ordered to be issued by order dated 01.04.2015. It appears that thereafter the accused had preferred appeal. Under these attending circumstances, the contention of the accused that himself and the complainant settled the matter after conviction cannot be accepted. Further from Ex.P11, it is even found that a sum of Rs.30,000/- was paid earlier to the passing of the judgment itself. Therefore the contention of the accused as to payment of Rs.3,50,000/- to the complainant cannot be accepted. It appears that the accused is making his effort to connect the payment made to wife of the complainant to this case which cannot be accepted. It is also pertinent to note that, the accused is found to be well educated and M.Sc., graduate. Such being the fact in the light of the nature of the judgment passed and pendency of NBW, the contention of the accused that he got settled the matter outside the court as contended by him cannot be accepted for any stretch of imagination.
27. So far as the payment of Rs.5,80,000/- by cash as claimed by the accused is concerned, there is no convincing and acceptable evidence. Though the accused has produced hand note book as per Ex.D12 in that regard, the same cannot be accepted for any purpose. The said document is 26 C.C. No.26370/2012 not inspiring the confidence of the court to accept its trustworthiness. On the basis of Ex.D12, it cannot be accepted that the accused had paid any amount to the complainant as contended by him. Therefore the contention of the accused as to plea of discharge as put up by him cannot be accepted in any angle.
28. The accused has produced police petition filed by him against the complainant, his wife and Satish Kumar as per Ex.P13 and acknowledgment given by the police as per Ex.P14. But on going through the said documents, this court is of the considered view that they are no way helpful to the accused in any angle. On the other hand if the evidence of the accused during his cross-examination is considered, it appears that it only after thought tutored petition and an attempt to create the document to support the version of the accused. It appears that only for the name shake the said petition was lodged. The evidence of the accused himself reveals that even he had not enquired as what happened to his said petition. Further though the accused had produced Ex.D1 to D6, on going through the said documents, this court is of the considered view that the said documents are not helpful to the accused to support his contention.
29. The learned counsel for accused during his argument vehemently contended that, since the complainant has claimed interest, he has to file civil suit and the 27 C.C. No.26370/2012 complainant is doing money lending business without license and hence complaint is not maintainable. The learned counsel for accused has also taken notice of this court as to taking of cheque of the son of the accused also by the complainant. But on going through the evidence on record, this court did not find any substance in the submission made. At this stage, this court is also being guided by various decisions relied by the learned counsel for accused. But the evidence with facts and circumstances of this case and the relied decisions are analyzed, none of the relied decisions are applicable to facts of this case in any angle, so as to up hold the contention of the accused.
30. Thus considering all these aspects, material placed, this court is of the considered view that the accused has totally failed prove or probabalize his defense and thereby to rebut the statutory presumptions available in favour of the complainant. It clearly appears from the evidence placed before this court that defence put up by the accused is only after thought without any basis and even found to be too remote to accept its probabilities. The defence put up by the accused is also appears to be a futile effort to escape from the liability, if possible. As already stated unless the accused rebut the statutory presumptions with convincing and cogent evidence, the burden cannot be shifted on the complainant. As discussed the complainant has placed sufficient material to 28 C.C. No.26370/2012 establish his contention as put up by him. The evidence placed before this court is sufficient to accept the case of the complainant that the accused had issued cheque in question towards discharge of legally recoverable debt and the complainant has proved all the requirements of Sec.138 of N.I. Act, so as to constitute the offence against the accused as put up by him. Therefore Point Nos.1 & 2 are required to be answered in affirmative and answered accordingly.
31. Point No.3: As discussed in connection with Point Nos.1 & 2, the complainant has proved his case as to commission of the offence punishable U/s.138 of N.I. Act by the accused. The punishment prescribed for the said offence is imprisonment for a period which may extent to two years or with fine which may extend to twice the amount of the cheque or both. Considering the facts and circumstances of this case, nature, year of the transaction, nature of the instrument involved, provisions of Sec.117 of N.I. Act, cost of litigation, conduct of the accused etc., this court is of the considered view that it is just and desirable to sentence the accused for imprisonment and also to impose fine of Rs.17,00,000/- being the twice the amount of the cheque amount and out of the said amount a sum of Rs.5,000/- has to be remitted to the State and the remaining amount of Rs16,95,000/- is to be given to the complainant as 29 C.C. No.26370/2012 compensation as provided U/s.357(1) of Cr.PC and accordingly Point No.3 is answered in Affirmative.
32. Point No.4: For the reasons discussed in connection with Point Nos.1 to 3 this court proceed to pass the following......
ORDER Acting under Section 255(2) of Cr.PC accused is hereby convicted for the offence punishable under Section 138 of Negotiable Instrument Act. The accused No.1 shall undergo imprisonment for a period of ten months and shall pay fine of Rs.17,00,000/- for the offence punishable U/s.138 of N.I. Act. In default of payment of fine amount, he shall under go further simple imprisonment for a period of two months.
By exercising the power conferred U/s.357(1) of Cr.PC out of total fine amount of Rs.17,00,000/-, a sum of Rs.16,95,000/- is ordered to be paid to the complainant as compensation and Rs.5,000/- is ordered to be remitted to the State.
The bail bond of the accused and that of his surety stands cancelled.
Supply the free copy of this judgment to the accused forth with.
(Typed to my dictation by the stenographer, directly on computer, corrected, signed and then pronounced by me in the open court on this the 7th day of November, 2018) (SHRIDHAR GOPALAKRISHNA BHAT) XIV ADDL. C.M.M., BENGALURU 30 C.C. No.26370/2012 ANNEXURE Witnesses examined for the complainant:
CW.1 : Sri. K.S. Chinnaswamy
Witnesses examined for the defence:
DW.1 : Sri. Sundarajan .M
Documents marked for the complainant:
Ex.P1 to P4 : On demand promissory note with
Consideration receipts
Ex.P1(a) & 2(a) : Signatures of the accused
Ex.P3(a) & 4(a) : Signatures of S. Harish Kumar
Ex.P5 : Cheque
Ex.P5(a) : Signature of the accused
Ex.P6 : Bank endorsement
Ex.P7 : Legal Notice
Ex.P8 & P9 : Postal receipts
Ex.P10 : Speed Post acknowledgement
Ex.P11 : Returned postal cover
Ex.P12 & P13 : Returned notice
Ex.P14 & P15 : Postal receipts
Ex.P16 : Speed Post acknowledgement
Ex.P17 : Returned postal cover
Ex.P18 : Returned notice
Ex.P19 to P21 : Statement of account
Ex.P19(a) : Photograph of son of the accused
Ex.P20(a), (b) &
Ex.P21(a), (b) : Relevant entries in the bank statement
31 C.C. No.26370/2012
Documents marked for the defence:
Ex.D1 : Notarized copy of certificate
Ex.D2 to D5 : Notarized copy of statement of marks Ex.D6 : Certified copy of Sale Deed Ex.D7 : Certified copy of order sheet Ex.D8 : Memo filed in C.C No.27605/2011 Ex.D9 : Certified copy of complaint Ex.D10 : Certified copy of sworn statement Ex.D11 : Statement of account Ex.D12 : Hand dairy Ex.D13 : Police petition Ex.D14 : Acknowledgment Ex.D15 : Three bank challans (SHRIDHAR GOPALAKRISHNA BHAT) XIV ADDL. C.M.M., BENGALURU