[CASE NUMBER] IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITAN MAGISTRATE, BENGALURU Present: Smt. HEMA PASTAPUR B.A., LL.B., XXII Addl. Chief Metropolitan Magistrate, Bengaluru. Dated this the 5th day of July 2018 [CASE NUMBER] Judgment under section 355 of [ACT] Complainant : SRI. DHANARAJU. R, s/o Late [ENTITY], Aged about 60 years, Residing at No.26, 1st 'B' Cross, SVG Nagar, Bengaluru - 560 072. (By Shri [ENTITY], Advocate) V/s Accused : SRI. C. ARAVINDAN, s/o [ENTITY], Aged about 63 years, R/at No.11, 1st Floor, 1st 'B' Cross, SVG Nagar, Bengaluru - 560 072. (By Shri [ENTITY], Advocate) 1 [CASE NUMBER] JUDGMENT
That, the complainant has filed the private complaint under [SECTION] of [ACT], for taking action against the accused for the offence punishable under [SECTION] of the [ACT].
That, the brief facts of the present case are as under:-
1. That, the complainant and accused are well known to each other since eight years and both the families have maintained good relationship. That, the accused in pursuance of said acquaintance on several occasions had availed the hand loan from the complainant and returned the same to him. That, the accused on 15.03.2016 had approached the complainant and expressed his intention that he is intending to purchase a property in J.P. Nagar and for registration of the said property he is in need of a sum of Rs.15,00,000/- and he was applied for bank loan and due to some reasons his said loan application was not approved. That, on 15.03.2016 the accused had requested the complainant for advancing him a sum of Rs.15,00,000/- and agreed to repay the same with an interest at the rate of 2% per month but, the complainant had refused to advance the said [CASE NUMBER] amount to the accused. That, on 20.03.2016 the accused and his wife have approached and requested the complainant for advancing them a sum of Rs.15,00,000/- and on repeated requests made by them the complainant had agreed to advance them a sum of Rs.10,00,000/- and on 28.03.2016 the complainant had advanced a sum of Rs.5,00,000/- to the accused in cash and the wife of the complainant had advanced a sum of Rs.5,00,000/- to the wife of the accused in cash. That, the accused at the time of availing the said loan amount had agreed to repay the same within six months from the date of its availment. That, the accused after receiving the said amount had paid the interest till July 2016 and thereafter, failed to pay the interest. That, the complainant on 04.10.2016 had demanded the accused for repaying his said amount with an interest and at that time the accused sought six months time for arranging the amount and the complainant initially had refused for giving said time to the accused and on persistent demands made by the accused the complainant had agreed to give him a some time and at that time the accused to discharge his legally enforceable debt had issued in favour of the complainant a [CASE NUMBER] Cheque bearing No.681807 dated:-03.04.2017 for a sum of Rs.5,00,000/- drawn on Central Bank of India, Kamalanagar Extension, Bengaluru - 560 079. That, the complainant on 03.04.2017 had presented the said cheque for encashment in Canara Bank, Basaveshwaranagara branch, Bengaluru - 560 079 and on 11.04.2017 the said cheque was returned with the shara as 'kindly contact drawer drawee bank and please present again'.
That, when the complainant informed the accused about the dishonour of said cheque then the accused had requested him for presenting the said cheque for encashment in bank on 15.04.2017. That, the complainant believing the words of the accused on 15.04.2017 had presented the said cheque for encashment in Canara Bank and on 17.04.2017 the said cheque was returned with the shara as 'Funds Insufficient'. That, the complainant for the aforesaid acts of the accused on 11.05.2017 had issued the legal notice to him and the same was duly served upon him on 15.07.2017. That, as the accused inspite of receiving the said notice failed to comply with the terms of the same the complainant has constrained to knock the doors of justice.
[CASE NUMBER]
2. That, on complaint being lodged by the complainant, this court registered the case in concerned register and took the cognizance for the offence punishable under [SECTION] of the [ACT] and thereafter, recorded the sworn statement of the complainant and after satisfying with the materials placed on record registered the case against the accused in Register No. III and issued summons to him. That, the accused in pursuance of said summons appeared before this Court through his Learned counsel and he was enlarged on bail. That, the substance of accusation of the accused has recorded and read over him in language known to him and he has not pleaded guilty and claimed to tried. That, after completion of the complainant side evidence the statement of the accused as contemplated under [SECTION] of [ACT], has recorded and read over him and he denied all incriminating evidence appearing against him.
3. That, I have heard the arguments and perused the materials placed on record. That, the accused has filed his written arguments and I have gone through the same. That, the following points arise for My consideration and determination:-
[CASE NUMBER]
1. Whether the complainant has proved that, the accused to discharge his legally enforceable debt had issued in his favour a Cheque bearing No.681807 dated:-03.04.2017 for a sum of Rs.5,00,000/- drawn on Central Bank of India, Kamalanagar Extension, Bengaluru - 560 079?
2. Whether the complainant has further proved that, the said cheque was dishonoured as 'kindly contact drawer, drawee bank and please present again' and 'Funds Insufficient' and thereby the accused has committed the offence punishable under [SECTION] of the [ACT]?
3. What order?
4. That, the complainant to substantiate his contentions has deposed himself as PW1 and got marked the documents at EXs.P1 to 8 and closed his side.
That, the accused to substantiate his contentions has deposed himself as DW1 and got marked the documents at EXs.D1 to 3. That, the accused to strengthen his contentions has got examined his wife by name Smt. [ENTITY] as DW2 and one Smt. [ENTITY] w/o [ENTITY] as DW3 and closed his side.
[CASE NUMBER]
5. That, My answer to the aforesaid points are as under:-
Point No.1 :- In the AFFIRMATIVE Point No.2 :- In the AFFIRMATIVE Point No.3:- As per the final order for the following:-
REASONS
6. Point No.1:- It is specific contention of the complainant that, on 28.03.2016 he advanced a sum of Rs.5,00,000/- to the accused in cash.
7. It is pertinent to note here that, the accused in his examination-in-chief has contended that he had not availed a sum of Rs.5,00,000/- from the complainant and he has got sufficient source of income. It is pertinent to note here that, the accused at the time of arguments has furnished before the Court the xerox copy of [ENTITY] issued by Block Development Officer of Bengaluru South Taluk, dated:-29.12.1997 to show that in the year 1999 the Government had granted him a site bearing No.61. It is further pertinent to note here that, the accused has also furnished before the Court the xerox copies of Possession certificate issued by Block Development Officer of Bengaluru South Taluk pertaining to the said site, two Tax paid receipts, Form No.21 and Assessment extract pertaining to the said site.
[CASE NUMBER]
8. It is pertinent to note here that, the accused in support of his contentions has placed his reliance on following decisions:-
1. Mr. [PRECEDENT] wherein it has held that when accused has successfully rebutted the presumption then acquittal of accused is just and proper.
2. [PRECEDENT] wherein it has held that if the complainant fails to prove the legally recoverable debt payable by the accused, then acquittal of the accused is proper.
9. It is to be noted here that, the entire burden lies upon the complainant to substantiate that on 28.03.2016 he was possessed with him a sum of Rs.5,00,000/-. That, the complainant in his complaint, in his sworn statement, in his examination-in-chief and Legal notice issued to the accused at EX.P4 has specifically contended that on 28.03.2016 he advanced a sum of Rs.5,00,000/- to the accused in cash. It is pertinent to note here that, the complainant in cross-examination of the accused has got marked one Photo at EX.P7 to substantiate that [CASE NUMBER] he owns a house which contains three floors and in ground floor he runs two shops and one interior office in the name and style of Noha Interior.
It is pertinent to note here that, the accused in cross- examination of the complainant has taken a specific defense that the complainant is having no capacity to pay him a sum of Rs.5,00,000/-. It is pertinent to note here that, though, the accused has taken the said defense but, his wife-DW2 in her cross-examination in page No.2 at 15th line has specifically admitted that, gzzgg iqwg AvzVgvz JAzg j. gzzgg ig 3 CAv Ai AgvgAzg j. gzzgg v zj MAz Ai sUz v iqwz E Gz sU rUUV PngvgAzg j. gzzgg v 5 U rUUV PngvgAzg j. gzzgg ZV Dz Az Cg PmgVgvgAzg j.
[CASE NUMBER] It is pertinent to note here that, the said admissions of the DW2 are quite enough to hold that the complainant is having sufficient income and on 28.03.2016 he was possessed with him a sum of Rs.5,00,000/-. It is to be noted here that, in view of said admissions given by the DW2 the contentions of the accused that the complainant is having no capacity to pay him a sum of Rs.5,00,000/- do not hold water.
10. It is pertinent to note here that, the complainant has specifically contended that on 28.03.2016 he advanced a sum of Rs.5,00,000/- to the accused.
11. It is pertinent to note here that, the accused-DW1 in his examination-in-chief and Reply notice issued by the accused in EX.D1 has taken a defenses that in the year 2013 he was in a financial crisis and for which he availed a sum of Rs.1,00,000/- from the complainant and thereafter, he deposited Rs.87,500/- in the account of the complainant i.e., Account bearing No.2529101011503 of Canara Bank and paid the balance amount to him in cash and he is not liable to pay any amount to the complainant.
[CASE NUMBER]
12. It is significant to note here that, the burden lies upon the complainant to substantiate that on 28.03.2016 he advanced a sum of Rs.5,00,000/- to the accused. It is significant to note here that, the accused as stated above has taken a aforesaid contentions but, in his cross-examination in page No.4 at 7th line has completely traversed from his aforesaid versions. It is to be noted here that, for the sake of convenience the said evidence of the accused has reiterated as under:-
QU FU R ZguAi 2 lz 5 RArPAi gzzgjAz P qzPArgwj JAz z Cz AiU qzPArgwj JAz PzP Q v gzzgjAz Aiz t V qzPArgAz vg.
It is pertinent to note here that, from the said evidence of the accused it clearly appears that he has falsely sworn before the Court. It is to be noted here that, no one can probe hot and cold at the same time. It is pertinent to note here that, at this juncture the conduct of the accused plays a very vital role. It is to be noted here that, from the said evidence of the accused it [CASE NUMBER] clearly appears that to escape from his liability has falsely deposed before the Court. It is pertinent to note here that, from entire evidence of the complainant and accused it clearly appears that the complainant on 28.03.2016 had advanced a sum of Rs.5,00,000/- to the accused. It is pertinent to note here that, the complainant has convincingly proved the existence of legally recoverable debt.
13. It is pertinent to note here that, the complainant has contended that the accused to discharge his legally enforceable debt had issued in his favour a Cheque bearing No.681807 dated:-03.04.2017 for a sum of Rs.5,00,000/- drawn on Central Bank of India, Kamala Nagar branch, Bengaluru - 560 079.
It is pertinent to note here that, the complainant to substantiate his aforesaid contentions in his evidence has got marked a Cheque bearing No.681807 dated:-03.04.2017 for a sum of Rs.5,00,000/- drawn on Central Bank of India, Kamala Nagar branch, Bengaluru - 560 079, at EX.P1.
14. It is pertinent to note here that, the complainant in support of his contentions has placed his reliance on following decisions:-
[CASE NUMBER]
1. [PRECEDENT] Gold Mohar Foods and Feeds Ltd., reported in [CASE NUMBER] wherein it has held that cheque issued for repayment of loan/security makes no difference under [SECTION] of the [ACT] - If the cheque is dishonoured, then the accused is liable to pay the cheque amount.
2. [PRECEDENT], reported in [CASE NUMBER] wherein it has held that [ACT] (26 of 1881), S.138, [SECTION], S.118 - Cheque dishonour complaint - Burden of proving that cheque had not been issued for any debt or liability -
Is on the accused - Denial/averments in reply by accused are not sufficient to shift burden of proof onto the complainant - Accused has to prove in trial by leading cogent evidence that there was no debt or liability - Setting aside of conviction on basis of some formal led by accused - Not proper.
3. Dr. [PRECEDENT], reported in 2006 [CASE NUMBER] wherein it has held that [ACT] (26 of 1881), S.138 -
[CASE NUMBER] Dishonour of cheque - Admission on part of complainant that blank cheque is issued - Inference of - Document marked in evidence by accused which is hand written does not disclose that relevant word should be read as 'Bank' and not 'Blank' - On such doubtful material, it cannot be inferred that there is an admission on part of complainant that a blank cheque is issued.
[ACT] (26 of 1881), S.138, [SECTION] - Dishonour of cheque - Fact that cheque is issued as security for repayment of loan - Is no ground to dismiss complaint - Issuance of cheque proved - Accused did not lead evidence to rebut presumption under [SECTION] with regard to consideration - Accused liable to be convicted.
15. It is pertinent to note here that, the accused in his examination-in-chief and in EX.D1 has specifically contended that in the year 2013 the complainant while advancing him a sum of Rs.1,00,000/- had obtained from him his two blank signed cheques and after repaying the said loan amount though, he [CASE NUMBER] asked the complainant for returning his aforesaid cheques, but he failed to return the same.
16. It is pertinent to note here that, the entire burden lies upon the complainant to substantiate that the accused to discharge his legally enforceable debt had issued in his favour EX.P1. It is pertinent to note here that, the complainant in his complaint, in his examination-in-chief and in EX.P4 has specifically contended that the accused on 04.10.2016 had issued in his favour EX.P1.
It is significant to note here that, the accused in cross- examination of the PW1 has tried to disprove his said justification but, all his efforts were went in vain. It is pertinent to note here that, as stated above the accused though, has taken a specific contention that in the year 2013 the complainant had obtained from his blank signed cheques but, in his cross-examination in page No.4 at 19th line and in page No.5 at 1st line has denied the same and deposed that, QU FU R ZguAi 3 lz 6 RArPAi gzzgjAz P qzP Azsz CjU irg 2 S ZPU szvUV Pngwj JAz [CASE NUMBER] z zj ZPU AiU Pngwj JAz PzP Q v gzzgjU Aiiz ZPU Png Dzg, v AqwAi gzzgg AqwAi PU zj ZPU Q AWPV szvUV PngzV vg.
It is pertinent to note here that, the accused on one hand asserts that in the year 2013 the complainant had obtained from him two cheques as a security and on the other hand denies the same. It is pertinent to note here that, from the said evidence of the accused it clearly appears that he has made a contradictory statements and he is not sure about his defenses. It is to be noted here that, at this juncture the conduct of the accused plays a vital role.
It is pertinent to note here that, the accused in his examination-in-chief in page No.5 at para No.12 has deposed that at about eight years back his wife had issued in favour of Smt. [ENTITY] the wife of the complainant one cheque as a security and he had cleared all the amount which was due to [ENTITY]. It is pertinent to note here that, the [CASE NUMBER] accused in contrary to his aforesaid contentions in his cross- examination in page No.6 at 1st line has deposed that, R ZguAi 12 RArPAi gAv zj cheque U anUV Png.
It is pertinent to note here that, from entire evidence of the accused it clearly appears that on every stage he has made the contradictory statements. It is to be noted here that, from the said evidence of the accused it clearly appears that he has falsely deposed before the Court only with an intention to escape from his liability. It is to be noted here that, the aforesaid contentions and defenses taken by the accused are not acceptable one and they are not trustworthy.
17. It is to be noted here that, DW2 in her examination-in-chief has specifically contended that the wife of the complainant Smt. [ENTITY] at about 8 to 10 years back was running Stri [ENTITY] and she was one of the member of the said sangha and at about 8 to 10 years back she had obtained the loan from the said sangha and at the time availing the said loan amount the said [ENTITY] had asked her for [CASE NUMBER] providing her signed two blank cheques. It is to be noted here that, DW2 has further deposed that as at that time she was not having any cheque book she issued in favour of the said [ENTITY] the cheques pertaining to her husband. It is pertinent to note here that, DW2 has further deposed that later on, the said [ENTITY] failed to return the aforesaid cheques to her. It is pertinent to note here that, DW2 in contrary to her version in her cross-examination in page No.4 has deposed that she and the said [ENTITY] have availed a sum of Rs.3,00,000/- from the said sangha and out of said Rs.3,00,000/- she took a sum of Rs.1,50,000/- and for repayment of the said amount she used to give the cheques of said [ENTITY]. It is pertinent to note here that, from the said evidence of DW2 it clearly appears that to support her husband she has falsely deposed before the Court. That, the said evidence of DW2 is not trustworthy and the same cannot be accepted.
18. It is pertinent to note here that, DW3 in her examination-in- chief has deposed that one [ENTITY] at about 8 to 10 years back was running the said sangha and she was one of the member of the said sangha. It is pertinent to note here that, [CASE NUMBER] DW3 contrary to her aforesaid versions in her cross-examination in page No.2 at 14th line has specifically deposed that, QU FU AWz CzsPg Cx zg DVgwg JAz PzP Q DUPAz Az Dzg, DVgAz vg. QU FU Aii z zj AWz zg DU Agwj JAz PzP Q ig 8-10 U Az v vAiiz r-2 Eg zj AWz zgV vU qvgAz wgvgAz vg. zj Azsz r-2 Eg v U Pgzg. Avg zj AWz z DVg.
It is pertinent to note here that, on one hand DW3 asserts that she was the member of the said sangha and on the other hand deposes that she has not become the member of the said sangha. It is to be noted here that, from the said evidence of DW3 it clearly appears that she has falsely deposed before the Court. It is to be noted here that, as stated above DW2 has [CASE NUMBER] specifically deposed that she and DW3 have availed a sum of Rs.3,00,000/- from the said sangha and whereas, DW3 in her cross-examination in page No.3 at 11th line has specifically admitted that as she was not member of the said sangha she had not availed any loan amount from anybody. It is pertinent to note here that, from entire evidence of DWs.2 and 3 it clearly appears that there is no corroboration in their evidence. It is pertinent to note here that, from entire evidence of DWs.1, 2 and 3 it clearly appears that DW1 to discharge his legally enforceable debt had issued in favour of the complainant EX.P1. It is to be noted here that, the complainant with all preponderance of probabilities has proved that the accused to discharge his legally enforceable debt had issued in his favour EX.P1. It is to be noted here that, in view of My above findings and without much discussion I hold that, the complainant has convincingly proved that the accused to discharge his legally enforceable debt had issued in his favour EX.P1. In view of the same, point no.1 is answered in the AFFIRMATIVE.
19. Point No.2:- It is specific contention of the complainant that, he presented the EX.P1 for encashment in Canara Bank , [CASE NUMBER] Basaveshwaranagar branch, Bengaluru - 560 079 and on 11.04.2017 the same was returned with the shara as 'kindly contact drawer, drawee bank and please present again'. That, the complainant has further contended that when he informed the accused about the dishonour of EX.P1, the accused had requested him for presenting EX.P1 in bank on 15.04.2017 and believing the words of the accused on 15.04.2017 he presented the said cheque for encashment in Canara Bank and on 17.04.2017 the same was returned with the shara as 'Funds Insufficient'.
It is to be noted here that, the complainant to substantiate his aforesaid contentions in his evidence has got marked the Cheque return memo's issued by the said bank at EXs.P2 and 3.
It is pertinent to note here that, from perusal of EXs.P2 and 3 it clearly appears that the EX.P1 was dishonoured as 'kindly contact drawer, drawee bank and please present again' and as 'Funds Insufficient'.
20. It is to be noted here that, at this juncture I have gone through the provisions of [SECTION] of [ACT] and which contemplate as under:-
[CASE NUMBER] Bank's slip prima facie evidence of certain facts:- The Court shall, in respect of every proceeding under this Chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has, been dishonoured, presume the fact of dishonor or such cheque, unless and until such fact is disproved.
It is pertinent to note here that, the instant case the accused has failed to rebut the presumptions envisaged in [SECTION] of the [ACT]. It is to be noted here that, in view of My above findings and without much discussion I hold that, the complainant has convincingly proved that the accused has committed the offence punishable under [SECTION] of [ACT]. In view of the same, point No.2 is answered in the AFFIRMATIVE.
21. Point No.3:- That, as discussed on points No.1 and 2, I proceed to pass the following:-
ORDER That, acting under [SECTION] of [ACT], the accused is convicted for the offence punishable under [SECTION] of the [ACT].
[CASE NUMBER] That, the accused shall deposit a fine amount of Rs.5,00,000/- and if he fails to deposit the said fine amount then he shall undergo a simple imprisonment for three months.
That, on deposit of total fine amount of Rs.5,00,000/-, Rs.4,98,000/- shall be paid to the complainant as a compensation as provided under [SECTION] of [ACT] and Rs.2,000/- shall be remitted to the State Exchequer.
That, the office is to furnish the free copy of this Judgment to the accused forthwith.
(Dictated to Stenographer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 5th day of July 2018) ([ENTITY]) XXII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of witnesses examined on behalf of complainant:-
PW.1 : Shri [ENTITY] R s/o late [ENTITY]. [CASE NUMBER]
List of exhibits marked on behalf of complainant:-
Ex.P1 : Original cheque; Ex.P1(a) : Signature of the accused; Exs.P2 and 3 : Cheque return memo's; Ex.P4 : Legal notice dated:-10.05.2017; Ex.P5 : Postal receipt; Ex.P6 : Postal acknowledgement; Ex.P7 : Photo and Ex.P8 : Certified copy of Complaint in [CASE NUMBER].
List of witnesses examined on behalf of the accused:-
DW.1 : Shri [ENTITY] s/o [ENTITY];
DW.2 : Smt. [ENTITY] w/o [ENTITY] and DW.3 : Smt. [ENTITY] w/o [ENTITY].
List of exhibits marked on behalf of the accused:-
Ex.D1 : Reply notice dated:-24.05.2017; Ex.D2 : Postal receipt and Ex.D3 : RPAD cover.
XXII Addl. Chief Metropolitan Magistrate, Bengaluru.