[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 16th day of July 2018 [CASE NUMBER] Judgment under section 355 of [ACT] Complainant : BALACHANDRA. K.J., s/o Late [ENTITY], Aged about 47 years, R/at No.445, 4th Main, 10th Cross, Rajajinagar Housing Society Layout, Annapurneswari Nagar, Nagarabhavi, Bengaluru - 560 091, Occupation:- Employee. (By Shri [ENTITY], Advocate) V/s Accused : [ENTITY], s/o [ENTITY], Proprietor of Shree Agency, 1 [CASE NUMBER] No.75, 2nd D Main Road, 8th Block, Koramangala, Bengaluru - 560 095. Also Residential address:- [ENTITY], s/o [ENTITY], Aged about 50 years, R/at No.B-7, KEB Quarters, 2nd Main, 1st Block, Thyagaraja Nagar, Basavanagudi, Bengaluru - 560 028, Occupation:- Business. (By Shri [ENTITY], Advocate) 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 accused is doing the business of distribution of Aachi Masala Products in the name and style of Shree Agency.
[CASE NUMBER] That, the accused and complainant are friends and the accused for his said business had availed a sum of Rs.9,50,000/- from the complainant on various dates as under:-
i) on 24.02.2014 Rs.2,00,000/- in cash. That, the complainant had obtained the said amount from the HDFC Bank as a loan;
ii) on 26.02.2014 Rs.1,30,000/- in cash. That, the complainant had withdrawn the said amount from ATM of HDFC Bank;
iii) on 22.07.2014 Rs.1,10,000/- in cash. That, the complainant had withdrawn the said amount from ATM of Canara Bank;
iv) on 23.07.2014 Rs.50,000/-. That, the complainant had deposited the said amount in bank account of the accused i.e., Sri Matha Mahila Sahakari Bank Niyamitha, No.403/803, 8th Main Road, 10th Cross, Shastrinagar, BSK 2nd Stage, Bengaluru -
560 028;
v) on 23.07.2014 Rs.50,000/-. That, the complainant had deposited the said amount in bank account of the accused [CASE NUMBER] i.e., Corporation Bank, Koramangala 8th Block, Bengaluru - 560 095;
vi) on 05.01.2015 Rs.1,34,000/- in cash. That, the complainant had got the said amount from his provident fund and salary;
vii) on 11.02.2015 Rs.1,66,000/- in cash. That, the complainant had got the said amount from his mother by name Smt. [ENTITY] and
viii) on 21.02.2015 Rs.1,10,000/- in cash. That, the complainant had withdrawn the said amount from ATM of Andhra Bank.
2. That, the complainant in the month of March 2017 had asked the accused for repayment of his said amount and at that time the accused to discharge his legally enforceable debt had issued in favour of the complainant an account payee Cheque bearing No.415435 dated:-01.03.2017 for a sum of Rs.9,50,000/- drawn on Corporation Bank, Koramangala 8th Block, Bengaluru - 560 095 and also executed in favour of the complainant On demand promissory note. That, the complainant had presented the said cheque for encashment in HDFC Bank, Rajarajeshwari [CASE NUMBER] Nagar, Site No.188, 4th Stage, Halagevadarahalli Layout, Rajarajeshwari Nagar, Bengaluru - 560 098 and on 08.03.2017 the said cheque was returned with the shara as 'Insufficient Funds' in the account of the accused. That, the complainant for the aforesaid acts of the accused on 20.03.2017 had issued the legal notices to his residential and office addresses and the notice sent to his residential address was duly served upon him on 25.03.2017 and as per Tracking report the notice sent to his office address was duly served upon him on 21.03.2017. That, as the accused inspite of receiving the said notices failed to comply with the terms of the same the complainant has constrained to knock the doors of justice.
3. 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 on 10.07.2017 appeared before this Court voluntarily [CASE NUMBER] 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.
4. That, I have heard the arguments and perused the materials placed on record. That, the following points arise for My consideration and determination:-
1. Whether the complainant has proved that, the accused to discharge his legally enforceable debt had issued in his favour an account payee Cheque bearing No.415435 dated:-01.03.2017 for a sum of Rs.9,50,000/- drawn on Corporation Bank, Koramangala 8th Block, Bengaluru - 560 095?
2. Whether the complainant has further proved that, the said cheque was dishonoured as 'Funds Insufficient' in the account of the accused and thereby the accused has committed the offence punishable under [SECTION] of the [ACT]?
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3. What order?
5. That, the complainant to substantiate his contentions has deposed himself as PW1 and got marked the documents at EXs.P1 to 21. That, the complainant to strengthen his contentions has got examined one Shri [ENTITY] s/o [ENTITY] as PW2 and closed his side.
That, the accused to substantiate his contentions has deposed himself as DW1 and got marked the document at EX.D1 and closed his side.
6. 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
7. Point No.1:- It is specific contention of the complainant that, the accused is the owner of Shree Agency and he is doing the business of distribution of Aachi Masala Products and the accused on various dates had availed from him a sum of Rs.9,50,000/- as follows:-
[CASE NUMBER]
i) on 24.02.2014 Rs.2,00,000/- in cash;
ii) on 26.02.2014 Rs.1,30,000/- in cash;
iii) on 22.07.2014 Rs.1,10,000/- in cash;
iv) on 23.07.2014 Rs.50,000/-; v) on 23.07.2014 Rs.50,000/-; vi) on 05.01.2015 Rs.1,34,000/- in cash;
vii) on 11.02.2015 Rs.1,66,000/- in cash and
viii) on 21.02.2015 Rs.1,10,000/- in cash.
8. It is pertinent to note here that, the accused in his examination-in-chief has deposed that he had not availed any loan amount from the complainant and he is not liable to pay any amount to him. It is specific contention of the accused that, on 22.02.2014 he asked the complainant for advancing him a sum of Rs.1,00,000/- and for which the complainant on 22.06.2014 and 28.02.2014 had transferred to his account a sum of Rs.50,000/- respectively and in the month of May 2014 he returned the said amount to the complainant. That, the accused has further deposed that in the year 2014 he asked the complainant for advancing him a sum of Rs.1,00,000/- and for which the complainant on 23.07.2014 for twice had transferred a sum of [CASE NUMBER] Rs.50,000/- to his account and he returned the said amount to the complainant in the month of January 2015. It is to be noted here that, the accused in cross-examination of the complainant has taken the contention that the complainant is having no capacity to advance him a sum of Rs.9,50,000/-.
9. It is pertinent to note here that, the accused in support of his contentions has placed his reliance on following decisions:-
1. [PRECEDENT] wherein it has held that Debt, Financial and Money Laws - [ACT]- Ss. [SECTION], 118 and 139 - Dishonour of cheque - Legally recoverable debt not proved as complainant could not prove source of income from which alleged loan was made to appellant-accused-
Presumption in favour of holder of cheque, hence, held, stood rebutted- Acquittal rebutted.
2. [PRECEDENT] wherein it has held that before considering the conduct of the accused to find out as to whether or not he has been able to rebut the statutory presumption [CASE NUMBER] available under [SECTION], the Courts ought to have considered as to whether the complainant has proved the existence of legally enforceable debt. It is only after satisfying that the complainant has proved existence of legally enforceable debt or liability, the Courts could have proceeded to draw presumption under [SECTION] of the [ACT] and thereafter, find out as to whether or not the accused has rebutted the said presumption - Judgment of conviction and sentence are liable to be set aside - Accused is acquitted.
3. [PRECEDENT], reported in [PRECEDENT] wherein it has held that [ACT] - [SECTION], [SECTION] and [SECTION] - Presumption under [SECTION] and [SECTION] is rebuttal - Whether presumption rebutted or not would depend upon facts and circumstances of each case. Burden on accused to rebut the presumption can be discharged by preponderance of probabilities - Court can draw inference from material brought on record as well as circumstances relied upon by accused.
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10. It is pertinent to note here that, the burden lies upon the complainant to substantiate that in the year 2014-15 he was possessed with him a sum of Rs.9,50,000/-.
It is pertinent to note here that, as stated above the complainant in his complaint, in his examination-in-chief and notice issued to the accused at EX.P3 has specifically contended that on 22.07.2014 he paid Rs.1,10,000/- in cash and he withdrawn the said amount from ATM of Canara Bank. It is pertinent to note here that, the complainant to substantiate his aforesaid contentions has mainly relied upon EX.P9-his Statement of account pertaining to Canara Bank. It is pertinent to note here that, from perusal of EX.P9 it clearly appears that the complainant from ATM from 21.07.2017 to 22.07.2014 had withdrawn amount such as Rs.50,000/-, Rs.15,000/-, Rs.10,000/-, Rs.15,000/- and Rs.10,000/-. It is pertinent to note here that, the accused in cross-examination of the complainant has tried to prove that in EX.P9 it has not been mentioned that the complainant by withdrawing the amount had paid the same to him, but, all his efforts were went in vain.
[CASE NUMBER] It is pertinent to note here that, the complainant has further contended that on 21.02.2015 he paid a sum of Rs.1,10,000/- to the accused in cash and he withdrawn the same from ATM of Andhra Bank. It is pertinent to note here that, the complainant to substantiate his aforesaid contentions has mainly relied upon EX.P10-his Statement of account pertaining to Andhra Bank. It is pertinent to note here that, from perusal of EX.P10 it clearly appears that on various dates the complainant had withdrawn the amount from his ATM. It is pertinent to note here that, the accused in cross-examination of the complainant has tried to prove that in EX.P10 it has not been mentioned that the complainant by withdrawing the amount had paid the same to him, but, all his efforts were went in vain.
It is further contention of the complainant that, on 11.02.2015 he paid a sum of Rs.1,66,000/- to the accused in cash and he had got the said amount from his mother's bank account i.e., Andhra Bank. It is pertinent to note here that, the complainant to substantiate his aforesaid contentions has further mainly relied upon EX.P10. It is pertinent to note here that, from perusal of EX.P10 it appears that sum of Rs.1,66,000/- was [CASE NUMBER] withdrawn on 11.02.2015. It is pertinent to note here that, the accused in cross-examination of the complainant has tried to establish that the complainant had withdrawn the said amount from his mother's account and utilized for his own purpose, but, all his efforts were went in vain.
It is pertinent to note here that, the complainant has further contended that on 24.02.2014 he paid a sum of Rs.2,00,000/- to the accused in cash and he had obtained the said amount as a loan from his HDFC Bank and on 05.01.2015 he advanced a sum of Rs.1,34,000/- to the accused in cash and he had obtained the said amount from his provident fund and salary and further contended that on 26.02.2014 he advanced a sum of Rs.1,30,000/- to the accused in cash and he had withdrawn the said amount from ATM of HDFC Bank. It is pertinent to note here that, the accused in cross-examination of the complainant has tried to disprove the aforesaid justification of the complainant but, failed to elicit anything from his mouth.
It is pertinent to note here that, the complainant has further contended that on 23.07.2014 he had deposited a sum of Rs.50,000/- in bank account of the accused. It is pertinent to [CASE NUMBER] note here that, the accused in his cross-examination in page No.14 has admitted that, on 23.07.2014 the complainant had transferred a sum of Rs.50,000/- for twice to his account.
It is significant to note here that, from perusal of entire evidence of the complainant and the documents got marked by him it clearly appears that during the year 2014-15 he was possessed with him a sum of Rs.9,50,000/-.
11. It is significant to note here that, the complainant has contended that on various dates he advanced a sum of Rs.9,50,000/- and whereas, the accused has denied the said contention of the complainant and as stated above has contended that he had availed a sum of Rs.2,00,000/- from the complainant and he repaid the same. It is to be noted here that, the accused to substantiate his aforesaid contentions has not produced before the Court any document.
It is pertinent to note here that, it is well settled law that mere plausible explanation is not sufficient. It is to be noted here that, on mere assertion the Court cannot accept the case of the accused. It is pertinent to note here that, the complainant has convincingly proved the existence of legally recoverable debt.
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12. It is pertinent to note here that, the complainant has specifically contended that the accused to discharge his legally enforceable debt had issued in his favour an account payee Cheque bearing No.415435 dated:-01.03.2017 for a sum of Rs.9,50,000/- drawn on Corporation Bank, Koramangala 8th Block, Bengaluru - 560 095, at EX.P1.
13. It is pertinent to note here that, the complainant in support of his contentions has placed his reliance on following decisions:-
1. [ENTITY] -vs- [ENTITY], reported in 2007 (2) DCR 241 wherein it has held that [ACT] - [SECTION] and 139 - Dishonour of cheque -
Effect of denial of issuance of cheque - Held - Once cheque is duly signed by accused mere denial of issuance of cheque is not sufficient to rebut the presumption available under [SECTION] of [ACT].
2. Smt. [ENTITY] -vs- [ENTITY], reported in 2006 Crl.L.J. 904 wherein it has held that [ACT] (26 of 1881), S. [SECTION], S.139 - Dishonour of cheque - Issuance of cheque and signature on cheque is accepted and admitted by accused - Initial [CASE NUMBER] presumption has to be raised in favour of complainant that cheque in question was issued towards 'legally recoverable debt' - Presumption being rebuttal such rebuttal evidence has to be placed before Court by accused - By giving mere explanation, accused cannot get away from penal action - Defence raised by accused must be probable or acceptable to Court.
3. [PRECEDENT] wherein it has held that [ACT] - [SECTION] - Presumption - Determination - Held - Whenever cheques are issued, a presumption has to be drawn under [SECTION] of [ACT] that cheque has been issued towards discharge of his liability and the said presumption also includes the presumption of existence of legally enforceable debt or liability.
14. It is pertinent to note here that, the accused in his evidence has specifically contended that at the time of availing a sum of Rs.1,00,000/- from the complainant, the complainant had obtained from him his signed blank cheque and On demand [CASE NUMBER] promissory note at EXs.P12 and 13 and when he asked the complainant for returning his said cheque and EXs.P12 and 13 he failed to return the same. That, the accused has further contended that as he refused to take the complainant as a partner in his said business the complainant had misused the cheque in question and EXs.P12 and 13 and filed the present false case against him.
It is pertinent to note here that, the complainant in support of his contentions in his evidence has got marked his Account statement pertaining to Corporation Bank at EX.D1.
15. It is pertinent to note here that, the accused in support of his contentions has placed his reliance on following decisions:-
1. [PRECEDENT] wherein it has held that [ACT] - [SECTION] - Offence under -
Acquittal - Complainant's Appeal - Cheque issued not for discharge of any existing debt, but issued as a security for advancing loan - Presumption - Held. That the cheque issued by the respondent to the appellant is only as a security and not for discharge of any existing debt. So far [CASE NUMBER] as the presumption as to issuance of the cheque for consideration and in discharge of debt, the respondent/accused need not disprove the appellant's case in its entirety. He can discharge his burden on the basis of preponderance of probabilities through direct or circumstantial evidence, for which he can also reply on the evidence adduced by the complainant - Evidence on record clearly establishes that the cheque was not issued towards discharge of any legally enforceable debt, but the blank signed cheque was issued as security - Order of acquittal is justified.
2. [PRECEDENT] wherein it has held that the pro-note or a cheque does not constitute security. Because they have no inherent tangible asset value unlike movable or immovable properties offered as pledge or mortgage.
3. M/s. [ENTITY] Irrigation [ENTITY], -vs- [ENTITY], reported in 2006 (2) DCR 602 wherein it has held that [ACT] - [SECTION] - Dishonour of cheque - Acquittal - Validity [CASE NUMBER] of - Appreciation of evidence - Accused was authorized dealer - Purchased equipment and sale it - Statement shows that no transaction take place on the date of cheque - No amount due on such period - Cheque issued blank as security - Consideration of - Held - Petition devoid merit - No offence made out under - Order of acquittal is just and proper - Rejected application.
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.
17. It is pertinent to note here that, the accused in cross- examination of the complainant has tried to establish that at the time of availing a sum of Rs.1,00,000/- from the complainant he issued EX.P1 in his favour as a security. It is pertinent to note here that, the accused to substantiate that he had issued the cheque in question in favour of the complainant as a security has not produced before the Court any document. It is pertinent to note here that, in absence of any cogent, reliable and material evidence the said contention of the accused cannot be accepted and believed. It is pertinent to note here that, the accused in [CASE NUMBER] cross-examination of the complainant has tried to elicit that as per EX.D1 he issued in his favour Cheques bearing No.415425 to 415434, 415436 to 415445 and the said cheques have honoured and issued the cheque in question as a security and the same was not honoured. It is pertinent to note here that, as stated above in absence of any material evidence the contention of the accused that he issued the cheque in question in favour of the complainant as a security cannot accepted and believed. It is to be noted here that, as stated above the accused has not produced before the Court any document to substantiate that he issued the said cheque in favour of the complainant as a security.
It is pertinent to note here that, the complainant in cross- examination of the accused has also elicited that the accused had issued in his favour the cheques as per EXs.P14, 16, 18 and 20 and the said cheques have dishonoured as per EXs.P15, 17, 19 and 21. It is to be noted here that, in absence of any material evidence the contention of the accused that he issued the cheque in question to the complainant as a security cannot be believed and accepted.
[CASE NUMBER] It is pertinent to note here that, the PW2 has supported the case of the complainant and deposed that the accused had executed in favour of the complainant EXs.P12 and 13. It is to be noted here that, the accused in cross-examination of the complainant and PW2 has tried to elicit that EXs.P12 and 13 were created for the purpose of the present case, but, his all efforts were went in vain. It is pertinent to note here that, though, there are some discrepancies but, they will not vitiate the entire case of the complainant.
It is pertinent to note here that, the accused in his cross- examination has admitted that his signature appearing on EX.P1. It is pertinent to note here that, as the signature in the cheque is admitted by the accused, then the presumption envisaged under [SECTION] can legally inferred that the cheque was made over to the drawer for consideration on the date which the cheque bears. It is to be noted here that, [SECTION] of the [ACT], enjoins on the Court to presume that the holder of the cheque is received it for discharge of sum debt or liability. It is to be noted here that, a plausible explanation is not sufficient for rebuttal evidence, but, the proof of explanation is necessary.
[CASE NUMBER] It is pertinent to note here that, from entire evidence of the accused it clearly appears that he had issued the cheque in question in favour of the complainant to discharge his legally enforceable debt. 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.
18. Point No.2:- It is specific contention of the complainant that, he presented the EX.P1 for encashment in HDFC Bank, Rajarajeshwari Nagar, Site No.188, 4th Stage, Halagevadarahalli Layout, Rajarajeshwari Nagar, Bengaluru - 560 098 and on 08.03.2017 the same was returned with the shara as 'Funds Insufficient' in the account of the accused.
It is to be noted here that, the complainant to substantiate his aforesaid contentions in his evidence has got marked the Cheque return memo issued by the said bank at EX.P2.
It is pertinent to note here that, from perusal of EX.P2 it clearly appears that the EX.P1 was dishonoured as 'Funds Insufficient' in the account of the accused.
[CASE NUMBER]
19. 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:-
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.
20. Point No.3:- That, as discussed on points No.1 and 2, I proceed to pass the following:-
[CASE NUMBER] ORDER That, acting under [SECTION] of [ACT], the accused is convicted for the offence punishable under [SECTION] of the [ACT].
That, the accused shall deposit a fine amount of Rs.9,50,000/- and if he fails to deposit the said fine amount then he shall undergo a simple imprisonment for one year.
That, on deposit of total fine amount of Rs.9,50,000/-, Rs.9,45,000/- shall be paid to the complainant as a compensation as provided under [SECTION] of [ACT] and Rs.5,000/- 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 16th day of July 2018) ([ENTITY]) XXII Addl. Chief Metropolitan Magistrate, Bengaluru.
[CASE NUMBER] ANNEXURE List of witnesses examined on behalf of complainant:-
PW.1 : Shri [ENTITY] s/o Late [ENTITY] and PW.2 : Shri [ENTITY] s/o [ENTITY].
List of exhibits marked on behalf of complainant:-
Ex.P1 : Original cheque; Ex.P1(a) : Signature of the accused; Ex.P2 : Cheque return memo; Ex.P3 : Legal notice dated:-20.03.2017; Ex.P4 : Postal receipts; Ex.P5 : Postal acknowledgement; Ex.P6 : Track consignment; Ex.P7 : Letter dated:-14.07.2014 issued by BGS Global Hospital, Bengaluru; Ex.P8 : Statement of account pertaining to HDFC Bank; Ex.P9 : Statement of account pertaining to Canara Bank; Ex.P10 : Statement of account pertaining to Andhra Bank; Ex.P11 : Challan; Ex.P12 : On demand pro-note dated:-01.03.2017; Ex.P12(a) : Signature of the accused; Ex.P12(b) : Signature of the Anand Kumar; Ex.P13 : Consideration receipt; Ex.P13(a) : Signature of the accused; [CASE NUMBER] Ex.P13(b) : Signature of the Anand Kumar; Ex.P14 : Original cheque No.427232; Ex.P15 : Cheque return memo; Ex.P16 : Original cheque No.398291; Ex.P17 : Cheque return memo; Ex.P18 : Original cheque No.427222; Ex.P19 : Cheque return memo; Ex.P20 : Original cheque No.118189 and Ex.P21 : Cheque return memo.
List of witnesses examined on behalf of the accused:-
DW.1 : Shri [ENTITY] s/o [ENTITY].
List of exhibits marked on behalf of the accused:- Ex.D1 : Statement of account pertaining to Corporation Bank.
XXII Addl. Chief Metropolitan Magistrate, Bengaluru.