Bangalore District CourtSri. Raj Krishna. Murthy vs Sri. K. Mahadeva on 20 October, 2018C.C.NO.27657/2017


   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 20th day of October 2018

                     C.C.No.27657/2017

   Judgment undersection 355of Code of Criminal Procedure

Complainant :         Sri. Raj Krishna. Murthy,
                      s/o Raju Naidu,
                      Aged about 75 years,
                      No.25, Model LIC Colony,
                      15th main road, 3rd stage,
                      4th block, Basaveshwaranagar,
                      Beganluru-560 079.
                      (By Shri K. P. Thrimurthy, Advocate)
                               V/s
Accused :              Sri. K. Mahadeva,
                       s/o Kempaiah, Major,
                       D. Thammandrapalli village,
                       Denkanikotta road-635 113,
                       Krishnagiri District.




                                                                     1
                                                      C.C.NO.27657/2017


                        Also at :-
                        Sri. K. Mahadeva,
                        s/o Kempaiah,
                        New Shanthi Sagar,
                        Om Shakthi Tower,
                        Opp. To Sub Collector Office,
                        Denkanikotta road-635113,
                        Hosur, Tamil Nadu.

                       (By Shri Babu, Advocate)

                              JUDGMENTThat, the complainant has filed the private complaint undersection 200of Code of Criminal Procedure, for taking action against

the accused for the offence punishable undersection 138of the

Negotiable Instruments Act.That, the brief facts of the present case are as under:-1.    That, the complainant and accused are known to each other

several years and the accused in pursuance of said acquaintance in

the month of July 2014 had approached and requested the

complainant for advancing him a sum of Rs.2,00,000/- for his

business purpose. That, the complainant considering the said need of

the accused in the month of July 2014 had advanced him the said2C.C.NO.27657/2017


amount and the accused for availing the said amount on 17.07.2014

had executed a letter and though, agreed to repay the said amount

within three years with an interest at the rate of 24% per month but,

failed to do so. That, on persistent demands made by the

complainant the accused including the interest had issued in favour

of the complainant a Cheque bearing No.000008 dated:-25.04.2017

for a sum of Rs.2,65,000/- drawn on City Union Bank Ltd., Hosur,

123 Denkanikota road, Hosur-635 019. That, the complainant had

presented the said cheque for encashment in bank and the said

cheque was returned with the shara as 'Insufficient funds' in the

account of the accused and when the complainant informed the

accused about the dishonour of said cheque then he issued in his

favour another cheque bearing No.000009 dated:-25.09.2017 for a

sum of Rs.2,65,000/- drawn on City Union Bank Ltd., Hosur, 123

Denkanikota road, Hosur-635 019. That, the complainant had

presented the said cheque for encashment in Syndicate Bank,

Basaveshwaranagar branch, Bengaluru and on 27.09.2017 the same

was returned with the shara as 'Insufficient funds'. That, the

complainant for the aforesaid acts of the accused on 03.10.2017 had3C.C.NO.27657/2017


issued the legal notice to him through RPAD and the complainant

through website came know that the said notice was duly served

upon him on 05.10.2017 and 07.10.2017. That, as the accused in

spite of receiving the said notice failed to comply with the terms of

the same the complainant has constrained to knock the doors of

justice.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 undersection 138of the Negotiable

Instruments 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 undersection 313of the Code of Criminal Procedure,4C.C.NO.27657/2017


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 complainant and accused have submitted

their written arguments and I have gone through the same. 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 a

Cheque bearing No. 000009 dated:-25.09.2017 for a sum of

Rs.2,65,000/-   drawn   on   City   Union   Bank   Ltd.,   Hosur,   123

Denkanikota road, Hosur-635 019?2. Whether the complainant has further proved that, the said cheque

was dishonoured as 'Insufficient funds' in the account of the accused

and thereby the accused has committed the offence punishable

undersection 138of the Negotiable Instruments Act?3. What order?5C.C.NO.27657/20174.   That, the complainant to substantiate his aforesaid contentions

has deposed himself as PW1 and got marked the documents at

EXs.P1 to 6(a) and closed his side.That, the accused to substantiate his contentions has deposed

himself as DW1 and not adduced any documentary evidence on his

behalf.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,

accused in the month of July 2014 had approached and requested

him for advancing him a sum of Rs.2,00,000/- for his business

purpose and considering the said need of the accused in the month

of July 2014 he advanced him the said amount.7.   It is pertinent to note here that, the accused in his examination- in - chief has contended that complainant and one Shri S. Raj

Vivekanand on 18.04.2013 have leased out him the premises and6C.C.NO.27657/2017


period of the said lease was for five years and he paid them

Rs.6,00,000/- as an advance amount and the rent for the said

premises was fixed as Rs.32,000/- per month. It is pertinent to note

here that, the accused to substantiate his contentions has produced

before the court the xerox copy of the Lease deed dated:-18.04.2013. It is pertinent to note here that, in the instant case it is

an admitted fact that the accused is tenant of the said premises.8.     It is pertinent to note here that, accused in his examination -

in -chief has taken a specific defenses that in the month of July 2014

he had not borrowed Rs.2,00,000/- from the complainant and he is

not liable to pay him the said amount. That, the accused has further

contended that on 05.01.2017 he availed a sum of Rs.50,000/- from

the complainant for the purpose of development of his hotel

business and as the complainant threatened him he paid him a sum

of Rs.25,000/- and he is in due to pay him a sum of Rs.25,000/-.9.   It is pertinent to note here that, the entire burden lies upon the

complainant to substantiate that in the month of July 2014 he had

advanced a sum of Rs.2,00,000/- to the accused. It is pertinent to

note here that, the complainant in his complaint, in his examination-7C.C.NO.27657/2017


in-chief and in Legal notice-EX.P6 has specifically contended that in

the month of July 2014 he advanced a sum of Rs.2,00,000/- to the

accused. It is pertinent to note here that, the complainant has

mainly relied upon Letter issued by the accused dated:-17.07.2014 -

EX.P1. It is pertinent to note here that, from perusal of EX.P1 it

appears that the accused had availed a sum of Rs.2,00,000/- from

the complainant and agreed to repay the same with an interest at

the rate of 24% per month. It is significant to note here that, the

accused though, has cross-examined the complainant in length but,

failed to rebut his contentions.It is pertinent to note here that, the accused has not

produced before the court any document to substantiate that on

05.01.2017 he had availed a sum of Rs.50,000/- from the

complainant and in said amount he repaid him a sum of Rs.25,000/-.

It is pertinent to note here that, in absence of any material, cogent

and reliable evidence the said contentions of the accused cannot be

believed and accepted.10.     It   is pertinent to note here that, the accused has taken

specific defense that the complainant at the time of advancing him a8C.C.NO.27657/2017


sum of Rs.50,000/- had obtained his signature on one blank paper.

It is significant to note here that, the accused is not a lay man and

an illiterate person, he is a B. A. graduate. It is significant to note

here that, the accused has not explained why he had signed on said

blank paper. It is pertinent to note here that, the said conduct of the

accused creates a sort kind of doubt in the mind of the Court. It is

pertinent to note here that, the said version of the accused is highly

improbable and cannot be believed and accepted. It is pertinent to

note here that, the accused in cross-examination of the complainant

even has not made a single suggestion that the complainant had

created the EX.P1 for the purpose of this case. It is pertinent to note

here that, the accused in his statement recoded by this Court underSection 313of Code of Criminal Procedure, has not stated the

complainant had obtained his signature on blank paper. It is

pertinent to note here that, from the said conduct of the accused an

adverse inference can be drawn that in the month of July 2014 he

had availed a sum of Rs.2,00,000/- from the complainant and for

receiving the said amount had executed the EX.P1.9C.C.NO.27657/2017


       It is pertinent to here that, from the evidence of the accused

it appears that he had received the Legal notice- EX.P6 issued by the

complainant and for said notice he had not issued his reply. It is

pertinent to note here that, the accused in cross-examination of the

accused has taken a defenses that, on receiving the EX.P6 he

approached the complainant and as at that time the complainant had

informed him that there is no necessity to give the reply to the said

notice not issued the reply notice.It is pertinent to note here that, as stated above the

accused is not a layman and an illiterate person, he is a B. A.

graduate. It is pertinent to note here that, at this juncture the

conduct of the accused plays a vital role. It is pertinent to note here

that, if the accused fails to give the reply to the notice of the

complainant then the presumption arises that he has accepted the

complainant's version. It is pertinent to note here that, the said

conduct of the accused reveals that as he has accepted the case of

the complainant not issued his reply to him. It is pertinent to note

here that, from entire evidence of the complainant and conduct of

the accused it clearly appears that the accused in the month of10C.C.NO.27657/2017


July 2014 had availed from the complainant a sum of Rs.2,00,000/

and for receiving the said amount had executed the EX.P1. It is

significant to note here that, the complainant with all preponderance

of probabilities has proved the existence of legally recoverable debt

and the accused has failed to rebut the said contentions of the

complainant.11.    It is specific contention of the complainant that, the accused

to discharge his legally enforceable debt had issued in his favour a

Cheque bearing No.000008 dated:-25.04.2017 for a sum of

Rs.2,65,000/- drawn on City Union Bank Ltd., Hosur, 123

Denkanikota road, Hosur-635 019 - EX.P2. That, the complainant

has further contended that he presented the EX.P2 for encashment

in bank and the same was returned with the shara as 'Insufficient

funds' in the account of the accused and when he informed the

accused about the dishonour of EX.P2 then he issued in his favour

another cheque bearing No.000009 dated:-25.09.2017 for a sum of

Rs.2,65,000/- drawn on City Union Bank Ltd., Hosur, 123

Denkanikota road, Hosur-635 019- EX.P4.11C.C.NO.27657/201712.    It is pertinent to note here that, the accused has taken a

defenses that, (i) at the time of availing a sum of Rs.50,000/- from

the complainant he issued in his favour his two blank signed cheques

as a security and as he failed return the said amount within time the

complainant in one cheque mentioned the amount as Rs.2,65,000/-

and submitted same in bank for encashment, (ii) with great difficulty

he arranged a sum of Rs.25,000/- and paid the same to the

complainant and sought the time for repaying the balance amount,(iii) as he failed to pay the said balance amount the complainant

presented his said another cheque in bank for encashment and (iv)

he is not liable to pay the cheque amount to the complainant.13.    It is pertinent to note here that, the burden heavily lies upon

the complainant to substantiate that the accused to discharge his

legally enforceable debt had issued in his favour EX.P4.         It is

pertinent to note here that, the accused in cross-examination of the

complainant though, has tried to establish that he issued the said

cheques in his favour as a security but, his all efforts were went in

vain. It is pertinent to note here that, the accused has not produced

before the Court any document to substantiate that he issued the12C.C.NO.27657/2017


said cheques in favour of the complainant as a security. It is

significant to note here that, in absence of material, cogent and

reliable evidence the aforesaid contention of the accused cannot be

believed and accepted.It is significant to note here that, the accused has admitted

his signatures on EX.P4. It is pertinent to note here that, as the

signature in the cheque is admitted by the accused, then the

presumption envisaged underSection 118of the Negotiable

Instruments Act, can legally be 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 139of the Negotiable

Instruments Act, enjoins on the Court to presume that the holder of

the cheque is received it for discharge of some debt or liability. It is

pertinent to note here that, in present case the presumptions

envisaged   underSections   118and139of   the   Negotiable

Instruments Act, arises in favour of the complainant. It is significant

It is pertinent to note here that, in view of My above all findings and

without much discussion I hold that, the complainant has failed to

prove that the accused to discharge his legally enforceable debt had13C.C.NO.27657/2017


issued in his favour EX.P4. In view of the same, Point No.1 is

answered in the AFFIRMATIVE.14.    Point No.2:- It is specific contention of the complainant that,

he presented the EX.P4 for encashment in Syndicate Bank,

Basaveshwaranagar branch, Bengaluru and on 27.09.2017 the same

was returned with the shara as 'Insufficient funds'.It is to be noted here that, the complainant to substantiate

his aforesaid contentions in his evidence has got marked a Cheque

return memo issued by the said Bank at EX.P5. It is pertinent to note

here that, from perusal of EX.P5 it appears that the EX.P4 was

dishonoured as 'Funds insufficient' in the account of the accused.15.      It is to be noted here that, at this juncture I have gone

through the provisions ofsection 146of Negotiable Instruments Act

and which contemplates 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, been14C.C.NO.27657/2017


dishonoured, presume the fact of dishonor or such cheque,

unless and until such fact is disproved.It is to be noted here that, in the instant case the accused

has failed to rebut the presumptions envisaged insection 146of the

Negotiable Instruments Act. It is to be noted here that, in view of

My above findings and without much discussion I hold that,

complainant has convincingly proved that the accused has committed

the offence punishable under section 138 of Negotiate Instruments

Act. In view of the same, point No.2 is answered in the

AFFIRMATIVE.16.   Point No.3:- That, as discussed on points No.1 and 2, I

proceed to pass the following:-ORDER

      That, acting undersection 255(2)of Code of Criminal Procedure,

the accused is convicted for the offence punishable undersection 138of the Negotiable Instruments Act.That, the accused shall deposit a fine amount of Rs.2,65,000/-15C.C.NO.27657/2017


    and if he fails to deposit the said fine amount he shall undergo

simple imprisonment for three months.That, out of total fine amount of Rs.2,65,000/-, Rs.2,63,000/-

shall be paid to the complainant as a compensation as provided

undersection 357(1)of Code of Criminal Procedure 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.(Typed and corrected by Me and then pronounced in the open Court on
this 20th day of October 2018)



                                               (Hema Pastapur)
                               XXII Addl. Chief Metropolitan Magistrate,
                                             Bengaluru.ANNEXURE

[
         List witnesses examined on behalf of the complainant

        PW1                :      Raj Krishna Murthy s/o Raju Naidu.List of documents marked on behalf of the complainant

        EX.P1              :      Letter dated:-17.07.2014;16C.C.NO.27657/2017




 EXs.P2 and 4        :    Original Cheques;
 EXs.P2(a) and 4(a) :     Signatures of the accused;
 EXs.P3 and 5         :   Cheque return memo's and
 EX.P6(a)             :    Two Postal receipts.List of witnesses examined on behalf of the accused

 DW1                  :     K. Mahadeva s/o Kempaiah.List of documents marked on behalf of the accused-Nil-XXII Addl. Chief Metropolitan Magistrate,
                                    Bengaluru.17C.C.NO.27657/2017




                                 ORDER

     That, acting undersection 255(2)of Code of Criminal

Procedure, the accused is convicted for the offence punishable undersection 138of the Negotiable Instruments Act.That, the accused shall deposit a fine amount of Rs.2,65,000/-

and if he fails to deposit the said fine amount he shall undergo simple

imprisonment for three months.That, out of total fine amount of Rs.2,65,000/-, Rs.2,63,000/-

shall be paid to the complainant as a compensation as provided

undersection 357(1)of Code of Criminal Procedure 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.(Hema Pastapur)
                           XXII Addl. Chief Metropolitan Magistrate,
                                         Bengaluru.18C.C.NO.27657/201719