Bangalore District Court
Aged About 34 Years vs R/O 3 on 22 May, 2015
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL UNIT, BENGALURU
DATED THIS THE 22nd DAY OF MAY, 2015
PRESENT
SRI. C.D.KAROSHI, B.A., LL.B., (Spl)
XIV ADDL. C.M.M., BENGALURU.
CASE NO C.C. NO.27067/2012
Ms. Rachna Kumari
COMPLAINANT Aged about 34 years, R/o G-13, Jangpura
Extension, New Delhi - 110014.
Mr. Subhash Mada
ACCUSED R/o 301, Pratap Enclave, 5th Main, 6th Cross,
Malleshwaram, Bengaluru - 560 075.
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused is convicted
(C.D. KAROSHI)
XIV ADDL. C.M.M., BENGALURU
2 C.C. No.27067/2012
JUDGMENT
This is a complaint filed by the complainant under Sec.200 Cr.PC against the accused for the offence punishable under Section 138 N.I. Act.
2. In a nutshell it is alleged in the complaint that the complainant was running a business in the name & style of "M/s.Green Enterprise" (Proprietary concern) and opened chain of Health Juice counters in the name and style of "Give me 5" in various companies at Bengaluru, due to the said novel concept and excellent business management, her business flourished and the number of outlets grew. The accused came in contact with the complainant and decided to join the business in partnership based on the same business format and style and they entered into a Deed of Partnership dated 26.8.2011 to carry out the Health and Wellness business in the name & style of "M/s.Green Enterprises". Further it is arrayed that the complainant is native of New Delhi, decided to sell her entire share i.e, 1/3rd for Rs.17.5 lakhs business to the accused and other partners by executing partnership retirement deed and transferred share along with necessary documents on 12th November 2011, thereby complainant ceased to be the partner. The accused and other partners are running a business in the name & style of 3 C.C. No.27067/2012 "M/s.Green Enterprises" and they handed over the cheques to the complainant towards discharge of the liability. Further it is averred that towards discharge of the lawful part debt/liability, accused has issued a cheque bearing No.827258 dated 28.2.2012 for Rs.1,50,000/- drawn on Vijaya Bank, BTM Layout branch, Bengaluru, but when the complainant presented the said cheque for encashment, it came to be returned with an endorsement as "Funds Insufficient" and legal notice dated 31.3.2012 issued through RPAD was returned as not claimed, notice sent by way of DTDC courier was delivered, but he has not paid the cheque amount and thereby committed the offence punishable under Section 138 Negotiable Instruments Act.
3. Records reveal that on receipt of summons, the accused has appeared and got enlarged on bail. Plea for the offence under Section 138 Negotiable Instruments Act recorded, wherein accused pleaded not guilty. In order to prove her case, complainant examined herself as PW.1 and got marked the documents at Ex.P1 to P8. Side of the complainant treated as closed. Statement of the accused as required under Section-313 of Cr.PC recorded. No defense evidence adduced on behalf of the accused.
4 C.C. No.27067/20124. The learned counsel for the complainant filed written arguments. Accused and his counsel did not address arguments on defense side. Perused the written arguments filed by the counsel for the complainant along with the material on record.
5. The points that arise for my consideration are :-
1) Whether the complainant proves that as per the Deed of Retirement dated 12.11.2011, accused has issued a cheque bearing No.827258 dated 28.2.2012 for Rs.1,50,000/-
drawn on Vijaya Bank, BTM Layout branch, Bengaluru towards discharge of the lawful part debt or liability out of her 1/3rd share in the partnership firm - M/s.Green Enterprises"?.
2) Whether the complainant further proves that when she presented the said cheque for encashment, it returned with an endorsement as "Funds Insufficient" and despite receipt of notice also the accused has not complied and thereby committed an offence punishable under Section 138 of Negotiable Instrument Act?
3) What Order?
6. My answers to the above points are as follows:
5 C.C. No.27067/2012 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: The learned counsel for the complainant
field written arguments stating that cheque issued by the accused towards discharge of part debt/liability in connection with selling of complainant's 1/3rd share in "M/s.Green Enterprise" came to be dishonoured and despite receipt of legal notice accused has neither replied nor paid the cheque amount or stepped into the witness box, on the other hand as per the joint memo dated 18.1.2014 accused has admitted his liability, but with an intention to cause loss and to suffer the complainant mentally and financially accused has deliberately drag the matter through out the proceedings, as such he is liable to be convicted. No arguments addressed on behalf of the accused. I have carefully gone through the entire material on record. In order to prove her case, the complainant examined herself as PW.1 stating that the accused came in contact and decided to join the business in partnership based on the same business format and style, accordingly they entered into a Deed of Partnership dated 6 C.C. No.27067/2012 26.8.2011 to carry out the Health and Wellness business in the name & style of "M/s.Green Enterprises", but she is the permanent resident of Delhi, as such decided to sell her entire 1/3rd share to the accused and other partners by executing partnership retirement deed and transferred share along with necessary documents on 12th November 2011, the accused is running a business in the name & style of "M/s.Green Enterprise". Further states that towards discharge of the lawful part debt/liability, accused has issued a cheque bearing No.827258 dated 28.2.2012 for Rs.1,50,000/- drawn on Vijaya Bank, BTM Layout branch, Bengaluru, but when she presented the said cheque for encashment, it came to be returned with an endorsement as "Funds Insufficient" and the legal notice dated 31.3.2012 issued through RPAD was returned as not claimed, notice sent by way of DTDC courier was delivered on 3.4.2012, but he has not paid the cheque amount and thereby committed the offence. In order to support her oral testimony, PW.1 got marked the documents Ex.P1 to P8.
8. As could be seen from the perusal of order sheet dated 18.1.2014 that when the case was posted for adducing complainant's evidence, both the parties were voluntarily agreed for amicable settlement and filed joint memo, accordingly case 7 C.C. No.27067/2012 was posted on 3.2.2014 for full and final settlement, but thereafter accused did not turn up and fail to comply the terms of joint memo, thereafter complainant partly examined as PW.1 and got marked the documents at Ex.P1 to P8, but in spite of giving sufficient opportunities to make cross-examination of PW.1 on payment of cost/batta i.e fare of flight tickets, accused and his counsel did not turn up till 17.7.2014, keeping in mind the present legal position as held by the Hon'ble Apex court in the Indian Bank Association case and Provisions of Sec.143 of N.I. Act this court was pleased to reject the prayer and take the cross examination of PW.1 as nil, after closing the complainant's side case was posted for recording statement of the accused U/s.313 of Cr.PC, but again on 11.11.2014 and 8.12.2014 accused remained absent, consequently bonds of the accused were being forfeited to the state. In the meanwhile on 18.12.2014 again accused got enlarged on bail by furnishing fresh security, after recording 313 statement the case was adjourned for defense evidence twice, but he did not turn up, accordingly evidence on defense side taken as nil and posted the case for arguments. On 23.4.2015 counsel for complainant filed written arguments, case was adjourned twice for addressing arguments on defense side, but did not address, which shows that in spite of giving sufficient opportunities from 6.3.2014 to 15.5.2014, accused has neither taken steps for recalling of PW.1 8 C.C. No.27067/2012 nor stepped into the witness box or addressed arguments on merits, on the other hand accused has used delay in tactics through out the proceedings, accordingly prayer of the accused/defense counsel was being rejected and case has been posted for judgment, but till today accused has not turned up, which indicates that accused and his counsel are deliberately dragging the case and thereby abusing the process of law so as to make out a ground to challenge the same before the Appellate Court on flimsy grounds.
9. It is pertinent to note here that in the case on hand so for as in respect of acquaintance of the accused with the complainant as well as loan transaction is concerned there is no dispute. It is prima facie evident from the perusal of Ex.P1- cheque in question that it has been issued on the account maintained by the accused drawn on Vijaya Bank, BTM Layout branch, Bengaluru for a sum of Rs.1,50,000/- towards payment of the existing debt/liability and signature thereon belongs to him only. On perusal of Ex.P2-bank endorsement reveals that the cheque in question came to be returned with an endorsement as "funds insufficient". The copy of Deed of Retirement at page No.4 (2) reveals about mode of payment towards existing liability by way of cheque in question. On perusal of the order 9 C.C. No.27067/2012 sheet along with contents of joint memo dated 18.1.2014 reveals that accused has agreed to settle the matter and to pay the entire cheque amount with 18% interest within fifteen days i.e., on or before 3.2.2014, failing which court can take any action against the accused, but he has deliberately failed to comply the terms. In the case on and accused has neither given reply nor instructed the bank for stop payment or took action against the complainant or stated anything during the course of examination U/s.313 Cr.PC, which shows that this is also an unusual conduct of the accused to avoid criminal prosecution being launched against him. So now it is clear that accused has not disputed the existence of liability of Rs.1,50,000/- as on the date of issuance of cheque in question. It may be noted that in such a case something probable has to be brought on record and burden of proof can be shifted back to the complainant by producing convincing circumstantial evidence by the accused only. In my opinion though complainant has discharged her initial burden, but accused has miserably failed to rebut the claim of the complainant. Therefore, looking from any angle, I find that there are no reasons to discard the evidence of PW.1; as such an adverse inference can validly be drawn against the accused. For these reasons, written arguments filed by the learned counsel for the complainant holds good. Hence, I answer point No.1 is in the affirmative.
10 C.C. No.27067/201210. Point No.2 : Now, what is to be seen by this court is, whether the complainant has followed remaining requirements as contemplated under Section 138 of Negotiable Instruments Act or not. With regard to service of notice is concerned other side has not seriously disputed. It is also prima facie evident from the perusal of Ex.P3 to 8 that the notice sent under RPAD came to be returned as intimation delivered but not claimed. Notice sent through courier-DTDC was served upon the accused on 3.4.2012, but it appears that accused has neither replied nor paid the cheque amount. So, it is well settled that if notice sent through registered post with correct address returned as not claimed, then in view of Sec.27 of General Clauses Act notice deemed to have been served. The object behind issuance of notice under clause (b) of Sec.138 of N.I. Act is to give intimation to the drawer about dishonouring of the cheque and to give him an opportunity to pay the money covered under the cheque so as to avoid the criminal prosecution being launched against him, but has not turned up, accordingly the complainant has lodged private complaint before this court alleging that he has committed the offence under the Act.
11. With regard to point of limitation is concerned, the 15 days period of making of payment by the drawer under proviso
(c) Sec.138 of N.I. Act held, expired on 18.4.2012. Cause of 11 C.C. No.27067/2012 action to file complaint against the accused arose on 19.4.2012 itself. The private complaint was filed on 10.5.2012, which is well within the period. Therefore, it can be held that if the cheque was returned with an endorsement as "funds insufficient" and despite receipt of legal notice also drawer failed to comply, it amounts to an offence under Section 138 Negotiable Instruments Act. It is to be noticed that the statutory presumption in favour of the complainant, holder of cheque envisaged under Sections. 118 and 139 of N.I. Act also stands un-rebutted. Wherefore, I come to conclusion that the complainant has proved her case to believe that accused has committed an offence under Section 138 Negotiable Instruments Act, which provides punishment with imprisonment for a term which may extend to two years or with fine which may extend to twice the amount of cheque or with both. Ex.P1-cheque in question was came to be drawn and issued in the year 2012 for a sum of Rs.1,50,000/-, so considering the facts and nature of offence accused is liable for simple imprisonment and to pay compensation in accordance with law. Hence, I answer point No.2 is in the affirmative.
12. Point No. 3 : For the foregoing reasons, I proceed to pass the following......
12 C.C. No.27067/2012ORDER Acting under Section 255(2) of Cr.PC accused is hereby convicted and sentenced to undergo simple imprisonment for three months for the offence punishable under Section 138 of Negotiable Instrument Act.
Acting under Section 357(3) of Cr.PC accused is directed to pay a compensation/fine of Rs.2,32,000/- to the complainant towards the loss and injury suffered by her.
In the total compensation/fine amount, a sum of Rs.2,000/- shall be deposited as fine to the State.
In default of the aforesaid compensation/fine amount, accused shall further undergo simple imprisonment for fifteen days.
It is made clear that the substantive sentence imposed by this court in all four cases in C.C.No.27066/2012, C.C.No.27067/2012, No.27068/2012 and C.C.No.26260/2013 shall run concurrently.
(Typed to my dictation by the stenographer, directly on computer, corrected, signed and then pronounced by me in the open court on this the 22nd Day of May, 2015) (C.D. KAROSHI) XIV ADDL.C.M.M., BANGALORE 13 C.C. No.27067/2012 ANNEXURE Witnesses examined for the complainant:
PW.1 : Ms. Rachna Kumari
Witnesses examined for the defence:
NIL
Documents marked for the complainant:
Ex.P1 : Cheque
Ex.P1(a) : Signature of the accused
Ex.P2 : Cheque return memo
Ex.P3 : Copy of the Legal Notice
Ex.P4 : Returned cover
Ex.P5 : Returned notice
Ex.P6 : Postal receipt
Ex.P7 & 8 : DTDC courier receipts
Documents marked for the defence:
NIL
(C.D. KAROSHI)
XIV ADDL. C.M.M.,
BANGALORE