Bangalore District Court
Ravi.M.C vs M/S.S.S.Tools on 3 December, 2021
IN THE COURT OF XX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY
PRESENT: BHOLA PANDIT,
B.Com.,LL.M.,
XX ADDL. C.M.M.
Bengaluru.
Dated this the 3rd day of December 2021
C.C.No.3906/2019
Complainant : Ravi.M.C.
S/o Chandrappa,
Aged about 38 years,
Residing at No.247,
17th Main, 4th Block,
Nandini Layout,
Bengaluru.
{ By Sri.Ramesh.C.H. - Advocate }
Vs.
Accused : M/s.S.S.Tools,
Represented by its proprietor,
Sri.Vijayakumar,
at M-414, 8th Cross,
Peenya 1st Stage,
Bengaluru- 560 058.
2 C.C.3906/2019
Also available at
Sri.Vijayakumar,
"Upasana", At No.15,
1st Floor, 4th Cross,
Brundavana Layout,
Behind Eskay Hospital,
Shettihalli, Jalahalli West,
Bengaluru- 560 015.
{ By Sri.N.Somashekar - Advocate }
Offence complied of : U/S. 138 of N.I. Act.,
Plea of accused : Pleaded not guilty
Final Order : Accused is Convicted
Date of Order : 03-12-2021
JUDGMENT
The present complaint is filed under section 200 of code of criminal procedure against the accused for the dishonour of cheque at Ex.P.1 punishable under section 3 C.C.3906/2019 138 of the Negotiable Instruments Act ( in short referred as "N.I. Act").
02. The briefly stated facts of the complaint is as under;
It is alleged in the complaint that, the complainant and accused are very well known to each other from morethan 10 years. The accused is running business in the name and style of "SS Tools" and had availed hand loan of Rs.15,00,000/- from the complainant for business & family maintenance by way of cash and agreed to repay the same within one year. Even after completion of the said period, accused has not returned the money as agreed upon. In the month of April 2017, the complainant demanded for repayment of said hand loan, but the accused had requested to wait another one year time for repayment of the said loan saying difficulty of business due to effect of demonetization of currency notes by the central government. After lapse of agreed another one time also, 4 C.C.3906/2019 accused did not come forward to pay the said loan amount. After several demands and requests, towards discharge of his liability, the accused has issued a post dated cheque bearing No.406370 Dated 12.10.2018 for Rs.15,00,000/- drawn on Dhanalakshmi bank Ltd, Peenya Industrial Estate, Peenya, Bengaluru in favour of the complainant. The complainant has presented the above said cheque for encashment through his banker and said cheque was returned unpaid due to "Funds Insufficient"
as per banker's memo dated 12.10.2018. Thereafter, the complainant got issued demand notices on 30.10.2018 to both the address of the accused. The notice sent to first address was duly served and second mentioned address is evaded by the accused, hence returned with an endorsement "Un Claimed". Inspite of service of demand notice, accused has issued untenable reply to the said statutory notice. Thus, the cause of action of the complaint arose on 10.12.2018. Accordingly, this complaint is filed 5 C.C.3906/2019 within time and has sought to convict the accused by granting compensation under section 357 of Code of Criminal Procedure double of the cheque amount.
03. On presentation of the complaint and after verification of the averments of the complaint as well as the annexed documents, this court took the cognizance for the offence punishable under section 138 of NI Act. As per the verdicts of the Hon'ble Apex court in the case of Indian Bank Association and others V/s Union of India and others, the sworn statement of the complainant has been recorded by way of examination-in-chief as PW.1 and got marked in all eight documents at Ex.P.1 to 8. After scrutinizing the oral and documentary evidence of the complainant prima- facie case is made out for the trial. Accordingly, by registering criminal case in Register No. III, summons has been issued against the accused.
6 C.C.3906/2019
04. In pursuance of the summons, the accused has appeared before the court through his counsel and filed bail application under section 436 of Code of Criminal Procedure, the accused has been enlarged on bail. The accusation has been read over to the accused, he pleaded not guilty and wants to put forth defense. On filing application under section 145(2) of NI Act, accused was permitted to cross examine PW.1. In spite of granting sufficient time, the accused neither cross examined PW.1 nor has adduced the defense evidence. Even the accused deliberately avoided to appear before the court in order to cause of obstructions of the proceedings. Therefore, in view of guidelines in the case of Indian Bank Association and others V/s Union of India and others, and the proceedings being held as summary in nature. The statement under section 313 of Code of Criminal Procedure has been dispensed with. In view of the ratio laid down by 7 C.C.3906/2019 the Hon'ble High Court of Karnataka, in Crl.RP. No.437/2010 dated 28.06.2012, wherein it is held that;
"It is for the accused to appear before the court and to have defended himself effectively and to make himself available for the court to record the statement under section 313 of Code of Criminal Procedure."
05. Heard the Learned counsel for the complainant. No arguments addressed on behalf of accused. Perused the materials on record.
06. The points that arise for my consideration are as follows;
POINTS
1. Whether the complainant proves that, accused has issued a post dated cheque bearing No.406370 Dated 12.10.2018 for Rs.15,00,000/- towards discharge of his liability, which was returned unpaid on presentation and also not complied the notice issued by the complainant and thereby committed an offence punishable 8 C.C.3906/2019 under section 138 of Negotiable Instruments Act?
2. What Order?
07. Now my answer to the above points is as follows;
1. Point No.1: In the affirmative
2. Point No.2: As per final order for the following;
REASONS
08. POINT No.1: It is the specific case of the complainant that, towards discharge the legally enforceable debt, the accused has issued the cheque at Ex.P.1 and the said cheque was presented for encashment, it returned unpaid as per banker's memos at Ex.P.3 due to "Funds Insufficient". Accordingly, the complainant got issued demand notices on 30.10.2018 to both the address of the accused. The notice sent to first address was duly served and second mentioned address is evaded by the accused, hence returned with an endorsement "Un 9 C.C.3906/2019 Claimed". Inspite of service of demand notice, accused has issued untenable reply to the said statutory notice. Thus, it is sought to prosecute accused and convict him for the offence punishable under section 138 of NI Act.
09. To bring home the guilt of the accused, as per the verdicts of the Hon'ble Apex court in the case of Indian Bank Association and others V/s Union of India and others, the sworn statement of the complainant has been recorded by way of examination-in-chief as PW.1. PW.1 has replicated the averments of the complaint. The complainant in all has produced eight documents marked at Ex.P.1 to 8. Ex.P.1 is the alleged cheque issued by the accused, Ex.P.1(a) is the signature of the accused present on the Ex.P.1 cheque, Ex.P. 2 is the banker's memo, which reflects that, the cheque at Ex.P.1 has been presented for encashment and returned unpaid due to "Funds Insufficient" in the account of the drawer. Ex.P.3 is the 10 C.C.3906/2019 demand notice, which is replication of the averments of the complaint, Ex.P.4 & 5 are the postal receipts about sending demand notices to the accused, Ex.P.6 is the postal acknowledgement, Ex.P.7 is the returned postal receipt, Ex.P.8 is the reply notice and Ex.P.8(a) is the postal cover. Learned counsel for the accused did not cross examine the PW.1.
10. To disprove the case of the complainant and also to rebut the statutory presumptions under section 139 of NI Act, the accused neither has entered in the witness box nor has produced documentary evidence.
11. As per section 118(a) and 139 of NI Act, it is very clear that, when the issuance of cheque drawn from the account of the drawer and also signature on the cheque is admitted or undisputed, the statutory presumptions shall be drawn in favour of the complainant stating that, the accused has 11 C.C.3906/2019 issued the disputed cheque towards the discharge of his legal debt and that the complainant is the due holder of the said cheque. Even in the land mark judgments reported in, 2010(11) SCC 441, in the case of Rangappa Vs. Mohan, wherein it is held that;
" Once the cheque relates to the account of the accused and he accepts the same and also admits his signature on the cheque, then the initial presumption under section 139 of NI Act as well as under section 118 of NI Act has to be raised in favour of the complainant. It is a mandatory presumption. But the accused is entitle to rebut the same on preponderance of probabilities."
In the recent judgment reported in, 2021(5) SCC 283, in the case of Kalamani Tex and Another Vs. P.Balasubramaniyan, the larger bench of the Hon'ble Apex Court, it is held that;
" U/s 118 & 139: Once issuance of cheque and signature admitted , it is required to presume that the cheque was issued as consideration for a legally enforceable debt."12 C.C.3906/2019
Before to advert the appreciation of oral and documentary evidence of respective parties, it is necessary to find out whether the present complaint would meet the mandatory provisions of section 138 of NI Act or not? On perusal of the cheque at Ex.P.1 dated 12.10.2018, Ex.P.1(a) is the signature of the accused, the said cheque was returned with an endorsement "Funds Insufficient", banker's memo at Ex.P.2 dated 12.10.2018, the demand notice at Ex.P.3 18.08.2017, Ex.P.4 & 5 are postal receipts, Ex.P.6 & 7 are the returned postal covers, Ex.P.8 is the reply notice and the present complaint is filed on 10.12.2018. By considering these material documents and the presentation of complaint, it appears that, the present complaint is filed by complying the provisions of section 138(a) to (c) of NI Act.
12. As per Ex.P.8, the accused has given reply to the demand notice issued by the complainant. In the reply 13 C.C.3906/2019 notice, the accused denied the claim of the complainant by giving para wise reply inter alia contending that, he had a transaction with one Utthaman P.K and while collecting the bid amount, the said Utthaman P.K. has collected two signed blank cheques and one blank letter head as a security. It is further contended that, even after settlement of entire amount five years ago, the said Utthaman P.K. has not returned his signed blank cheques and letter head and thereafter, in this regard, he has filed complaint before jurisdictional police against the said Utthaman P.K on 05.05.2018. He contended that, the complainant is totally stranger to the accused, colluding with Utthaman P.K., one of his blank signed cheque has been misutilized by the complainant by collecting the same from Utthaman P.K. and just to have wrongful gain has filed the present complaint. By this defense of the accused, it clearly goes to show that, the accused has been admitting his issuance of cheque at Ex.P.1 and the signature at therein. Therefore, the 14 C.C.3906/2019 statutory presumptions under section 118(a) and 139 of NI Act raised in favour of the complainant. Now, the burden is on the accused to rebut the statutory presumptions and also to establish his defense. The accused neither has cross examined PW.1 nor has led his defense evidence. The evidence of PW.1 unchallenged and uncontroverted. On the other hand, the defense of the accused has contended in the reply notice at Ex.P.8 remains only an allegation and not at all proved either by leading oral evidence of accused or by producing any documentary evidence. Therefore, the accused has utterly failed to bring on record any probable evidence to rebut the statutory presumptions under sections 118(a) & 139 of NI Act.
13. Therefore, by the evidence of PW.1 coupled with the documents at Ex.P.1 to 8, I am of the opinion that, the complaint has proved that, the accused has borrowed hand loan of Rs.15,00,000/- from him and towards the 15 C.C.3906/2019 discharge of the said loan, the accused has issued the cheque at Ex.P.1 and the said cheque was returned unpaid due to "Funds Insufficient" in the account of the accused. Therefore, I answered point No.1 in the affirmative.
14. POINT NO.2: In view of the reasons stated and discussed above, the complainant has proved the guilt of the accused punishable under section 138 of N.I. Act It is worth to note that, the offence is of the nature of civil wrong. Hence, it is proper to award sentence of fine, instead of awarding sentence of imprisonment. Accordingly, this court proceed to pass the following;
ORDER
Acting under section 255 (2) of
Criminal Procedure Code, accused is
hereby convicted for the offence
punishable under section 138 of
Negotiable Instrument Act and
16 C.C.3906/2019
sentenced to pay fine of
Rs.15,60,000/-(Rupees Fifteen
Lakhs Sixty Thousand only). In
default, he shall undergo simple
imprisonment for 6 (Six) months.
Acting under section 357(1) of
code of criminal procedure, it is
ordered that an amount of
Rs.15,50,000/-( Rupees Fifteen
Lakhs Fifty Thousand only) there
from shall be paid to the complainant
as a compensation, remaining fine
amount of Rs.10,000/- (Rupees Ten
Thousand only) is defrayed to the
state for the expenses incurred in the prosecution.
17 C.C.3906/2019
The bail bond and surety bond of accused stands canceled subject to appeal period.
Supply free copy of judgment to the accused.
{Dictated to the stenographer, transcribed and computerized by her, revised corrected and then pronounced in the open court on this 3 rd day of December 2021}.
(BHOLA PANDIT) XX ACMM, Bengaluru.
ANNEXURE List of witnesses examined on behalf of complainant:
P.W.1 Ravi.M.C. List of documents produced on behalf of complainant:
Ex.P.1 Cheque
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Ex.P. 1(a) Signature of the accused
Ex.P. 2 Bank endorsement
Ex.P. 3 Copy of the legal notice
Ex.P. 4 & 5 Postal receipts
Ex.P. 6 Postal acknowledgement
Ex.P.7 Returned postal cover
Ex.P.8 Reply notice
Ex.P.8(a) Postal cover
List of witnesses examined on behalf of accused:
-Nil-
List of documents produced on behalf of accused:
-Nil-
XX A.C.M.M., Bengaluru.