Bangalore District Court
Sri. M. Madhan vs Sri. P.T.Keshava Murhy on 22 March, 2022
IN THE COURT OF XXXIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, MAYO HALL UNIT,
BENGALURU
: PRESENT :
M.Vijay, BAL, LLB.
XXXIII ADDL.CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED IS THE 22ND DAY OF MARCH, 2022.
C.C.No.54272/2019
COMPLAINANT : Sri. M. Madhan
Son of Sri.Munivenkatappa,
Aged about 32 years,
R/at No.331, Kalkere, Horamavu Post,
Bengaluru560043.
.Vs.
ACCUSED : Sri. P.T.Keshava Murhy,
Son of Late.P.Thayappa,
Aged about 53 years,
R/at C/o Shiva Lingaiah, No.18,
Mylara Lingeshwara Nilaya,
3rd Main Road, Palace Guttahalli,
Bangalore560003.
JUDGMENT
The complainant has filed this private complaint U/s.200 of Cr.P.C., against the accused for the offence punishable U/s 138 of Negotiable Instrument Act.
2C.C.No.54272/2019 The factual matrix of the case are as follows:
2. The complainant averred that, the accused is the common friend of him and one Lakshminarayana as they are doing contract work, as well as business, he got acquaintance with the accused through his friend Lakshminarayana, later on, the accused became his family friend, based on this acquaintance, the accused approached him for hand loan amount of Rs.20,00,000/ for having his business in the month of August 2016, considering his request and acquaintance with the accused, he allegedly advanced an amount of Rs.20,00,000/ by case to the accused. On it receipt, the accused promised him to pay it within six months, accordingly, he demanded for repayment in the month of March 2017, but, the accused sought time by saying that, he had invested in business, due to demonetization the entire amount has been stuck, but, promised him to repay it within short span of time. Accordingly, the panchayat was held on 24.01.2019, with respect to transaction, based on that, the accused issued cheque bearing No.455426 dated 23.02.2019, for sum of Rs.20,00,000/, drawn on Cooperative Bank Limited, Hanumanthanagar 3 C.C.No.54272/2019 Branch, Bangalore, with a promise that, the cheque would be honored.
3. Believing the accused, the complainant claims to have presented the cheque through his banker Axis Bank, Kasthurinagara Branch, Bangalore, but, it was returned unpaid for "in sufficient funds" vide memo dated 07.03.2019, based on that, he claims to have caused legal notice on 04.04.2019, to demanding the accused to pay the cheque amount, same was served on the accused on 08.04.2019, but, despite of it service of notice, the accused neither paid the cheque amount nor replied to his notice. Accordingly, alleged that, the accused towards discharge of legally enforceable debt amount of Rs.20,00,000/, the accused issued cheque without maintaining sufficient funds in his account with a dishonest intention to cheat the complainant and thereby the accused has committed an o/p/u/s.138 of NI.Act.
4. The court took cognizance for the o/p/u/s.138 of N.I.Act., based on the complaint, sworn statement and complaint affidavit, original documents filed along with the complaint by following the guidelines of Hon'ble Apex Court in Indian Bank Association V/s Union of India AIR 4 C.C.No.54272/2019 SCW 3462, a criminal case and order to be registered against the accused for the o/p/u/s.138 of NI.Act.
5. In pursuance of summons, the accused appeared through his counsel and he was released or he was enlarged on bail on the same day plea was recorded.
6. The complainant in order to prove his case got examined himself as PW.1 and also placed reliance on Ex.P1 to P5, on closure of complaint evidence the accused was examined U/s 313 Cr.P.C., he denied incriminating materials on record. However, the accused not chooses to lead his defense evidence.
7. Heard the counsel for the complainant, despite sufficient opportunity given to the accused, the accused not turned up for the defense evidence, as defence argument there was no representation of the accused side, accordingly, the defense argument was taken as nil.
8. Perused the materials on record, the following points arise for my determination.
1. Whether the complaint proves beyond all reasonable doubt that, accused has committed an o/p/u/s 138 of Negotiable Instruments Act?"
5C.C.No.54272/2019
2. What Order?
9. My findings to the above points are follows;
Point No1: In the Affirmative.
Point No.2: As per final order for forgoing;
REASONS
10. Point No.1: The complainant claims to have advanced hand loan of Rs.20,00,000/ to the accused in the month of August 2016, by agreeing to repay it within six months, accordingly, on this financial transaction, the panchayat was held between him and the accused on 24.01.2019, as per it, the accused issued cheque bearing No. 455426 dated 23.02.2019 drawn on Cooperative Bank, Hanumanthanagar Branch, Bangalore, with promise that, the cheque would be honored, but on it presentation, the cheque was returned for "Funds Insufficient" despite service of legal notice, the accused neither paid the cheque amount nor replied to his notice.
11. The complainant in order to prove his case, got examined himself as P.W.1 and reiterated the complaint averments placed reliance on cheque, endorsement, copy of legal notice, postal receipt and acknowledgment on his 6 C.C.No.54272/2019 side, despite the accused given an opportunity for cross examination on several occasions, but the accused not chooses to cross examined the P.W.1. Therefore, the cross examination of P.W.1 was taken as nil on 28.09.2020. After that, the accused was examined 313 Cr.P.c., he denied the incriminating materials on record and prayed to lead his defence evidence, even then the accused not choosen to lead defence evidence, even after sufficient opportunity granted to him, accordingly, his defence evidence was taken as nil on 02.12.2021.
12. Later on, neither the accused nor his counsel represented the case, as such defence arguments also taken as nil. Therefore, the testimony of P.W.1 is remained unchallenged by the accused. So, once the party filed to cross examine the complainant and failed to putforth his defence by cross examination of P.W.1 it has to be inferred that, the accused does not have any defence and case of the complainant has to be accepted that Ex.P.1 cheque pertains to the account of the accused and issued same towards discharge of legally enforceable debt unless and until the contrary is proved, as there is no denial that, Ex.P.1 and signature found on Ex.P.1 cheque is not that of the accused.
7C.C.No.54272/2019
13. Accordingly, in view of non denial the presumption u/s 139 shall be drawn in favour of the complainant that, the cheque issued by the accused in favour of the complainant towards discharge of legally enforceable debt and for consideration. Therefore, the onus is on the accused to rebut the presumption, but the accused failed to cross examine the P.W.1 and also putforth his defence on record. Accordingly, absolutely there is no contrary materials to disbelieve the case of the complainant. Hence, there is no challenge against claim of the complainant, accordingly it is to be accepted that Ex.P.1 cheque has to be issued towards discharge of legally enforceable debt. Accordingly, the question of financial capacity, sources, the mode of payment of claimed Rs.20,00,000/ cannot be considered, in view of non challenge.
14. Hence, the complainant proved that, towards discharge of legally enforceable debt, the Ex.P.1 issued, same was dishonored, despite demand for payment of cheque amount as per Ex.P.3, the accused failed to pay the cheque amount. Therefore, the complainant has proved the guilt of the accused for an o/p/u/s 138 of 8 C.C.No.54272/2019 NI.Act. Accordingly, the accused found guilty of an o/p/u/s 138 of NI.Act.
15. So far as sentence and compensation is concern, It is well settled law that, Sec.138 of N.I Act is primarily compensatory in nature, punitive is secondary, on considering the settled principle of law with facts and circumstances of the case, ie., the complainant and accused are well known friends, accordingly, does not claim any interest. So, considering the nature of transaction and duration of pendency, advocate fee, litigation expenses, I am of the opinion that, if the accused is sentenced to pay fine of Rs.20,75,000/ that would meet the ends of justice, accordingly, the accused is here by sentenced to pay a fine of Rs.20,75,000/, out of which the complainant is entitled to a compensation of Rs.20,70,000/ as per Sec.357(1) of Cr.P.C. remaining amount is to be appropriated to the state, in case of default the accused shall under go simple imprisonment for a period of six months. Accordingly, I answered the above point in "Affirmative".
16. Point No.2: In view of above finding to Point No.1, I proceed to pass following;
9C.C.No.54272/2019 ORDER Acting under section 255(2) of Criminal Procedure Code, the accused is convicted of the offence punishable U/s 138 of Negotiable Instrument Act, The accused is sentenced to pay a fine of Rs.20,75,000/ (Rupees Twenty Lakh Seventy Five thousand only) in default, the accused shall undergo simple imprisonment for a period of six months. Out of the fine amount received, Rs.5,000/ is to be appropriated to the State and by way of compensation as per the provision U/S 357(1) of Cr.P.C. the complainant is entitled for Rs.20,70,000/.
The bail bonds and surety bond of the accused shall stand cancelled.
Office is directed to furnish a free copy of the judgment to the accused.
(Dictated to the Stenographer directly on computer, typed by her, corrected, signed and then pronounced by me in the open court, on this the 22nd day of March, 2022) (M.Vijay), XXXIII ACMM, BENGALURU.
10C.C.No.54272/2019 ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Sri. M.Madhan
2. Documents marked on behalf of complainant:
Ex.P.1 : Original Cheque Ex.P.1(a) : Signature of the accused Ex.P.2 : Bank return memo Ex.P.3 : Office copy of the legal notice Ex.P.4 : Postal receipt Ex.P.5 : Postal acknowledgment
3. Witnesses examined on behalf of Accused:
NIL
4. Documents marked on behalf of Accused:
NIL (M.Vijay), XXXIII ACMM, BENGALURU.