Bangalore District Court
M/S Sree Gokulam Chits & Finance vs Sri.Amanulla Khan on 15 September, 2015
IN THE COURT OF THE V ADDL. SMALL CAUSES
JUDGE & 24th ADDL. CHIEF METROPOLITAN
MAGISTRATE
Court of Small Causes, Mayo Hall Unit, Bangalore
(SCCH-20)
Dated this the 15th day of September, 2015
Present: Smt.K.BHAGYA,
B.Com., LL.B.
V Addl. Small Causes Judge & XXIV
A.C.M.M., Bangalore.
C.C.No.37075/2009
Judgment U/s 355 of Cr.P.C
Complainant : M/s Sree Gokulam Chits & Finance
Co. (P) Ltd.,
Having its Registered Corporate
Office at:
"Sree Gokulam Towers", No.66,
Arcot Road, Kodambakkam,
Chennai - 600 024.
(SCH-20) 2 CC 37075/09
And having Branch Office at:
Rear Block, 1st Floor, Punjab
Mansion, No.23, Ebrahim Sahib
Street, Shivaji Nagar,
Bangalore - 560 003.
Represented by its Board
Resolution Holder: Sri.S.Rajesh
Kumar.
(By Pleader Sri.H.K.Singh)
V/s
Accused : Sri.Amanulla Khan,
S/o Sri.Omar Khan,
No.16/22, H.K.P. Road,
Bangalore-560 057.
(By Pleader Sri.Syed Ummer)
The offence complained
of or proved : U/s 138 of Negotiable
Instruments Act.
Plea of accused &
his examination : Pleaded not guilty
Final order : Acting U/sec. 255(2) of
Cr.P.C. accused is convicted
Date of such order : 15-09-2015
* * * * *
(SCH-20) 3 CC 37075/09
J U D G M E N T
The complainant by name M/s Sree Gokulam Chits & Finance Co., (P) Ltd., has filed this complaint against the accused by name Mr.Amanulla Khan, U/Sec 200 of Cr.P.C. for the offence punishable U/Sec 138 - 142 of N.I. Act.
02. It is the case of the complainant that:-
The complainant is a registered private limited company under the India Company Act and doing chit fund business. Accused is the subscriber of the chit group No.J3E 154 with Ticket No.14 and he had participated in the auction, prized the chit and received the amount after deducting 25% from Sala Value of Rs.1,00,000-00 then Rs.75,000-00 was received by him after executing promissory note. After receiving the amount of the chit and after sometime, accused has failed to remit the future installments to the complainant and he became chronic defaulter in the repayment. After requesting the accused many times, he had accepted the total outstanding liability of (SCH-20) 4 CC 37075/09 Rs.77,431-00 and issued cheque bearing No.596267 dt:25-06-2007 drawn on HDFC Bank Limited, Golden Towers, Airport Road, Bangalore-560 017 and assured that cheque will be honoured on its presentation. When the complainant presented the said cheque for collection on 26-06-2007 through its banker i.e., UTI Bank Ltd., Cox Town, Bangalore- 560 005 and the same was returned for the reason as "Account Closed" on 29-06-2007. Then the complainant got issued a legal notice on 16-07-2007 to the accused by RPAD as well as UCP and the UCP notice was received by the accused and the RPAD notice has returned as unserved on 21-07-2007.
Even after receipt of notice, the accused failed to pay the cheque amount. So, the complainant is before this Court with this complaint against the accused.
03. After registration of complaint, summons has been issued to the accused. After the issuance of summons, the accused has appeared before the Court through his counsel and enlarged on bail. Thereafterwards, this Court has recorded the plea (SCH-20) 5 CC 37075/09 of the accused. As the accused pleaded not guilty and claimed to be tried, the case was posted for complainant's evidence.
04. The advocate for complainant has relied upon the following decisions:-
01. 2009 CRI.L.J. 2885 (ORISSA) (Gyanaranjan Pattnayak Vs State of Orissa and another)
02. 1994 CRI.L.J. 411 (A.P) (Adapa Bhogi Raju Vs S.G.Ramayya and another)
03. 2001 (4) Kar. L.J. 122 (KAR) (S.R.Muralidar Vs Ashok.G.Y)
04. 1 (1997) CCR 603 (GUJ) (Satish Jayanthilal Shah Vs Pankaj Mashruwala)
05. ILR 2008 KAR 1883 (Latha K. Nair Vs M/s Gold Mohar Foods and Feeds Ltd.,)
06. ILR 2007 KAR 801 (M/s Ganesh Enterprises Vs D.R.Sarala)
07. ILR 2006 KAR 1730 (Dr.B.V.Sampathkumar Vs Dr.K.G.V.Lakshmi)
08. 2009 CRI. L.J. (NOC) 438 (MAD) (P.Arumugam Vs P.Velusamy)
09. 1996 CRI. L.J. 3099 (GUJ) (Satish Jayanthilal Shah Vs Pankaj Mashruwala and another)
10. (2009) SCC (CRI) 241 (Sri Krishna Agencies Vs State of Andhra Pradesh and another)
11. SC 2002 (1) CRIMES 156 (SC) = AIR 2002 SC 182 (M/s M.M.T.C. Ltd., and (SCH-20) 6 CC 37075/09 another Vs M/s Medchl Chemicals and Pharma (P) Ltd., and another)
05. In order to prove the case of the complainant, the Legal Clerk and GPA holder of the complainant got examined as P.W.1 and 8 documents got marked as Ex.P.1 to Ex.P.8 and Ex.D.1 (got marked through P.W.1) on its behalf. He was fully cross-examined by the advocate for the accused. Then this Court has recorded the accused statement U/sec 313 of Cr.PC. As the accused submitted that, he would adduce his defence evidence, then the case was posted for defence evidence. Inspite of sufficient opportunity, the accused did not adduce his defence evidence. Then the case was posted for arguments.
06. Then this Court has heard the arguments of both side. The written arguments filed by the counsel for the complainant is taken into consideration. Now the case is for pronouncement of Judgment.
07. Now the points that arise for my consideration are as follows:
(SCH-20) 7 CC 37075/09
1. Whether the complainant proved that, the accused has committed an offence punishable under section 138 of N.I. Act?
2. What Order?
08. My answers to above points are as follows:
Point No.1 : In the affirmative
Point No.2 : As per the final order
for the following:
REASONS
09. Point No.1:- As already observed above, the complainant's company M/s Sree Gokulam Chits and Finance Co., Pvt., ltd., has filed this complaint against the accused by name Sri.Amanulla Khan, for the offence punishable U/.sec. 138 of N.I.Act.
10. It is definite case of the Complainant is that, the accused was the subscriber of a chit group No.J3E 154 with Ticket No.14 and participated in the auction and prized the chit and received the amount after deducting 25% from Sala Value of Rs.1,00,000-00, then he has received Rs.75,000-00 (SCH-20) 8 CC 37075/09 after executing a promissory note. But, after receival of the amount, the accused has failed to remit the installment amount and became defaulter in the repayment. After visiting the accused place, he accepted the total liability of Rs.77,431/- and issued a cheque bearing No.596267 dt:25-06-2007 for Rs.77,431-00, drawn on HDFC Bank, Golden towers, Airport road, Bangalore. When the said cheque was presented for encashment, through ITI Bank limited, Cox town, Bangalore - 05, it was dishonoured with an endorsement as "Account Closed" on 29-06-2007. Then, the complainant got issued legal notice calling upon the accused to pay the cheque amount. But, the accused has not paid the cheque amount. Hence, the complainant is before this court with this complaint.
11. In order to prove the case of the complaint, the General Power of Attorney holder of the complainant by name Mr.Raja.H.M. got examined as P.W.1. He has filed his affidavit in lieu of his chief examination, in which he has reiterated all the averments made in the complaint itself. Ofcourse, (SCH-20) 9 CC 37075/09 he has produced General Power of Attorney executed by the Managing Director of Complainant's company, which is marked at Ex.P1. Here, the argument of the learned counsel for the accused is that, the General Power of Attorney holder cannot depose before the Court and the Board resolution has not been produced and hence, his evidence cannot be considered. In this regard, the learned counsel for the Complainant relied upon the decision reported in 2002 SC 182., in which it is held as, A) Negotiable Instruments Act (26 of 1881) S.142, S138 - Cheque dishonour complaint - Can be made by payee or holder in due course of cheque - Complaint lodged in name and on behalf of appellant company who is payee of cheques - Is maintainable - Fact that complaint was lodged by Manager or deputy General Manager who had not been authorized by Board of Directors to sign and file complaint on behalf of company, Cannot be a ground for quashing complaint, since defect is curable.
12. Thus, in view of the above decision, just because of the reason that, the Manager or Deputy General Manager has not been authorized by the (SCH-20) 10 CC 37075/09 Board of Directors to sign and file a complaint on behalf of the company, is not a ground to quashing the complaint, as it is a curable defect.
13. Thus, in view of the above cited decisions, just because the Board resolution has not been furnished, it is not a ground to reject the General Power of Attorney executed by the Managing Director of the Complainant's company in favour of the Mr.Raja.H.M, who has got examined as PW.1.
14. Here, the original cheque alleged to be issued by the accused towards the amount due by the accused to the complainant is got marked at Ex.P.2, the signature of the accused identified by PW.1 is got marked as Ex.P.2(a), Ex.P.3 is the Bank endorsement given by the HDFC Bank as "Account Closed", Ex.P.4 is the Office copy of the Legal notice issued by the advocate of the complainant to the accused dt:16-07-2007 calling upon him to pay the cheque amount. Ex.P.5 is the RPAD receipt, Ex.P.6 is the UCP receipt, Notice sent through RPAD and the said returned RPAD cover is marked at Ex.P7, Notice which is in the said postal cover is (SCH-20) 11 CC 37075/09 marked at Ex.P.7(a) and Ex.P.8 is the Ledger extract of the accused, maintained by the complainant company. These are all the documents on which the complainant has relied upon.
15. On the otherhand the accused has not chosen to lead his oral evidence. But, in the cross- examination of P.W.1, counsel for the accused got marked one document i.e., Form-1, Surety and security proposal form along with chit payment voucher, which is marked at Ex.D.1.
16. Here, the accused has admitted his signature on this original cheque at Ex.P2. But, his argument is that, the said cheque was issued as a security and not towards any legally enforceable debt. Ex.P8 which is a monthly ledger extract of this accused maintained by the complainant's company. This ledger extract reveal the accused has paid installment amount only for a few months. When he was paying the installment amount, the complainant company also paid dividend. Ex.P8 reveal these things. But, thereafterwards, from 2005, the accused has not at all paid any installment amount. (SCH-20) 12 CC 37075/09 Here, at this juncture, it is also very pertinent to note that, the accused also called for some documents from the complainant's company. So, the complainant's company got produced the surety and security proposal form along with Chit payment voucher, which is marked as Ex.D1 through P.W.1. This Ex.D1 i.e., surety and security proposal form reveal the name of surety as Abdul Raheem. It reveal the prized bidder name as Mr.Amanulla Khan. This form is signed by this accused Amanulla Khan as well as Abdul Raheem, this document is with respect to surety detail. Along with this form there is a chit payment voucher. It reveal the dispatched date as 28-10-2004 and voucher serial Number as 1102/04. It also reveal in the payment detail column, Sala as 1,00,000-00, that means, this accused has prize bid amount for Rs.25,000-00 and he has received Rs.75,000-00 out of Rs.1,00,000-00. This voucher is also signed by this accused. Here, the advocate for the accused has cross-examined the P.W.1 regarding these two documents. Especially with respect to the use of (SCH-20) 13 CC 37075/09 different colour ink while writing on these two documents. Ofcourse, regarding this aspect, PW.1 has admitted it. But, though, there are different colour of inks has been used, the payment details are written in the same colour of ink. That cannot be disputed by the accused i.e., Sala value was Rs.1,00,000-00, bid amount was Rs.25,000-00 and net payable amount was Rs.75,000-00. It is signed by the accused as "(Subscriber's) Payee Signature". Here, these documents also reveal the information regarding a cheque, as the "Cheque No.067209, date; 9-11-2004, amount Rs.75,000-00". But, the present cheque in question is not a Cheque mentioned in this payment voucher. So, the argument of the accused that, he has issued the present cheque as a security at the time of availing the chit amount cannot be acceptable. Moreover, regarding the 'security ' aspect, the learned counsel for the complainant relied upon the decision reported in ILR 2008 KAR 1883, in which it is held as:-
NEGOTIABLE INSTRUMENTS ACT, 1881:-
SECTION 138 - Offence under - Conviction (SCH-20) 14 CC 37075/09 and sentence - Appealed against - Dismmissal of appeal - Revision against - Cheque issued for repayment of loan or security - HELD, Cheque issued for repayment of loan or security makes no difference under Section 138 of the Negotiable Instruments Act, - If the cheque is dishonoured, then the accused is liable to pay the cheque amount - ON FACTS, HELD. The presumption available for the complainant under Section 138 of Negotiable Instruments Act, should be rebutted - The revision petitioner was not successful in his attempt to rebut the evidence available on record - The evidence available on record reliable and trustworthy to pass an order of the conviction - No reasons to interfere in the judgment of conviction.
Revision appeal is dismissed.
17. In the same way, he has also relied upon the another decision reported in 2009 CRL.L.J. (NOC) 438 (MADRAS), in which it is held:-
NEGOTIABLE INSTRUMENTS ACT (26 OF 1881), S. 138 - Dishonour of cheque
- accused admits to have signed cheque and handed it over to complainant - Defence raised by accused that, said cheque was issued as a blank cheque intended to be a collateral security for an unregistered chit conducted by complainant. However, no evidence has been adduced by accused to prove that, (SCH-20) 15 CC 37075/09 complainant was running an unregistered chit in which accused joined as a subscribing member - There is no evidence to prove amount of chit or that accused was a priced subscriber and the blank cheque had been issued to ensure proper payment of future subscriptions - Can be held that, cheque was issued for repayment of loan obtained by accused from complainant - Accused guilty of offence.
18. Thus, in view of the above said decision of our own Hon'ble High Court, if the cheque is issued for the repayment of loan or security, it do not make any difference U/Sec 138 of N.I. Act. Moreover, this complainant company is a registered chit fund company. There is no dispute in this regard by the otherside. In the decisions cited above i.e., 2009 Crl. L.J. (NOC) 438 (MADRAS), even if the cheque had been issued to ensure proper payment of future subscription, that can be held that cheque was issued for the repayment of loan obtained by the accused from the complainant.
19. Here, the document produced by the complainant clearly reveal that, the accused became (SCH-20) 16 CC 37075/09 the subscriber of a complainant chit group in the year 2004 itself. Moreover, the present cheque had been issued in the year 2007. It is very important to note that, this cheque is dated 25-06-2007. So, definitely, it can be held that, this cheque was not issued as a security while obtaining the chit amount.
Moreover, as already observed above, in the chit payment voucher there is a mention of one cheque bearing No.067209, but that cheque is different from that of present cheque in question. Here, it is very important to note that, this complaint was lodged before this Court on 23-08-2007. The PCR has become C.C. in the year 2009. So, when the cheque was issued by the accused towards the balance payment, the complainant company presented the same for encashment and it was dishonoured, after the issuance of legal notice, the complainant filed this complaint before this Court on 23-08-2007. Moreover, the P.W.1 also deposed in his cross-examination stating that, the present cheque was issued by the accused in the year 2007 only, towards the payment of amount due by the (SCH-20) 17 CC 37075/09 accused. Ofcourse, the advocate for accused has cross-examined the P.W.1 in length regarding the dividend, interest, notice etc.,. But the Ledger extract i.e., Ex.P.8 clearly reveal that, how much installments have been paid by the accused and what dividend has been credited to the account of the accused and since which date, the accused has stopped to pay the installments amount.
20. Thus, in this case, it can be held very clearly that, after taking chit amount, the accused became defaulter. So, atlast, he had issued the present cheque to the complainant towards the amount due by him to the complainant. It can be held without any hesitation that, towards legally recoverable debt only the accused had issued the present cheque in question.
21. Under the above said facts and circumstances, it can be held that, the complainant has proved that, the accused has committed the offence punishable U/sec 138 of N.I. Act. Hence, I answered point No.1 in the affirmative. (SCH-20) 18 CC 37075/09
22. Point No.2:- In view of my findings on Point No.1, I proceed to pass the following:
O R D E R Acting U/Sec 255(2) of Cr.P.C, accused is hereby convicted and sentenced to undergo simple imprisonment for one year for the offence punishable U/Sec 138 of N.I. Act.
Acting U/Sec 357(3) of Cr.PC, accused is directed to pay a compensation of Rs.1,54,862-00 to the complainant towards the loss suffered by it.
Out of the total compensation amount of Rs.1,54,862-00, a sum of Rs.10,000-00 shall be deposited to the State as fine amount.
In default of the aforesaid compensation/fine amount, accused shall further undergo simple imprisonment for a period of six months.
Bail bond if any executed by the accused is stands cancelled.(SCH-20) 19 CC 37075/09
Supply free copy of this Judgment to accused immediately.
(Dictated to the Stenographer, transcribed by him, corrected by me and then pronounced in open court on this day of 15th September, 2015) (K.BHAGYA) V ASCJ & XXIV ACMM, Court of Small Causes, Mayo Hall Unit, Bangalore.
Annexures Witnesses examined for Complainant:
P.W.1 Raja. H.M. Documents marked for Complainant:
Ex.P.1 Notarized copy of General Power of Attorney Ex.P.2 original Cheque Ex.P.2(a) Signature of the accused is got marked Ex.P.3 Bank endorsement Ex.P.4 Office copy of the Legal notice Ex.P.5 RPAD receipt (SCH-20) 20 CC 37075/09 Ex.P.6 UCP receipt Ex.P.7 returned RPAD cover Ex.P.7(a) Notice of Ex.P.7 Ex.P.8 Ledger extract of the accused Witnesses examined for defence:
-Nil-
Documents marked for defence:
Ex.D.1 Form-1, surety and security proposal form, maintained by the complainant company (K.BHAGYA) V ASCJ & XXIV ACMM, Court of Small Causes, Mayo Hall Unit, Bangalore.