Bangalore District Court
Sri.Jinesh Kumar Jain vs M/S. Arihant Road Ways Pvt.Ltd on 3 July, 2020
SCH-22 1 C.C.No.273/2019
IN THE COURT OF THE XX ADDITIONAL SMALL CAUSES
JUDGE AND ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE AND M.A.C.T., BENGALURU (SCCH-22)
PRESENT : SMT. Shakunthala.S.,
B.A.., LL.B.
XX Addl. Small Causes Judge
and A.C.M.M., Bengaluru.
DATED : This the 03rd Day of July 2020.
C.C. NO.273/2019
Complainant - Sri.Jinesh Kumar Jain,
S/o. Mahavir Prasad Jain,
Aged about 49 years,
R/at # 411-N, 19th 'G' Main,
I Block, Rajajinagara,
Bengaluru - 560 010.
(Rep: By Smt. Deepa. C, Advocate)
- Versus -
Accused - 1. M/s. Arihant Road Ways Pvt.Ltd.,
# 13/22, KSV Nilaya, 3rd Main, Kalasipalya
New Extention, Bengaluru-560002.
(Rep. By its Director Sri. Narendra Kumar,
Chhabara Diwan.
(Rept: By Sri. D.H.Mokhashi., Advocate)
2. Sri. Narendra Kumar,
Chhabarara Diwan,
Managng Director,
M/s. Arihant Road ways Pvt. Ltd.,
R/at No.# 117, II Floor,
5th West Main Road, ITI Layout,
Banashankari III Stage,
SCH-22 2 C.C.No.273/2019
Bengaluru - 560 085.
(Rept: By Sri. D.H.Mokhashi., Advocate)
Dated of Institution : 17.01.2019
The offences complied : Under Sec.138 of the
off or proved Negotiable Instrument Act.
Plea of the accused : Pleaded not guilty
Date of commencement : 21.08.2019
of recording evidence.
Final Order : Accused is Convicted
Date of such order : 03.07.2020
(SHAKUNTHALA.S.)
XX ADDL.S.C.J. & A.C.M.M.,
BENGALURU.
:: JUDGMENT ::
The complainant filed this complaint against the accused Under Section 200 Cr.P.C for the offence punishable Under Section 138 of N.I Act.
SCH-22 3 C.C.No.273/2019
2. The case of the complainant in brief;
The accused No.1 being the represented by accused No.2.
Accused facing financial problems as such approached thee the complainant during the month of August, 2016 and availed financial assistance to the tune of Rs.5,00,000/- for improvement of business, domestic purpose and other commitments. Accordingly, he paid the aforesaid amount. After the stipulated period he approached them and demanded to repay the aforesaid amount and towards discharge of debts and liability, accused No.2 on behalf of Accused No.1 issued a cheque bearing No.169044 date. 27.08.2018 for a sum of Rs.5,00,000/- drawn on Bank of India , J.C. Road Branch, Bangalore duly signed by Accused No.2 in his favour. He presented the said cheque for encashment through his banker Kotak Mahindra Bank Ltd., Yeshwanthpura Branch, Bangalore but it was dishonored and returned on 15.11.2018 with a shara "title of account wrong/incomplete". On enquiry with the bank authorities it was stated that the cheque pertaining to 2003 and the account closed during 2008 itself. The accused deliberately issued cheque without SCH-22 4 C.C.No.273/2019 his knowledge with an intention to cheat him as he was not aware of CTS cheques. He approached the accused and informed about the same and demanded to repay the cheque amount but they expressed their financial problems and promised to repay within few days but not repaid the cheque amount which constrained him to issue legal notice on 28.11.2018 . The said notice unserved with a shara "left" as "no such person in the address". The accused not complied the demand made within stipulated period and thereby committed an offence punishable under Section 138 of N.I. Act., therefore, the present complaint.
3. In response to the summons, accused appeared through the counsel and enlarged on bail. The substance of accusation was recorded and read over by my learned predecessor; accused pleaded not guilty and claims to be tried.
4. The complainant got examined himself as PW1 and got marked 7 documents at Ex.P1 to P7 and P7(a). Thereafter, PW1 crossed-examined by the accused by rising defence. The statement as required under Section 313 Cr.P.C. was recorded and read over to the accused by my learned predecessor, for which accused denied the SCH-22 5 C.C.No.273/2019 incriminating materials as false and examined himself as DW.1 but no documents nor, witnesses have been produced and raised his defense that the cheque in question was given by the company in the year 2003, which was filled up by the complainant with imaginary figures in his own handwriting and putting the date on the face of the cheque to make a wrongful gain and the account has become dormant and is non-operative, the cheque is CTS cheque and the complaint not presented within the prescribed period of limitation. Hence, not liable to pay the cheque amount.
5. Heard. Notes of arguments also filed by learned counsel for accused and also filed memo with citation in Criminal Appeal No.545/2010 between K.V.Subba Reddy Vs N.Raghava Reddy, Laws(BOM) 1999 2 30 between Ashwini Satish Bhat Vs Jeevan Divakar, Laws (APH) 1997 1 45 between Giridhari lal Rathi Vs P.T.V Ramanujachari, CRM-A-769 MA of 2013 between Sangeeta Ahuja Vs Sunita Kapoor.
6. The following points that arise for my determination are:
1) Whether the complainant proves that Ex.P1 cheque has been issued by the accused towards SCH-22 6 C.C.No.273/2019 discharge of legal liability and the same was dishonored on its presentation for funds insufficient and further complied the mandatory provisions of Sec. 138 (a) o (c) of the N.I. Act and further the complainant proves beyond doubt that the accused without having sufficient funds in his account issued cheque towards discharge of liability and failed to make good to the compliant after its dishonor within the stipulated period and thereby, committed an offence punishable under Sec. 138 of N.I. Act?
2) What order?
7. My answer to the above points are:
Point No.1:
Point No.2: As per final order; for the following:
REASONS
8. Point No.1: Under Section 138 of the N.I.Act the offence will complete only if the mandatory provisions of Sec.138
(a) to (e) are complied, when the cheque was issued towards the discharge of the legal liability and it was dishonored for insufficient funds in the credit of the accused.
9. In this connection, the complaint averments reveal that the accused owing a sum of Rs.5,00,000/-, towards repayment of the same got issued a cheque for Rs.5,00,000/- on 27.08.2018 drawn on Bank of India, J.C.Road Branch, Bangalore, and the same was SCH-22 7 C.C.No.273/2019 dishonored for the reason title of account wrong/incomplete when presented for realization. The same has been reiterated by the complainant in his affidavit filed in lieu of his evidence.
10. In support of his oral evidence, he got marked the original cheque at Ex.P1, signature of accused no.2 at Ex.P1(a), endorsement Ex.P2, legal notice Ex.P3, postal receipts at Ex.P4 and P5, postal covers Ex.P6 and P7 office copy of the notices sent under Ex.P6 and 7 at Ex.P6(a) and Ex.P7(a). On the other hand, the accused contended that the cheque in question was given blank by the company i.e., accused no.1 in the year 2003 and the cheque in question was filled up by the complainant with imaginary figures in his own handwriting and putting the date on the cheque to make out a case for making wrongful gain and the account pertains to Ex.P1 cheque become dormant and non-operative and the cheque is CTS cheque and the complaint filed after expiry of prescribed period of limitation. Further, accused the also raised defence during cross- examination of PW.1 that Ex.P1 cheque was canceled during 2009 by the Government itself, the account relating to Ex.P1 cheque not at all related to the accused, as such as per Ex.P2 endorsement was SCH-22 8 C.C.No.273/2019 given and there was no transaction between the accused and the complainant, as such not liable to pay any amount. There is a difference in ink of the writings and the date on Ex.P1. The same has been suggested to PW.1 during cross examination but the same have been denied by PW.1.
11. On perusal of the defense, as well as the suggestions made to PW.1 it clearly reveals that there is no dispute regarding the fact that Ex.P1 cheque belongs to accused no.1 and also it is not in dispute regarding the signature of accused no.2 i.e., Ex.P1(a) found on the said cheque, when these facts are not in dispute, without any extraneous evidence the court can draw presumption that PW,1 is a holder of the cheque. In this background, having regard to the facts and circumstances of the case, leads to draw presumption as contemplated Under Section 139 of N.I.Act.
12. Now it is expected from the accused whether he has taken any contra evidence from the mouth of PW.1 in support of his defence as raised and the complainant misused the cheque and got filed false complaint, even though the accused contended during SCH-22 9 C.C.No.273/2019 cross-examination of PW.1, suggestions made to PW.1 that the cheque was canceled by the Government during 2009 itself and Ex.P1 cheque not at all related to accused and there was no transaction between him with the complainant and there is a difference of ink in respect of the writing and the date mentioned on Ex.P1 and further the said cheque issued in his favour during 2003 but though the above defense raised but in his evidence he raised further contention that the cheque was given blank by the company in the year 2003, which was filled up by the complainant with imaginary figures in his own handwriting by putting date to make wrongful gain moreover, the account become dormant and is inoperative, the cheque in question is CTS cheque.
13. The defense raised by the accused and the suggestions made to PW.1 clearly establishes that the accused having knowledge in respect of Ex.P1 and accused not specific about their case as the burden is on the accused to rebut the case of the complainant as the presumption raised in favour of the complainant U/Section 139 of N.I.Act is a mandatory presumption and not a general presumption SCH-22 10 C.C.No.273/2019 accordingly, the burden heavily on the accused to prove the circumstances under which the complainant holds the Ex.P1 instrument. If at all, Ex.P1 cheque was issued for a moment as blank during 2003 as contended by the accused and the account was closed during 2009, but during cross-examination DW.1 clearly admitted that, the company closed in the year 2001 due to family dispute and also admitted no action taken against the complainant for filing this compliant and also admitted that he does not know whether the accused no.1 given a blank cheque or not. Further more, DW.1 specifically and unequivocally admitted the seal on Ex.P1 cheque and the signature, which was confronted through him. Further, the accused failed to prove that Ex.P1 cheque which pertains to the year 2003. On the other hand, the date mentioned on Ex.P1 is dated 27.08.2018 and if at all the account pertains to the cheque closed that too canceled by Government during 2009 but suggestions made to PW.1 that Ex.P1 cheque not related to accused, as such Ex.P2 endorsement given by the bank. So also it is suggested to PW.1 that Ex.P1 Cheque which was issued during 2003. These suggestion it self takes away the entire case of accused. If at all the account closed SCH-22 11 C.C.No.273/2019 as contended by the accused whether accused returned the cheque book pertaining to the account of accused No.1 or given any intimation in respect of the same to the bank or whether the account closed on whose intimation, which are not at all been established by the accused. On the other hand, at the one set he denied the issuance of Ex.P1 cheque and the transaction, on the other set he admitted that Ex.P1 cheque issued by accused No.1 and the signature but failed to establish the defense raised by him. Though DW.1 denied Ex.P1 cheque but in his evidence itself he admitted the issuance of Ex.P1 Cheque and at this stage it is relevant to mention the same that " Cheque in question was given blank by the Company in the year 2003"
but how and under what circumstances PW.1 retained the Ex.P1 Cheque as it is not the case of accused whether the transaction between complainant and the accused was already repaid relating to Ex.P1 Cheque.
14. Therefore, no contra evidence, in order to overcome or reach the point to cross the barrier of presumption as contemplated under Section 139 of N.I.Act. Since it is a statutory presumption, the court bound to presume that, when there is no dispute regarding SCH-22 12 C.C.No.273/2019 cheque relates to the accused and signature of the accused, but the accused though dispute but admitted during cross-examination as well as in his evidence. However, with regard to the facts and circumstances, the court bound to raise presumption regarding the fact that the complainant is the holder of the cheque. Therefore, the accused failed to raise a probable defense, which may create a doubt in the prosecution case.
15. Further, the accused raised the defense that the statutory legal notice not duly served on him. PW.1 also admitted the same. In this regard, on perusal of Ex.P4 and Ex.P5, postal receipts and postal returned covers, Ex.P6 and Ex.P7 have been clearly disclosing that the complainant send the legal notice for proper and sufficient address of the accused and the burden is again on the accused to rebut and to prove that the said address shown not correct and proper address and not belong to him for which he could have made efforts to prove that the address shown in the complaint not pertains to him and which is correct address, moreover the address given in the cause title as well as the address showed by the accused in his evidence as well as in his substance of accusation are SCH-22 13 C.C.No.273/2019 one and the same. Moreover, presumption could be drawn in respect of Ex.P.4 and Ex.P5 as contemplated under section 27 of the General Clauses Act, that if any notice addressed to the proper and sufficient address, it amounts to deemed service of such notice, accordingly, the defense raised by the accused holds no water in the eye of law.
16. Further, Under Section 138 of N.I.Act the offence will complete only if the mandatory provisions of Sec. 138 (a) to (c) are complied, when the cheque was issued towards discharge of the legal liability and it was dishonoured. The Ex.P1 cheque dated 27.08.2018 and the said cheque returned for the reason as per endorsement Ex.P2 and the legal notice issued on 28.11.2018. The documents reveal that the cheque has been presented within six months from the date of issue of the legal notice within the time limit from the date of dishonour. The said notice was duly addressed to the accused and from that date, within the stipulated period, the complaint came to be filed.
SCH-22 14 C.C.No.273/2019
17. There is no dispute in respect of signature on Ex.P1 itself is a proof to hold that it belong to accused and at the time of presentation of the said cheque there was no sufficient funds in the said account. If at all the company closed in the year 2001 then what is the necessity to issue the cheque belong to the company that too during 2003 and if the Ex.P1 cheque was canceled by the Government during 2009 that too after 6 years that is from 2003 complainant is holding the instrument and no steps taken with regard to Ex.P1 cheque nor any steps taken in respect of holding the same by the complainant and there must be something to establish the same but the accused nothing has been establish in this regard. Therefore, the complainant complied all the mandatory provisions of 138 (a) to (c) of the N.I.Act.
18. Since the accused having failed to make good to the complainant within stipulated period that too, from 2018 has committed an offence punishable under Section 138 of the N.I. Act. There is no contra evidence to overcome Sec.118 and 139 of N.I.Act. The citations sighted by the accused and the principle laid down there in are not aptly applicable to the present case on hand.
SCH-22 15 C.C.No.273/2019 Accordingly, I hold that the accused is found guilty of the offence punishable under Section 138 of the N.I.Act. Hence, I answer point No.1 in the Affirmative.
19. Point No.1: In the view of the above reasons, I proceed to pass the following:
:: ORDER ::
The accused convicted for the offence punishable under section 138 of the N.I.Act by acting U/ sec. 255 (2) of Cr.P.C and he is sentenced to pay a fine of Rs. 5,20,000/- ( Five Lakh Twenty Thousand). In default to pay fine, the accused shall undergo simple imprisonment for a period of one year.
Further acting U/Sec. 357 (1) (b) of Cr.P.C on recovery of entire fine amount of Rs.5,20,000/- shall be paid to the complainant as compensation.
The bail bond and surety bond of the accused shall stand canceled.
Supply a free copy of the judgment to the accused with due endorsement.
(Dictated to the stenographer, on line computer, corrected by me and then pronounced in the open court on this the 03rd day of July 2020.) SCH-22 16 C.C.No.273/2019 (SHAKUNTHALA.S) XX A.S.C.J. & A.C.M.M., Bengaluru.
:: ANNEXURE ::
List of witnesses examined on behalf of the complainant:
P.W.1 - Sri. Jinesh Kumar Jian List of witnesses examined on behalf of the accused:
D.W.1 - Sri. Narendra Kumar Jain List of documents marked on behalf of the complainant:
Ex.P.1 - Cheque Ex.P.1(a) - Signature of the accused Ex.P.2 - Bank Endorsement Ex.P.3 - Legal notice Ex.P.4&5 - Postal receipts (2) Ex.P.6&7 - Postal cover(2) Ex.P.6(a) &7(a) - Copy of notice (2)
List of documents marked on behalf of the accused:
- Nil -
(SHAKUNTHALA.S.) XX A.S.C.J. & A.C.M.M., BENGALURU.
SCH-22 17 C.C.No.273/2019
03.07.2020
(Judgment pronounced in open court,
vide separate judgment).
OR D E R
The accused convicted for the offence
punishable under section 138 of
the N.I.Act by acting U/ sec. 255 (2) of
Cr.P.C and he is sentenced to pay a fine of
Rs. 5,20,000/- ( Five Lakh Twenty
Thousand). In default to pay fine, the
accused shall undergo simple
imprisonment for a period of one year.
Further acting U/Sec. 357 (1) (b) of
Cr.P.C on recovery of entire fine amount
of Rs.5,20,000/- shall be paid to the
complainant as compensation.
The bail bond and surety bond of
the accused shall stand canceled.
Supply a free copy of the judgment
to the accused with due endorsement.
(SHAKUNTHALA.S.)
XX A.S.C.J. & A.C.M.M.,
BENGALURU.