Bangalore District Court
M/S Shree Charan (P) Ltd vs Suresh H on 1 April, 2019
IN THE COURT OF THE XX ADDITIONAL SMALL
CAUSES JUDGE AND XVIII ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE & M.A.C.T.,
BENGALURU (SCCH-22).
Sri. B. Venkatappa,
PRESENT: B.A.L.L.B.,
XX Addl.Small Causes Judge & XVIII
A.C.M.M. & Member M.A.C.T., Bengaluru.
Dated This the 1st Day of April 2019.
CRIMINAL CASE NO.3690/2018
Complainant - M/s Shree Charan (P) Ltd.,
No.70/147,
Dr. Rajkumar Road,
Rajajinagar,
Bangalore-560 010.
Represented by its Director
Sri Mahabaleshwara Bhat,
(Rept: By Sri. Amshith Hegde H.S.,
Advocates, Bengaluru)
-Versus-
Accused 1. Suresh H.,
S/o Hanumanthaiah D.,
#654, 6th 'A' Cross,
9th Block, 2nd Stage,
Nagarabhavi,
Bangalore-560 072.
(Rept: By Sri. K. Prakash,
Advocate, Bengaluru)
Date of Institution. : 02.08.2018.
The offence complied : Under Sec.138 of the
off or proved. Negotiable Instruments Act.
Plea of the accused. Pleaded not guilty.
2 SCCH-22
C.C.3690/2018
Date of : 19.11.2018.
commencement of
recording evidence.
Final Order : Accused is convicted
Date of such order : 01.04.2019
(B. VENKATAPPA)
XX A.S.C.J. & XVIII A.C.M.M.,
& MEMBER, M.A.C.T.,
Bengaluru.
3 SCCH-22
C.C.3690/2018
:: J U D G M E N T ::
The complainant M/s Shree Charan (P) Ltd., has filed this complaint under Section 200 of Cr.P.C., against the accused for the offences punishable under Section 138 of Negotiable Instrument Act.
2. The brief facts of the complainant case are as follows:
The complainant is running chit fund business. The accused is one of the subscriber of the chit run by the complainant and subscribed for Ticket No.38 in Chit group No.12KB/LT/12 for a chit value of Rs.10,00,000/- and subscription installment payable at Rs.25,000/- per month for a period of 40 months. Towards the said chit, the accused has paid a sum of Rs.4,77,500/- including dividend and still there is an outstanding of Rs.4,28,514/- to the complainant company. The accused is also liable to pay the damages of sum of Rs.31,350/- along with interest of Rs.4,55,101/- in total the accused is liable to pay sum of Rs.10,08,951/- to the complainant company. After repeated requests and reminders, accused has issued a cheque bearing No.079412 dated:07.06.2018 drawn on Corporation Bank Ltd., Basavanagudi Branch in favour of the complainant towards the payment of above said outstanding amount. The complainant has 4 SCCH-22 C.C.3690/2018 presented the said cheque through its banker i.e., The Union Bank of India, RMC Yard, Yeshwanthapur Branch, Bangalore, for encashment. But the said cheque was returned dishonoured with memo dated:14.06.2018 stating that, "Funds Insufficient". The complainant got issued the legal notice through his counsel to the accused on 28.06.2018 through R.P.A.D. by demanding him to pay the cheque amount. Inspite of service of legal notice, the accused has not paid the cheque amount and nor complied the notice issued by the complainant. Hence, this Complaint.
3. The accused appeared before this Court through his counsel and he is enlarged on bail. Substance of accusation was read over and explained to the accused. He has pleaded not guilty and claims to be tried.
4. To prove the guilt of the accused, on behalf of the complainant company, its Director and authorized person by name Sri.Mabaleshwar Bhat examined himself as P.W.1 and got marked nine documents as per Ex.P.1 to Ex.P.9 and closed his side evidence.
5. After closure of the complainant's side evidence, statement of the accused recorded as required under Section 313 of Cr.P.C.
5 SCCH-22 C.C.3690/2018 The accused has denied the incriminating evidence against him, which appears in the complainant side evidence. The learned counsel for the accused submitted that, he has no defence evidence. But Ex.D.1 to Ex.D.8 were marked during the cross- examination of P.W.1 through confrontation.
6. Heard the arguments from both sides.
7. The points that would arise for my consideration are as follows :
1. Whether the complainant proves beyond reasonable doubt that, the accused has issued a cheque bearing No.079412 dated:07.06.2018 for a sum of Rs.10,08,951/- drawn on Corporation Bank Ltd., Basavanagudi Branch, Bangalore in order to discharge legally enforceable debt?
2. Whether the complainant proves that, after dishonor of the cheque, he has issued notice to the accused in compliance to Section 138 (b) of the Negotiable Instrument Act?
3. What order ?
8. My answer to the above points are as under:
Point No.1 - In the Affirmative.
Point No.2 - In the Affirmative.
6 SCCH-22
C.C.3690/2018
Point No.3 - As per final order for
the following
:: R E A S O N S ::
POINT No.1 and 2 :
9. The complainant M/s Shree Charan (P) Ltd., has field this complaint under Section 200 of Cr.P.C. against the accused for the offences punishable under Section 138 of Negotiable Instruments Act.
10. In this case the burden of proving the ingredients of Section 138 of Negotiable Instrument Act is heavily on the complainant. The complainant, in order to prove these points examined its Director and authorized person by name Sri. Mabaleshwar Bhat as P.W.1 and also got marked as many as nine documents from Ex.P.1 to Ex.P.9 and closed its side evidence.
11. In this case the burden of proving the point No.1 and 2 is heavily on the complainant. For the purpose of appreciating the evidence, firstly I have gone through the oral and documentary evidence placed by the complainant side. The Director and authorized person of the complainant company Sri. Mabaleshwar Bhat in his evidence before this Court has almost reiterated 7 SCCH-22 C.C.3690/2018 whatever the allegations made in the complaint. In addition to his oral evidence, P.W.1 has also got marked as many as nine documents from Ex.P.1 to Ex.P.9. I have gone through the same. Ex.P.1 is the Board Resolution of the Complainant Company. It shows that the Managing Director of Complainant Company has given authority to P.W.1 to prosecute this case. Ex.P.2 is the Cheque and Ex.P.2(a) is the signature of the Accused on Ex.P.2. It shows that, the accused has issued a cheque bearing No.079412 dated:07.06.2018 for a sum of Rs.10,08,951/- drawn on Corporation Bank, Basavanagudi Branch, Bangalore in favour of the complainant company. Ex.P.3 is the Endorsement dated:14.06.2018 issued by the Union Bank of India and it shows that, the said cheque was returned for the reason "Funds Insufficient". Ex.P.4 is the Copy of Legal Notice dated:28.06.2018, it shows that the complainant had issued the legal notice to the accused calling upon him to pay the cheque amount of Rs.10,08,951/- within 15 days from the date of receipt of notice. Ex.P.5 is the Postal Receipt and Ex.P.6 is the Postal Acknowledgment. They show that, the legal notice issued by the complainant to the accused was served to him on 30.06.2018. Ex.P.7 is the Chit Agreement and Ex.P.8 is the Voucher. They 8 SCCH-22 C.C.3690/2018 show that, the accused has executed the Chit Agreement in favour of the complainant company towards the chit group No.12KB/LT/12 for a chit value of Rs.10,00,000/- payable at Rs.25,000/- per month for a period of 40 months by agreeing the terms and conditions of the complainant company and received the amount of Rs.6,95,674/- on 03.06.2013. Ex.P.9 is the Statement of Account of the accused chit group maintained by the complainant company. It shows that, the accused is due a sum of Rs.5,07,500/- as on 11.07.2018.
12. After closure of the complainant's side evidence, statement of the accused recorded as required under Section 313 of Cr.P.C. The accused has denied the incriminating evidence against him, which appears in the complainant side evidence. The learned counsel for the accused orally submitted that, the accused has no defence evidence. The specific defence of the accused is that, at the time of chit, the complainant has collected the Ex.P.2 i.e., Cheque. At the time of chit, Ex.P.2 is blank signed cheque. Later the complainant company has filled the said cheque and filed this case against the accused to extract money from him. In support of his contention the accused has marked Ex.D.1 to Ex.D.8 through confrontation of P.W.1 during the cross-examination. Ex.D.1 is 9 SCCH-22 C.C.3690/2018 the Xerox copy of the mobile message. It shows that, the complainant has sent the message to the accused regarding due amount of Rs.6,22,525/-. It shows that, the complainant himself admitted the due amount of Rs.6,22,525/-. The accused has marked Ex.D.2 i.e., Chit Pass Book issued by the complainant company towards chit. It shows that, the accused has paid some installments amount to the complainant company. The accused has produced Ex.D.3 i.e., seven receipts issued by the complainant company. It shows that, the accused had paid some installments amount to the complainant company. Ex.D.4 is the Pass Book issued by the complainant company to the wife of accused by name Smt. Sowmya Suresh. Ex.D.5 is the receipt. They shows that, the wife of accused Smt. Sowmya Suresh had paid chit amount to the complainant company towards her chit. Ex.D.6 and Ex.D.8 are the Two Chit pass Books of the Chit bearing No.HIG/ST/16 and HIG/ST/16 Ticket No. 25 and 26. They shows that, the accused is the another chit holder of the complainant company. Ex.D.7 is the receipts. They show that the accused had repaid some installment amount to the complainant.
10 SCCH-22 C.C.3690/2018
13. The defence of the accused is that, at the time of commencement of chit, the complainant collected the said cheque for the purpose of security of said chit amount and he had repaid the entire chit amount to the complainant company but the complainant has not issued any NOC and not returned the said security cheque to him. But the accused has not produced any documents to show that, the complainant has collected the said cheque for the purpose of security. If the complainant has collected the said cheque for the purpose of security, he may filed necessary legal against the complainant and if he repaid the said entire chit installments to the complainant, he may demand the complainant to return the said cheque or he may take legal action against the complainant regarding non returning the said security cheque, but the accused has not to do so. Therefore, the accused failed to prove that, the said cheque has been issued for the purpose of security.
14. The further defence of the accused is that, the complainant officials had sent a message to him to his mobile phone on 28.02.2018, wherein they stated that, the accused is due a sum of Rs.6,22,525/-. Later on 04.04.2018 again the officials of 11 SCCH-22 C.C.3690/2018 the complainant had sent a message, wherein they have stated that, the accused is due a sum of Rs.6,10,025/-. In support of his contention the accused has produced Ex.D.1 i.e., Xerox copy of message. The complainant has admitted the contents of said Ex.D.1. On careful perusal of Ex.D.1, it shows that, the amount mentioned in two messages is different in each other. But the accused failed to prove that, on which date the amount was due as mentioned in Ex.D.1 and also on which mobile number the said message was sent to him is not properly explained. If the message sent by the officials of the complainant, it is the duty of the accused to examine the said official of the complainant company. But the accused failed to prove the Ex.D.1. On the other hand, the complainant has produced Ex.P.9 i.e., the ledger account extract. It shows that, the accused is due for a sum of Rs.5,07,500/- as on 11.07.2018.
15. It is specific defence of the accused is that, if any chit holder has become a defaulter in payment of chit amount, the complainant has not given any another chit to the defaulter customer. If the accused has defaulter in payment of installment amount, the complainant has not give any further chit to the accused. But the complainant has given one more chit to the 12 SCCH-22 C.C.3690/2018 accused. It shows that, the complainant has violated the terms and conditions of the chit agreement in between the complainant and accused and also the accused has repaid the entire chit amount to the complainant, therefore, the complainant has given another two chits to the accused. In support of his case, the accused has produced Ex.D.6 and Ex.D.8 i.e., two pass books pertaining to another chits of the accused. They shows that, the complainant company had given another chits to the accused. If the accused violated the terms and conditions of the chit agreement, the accused may approached the proper forum for violation of terms and conditions. Therefore, the accused failed to prove that, the complainant has violated the terms and conditions of the agreement.
16. It is further defence of the accused that, his wife Smt. Sowmya Suresh is one of the chit holder of the complainant company under chit No.13KB/LT/13, Ticket No.36. If the accused is defaulter in payment of chit installment to the complainant, the complainant has not given any chit to the family of the accused. Therefore, the accused has repaid entire chit amount to the complainant, due to this the complainant has given one more chit 13 SCCH-22 C.C.3690/2018 to the family members of the accused. In support of his case, the accused has produced Ex.D.4 i.e., the Pass Book of Smt. Sowmya Suresh. If the complainant has violated the terms and conditions mentioned in the chit agreement by giving another chit to his family members, the accused may approach the property forum for violation of terms and conditions of chit agreement. This court has not authority to decide the terms and conditions mentioned in the chit agreement.
17. The further defence of the accused is that, he is one of the successful bidder of the chit group No.12KB/LT/12 in ticket No.38 for a chit value of Rs.10,00,000/-. He has repaid the entire chit amount to the complainant. At the time of chit, the complainant has collected the blank signed cheque towards security of the chit. But they did not return the said security cheque. In support of his contention the accused has not produced any documents and he has not stepped into the witness box to prove the defence taken in the cross-examination. On perusal of the entire oral and documentary evidence placed by the complainant and accused, they shows that, the accused is one of the successful bidder of the complainant company under Ticket No.38 in chit group No.12KB/LT/12 for a chit value of 14 SCCH-22 C.C.3690/2018 Rs.10,00,000/- for a period of 40 months. According to the complainant the accused has paid some installments amount to the complainant company and he is due for a sum of Rs.4,28,514/- and damages of Rs.31,350/- along with interest of Rs.4,55, 101/- in all the accused has claiming total amount of Rs.10,08,951/-. But the complainant failed to prove that, the accused is liable to pay damages and interest. In support of his case, the complainant has not produced any document to show that, there is agreement regarding interest and damages in between complainant and accused. Therefore, the complainant is not entitled claim amount. The complainant is entitled to outstanding amount of Rs.4,28,514/- with interest at the rate of 9% per annum. Therefore, the complainant has sufficiently proved that, the accused had issued a cheque towards discharge of legally enforceable debt.
18. The further defence of the accused is that, at the time of chit the complainant has collected the blank signed cheque towards security of said chit and he cleared entire amount to the complainant, but the complainant company had not return the cheque and field this false case to extract the money from him. This admission clearly goes to show that, the accused is the 15 SCCH-22 C.C.3690/2018 subscriber of the chit of the complainant company. If the accused has paid the said chit amount, he may request the complainant to return the said security cheque or he may take legal action against the complainant for not returning of the security cheque. But the accused did not do so. The further defence of the accused is that, on 28.02.2018, the officials of the complainant company had sent message to him, wherein they have admitted that, the accused is due a sum of Rs.6,22,525/- to the complainant. Later the complainant company had sent the message on 04.04.2018, wherein they have stated that, the accused is due a sum of Rs.6,10,025/-. The said two messages are different in each other. On the other hand, the complainant has produced Ex.P.9 i.e., ledger account extract. It shows that, the accused is due for a sum of Rs.5,07,500/- as on 11.07.2018. Therefore, the accused is due for a sum of Rs.5,07,500/-.
19. The further defence of the accused is that, if any chit holder become a defaulter, the complainant company has not given any other chit to the defaulter. But the complainant company has given one more chit to him. Therefore the complaint has violated the terms and conditions mentioned in the chit agreement. In support of his case the accused has produced Ex.P.6 and 8 i.e., the 16 SCCH-22 C.C.3690/2018 Pass Book. It shows that, the complainant had given another two chits to the accused. Whether the complainant company having power to give one more chit to the default customer is not the decided fact of this case. If the complainant has committed any violation of chit agreement, the accused may approach before competent court for violation of terms and conditions. It is further defence of the accused that, the wife of accused Smt. Sowmya Suresh is one of the customer of the complainant company and she has the successful bidder in Chit No.13KB/LT/13 Ticket No.36. In support of his case the accused has produced Ex.D.4 i.e., the Pass Book. It shows that, the wife of accused is one of the subscriber of another chit. This fact is also not the decided facts of this case. Whether the accused had issued a cheque towards discharge of legally enforceable debt or not?. In this case the accused is one of the successful bidder of the complainant company for Ticket No.38 in Chit Group No.12KB/LT/12 for a chit value of Rs.10,00,000/- for a period of 40 months and installments payable at Rs.25,000/- per month and the accused had paid a sum of Rs.4,77,500/- and outstanding amount is Rs.4,28,514/- and damages of Rs.31,350/- along with interest of Rs.4,55,101/-. In all he is liable to pay Rs.10,08,951/-. The complainant has claimed due amount along 17 SCCH-22 C.C.3690/2018 with damages and interest. But there is no agreement regarding damages and interest. Hence, the complainant is entitled only outstanding due amount of Rs.4,28,514/- with interest at the rate of 9% per annum and it is not entitled any damages from the accused. Towards discharge of the said amount, the accused had issued a cheque in favour of the complainant. Therefore, the complainant has sufficiently proved the necessary ingredients under Section 138 of Negotiable Instrument Act.
20. After going through the oral and documentary evidence of the complainant and after going through the arguments of the complainant, now let me see whether the complainant has proved ingredients of Section 138 of Negotiable Instrument Act or not. For that purpose I have completely gone through Section 138 of Negotiable Instrument Act which deals with "Dishonour of Cheques".
21. In order to constitute an office under Section 138 of Negotiable Instrument Act, the complainant has to fulfill the following requirements, which are as follows:
1. Cheque who have been issued for the discharge in whole or part of any debt or any other liability.
18 SCCH-22 C.C.3690/2018
2. The cheque should have been presented before the bank within the period of six months or within the period of its validity which ever is earlier.
3. The payee should have issued a legal notice in writing to the drawer of the cheque within of 30 days from the date of information from the bank.
4. After receipt of the notice, the drawer should have failed to pay cheque amount within 15 days from the date of receipt of the said notice.
5. On payment of the amount due, on the dishonored cheque within 15 days from the date of receipt of the notice by the drawer, the complaint should have been filed by the complainant within one month from the date of expiry of grace time of 15 days before a metropolitan Magistrate or not below the rank of JMFC.
22. For that purpose, I have gone through the documentary evidence placed by the complainant side. In this case Ex.P.2 is the cheque bearing No.079412 dated:07.06.2018 for a sum of Rs.10,08,951/-. Ex.P.3 is the endorsement issued by the Union Bank of India and it endorsed that, "Funds Insufficient" and returned on 14.06.2018. Ex.P.4 is the legal notice dated:28.06.2018 which was served to the accused and he has not repay the cheque amount or given any reply to the said notice, that means within six months from the date mentioned in Ex.P.2, it was produced before the bank for encashment and it was dishonored as 19 SCCH-22 C.C.3690/2018 per the bank endorsement at Ex.P.3. The legal notice dated:28.06.2018 was served to the accused, then this complaint filed within one month from the date of expiry of grace period. Therefore in this case, the complaint has been filed within time. Hence, the mandatory provision laid down under Section 138 of Negotiable Instrument Act has been complied by the complainant in this case.
23. In this case, the accused has denied the oral and documentary evidence placed by the complainant and also he has led defence evidence to prove his defence. I have completely gone through the Section 139 of N.I Act, which reads as under:
"Sec.139: Presumption in favour of holder, It shall be presumed unless the contrary is proved that the holder of a cheque received the cheque of the nature referred in Section 138 for the discharge in whole or in part of any debt or other liability."
Therefore as per Section 139 of Negotiable Instrument Act, the presumption arises in favour of payee or holder of the cheque that the cheque was issued for discharge of debt or liability legally enforceable. The important ruling about this Section are:
1. ILR- 2000 KARNATAKA Page 1750;
2. AIR 2001 S.C. Page- 2895;
3. AIR 2002 S.C. Page-182;
20 SCCH-22 C.C.3690/2018 In this case the accused has not denied Ex.P.2 cheque and also not denied the signature at Ex.P.2(a). Therefore, I am of the opinion that, indirectly the accused has admitted the case of the complainant. Therefore the admitted facts need not be proved as per the provisions of Indian Evidence Act. Once the signature of the accused is admitted on the disputed cheque, what may be consequence? Regarding this point, I have gone through the ruling reported in AIR-2000 S.C. Page- 145, wherein the Hon'ble Supreme Court held that, "Presumption under Section 118 of Negotiable Instrument Act is to be drawn when the drawer has admitted his signature on the cheuqe".
24. Therefore, in the instance case, accused has not at all denied the Ex.P.2 cheque and his signature on the said cheque. In this case the accused is indirectly admitted the case of the complainant. Therefore much discussion regarding the same is not required. Further regarding the same point, I have also reported the ruling reported in 2004 part 3 KCCR 1816. Both these ruling are very much applicable for the present case on hand. In the above said ruling the Hon'ble High Court and Supreme Court held that:
21 SCCH-22 C.C.3690/2018 " (Sec. 118 and 138) of Negotiable Instrument Act:
Presumption as to: when once the issuance of cheque and signature on it is admitted, the Court has to presume that, the cheque has been issued for discharge of debt or liability. The burden on the proof shifted on the accused to prove that, there was no liability or debt or that the cheque was issued to different person. Therefore the cheque is not issued infavour of the complainant".
In this case the complainant has proved the necessary ingredients under Section 138 of Negotiable Instrument Act.
25. I have also gone through the ruling reported in AIR 2000 Kar. 169, which reads as follows:
"AIR. 2000 Kar. 169, (H. Marigowda Vs. Tippamma and Others). As per Section 20 of Negotiable Instrument Act, even if the blank cheque is given, the holder has authority to make or complete the instrument as a negotiable one. It means the accused has impliedly given permission to the holder of the cheque to fill up blanks in the cheque, once all these things are established, Section 139 of Negotiable Instrument Act states that, "the cheque has been issued for the discharge of debt or liability unless the contrary is proved".
26. Therefore after going through the above said ruling of the Hon'ble High Court of Karnataka, it is very clear that, as per Section 20 of Negotiable Instrument Act, even if the blank cheque is given, the holder of the cheque has authority to complete the 22 SCCH-22 C.C.3690/2018 instrument as negotiable one as the accused has impliedly given permission to holder of the cheque to fill up the blanks in the cheque. Therefore, since to rebut the presumption infavour of the complainant. Therefore, I am of the opinion that, the cheque in question, which is Ex.P.2 has been issued by the accused in favour of the complainant company for discharge of a legally enforceable debt.
27. Now the question arise before the Court is whether this Court is having power to impose fine of Rs.5,000/-. The punishment provide for the offences under Section 138 of Negotiable Instrument Act is the offences punishable with imprisonment, which may extend for two years or with fine, which may extent to twice the amount of the cheque or both. Regarding this point, I have relied upon the following rulings:
1. Criminal Law Journal 1999 page 4606 S.C.
2. AIR 1999 S.C. 3762.
3. 2000 (2 ) Karnataka Law Journal page
621.
4. AIR 2001 SC page 537.
23 SCCH-22 C.C.3690/2018 In the above rulings, the Hon'ble Supreme Court held that, "in view of provision of Section 29 of Cr.P.C., the Magistrate cannot impose a fine not exceed Rs.5,000/- for an offences punishable under Section 138 of Negotiable Instrument Act, but however the Magistrage can take report under Section 357 (3) of Cr.P.C., where no limit is prescribed on the amount of compensation which could be awarded".
As per the principles laid down in the above said ruling, it is very clear that, the Court is having power to impose amount as compensation amount. As per the amended act of Negotiable Instrument Act, now the Court can impose any amount of fine. Which may extent to twice the amount of cheque or both. Further as per Section 80 of Negotiable Instrument Act, the Court may also grant interest.
28. Therefore, in this case looking into any angle, I am of the opinion that, the oral and documentary evidence placed by the complainant clearly goes to show that, the accused has committed an offence punishable under Section 138 of Negotiable Instrument Act. Hence, it is fit case for conviction. Further it is to be noted that, the cheque in dispute produced at Ex.P.2 is an amount of Rs.10,08,951/- and this Court is having ample power to impose fine, which may extent to twice the amount of cheque and also 24 SCCH-22 C.C.3690/2018 having a power to imprisonment to accused apart from the fine, which may extent to 2 years or with fine. Further as per amended Negotiable Instrument Act and also the recent rulings of the Hon'ble Apex Court, this Court is having ample power to impose fine amount to the accused on double the cheque amount under Section 357 of Cr.P.C. and this Court is having power to give compensation to the complainant. Further looking into any angle, the complainant has sufficiently proved ingredients of the offences punishable under Section 138 of Negotiable Instrument Act. On the other hand the oral and documentary evidence placed by the complainant is material, consistent, believable and acceptable. Hence, I will accept the arguments of the learned counsel for the complainant. So for as principles laid down in the rulings are very much applicable to the facts of the case on hand.
29. Looking into the any angle, in this case the complainant company has sufficiently proved necessary ingredients of Section 138 of Negotiable Instrument Act. The oral and documentary evidence placed by the complainant company as above are believable, acceptable, cogent and considerable. Therefore, under such circumstances, this Court has no other option except accepting the case of the complainant. Therefore, the complainant 25 SCCH-22 C.C.3690/2018 has sufficiently prove the ingredients under Section 138 of Negotiable Instrument Act and as per the amended Negotiable Instrument Act and also the recent rulings of the Hon'ble Apex Court, this Court is having power to impose interest on cheque amount. In this case the accused is one of the subscriber of the complainant company chit and after received the chit amount he is due to pay installment amount and towards due amount he has issued a cheque in favour of the complainant company. Therefore, the accused is liable to pay Rs.4,28,514/- with interest at the rate of 9% per annum from the date of issuance of cheque to the complainant, i.e., Rs.4,28,514/- + 28,917/- = Rs.4,57,431/-. The complainant company is entitled to the amount of Rs.4,57,431/- (Rupees Four Lakhs Fifty Seven Thousand Four Hundred and Thirty One only). Accordingly I answer Point No.1 and 2 in the Affirmative.
POINT NO.3:
30. In the light of above discussed facts and circumstance of the case, I proceed to pass the following ORDER The accused is found guilty for the offences punishable under Section 138 of Negotiable
26 SCCH-22 C.C.3690/2018 Instrument Act and hence, he is convicted under Section 255(2) of Criminal Procedure Code.
The accused is hereby sentenced to undergo simple imprisonment for a period of one year and also liable to pay fine of Rs.4,57,431/- (Rupees Four Lakhs Fifty Seven Thousand Four Hundred and Thirty One only) for the above said offence, in default of payment of fine amount, the accused shall further undergo simple imprisonment for a period of another two months.
Further, it is also held that, out of the fine deposited by the accused, the accused is also liable to pay the compensation amount of Rs.4,47,431/- (Rupees Four Lakhs Forty Seven Thousand Four Hundred and Thirty One only) to the complainant within three months from the date of this order and the remaining fine amount of Rs.10,000/- (Rupees Ten Thousand only) is to be confiscated to the state.
The bail bond of the accused and surety stands cancelled.
Furnish the free copy of this judgment to the accused forthwith.
(Dictated to the stenographer directly on computer, typed by her, corrected by me and then pronounced in the open court on this the 1st day of April, 2019).
(B. Venkatappa) XX A.S.C.J. & XVIII A.C.M.M., & MEMBER, M.A.C.T., Bengaluru.
27 SCCH-22 C.C.3690/2018 ANNEXURE List of Witness examined on behalf of the Complainant :
P.W.1 - Sri. Mabaleshwar Bhat.
List of Witnesses examined on behalf of the Accused :
- Nil -
List of Documents marked on behalf of the Complainant :
Ex.P.1 - Board Resolution of the Complainant Company.
Ex.P.2 - Original Cheque. Ex.P.2(a) - Signature of the accused on Ex.P.2. Ex.P.3 - Bank Endorsement. Ex.P.4 - Copy of Legal Notice. Ex.P.5 - Postal Receipt. Ex.P.6 - Postal Acknowledgment. Ex.P.7 - Chit Agreement. Ex.P.8 - Payment Voucher. Ex.P.9 - Statement of Account.
List of Documents marked on behalf of the Accused :
Ex.D.1 - Copy of SMS massages sent by the complainant company to the mobile of the accused.
Ex.D.2 - Pass Book issued on 06.01.2013 to the accused by the complainant company. Ex.D.3 - 7 Amount Paid Receipts by the accused to the complainant company Ex.D.4 - Pass Book issued on 09.05.2013 to Smt. Sowmya, the wife of accused by the complainant company.
Ex.D.5 - 5 Amount Paid Receipts by the wife of accused to the complainant company.
Ex.D.6 - Pass Book issued on 13.03.2017 to the accused by the complainant company. Ex.D.7 - 3 Amount Paid Receipts by the accused to the complainant company.
Ex.D.8 - Pass Book issued on 13.08.2017 to the accused by the complainant company.
(B. Venkatappa) XX A.S.C.J. & XVIII A.C.M.M., & MEMBER, M.A.C.T., Bengaluru.