Bangalore District Court
Mr. Fatheraj Lunkar vs Mr. Mukesh D. Rawath on 1 March, 2016
THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY.
Dated this the 1st day of March, 2016
PRESENT: SMT. ISHRATH JAHAN ARA, B.A.L., L.L.B.,
XIX ADDL.C.M.M.BANGALORE.
Case No: C.C No.18837/2012
Complainant: Mr. Fatheraj Lunkar
S/o. Chuganmull Lunkar
Aged Major,
R/at New No.20, Old No.33,
Wali Vilas Road,
Vasavi Convention Hall,
Basavanagudi,
Opp. Metlife,
Bangalore -560 004.
Accused: Mr. Mukesh D. Rawath
Prop. Beena Office Solutions,
No.45, Xavier Layout,
2nd Cross, Austin Town,
Bangalore -560 047.
Offence complained of: U/s.138 of N.I. Act
Plea of accused: Pleaded not guilty
Opinion of the Judge Accused found guilty
Date of order: 1st March 2016
JUDGMENT
The complainant has filed this complaint u/s. 200 of Cr.P.C. against the accused for the offences punishable u/s. 138 of NI Act.
2. The brief fact of the complainant is that;
2 C.C. 18837/2012The Complainant is into a business of Wholesale House keeping items, Hygiene Care Products, Import Export Licences and supplying housekeeping materials to industries and other establishments. The accused is also doing the same business and he was regularly purchasing the required materials from the Complainant and as such both the Complainant and accused are having business transactions. The accused out of acquaintance, approached the Complainant for the financial assistance of Rs.12,00,000/- for his business purpose stating that he had got big business order and required the said amount to purchase the materials and he would return the said amount within 6 months as soon as he received the payment from the said business. He further stated that the Complainant by considering the close relationship and friendship, had advanced a sum of Rs.12,00,000/- to this accused in the month of December and January by way of cash in installments. The accused agreed to repay the same within 6 months. Subsequently, after receipt of the loan amount, the accused has paid some amount by stating that the remaining balance amount would be paid within stipulated time.
3. He further stated that t accused approached the Complainant and stated that since he was unable to repay the remaining amount immediately, had issued 4 post-dated cheques bearing No.000025, dtd. 15.6.2010 for Rs.3,00,000/-, cheque bearing No.000026 dtd. 15.7.2010 for 3 C.C. 18837/2012 Rs.3,00,000/-, cheque bearing No.000027 dtd. 15.8.2010 for Rs.3,00,000/- and a cheque bearing No.000028 dtd. 15.7.2010 for Rs.2,68,254/- all were drawn at Kotak Mahindra Bank, Majestic Branch Bangalore with a request to present the said cheques for encashment and it will be honoured on presentation. The Complainant submits the accused requested him not to present the cheque bearing No. 000027 for encashment since he had still not arranged for the funds.
4. It is further submitted that, the Complainant presented the said cheque bearing No.000027 before his banker The Royal Bank of Scotland, Bangalore, Bangalore for encashment but the said cheque returned dishonoured with an endorsement "Account closed" and the same was informed to this Accused.
5. The Complainant further stated that the accused has failed to make payment of the Cheque amount, therefore the Complainant got issued the Legal Notice on 7.3.2011 through RPAD and also by Certificate of Posting, calling upon the Accused to pay the Cheque amount within 15 days from the date of receipt of Legal Notice. The notice sent through Certificate of Posting was duly served on the accused but, the notice issued under RPAD was returned unserved with a postal shara "Not claimed". Even inspite of receipt of Legal Notice, the Accused has failed to make payment of the Cheque amount. 4 C.C. 18837/2012 After receipt of the notice, the accused has sent an untenable reply on 17.3.2011. The accused knowing fully well that his account was already been closed, had issued a bogus cheque, only with an intention to cheat the Complainant and thereby, accused has committed an offence punishable under section 138 of N.I. Act.
6. After recording of sworn statement of the complainant the Private Complaint lodged by the complainant was registered as a Criminal Case, summons was issued as against the accused. The accused appeared through his Counsel and he was enlarged on bail. Plea of accusation was read over to the accused. The accused pleaded not guilty and claimed to be tried.
7. The Complainant got examined as PW1 and he got produced 9 documents marked as Ex.P.1 to Ex.P.9 and closed his side of evidence.
8. After closure of complainant side evidence, accused statement u/s.313 Cr.P.C. was dispensed as the accused was remained absconded and moreover, it is a summary trial converted to Summons Case. The accused has not led any evidence from his side.
9. I have heard the arguments and perused the documents.
10. The only point arise for my consideration is:
5 C.C. 18837/2012
1. Whether the Complainant has proved the guilt of the accused u/s 138 of NI Act beyond all reasonable doubts?
2. What order?
11. My findings to the above point are as under:
Point No. 1 In the Affirmative
Point No. 2 As per final order
for the following
REASONS:
12. Point No.1: The entire burden is on the complainant to prove his case and also to prove the above point. In order to prove the same, Complainant stepped into the witness-box and got examined as PW1 and filed his affidavit in lieu of the oral evidence by reiterating the complaint averments.
13. He deposed that he is into a business of Wholesale House keeping items, Hygiene Care Products, Import Export Licences and supplying housekeeping materials to industries and other establishments. He deposed that the accused is also doing the same business and he was regularly purchasing the required materials from him and as such both he and accused are having business transactions. He deposed that the accused out of acquaintance, approached him for the financial assistance of Rs.12,00,000/- for his business purpose stating that he had got big business order and required the said amount 6 C.C. 18837/2012 to purchase the materials and he would return the said amount within 6 months as soon as he received the payment from the said business.
14. He further deposed that he by considering the close relationship and friendship, had advanced a sum of Rs.12,00,000/- to this accused in the month of December and January by way of cash in installments. He deposed that subsequently, after receipt of the loan amount, the accused has paid some amount by stating that remaining balance amount would be paid within stipulated time.
15. He deposed that the accused approached him and stated that since he was unable to repay the remaining amount immediately, had issued 4 post-dated cheques bearing No.000025, dtd. 15.6.2010 for Rs.3,00,000/-, cheque bearing No.000026 dtd. 15.7.2010 for Rs.3,00,000/- cheque bearing No.000027 dtd. 15.8.2010 for Rs.3,00,000/- and a cheque bearing No.000028 dtd. 15.7.2010 for Rs.2,68,254/- all were drawn at Kotak Mahindra Bank, Majestic Branch Bangalore with a request to present the said cheques for encashment and it will be honoured on presentation. He deposed that the accused requested him not to present the cheque bearing No. 000027 for encashment since he had still not arranged for the funds.
16. He further deposed that he presented the said cheque bearing No. 000027 before his banker for encashment and the said cheque 7 C.C. 18837/2012 returned dishonoured with an endorsement "Account closed" and the same was informed to this Accused.
17. He deposed that the accused has failed to make payment of the Cheque amount, therefore he got issued the Legal Notice on 7.3.2011 through RPAD and also by Certificate of Posting, calling upon the Accused to pay the Cheque amount within 15 days from the date of receipt of Legal Notice. He deposed that the notice sent through Certificate of Posting was duly served on the accused but, the notice issued under RPAD was returned unserved with a postal shara "Not claimed". He deposed that even inspite of receipt of Legal Notice, the Accused has failed to make payment of the Cheque amount. He deposed that after receipt of the notice, the accused has sent an untenable reply on 17.3.2011. He deposed that the accused knowing fully well that his account was already been closed, had issued a bogus cheque , only with an intention to cheat him and thereby, accused has committed an offence.
18. PW1 in order to prove his case, got produced the Cheque issued by this Accused marked as Ex.P.1. He deposed that the signatures found on Ex.P.1 is that of this Accused, he got identified the signature of this Accused marked as Ex.P.1(a). He got produced two bank endorsements marked as Ex.P2 and Ex.P3. He got produced Copy 8 C.C. 18837/2012 of Legal Notice along with RPAD receipt and UCP receipt marked as Ex.P.4 to Ex.P6 respectively. He got produced two unserved postal covers marked as Ex.P.7 and Ex.P8. He got produced the Reply Notice issued by the accused marked as Ex.P.9.
19. Even though the Accused has appeared before this court through his Counsel, but he did not chosen to contest the proceedings by cross examining PW1 even in spite of sufficient opportunities. The accused has utterly failed to the cross examining the PW1 by denying his testimony. As such by an order dtd.13.06.2014, the cross examination of PW1 was taken as "nil" and proceeded the matter further. Even on subsequent dates the accused neither came forward to cross examine PW1 nor he has challenged the evidence of PW1. As such the entire case of the complainant along with his oral and documentary evidence remained unchallenged in toto.
20. There is nothing on record to disbelieve testimony of PW1 or to discord the evidence of PW1. On the contrary PW1 has categorically deposed that the accused after receipt loan amount and in order to repay the loan amount, had issued the Ex.P1cheque and the same was bounced for the reason "Account Closed". This fact remained unchallenged from the accused. Likewise, the evidence of PW1 that even inspite of receipt of legal notice, issued as per Ex.P.4, the accused 9 C.C. 18837/2012 has failed to make payment of the cheque amount. The accused except sending reply has failed to comply the notice. Even this fact remained unchallenged from the accused. As have discussed supra, there is no defence from the side of accused.
21. The Accused has neither denied the issuance of Ex.P.1 Cheque in favour of this complainant nor he has denied his signature found on Ex.P.1 marked as Ex.P.1(a) . The Accused even did not chosen to deny a fact that his Ex.P.1 Cheque bounced for the reason "Account closed". Admittedly, the Accused did not chosen to deny the documents marked as Ex.P.1 to Ex.P.9, the Accused even did not chosen to deny a fact that immediately after his Cheque was bounced, the Complainant got issued Ex.P.4 notice, calling upon him to pay the Cheque amount and also by intimating dishonor of Cheque and the same was duly served on this accused. On the contrary, PW1 has categorically deposed that immediately after he received the Ex.P3 Bank endorsements, he got issued Ex.P4 notice, calling upon the Accused to pay the Cheque amount and the same was duly served on the accused him.
22. PW1 has deposed that the Accused even after knowledge of Legal Notice, has neither chosen to make payment of the cheque amount. He deposed that the Accused knowing fully well that his 10 C.C. 18837/2012 account was already been closed, only with an intention to cheat him, had issued Ex.P.1 bogus Cheques Even these facts were not denied by the Accused. The notice issued u/s.138 (b) of N.I. Act was duly served on the accused and even inspite of receipt of Legal Notice, the accused has failed to make payment of the cheque amount. In such situation, an adverse inference can be drawn against the accused that he after admitting the contents of Ex.P4 notice, kept quite without complying the notice by paying the cheque amount.
23. Admittedly the entire burden is on this Accused to rebut the case of the Complainant and also to rebut the presumption available to this Complainant u/s. 139 of N.I. Act. The Accused in order to prove his defence and to rebut the presumption available u/s.139 of N.I. Act, has not chosen produce any piece of documents before this Court. There is no evidence from the side of the Accused to believe his defense. The Accused has utterly failed to rebut the presumption available u/Sec.139 of N.I. Act The accused has not put forth any defence before this court. The Accused has utterly failed to rebut the presumption available to this Complainant u/s.118 and also u/s. 139 of N.I. Act which reads as:
a. Of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, 11 C.C. 18837/2012 indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
b. As to date - that every negotiable instrument bearing a date was made or drawn on such date;
c. As to time of acceptance - that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; d. As to time of transfer - that every transfer of a negotiable instrument was made before its maturity; e. As to order of endorsements - that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; f. As to stamps - that a lost promissory note, bill of exchange or cheque was duly stamped; g. That holder is a holder in due course - that the holder of a negotiable instrument is a holder in due course;
24. Likewise, the accused also failed to rebut the presumption available to this Complainant u/s.139 of NI Act which reads:
It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
25. The Accused even inspite of receipt of Legal Notice neither chosen to make payment of the cheque amount. In such situation, an adverse inference has to be drawn against this Accused that he after receipt of Legal Notice and after admitting the contents of Ex.P4 notice, had kept quite without complying the claim of the Complainant by paying the cheque amount.
12 C.C. 18837/2012
26. The Complainant by adducing oral and documentary evidence before this Court has proved guilt of the Accused beyond all reasonable doubts. There is no whatsoever doubt in the mind of the court about the case of the complainant. The oral and documentary evidence adduced before this Court by the Complainant, is fully corroborating with each other and convinced this court about his case. The Complainant by adducing oral and documentary evidence before this court bring home the guilt of the Accused beyond all reasonable doubts to the satisfaction of the court. There is no whatsoever doubts in the mind of the court about the case of the Complainant. Therefore, by taking into consideration the facts and circumstances and evidence available on record, I answer this point No.1 in affirmative.
27. Point No.2: In view of my findings on the above point and the reasons stated therein, I proceed to pass the following:
ORDER Acting u/s.255 (2) of Cr.P.C. the accused is hereby convicted for the offence punishable u/s. 138 of N.I. Act.
The accused is sentenced to pay a fine of Rs.3,55,000/- (Rupees Three lakhs and fifty-five thousand only). In any default to pay fine amount shall under go simple imprisonment for 6 months.13 C.C. 18837/2012
Out of fine amount recovered under section 357 of Cr.P.C. a sum of Rs.3,50,000/- (Rupees Three Lakhs and fifty thousand only) shall be paid to the complainant which includes the cheques' amount and also cost of the proceedings. Remaining fine amount of Rs.5,000/- shall be forfeited to State.
The bail bond and surety bonds of the accused stands cancelled.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified and then pronounced by me in the Open Court on this the 1st day of march, 2016) (ISHRATH JAHAN ARA) XIX ADDL.CMM Bangalore ANNEXURE:
Witnesses examined on behalf of the Complainant:
PW.1 Mr. Fatheraj Lunkar
Witneses examined on behalf of the Accused:
Nil
Documents marked on behalf of the Complainant:
Ex.P.1 Four Cheque
Ex.P.1(a) Signature of the Accused
Ex.P.2 & Ex.P3 Bank endorsements
Ex.P.4 Copy of the Legal Notice
Ex.P.5 RPAD receipt
Ex.P.6 UCP receipt
Ex.P.7 & Ex.P8 Two unserved postal covers
Ex.P9 Reply notice
Documents marked on behalf of the Accused:
Nil
XIX ACMM, B'lore
14 C.C. 18837/2012