Bangalore District Court
M/S.Weizmann Forex Ltd vs M/S.Alpine Travels & Tours on 1 February, 2019
IN THE COURT OF LVII ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL UNIT, BENGALURU
-: PRESENT :-
PADMA PRASAD, BA (Law), LLB.
LVII ADDL. CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED THIS THE 1ST DAY OF FEBRUARY, 2019.
COMMON JUDGMENT IN
C.C.Nos.51624/2013, 52267/2014, 53952/2015 & 53953/2015
COMPLAINANT : M/s.Weizmann Forex Ltd.
(COMMON) A Company Registered under the
Provisions of the Companies Act, 1956
Having its Administrative Office
At No.50, Ground Floor,
'Millennium Towers'
Queen's Road
BANGALORE - 560 051
Represented by Mr.T.S.Ramkumar
s/o.Late C T Sampangi Manager
.Vs.
ACCUSED : 1. M/s.Alpine Travels & Tours
(COMMON) Pvt. Ltd., Represented by its
Managing Director Shri.Ramraj
Karthick, No.101-B, MB Centre,
No.134, Infantry Road,
Bangalore 560001.
2. Shri.Ramraj Karthick,
s/o Rangaraju
Aged about 36 years
2 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
3. Smt.Reena Karthick, w/o
Shri.Ramraj Karthick
Aged about 32 years
No.2 & 3 are the Managing
Director & Director of M/s.Alpine
Travels & Tours Pvt. Ltd., &
Both are residing at
No.1051, "Shobha Iris"
Apartment Sarjapur Road,
Bangalore 560 103.
****
COMMON - JUDGMENT
This complainant has filed these complaints against the accused
for the offence punishable under Section 138 of Negotiable
Instruments Act.
2. The complainant and accused are same in these cases, the
transaction claimed by the complainant in all the cases are identical
to each other. The defense of the accused is also identical in all the
cases. The documents relied by the complainant and the accused
are also identical to each other. Even the evidence and cross-
examination in all the cases are identical.
3. The case made out by the complainant in the complaint is that
the complainant is an approved money charger doing foreign
exchange business under the Rules and Regulations of Foreign
Exchange Regulation Act and the Reserve Bank of India. The
3 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
accused No.1 is a private limited company engaged in arranging
Tours for travelers visiting abroad and the accused No.2 is the
Managing Direct and accused No.3 is the Director of the company.
4. The complainant claims that it has filed a complaint against the
accused for the offence punishable under Sec.138 of N.I.Act in
C.C.No.53179/2009 before the 14th ACMM Court, for recovery of
outstanding liability of Rs.65,55,795/-. In the said case as the
accused expressed inability to pay the said sum at once the parties
have a compromise as to the payment of outstanding liability and
filed a application under Sec.147 of N.I.Act R/w.Sec.320(1) of Cr.P.C.
in the said case dtd:28.10.2011. It is further claimed by the
complainant that in C.C.No.53179/2009, the accused agreed to pay
Rs.75,00,000/- in full and final settlement. The accused No.2 has
already paid sum of Rs.11,00,000/- to the complainant and the
balance was Rs.64,00,000/-. The accused agreed to pay the said
amount in 6 installments. Accordingly issued 6 post dated cheques
drawn on Bank of Baroda Indiranagara Branch, Bengaluru. The
particulars of the said cheques are as follows;
Sl.No. Cheque No. Date of cheque Amount of cheque
1. 000011 24.04.2012 Rs.5,86,375/-
2. 000012 24.10.2012 Rs.9,11,015/-
3. 000013 24.04.2013 Rs.15,27,830/-
4. 000014 24.10.2013 Rs.15,32,980/-
5. 000015 24.04.2014 Rs.8,98,780/-
6. 000016 24.10.2014 Rs.9,43,020/-
4 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
5. The complainant claims that the 1st cheque for Rs.5,86,375/-
has been encashed when presented. Regarding the 2nd cheque, the
accused has paid Rs.8,50,000/- in cash and the balance was
Rs.61,015/- and the accused has issued a separate cheque bearing
No.462394 dtd:05.04.2013 drawn on Axis Bank Ltd., T.Nagara,
Chennai for Rs.61,015/-. The complainant has presented the said
cheque for encashment along with 3rd cheque bearing No.000013 for
Rs.15,27,830/- for encashment and the said cheque issued for
Rs.61,015/- has been retuned with bank endorsement
dtd:12.06.2013 stating "Funds Insufficient" and the cheque issued
for Rs.15,27,830/- has been returned with bank endorsement
dtd:12.06.2013 stating "Opening balance in sufficient".
Accordingly, the complainant claims that in this case the accused is
liable to pay Rs.15,88,845/- in respect of the aforesaid 2 cheques.
The complainant thereafter caused a demand notice to the accused
on 24.06.2013 and the said notice have been returned with postal
endorsement stating "addressee left" respectively on 26.06.2013 and
27.06.2013. The accused failed to comply with the said notice.
Hence, the complaint in C.C.No.51624/2013.
6. The cheque involved in C.C.No.52267/2014 bearing No. 000014
dtd:24.10.2013 for Rs.15,32,980/- that has been bounced as per
Bank Return Memo dtd:09.11.2013 stating "Funds Insufficient".
Thereafter the complainant caused a legal notice to the accused on
02.12.2013. The notice sent to accused No.1 returned with
5 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
endorsement stating "addressee left" and the notice sent to accused
No.2 and 3 have been duly served. The accused failed to comply
with the notice.
7. The cheque involved in C.C.No.53953/2015 bearing No. 000015
dtd:24.04.2014 for Rs.8,98,780/- that has been bounced as per Bank
Return Memo dtd:12.07.2014 stating "Account blocked situation
covered in 2125". Thereafter the complainant caused a legal
notice to the accused on 06.08.2014. The notice sent to accused
No.1 returned with endorsement stating "addressee left" and the
notice sent to accused No.2 and 3 have been duly served. The
accused failed to comply with the notice.
8. The cheque involved in C.C.No.53952/2015 bearing No. 000016
dtd:24.10.2014 for Rs.9,43,020/- that has been bounced as per Bank
Return Memo dtd:24.01.2015 stating "Account blocked situation
covered in 2125". Thereafter the complainant caused a legal
notice to the accused on 12.02.2015. The notice sent to accused
No.1 returned with endorsement stating "addressee left" and the
notice sent to accused No.2 and 3 have been duly served. The
accused failed to comply with the notice. As such it is fit and proper
to pass common judgment in all these cases.
9. After filing the complaint, sworn statement of the complainant
has been recorded in all the cases and on perusing the materials on
record i.e., cheque, bank endorsement, legal notice and documents
6 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
for having been caused the notice to the accused in respective cases,
the court has been taken the cognizance of offence and issued
summons to the accused in both cases.
10. In response to the summons, the accused appeared through
his counsel and he is on court bail in all the cases. Plea has been
recorded; accused pleaded not guilty and claimed to be tried.
11. To prove the case, the complainant got examined its manager
as P.W.1 in all the cases and got marked documents at Ex.P.1 to
P.18 in all the cases.
12. On closure of complainant side evidence, the accused
statement has been recorded under Sec.313(1)(b) of Cr.P.C., by
placing the incriminating evidence appeared against the accused that
are denied by the accused.
13. The accused No.2 and 3 in support of their case examined
themselves as D.W.1 & 2 and also got marked documents at Ex.D.1
to 8. The Ex.D.1 is the Certified copy of the deposition in
C.C.No.53952/2015, Ex.D.2 is the Memorandum dtd:28.10.2011,
Ex.D.3 is the Plaint in O.S.No.333/2015, Ex.D.4 is the Certified copy
of the complaint dtd:05.12.2008, Ex.D.5 is the Certified copy of the
F.I.R., Ex.D.6 is the Company master Data, Ex.D.7 is the Application
filed under Sec.65(B) of the Indian Evidence Act, 1972, Ex.D.8 is the
Memorandum of Agreement.
7 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
14. The accused No.2 and 3 in support of their defense examined
as D.W.1 and 2 and also got marked documents at Ex.D.1 to 8. The
case made out by the accused No.1 that he was running a traveling
company in the name of accused No.1. In the said business the
accused No.1 is selling air tickets and also booking the hotels. The
accused No.2 claims that in the year 2008 the complainant sent a
person and the said person told him that he is owing Rs.20,00,000/-
to the complainant. When the complainant denied the said fact the
complainant told the accused that it has paid the Forex to the client
of the accused and the accused is liable to pay the said money to the
complainant. The accused further claims that thereafter he came to
know that some person in his office taken a Forex and paid to the
clients. The said amount is very less not amounting to
Rs.20,00,000/-. The accused No.2 further claimed that he has told
the complainant that he is not liable to pay the money and the clients
who have received the money has to repay the money directly to the
complainant. Subsequently, there were severe pressure on the
accused to pay the money back and also he has been taken to the
police station. In the police station the police told him to pay
Rs.65,00,000/- and all the documents were shows to him that he is
liable to pay Rs.65,00,000/-. The accused further claimed that
thereafter the complainant got freeze his accounts and due to the
police investigation he could not find any money in his bank account
and also in the bank account of his father and wife. The accused
further claimed that his father has given property to the complainant
8 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
authorizing the complainant to recover the money from the
properties and not put any pressure on accused No.2. The accused
also claims that his passport also given to the complainant. The
police filed a F.I.R. and produced him before the court. Thereafter
there was a pressure on the accused No.2 to settle the matter, as the
police have involved he has settled the dispute for Rs.25,00,000/-
and also claims that he is not liable to pay any money to the
complainant. The accused No.3 in her defense claimed that she is
not at all related to any transaction between accused No.1 and 2 with
the complainant. The accused No.3 also claimed that she is not at all
the director of the accused No.1 Company. The accused No.2
claimed that as her father has given some property to her the
complainant has involved her in the case. The accused No.2 further
claimed that her father in law pledged the property to the
complainant and even thereafter pressure has been continued. The
accused No.2 further claimed that subsequently, the complainant and
accused No.1 and 2 reached some settlement and she has been
forced to sign the settlement document and also claimed that she
has not issued any cheque at the time of settlement and prayed for
dismissal of complaint.
On the basis of aforesaid contentions the accused prayed for
dismissal of the complaint.
9 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
15. On the basis of above, the point for consideration is that;
"Whether the complainant has proved that the
accused has committed the offence punishable
under Sec.138 of Negotiable Instruments Act?"
16. Heard and perused the materials on record. On that basis, my
finding on the above point is in the "Affirmative" for the following;
REASONS
17. The case made out by the complainant in the complaint is that
the complainant is an approved money charger doing foreign
exchange business under the Rules and Regulations of Foreign
Exchange Regulation Act and the Reserve Bank of India. The
accused No.1 is a private limited company engaged in arranging
Tours for travelers visiting abroad and the accused No.2 is the
Managing Direct and accused No.3 is the Director of the company.
18. The complainant claims that it has filed a complaint against the
accused for the offence punishable under Sec.138 of N.I.Act in
C.C.No.53179/2009 before the 14th ACMM Court, for recovery of
outstanding liability of Rs.65,55,795/-. In the said case as the
accused expressed inability to pay the said sum at once the parties
have a compromise as to the payment of outstanding liability and
filed a application under Sec.147 of N.I.Act R/w.Sec.320(1) of Cr.P.C.
in the said case dtd:28.10.2011. It is further claimed by the
10 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
complainant that in C.C.No.53179/2009, the accused agreed to pay
Rs.75,00,000/- in full and final settlement. The accused No.2 has
already paid sum of Rs.11,00,000/- to the complainant and the
balance was Rs.64,00,000/-. The accused agreed to pay the said
amount in 6 installments. Accordingly issued 6 post dated cheques
drawn on Bank of Baroda Indiranagara Branch, Bengaluru. The
particulars of the said cheques are as follows;
Sl.No. Cheque No. Date of Amount of cheque
cheque
7. 000011 24.04.2012 Rs.5,86,375/-
8. 000012 24.10.2012 Rs.9,11,015/-
9. 000013 24.04.2013 Rs.15,27,830/-
10. 000014 24.10.2013 Rs.15,32,980/-
11. 000015 24.04.2014 Rs.8,98,780/-
12. 000016 24.10.2014 Rs.9,43,020/-
19. The complainant claims that the 1st cheque for Rs.5,86,375/-
has been encashed when presented. Regarding the 2nd cheque, the
accused has paid Rs.8,50,000/- in cash and the balance was
Rs.61,015/- and the accused has issued a separate cheque bearing
No.462394 dtd:05.04.2013 drawn on Axis Bank Ltd., T.Nagara,
Chennai for Rs.61,015/-. The complainant has presented the said
cheque for encashment along with 3rd cheque bearing No.000013 for
Rs.15,27,830/- for encashment and the said cheque issued for
Rs.61,015/- has been retuned with bank endorsement
dtd:12.06.2013 stating "Funds Insufficient" and the cheque issued
11 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
for Rs.15,27,830/- has been returned with bank endorsement
dtd:12.06.2013 stating "Opening balance in sufficient".
Accordingly, the complainant claims that in this case the accused is
liable to pay Rs.15,88,845/- in respect of the aforesaid 2 cheques.
The complainant thereafter caused a demand notice to the accused
on 24.06.2013 and the said notice have been returned with postal
endorsement stating "addressee left" respectively on 26.06.2013 and
27.06.2013. The accused failed to comply with the said notice.
Hence, the complaint in C.C.No.51624/2013.
20. The cheque involved in C.C.No.52267/2014 bearing No. 000014
dtd:24.10.2013 for Rs.15,32,980/- that has been bounced as per
Bank Return Memo dtd:09.11.2013 stating "Funds Insufficient".
Thereafter the complainant caused a legal notice to the accused on
02.12.2013. The notice sent to accused No.1 returned with
endorsement stating "addressee left" and the notice sent to accused
No.2 and 3 have been duly served. The accused failed to comply
with the notice.
21. The cheque involved in C.C.No.53953/2015 bearing No. 000015
dtd:24.04.2014 for Rs.8,98,780/- that has been bounced as per Bank
Return Memo dtd:12.07.2014 stating "Account blocked situation
covered in 2125". Thereafter the complainant caused a legal
notice to the accused on 06.08.2014. The notice sent to accused
No.1 returned with endorsement stating "addressee left" and the
12 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
notice sent to accused No.2 and 3 have been duly served. The
accused failed to comply with the notice.
22. The cheque involved in C.C.No.53952/2015 bearing No. 000016
dtd:24.10.2014 for Rs.9,43,020/- that has been bounced as per Bank
Return Memo dtd:24.01.2015 stating "Account blocked situation
covered in 2125". Thereafter the complainant caused a legal
notice to the accused on 12.02.2015. The notice sent to accused
No.1 returned with endorsement stating "addressee left" and the
notice sent to accused No.2 and 3 have been duly served. The
accused failed to comply with the notice. As such it is fit and proper
to pass common judgment in all these cases.
23. The accused No.2 and 3 in support of their defense examined
as D.W.1 and 2 and also got marked documents at Ex.D.1 to 8. The
case made out by the accused No.1 that he was running a traveling
company in the name of accused No.1. In the said business the
accused No.1 is selling air tickets and also booking the hotels. The
accused No.2 claims that in the year 2008 the complainant sent a
person and the said person told him that he is owing Rs.20,00,000/-
to the complainant. When the complainant denied the said fact the
complainant told the accused that it has paid the Forex to the client
of the accused and the accused is liable to pay the said money to the
complainant. The accused further claims that thereafter he came to
know that some person in his office taken a Forex and paid to the
13 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
clients. The said amount is very less not amounting to
Rs.20,00,000/-. The accused No.2 further claimed that he has told
the complainant that he is not liable to pay the money and the clients
who have received the money has to repay the money directly to the
complainant. Subsequently, there were severe pressure on the
accused to pay the money back and also he has been taken to the
police station. In the police station the police told him to pay
Rs.65,00,000/- and all the documents were shows to him that he is
liable to pay Rs.65,00,000/-. The accused further claimed that
thereafter the complainant got freeze his accounts and due to the
police investigation he could not find any money in his bank account
and also in the bank account of his father and wife. The accused
further claimed that his father has given property to the complainant
authorizing the complainant to recover the money from the
properties and not put any pressure on accused No.2. The accused
also claims that his passport also given to the complainant. The
police filed a F.I.R. and produced him before the court. Thereafter
there was a pressure on the accused No.2 to settle the matter, as the
police have involved he has settled the dispute for Rs.25,00,000/-
and also claims that he is not liable to pay any money to the
complainant. The accused No.3 in her defense claimed that she is
not at all related to any transaction between accused No.1 and 2 with
the complainant. The accused No.3 also claimed that she is not at all
the director of the accused No.1 Company. The accused No.2
claimed that as her father has given some property to her the
14 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
complainant has involved her in the case. The accused No.2 further
claimed that her father in law pledged the property to the
complainant and even thereafter pressure has been continued. The
accused No.2 further claimed that subsequently, the complainant and
accused No.1 and 2 reached some settlement and she has been
forced to sign the settlement document and also claimed that she
has not issued any cheque at the time of settlement and prayed for
dismissal of complaint.
On the basis of aforesaid contentions the accused prayed for
dismissal of the complaint.
24. The complainant got examined one T.S.Ramkumar who is the
Manger of the complainant as P.W.1 and the said witness filed
evidence affidavit wherein he stated inconsonance with complaint
case. The complainant also got marked the documents at Ex.P.1 to
18. Ex.P.1 is the Authorization letter, Ex.P.2 is the Certified copy of
the order sheet in CC No.53179/2009, Ex.P.3 is the Certified copy of
the compromised petition, Ex.P.4 and 5 are 2 Original cheques,
Ex.P.6 to 8 are 3 Bank Return Memos, Ex.P.9 is the bank receipt,
Ex.P.10 is the O/c of the legal notice, Ex.P.11 to 13 are the Unserved
postal cover, Ex.P.11(a) to Ex.P.13(a) are the Unserved postal cover
opened in the Open court and notice therein marked, Ex.P.14 is the
Certified copy of the resolution, Ex.P.15 is the Application under
Sec.65-(B) (I) of Indian Evidence Act., Ex.P.16 is the Copy of email,
Ex.P.17 is the Certified copy of the Vakalath, Ex.P.18 is the Copy of
15 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
the resolution. The specific claim of the complainant in this case is
that the dispute between the complainant and the accused has been
settled in C.C.No.53179/2009 and the cheque involved in this case
and other cases have been issued by the complainant as per the
terms of the compromise and those cheques have been issued on the
same day by mentioning the dates found there in the cheques. The
issuance of these cheques in favour of the complainant at the time of
settlement in C.C.No.53179/2009 dtd:28.10.2011 is not in dispute.
The cheque in this case has been dishonoured for want of funds in
the bank account of the accused No.2 and the cheques in other cases
have been dishonoured for the reasons stated there in the bank
memo but there is no material on record to show that there were
sufficient funds in the bank account of the accused so that the
cheque would have been honored. The legal notice has been issued
in time in all the cases and those notices have been duly served on
the accused No.2 and 3. The notices sent to accused No.1 has been
returned with endorsement stating "left". Hence, there is a valid
service of notice after bouncing of the cheque. The accused failed to
give any reply to the said notice as well as failed to comply with the
demand made in the notice. The legal notice has been caused in
time and even the complaint is in time hence, certainly the initial
presumption under Sec.139 of N.I.Act has to be drawn in favour of
the complainant that the accused has issued the cheque in favour of
the complainant towards the discharge of legally enforceable debt.
16 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
25. When the complainant made out a prima-facie case to draw
presumption under Sec.139 of N.I.Act, the heavy burden is on the
accused to prove the contrary to the complaint case as well as to
give rebuttal evidence. If the accused proves the contrary to the
complaint case as well as if the accused produces the rebuttal
evidence then only the court can disbelieve the complaint case.
26. The accused has taken a defense that he had no Forex
exchange with the complainant but he came to know that the Forex
transaction is between his client and the complainant. The accused
further claims that the complainant forcibly or fraudulently obtained
his signature in the earlier compromise and he is not liable to pay any
amount to the complainant. The accused taken one more defense
that there is no valid contract between the complainant and the
accused. The accused disputed the service of notice and also
disputed the authorization given to the P.W.1 to prosecute this case.
All these facts to be proved by the accused himself.
27. Before proceeding further in this case, it is important to note
that the complainant has filed a case in C.C.No.53179/2009.
Admittedly, the said case has been ended in compromise as on
28.10.2011. In support of the said contention the complainant has
produced the order sheet at Ex.P.3 and the certified copy of the
compromise petition filed by the accused and complainant under
Sec.147 of N.I.Act R/w.Sec.320 (1) of Cr.P.C. at Ex.P.3. The para
No.2 to 8 of the Ex.P.3 reads as follows;
17 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
2) The Complainant has filed the above case against the
Accused for the offense said to have committed under
Sec.138 of the Negotiable Instrument Act, claiming
thereunder the amounts of the following cheques together:
Sl. Cheque Date of the Drawee Bank Collecting Amount of
No. No. cheque Bank the Cheque
(in Rs.)
1. 049603 16.10.2008 ING Vysya IndusInd
Bank, Infantry Bank Ltd.,
Road Branch, M.G.Road,
No.9, Bangalore -
Jansangh 560 001
Building, 5,86,375/-
Bangalore -560
001
2. 049606 17.10.2008 - do - - do - 9,11,015/-
3. 049611 20.10.2008 - do - - do - 16,83,625/-
4. 049621 24.10.2008 - do - - do - 15,32,980/-
5. 049608 18.10.2008 - do - Axis Bank, 8,98,780/-
Bangalore
Main Branch
6. 049626 25.10.2008 - do - - do - 9,43,020/-
Total amount of the 65,55,795/-
cheques
The said complaint was filed claiming a sum of
Rs.65,55,795/- by the Complainant as the said cheques were
dishonoured for insufficient funds.
3) The Accused and the Complainant have mutually discussed
and have arrived at a compromise. The terms of the
compromise are as under:
4) The Accused admits that they had business transactions
with the Complainant and a sum of Rs.65,55,795/- was due
and towards discharge of the said liability, the above said
18 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
cheques amounting to Rs.65,55,795/- were issued. On the
said total amount of the cheques, the interest has been
accruing and in that view of the matter, the Accused has
agreed to pay in all, a sum of Rs.75,00,000/- (Rupees
seventy five lakhs only) to the Complainant in full and final
settlement. However, the Accused has agreed to pay the
said amount of 75,00,000/- (Rupees seventy five lakhs
only) in the following manner:
5) The Accused has paid a sum of Rs.11.00 lakhs (Rupees
Eleven lakhs only) by way of Bankers Cheque drawn on
Bank of Baroda, Indiranagar Branch, Bangalore - 560 038
in favour of the Complainant in the following manner:
Sl. Bankers Date Drawee Bank Amount
No. Cheque and Branch
No.
1. 191982 26.9.2011 Bank of Baroda, 2,50,000/-
Indiranagar,
Bangalore-
560 038
2. 191983 26.9.2011 - do - 5,50,000/-
3. 192182 14.10.2011 - do - 3,00,000/-
The receipt of which the Complainant hereby
acknowledges and the liability of the Accused is reduced
accordingly.
6) The Accused has agreed to pay the balance of
Rs.64,00,000/- (Rupees sixty four lakhs only) in six
instalments in three years by way of post dated cheques
drawn on Bank of Baroda, Indiranagar Branch, Bangalore -
19 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
560 038, in favour of the Complainant as detailed herein
below:
Sl. Cheque No. Date of the Amount of the
No. Cheque cheque
1. 000011 21.04.2012 Rs. 5,86,375/-
2. 000012 21.10.2012 Rs. 9,11,015/-
3. 000013 21.04.2013 Rs.15,27,830/-
4. 000014 21.10.2013 Rs.15,32,980/-
5. 000015 21.04.2014 Rs. 8,98,780/-
6. 000016 21.10.2014 Rs. 9,43,020/-
Total Rs.64,00,000/-
7) The Accused submits that the above said instalments will be
paid without committing any default. In the event the
Accused commit a single default, in paying the instalments,
the Complainant will be entitled to recover the entire
outstanding amount as on that day.
8) The Complainant has agreed to the above terms."
28. The Ex.P.3 discloses that this accused has issued 6 cheques in
favour of the complainant to the total sum of Rs.65,55,795/- more
fully described in para No.2 of the compromise petition at Ex.P.3. As
the said cheques were bounced, the complainant has filed the case in
C.C.No.53179/2009. The said case has been ended in compromise
as per the terms of said compromise memo at Ex.P.3.
29. In the said compromise petition at para No.4 it is specifically
stated that if the interest has been added to the said agreed amount,
the accused was liable to pay Rs.75,00,000/- and out of
20 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
Rs.75,00,000/-, this accused has paid Rs.11,00,000/- through 3
cheques stated in paragraph 5 of the said joint application. The said
fact is also not in dispute. In the said joint memo the accused and
complainant agreed to settle the dispute for Rs.75,00,000/-wherein
they have deducted the payment of Rs.11,00,000/- by the accused as
such the accused has issued 6 cheques for various amount more fully
described in para No.6 of the joint memo.
30. The said case in C.C.No.53179/2009 has been compromised
between the complainant and the accused after the lapse of 3 years
from the date of filing the complaint. The order sheet at Ex.P.2
discloses that in the said case this accused No.2 and 3 appeared
before the court on 16.11.2009. As per the said order sheet the
accused No.2 and 3 pleaded not guilty on 27.11.2010. Thereafter
the complainant examined one witness as P.W.1 on 05.01.2011 and
thereafter the said case has been posted for cross-examination on
19.02.2011 and thereafter this accused were remained absent and
subsequently on 28.10.2011 the case has been advanced by the
parties and the accused also got cancelled the warrant and on the
same day the parties have reported the settlement. Therefore, it
cannot be said that all of a sudden or by force or fraudulently the
complainant got compromise the dispute. It is relevant to note that
even according to the admitted facts, the dispute between the
complainant and the accused has been commenced in the year 2008
and even the police complaints were filed in the year 2008 and
21 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
subsequently they have been got released on bail. As such it cannot
be said that there is any compulsion or force by the complainant to
compromise the dispute.
31. It is relevant to note that the accused No.2 is a MBA Graduate.
The said fact discloses that the accused No.2 is a Master Degree
holder of Business Administration. As such, it cannot be said that
anybody can compel or force him to enter into any compromise. If at
all the complainant has used the police force to settle the matter, the
parties would have settled the matter in the year 2008 itself and not
in the year 2011 as there is no need to wait for 3 years. It is also
relevant to note that father of the accused No.3 was a public
prosecutor, so they have the legal knowledge about the criminal case
as well as court cases. The background of the accused No.2 and 3
clearly shows that they cannot be compelled or forced to enter into
any compromise. All these facts sufficiently show that the
compromise entered between the complainant and the accused are
voluntary compromise.
32. The accused during the cross-examination of P.W.1 claimed
that the compromise in C.C.No.53179/2009 has been obtained
fraudulently or forcibly. The said contention cannot be accepted.
Admittedly, the said compromise entered between the parties on
28.10.2011 since then till this date the said compromise entered
between the complainant and the accused is not at all challenged
22 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
and the final order passed in C.C.No.53179/2009 reached its finality
and the said order is binding on the parties. Hence, certainly these
accuseds are estopped from claiming that the said compromise has
been obtained by force or fraudulent.
33. The conduct of the accused subsequent to the compromise also
relevant to consider in this case. According to the complaint case,
this accused has issued 6 cheques as per the terms of the
compromise entered between them as per Ex.P.3. As per Ex.P.3, the
accused issued one cheque bearing No.000011 dtd:21.04.2012 for
Rs.5,86,375/-. The said cheque has been encashed when that has
been presented by the complainant for encashment. As per the
condition No.6 in the joint memo or joint application, the accused
agreed to pay the due amount to the complainant in 6 installments.
In the 1st installment, the accused agreed to pay Rs.5,86,375/- vide
a cheque No.000011 dtd:21.04.2012 and the said cheque has been
encashed by the complainant. The issuance of 6 cheques by
mentioning the dates and amount are not in dispute. Therefore, the
accused himself acted upon the terms of the joint memo at Ex.P.3.
Otherwise, there is no necessity for the accused to honor the cheque
or this accused would have easily issued the stop payment
instructions to these cheques.
34. It is also relevant to note that the accused has issued the
cheque bearing No.000012 dtd:21.10.2012 for Rs.9,11,015/- towards
23 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
the second installment. The accused admitted that out of the said
mount he has paid Rs.8,50,000/- to the complainant and the balance
amount was Rs.61,015/- in connection with the 2nd cheque. As such
this accused has issued the separate cheque for Rs.61,015/-. If the
terms of the joint application at Ex.P.3 is not binding on the parties,
certainly there is no necessity for this accused to issue separate
cheque for Rs.61,015/- bearing No.462394 dtd:05.04.2013 drawn on
Axis Bank Ltd., in favour of the complainant. It is relevant to note
that the compromise petition at Ex.P.3 has been filed on 28.10.2011.
Admittedly, the accused has issued 6 post dated cheques for the
specific amount stated therein towards the respective installments.
The cheque issued towards the 1st installment is dtd:21.04.2012 is
also not in dispute and the said cheque have been encashed by the
complainant. The second cheque has been issued towards the
second installment is dtd:21.10.2012 & out of that amount, the
accused has admittedly paid Rs.8,50,000/- and issued the Ex.P.4
cheque towards the balance amount of second installment. The
Ex.P.4 cheque is dtd:05.04.2013. The issuance of said cheque and
date found in the cheque is also not in dispute. It is not the case of
the accused that the said cheque at Ex.P.4 dtd:05.04.2013 also has
been obtained from him forcibly. Admittedly the cheque at Ex.P.4
has not been issued at the time of filing the joint compromise
application but that has been issued subsequent to the due of second
installment i.e., 21.10.2012. The accused also not disputed that the
said cheque has not been issued towards the balance in respect of
24 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
the second installment. Therefore, even on year after the filing of
compromise petition at Ex.P.3 these accused admitted the terms of
compromise petition at Ex.P.3 and acted upon the terms of
compromise petition.
35. It is also relevant to note that the accused during the course of
trial totally disputed any liability towards the complainant and also
claimed that the accused are not liable to pay any money to the
complainant even according to law. In spite of taking such stand
also the accused have honored the first cheque dtd:21.04.2012
issued for Rs.5,86,375/- and paid Rs.8,50,000/- towards the second
cheque dtd:21.10.2012 issued for Rs.9,11,015/-. After paying the
said amount issued another cheque for Rs.61,015/- at Ex.P.4. The
said cheque is dated 05.04.2013 which is almost after the lapse of 1
year 5 months from date of compromise i.e., 28.10.2011. Therefore,
it is clear that the accused by this subsequent conduct admitted that
they are liable to pay the amount claimed in the respective cases to
the complainant and the cheques have been issued towards the
discharge of legally enforceable debt. Even the conduct of the
accused were also estopped them from contending otherwise.
36. It is also relevant to note that this complainant presented the
cheque bearing No.462394 dtd:05.04.2013 and cheque bearing
No.000013 dtd:24.04.2013 issued for Rs.15,27,830/- at a time and
the said cheques were returned without encashment. Immediately
25 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
after the bouncing of the cheque, this complainant has issued the
demand notice to the accused on 24.06.2013. The said notices have
been duly served on the accused as admitted by him. Apart from
that this complainant has filed a cheque bounce case against the
accused regarding these 2 cheques on 23.07.2013. The order sheet
in C.C.No.51624/13 discloses that this accused appeared before this
court on 30.04.2014 and obtained the bail. So, it is clear that at least
on 30.04.2014 these accused have the knowledge of presenting the
cheque for encashment by the complainant. Admittedly, the accused
issued totally 6 cheques and the last cheque is dtd:21.10.2014. If at
all these accused are not liable to pay any amount to the accused, at
least this accused would have been issued stop payment instructions
in respect of the cheque bearing No.000016 dtd:21.10.2014.
Absolutely there is no material on record to show that this accused at
any point of time claimed that he is not liable to pay money claimed
in the cheques involved in this case and also he has asked the
complainant to return any of the cheques or he has issued any stop
payment instructions to the banker in respect of cheques issued in
favour of the complainant. Admittedly, the accused No.2 is a MBA
Graduate, the father of the accused No.3 is the public prosecutor.
Hence, they have ample legal knowledge. Inspite of that the accused
have not called upon the accused to return the cheque or issued any
stop payment instructions to the banker. Even this conduct of the
accused estopped from contending otherwise in this case.
26 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
37. The accused disputed the authorization of P.W.1 to prosecute
this case. The accused in support of his contention relied on 2
decisions in; 2009 (14) SCC 683, C.C.NO.2013 AIR SCW 4161.
It is true that the complainant has produced Ex.P.1 authorization
letter i.e., dtd:22.07.2013 and as per the said document this
T.S.Ramkumar / P.W.1 has been authorized to prosecute this case.
As the accused disputed the said document at Ex.P.1 claming that
the complainant has not produced any resolution in support of
Ex.P.1. The complainant produced the certified copy of the
resolution dtd:02.05.2013 as per Ex.P.18. According to the said
document, Mr.B.S.Shetty - Managing director of the company and
Mr.Anand Murthy, Vice President of the company were authorized to
nominate any employee / staff member of the company to prosecute
the case on behalf of the company. The complainant claims that one
B.S.Shetty has issued the Ex.1-Authorization letter. Of course that
has been disputed but there is no material on record to show that the
complainant company is not at all interested to prosecute this case
against the accused. It is also not the case of the accused that this
P.W.1 / T.S.Ramkumar had some vengeance with this accused and
out of his own interest he is prosecuting this case. Admittedly, all the
cheques involved in this case has been issued in the name of
complainant company and none of the cheques are given in the
name of this P.W.1. Hence, absolutely there is no material on record
to show that the complainant has no intention to prosecute this case
or P.W.2 has any personal interest in the case against the accused.
27 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
Further, it is also relevant to note that in view of the decisions
reported in; ILR 2006 KAR 1929, AIR 2014 SC 1926 authorizes
the complainant to subsequent ratification or authorization by the
complainant to its officials to prosecute the case is permissible. If
the principles laid down in the said case is accepted, certainly the
claim of the accused that there is no proper authorization to
prosecute the case to P.W.2 cannot be accepted. Apart from that
these cases have been prosecuted by the complainant on the basis of
cheques issued by the accused as per the compromise entered
between the parties in C.C.No.53179/2009. As discussed above, the
compromise entered between the parties in C.C.No.53179/09 has not
challenged till this date and the said compromise reached its finality
and also the accused were acted upon the terms of said compromise
petition.
38. The accused disputed the service of notice. The said
contention certainly cannot be accepted by the court in view of the
specific admission given by the accused / D.W.1 during his cross-
examination. Apart from that the complainant has also produced the
document to show that the service of notices to the accused. When
the accused categorically admitted the service of notice, question of
proving the service of notice by the complainant certainly does not
arise.
28 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
39. The counsel for the accused advanced one more argument
before the court that the complainant has failed to prove the actual
liability even according to the complaint case. The said contention
cannot be accepted in view of the compromise entered between the
parties in C.C.No.53179/2009. The counsel for the accused claimed
that there is a contradictory claim regarding the debt by the
complainant. At this juncture it is relevant to note that the
complainant at the outset claimed that there is no due whatsoever
from him to the complainant and he has not at all received any Forex
currency. Subsequently, claimed that the even if his client received
Forex money that will not amount more than Rs.20,00,000/-. It is
true that the father of the complainant has executed a mortgage
deed as per Ex.D.2. The said document has been executed on
28.10.2011. In the said document the father of the accused No.2
namely Sri.Rangaraju deposited the original title deeds of his
property and wherein he agreed to pay Rs.20,00,000/- in case the
accused failed to pay the amount. Apart from that it has also come
in the evidence that on the basis of said Ex.D.2, the complainant filed
a suit in O.S.No.333/2015 on the file of Sr.Civil Judge & CJM, Mysore.
On bare perusal of the said document certainly it gives the
impression that the outstanding is only Rs.20,00,000/- but the said
document has to be looked into along with the joint memo at Ex.P.3
and memorandum of agreement entered between the accused and
the complainant dtd:28.10.2011 at Ex.D.8.
29 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
40. The Ex.P.3 joint application, mortgage deed at Ex.D.2 and
memorandum of agreement at Ex.D.8 entered on 28.10.2011. The
contents found in Ex.D.8 is identical to the contents found in Ex.P.3
joint application. The Ex.D.2 is the additional document executed by
the father of the accused No.2 in favour of the complainant. The
condition No.11 of Ex.D.8 probablise the said fact. The said condition
at No.11 has been admitted by the accused No.2 / D.W.1 The said
condition No.11 at Ex.D.8 reads as;
"To further assured the aforesaid intention of the 1st
party, Mr.Rangaraju ............ who is also the father of the
1st party, has voluntarily agreed to help the 1st party. In
case the 1st party fails to repay Rs.64,00,000/- (Rupees
Sixty Four Lakhs Only), Mr.R.Rangaraju has agreed to
create a mortgage by deposit of title deeds of a housing
site situated at Alanahalli Village".
41. The aforesaid contention sufficiently shows that the father of
the accused No.2 has executed a mortgage deed as a additional
security for the payment of money due to the complainant. Now, the
question is that why the said document is executed for only
Rs.20,00,000/- has to be considered in this case. The condition
No.11 itself gives the explanation for executing the mortgage deed
for only Rs.20,00,000/-. The condition No.11 describes the
particulars of the property and the acquisition of the said property by
the father of the accused and it is specifically observed and agreed
30 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
between the parties that the market value of the said site is
Rs.20,00,000/-. When the property values only Rs.20,00,000/-
certainly mortgage cannot be created for Rs.64,00,000/-. Therefore,
merely on the basis that the father of the accused No.2 has executed
a mortgage deed for Rs.20,00,000/- it cannot be said that the
accused is liable only for Rs.20,00,000/-.
42. It is the specific claim of the accused during the trail that the
complainant has fraudulently obtained the compromise and thereby
obtained the cheque. The accused No.1 during his cross-examination
at page No.3 specifically admitted that he has entered into a
compromise and issued all the cheques claimed in the complaint. If
only the joint application has been filed on that day the said
contention would have been accepted but the accused in addition to
Ex.P.3 joint application, executed a memorandum of agreement at
Ex.D.8 on 28.10.2011. Apart from that the father of the accused has
executed the mortgage deed on the same day. If there is no
voluntary settlement between the parties, certainly there is no
necessity for the father of the accused No.2 to execute the mortgage
deed as well as there is no necessity for this accused to execute the
memorandum of agreement in favour of the complainant. All these
facts certainly falsifies the claim of the accused.
43. The accused No.3 in this case claimed that she is falsely
implicated in this case and she was not at all related to this case.
31 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
Again the said claim of the accused No.3 is hit by the principle of
estoppel. The accused No.3 is also the accused in
C.C.No.53179/2009. As already stated earlier, these accused were
appeared in the said case in the year 2009 and enlarged themselves
on bail and thereafter when the case is posted for cross-examination
they have settled the dispute. The accused No.1 not at all
challenged the cognizance of the offence taken against her in this
case as well as previous case. It is the definite claim of the
complainant that the accused No.3 is one of the Director of the
accused No.1 and also claimed that she is also responsible for the
affairs of accused No.1. That much averment is sufficient to take
cognizance of the offence. In the case on hand the accused No.3
also signed the compromise application at Ex.P.3. The case is based
on Ex.P.3. The cheques have been issued by the accused No.2 on
the terms agreed between the parties at Ex.P.3. The said
compromise is not at all challenged by the accused till this date. In
fact the finding in C.C.NO.53179/2009 has reached its finality. When
the case has been reached its finality the finding on the said case is
binding on the parties. Apart from that once the cognizance has
been taken by the court against the Directors of the company the
burden shifts on such directors to prove that they are not responsible
for the day to day affairs of the company as per Sec.141 of N.I.Act.
44. The accused No.1 is a private limited company. The said fact is
not in dispute. If the accused No.1 is a private limited company then
32 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
there must be a memorandum of association, articles of association
along with certificate of incorporation. As such, the accused were
easily disproved the claim of the complainant that the accused No.3
is the Director of the accused No.1 company. Why this accused have
not produced any document to show the ownership or directorship or
the partnership of accused No.1 company is without any explanation.
When the fact are within the reach or knowledge of the person the
burden of proving the said fact is upon such person as per Sec.106 of
Indian Evidence Act. In this case inspite having the documents, the
accused have not produced documents in respect of the accused
No.1 company particularly memorandum of association and articles of
association with certificate of incorporation. Hence, the adverse
inference has to be drawn on the said contention.
45. The counsel for the accused also claimed that this case is hit by
Sec.23 and 24 of Contract Act, Sec.291 of Companies Act. The
accused also claimed that there was a misappropriation in the firm of
complainant for which the accused are not liable. It is true that the
complainant has filed the police complaint regarding the
misappropriation in the complainant company against its employees
as well as accused No.2 and 3 as per Ex.P.4 and 5. In the said case
this complainant has made specific allegations against accused No.1
and 2 along with other accused. There is also specific allegation
against accused No.2 that he created fictitious travelers bill numbers
etc. As such even in the said case the complainant has made serious
33 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
allegation against accused No.1 to 3. What happens to said case is
not explained by the parties. However, these contentions will not
come to the aid of accused in view of the settlement dispute between
the parties as per exp3. All the defenses taken by the accused in this
case certainly cannot be accepted by this court when the accused has
not challenged the compromise petition and disposal of the
C.C.No.53179/2009 on the basis of the compromise. As such, the
final finding in C.C.No.53179/2009 on the basis of the application
filed under Sec.147 of N.I.Act R/w.Sec.320(1) of Cr.P.C. reached its
finality and that is binding on the parties. Of course these
contentions would have been the valid defense in the earlier case
filed in C.C.No.53179/2009. When the accused not chosen to take
such defense in the said case these accused are certainly estopped
from taking such contentions in this case. In view of the aforesaid
reasons the decisions relied by the accused reported in;
Crl.Pet.No.1387/11 in a case of R.Parimalabai .Vs. Bhaskar
Narasimhaiah, 2010(3) SCC 330, Cri.Appl.No.2653/2008 in a case of
M/s.Canara Workshops Ltd., .Vs. Sree Mantesh and 2011 AIR (SCW)
1948 are certainly not applicable to the facts of this case. Therefore,
for the aforesaid reasons this court is of the humble opinion that the
complainant proved his case beyond reasonable doubt.
46. In this case, the complainant has claimed compensation. As
per Section 357 of Criminal Procedure Code and as per the ruling
reported in; 2001 Cri.L.J. 950 (SC), (Pankajbai Nagibai Patel
34 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
V/s State of Gujarath), the court can award compensation and
there were no limits for the same. As such, the court has to consider
how much compensation could be awarded in this case. As per
Section 80 of Negotiable Instruments Act, the interest at 18% P.A.
can be granted when there is no agreed rate of interest. However,
the punishment for the offence under Sec.138 reads as;
".......such person shall be deemed to have committed an
offence and shall, without prejudice to any other
provisions to this act, be punished with imprisonment for
a term which may extended to two years, or with fine
which may extend to twice the amount of the cheque or
with both".
47. In the case on hand the cheques have been issued by the
accused in favour of the complainant towards the discharge of debt
agreed by them in a compromise petition in a case in
C.C.No.53179/2009 on 28.10.2011. Subsequently these accused
were acted upon the said terms of compromise by honoring the first
cheque issued by the accused in favour of the complainant bearing
No.000011 dtd:24.02.2012 for Rs.5,86,375/- and also paid
Rs.8,50,000/- in respect of second cheque bearing No.000012
dtd:24.10.2012 issued for Rs.9,11,015/- and issued a separate
cheque for balance amount of Rs.61,015/- and the said cheque as
well as remaining four cheques involved in these cases were bounced
and not honored. The accused inspite of admitting the debt in a
35 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
legal proceedings before the court and issued the cheques in a legal
proceedings has not honored the cheques and also disputed the said
compromise without challenging the said order. The said
compromise entered between the parties in C.C.No.53179/2009
dtd:28.10.2011 though reached finality, the accused failed to abide
by the terms of the said compromise. The material on record also
discloses that the dispute has been commenced in the year 2008 and
almost a decade is lapsed. It is relevant to note that in spite of the
compromise entered before the court and the accused admitted the
issuance of six cheques by filing a compromise petition at Ex.P.3
seriously contested the case and thereby deprived the complainant
from the terms of compromise. Hence, it is a fit case to award
double the cheque amount as a compensation.
48. In view of the aforesaid discussion in C.C.No.51624/2013 the
accused is liable to pay the compensation of Rs.31,77,690/-, in
C.C.No.52267/2014 accused is liable to pay the compensation of
Rs.30,65,960/-, in C.C.No.53952/2015 accused is liable to pay the
compensation of Rs.18,86,040/-, in C.C.No.53953/2015 accused is
liable to pay the compensation of Rs.17,97,560/-. In total the
accused is liable to pay the compensation of Rs.99,27,250/-.
49. Further as per the ruling reported in 2000 Cri.L.J 1793(b) SC -
(State of Karnataka V/s Krishnappa) wherein it is held that while
imposing sentence, the courts are expected to properly operate
sentence system, it should be impose such sentence for code offence
36 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
which serve as detention of commission of like offences by others -
Socio economic status, prestige, race, caste or creed of accused or
victim are irrelevant considerations in sentencing policy. Hence, in
this case also, if the accused is punished with simple imprisonment
for one year and pay compensation to the complainant. Anyhow the
object of Sec.138 of N.I.Act is to have accountability in the business
transaction and the intention of the complainant is only to get his
money back. The complainant certainly not interested in sentencing
the accused for any imprisonment. Further, the offence is punishable
with imprisonment or fine. Anyhow the object of Sec.138 of N.I.Act
is to have accountability in the business transaction and the intention
of the complainant is only to get his money back. The complainant
certainly not interested in sentencing the accused for any
imprisonment. Further, the offence is punishable with imprisonment
or fine. Hence, in this case after awarding the compensation
certainly imposing of fine to the accused is sufficient sentence.
50. As per the ruling reported in 2002 Cri.L.L. 1003, SC (Suginthi
Suresh Kumar V/s Jagadishan). Where in it is held at page no.1005,
at para 5 that:
"In the said decision this court reminded all concerned
that it is well to remember the emphasis laid on the need
for making liberal use of Section 357(3) of the Code. This
was observed by reference to a decisions of this Court in
1988 (4) SCC 551 Hari Singh v. Sukhbir Singh. In the
said decision this court held as follows:
37 Common Judgment in C.C.Nos.
51624/2013, 52267/2014,
53952/2015 & 53953/2015
"The quantum of compensation may be determined by
taking into account the nature of crime, the justness of
the claim by the victim and the ability of accused to pay.
If there are more than one accused they may be asked to
pay in equal terms unless their capacity to pay varies
considerably. The payment may also very depending
upon the acts of each accused. Reasonable period for
payment of compensation, if necessary by installments,
may also be given. The court may enforce the order by
imposing sentence in default."
51. In view of the aforesaid precedent of Hon'ble Apex Court, if the
accused is ordered to further imprisonment of a year in default to
pay the compensation will make the ends of justice. Accordingly I
answer the above point in "Affirmative". In the result, following;
ORDER
Acting under Section 255(2) of Cr.P.C., the accused No.1 to 3 are hereby convicted for the offence punishable under Sec.138 of N.I.Act and sentenced the accused No.2 and 3 to pay a fine of Rs.5,000/- each. In default to pay the fine amount the accused No.2 and 3 shall undergo simple imprisonment for 3 months.
Acting under Section 357 of Cr.P.C., the compensation is awarded and the accused No.1 to 3 shall pay compensation of 99,27,250/- to the complainant. In default to pay compensation, the accused No.2 and 3 shall undergo simple imprisonment of a period of 1 year each.
38 Common Judgment in C.C.Nos.
51624/2013, 52267/2014, 53952/2015 & 53953/2015 In default to pay the aforesaid fine and compensation, the assets of the accused No.1 is liable for the payment of fine and compensation.
Office to furnish free copy of this judgment to the accused forthwith.
The copy of this judgment shall be kept in C.C.Nos.52267/2014, 53952/2015 & 53953/2015 and (Dictated to the Stenographer, transcript thereof is corrected and then pronounced by me in the open court on this the 1st day of February, 2019) (PADMA PRASAD), LVII ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Sri.T.S.Ramkumar
2. Documents marked on behalf of complainant:
Ex.P.1 : Authorization letter Ex.P.2 : Certified copy of the order sheet in CC No.53179/2009 Ex.P.3 : Certified copy of the compromised petition Ex.P.4 & : 2 Original cheques Ex.P.5 Ex.P.4(a) : Signatures of the accused & Ex.P.5(a) Ex.P.6 to : 3 Bank return memo Ex.P.8 Ex.P.9 : Bank receipt 39 Common Judgment in C.C.Nos.
51624/2013, 52267/2014, 53952/2015 & 53953/2015 Ex.P.10 : O/c of the legal notice Ex.P.11 : Unserved postal cover to Ex.P.13 Ex.P.11(a) : Unserved postal cover opened in the Open to court and notice therein marked Ex.P.13(a) Ex.P.14 : Certified copy of the resolution Ex.P.15 : Application under Sec.65-(B) (I) of Indian Evidence Act.
Ex.P.16 : Copy of email Ex.P.17 : Certified copy of the Vakalath Ex.P.18 : Copy of the resolution
3. Witnesses examined on behalf of Accused:
D.W.1 : Ramraj Karthik D.W.2 : Reena Rajkarthik
4. Documents marked on behalf of Accused:
Ex.D.1 : Certified copy of the deposition in C.C.No.53952/2015 Ex.D.2 : Memorandum dtd:28.10.2011 Ex.D.3 : Plaint in O.S.No.333/2015 Ex.D.4 : Certified copy of the complaint dtd:05.12.2008 Ex.D.5 : Certified copy of the F.I.R. Ex.D.6 : Company master Data Ex.D.7 : Application filed under Sec.65(B) of the Indian Evidence Act, 1972 Ex.D.8 : Memorandum of Agreement (PADMA PRASAD) LVII ACMM, BENGALURU.