Bangalore District Court
M/S Manappuram Chits (K) Pvt Ltd vs Mr. Mukthiar Pasha on 9 March, 2021
IN THE COURT OF THE XX ADDITIONAL SMALL CAUSES
JUDGE AND ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE AND M.A.C.T., BENGALURU (SCCH-22)
PRESENT : Smt.Shakunthala.S.,
B.A.., LL.B.
XX Addl. Small Causes Judge
and A.C.M.M., Bengaluru.
DATED : This the 9th Day of March 2021.
C.C. NO.6327/2018
Complainant - M/s Manappuram Chits (K) Pvt Ltd,
No.02, 2nd Floor,
SRS Complex,
6th Main, KHM Block, RT Nagar,
Bangalore-560 032,
Branch-R.T.Nagar,
Rep. By its Assistant Legal Manager
Sri. Ramesha D.K.
(Rept: By Sri.N.Raja Rajeshwari, Advocate)
- Versus -
Accused - Mr. Mukthiar Pasha,
S/o. Mahaboob Pasha,
No.139, 12th,A Main,
19th Cross, HSR Layout,
7th Sector, Bangalore-560102.
(Rept: By Sri.Basavaraju.M, Advocate)
Dated of Institution : 26.12.2018
The offences complied : Under Sec.138 of the
off or proved Negotiable Instrument Act
SCCH-22 2 CC No.6327/2018
Plea of the accused : Pleaded not guilty
Date of commencement : 26.12.2018
of recording evidence.
Final Order : Accused is Convicted
Date of such order : 09.03.2021
(SHAKUNTHALA.S.)
XX ADDL.S.C.J. & A.C.M.M.,
BENGALURU.
:: JUDGMENT ::
The Complainant filed this complaint against the accused under Section 200 of Cr.PC for the offence punishable under Section 138 of Negotiable Instrument Act.
2. The brief facts of the complainant case are as follows; The accused subscribed for a chit bearing No. RTN002 FA-12 for a chit value of Rs. 40,00,000/- payable at Rs. 1,00,000/- for 40 months. Accused participated in the chit auction as a prize bidder in the said auction drawn and received the prize money of Rs. 28,00,000/- after deducting the bid amount on 14.01.2016. Accused along with other guarantors executed on demand Promissory Note, Surety Form, guarantee bond and other documents.
3. After receiving the prize amount he was not regular in SCCH-22 3 CC No.6327/2018 payment of the chit installments, further he paid 33 installments and thereafter he became defaulter. Since he failed to make the payment the hence issued legal notice and thereafter filed dispute before the Deputy Registrar of Chits for recovery of balance amount of Rs. 9,08,415/- on 26.05.2018 in dispute No. DRB-1/Chits/70/2018-2019. Though notice served to accused and other guarantors in the proceedings but they have not appeared and finally decreed and passed an award directing the accused and the guarantors to pay the award amount.
4. Having known to the same the accused came to the complainant company and issued a cheque bearing No. 000062 for Rs. 9,02,000/- dated 26.10.2018 drawn on HDFC Bank, HSR Layout Branch, Bangalore as a part dispute claim.
5. The complainant presented the cheque for enchashment on 26.10.2018 through its banker Karur Vysya Bank, R T Nagar branch, but it was returned with a shara "funds insufficient" dated 29.10.2018. Thereafter he got issued demand notice on 22.11.2018 calling upon him for payment under dishonour cheque. The said legal notice was served on 24.11.2018, in spite of it he has not made any payment nor replied to the notice and thereby committed an offence punishable under Section 138 of the N.I. Act.
SCCH-22 4 CC No.6327/2018
6. In response to the summons, accused appeared through his counsel and enlarged on bail. The substance of accusation was recorded and read over, accused pleaded not guilty and claims to be tried.
7. Complainant in order to establish its case one Ramesha D.K., power attorney holder of the complainant company got examined himself as PW.1 and in support of oral evidence got marked 11 documents at Ex.P1 to Ex.P11. Thereafter accused has raised his defence during cross-examination of PW.1. The statement of accused persons as required under Section 313 of Cr.P.C was recorded and read over to him, for which he denied the incriminating materials as false and in order to prove the case of complainant he examined himself as DW.1 and no documents have been produced.
8. Heard arguments. The learned counsel for complainant in support of arguments cited three decisions reported in AIR 2009 Supreme Court 1011 between Sri Krishna Agencies Vs State of A.P and Another, 2005 CRL.L.J.3029 between Harbhajan Singh and other petitioners Vs State of U.P and another opposite parties, Laws (KAR) 2005 6 48 between Memon Ventures, Bangalore Vs Birla 3M limited, Bangalore, AIR 2018 SC 3601 between T.P. Murugan (Dead) Thr. Lrs SCCH-22 5 CC No.6327/2018 V/s Bojan Posa Nandhi.
9. On perusal of oral as well as documentary evidence the points that arise for my determination are as follows:
1) Whether the complainant proves that Ex.P3 cheque has been issued by the accused towards discharge of legal liability and the same was dishonored on its presentation for the reason "Funds Insufficient" and further complied the mandatory provisions of Sec. 138
(a) to (c) of N.I.Act and further the complainant proves beyond doubt that the accused without having sufficient funds in his account, issued cheque towards discharge of his liability and failed to make good to the complainant after its dishonour within the stipulated period and thereby, committed an offence punishable under section 138 of N.I.Act?
2. What Order?
10. My answer to the above points are under :
Point No.1 - In the Affirmative
Point No.2 - As per final order for the
following
:: REASONS ::
POINT No.1:-
11. Under Section 138 of the N.I Act the offence will complete only if the mandatory provisions of Sec. 138 (a) to (c) are complied, SCCH-22 6 CC No.6327/2018 when the cheque was issued towards discharge of legal liability and it was dishonoured in the credit of the accused.
12. In this context, the complaint averments reveal that the accused being a prize bidder participated in the bid and received a prize amount of Rs. 28 lakh and agreed to repay the same in installments but as agreed failed to repay the loan, on the other hand himself along with guarantors executed documents and in spite of demand notice failed to repay the installments accordingly they have filed the petition before the Deputy Registrar of Chits for recovery of balance amount of Rs. 9,08,415/- on 26.05.2018 wherein accused not chosen to appear and was decreed and award passed against the accused and the guarantors directing to repay the award amount thereafter the accused approached the complainant company and in discharge of the award amount got issued cheque for Rs.9,02,000/- dated 26.10.2018 drawn on HDFC Bank, HSR Layout Branch, Bangalore and when presented the said cheque was dishonored for the reason "funds insufficient" and in spite of service of legal notice not choosen to reply nor repaid the cheque amount and became defaulter.
13. The same has been reiterated by the Assistant Legal Manager of complainant Company one Ramesha.D.K. as PW.1 in his SCCH-22 7 CC No.6327/2018 affidavit filed in lieu of his examination in chief and in support of oral evidence got marked the documents. Ex.P1 and Ex.P2 are the Authorization Letter and Board Resolution, Ex.P3 and Ex.P3a Cheque and the signature of the accused, Ex.P4 Endorsement, Ex.P5 Legal Notice, Ex.P6 Postal Receipt, Ex.P7 Postal Acknowledgment, Ex.P8 Voucher, Ex.P9 On Demand Promissory Note, Ex.P10 Chit Agreement, Ex.P11 Statement of account.
14. In order to rebut the case of complainant the accused raised his defence during cross-examination of PW.1 as well as in his evidence that the accused paid 33 installments which includes 33 lakh dividend and also contended that after award passed in Arbitration case the present complaint was filed and said Arbitration petition was filed 6 months after issuance of notice and in the agreement of the chit it was mentioned in respect of Arbitration. Further suggestion made to PW.1 that the Arbitration award was passed for Rs.9,08,415/- which is an exparte award but he denied the suggestion that no notice in the said Arbitration case served him. PW.1 also admitted that based on the said award have filed execution petition for recovery of a sum Rs.9,08,415/- but it has not been mentioned in the present complaint.
15. According to PW.1 the accused issued cheque on 26.10.2018 SCCH-22 8 CC No.6327/2018 and the said cheque issued prior to filing execution petition wherein accused issued cheque for Rs.9,02,000/-. PW.1 denied the suggestion that the name and the amount mentioned in the cheque wherein the ink of the said name and amount varies but he denied the said suggestion and also denied the variation in hand written on the cheque and the signature also differs. Further it is suggested to PW.1 that he has not visited the office of the complainant nor issued the cheque. On the other hand prior to transfer the chit amount through RTGS got misused the cheque and filed the present complaint and without his permission the present cheque presented for realization and the notice not served on him. Though suggestions made to PW.1 but he denied the same. Further suggested that the execution petition filed in relation to the present transaction and the cheque amount which also includes in the said award but he denied same. PW.1 also denied the suggestion made to him that he has not visited the R.T. Nagar branch nor issued the cheque. On the contra issued cheque as a security and by misusing the same got presented the said cheque and except in cheque the name of the company mentioned but the other hand written are not of him and the signature found on Ex.P7 not of him as per Ex.P7 no notice served on him. Except that nothing has been elicited.
SCCH-22 9 CC No.6327/2018
16. The accused also raised his defence in his evidence that he is a member of the chit for Rs.40 lakhs which is for 40 monthly installments, Rs.90,000/- p.m accordingly he paid Rs. 33 lakhs wherein he drawn only Rs.26 lakhs from the complainant and at that time during 2016 the complainant have obtained 4 guarantors and as a security obtained duly signed blank cheque, agreement bond. He admitted the cheque and the signature therein but denies hand written made on the cheque and in the Execution, no notice served on him and in the present case also no legal notice served to him, as such not replied to the notice. He paid the installment amount but except Rs.5 lakh which is liable to pay to the complainant but he does not remember when exactly he received the bid amount neither date, month nor the year but he admitted his signature found on Ex.P8 during cross-examination. It is suggested to DW.1 that the cheques were issued blank but he admitted that he has not obtained any documents from the complainant in obtaining the same. He also admitted that since from 2016 and prior to presenting the cheque for realization he has not asked nor demanded any writings to the complainant to return the said cheque and also admitted that the cheque already presented by the complainant for realization for which also SCCH-22 10 CC No.6327/2018 noted in the bass book. He also denies the suggestion that after verifying the bass book in relation to the cheque amount issued legal notice and though suggestion made that no case nor complaint lodged against the complainant for having misused the cheque. Except that he failed to prove the circumstances under which the complainant holds the instrument wherein complainant have established that the accused in discharge of the award amount got issued the cheque.
17. Further it is the contention of accused that the legal notice not served on him but on perusal of Ex.P6, postal receipt and Ex.P6 having presumption in respect of notice and more over Ex.P7 acknowledgment was duly served on the accused and nothing has been produced to disprove Ex.P7 more over Ex.P6 and Ex.P7 are having presumption under the General clause and Act and Ex.P8 to Ex.P10 as well as Ex.P11 which clearly establishes the chit transaction between them and accused failed to disprove Ex.P8, Ex.P11 and though he contended that Execution petition already filed for recovery of the amount that is award under the cheque amount but PW.1 specifically stated that after passing award and after filing execution the present cheque has been issued. Moreover it is a settled law that the complainant is entitled to file both private complaint for bounced of SCCH-22 11 CC No.6327/2018 the cheque as well as Civil suit for recovery of the amount due by the accused wherein the accused not disputed the award and in discharge of the same got issued the present cheque and though he raised the contention it is only a security but in the existence of Ex.P8 to Ex.P11 which clearly establishes the transaction as well as execution of the documents along with guarantors moreover the award remained unchallenged and though suggestion made that the notice in the said award not at all been served but even after passing the award it remained unchallenged.
18. On perusal of oral as well as the documentary evidence and the suggestions made to PW.1 as well as the admission of DW.1 even though accused raised the defence but there is no dispute in respect of the cheque nor the signature and when once the accused admitted the signature and the cheque the presumption mandate in respect of instrument as provided under Section 139 of NI.Act.
19. Therefore, no contra evidence in order to overcome or the point to cross the barrier of presumption as contemplated under Section 139 of N.I.Act. Since it is a statutory presumption, the Court bound to presume that when there is no dispute regarding the cheque relates to the accused and signature found on such cheque belongs to SCCH-22 12 CC No.6327/2018 him as such the presumption has to be raised as provided under Section 139 of N.I Act regarding the fact that the complainant is a due holder of the cheque. Therefore, the accused failed to raise a probable defense, which may create doubt in the prosecution case.
20. Further under Section 138 of N.I Act offence will complete only if the mandatory provisions of Section 138 (a) to (e) N.I Act are complied, that the cheque was issued towards discharge of legal liability and it was dishonoured for Insufficient funds in the account of the accused. Ex.P3 cheque dated 26.10.2018 and the said cheque returned for Funds Insufficient as per endorsement at Ex.P4. The documents reveal that the cheque has been presented within 3 months from the date of issue and legal notice was issued on 22.11.2018, which is within time limit from the date of dishonour. The said notice was duly served to him and from that date within the stipulated period the complaint came to be filed.
21. On perusal of oral as well as documentary evidence as well as the suggestions made to PW.1 itself clearly indicates that there is no dispute in respect of signature on Ex.P3(a) cheque itself is a proof to hold that Ex.P3 belonged to accused and at the time of presentation of the cheque there was no sufficient fund in the account. If at all the SCCH-22 13 CC No.6327/2018 cheque issued towards repayment of the loan amount then what efforts made by him in respect of cheque and he has not made any efforts to stop payment of the account. The suggestion it self indicates that he is having knowledge in respect of Ex.P3 cheque. Such being the thing he would not made any efforts and failed to do so. Therefore, I am of the view that the complainant complied all the mandatory provisions of Section of 138 (a) to (c) of N.I.Act.
22. Since the accused having failed to make good to the complainant within stipulated period, has committed an offence punishable under Section 138 of the N.I Act. There is no contra evidence available on record to over come Section 118 and 139 of N.I.Act. Accordingly, I hold that the accused is found guilty of the offence punishable under Section 138 of N.I.Act, hence I answer point No.1 in the affirmative.
23. POINT No.2: In view of the above discussion, I proceed to pass the following:
:: ORDER ::
The accused is convicted for the offence punishable under section 138 of the N.I.Act by acting U/ sec. 255 (2) of Cr.P.C and he is sentenced to pay a fine of Rs.SCCH-22 14 CC No.6327/2018
9,02,000/ (Nine Lakh Two Thousand only). In default to pay fine, accused shall undergo simple imprisonment for a period of one year.
Further acting U/Sec. 357 (1)
(b) of Cr.P.C on recovery of entire fine amount of Rs.9,02,000/ shall be paid to the complainant as compensation.
The bail bond and surety bond of the accused shall stand cancelled.
Supply a free copy of the judgment to the accused with due endorsement.
(Dictated to the stenographer, transcribed by her, corrected by me and then pronounced in the open court on this the 9th day of March 2021.) (SHAKUNTHALA.S) XX A.S.C.J. & A.C.M.M., Bengaluru.
:: ANNEXURE ::
List of witnesses examined on behalf of the complainant:
P.W.1 - Sri. Ramesha D.K List of witnesses examined on behalf of the accused:
- Nil -
List of documents marked on behalf of the complainant:
Ex.P.1 - Authorization Letter.
Ex.P.2 - Board Resolution
SCCH-22 15 CC No.6327/2018
Ex.P.3 - Cheque
Ex.P.3 a - Signature of accused on cheque
Ex.P.4 - Bank Endorsement.
Ex.P.5 - Legal notice.
Ex.P.6 - Postal Receipt.
Ex.P.7 - Postal Acknowledgment.
Ex.P.8 - Voucher
Ex.P.9 - On demand promissory note
Ex.P.10 - Chit Agreement
Ex.P.11 - Statement of account
List of documents marked on behalf of the accused:
- Nil -
(SHAKUNTHALA.S.) XX A.S.C.J. & A.C.M.M., BENGALURU.