Bangalore District Court
Mr.K.S.Nagaraj vs Smt.Neethu on 18 June, 2016
IN THE COURT OF XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 18th day of June 2016
Present: Smt. Saraswathi.K.N, B.A.L.,LL.M.,
XVI Addl.C.M.M., Bengaluru City.
JUDGEMENT U/S 355 OF Cr.P.C.,
Case No. : C.C. No.8158/2011
Complainant : Mr.K.S.Nagaraj,
S/o.Late K.R.Siddappa,
Aged about 25 years,
R/at No.215, 1st Floor,
6th Main Road, 7th Cross,
Kengeri Satellite Town,
Bengaluru-60.
(Rep. by Sri. J.V.Narayana
Swamy., Adv.,)
- VS -
Accused : Smt.Neethu,
W/o Sri.Naga Swamy,
C/o Indira,
R/at.No.9, 6th Cross,
Vinayakalayout,
Nayandahalli,
Mysore Road,
Bengaluru.
Also at,
Smt.Neethu,
W/o.Naga Swamy,
Modicare Pvt Ltd.,
East and Circle,
2 C.C. No.8158/2011
Near Opp: "Okayard" Apartment,
Bengaluru.
(Rep. by Sri. T.Sateesha,. Adv.,)
Case instituted : 01.01.2011
Offence complained of : U/s 138 of N.I. Act
Plea of accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 18.06.2016
JUDGMENT
The Complainant has filed this complaint against the accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. It is the case of the Complainant that, the Accused and himself are well acquainted with each other from past few years and with that acquaintance, the Accused had requested and borrowed a handloan of Rs.20,115/- from him in the month of May 2010 for a financial assistance to meet some of her urgent domestic and personal requirements. Towards the discharge of the said liability, she had issued a duly filled up cheque to him bearing No.112291 dated 1.9.2010 for a sum of Rs.20,115/- drawn on the Development Credit Bank Ltd., 3 C.C. No.8158/2011 Rajajinagar Branch, Bengaluru, with an assurance to maintain sufficient balance in her account so as to clear the cheque amount. As per the advice of the Accused and believing her words, when he presented the cheque for encashment through his banker, it got returned with an endorsement "Account Closed". Thereafter he approached the Accused and intimated about the dishonour of the said cheque, but she has not bothered to repay the amount. Therefore he got issued a mandatory legal notice through her advocate both under RPAD and also under the UCP to the Accused, which came to be duly served upon her. Inspite of it, she has neither repaid the amount nor replied to the legal notice. Hence the present case.
3. After recording the sworn statement of the Complainant, the same has been registered as a criminal case, the summons has been issued to the accused, who has appeared through her counsel and has got enlarged on bail. The substance of the accusation has been read over to her, she has pleaded not guilty and has claimed to be tried.
4 C.C. No.8158/20114. In order to prove his case, the Complainant has examined himself as PW-1 by relying upon the documentary evidence at Ex.P1 to P9.
5. It is seen that, inspite of given sufficient opportunity the counsel for the Accused has failed to cross-examine PW1 and the Accused has also failed to present herself before the Court for the purpose of recording her statement U/s.313 of Cr.P.C..
6. Inspite of given sufficient opportunity the Accused has also failed to led her rebuttal evidence. Though this Court has taken coereive steps to secure the presence of the Accused, but it has not materialized.
7. The counsel for the Complainant has submitted his written arguments. Inspite of given sufficient opportunity, the counsel for the Accused has not come forward to address his arguments.
8. The following points arise for my consideration:-
1. Whether the Complainant has proved beyond reasonable doubt that the accused is guilty of the offence punishable under Sec.138 of the Negotiable Instruments Act?5 C.C. No.8158/2011
2. If so, what Order or Sentence?
9. My findings to the above points are as under:-
Point No.1: In the Affirmative, Point No.2: As per the final order for the following:-
REASONS
10. POINT No.1:- The Complainant's case is that, the Accused and himself are well acquainted with each other from past few years and with that acquaintance, the Accused had requested and borrowed a hand loan of Rs.20,115/- from him in the month of May 2010 for financial assistance to meet some of her urgent domestic and personal requirements. Towards the discharge of the said liability, she had issued a duly filled up cheque to him bearing No.112291 dated 1.9.2010 for a sum of Rs.20,115/- drawn on Development Credit Bank Ltd., Rajajinagar Branch, Bengaluru, with an assurance to maintain sufficient balance in her account so as to clear the cheque amount. As per the advice of the Accused and believing her words, when he presented the cheque for encashment through his banker, it got returned with an endorsement "Account Closed". Thereafter he approached the Accused and intimated about the dishonour of the 6 C.C. No.8158/2011 said cheque, but she has not bothered to repay the amount. Therefore he got issued a mandatory legal notice through her advocate both under RPAD and also under the UCP to the Accused, which came to be duly served upon her. Inspite of it, she has neither repaid the amount nor replied to the legal notice.
11. In order to prove these allegations, the Complainant has examined himself as PW.1 & in his affidavit, he has reiterated the complaint averments.
In support of his oral evidence, P.W-1 has relied upon the following documentary evidence:-
Ex.P1 is the disputed cheque, in which, the signature is identified by P.W.1 as that of the Accused as per Ex.P1(a), the Bank endorsement is at Ex.P2, the office copy of the legal notice as per Ex.P3, the postal receipts are as per Ex.P4 to 6 respectively, the postal acknowledgement as per Ex.P7 and the returned postal cover as per Ex.P8.
12. It is pertinent to note that, this oral as well as the documentary evidence of the Complainant has not been subjected to cross-examination by the Defence 7 C.C. No.8158/2011 counsel even though sufficient opportunities have been granted to him. It is a well settled principle of law that, if either of the parties to the proceedings, even after knowing the status of his case, does not choose either to prosecute or defend the case, as the case may be, an adverse inference is liable to be drawn against such a party. Even in the present case, the entire case of the Complainant has remained unchallenged and unrebutted. It is not the situation that, in the present case, the Accused is not aware of the accusations leveled against her by the Complainant, since this Court has recorded her plea as well as her statement U/s.313 of Cr.P.C. The defence of the Accused which is divident both in her plea as well as in her statement U/s.313 of Cr.P.C. is one of the entire denial. No doubt it is also a well settled principle of law that, the Accused need not enter witness box so as to defend his case, but it is sufficient, if the Accused is able to establish her defence by relying upon the materials placed on record by the Complainant. But in the present case, it is pertinent to note that, the Accused has failed even to make use of the right of her cross-examination of PW1. As a result, the conduct of the Accused clearly goes to show that, her defence is one of 8 C.C. No.8158/2011 bare denial and she has not taken any pain in order to defend herself. On the contrary, in the absence of any dispute or challenge to the unchallenged testimony of PW1, this Court has no hesitation to hold that the Complainant is entitled to the benefit of the presumption available U/s.118 and 139 of the N.I. Act.
13. Now coming to the quantum of the compensation amount to be awarded to the Complainant, it could be seen that, the transaction claimed by the Complainant with the Accused is of the year May 2010 and till date, the Accused has not come forward to either repay the amount or to defend her case. As a result of the conduct of the Accused, the Complainant has suffered loss both in terms of money as well as in terms of his precious time. Therefore this is a fit case, in which, the Complainant needs to be compensated by imposing the fine on the Accused, equivalent to twice the amount of the cheque.
14. In this regard this Court has relied upon the following decision:-
In Mainuddin Abdul Sattar Shaikh Vs., Vijay D.Selvi, wherein the Hon'ble Apex court has awarded 9 C.C. No.8158/2011 compensation to an extent of twice the cheque amount and simple interest thereon at 9% per annum to the complainant by referring to the earlier decision of the Hon'ble Apex court in R.Vijayan Vs., Baby and ano., reported in AIR 2012 SC 528, wherein it has been held that:-
" The court should, unless there are special circumstances, in all cases of conviction, uniformly exercise the power to levy fine upto twice the cheque amount (keeping in view the cheque amount and the simple interest thereon at 9% per annum as the reasonable quantum of loss) and direct payment of such amount as compensation".
In view of all these reasons and discussions, this Point deserves to be answered in the Affirmative.
15. POINT No.2:- In view of the above reasons and discussions, I proceed to pass the following: -
10 C.C. No.8158/2011ORDER By exercising the power conferred u/s 265 of Cr.P.C., the accused is hereby convicted for the offence punishable u/s 138 of Negotiable Instruments Act.
She is sentenced to pay a fine of Rs.40,230/- (Rupees Forty Thousand Two Hundred and Thirty only) within 30 days from today and in default of payment of fine, she shall undergo simple imprisonment for 2 (Two) months.
Out of the fine amount so collected, Rs.35,000/-(Rupees Thirty Five Thousand Only) is ordered to be paid to the Complainant as Compensation and the balance of Rs.5,230/- (Rupees Five Thousand Two Hundred and Thirty only) is ordered to be adjusted towards cost to the State exchequer..
The bail bond and surety bond of the accused stands cancelled.
Issue free copy of Judgment to the accused forthwith.
(Dictated to the stenographer, transcript thereof is computerized and printout taken by her and then verified, and pronounced by me in open Court on this the 18th day of June 2016).
(SARASWATHI.K.N), XVI Addl.CMM., Bengaluru City.11 C.C. No.8158/2011
ANNEXURE List of witnesses examined on behalf of the Complainant:
: -Nil-
List of documents exhibited on behalf of the Complainant:
Ex.P-1 : Original Cheque; Ex.P-1(a) : Signature of the accused; Ex.P-2 : Bank Endorsement; Ex.P-3 : Copy of the Legal Notice; Ex.P-4 to 6 : Postal receipts; Ex.P-7 : Postal acknowledgement; Ex.P-8 : Returned postal cover.
List of witnesses examined on behalf of the accused:
: -Nil-
List of documents exhibited on behalf of the accused:
-Nil-
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.12 C.C. No.8158/2011
18.06.2016 Judgment pronounced in the open court vide separate order.
ORDER By exercising the power conferred u/s 265 of Cr.P.C., the accused is hereby convicted for the offence punishable u/s 138 of Negotiable Instruments Act.
She is sentenced to pay a fine of Rs.40,230/- (Rupees Forty Thousand Two Hundred and Thirty only) within 30 days from today and in default of payment of fine, she shall undergo simple imprisonment for 2 (Two) months.
Out of the fine amount so
collected, Rs.35,000/-(Rupees
Thirty Five Thousand Only) is
ordered to be paid to the
Complainant as Compensation
and the balance of Rs.5,230/-
(Rupees Five Thousand Two
Hundred and Thirty only) is
ordered to be adjusted towards
cost to the State exchequer..
The bail bond and surety
bond of the accused stands
cancelled.
13 C.C. No.8158/2011
Issue free copy of Judgment
to the accused forthwith.
(SARASWATHI.K.N),
XVI ACMM, Bengaluru City.
14 C.C. No.8158/2011