Bangalore District Court
Ram vs Sri.Manikandan.T.G on 25 March, 2015
IN THE COURT OF THE XX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY
Dated this the 25th day of March 2015
PRESENT: M.RAMESHA B.A., LL.B.,
XX ADDL. C.M.M. Bangalore.
C.C.No.8489/2014
Complainant Ram,
S/o.Sri.Marirangaiah,
Aged about 45 Years,
R/at No.1301/16,
11th Main, Vijayanagar,
Bangalore - 560 040.
(Represented by SriK.B.Krishnamurthy. - Advocate)
Vs.
Accused Sri.Manikandan.T.G.
S/o Sri Gangadharan,
Aged about 28 years,
R/at No.21, 4th "B" Cross,
Srigandanagar,
Lakshmidevi Layout,
Viswaneedam Post,
Bangalore - 560 091.
(Represented by Sri. K.Srinivas -Advocate)
Offence complied of U/S. 138 of N.I. Act.,
Plea of accused Pleaded not guilty
Final Order Accused is Convicted
Date of Order 25-03-2015
2 C.C.8489/2014
JUDGMENT
The complainant has filed this complaint U/S. 200 of Cr.P.C., against the accused for the offence punishable U/S.138 of Negotiable Instruments Act ( in short for "N.I. Act").
2. After taking the cognizance of the offence, on being served the summons, the accused was appeared before the court through his counsel and got released him on bail. The substance of accusation was read over and explained to the accused, wherein he pleads not guilty and claimed to be tried.
3. In order to prove his case, the complainant examined as PW.1 and got marked the documents as per Ex.P.1 to 10. Thereafter, accused has been examined as required U/S 313 of Cr.P.C., by explaining incriminating evidence appeared against him. Wherein, he denied the entire evidence of complainant, but he did not chosen to adduce any defence evidence.
4. Heard the argument advanced by the Learned Counsel for the complainant and accused side argument taken as nil.
5. Now the points that arise for my consideration are as follows;
3 C.C.8489/2014POINTS
1. Whether the complainant has made out all the ingredients of Sec.138 of N.I. Act. to prove the guilt of the accused?
2. What Order?
Now my answer to the above points is as follows;
1. Point No.1: In the affirmative
2. Point No.2: As per the final order for the following;
REASONS
6. POINT No.1: I have perused the complaint, oral and documentary evidence available on record. It is the specific case of the complainant that, the accused and the complainant are well known to each other since six years. That on 07.03.2013 the accused had approached the complainant and borrowed loan of Rs.45,00,000/- from the complainant in order to purchase site. On the same day of borrowing the loan the accused had executed an agreement in favour of the complainant agreeing to repay the loan amount with interest at the rate of 3% per month within 6 months.
Subsequently, the accused failed to repay the loan amount. When the complainant demanded for repayment of the said loan, then the accused had issued two cheques bearing No.245616 dated 30.01.2014 for Rs.25,00,000/- and cheque bearing No. 245617 dated 30.01.2014 for Rs. 25,00,000/-, in favour of the complainant, 4 C.C.8489/2014 both the cheques were drawn on ICICI Bank, ICIB Bank Ltd., Indiranagara Branch, Bangalore. When the complainant has presented both the cheques for realisation through his banker, the said cheques were dishonoured for the reason "Account Closed"
and returned with bank memos dated 04.02.2014. Thereafter, in spite of issuing the demand notice to the accused, he refused to receive the notice. Further demand notice sent through courier and it is duly served on the accused. In spite of it the accused failed to pay the cheques amount within 15 date from the date of service of notice. Hence the present complaint.
7. In support of his case the complainant has filed his affidavit of chief examination by reiterating the complaint averments. Further the complainant has produced the documents which are marked at Ex.P. 1 to Ex.P. 10. Ex.P. 1 & 3 are the cheques in question said to have been issued by the accused, Ex.P. 2 & 4 are the bank endorsements, which reveals that the Ex.P. 1 & 3 cheques were dishonoured for the reason "ACCOUNT CLOSED", Ex.P. 5 is the office copy of the demand notice, Ex.P. 6 & 7 are the courier receipts, Ex.P.8 is the unserved postal cover with postal shara as " No sufficient address and not known". All these documents goes to show that after dishonour of the cheques and after receiving the bank return memos the complainant had issued demand notice to the 5 C.C.8489/2014 accused within time and after completion of 15 days from the date of service of notice complaint came to be filed within time.
8. On the other hand even though sufficient opportunity has been given to the accused, he did not chosen to cross examine the complainant and also not adduce any defence evidence. What ever the oral and documentary evidence brought on record by the complainant are remained un-challenged. It is the specific case of the complainant that on the date of borrowing the loan the accused has executed an agreement as per Ex.P.9. On going through the Ex.P.9 agreement, the contents of the said agreement is clearly corroborates with the evidence of PW.1. Further Ex.P.9 is also remained un-challenged. Ex.P.1 and 3 are the cheques in question were dishonoured for the reason "Account Closed". Thereafter demand notice has been issued through RPAD to the accused and the said notice was returned with postal shara as "In sufficient address, not known", but the accused is not shown that he is not residing in the given address. Added to this the complainant also issued demand notice through courier it will clearly supports from Ex.P.6 & Ex.P.7 courier receipts. What ever the oral and documentary evidence placed by the complainant are remained un-challenged and the accused did not enter into the witness box to substantiate his defence and he did not chosen to cross examine the complainant for the best reason known to him. In this regard, I seek to cite the decision reported in 6 C.C.8489/2014 Cr.L.J. 2005 PAGE 1093(A.P.) in a case of Munikrishnaiah Vs. Janakirama Naidu and another, wherein it is clearly held that;
"N.I. Act Sec. 138 and 139:- Dishonour of cheque- Burden to establish that dishonoured cheque was not issued towards any legally enforceable debt or liability, is on the drawer of dishonoured cheque and not an payee- Drawer of cheque did not adduce any evidence to rebut presumption under section 139 of N.I. Act in favour of payee- So, it has to be taken that dishonoured cheque was issued by drawer of cheque towards a legally enforceable debt- Payee established guilt of drawer of cheque for offence under section.138 of Act beyond all reasonable doubt - Order acquitting drawer of cheque- Not proper. "
In the light of the law laid down in the above decision considering the facts of the case on hand, this court is of the clear view that the evidence of PW. 1 along with documentary evidence are clearly and categorically established all the ingredients of section 138 of N.I. Act and the complainant has proved the fact that the cheques in question had issued by the accused to the complainant towards discharge of legally enforceable debt and the said cheques were dishonoured for the reason "Account Closed". Thereafter, inspite of service of demand notice to the accused, he failed to pay the cheque amount within 15 days from the date of service of the notice. Hence the dishonour of the cheques in question are clearly attracts the penal provision of section 138 of the N.I. Act and the complainant has proved the guilt of the accused for the offence punishable U/S 138 of N.I. Act.
Accordingly, I answer point No. 1 in the affirmative.
7 C.C.8489/20149. POINT NO.2: In view of my above findings and reasons, I proceed to pass the following;
ORDER Acting U/S 255(2) of Cr.P.C., accused is hereby convicted for the offence punishable U/S 138 of N.I. Act and accused is sentenced to pay a fine of Rs.50,10,000/- ( Fifty Lakh Ten Thousand only). In default thereof he shall suffer simple imprisonment for 1 (One) Year.
The fine if realized, Rs.50,00,000/- ( Fifty Lakh only) there from shall be paid to the complainant as a compensation, remaining fine amount of Rs.10,000/-( Ten Thousand only) is defrayed to the state for the expenses incurred in the prosecution.
The bail bond of the accused and that of surety stands cancelled.
Office to supply the copy of this Judgment to the accused immediately on free of cost.
{Dictated to the stenographer, transcribed and computerized by her, corrected and then signed by me and then pronounced in the open court on this 25th day of March 2015} (M. RAMESHA), XX ACMM, Bangalore.
8 C.C.8489/2014ANNEXURE List of witnesses examined on behalf of the prosecution:
P.W.1 Ram List of Exhibits marked on behalf of the prosecution:
Ex.P. 1 & 3 Cheques Ex.P. 1(a) & 3(a) Signatures of the accused Ex.P. 2 & 4 Bank endorsements Ex.P. 5 Copy of the legal notice Ex.P. 6 & 7 Courier Receipts Ex.P. 8 Unserved postal cover Ex.P.8(a) Notice Ex.P. 9 Agreement Ex.P.9(a) Signature of the accused Ex.P.10 Complaint
List of witnesses examined for the defence: Nil List of documents marked on behalf of defence: Nil XX A.C.M.M., Bangalore.
9 C.C.8489/2014 10 C.C.8489/2014C.C.8353/2015 Judgment pronounced in open court, vide separate order;
ORDER Acting U/S 255(1) of Cr.P.C., accused is hereby acquitted for the offence punishable U/S 138 of N.I. Act, and the complaint is dismissed.
The bail bond will stands cancel after expiry of the appeal period.
XX ACMM Bangalore.
11 C.C.8489/2014C.C.9850/2013 While verifying the file before dictation of judgment, it is noticed that original complaint and one endorsement both are marked and given same number as Ex.P.7. In order to avoid confusion while referring the documents in judgment the Ex.P.7 complaint is renumbered as Ex.P.8 suomoto.
XX ACMM Bangalore Judgment pronounced in open court, vide separate order;
ORDER Acting U/S 255(2) of Cr.P.C., accused is hereby convicted for the offence punishable U/S 138 of N.I. Act and accused is sentenced to pay a fine of Rs.3,20,000/- (Three Lakh Twenty Thousand only). In default thereof he shall suffer simple imprisonment for 3 (Three) months.
The fine if realized, Rs. 3,10,000/- ( Three Lakh Ten Thousand only) there from shall be paid to the complainant as a compensation, remaining fine amount of Rs.10,000/-(Ten Thousand only) is defrayed to the state for the expenses incurred in the prosecution.
12 C.C.8489/2014The bail bond of the accused and that of surety stands cancelled.
Office to supply the copy of this Judgment to the accused immediately on free of cost.
XX ACMM Bangalore At the time of dictation of judgment, it is noticed that Ex.P.12 cheque and Ex.P.13 plaint are by oversight given exhibit number as Ex.P.12 and Ex.P.13 instead of Ex.P.7 and Ex.P.8. In order to avoid confusion while referring the said documents in judgment the Ex.P.12, Ex.P.12(a) and Ex.P.13, it is renumbered as Ex.P.7, Ex.P.7(a) and Ex.P.8 suomoto.
XX ACMM Bangalore C.C.5746/2014 Order on application filed U/S.389(3) of Cr.P.C., Counsel for accused No.3 & 4 filed an application U/S.389(3) of Cr.P.C., praying to suspend the sentence passed against the accused for a period of one month as 13 C.C.8489/2014 the accused is intend to prepare an appeal. Heard, perused and passed the following;
ORDER Application filed U/S.389(3) of Cr.P.C., by the accused No.3 & 4 is hereby allowed and the sentence passed against the accused is hereby suspended for a period of one month with the following condition;
CONDITION:
Accused No. 3 & 4 shall execute self bond for Rs.2,10,000/- (Two Lakh Ten Thousand only) Office to take bond.
Call on 31.01.2015.
XX ADDL.C.M.M., BANGALORE.14 C.C.8489/2014
C.C.8368/2014 Order pronounced in open court, vide separate order;
ORDER Application filed by the accused 8 of the arbitration and conciliation Act, 1996, is hereby rejected as not maintainable. No order as to cost.
XX ACMM Bangalore 15 C.C.8489/2014 C.C.8804/2013 Case advanced, Counsel for accused filed an application U/S.389(3) and U/S.70(2) of Cr.P.C., praying to suspend the sentence passed against the accused for a period of one month as the accused is intend to prepare an appeal. Heard, perused and passed the following;
ORDER Application filed U/S.389(3) of Cr.P.C., by the accused is hereby allowed and the sentence passed against the accused is hereby suspended for a period of one month with the following condition;
CONDITION:
Accused shall execute self bond for Rs.26,60,000/- (Twenty-six Lakh Sixty Thousand only). Office to take bond.
NBW is recalled.
Call on 28.02.2015.
XX ADDL.C.M.M., BANGALORE.
16 C.C.8489/2014C.C.5746/2014 Judgment pronounced in open court, vide separate order;
ORDER Acting U/S 255(2) of Cr.P.C., accused is hereby convicted for the offence punishable U/S 138 of N.I. Act and accused is sentenced to pay a fine of Rs.4,30,000/- (Four Lakh Thirty Thousand only). In default thereof he shall suffer simple imprisonment for 3 (Three) months.
The fine if realized, Rs. 4,25,000/- ( Four Lakh Twenty Five Thousand only) there from shall be paid to the complainant as a compensation, remaining fine amount of Rs.5,000/-(Five Thousand only) is defrayed to the state for the expenses incurred in the prosecution.
The bail bond of the accused and that of surety stands cancelled.
17 C.C.8489/2014Office to supply the copy of this Judgment to the accused immediately on free of cost.
XX ACMM Bangalore Judgment pronounced in open court, vide separate order;
ORDER Acting U/S 255(1) of Cr.P.C., accused is hereby acquitted for the offence punishable U/S 138 of N.I. Act, and the complaint is dismissed.
18 C.C.8489/2014The bail bond will stands cancel after expiry of the appeal period.
XX ACMM Bangalore C.C.5746/2014 Order on application filed U/S.389(3) of Cr.P.C., Counsel for accused No.3 & 4 filed an application U/S.389(3) of Cr.P.C., praying to suspend the sentence passed against the accused for a period of one month as the accused is intend to prepare an appeal. Heard, perused and passed the following;
ORDER Application filed U/S.389(3) of Cr.P.C., by the accused No.3 & 4 is hereby allowed and the sentence passed against the accused is hereby suspended for a period of one month with the following condition;
CONDITION:
Accused No. 3 & 4 shall execute self bond for Rs.2,10,000/- (Two Lakh Ten Thousand only) Office to take bond.19 C.C.8489/2014
Call on 31.01.2015.
XX ADDL.C.M.M., BANGALORE.
Order pronounced in open court, vide separate order;20 C.C.8489/2014
ORDER Application filed by the complainant U/S.482 of Cr.P.C., is hereby allowed as prayed for. No order as to cost.
XX ACMM Bangalore 21 C.C.8489/2014 Order on application filed U/S.389(3) of Cr.P.C., Counsel for accused filed an application U/S.389(3) of Cr.P.C., praying to suspend the sentence passed against the accused for a period of one month as the accused is intend to prepare an appeal. Heard, perused and passed the following;
ORDER Application filed U/S.389(3) of Cr.P.C., by the accused is hereby allowed and the sentence passed against the accused is hereby suspended for a period of one month with the following condition;
CONDITION:
Accused shall execute self bond for Rs.26,60,000/- (Twenty-six Lakh Sixty Thousand only). Office to take bond.22 C.C.8489/2014
Call on 28.02.2015.
XX ADDL.C.M.M., BANGALORE.
Order on application filed U/S.389(3) of Cr.P.C., Counsel for accused filed an application U/S.389(3) of Cr.P.C., praying to suspend the sentence passed against the accused for a period of one 23 C.C.8489/2014 month as the accused is intend to prepare an appeal. Heard, perused and passed the following;
ORDER Application filed U/S.389(3) of Cr.P.C., by the accused is hereby allowed and the sentence passed against the accused is hereby suspended for a period of one month with the following condition;
CONDITION:
Accused shall execute self bond for of Rs. 95,000/- (Ninety Five Thousand only) with one surety for likesum.
Call on 15.07.2014.
XX ADDL.C.M.M., BANGALORE.24 C.C.8489/2014
Order on application filed U/S.389(3) of Cr.P.C., Accused is filed an application U/S. 389(3) of Cr.P.C., praying to suspend the sentence for a period of one month. Heard, perused and passed the following;
ORDER Application filed U/S. 389(3) of Cr.P.C., is hereby allowed and the said sentence passed against the accused is hereby suspended for a period of one month from the date of order with the following conditions;
CONDITIONS
1. Accused shall execute self bond of Rs. 12,60,000/- with one surety.
2. Accused shall pay fine amount of Rs. 10,000/- on or before 07.05.2014.
Surety by name Suma.U, W/o Sri.S.S.Umashankar is present and filed her surety affidavit. Heard the surety, perused the documents, surety is accepted.
Office to take bond.
Call on 0.0.2014 XX ADDL. C.M.M., BANGALORE.