Bangalore District Court
P. Srinivas vs M. Manirathnam on 27 November, 2018
C.C.NO.21922/2017
IN THE COURT OF THE XXII ADDL.CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
Present: Smt. HEMA PASTAPUR,
B.A., LL.B.,
XXII Addl. Chief Metropolitan Magistrate,
Bengaluru.
Dated this the 27th day of November 2018
C.C.No.21922/2017
Judgment under section 355 of Code of Criminal
Procedure
Complainant : P. Srinivas,
s/o Late Pillanna,
Aged about 48 years,
Residing at No.25, 2nd cross,
Someshwaranagar,
Jayanagar 1st block,
Bengaluru - 560 011.
(By Shri Shanthi Bhushan, Advocate)
Vs
Accused : M. Manirathnam,
s/o M. Murugan,
Aged about 27 years,
R/at. No.428, 1st cross,
1st main road, Near Vidyapeetha
Circle, Thyagarajanagar,
Banashankari III stage,
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C.C.NO.21922/2017
Bengaluru - 560 028.
(By Shri Rajagopal Naidu, Advocate)
JUDGMENT
That, the complainant has filed the private complaint under section 200 of Code of Criminal Procedure, for taking action against the accused for the offence punishable under section 138 of the Negotiable Instruments Act.
That, the brief facts of the present case are as under:-
1. That, the complainant and accused are known to each other since several years and in view of the said acquaintance the complainant had approached and requested the accused to lease him his house for a sum of Rs.14,00,000/- for a period of three years and on 15.02.2017 both the parties have entered in to a Lease agreement. That, in said agreement it was agreed that the accused would deliver the vacant possession of the house in the month of May 2017. That, the complainant as per the said agreement had paid Rs.1,80,000/- to the accused in cash and paid a sum of Rs.10,20,000/- through cheques as under:- 2
C.C.NO.21922/2017 Cheque No. Amount Date 885831 Rs.1,20,000/-
312159 Rs.5,00,000/- 09.03.2017
312160 Rs.3,00,000/- 17.04.2017
275246 Rs.1,00,000/- 17.04.2017
2. That, the wife of the complainant had issued in favour of the accused a cheque bearing No. 275246 for a sum of Rs.1,00,000/- and the accused had encashed the aforesaid cheques and the complainant had agreed to pay the balance amount of Rs.2,00,000/- at the time of delivering the vacant possession of the said property. That, as per the said agreement the accused was under obligation to hand over the vacant possession of the said property to the complainant on 15.02.2017 but, failed to do so and on persistent demands by the complainant and on intervention of the well wishers the accused had issued in favour of the complainant a Cheque bearing No.098735 dated:- 08.05.2017 for a sum of Rs.12,00,000/- drawn on Axis Bank, Basvanagudi branch, Bengaluru - 560 004. That, the complainant on 15.05.2017 had presented the said cheque 3 C.C.NO.21922/2017 for encashment in Canara Bank, Rajarajeshwari Nagar branch, Bengaluru and on 16.05.2017 the said cheque was returned with the shara as "Drawers Signature Differs". That, when the complainant had informed the accused about the dishonour of said cheque at that time the accused and his family members have asked him for presenting the said cheque again for encashment in bank on 21.07.2017 and the complainant believing the words of the accused and his family members on 21.07.2017 had presented the said cheque again for encashment in Canara Bank, Rajarajeshwari Nagar branch, Bengaluru and on 24.07.2017 the said cheque was returned with the shara as ''Drawers Signature Differs''. That, the complainant for aforesaid acts of the accused on 29.07.2017 had issued legal notice to him and the same was duly served upon him. That, as accused in spite of receiving the said notice failed to comply with the terms of the same the complainant has constrained to knock the doors of justice.
3. That, on complaint being lodged by the complainant, this court registered the case in concerned register and took 4 C.C.NO.21922/2017 the cognizance for the offence punishable under section 138 of the Negotiable Instruments Act and thereafter, recorded the sworn statement of the complainant and after satisfying with the materials placed on record registered the case against the accused in Register No. III and issued summons to him. That, the accused in pursuance of said summons appeared before this Court through his learned counsel and he was enlarged on bail. That, the substance of accusation of the accused has recorded and read over him in language known to him and he has not pleaded guilty and claimed to tried. That, after completion of complainant side evidence the statement of the accused under section 313 of Code Criminal Procedure, has recorded and read over him in language known to him and he denied all incriminating evidence against him.
4. That, I have heard the arguments and perused the materials placed on record. That, the following points arise for My consideration and determination:-
1. Whether the complainant has proved that, the accused to discharge his legally enforceable debt had issued in his 5 C.C.NO.21922/2017 favour a Cheque bearing No.098735 dated:-08.05.2017 for a sum of Rs.12,00,000/- drawn on Axis Bank, Basvanagudi branch, Bengaluru - 560 004?
2. Whether the complainant has further proved that, the said cheque was dishonoured as ''Drawers signature differs"
and thereby the accused has committed the offence punishable under section 138 of the Negotiable Instruments Act?
3. Whether the complainant has complied with the provisions of section 138(b) of Negotiable Instruments Act?
4. What order?
5. That, the complainant to substantiate his aforesaid contentions has deposed herself as PW1 and got marked the documents at EXs.P1 to 10 and closed his side.
That, the accused to substantiate his contentions has deposed himself as DW1 and not adduced any documentary evidence on his behalf.
6. That, My answer to the aforesaid points are as under:-
Point No.1 :- In the AFFIRMATIVE Point No.2 :- In the AFFIRMATIVE 6 C.C.NO.21922/2017 Point No.3 :- In the AFFIRMATIVE Point No.4:- As per the final order for the following:-
REASONS
7. Point No.1:- It is specific contentions of the complainant that, he approached and requested the accused to lease him his house for a sum of Rs.14,00,000/- for a period of three years and on 15.02.2017 both the parties have entered in to a lease agreement and in said agreement it was agreed that the accused would deliver the vacant possession of the house in the month of May 2017. That, the complainant has further contended that the accused thereafter, had failed to hand over the vacant possession of the said property to him.
8. It is pertinent to note here that, the complainant has placed his reliance on following decision:-
Rangappa -vs- Sri Mohan, decided in Criminal Appeal No.1020/2010 dated:-07.05.2010 wherein it has held that the existence of legally recoverable debt or liability - Is matter of presumption under Section 139.
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C.C.NO.21922/2017
9. It is pertinent to note here that, the accused in examination - in - chief has taken a specific defenses that his father and his father's brothers were the joint owners of the property and in the month of May 2017 they have effected the partition and in said partition some portion was allotted to him, his mother and sister and they are in joint possession of the said property. That, the accused has taken further defense that as he has no any independent right over the said property the question of mortgaging the property do not arise and the complainant had created the said Lease agreement.
10. It is pertinent to note here that, the burden heavily lies upon the complainant to substantiate that on 15.02.2017 he and the accused have entered in to a Lease agreement. It is pertinent to note here that, the complainant has mainly relied upon EX.P5 - the Lease agreement dated:-15.02.2017. It is pertinent to note here that, from perusal of EX.P5 it clearly appears that the accused had leased out in favour of the complainant ground floor of his property situated at Banashankari III stage, Thyagarajanagar, near to Vidya Peeta 8 C.C.NO.21922/2017 Circle, 1st main, 1st cross, Bengaluru - 28. It is pertinent to note here that, as stated above though, the accused has taken a defense that he has not leased his property to the complainant but, in his cross - examination in page No.3 at 11th line has specifically admitted that, ¸ÁQëUÉ FUÀ ¤ÃªÀÅ ¦ügÁåzÀÄzÁgÀjUÉ ªÀÄ£ÉAiÀÄ£ÀÄß °Ã¸ïUÁV PÉÆqÀzÀ PÁgÀt CªÀgÀÄ ZÉ£ÀߪÀÄä£À CZÀÄÑPÀlÄÖPÉgÉ ¥ÉÇðøï oÀÁuÉAiÀÄ°è zÀÆgÀ£ÀÄß ¸À°è¹zÀÝgÀ ªÉÄÃgÉUÉ ¸ÀzÀj ¥ÉÇðøÀgÀÄ ¤ªÀÄä£ÀÄß, ¤ªÀÄä vÀAzÉ-vÁ¬ÄUÀ¼À£ÀÄß ºÁUÀÆ ¤ªÀÄä vÀAzÉAiÀÄ vÀªÀÄä£ÁzÀ ²æà gÁzÀsÁPÀȵÀÚ ºÁUÀÆ ¤ªÀÄä vÁ¬ÄAiÀÄ vÀªÀÄä£ÁzÀ ²æà gÁe ±ÀÉÃRgï EªÀgÀ£ÀÄß vÀªÀÄä oÁuÉUÉ PÀgɹgÀÄvÁÛgÉAzÀÄ ºÉýzÀÝPÉÌ ¸ÁQë ºËzÀÄ JAzÀÄ ºÉüÀÄvÀÁÛgÉ.
9
C.C.NO.21922/2017 It is significant to note here that, the accused in his cross - examination in page No.5 at 10 th line has further deposed that, ¸ÁQëUÉ FUÀ ¦ügÁåzÀÄzÁgÀgÀÄ ¤ªÀÄUÉ ¸ÀzÀj 12 ®PÀëgÀÆUÀ¼À°è 1 ®PÀë 80 ¸Á«gÀgÀÆUÀ¼À£ÀÄß £ÀUÀzÀÄ gÀÆ¥ÀzÀ°è ºÁUÀÄÁ G½PÉ ºÀtªÀ£ÀÄß ZÉQÌ£À ªÀÄÆ®PÀ ¤ÃrzÀÝgÀÆ PÀÆqÀ ¤ÃªÀÅ ºÁUÀÆ ¤ªÀÄä ªÀÄ£ÉAiÀĪÀgÀÄ CªÀjUÉ °Ã¸ïUÁV ªÀÄ£ÉAiÀÄ£ÀÄß PÉÆqÀzÉà ©ÃUÀªÀ£ÀÄß ºÁQPÉÆAqÀÄ ºÉÆÃVzÀÝgÀ ªÉÄÃgÉUÉ ¦ügÁåzÀÄzÁgÀgÀÄ gÉÆÃr£À°è EzÀÝgÀÄ JAzÀÄ ºÉýzÀÝPÉ̸ÁQë CzÀgÀ §UÉÎ vÀªÀÄUÉ UÉÆwÛgÀĪÀÅ¢®èªÉAzÀÄ ºÉüÀÄvÁÛgÉ.
It is pertinent to note here that, the said evidence of the accused clearly reveals that he had leased out his property to the complainant and received from him a sum of Rs.12,00,000/-. It is pertinent to note here that, the said 10 C.C.NO.21922/2017 evidence of the accused has devoid the defenses taken by him. It is significant to note here that, the word ''Gottilla'' would amount to an admission of a particular fact.
11. It is pertinent to note here that, the complainant has specifically contended that he paid a sum of Rs.1,80,000/- to the accused in cash and a sum of Rs.12,00,000/- through cheques as under:-
Cheque No. Amount Date
885831 Rs.1,20,000/-
312159 Rs.5,00,000/- 09.03.2017
312160 Rs.3,00,000/- 17.04.2017
275246 Rs.1,00,000/- 17.04.2017
It is pertinent to note here that, the complainant has further contended that his wife had issued in favour of the accused a cheque bearing No. 275246 for a sum of Rs.1,00,000/- and the accused had encashed the said cheques. It is pertinent to note here that, the complainant to strengthen his contentions has got marked his Statement of account pertaining to Canara Bank at EX.P6, Statement of account of his wife Smt. Varalakshmi R. V. at EX.P7 and 11 C.C.NO.21922/2017 Statement of account of his daughter Smt. Vinutha. S. pertaining to Canara Bank at EX.P8. It is pertinent to note here that, from perusal of EX.P6 it clearly appears that the complainant had issued a cheque bearing No.312159 to one Smt. Sangeetha. M and a cheque bearing No.312160 in the name of the accused. It is pertinent to note here that, from perusal of EX.P7 it appears that the wife of the complainant had issued a cheque bearing No.275246 in the name of the accused. It is pertinent to note here that, from perusal of EX.P8 it appears that the said daughter of the complainant had issued a cheque bearing No.885831 in the name of said Sangeetha.
12. It is pertinent to note here that, the accused in his examination - in - chief has taken a defenses that, the complainant had promised him for providing a job of security guard cum driver and collected from him a sum of Rs.3,00,000/-. It is pertinent to note here that, the accused in his examination - in - chief has not mentioned when he paid a sum of Rs.3,00,000/- to the complainant. It is pertinent to note here that, the accused has not stated anything about 12 C.C.NO.21922/2017 his aforesaid defenses in his statement recorded by this Court under section 313 of Code of Criminal Procedure. It is pertinent to note here that, the accused in his cross - examination in page No.5 at 2nd line has deposed that in the month of October 2016 he paid a sum of Rs.3,00,000/- to the complainant, but, he do not know the date. It is pertinent to note here that, in absence of any material particulars the said contentions of the accused cannot be believed and accepted. It is pertinent to note here that, the accused has also not produced before the Court any document to substantiate that he had paid a sum of Rs.3,00,000/- to the complainant. It is significant to note here that, in absence of any material, cogent and reliable evidence the said contention of the accused cannot be believed and accepted. It is pertinent to note here that, from perusal of EXs.P6 and 7 it clearly appears that the complainant and his said wife have issued the said cheques in the name of accused and one Sangeetha.
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C.C.NO.21922/2017
13. It is pertinent to note here that, the accused in cross - examination of the complainant has taken a specific defense that he is not having the capacity to pay him a substantial amount of Rs.12,00,000/- and the complainant as per EX.P9 in the month of April 2017 had received a sum of Rs.5,00,000/- from one Shri Narayanappa. It is pertinent to note here that, as stated above the accused himself has admitted that he had received a sum of Rs.12,00,000/- from the complainant and if such being the case the said defenses put forth by the accused do not hold water. It is pertinent to note here that, from the said admissions of the accused it clearly appears that he had leased his property to the complainant and received from him a sum of Rs.12,00,000/-.
14. It is pertinent to note here that, the accused has taken a further defenses that the complainant except giving a month's salary failed to arrange for his salary and for which he left the job and for which his said security amount and his salary of Rs.1,00,000/- was reimbursed to his account. It is pertinent to note here that, the accused has not produced before the Court any document to substantiate that the 14 C.C.NO.21922/2017 complainant had deposited a sum of Rs.4,00,000/- in his account. It is pertinent to note here that, as stated above in absence of any material, cogent and reliable evidence the aforesaid contention of the accused cannot be believed and accepted. It is pertinent to note here that, from perusal of EXs.P6 and 8 it clearly appears the complainant and his said wife have paid a sum of Rs.4,00,000/- to the accused through aforesaid cheques.
15. It is significant to note here that, the accused in cross
- examination of the complainant has taken a specific defenses that he is not having a capacity to pay him a sum of Rs.12,00,000/- and as per Lease agreement - EX.P9 in the month of April 2017 he had received a sum of Rs.5,00,000/- from one Shri Narayanappa. It is pertinent to note here that, as discussed above the accused himself has admitted that he had leased his property to the complainant and in view of the same the contention of the accused that the complainant is having no capacity to pay him a substantial amount do not hold water. It is pertinent to note here that, from perusal of entire evidence of the accused it clearly appears that he had 15 C.C.NO.21922/2017 leased his property to the complainant and received from him a sum of Rs.12,00,000/-.
16. It is specific contention of the complainant that, the accused to discharge his legally enforceable debt had issued in his favour a Cheque bearing No.098735 dated:-08.05.2017 for a sum of Rs.12,00,000/- drawn on Axis Bank, Basvanagudi branch, Bengaluru - 560 004 - EX.P1.
17. It is pertinent to note here that, the complainant has placed his reliance on following decisions:-
1. S. Ravikumar Subramanya Reddy -vs- Prakash, reported in 2017 ACD 231 (KAR) wherein it has held that Negotiable Instruments Act (26 of 1881), Ss. 138, 139 - Legally enforceable debt - Lease agreement -
Dishonour of cheques issued towards repayment of security deposit - Admission of lease agreement and signature on cheques by accused - Failure of accused to rebut presumption - Mere filling contents of cheque by complainant does not amount to alteration
- Conviction of accused, proper.
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C.C.NO.21922/2017
2. M. Madappa -vs- D. Y. Ravishankar, reported in 2017 ACD 233 (KAR) wherein it has held Negotiable Instruments Act (26 of 1881), S. 138 - Dishonour of cheque - conviction - Validity - Cheque issued by accused to re - pay borrowed amount was dishonoured - Accused said to have made payment in cash in presence of a friend - However, said person was not examined - Accused admitted issuance of cheque and his signature - Conviction of accused - Proper.
3. A. S. Prasad -vs- Hari, reported in 2017 ACD 704 (KAR) wherein it has held that Negotiable Instruments Act (26 of 1881), S. 138 - Cheque dishonour - Accused issuing two cheques on failure to excute sale deed - Accused denying transaction of agreement of sale, pleading that cheques issued as security for loan transaction - Documentary evidence establishing transactions - Accused liable to be convicted.
4. N. Manjegowda s/o Nanjappa -vs- N. V. Prakash, reported in 2017 ACD 806 (KAR) wherein it has held 17 C.C.NO.21922/2017 that Negotiable Instruments Act (26 of 1881), S. 138 - Dishonour of cheque - Sentence - Plea of loss of signed cheque in bus - No complaint lodged with police station - Failure to produce acceptable rebuttal evidence showing how cheque came in possession of complainant - Order to pay fine, proper.
5. Arjun -vs- E. Shekar, reported in 2017 ACD 807 (KAR) wherein it has held that Negotiable Instruments Act (26 of 1881), Ss.138, 139 - Dishonour of cheque - Presumption of lawful consideration - Rebuttal of - Burden of proving that cheque has not been issued for any debt or liability - Is on accused - Mere plausible explanation not sufficient to disprove complainant's case.
6. Smt. Deeparani -vs- A. Rupesh Kumar, reported in 2017 ACD 816 (KAR) wherein it has held that Negotiable Instruments Act (26 of 1881), S.138 - Dishonour of Cheque - Payment of Rs.4,60,000/- made under lease agreement - No possession of property handed over to complainant - Cheques given towards 18 C.C.NO.21922/2017 discharge of said amount dishonoured with endorsement of ''insufficiency of funds'' - Even after giving sufficient opportunity of cross - examining complainant, accused did not appear nor any evidence adduced on her behalf - Conviction proper.
18. It is pertinent to note here that, the accused has taken a specific defense that to get the job he had issued in favour of the complainant his signed blank cheque as a security.
19. It is pertinent to note here that, the accused has placed his reliance on following decisions:-
1. Rajendra Prasad s/o Hollappa, Major -vs- M. Shivaraj Major, Driver, decided in Crl. A. No.1574/2001 decided on 15.06.2006 wherein it has held that the banker of the accused is more competent person to say whether it is the signature of the accused or not with reference to specimen signature.
2. Sanjay Mishra -vs- Kanishka Kapoor and Ors., reported decided in Criminal Application No.4694/2008 decided on 24.02.2009 wherein it has 19 C.C.NO.21922/2017 held that a cheque issued in discharge of alleged liability of repaying ''unaccounted'' cash amount cannot be said to be a cheque issued in discharge of a legally enforceable debt or liability within meaning of explanation of Section 138 of Act.
3. John K. Abraham -vs- Simon C. Abraham and ors., decided in Criminal Appeal No.2043/2013 decided on 05.12.2013 wherein it has held that wherein it has held the complainant not sure as to who wrote cheque nor aware as to when and where existing transaction took place for which cheque was issued by the accused - Conviction of accused is not proper.
4. Vinod Tanna and ors., -vs- Zaheer Siddiqui and Ors., decided in Criminal Appeal No.950/2001 decided on 17.09.2001 wherein it has held that in fact, a plain reading of Section 138 of the Act it makes it crystal clear that uless the condition precedent mentioned therein are satisfied, the said penal provision cannot be attracted.
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C.C.NO.21922/2017
5. Mustafa -vs- State, decided SCR. A/2118/2009 decided on 19.04.2011 wherein it has held that if the cheque is returned/bounced on the endorsement of ''drawers signature differs from the specimen supplied'' and/ or ''no image found - signature'' and or/ ''incomplete signature/illegible'', the complaint filed under section 138 of the Act is not maintainable.
20. It is pertinent to note here that, the burden heavily lies upon the complainant to substantiate that the accused to discharge his legally enforceable debt had issued in his favour the EX.P1. It is significant to note here that, the accused though, has cross - examined the complainant in length but, failed to elicit anything worth from him. It is pertinent to note here that, the accused in his examination - in -chief and in his statement recorded by this Court under section 313 of Code of Criminal Procedure, has not stated the number of the said cheque. It is pertinent to note here that, it is not the case of the accused that he had issued the EX.P1 in favour of the complainant as a security. It is pertinent to note here that, the accused has not furnished 21 C.C.NO.21922/2017 before the Court any document to substantiate that he had issued the said cheque in favour of the complainant as a security. It is to be noted here that, a plausible explanation is not sufficient for rebuttal evidence, but, the proof of explanation is necessary.
21. It is pertinent to note here that, the accused in cross - examination of the complainant has taken specific defense that he had not signed on EX.P1. It is pertinent to note here that, if the accused had not signed on EX.P1, then the questions arises why he has he has not moved the application for referring the EX.P1 for expert opinion and why he has not summoned the concerned bank manager?. It is significant to note here that, from the said conduct of the accused an adverse inference can be drawn that he had issued the Cheque in question in favour of the complainant to discharge his legally enforceable debt. It is pertinent to note here that, the complainant with all preponderance of probabilities has proved that the accused to discharge his legally enforceable debt had issued in his favour the EX.P1 and the accused has failed to rebut the said case of the 22 C.C.NO.21922/2017 complainant. It is pertinent to here that, in view of My abobe all findings and without much discussion I hold that, the complainant has proved that the accused to discharge his legally enforceable debt had issued in his favour the EX.P1. In view of the same, point No.1 is answered in the AFFIRMATIVE.
22. Point No.2:- It is specific contention of the complainant that, on 15.05.2017 he presented the EX.P1 for encashment in Canara Bank, Rajarajeshwari Nagar branch, Bengaluru and on 16.05.2017 the same was returned with the shara as "Drawers Signature Differs" and when he informed the accused about the dishonour of EX.P1 at that time the accused and his family members have asked him for presenting the EX.P1 again for encashment in bank on 21.07.2017. That, the complainant has further contended that believing the words of the accused and his family members on 21.07.2017 he presented the said cheque again for encashment in Canara Bank, Rajarajeshwari Nagar branch, Bengaluru and on 24.07.2017 the said cheque was returned with the shara as ''Drawers Signature Differs''. 23
C.C.NO.21922/2017 It is pertinent to note here that, the complainant to substantiate his aforesaid contentions in his evidence has got marked the Cheque return memo's issued by the said Bank at EXs.P2 and 3.It is pertinent note here that, from perusal of EXs.P2 and 3 it appears that the EX.P1 was dishonoured as ''Drawers signature differs''.
23. It is to be noted here that, at this juncture I have gone through the provisions of the section 146 Negotiable Instruments Act and which contemplates as under:-
Bank's slip prima facie evidence of certain facts:- The Court shall, in respect of every proceeding under this Chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonor or such cheque, unless and until such fact is disproved.
[[ It is pertinent to note here that, in the instant case the accused has failed to rebut the presumptions envisaged in section 146 of the Negotiable Instruments Act. It is to be 24 C.C.NO.21922/2017 noted here that, in view of My above findings and without much discussion I hold that, the complainant has convincingly proved that the accused has committed the offence punishable under section 138 of Negotiable Instruments Act. In view of the same, Point No.2 is answered in the AFFIRMATIVE.
24. It is pertinent to note here that, the Learned counsel for the accused has vehemently canvassed the arguments that the complainant in present case has not made his wife and daughter who were the beneficiaries as parties and in view of the same the present complaint is bad for non - joinder of necessary parties.
25. It is significant to note here that, the complainant has filed the present private complaint under section 200 of Criminal Procedure code, for taking action against the accused for the offence punishable under section 138 of the Negotiable Instruments Act. It is pertinent to note here that, Section 138 of the Act has three ingredients viz. (i) that there is a legally enforceable debt; (ii) that the cheque was drawn from the account of bank for discharge in whole or in part of 25 C.C.NO.21922/2017 any debt or other liability which presupposes a legally enforceable debt and (iii) that the cheque so issued had been returned due to insufficiency of funds. It is pertinent to note here that, the duty cast upon the complainant to prove the said ingredients with all preponderance probabilities and if the complainant proves that said ingredients then burden shifts on the accused rebut the case of the complainant. It is further pertinent to note here that, the section 138 of Negotiable Instruments Act, is a summary in nature and in view of the same the question of non - joinder of necessary parties do not arise at all.
26. Point No.3:- It is pertinent to note here that, the accused in cross - examination of the complainant has taken a defense that he had not received the Legal notice.
27. It is pertinent to note here that, the complainant has specifically contended that on 29.07.2017 he issued legal notice to the accused and the same was duly served upon him.
It is pertinent to note here that, the complainant to substantiate his aforesaid contentions in his evidence has 26 C.C.NO.21922/2017 got marked the Legal notice issued by him to the accused dated:-29.07.2017 at EX.P4, Postal receipt at EX.P4(a) and Postal acknowledgement at EX.P4(b).
28. It is pertinent to note here that, the complainant in cause title of the present case and in EX.P4 has mentioned the addresses of the accused as R/at. No.428, 1 st cross, 1st main road, Near Vidyapeetha Circle, Thyagarajanagar, Banashankari III stage, Bengaluru- 560 028. It is pertinent to note here that, the accused in cross - examination of the complainant has elicited that as on the date of issuing the EX.P4 and as on date of presenting the present complaint he was not residing in the addresses mentioned in cause title of the present case and EX.P4. It is significant to note here that, the accused in his chief affidavit has mentioned his address as No.428, 1st cross, 1st main road, Near Vidyapeetha Circle, Thyagarajanagar, Banashankari III stage,Bengaluru- 560 028 and in his cross - examination in page No.4 at 11 th line deposed that he is not residing in said address. It is pertinent to note here that, from the said conduct of the accused it clearly appears that in his chief affidavit he has mentioned 27 C.C.NO.21922/2017 his false address. It is significant to note here that, the accused on one hand asserts that he has not received the said legal notice and on the other hand in his cross - examination in page No.4 at 4 th line has specifically deposed that, ¸ÁQëUÉ FUÀ DgÉÆæAiÀÄÄ ¤ªÀÄUÉ PÀ¼ÀÄ»¹gÀĪÀ w¼ÀĪÀ½PÉ ¥ÀvÀæªÀ£ÀÄß ¥ÀqÉzÀÄ ¤ÃªÀÅ CzÀPÉÌ AiÀiÁªÀÅzÁzÀgÀÆ ¥ÀævÀÄåvÀÛgÀªÀ£ÀÄß ¤ÃrgÀÄwÃÛgÁ JAzÀÄ PÉýzÀÝPÉÌ ¸ÁQë ¤ÃrgÀĪÀÅzÁV ºÉüÀÄvÁÛgÉ. ¸ÁQëUÉ FUÀ AiÀiÁªÀ ¥ÀævÀÄåvÀÛgÀªÀ£ÀÄß PÉÆnÖgÀÄwÃÛj JAzÀÄ ºÉýzÀÝPÉÌ ¸ÁQë vÁªÀÅ AiÀiÁªÀÅzÉà ºÀtªÀ£ÀÄß PÉÄÁqÀĪÀÅzÀÄ E®èªÉAzÀÄ vÀªÀÄä ªÀiÁ£Àå ªÀQîgÀÄ ªÀÄÆ®PÀ PÀ¼ÀÄ»¹gÀĪÀÅzÀÁV ºÉüÀÄvÁÛgÉ. ¸ÁQëUÉ FUÀ ¸ÀzÀj ¥ÀævÀÄåvÀÛgÀªÀ£ÀÄß ªÀiÁ£Àå 28 C.C.NO.21922/2017 £ÁåAiÀiÁ®AiÀÄPÉÌ ¸À°è¹gÀÄwÛÃgÁ JAzÀÄ PÉýzÀÝPÉÌ ¸ÁQë CzÀgÀ §UÉÎ vÀªÀÄUÉ UÉÆwÛgÀĪÀÅ¢®èªÉAzÀÄ ºÉüÀÄvÁÛgÉ.
It is significant to note here that, the said evidence of the accused is quite enough to hold that he had received the legal notice issued by the complainant. It is pertinent to note here that, if at all the accused had not at all received the said legal notice as alleged by him then he could have deposed that he had not received the said notice. It is pertinent to note here that, in view of the said evidence of the accused the said admission of the complainant will not come to his aid. It is pertinent to note here that, in view of above findings and without much discussion I hold that, the complainant has complied with the provisions of section 138(b) of Negotiable Instruments Act. In view of the same, point No.3 is answered in the AFFIRMATIVE. 29
C.C.NO.21922/2017
29. Point No.4:- That, as discussed on points No.1 to 3, I proceed to pass the following:-
ORDER That, acting under section 255(2) of Code of Crimina Procedure,the accused is convicted for the offence punishable under section 138 of the Negotiable Instruments Act.
That, the accused shall deposit a fine amount of Rs.12,00,000/-and if he fails to deposit the said fine amount, then he shall undergo a simple imprisonment six months.
That, out of total fine amount of Rs.12,00,000/-, Rs.11,98,000/- shall be paid to the complainant as a compensation as provided under section 357(1) of Code of Criminal Procedure and Rs.2,000/- shall be remitted to the State Exchequer.
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C.C.NO.21922/2017 That, the office is to furnish the free copy of this Judgment to the accused forthwith. (Typed and corrected by me and pronounced in the open Court on this the 27th day of November 2018) [[[ [ [ (Hema Pastapur) XXII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of witnesses examined on behalf of the complainant [ PW1 : P. Srinivas s/o Late Pillanna. List of documents marked on behalf of the complainant EX.P1 : Original Cheque;
EX.P1(a) : Signature of the accused;
EXs.P2 and 3 : Cheque return memo's;
EX.P3 : Legal notice dated:-29.07.2017;
EX.P4(a) : Postal receipt;
EX.P4(b) : Postal acknowledgement;
EXs.P5 and 9 : Lease agreements;
EXs.P6 to 8 : Statement of accounts and
EX.P10 : Income Tax returns pertaining
to the year 2016 - 17.
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C.C.NO.21922/2017
List of witnesses examined on behalf of the accused DW1 : M. Manirathnam s/o M. Murgan. List of documents marked on behalf of the accused Nil XXII Addl. Chief Metropolitan Magistrate, Bengaluru.
[ 32