Bangalore District Court
Got Issued A Legal Notice To The Accused ... vs Submitted That He Had Paid A Sum Of on 28 January, 2019
IN THE COURT OF THE XLII ADDL. CHIEF
METROPOLITON MAGISTRATE NRUPATHUNGA ROAD,
BENGALURU CITY
Present:- Sri. ABDUL RAHIM HUSSAIN SHAIKH
B.Sc, B.Ed, LLB(Spl)
XLII A.C.M.M
Bengaluru City.
Dated this the 28th day of January, 2019
CC.No.11197/2018
JUDGMENT U/S 355 OF Cr.P.C.
1. Sl.No. of the case : C.C.No.11197/2018
2. The date of commence of Evidence : 07.01.2019
3. The date of Institution : 07.04.2018
4. Name of the Complainant :M/s Lux Industries Ltd,
(Bangalore), Having its
office at No.3,
Sai Anugraha,
Ground Floor,
Ramakrishnaiah Street,
Sheshadripuram,
Bengaluru-20.
Rep by its Authorized Rep
Mr. Shivaprasad. B.
5. Name of the Accused : Mr. Raghavendra. S.S.
Prop:M/s Kashvi Markeking,
No.1328/1211, D.R. Bendre
Road, Behind Balaji Talkies,
Chikkaballapur-562101.
6. The offence complained : U/s.138 of N.I. Act
2 CC.No. 11197/2018
7. Plea of the accused on
his examination : Pleaded not guilty
8. Final Order : Accused is Convicted
9. Date of such order : 28.01.2019
JUDGMENT
1. This case has been registered against the accused on the basis of the complaint filed by the complainant u/s 200 of Cr.P.C for the offence punishable u/s 138 r/w 142 of N.I. Act.
2. The gist of the complainant's case is that :
The Complainant is a private limited company an reputed manufacturer and supplier of Hosiery goods (inner wears). The accused was doing business in the name and style of M/s Kashvi Marketing and he is the sole proprietor of the said business concern. The accused had approached the complainant for supply of hosiery goods on credit basis. The complainant agreed for the same and has supplied goods on credit basis and for the same has supplied goods worth several Lak 3 CC.No. 11197/2018 to the accused. As per the statement of accounts maintained by the complainant in the usual course of business and as per the supporting invoices as on 31.03.2017 the accused was due in a sum of Rs.3,98,815/- to the complainant towards the supply of hosiery goods. Towards the partial discharge of the said legally recoverable debt of Rs.3,98,815/- the accused had issued a cheque bearing No.072523 dated:15.11.2017 for a sum of Rs.2,50,000/- & cheque bearing No.072524 dated:15.01.2018 for Rs.1,50,000/- both cheques drawn on Syndicate Bank, Chikkaballapura branch. The complainant presented the said cheque for encashment through its banker HDFC bank Ltd, Malleshwaram branch, Bangalore.
But the said cheque was dishonour for the reasons 'Funds Insufficient' and received the banker memo dated 05.02.2018. There after on 22.02.2018 complainant got issued a legal notice to the accused by RPAD calling upon the accused to pay the cheque 4 CC.No. 11197/2018 amount within 15 days from the date of receipt of the said notice. The said notice was served on the accused on 24.02.2018. Even after lapse of 15 days from the date of receipt of the notice the accused fails to pay the cheque amount. Inspite of receipt of notice the accused has not paid the cheque amount to the complainant nor issued any reply. The complainant filed the complaint against the accused for having committed an offence punishable u/s 138 of N.I. Act on 07.04.2018.
3. In pursuance of the summons, the accused has appeared through Counsel and got enlarged on bail by executing necessary documents. The copy of the complaint was furnished to the accused, as required under law. As there is sufficient material, plea was recorded against the accused on 31.10.2018 and explained to the accused in his vernacular, for which the accused pleaded not guilty and claims to be tried.
4. In order to prove the case, the authorized 5 CC.No. 11197/2018 representative of the complainant Company Mr. Shivaprasad examined as PW1 and when the matter posted for complainant's PW1 further evidence complainant and accused filed joint memo and accused submitted that he had paid a sum of Rs.85,000/- to the complainant through NEFT dated 21.01.2019 and further he is ready to pay an amount of Rs.5,15,000/- in respect of the disputed cheque to the complainant on or before 07.04.2019 as full and final settlement. The complainant and accused filed joint memo and prayed to pass the judgment to that effect. Complainant and accused not adduced any oral evidence and not got marked any documents.
5. Heard the arguments and perused the material placed on record.
6. On the basis of the above facts, the following points arise for my consideration:
1. Whether the complainant proves that the accused towards 6 CC.No. 11197/2018 discharge of legal recoverable debt issued two cheques bearing No.(1)072523 dt:15.11.2017 for Rs.2,50,000/- (2)072524 dt:15.01.2018 for Rs.1,50,000/-
drawn on Syndicate Bank,
Chikkaballapura branch,
Bengaluru in favour of
complainant, on presentation for encashment it was returned as 'Funds Insufficient' and inspite of receipt of legal notice, the accused failed to pay the cheque amount within the statutory period and thereby the accused has committed an offence punishable u/s 138 of N.I. Act?
2. What order?
7. My findings on the above points are as under :
Point No.1: In the Affirmative Point No.2: As per final order, for the following:
REASONS
8. Point No.1:- In the instant case, plea of the accused was recorded and case was posted for 7 CC.No. 11197/2018 complainant evidence. At that point of time both accused and complainant counsel filed a Joint memo stating that they have entered into a compromise and the accused in terms of the agreement ready to pay an amount of Rs.5,15,000/- on or before 07.04.2019 in respect of the disputed cheque to the complainant for full and final settlement and the same has been accepted by both the parties. Both the accused and the complainant prayed to pass the judgment as per the terms of Joint Memo. Sri. Sivaprasad authorized representative of the complainant company had given her sworn statement through affidavit and has reiterated the averments of the compliant regarding the cheque issued by accused on 15.11.2017 for Rs.2,50,000/- and Rs.1,50,000/- respectively and the return memo received with endorsement as 'Funds Insufficient' on 05.02.2018 and acknowledgement of legal notice dated 22.02.2018 issued by the complainant was served to the accused on 24.02.2018. 8 CC.No. 11197/2018 Accused did not choose to cross examine the complainant & also not examined himself to disprove the case of the complainant by producing cogent evidence and relevant document. In view of the same, the evidence of the complainant as regard to issuing of cheque by the accused in discharge of legal enforceable debt remains undisputed and unchallenged.
9. As noted supra after taking cognizance when the matter was posted for complainant evidence, accused and complainant jointly submitted Memo stating that accused is ready to pay an amount pay an amount of Rs.5,15,000/- in respect of the disputed cheque to the complainant on or before 07.04.2019 in full and final settlement. Further both complainant and accused submitted that they have no objections for the Court to pass the judgment in accordance to the terms mentioned in the Joint Memo.
10. At this juncture I would like discuss the ruling reported in 2010 (11) SCC 441 (Rangappa v/s Sri. 9 CC.No. 11197/2018 Mohan) The Hon'ble Supreme Court has laid down the dictum of law and has held in para-16 that :
" Once the cheque relates to the account of the accused that he accepts and admits the signature on the said cheque, then initial presumption as contemplated under section 139 of the Negotiable Instrument Act has to be raised by the court in favour of the complainant. The presumption referred to in section 139 of the N.I Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption ....."
In the light of the principle laid down in the above case, it is clearly established that accused had issued the cheques in the instant case for discharge of legal enforceable debt and has not rebutted the presumption u/sec139 of N.I Act by cross examing PW1, nor by adducing cogent and relevant document. 10 CC.No. 11197/2018 It is pertinent to note complainant is not cross examined by the accused nor any cogent evidence and relevant document has been produced by the accused to disprove the case of the complainant.
11. In this case, the court is satisfied that the mandatory requirements of Sec.138 and 142 of N.I. Act are complied by complainant. It is pertinent to note that accused along with complainant filed a joint memo agreeing to repay the amount of Rs.5,15,000/- in respect of the disputed cheque amount on or before 07.04.2019 in full and final settlement. From this documentary evidence of both the parties it is clearly established that accused has admitting the transactions and issuing of the cheque in discharge of his liability. Hence, in the considered view of this court, the complainant has proved that the accused has committed an offence punishable u/s 138 of N.I. Act in view of the same, I answer the point No.1 in the affirmative.
11 CC.No. 11197/2018
12. Point No.2:- Having regard to the facts and circumstances, I proceed to pass the following:
ORDER The accused is found guilty for the offence punishable u/s 138 of N.I. Act.
Acting u/s 264 of Cr.P.C. the accused is convicted and sentenced to pay fine of Rs.1,000/-, in default shall undergo simple imprisonment for 15 days.
Acting u/s 357(3) of Cr.P.C as per the agreement between the parties the accused is hereby directed to pay Rs.5,15,000/- to the complainant on or before 07.04.2019.
In default undergo simple imprisonment of two months.
The joint memo shall be the part and parcel of this order.
The bail bond executed by the accused shall 12 CC.No. 11197/2018 stand cancelled.
Supply free copy of the judgment to the accused. (Dictated to Stenographer directly on the Computer, taken print out corrected, signed by me and then pronounced in the open court this the 28th day of January, 2019) (ABDUL RAHIM HUSSAIN SHAIKH) XLII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE Witnesses examined for the Complainant:- -Nil- Witnesses examined for the accused:- -Nil- Documents exhibited by the Complainant:- -Nil- Documents exhibited by the Accused:- -Nil-
XLII Addl. Chief Metropolitan Magistrate, Bengaluru.
13 CC.No. 11197/201814 CC.No. 11197/2018 15 CC.No. 11197/2018 Judgment pronounced in the open Court vide separate order.
ORDER The accused is found guilty for the offence punishable u/s 138 of N.I. Act.
Acting u/s 264 of Cr.P.C. the accused is convicted and sentenced to pay fine of Rs.1,000/-, in default shall undergo simple imprisonment for 15 days.
Acting u/s 357(3) of Cr.P.C as per the agreement between the parties the accused is hereby directed to pay Rs.5,15,000/- to the complainant on or before 07.04.2019.
In default undergo simple imprisonment of two months.
The joint memo shall be the part and parcel of this order.
The bail bond executed by the accused shall stand cancelled.
Supply free copy of the judgment to the accused.
XLII A.C.M.M, Bangaluru.