Bangalore District Court
Nayar vs To Make The Payment. The Said Notice Was ... on 30 September, 2015
1 CC.NO.6364/2009
IN THE COURT OF THE XV ADDL CHIEF METROPOLITAN
MAGISTRATE: BANGALORE CITY.
Dated this the 30th day of September 2015
Present: Sri.V.S.Pandit,B.A.,LL B.,
XV Addl.C.M.M., Bangalore.
Judgment U/s.355 of the Cr.P.C. 1973.
1.Sl.No.of the case CC.No.6364/2009
2.Name of the P.Prabhakaran @ Prabhakaran
Complainant: Nayar, No.206, 2 nd Floor, RMV
Orchads, RMV II Stage, Sonappa
Layout, New BEL Road,
Bangalore-560 094.
3.Name of the accused: Aaragan Balasubramanyam,
S/o.A.S.Nagananda,
No.244, 2nd Cross, 2nd Main, KEB
Layout, Ashwathnagar, Bangalore-
560 094.
4.The offence complained U/s.138 of Negotiable Instruments
of : Act.
5.Plea of the accused: Pleaded not guilty.
6.Final Order: Acting U/s.255(2) Cr.P.C., accused
is Convicted.
7.Date of final Order 30th day of September 2015
-----------
1. The accused has been prosecuted by the
complainant for the offence punishable U/s.138 of
Negotiable Instrument Act - 1881 (hereinafter referred as
NI Act for brevity)
2 CC.NO.6364/2009
2. Case of the complainant in brief are as under -
a. Accused undertook to procure lands to the
complainant. The accused had received an advance
amount of Rs.27 lakhs through various vouchers and
accordingly the accused was not able to procure lands in
favour of the complainant. As such, in order to refund the
amount, cheque was issued for Rs.27 lakhs on 25.3.2008,
drawn on State Bank of India, Vidyaranyapura branch,
Bangalore. When the cheque was presented for
encashment through ICICI Bank, St.Marks Road,
Bangalore, cheque was dishonoured for the reason
'FUNDS INSUFFICIENT'. In this regard, bank had issued
memo on 6.8.2008.
b. It is further case of the complainant that on
30.8.2008, legal notice was issued calling upon the
accused to make the payment. The said notice was sent
through RPAD as well as Certificate of Posting. After
receipt of the notice, accused has replied by raising
untenable grounds. Therefore, according to the
complainant, the accused instead of making payment,
evaded the same by issuing untenable reply to the notice.
Therefore, complainant is constrained to file the
complaint.
3. My learned Predecessor in the Office after taking
cognizance, issued summons to the accused. In response
to the summons, accused appeared and was enlarged on
bail. Plea for the offence was read over and explained to
3 CC.NO.6364/2009
the accused. Accused pleaded not guilty and pleads his
innocence.
4. To sustain the charge leveled against the accused,
the complainant examined himself as PW.1 and got
marked the documents at Ex.P.1 to Ex.P.18 on behalf of
the complainant.
5. After conclusion of the evidence of the complainant,
statement of the accused U/s.313 Cr.P.C., was recorded.
Accused denied the evidence. Accused himself examined as
DW.1 and no documents came to be marked on behalf of
defence.
6. Heard both sides.
7. The points that arise for my consideration are as under:-
1. Whether the complainant has proved that cheque was
issued by the accused for discharge of legally enforceable debt,
the same was returned unpaid for the reason 'FUNDS
INSUFFICIENT' and notice was not complied. Hence accused
committed an offence under Sec.138 of N.I. Act ?
2. What Order ?
8. My findings on the above points are as follows:
Point No.1 : In the Affirmative.
Point No.2 : As per final Order, for the following;
4 CC.NO.6364/2009
REASONS
9. Point No.1 - It is the case of the complainant that
to procure land, he paid a sum of Rs.27 lakhs to the accused.
Since accused had failed to procure land in favour of the
complainant, had issued a cheque for a sum of Rs.27 lakhs on
25.3.2008. Since cheque was dishonoured and notice was not
complied, as such complainant is constrained to file the
complaint. On the other hand, it is the case of the accused
that complainant is intended to purchase property bearing
Sy.No.27/1, Corporation Division No.9, situated at
Gandhinagara, Bangalore, measuring 14,157 Sq.ft. Since the
accused was acquainted with the owners, therefore
complainant approached the accused and requested to
negotiate the issue on his behalf. The accused on behalf of
the complainant, entered into a contract with
Smt.R.Chowdamma and Smt.R.Pushpa and in this regard
agreement was executed on 12.6.2007. It is further case of
the accused that complainant has paid a sum of
Rs.26,20,000/- to the accused on 1.6.2007 to 23.7.2007. The
accused has paid a sum of Rs.15 lakhs by way of D.D. drawn
on State Bank of India, Vidyaranyapura branch, Bangalore.
Further paid a sum of Rs.5 lakhs by way of cheque dated
12.6.2007 and paid further Rs.25 lakhs by way of cash to
one Pushpa, totally complainant has paid Rs.22,50,000/-.
Further close friends of the complainant had received a sum
of Rs.2,50,000/- from the accused, remaining amount was
paid to the mediators and expenses.
5 CC.NO.6364/2009
10. It is further defence of the accused that he did not
issue cheque as alleged. He did not promise the complainant
to procure land. Further denied with regard to the receipt of
Rs.27 lakhs as alleged.
11. Some of the admitted facts have to be stated at the
out set to narrow down the discussions and focus on the
controversy. Order sheet reveals that on 5.10.2010 a sum of
Rs.3 lakh was paid to the complainant by way of cheque.
Further on 30.11.2011, complainant endorsed for having
received a sum of Rs.8 lakh by way of cheque. On 18.2.2011,
complainant endorsed for having received Rs.7 lakh by way of
cash. On 15.7.2011, complainant endorsed for having
received Rs.3 lakh by way of cheque. Totally during the
course of trial, complainant had received a sum of Rs.21 lakhs
from the accused. Therefore by making these payments
during the pendency of the trial, accused has admitted the
liability as alleged by the complainant.
12. It is significant to note that except the evidence of
the accused with regard to the payment made to R.Chowdappa
and Pushpa by way of cheques and D.D., there is nothing on
record to substantiate the same. Further, though it is the
statement of the accused that he paid a sum of Rs.2,50,000/-
to one Goutham Chand, who is the close associate of the
complainant, there is nothing on record to suggest that
payments were made at the instance of the complainant.
6 CC.NO.6364/2009
13. Apart from that, the vouchers issued by the
accused in the form of Ex.P.9 to Ex.P.18 further strengthens
the case of the complainant that payments were made to the
accused for the purpose of land. Absolutely there is nothing
on record to discard the evidence of the complainant with
regard to the genuinous of these documents.
14. It is the submission of the learned Counsel for the
accused that no Income tax returns were submitted. Further,
no any documents to show that a sum of Rs.7 lakhs was paid
to the accused. Further, there is no records to establish the
economical status of the complainant. Therefore the case
made out by the complainant is not sustainable, has no
relevancy in view of the payments made as extracted above
during the course of the trial. By making the payments during
the course of the trial, accused has admitted his liability
towards the complainant.
15. The learned Counsel for the accused relied on the
judgments reported in the case of "K.Subramani -Vs-
K.Damodara Naidu - 2015(4) Kar.L.J. 118 (SC)" and "Lakshmi
Subramanya-Appellant -Vs- Sri.B.V..Nagesh-Respondent- 2013
(3) KCCR 1940" are not applicable to the facts of the present
case since in those decisions, there was a issue and
discussion with regard to the financial capacity of the
complainant to advance huge amount. But in the instant
case, since the accused during the course of trial, has
admitted his liability by making payment. Under such
circumstances afterwards he cannot question the financial
7 CC.NO.6364/2009
capacity and other aspects which were discussed in the said
decision.
16. Admittedly during the course of the trial, complainant
has received a sum of Rs.21 lakhs. The cheque in question
was issued for Rs.27 lakhs. Therefore another sum of Rs.6
lakhs is due from the accused. Therefore, eventhough the
cheque for a sum of Rs.27 lakhs, but having regard to the
payment made while imposing penalty, the accused can be
asked to pay the balance amount to meet the ends of justice.
17. Therefore, having regard to the above, I am of the
opinion that accused is liable to be convicted and if directed to
pay the penalty of the balance amount of Rs.6 lakh, it would
sub-serves the ends of justice. As such I answer Point No.1 in
the affirmative.
18. Point No.2 : In the result, I proceed to pass the following:
ORDER
Acting Under Sec.255(2) Cr.P.C., the accused is Convicted for the offence punishable u/s.138 of the N.I.Act and sentenced to pay a sum of Rs.6,50,000/- (Rs.Six lakh Fifty thousand only.). Out of the recovered fine amount, an amount of Rs.6,25,000/- (Rs.Six lakh Twenty five thousand only.) shall be paid to the complainant as compensation and balance amount of Rs.25,000/- shall go to State.
In default, he shall undergo SI for a period of six months.
8 CC.NO.6364/2009Copy of the judgment shall be furnished to the accused at free of cost.
(Dictated to the Stenographer, transcript thereof is computerized and printout taken by her, is verified and then pronounced by me in Open Court on this the 30th day of September 2015.) (V.S.PANDIT), XV Addl. CMM., Bangalore.
ANNEXURE Witnesses examined for the Complainant:-
PW.1 Prabhakaran, Documents marked for the Complainant:-
Ex.P.1 Cheque,
Ex.P.1a Signature,
Ex.P.2 Bank Endorsement,
Ex.P.3 Office copy of the legal notice,
Ex.P.4&5 Postal receipts,
Ex.P.6 UCP Receipt,
Ex.P. 7 Reply to the notice,
Ex.P.8 Postal receipt,
Ex.P.9 to 18 Vouchers.
Witnesses examined For Defence:
DW.1 Aargan Balasubramanyam. Documents marked for Defence:-
nil XV Addl.CMM., Bangalore.9 CC.NO.6364/2009
Judgment pronounced in Open Court vide separate Order:
ORDER Acting Under Sec.255(2) Cr.P.C., the accused is convicted for the offence punishable u/s.138 of the N.I.Act and sentenced to pay fine amount of Rs.27,220/- (Rupees Twenty Seven thousand two hundred twenty only) as stated in the Joint Memo. If the said amount is deposited, same shall be paid to the complainant as compensation.
In default, he shall undergo SI for a period of six months.10 CC.NO.6364/2009
XV Addl.CMM., Bangalore