Bangalore District Court
After Obtaining The Chit Prized Money vs Through Rpad Calling Upon The Accused To on 19 February, 2020
1 CC.No. 21931/2018
IN THE COURT OF THE XXVIII ADDL. CHIEF
METROPOLITON MAGISTRATE NRUPATHUNGA ROAD,
BENGALURU CITY
Present:- Sri. ABDUL RAHIM HUSSAIN SHAIKH
B.Sc, B.Ed, LLB(Spl)
XXVIII A.C.M.M
Bengaluru City.
Dated this the 19th day of February, 2020
CC.No.21931/2018
JUDGMENT U/S 355 OF Cr.P.C.
1. Sl.No. of the case : C.C.No.21931/2018
2. The date of commence of Evidence : 30.07.2018
3. The date of Institution : 27.04.2018
4. Name of the Complainant :M/s Shreyas Hind Chits
India Pvt Ltd
Infinity Pride, No.91,
3rd floor, 5th cross,
Malleshwaram,
Bengaluru-560 003.
Rep. by its Director
Smt. B.G Pushpalatha
W/o Sri. M Srinivas,
Aged about 57 years.
5. Name of the Accused : Sri. Amzad Pasha
S/o Sri. Pyarejan,
R/at No.164, 3rd main road,
2 CC.No. 21931/2018
Padarayanapura,
Bangalore-560 026.
6. The offence complained : U/s.138 of N.I. Act
7. Plea of the accused on
his examination : Pleaded not guilty
8. Final Order : Accused is Convicted
9. Date of such order : 19.02.2020
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 registered Chit Fund Company. The accused has subscribed chit conducted by the complainant for Rs.10,00,000/- bearing No.10LH with ticket No.17 which was launched on 25.06.2017 and the said group was closed on 25.03.2014. The complainant further submits that the 3 CC.No. 21931/2018 accused successfully bid the chit and has received the chit amount of Rs.7,00,000/- from the complainant by executing the chit documents in favour of the complainant. After obtaining the chit prized money the accused has failed to pay the monthly chit instalment and the account has become over due. It is the case of the complainant that on demand to repay the 24 monthly chit installments amounting to Rs.6,00,000/- for which the accused had issued cheque bearing No.449340 dated:12.02.2018 for Rs.6,00,000/- drawn on Karnataka Bank Ltd, Chandra Layout branch, Bengaluru in favour of the complainant company towards the liability and repayment of the chit installments amount. The said cheque on presentation for encashment through its banker State Bank of India, SMC Jayanagar, Bengaluru was dishonoured for the reasons 'Funds Insufficient" as per the banker's memo dated 4 CC.No. 21931/2018 16.02.2018. It is the contention of the complainant that on 17.03.2018 got issued a legal notice to the accused through RPAD calling upon the accused to pay the cheque amount within 15 days from the date of receipt of the said notice and inspite of receipt of the notice, accused has not repaid the amount. Hence, the complaint has filed against the accused for having committed an offence punishable u/s 138 of N.I. Act.
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 01.10.2019 and explained to the accused in her vernacular, for which the accused pleaded not guilty and claims to be tried.
4. In order to prove the case, the Director of the complainant Company Smt.B.G Pushpalatha examined 5 CC.No. 21931/2018 as PW1 and got marked Ex.P1 to 7. Accused neither examined nor got marked any documents on his behalf.
5. When the matter posted for cross of PW1, accused and complainant jointly submitted memo stating that accused has agreed pay a sum of Rs.4,00,000/- to the complainant as full and final settlement and towards the payment of the said amount accused already paid Rs.30,000/- on 10.02.2020 and for remaining balance amount of Rs.3,70,000/- accused agreed to pay in 19 equated monthly installments of Rs.20,000/- each and last installment of Rs.10,000/- starting from 10.03.2020 to 10.09.2021.
Further it is also agreed by the accused that he shall pay the installments as agreed above regularly and in case of any default in paying single installment, the accused shall pay the entire balance amount in lump sum and complainant is at liberty to get the FLW 6 CC.No. 21931/2018 issued for the entire balance amount from this court.
6. Both the accused and the complainant along with their counsels prayed to pass the judgment to that effect on the joint memo. In the instant case PW1 was not cross examined nor any cogent evidence and relevant documents had been produced by the accused to disprove the case of the complainant.
7. Heard the arguments and perused the material placed on record.
8. On the basis of the above facts, the following points arise for my consideration:
1.Whether the complainant proves that the accused towards discharge of legal recoverable debt issued cheque bearing No.449340 dt:12.02.2018 for Rs.6,00,000/- drawn on Karnataka Bank Ltd, Chandra Layout branch, Bengaluru, in favour of the complainant, on presentation for 7 CC.No. 21931/2018 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?
9. 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
10. Point No.1:- In order to prove the case, Smt. B.G Pushpalatha w/o Sri. M. Srinivas, Director of the complainant Company examined as PW1 filed affidavit in lieu of examination-in-chief and has reiterated the allegations made in the complaint and oath and got marked documents Ex.P1 to Ex.P7. Ex.P1 is the C/c of c/c of incorporation certificate, Ex.P2 is the chit 8 CC.No. 21931/2018 commencement licence, Ex.P3 is the Cheque, Ex.P3(a) is the Signature of accused, Ex.P4 is the Returned Bank Memo, Ex.P5 is the Copy of Legal Notice, Ex.P5(a) is the Postal Receipt, Ex.P6 is the legal notice found in the returned postal cover, Ex.P6(a) is the cover, Ex.P7 is the Complaint. In the instant case PW1 was not cross examined nor any cogent evidence and relevant documents had been produced by the accused to disprove the case of the complainant.
11. As noted supra when the matter posted for cross-examination of PW1, complainant and accused jointly submitted Memo stating that accused has agreed pay a sum Rs.4,00,000/- to the complainant as full and final settlement and towards the payment of the said amount accused already paid Rs.30,000/- on 10.02.2020 and for remaining balance amount of Rs.3,70,000/- accused agreed to pay in 19 equated monthly installments of Rs.20,000/- each and last 9 CC.No. 21931/2018 installment of Rs.10,000/- starting from 10.03.2020 to 10.09.2021.
12. It is the definite case of the complainant that complainant is a registered Chit Fund Company. The accused has subscribed chit conducted by the complainant for Rs.10,00,000/- bearing No.10LH with ticket No.17 which was launched on 25.06.2017 and the said group was closed on 25.03.2014. The complainant further submits that the accused successfully bid the chit and has received the chit amount of Rs.7,00,000/- from the complainant by executing the chit documents in favour of the complainant. After obtaining the chit prized money the accused has failed to pay the monthly chit instalment and the account has become over due. It is the case of the complainant that on demand to repay the 24 monthly chit installments amounting to Rs.6,00,000/- for which the accused had issued 10 CC.No. 21931/2018 cheque bearing No.449340 dated:12.02.2018 for Rs.6,00,000/- drawn on Karnataka Bank Ltd, Chandra Layout branch, Bengaluru in favour of the complainant company towards the liability and repayment of the chit installments amount. The said cheque on presentation for encashment through its banker State Bank of India, SMC Jayanagar, Bengaluru was dishonoured for the reasons 'Funds Insufficient" as per the banker's memo dated 16.02.2018. It is the contention of the complainant that on 17.03.2018 got issued a legal notice to the accused through RPAD calling upon the accused to pay the cheque amount within 15 days from the date of receipt of the said notice and inspite of receipt of the notice, accused has not repaid the amount. Hence, the complaint has filed against the accused for having committed an offence punishable u/s 138 of N.I. Act. In the instant case PW1 was not cross examined nor 11 CC.No. 21931/2018 any cogent evidence and relevant documents had been produced by the accused to disprove the case of the complainant.
13. In this case the complainant PW1 had deposed that accused had issued cheque Ex.P3 with his signature Ex.P3(a) in discharge of his legally enforceable debt. It is pertinent to note that PW1 is not cross examined by the accused counsel disputing the signature Ex.P.3(a) in the disputed cheque nor the accused had lead any evidence to disprove the fact that the said signature Ex.P3(a) does not belong to him. In view of the same, the signature of the accused Ex.P3(a) in the disputed cheque Ex.P3 remains undisputed and unchallenged. It can be presume that the accused had admitted his signatures on the disputed cheque.
14. At this juncture I would like discuss the ruling reported in AIR 2018 Hon'ble Supreme Court 3601 (T.P 12 CC.No. 21931/2018 Murugan (Dead) Thr.Lrs.V Bojan AND Posa Nandhi Rep.Thr, POA Holder, T.P Murugan v. Bojan) In this ruling at para-8 the Hon'ble Supreme Court has laid down the dictum of law that u/s 139 of the N.I Act, once a cheque has been signed and issued in favour of the holder, there is statutory presumption that it is issued in discharge of a legally enforceable debt or liability by referring to K.N.Beena v/s Muniyappan and Another, (2001) 8 SCC 458, para-6 and Rangappa v/s Shrimohan (2010) 11 SCC 411, para 26 . It is further held that the presumption is a rebuttable one, if the issuer of the cheque is able to discharge the burden that it was issued for some other purpose like security for a loan.
In the present case the accused has failed to produce any credible evidence to rebut the statutory presumption in the light of discussion made above. 13 CC.No. 21931/2018 The complainant has proved the case by overwhelming evidence to establish that the cheque/Ex.P3 was issued by the accused towards discharge of an existing liability and legally enforceable debt.
15. In the instant case PW1 deposed that he had issued a legal notice Ex.P5 the accused requesting for payment of the outstanding balance through RPAD. On perusal of the document Ex.P5/legal notice, Ex.P5(a) postal receipt and Ex.P6(a) postal cover it is crystal clear that the notice was duly served to the accused and inspite of the said notice accused has not paid the amount nor replied to the notice due to which service of notice to the accused remained undisputed and unchallenged.
16. At this juncture in the light of principle laid down by the Hon'ble Apex Court of India in a decision reported in 2007 (3) Crimes 120 (SC) (C.C. Alavi Haji 14 CC.No. 21931/2018 V/s Palapetty Muhammed & Anr), it is crystal clear that if notice sent through RPAD by correctly addressing drawer of the cheque, mandatory requirement of issue of notice in terms of (b) of proviso to u/s 138 of N.I. Act stands complied with. The evidence on record clearly establishes that the complainant sent the notice to the accused to the correct address through RPAD and the said notice is duly served to the accused. Hence, sending legal notice to the correct address of the accused is in compliance with u/s 138(b) of N.I. Act as the dictum of law laid down in the above case. In the instant case accused neither issued reply nor paid cheque amount even after receipt of summons for the best reasons known to him. As noted supra when the matter posted for cross of PW1, complainant & accused jointly submitted Joint Memo stating that accused has agreed to pay a sum of Rs.4,00,000/- to the complainant as full and final 15 CC.No. 21931/2018 settlement and towards the payment of the said amount accused already paid Rs.30,000/- on 10.02.2020 and for remaining balance amount of Rs.3,70,000/- accused agreed to pay in 19 equated monthly installments of Rs.20,000/- each and last installment of Rs.10,000/- starting from 10.03.2020 to 10.09.2021. In view of submission by both complainant and accused that they have no objections for the Court to pass the judgment in accordance to the terms mentioned in the Joint Memo the case is disposed accordingly.
17. In view of the same 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. Hence, I answer the above point No.1 in the Affirmative. 16 CC.No. 21931/2018
18. 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.500/-, 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 in the joint memo the accused is directed to pay a sum of Rs.3,70,000/- in 19 equated monthly installments of Rs.20,000/- each and last installment of Rs.10,000/- starting from 10.03.2020 to 10.09.2021.
In default undergo simple imprisonment of two months.
17 CC.No. 21931/2018
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. (Dictated to Stenographer directly on the Computer, taken print out corrected, signed by me and then pronounced in the open court this the 19h day of February, 2020).
(ABDUL RAHIM HUSSAIN SHAIKH) XXVIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT:-
PW1 : Smt. B.G Pushpalatha LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENCE:
Nil LIST OF DOCUMENTS MARKED ON BEHALF OF THE COMPLAINANT:-
Ex.P1 : C/c of Incorporation certificate Ex.P2 : Chit commencement licence Ex.P3 : Cheque Ex.P3a) : Signature of the accused 18 CC.No. 21931/2018 Ex.P4 : Bank Memo Ex.P5 : Office copy of the legal notice Ex.P5(a) : Postal receipt Ex.P6 : Legal notice found in the returned postal cover Ex.P6(a) : Cover Ex.P7 : Complaint LIST OF DOCUMENTS MARKED ON BEHALF OF THE DEFENCE:-
Nil XXVIII Addl. Chief Metropolitan Magistrate, Bengaluru.19 CC.No. 21931/2018
(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.500/-, 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 in the joint memo the accused is directed to pay a sum of Rs.3,70,000/- in 19 equated monthly installments of Rs.20,000/- each and last installment of Rs.10,000/- starting from 10.03.2020 to 10.09.2021.
In default undergo simple imprisonment of two months.
20 CC.No. 21931/2018
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.
XXVIII A.C.M.M, Bangaluru.