Bangalore District Court
Subhashreekari Micro Chits Pvt. Ltd. ... vs Mahesh on 2 February, 2024
KABC030152942023
Presented on : 15-04-2023
Registered on : 15-04-2023
Decided on : 02-02-2024
Duration : 0 years, 9 months, 17 days
IN THE COURT OF XXVII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
Present: Sri. K.N. SHIVAKUMAR B.Sc (Agri), LL.M.,
XXVII A.C.M.M Bengaluru.
Dated: This the 2 nd day of February, 2024
C.C. NO.9010/2023
Complainant SHUBHASHREEKARI MICRO-
CHITS PVT LTD.,
No.75, 1st N Block,
Dr. Rajkumar,
BENGALURU - 560010.
Represented by its
Director,
Sri.Jagadhish. T.L
(Rep by Sri. Subramanya. K Adv.)
V/s.
Accused SRI. MAHESH.G.M
S/o. Mahadevaiah.G.N,
No.64, Ground floor,
Kabhallamashree Hotel,
Chandrappa building,
Opp.Sowdhamini Kalyana
Mantapa, New Bank colony,
Konanakunte,
BENGALURU 560062.
Also at:
Mahesh.G.M,
s/o.Mahadevaiah.G.N,
Gajanur, Kasba hobli,
Malavalli taluk,
Mandya District-571430.
(Reptd by Sri. TSG Adv.,)
U/s.138 of Negotiable Instruments
Offence
Act.
2 C.C. No.9010 /2023
Plea of the accused Claims to be tried
Final Order CONVICTED
Judgment Date 02/02/2024
****
JUDGMENT
This is a complaint filed by the complainant U/Sec. 200 of Cr.P.C for the offence punishable under Sec.138 R/w Sec. 142 of N.I. Act as against the accused praying to punish the accused for the said offence.
2. The case of the complainant is that, the complainant is a registered Chit company, where in the accused had subscribed for one Chit bearing No. 5E/LT/2019/Ticket No.37 for a chit value of Rs.5,00,000/- with monthly installment of Rs.12,500/- for a period of 40 months. The accused had participated & auctioned the Chit and received the prize money of Rs.3,47,000/- from the complainant company by executing necessary documents. Thereafter, he had 3 C.C. No.9010 /2023 became defaulter in payment of future Chit installments. As such, he was due for Rs.3,40,070/- in total. Thereafter, upon the demand notice issued by the complainant the accused had issued the cheque in issue i.e., the Cheque bearing No.000039 for a sum of Rs.3,40,070/- dated: 21/12/2022 drawn on Bank of Baroda, Konanakunte Branch, Bengaluru in favour of the complainant towards payment of said due. As such, the complainant had presented the said cheque for encashment through his banker Punjab National Bank, Rajajinagar Branch, Bengaluru for encashment. But, the same was returned on 23/12/22 with an endorsement stating "Payment stopped by Drawer" . Thereafter, the complainant got issued a legal notice dated: 20/1/23 calling upon the accused to pay the cheque amount within 15 days. Though the said notice was served, the accused, has neither replied to the notice nor repaid the cheque amount. Accordingly, the accused has committed 4 C.C. No.9010 /2023 an offence punishable under Sec.138 and 142 of N.I Act. Hence, this complaint.
3. After recording the sworn statement of the representative of the complainant company and also verifying the documents, cognizance was taken against the accused for the offence punishable under Sec. 138 R/w 142 of N.I. Act. The accused on receiving the summons appeared before the Court through his counsel and was enlarged on bail and his plea was recorded. The accused pleaded not guilty and claimed to be tried. Hence, the case was posted for evidence of the complainant.
4. The representative of complainant got examined himself as PW.1 by adopting the affidavit filed in lieu of his sworn statement as per the guidelines of Hon'ble Apex Court of India, in the case (2014) 5 SCC 590 (Indian Bank Association & Ors V/s. Union of India 5 C.C. No.9010 /2023 & Ors) and got marked 18 documents as Ex.P.1 to 18. Then the case was posted for recording the Statement of accused under Sec.313 of Cr.P.C. In the statement under section 313 of Cr.P.C, the accused has denied all the incriminating evidences appearing against him. The accused did not chose to lead any defence evidence. Then, the matter was posted for Arguments.
5. Heard the arguments of the advocate for the complainant. Perused the records.
6. The following points that arise for my consideration:
1. Whether the complainant proves that the cheque bearing No.000039 for a sum of Rs.3,40,070/-, dated: 21/12/2022 drawn on Bank of Baroda, Konanakunte Branch, Bengaluru issued by the accused has been dishonored on the ground of 'Payment stopped by Drawer' and the accused even after receiving the intimation regarding the dishonor of cheque failed to pay the cheque amount within the stipulated pe-
riod and thereby accused has committed an offence punishable under Sec.138 of N.I. Act?
2. What order?
6 C.C. No.9010 /20237 . My findings on the above points are as under
Point No.1: I n t he A f f i r m a t i v e Point No.2: As per final order, for the following:
R EAS O N S
8. Point No.1 : In view of the present legal position as held by our Hon'ble High Court as well as Apex Court of India in a catena of decisions as well as relevant provisions of the Act, this court has to see whether the complainant has complied all the requirements as contained in Sec.138 of NI Act so as to bring home the guilt of the accused for the alleged offence. If so, whether the accused is able to rebut the legal presumption available to the complainant under Sec.139 of the Act by adducing probable defense or not. However, it is held by the full bench of our Apex Court in the case of Rangappa Vs. Mohan reported in 2010 (1) DCR 706 that ;
7 C.C. No.9010 /2023
"The Statutory presumption mandated by sec.139 of the Act, does indeed include the existence of a legally enforceable debt or lia - bility. However, the presumption U/S 139 of the Act is in the nature of a rebuttable pre- sumption and it is open for the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested" .
9. Therefore, in view of the above decision once the cheque is admitted, the statutory presumption would au- tomatically fall in favour of the complainant that, the al- leged cheque was issued for the discharge of an existing legally enforceable debt or liability against the accused and the burden will shift on to the accused to rebut the same.
10. The learned counsel for the complainant has submitted the arguments contending that, the accused has admitted the cheque and his signature therein and also he has not adduced any probable defense evidence, so as to rebut the presumption available to the com- plainant. Therefore he prayed for conviction of the ac- 8 C.C. No.9010 /2023 cused. On the other hand, the counsel for the accused has argued that the accused is neither subscriber of any chit with the complainant company nor due for any money to the complainant company. Rather one of the friends of the accused by name Gaikwad was the mem- ber of the chit with the complainant company. From said Gaikwad the cheque in issue was illegally obtained by the complainant company to file this false complaint against the accused by creating false documents. There- fore, the accused is neither due for the cheque amount nor liable to pay the cheque amount. As such, the com- plaint is liable to be dismissed.
11. Now, on the basis of the materials available on record, it is required to examine whether the com- plainant has complied with the provisions of Section 138 of N.I Act to get cause of action to file this complaint. The complainant besides his oral testimony has relied on the documents at Ex.P2 to 7 in support of his contentions. 9 C.C. No.9010 /2023 Ex.P2 is the cheque alleged to have been issued by the accused, Ex.P.3 is the Return memo issued by the Banker of the accused with the "Payment stopped by drawer", Ex.P4 is the copy of legal notice issued by the complainant, Ex.P5 is the postal receipts for having sent the said notice to the accused, Ex.P6 and 7 are the postal track consignments. All these documents corrob- orate the version of the complainant in his complaint as well as affidavit in lieu of chief examination and more over these documents are not at all disputed by the ac- cused, except issuance of the cheque, which would be discussed in detail later. Thus, complainant with the help of Ex.P.2 to 7 has conveniently proved to have complied the provisions of Section 138 i.e. presentation of cheque within the statutory period for encashment, is- sue of legal notice within prescribed period to the Ac- cused and filing of complaint within limitation period as per section 142 of the Act.
10 C.C. No.9010 /2023
12. Regarding the service of notice, it is stated by the complainant that, the legal notice sent to both the ad- dresses of the accused through RPAD were duly served as per the Postal Track Consignments at Ex.P6 and 7. The accused has neither denied nor disputed Ex.P6 & 7. As such, there is no dispute with regard to service of statutory notice.
13. The second aspect of the case is whether the ac- cused has successfully rebutted the presumption avail- able in favour of the complainant with probable and con- vincing evidences? It is well settled principle of law that, once the cheque is admitted there will be a statutory pre- sumption in favour of the holder or holder in due course U/Ss 118 and 139 of the Act. However, as held by our Hon'ble Apex Court and the High Court in a catena of de- cisions, the presumptions under the said sections are in the nature of rebuttable presumptions and hence, the ac- cused can very well rebut the said presumptions by lead- 11 C.C. No.9010 /2023 ing reasonable and probable defence. Let us examine the same on the basis of the materials available on record.
14. It is the case of the complainant that the ac- cused is a subscriber of the Chit group No. 5E/LT/2019/Ticket No.37 for a chit value of Rs.5,00,000/- with monthly installments of Rs.12,500/- for a period of 40 months. The accused had participated in the Chit auction and declared as the prize bidder. He had auctioned the Chit and received the prize money of Rs.3,47,000/- from the complainant company by execut- ing necessary documents. Thereafter, he had became defaulter in payment of future Chit installments. As such, he was due for Rs.3,40,070/- in total. Thereafter, upon the demand notice issued by the complainant the accused had issued the cheque in issue at Ex.P2 towards discharge of the said liability.
12 C.C. No.9010 /2023
15. In support of the case of the complainant the au- thorized representative of the company was examined as PW1 and got marked the Chit subscription application as per Ex.P9, the Chit Agreement as per Ex.P10 and the Ledger account extract & subscriber report as per Ex.P.11 & 12 respectively. All these documents corrobo- rate the version of the complainant in his complaint as well as the affidavit in lieu of examination in chief. Though the accused subjected PW1 for cross-examina- tion nothing was elicited to discredit or disbelieve the above said documentary evidences.
16. The accused in the course of cross-examination of the PW1 neither denied nor disputed chit transaction with the complainant company . However, the defence counsel in the course of arguments denied alleged chit transaction with the complainant contending that the accused is not the subscriber of alleged chit. His friend one Gaikwad was the subscriber of chit with the com- 13 C.C. No.9010 /2023 plainant company through whom the complainant forcibly obtained the alleged cheque-Ex.P.2 and the sig- natures of the accused on said cheque and other docu- ments. In the light of this contention of defence counsel in the course of arguments, on perusal of Ex.P9 to 11, it appears very clear that the accused has signed the chit enrollment application-Ex.P.9 and also the chit agree- ment-Ex.P.10. In the course of cross-examination of the PW1 nothing was suggested or questioned as to said doc- uments and the signature of the accused therein. If at all the accused has not enrolled for the said chit and not entered into any such chit agreement, in the course of cross-examination of the PW1, he should have specifi- cally denied and disputed said documents and his signa- ture. But in the course of trial, the accused has not dis- puted any of those documents and his signatures therein, except saying that the accused could not read and write. If at all the accused could not read and write, how come he put his signatures on the cheque Ex.P.2, 14 C.C. No.9010 /2023 chit enrollment form-Ex.P.9 as well as the chit agreement Ex.P.10. There is no explanation for the same by the ac- cused . It is only in the course of arguments the defence counsel raises such an untenable defence. Therefore, this contention of the defence counsel only in the course of arguments holds no water.
17. Apart from the above, it is pertinent to note that as per the version of the complainant, when the accused became defaulter in payment of future chit installments, the complainant had issued demand notice as per Ex.P.13 and 14 to the accused demanding for payment of the outstanding due of Rs.3,40,070/-. As per the postal track consignment at Ex.P.18, the said demand notice was duly served on the accused . If so, if at all the above discussed defences of the accused are true, he could have given a reply to the said demand notice denying the claim of the complainant in the said notice and taking all the said defences. But for the reasons best known to 15 C.C. No.9010 /2023 him, the accused has not given any reply to the said de- mand notice. Similarly, after dishonour of the alleged cheque, the complainant also issued statutory notice u/s.138(b) of N.I.Act as per Ex.P.4, which was duly served as per the postal track consignments at Ex.P.6 and 7. If at all, the contention or the defence of the ac- cused in the course of cross-examination of the PW 1 or defence arguments is true, the accused could have given a reply to the statutory notice taking all such contentions or defences, which would have been the primary piece of evidence in support of his defences. But, the accused has not done so. Therefore, the contention of the ac- cused is not believable. Rather an inference in favour of the version of the complainant could be drawn. For this proposition this court is fortified by the decision of Hon'ble Apex court in the case of Rangappa Vs. Mo- han , reported in 2010 (1) DCR 706, wherein it was held as follows :
16 C.C. No.9010 /2023
'Non-replying to the statutory notice would create serious doubt in the defence of the accused'
18. Further, it is the defence of the accused that said cheque Ex.P.2 was obtained by the complainant from his friend. But he has not stated anything as to why said cheque was with his friend. Similarly, he has not ex- plained anything as to why said cheque was given to the complainant by his friend. More so, he has not stated who is said friend. That apart he has not stated as to why he has not taken any action against his said friend or the complainant for misusing his cheque. In the ab- sence of any such materials it is highly impossible to ac- cept this contention of the accused.
19. Further, the accused in the course of cross-exam- ination of the PW 1 by way of suggestion contended that though accused has paid the entire chit amount, the complainant illegally misused said cheque issued as se- curity. But as already stated herein above he has denied 17 C.C. No.9010 /2023 subscription of said chit. If so, why he made entire pay- ment. There is no meaning in this contention of the ac- cused. More over, though he has contended so, he has neither adduced any evidences nor produced any materi- als to show any payment made towards alleged chit.
20. On the contrary, the PW 1 in his cross-examina- tion categorically deposed about the payment of chit prize money to the accused by way of transfer to his ac- count and also adjustment of some money out of it to- wards the balance of chit installments. More so, said facts were also reflected in the ledger account extract of the accused at Ex.P.11 and the subscriber report Ex.P.12, which clearly show the outstanding balance of Rs.3,40,070/- which is equivalent to the cheque amount. Therefore, in the entire evidence of PW 1 and cross-ex- amination there appear no grounds to disbelieve the case of the complainant. Therefore, it appears more probable that the accused might have issued alleged cheque 18 C.C. No.9010 /2023 Ex.P.2 towards the discharge of the outstanding dues under the alleged chit.
21. In view of all the above discussed facts and circumstances, the version of the complainant that the alleged cheque-Ex.P.2 was issued by the accused to- wards payment of due of Rs.3,40,070/- to the company of the complainant appears more probable than the de- fense of the accused that the alleged cheque-Ex.P.2 was given to the complainant as a security towards the pay- ment of future Chit installments.
22. In view of all the above discussion, it can be concluded that the complainant has established through cogent and convincing evidence, the fact of issuance of the cheque for discharge of legally enforceable debt, which is dishonor for want of sufficient funds, issuance of legal notice within stipulated time, failure on the part of Accused to repay the amount within stipulated period. On the other hand, the accused has failed to rebutt the presumption available to the complainant through prob- 19 C.C. No.9010 /2023 able evidences, that would preponderate upon the evi- dence lead by the complainant. Therefore, the Accused is held to have committed an offence punishable under sec. 138 of N.I. Act. Accordingly Point No.1 is answered in the Affirmative.
23. POINT NO.2:- In view of my answer to Point No.1, I proceed to pass the following:-
ORDER Acting u/s 255(2) of Cr.P.C. the accused is hereby held guilty of the offence P/U/S 138 of N.I.Act and sentenced to fine of Rs.3,95,000/- In default of payment of fine the accused shall undergo simple imprisonment for 6 months.
Acting u/s 357(1)(b) of Cr.P.C it is hereby directed to pay Rs.3,90,000/- to the complainant towards the compensation, and the remaining fine amount of Rs.5,000/ shall be paid to the State.
(Dictated to the stenographer directly on computer, corrected and then pronounced in open court by me on this the 2 nd day of February, 2024) (K.N. SHIVAKUMAR) XXVII A.C.M.M., Bengaluru.
ANNEXURE 20 C.C. No.9010 /2023 Witnesses examined on behalf of the complainant:
PW1 : JAGADISH. T.L Documents marked on behalf of the complainant Ex.P1 : Authorization Letter Ex.P2 : Cheque Ex.P2(a) : Signature of the accused Ex.P3 : Bank return memo Ex.P4 : Office copy of legal notice Ex.P5 : Postal receipt Ex.P6&7 : Postal acknowledgements Ex.P8 : Certificate u/s.65B of Indian Evidence Act Ex.P.9 : Enrollment application Ex.P10 : Chit Agreement Ex.P11 : Ledger extract Ex.P12 : Subscriber report Ex.P13&14 : Demand notices Ex.P15&16 : postal receipts Ex.P.17 : postal envelope Ex.P.18 : Track Consignment report Witnesses examined on behalf of the accused:
-Nil-
Documents marked on behalf of the accused:21 C.C. No.9010 /2023
-Nil-
XXVII A.C.M.M Bengaluru.22 C.C. No.9010 /2023
02/02/2024 Comp: Sri.SK Adv., Accd: Sri. TSG Adv., For Judgment.
(Judgment pronounced in open court vide a separate judgment) OR DE R Acting u/s 255(2) of Cr.P.C. the accused is hereby held guilty of the offence P/U/S 138 of 23 C.C. No.9010 /2023 N.I.Act and sentenced to fine of Rs.3,95,000/- In default of payment of fine the accused shall undergo simple imprisonment for 6 months.
Acting u/s 357(1)(b) of Cr.P.C it is hereby directed to pay Rs.3,90,000/- to the complainant towards the compensation, and the remaining fine amount of Rs.5,000/ shall be paid to the State.
(K.N. SHIVAKUMAR) XXVII A.C.M.M., Bengaluru.