Bangalore District Court
Bengaluru - 560 025 vs Sri. K. Ramamanohar Reddy on 22 September, 2018
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 22nd DAY OF SEPTEMBER, 2018
PRESENT
Sri. Shridhar Gopalakrishna Bhat, LL.B
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.52076/2018
Bajaj Finance Ltd.,
8th Floor, Prestige Tower, Residency Road,
COMPLAINANT Bengaluru - 560 025.
Reptd by its Assistant Manager -
Mr. Rajesh G.E
Vishesh Motors
Reptd by its Proprietor -
ACCUSED Sri. K. Ramamanohar Reddy
Bengaluru Road, Double Road, Chinthamani,
Near KSRTC Depot, Bengaluru, Chintamani
563 125
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused is convicted
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU
2 C.C. No.52076/2018
JUDGMENT
The complainant company has approached this court through its Assistant Manager-cum-Special Power of Attorney Holder with the complaint under Sec.200 Cr.PC against the accused for the offence punishable under Section 25 of the Payment and Settlement Systems Act, 2007 (herein after referred as P.S.S Act) r/w Sec.138 of Negotiable Instruments Act, 1881. (herein after referred as N.I. Act)
2. The case of the complainant is that, the complainant company is a registered company under the Companies Act. At the request and representation of the accused, the complainant company granted personal small business loan of Rs.16,32,000/- to the accused on execution of Agreement bearing No.5H6PSB24779336 agreeing to abide by terms and conditions of the loan agreement. The accused had agreed to repay the said loan amount together with interest in 12 equated monthly installment at Rs.1,50,789/- to the complainant company. Towards repayment of the installment amount, the accused had opted for ECS mandate and accordingly issued standing instruction to his banker - Karnataka Bank Ltd., to debit a sum of Rs.1,50,789/- towards monthly installment. It is 3 C.C. No.52076/2018 further case of the complainant that the electronic fund transfer initiated by the accused in respect of the monthly installment dtd.2107.2017 for Rs.1,50,789/- was returned dishonoured with ECS memo for the reason "stop payment by the drawer A/C on 21.07.2017". The said intimation was received by the complainant by M/s.Tech Process Solutions Ltd., which is duly registered with RBI for Electronic Clearing Service Debit Clearing as a user institution.
3. It is further case of the complainant that after receiving the information, the complainant company got issued legal notice dtd.31.07.2017 to the correct address given by the accused in the loan application by RPAD demanding the payment of the Electronic Fund Transfer within 15 days from the date of receipt of the said notice. Though the said notice was duly served on the accused on 02.08.2017, the accused neither complied with the demand made in the said notice nor issued any reply and thereby intentionally committed the offence punishable U/s.25 of Payment and Settlement Systems Act, 2007. Accordingly on these grounds, the complainant has prayed for punishment to the accused and for grant of compensation in its favour in accordance with law in the interest of justice and equity.
4. After filing of the complaint, cognizance was taken for the offence punishable U/s.25 of Payment and 4 C.C. No.52076/2018 Settlement Systems Act, 2007 r/w Sec.138 of N.I. Act. Sworn statement of the representative of the complainant was recorded. This court was satisfied as to prima facie case made out by the complainant for issuance of the summons and accordingly Criminal Case was registered against the accused for the offence punishable U/s.25 of Payment and Settlement Systems Act, 2007 r/w Sec.138 of N.I. Act and summons was ordered to be issued.
5. In pursuance of the summons issued by this court, the accused has put up his appearance through his counsel and enlarged on bail. Thereafter plea was recorded. The accused has denied the substance of accusation and claimed for trial.
6. In order to prove the case of the complainant, the representative of the complainant company is examined as CW.1 and got marked as many as five documents as per Ex.P1 to P5 and closed his evidence. The accused has not opted to file application U/s.145(2) of N.I. Act and as such in view of the decision of the Hon'ble Apex Court reported in (2014) 5 SCC 590 - Indian Bank Association and others Vs Union of India and others - [W.P. (civil) No.18/2013] the matter was posted for defence evidence. In spite of the opportunities given, the accused has not opted to place any 5 C.C. No.52076/2018 evidence on his behalf and also not opted to appear before the court to proceed with the matter and as such defence evidence is taken as nil and thereby evidence of the parties concluded.
7. Heard the argument of the learned counsel for the complainant. Since the accused remained absent and since there was no representation for accused, the argument on behalf of the accused is taken as nil.
8. On perusal of the entire material available on file and hearing the arguments of the learned counsel for the complainant, the points that would arise for consideration are:-
1) Whether the complainant proves that the accused had issued cheque in question in discharge of the legally recoverable debt and committed the offence punishable U/s.25 of Payment and Settlement Systems Act, 2007 r/w Sec.138 of N.I. Act?
2) What Order?
9. The above points are answered as under;
Point No.1 : In affirmative,
Point No.2 : As per the final order,
for the following.......
6 C.C. No.52076/2018
REASONS
10. Point No. 1 : As already stated in support of the claim of the complainant company, the representative of the complainant company in his sworn statement reiterated the complaint averments in toto which itself is treated as examination-in-chief in view of the decision of the Hon'ble Apex Court reported in (2014) 5 SCC 590 - Indian Bank Association and others Vs Union of India and others - [W.P. (civil) No.18/2013]. In addition to that, the representative of the complainant has produced notarized copy of the power of attorney, ECS return memo dtd.21.07.2017 issued by Tech Process, office copy of the statutory notice dtd.31.07.2017, two postal acknowledgements for having service of the notice on the accused as per Ex.P1 to P5 respectively. The contents of Ex.P1 to P5 are analyzed, they clearly support the version of the complainant. The contents of Ex.P2 i.e ECS return memo reveal that the accused had issued ECS mandate to his banker - Karnataka Bank Ltd., for Rs.1,50,789/- which is to be credited in favour of he complainant company in ICICI Bank Ltd., and the same was dishonoured for the reason "stop payment by the drawer on 21.07.2017" which was communicated to the complainant by M/s.Tech Process Solutions Ltd as put up by the 7 C.C. No.52076/2018 complainant. Further, from the contents of Ex.P3 to P5, it is clear that after dishonour of ECS mandate as found in Ex.P2, the complainant company got issued legal notice dtd.31.07.2017 as per Ex.P3 through registered post A.D to the addresses of the accused intimating the dishonour of ECS mandate and demanding the payment of the said amount within 15 days. It is clear from Ex.P4 and P5 that the said notice was duly served on the accused on 02.08.2017 on both addresses. The complainant presented the present complaint before this court on 07.09.2017 i.e after lapse of 15 days from the date of service of notice and within 30 days thereafter as required under law. Hence on perusal of these aspects, it is clear that the complainant had presented the ECS mandate in question within its validity and got issued statutory notice to the accused within statutory time and filed the complaint within the prescribed period as provided U/s.25 of Payment and Settlement Systems Act, 2007.
11. Admittedly in spite of issuance of notice, the accused had not complied with the demand made in the said notice. Therefore, on going through these documents their remains no doubt that the complainant had complied with all the technical requirements of Sec.25 of Payment and Settlement Systems Act, 2007 in filing the present 8 C.C. No.52076/2018 complaint. Though the accused has put up his appearance through his counsel and denied the substance of acquisition, the accused has not opted to dispute the case of the complainant in any angle. As already stated the accused has not opted to cross-examine CW.1 and thereby the evidence of CW.1 remained unchallenged. The case of the complainant remained unchallenged. There are no grounds to disbelieve the case of the complainant as to existence of legally recoverable debt and also issuance of ECS mandate by the accused towards discharge of equated monthly installment of Rs.1,50,789/- in favour of the complainant as put up by the complainant. The statutory presumption provided under Sec.25 (2) of Payment and Settlement Systems Act, 2007 is also in favour of the complainant. Hence, it is clear that the complainant has proved all the necessary ingredients of Sec.25 (1) of Payment and Settlement Systems Act, 2007 and thereby the commission of the offence punishable under the said section as contended. Absolutely there are no reasons to disbelieve the case of the complainant. Therefore on the basis of the material available on file, it is crystal clear that the complainant has successfully proved the necessary ingredients of the offence punishable under Sec.25 of Payment and Settlement Systems Act, 2007 and thereby the 9 C.C. No.52076/2018 commission of the offence by the accused as contended. Hence, point No.1 is required to be answered in affirmative and answered accordingly.
12. Point No.2: As discussed in connection with Point No.1, the complainant has proved his case as to commission of the offence punishable under Sec.25 (1) of Payment and Settlement Systems Act, 2007 by the accused. The punishment prescribed for the said offence is imprisonment for a period which may extent to two years or with fine which may extend to twice the amount of the Electronic Fund Transfer or with both. Considering the facts and circumstances of this case, nature, year of the transaction, nature of the instrument involved, cost of litigation etc., this court is of the considered view that it is just and desirable to impose fine of Rs.1,95,000/- and out of the said amount a sum of Rs.5,000/- has to be remitted to the State and the remaining amount of Rs.1,90,000/- is to be given to the complainant as compensation as provided U/s.357(1) of Cr.PC and accordingly Point No.2 is answered in affirmative and proceed to pass the following......
10 C.C. No.52076/2018ORDER Acting under Section 255(2) of Cr.PC accused is hereby convicted for the offence punishable under Sec.25 (1) of Payment and Settlement Systems Act, 2007. The accused shall pay a fine of Rs.1,95,000/- for the offence punishable under Sec.25 (1) of Payment and Settlement Systems Act, 2007. In default of payment of fine amount, the accused shall under go simple imprisonment for a period of five months.
By exercising the power conferred U/s.357(1) of Cr.PC out of total fine amount of Rs.1,95,000/-, a sum of Rs.1,90,000/- is ordered to be paid to the complainant as compensation and Rs.5,000/- is ordered to be remitted to the State.
The bail bond of the accused stands cancelled. The cash security is deposited by the accused is ordered to be continued till expiry of the appeal period.
Supply the free copy of this judgment to the accused forth with.
(Typed to my dictation by the stenographer, directly on computer, corrected, signed and then pronounced by me in the open court on this the 22nd day of September, 2018) (SHRIDHAR GOPALAKRISHNA BHAT) XIV ADDL. C.M.M., BENGALURU 11 C.C. No.52076/2018 ANNEXURE Witnesses examined for the complainant:
CW.1 : Sri. Rajesh G.E
Witnesses examined for the defence:
NIL
Documents marked for the complainant:
Ex.P1 : Notarized copy of Power of Attorney
Ex.P2 : ECS return memo
Ex.P3 : Legal Notice
Ex.P4 and P5 : Two Postal acknowledgements
Documents marked for the defence:
NIL
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU