Bangalore District Court
Against The Accused For The Offence vs Through Rtgs Pertain To Corporation ... on 4 May, 2018
1 CC.22420/2016 (J)
IN THE COURT OF THE XV ADDL CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY.
Dated this the 04th day of May-2018
Present: Subhash.B.Hosakalle.
B.Com.,LL.B (Spl)
XV Addl.C.M.M., Bangalore.
Judgment U/s.355 of the Cr.P.C. 1973.
1.Sl.No.of the case CC.No.22420/2016
2.Name of the Complainant: Mr.V.Venkataraju,
Aged about 37 years,
S/o.Late.Venkataiah,
No.16, 80 feet Main Road,
R.T.Nagar,
Bangalore - 560 032.
3.Name of the accused: Mr.Aziz Khan,
Aged about 45 years,
Father's Name Not Known,
Residing at No.8/1,
8th 'A' Cross, Kempaiah Block,
J.C.Nagar,
Bangalore - 560 006.
4.The offence complained of U/s.138 of Negotiable
: Instruments 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 04th day of May-2018.
***
2 CC.22420/2016 (J)
This complaint is filed U/Sec.200 of Cr.P.C., by the
complainant against the accused for the offence
punishable U/Sec.138 of the Negotiable Instruments Act,
1881.
The facts in brief is as under.
2. That the complainant and accused are known to
each other from many years. The accused has approached
the complainant and sought financial help for his cloth
business. Accordingly in the month of May-2013 the
complainant has advanced a loan of Rs.10,00,000/- to the
accused through RTGS pertain to Corporation Bank,
R.T.Nagar, Bengaluru. The accused has assured that he
would return the same within six months. But he failed to
do so.
3. That after expiry of six months the complainant
requested to the accused to clear liability. In response to
the request of the complainant the accused has issued a
post dated cheque bearing No.765533, dated 01.062016 for
Rs.5 lakhs drawn on ICICI Bank Ltd., branch R.T. Nagar,
P & T Colony, Bengaluru.
3 CC.22420/2016 (J)
4. The complainant has presented the said cheque
for encashment purpose through his Bankers by name
Corporation Bank, branch R.T.Nagar, Bengaluru, on
09.08.2016. It was dishonored with an endorsement of
'No.55 - Account Blocked Situation Covered In 2125'.
Thereafter the complainant has issued legal notice dated
18.08.2016 through registered post to the accused and he
received the same on 20.08.2016. Despite of the notice, the
accused failed to repay the cheque amount. Hence this
complaint.
5. After the institution of the complaint it has been
registered in PCR No.10387/2016 and took cognizance of
the offence.. The sworn statement of the complainant has
been recorded and on the basis of sworn statement and
other materials on hand the criminal case has been
registered against the accused and issued summons to
him. In response to the summons the accused put his
appearance through his learned counsel and got enlarged
on bail. The prosecution papers were supplied to the
4 CC.22420/2016 (J)
accused and his plea was recorded. Accused has denied
the plea and claimed for trial.
6 During trial the complainant has been examined
as PW.1 and got marked Ex.P.1 to Ex.P.6. After closer of
the evidence of the complainant the 313 statement of the
accused has been recorded. The defence is one total denial.
The accused has not produced the defence evidence.
7. Heard the argument of both parties, perused the
materials and the following points would arise for my
consideration.
1. Whether the complainant proves that
the accused towards the discharge of
legally enforceable debt has issued
the cheque for a sum of
Rs.10,00,000/- and on its
presentation for encashment purpose
it was dishonored with an
endorsement of "No.55 - Account
Blocked Situation Covered In 2125"
and thereby the accused has
committed an offence punishable
U/Sec.138 of N.I. Act, 1881 ?
5 CC.22420/2016 (J)
2. What order?
8. My answers on the above points for
consideration are as under.
Point No.1 : In the Affirmative
Point No.2 As per final order for the following:-
REASONS
9. Point No.1:-The complainant has been examined
as PW-1 and got marked the Ex.P.1 to P.6. The PW-1 has
filed his affidavit on oath as examination-in-chief and it is
nothing but verbatim of the complaint. The PW-1 has got
marked Ex.P.1 to P.6. As already it has been stated that
the 313 statement of the accused has been recorded, but
he did not produce his defence evidence. It is necessary to
mention that there is no mandate on part of the accused to
enter into the witness box to produce his defence evidence.
On the other hand he is at liberty to utilize the materials
placed on record by the complainant as his defence
evidence.
6 CC.22420/2016 (J)
10. I have gone through the Ex.P.1 to P.6. The
Ex.P.1 is the cheque dated 01.06.2016 and Ex.P.1 is the
signature of the accused on the cheque, Ex.P.2 is the Bank
endorsement dated 09.08.2016, Ex.P.3 is the office copy of
the legal notice dated 18.08.2016, Ex.P.4 is the postal
receipt, Ex.P.5 is the Tracking Report issued by the Postal
department informing to the sender of the legal notice
regarding delivery of item on 20.08.2016 and Ex.P.6 is the
Bank account statement of the complainant issued by the
Corporation Bank, Branch R.T.Nagar, Bengaluru, dated
13.05.2016.
11. On perusal of the Ex.P.1 to P.6 which disclose
that the complainant has presented the cheque for
encashment purpose within statutory period and it further
disclose that within 30 days the complainant has issued
legal notice to the accused and that was duly served on the
accused on 20.08.2016. The service of legal notice on the
accused has proved by Ex.P.5 Tracking Reports produced
by the complainant. Further the order-sheet dated
04.10.2016 disclose that within statutory limit of time the
7 CC.22420/2016 (J)
complainant has presented this complaint. Thus, the
above said events shows that the complainant has
complied the provisions of Section 138 and 142 of the
N.I.Act.
12. The learned counsel appearing for the
complainant vehemently submitted in his argument that
the complainant has paid Rs.10 lakhs to the accused
through RTGS. He further submitted in his argument that
the accused towards the discharge of debt in part has
issued the cheque for a sum of Rs.5 lakhs. He also
submitted that when the accused was examined U/s.313
of Cr.P.C., he has answered to question No.2 in Affirmative
manner. By placing reliance upon the said answer the said
learned counsel for the complainant submitted in his
argument that accused has admitted regarding receipt of
Rs.10 lakhs from the complainant through RTGS. He
further submitted in his argument that the statutory notice
issued by the complainant has been duly served on the
accused. He further submitted that the complainant is
entitled for interest @ 9% because the complainant has
8 CC.22420/2016 (J)
transferred Rs.10 lakhs to the account of the accused
through RTGS process. In support of this line of argument
the learned counsel for the complainant has placed his
reliance upon the decision reported in AIR 2015 Supreme
Court 2579 - Mainuddin Abdul Sattar Shaikh V/s.Vijay
D.Salvi. "Negotiable Instruments ( 26 of 1881), Section 138
- dishonor of cheque - compensation - accused sentenced
to undergo simple imprisonment for a period of five months
- compensation awarded to the extent of twice the cheque
amount and simple interest thereon 9% per annum to the
complainant. With due respect I have gone through the
said decision.
13. Having regard to the point of argument
advanced by the learned counsel for the complainant, I
have gone through the pleading and evidence placed on
record by the complainant. Already it has been stated that
the accused has not produced his defence evidence. There
is no mandate on the part of the accused to produce his
defence evidence.
9 CC.22420/2016 (J)
14. The complainant has been examined as PW-1.
He has filed his affidavit on oath as examination-in-chief
and wherein he has been deposed as per the averments
made in the complaint. As already it has been stated that
the accused has not produced defence evidence. It is also
stated that there is no compulsory on part of the accused
to enter into the witness box to produce his defence
evidence.
15. The specific stand of the complainant is that he
has advanced a loan of Rs.10 lakhs to the accused through
RTGS from his Bank account to the account of the
accused. This stand of the complainant has been
unequivocally admitted by the accused. In this regard I
have extracted the relevant question and answer recorded
of accused when he was examined as per provision of
Section 313 of Cr.P.C. The relevant question and answer is
read thus:-
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vÀªÀÄUÉ ºÀt ¨ÉÃPÁVzÀÄ,Þ D ¥ÀæPÁgÀ ªÉÄà 2013 gÀ°è
Dgï.n.f.J¸ï ªÀÄÄSÁAvÀgÀ ¦ügÁå¢ EªÀgÀ PÀq¬ É ÄAzÀ vÀªÀÄä
SÁvÉUÉ 10 ®PÀë gÀÆ. dªÀiÁ DVgÀÄvÀz Û É JAzÀÄ ¸ÁQë
£ÀÄr¢gÀÄvÁÛg.É EzÀPÉÌ ¤ªÀÄä GvÀÛgÀªÉãÀÄ?
10 CC.22420/2016 (J)
GvÀÛgBÀ ¸Àj
16. In view of the admission made by the accused
the complainant has established the material fact that
there was a financial transaction between him and the
accused in respect of 10 lakhs. But it is pertinent to note
that the claim of the complainant is restricted Rs.5 lakhs.
The complainant filed this complaint based on the cheque
the Ex.P.1 for Rs.5 lakhs, dated 01.06.2016 and the
signature of the accused has been marked at Ex.P.1(a). As
per the provisions of Section 138 of the N.I.Act, the Drawer
of the a cheque is at liberty to issue a cheque in favour of
drawee of the cheque either towards payment of debt in full
or in part. Thus, from the facts and circumstances of the
case it can be gathered that the present accused might
have been issued the cheque Ex.P.1 in favour of the
complainant towards the repayment of debt in part. At
this juncture, I have gone through the cross-examination
of the PW-1. This witness in his cross-examination para
No.2 has been admitted that in the month of March-2014
the accused has issued cheque to him for Rs.5 lakhs and
11 CC.22420/2016 (J)
he got honored the same. On the basis of this piece of
evidence an inference can be drawn that the accused
already repaid half of the debt in favour of the
complainant. Thus, the complainant might have filed this
complaint towards the recovery balance debt of Rs.5 lakhs
from the accused. No doubt the PW-1 in his cross has
stated that he can produce his Bank account extract for a
period from January-2014 to April-2014. Despite of giving
sufficient opportunity to the complainant who failed to
produce the said extract for said period. This lacuna
would not cause any adversity on part of the complainant.
What circumstances were prohibited the accused to
produce his own Bank account extract to show that he
already paid questioned cheque amount through Bank
process. Therefore, non production of statement by the
complainant as stated in his cross would not come into the
help of the accused in any way.
17. Further on perusal of cross-examination of the
PW-1 what has stated that one Saiffulla Khan who is none
other than the brother of the accused has paid cheque
12 CC.22420/2016 (J)
dated 8.1.2014 for a sum of Rs.2,65,000/- in favour of the
complainant. The PW-1 in his further cross-examination
has been unequivocally stated that the said cheque had
been issued by Saiffulla Khan on behalf of the accused and
he got honored the said cheque for said sum. Thus, this
unequivocal admission given by the PW-1 undisputedly
proves that as against the instant cheque amount already
the complainant has received Rs.2,65,000/- from the
accused.
18. During further cross-examination the PW-1 has
stated that he has received cheque for a sum of Rs.2 lakhs
from one Saiffulla Khan on 17.01.2014. But it is important
to note that no evidence has been placed on record by the
accused to show that the said cheque for Rs.2 lakh also got
honored by the complainant towards the payment of
alleged cheque amount. Therefore, the said piece of
evidence would not come into the help of the accused to
say that as against the questioned cheque he has already
repaid cheque amount of Rs.4,65,000/-. But on the other
hand on careful analysis of evidence of the PW-1 as
13 CC.22420/2016 (J)
extracted herein above, it is evident that as against the
alleged amount mentioned in the alleged cheque the
present accused has repaid Rs.2,65,000/- in favour of the
complainant. Thus the amount already paid is required to
be adjusted while determination of the compensation
amount.
19. In view of the evidence narrated herein above
and the question and answer recorded under 313
Statement as extracted herein above, it is undisputedly
clear that, the accused has admitted regarding issue of
cheque marked at Ex.P.1 and his signature on it marked at
Ex.P.1(a). In view of such admission attracts the ratio laid
down by our Hon'ble Supreme Court of India in its decision
reported in 2011 (11) SCC - 441 - Rangappa
V/s.Sri.Mohan and SCC 2015 (8) Page No.378 -
T.Vasanthkumar V/s.Vijayakumari. In view of the
evidence placed on record, reasons assigned herein above
and the ratio laid down by our Hon'ble Supreme Court of
India in the top noted decisions, I am of the opinion that
the accused failed to rebut the statutory presumption as
14 CC.22420/2016 (J)
contemplated U/s.118(a) and 139 of the N.I.Act.
Accordingly, I am of the opinion that the accused has
issued the cheque in favour of the complainant towards the
discharge of legally enforceable debt. Hence, the accused
is found guilty for the offence punishable U/s.138 of the
N.I.Act.
20. Under the given facts and circumstances of the
case the complainant is not entitled for interest as claimed
by his learned counsel during his argument. Because,
already the complainant has received part payment as
against amount mentioned in the cheque from the brother
of accused. It is also observed that the amount of
Rs.2,65,000/- which had already paid to the complainant
has to be adjusted while determination of fine in the case
on hand. Thus, aforesaid reasons, the accused is found
guilty for the offence punishable U/s.138 of the N.I.Act.
Accordingly, I proceed to answer the Point No.1 in
Affirmative.
15 CC.22420/2016 (J)
21. Point No.2 : In view of the reasons assigned on
Point No.1, I proceed to pass the following:-
ORDER
As per the provisions of Sec.255(2) Cr.P.C. the accused is hereby Convicted for the offence punishable u/s.138 of NI Act, 1881. The accused shall liable to pay fine of Rs.2,35,000/- (Rupees Two Lakhs Thirty Five Thousand Only.) On deposit of fine amount the complainant is entitled for compensation of Rs.2,30,000/- (Rupees Two Lakhs Thirty Thousand only). The remaining amount of Rs.5,000/- is to be forfeited to the State.
In default of payment of the fine amount the accused shall undergo simple imprisonment for six months.
The Bail bond and the personal bond executed by the accused stands cancelled. Office to forfeit the cash surety of Rs.5,000/- to the State after the expiry of appeal period.
16 CC.22420/2016 (J) Copy 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 him, is verified and then pronounced by me in Open Court on this the 04th day of May- 2018.) (Subhash.B.Hosakalle) XV Addl. CMM., Bangalore.
ANNEXURE Witnesses examined for the Complainant:-
PW.1 V.Venkataraju.
Documents marked for the Complainant:-
Ex.P.1 Original cheque.
Ex.P.1(a) Signature of the accused.
Ex.P.2 Bank endorsement.
Ex.P.3 Legal Notice.
Ex.P.4 Postal receipts.
Ex.P.5 Article Tracking Report.
Ex.P.6 Bank Account Extract.
Witnesses examined For Defence:- Nil Documents marked for Defence:- Nil (Subhash.B.Hosakalle) XV Addl.CMM., Bangalore.
17 CC.22420/2016 (J) 04.05.2018 (Judgment Pronounced in the Open Court Vide Separate Order sheet ORDER As per the provisions of Sec.255(2) Cr.P.C. the accused is hereby Convicted for the offence punishable u/s.138 of NI Act, 1881. The accused shall liable to pay fine of Rs.2,35,000/- (Rupees Two Lakhs Thirty Five Thousand Only.) On deposit of fine amount the complainant is entitled for compensation of Rs.2,30,000/- (Rupees Two Lakhs Thirty Thousand only). The remaining amount of Rs.5,000/- is to be forfeited to the State.
In default of payment of the fine amount the accused shall undergo simple imprisonment for six months. 18 CC.22420/2016 (J) The Bail bond and the personal bond executed by the accused stands cancelled. Office to forfeit the cash surety of Rs.5,000/- to the State after the expiry of appeal period.
Copy of the judgment shall be furnished to the accused at free of cost.
(Subhash.B.Hosakalle) XV Addl.CMM., Bangalore.