Bangalore District Court
Chinmaya Mission Hospital vs Mr.Ananda Munda on 2 July, 2019
IN THE COURT OF LVII ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL UNIT, BENGALURU
-: PRESENT :-
PADMA PRASAD, BA (Law), LLB.
LVII ADDL. CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED THIS THE 2ND DAY OF JULY, 2019.
C.C.No.54155/2017
COMPLAINANT : Chinmaya Mission Hospital,
Indiranagar
Bengaluru - 560 038
Represented by its authorized
Signatory L.V.Nagrajan
.Vs.
ACCUSED : Mr.Ananda Munda
Shalam House,
Papanna Layout,
T.C.Palya, K.R.Puram,
Bengaluru - 560 036.
Also at:
No.729
A Block
19th Cross, 16th Main
Shakaranagar
Bengaluru - 560092
Also at:
2 C.C.No.51963/2018
G4S Security Services India Pvt. Ltd.,
Working as Security Guard and having
Office at: 507, 1st Stage, IN VIEW
Block, Outer Ring Road, Near-Outer
Ring Road, H B R Layout, Bengaluru,
Karnataka - 560032.
***
JUDGMENT
The complainant filed this complaint against the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
2. The complaint case in nutshell is that the complainant is a charitable hospital established in the year 1970. On 26.06.2016 the accused had admitted his wife Mrs.Amala Ananda for delivery. At the time of admission the accused has paid advance sum of Rs.20,000/- to the complainant. The accused's wife Mrs.Amala Ananda delivered a baby girl on 26.06.2016. The delivery was by Lower Segment Cesarean Section. The baby was thereafter diagnosed with acute bronchiolities, a respiratory disease. The baby was therefore immediately admitted to the NICU for treatment. On 06.07.2016 the baby got recovered and informed that accused for discharge and a discharge bill was raised for Rs.2,11,049/- after deducting the advance amount and discounted price of Rs7,500/-. The accused did not pay the said amount and left the baby with the complainant promising to return the said amount. After complainant's request the accused towards the discharge of said debt has issued a cheque 3 C.C.No.51963/2018 bearing No.678151 dtd:16.08.2016 for Rs.2,11,049/, drawn on Corporation Bank, Sahakaranagar Branch, Bengaluru. When the complainant presented the said cheque for encashment, that has been dishonoured as per bank memo dtd:24.10.2016 stating "Drawer's Signature differs". Thereafter, the complainant issued a legal notice to the accused on 22.11.2016. The said notice has been served on to the accused on 23.11.2016. The accused inspite of service of notice has failed to comply with the notice. Hence, filed this complaint.
3. After filing the complaint, sworn statement of the complainant has been recorded and on perusing the materials on record i.e., cheque, bank endorsement, legal notice and documents for having been caused the notice to the accused, the court has been taken the cognizance of offence and issued summons to the accused.
4. In response to the summons, the accused appeared through his counsel and he was on court bail. Plea has been recorded; accused pleaded not guilty and claimed to be tried.
5. In this case the complainant filed sworn statement affidavit. As the accused not chosen to cross-examine the complainant inspite of opportunities and also remained absent, hence taken as no cross of complainant as well as no defense evidence. However the complainant got marked documents at Ex.P.1 to 8.
4 C.C.No.51963/20186. On the basis of above, the point for consideration is that;
"Whether the complainant has proved that the accused has committed the offence punishable under Sec.138 of Negotiable Instruments Act?"
7. Heard the arguments and perused the materials on record. On that basis my finding on the above point is in the "Affirmative" for the following;
REASONS
8. The complaint case in nutshell is that the complainant is a charitable hospital established in the year 1970. On 26.06.2016 the accused had admitted his wife Mrs.Amala Ananda for delivery. At the time of admission the accused has paid advance sum of Rs.20,000/- to the complainant. The accused's wife Mrs.Amala Ananda delivered a baby girl on 26.06.2016. The delivery was by Lower Segment Cesarean Section. The baby was thereafter diagnosed with acute bronchiolities, a respiratory disease. The baby was therefore immediately admitted to the NICU for treatment. On 06.07.2016 the baby got recovered and informed that accused for discharge and a discharge bill was raised for Rs.2,11,049/- after deducting the advance amount and discounted price of Rs7,500/-. The accused did not pay the said amount and left the baby with the complainant promising to return the said amount. After complainant's request the accused towards the discharge of said debt has issued a cheque 5 C.C.No.51963/2018 bearing No.678151 dtd:16.08.2016 for Rs.2,11,049/, drawn on Corporation Bank, Sahakaranagar Branch, Bengaluru. When the complainant presented the said cheque for encashment, that has been dishonoured as per bank memo dtd:24.10.2016 stating "Drawer's Signature differs". Thereafter, the complainant issued a legal notice to the accused on 22.11.2016. The said notice has been served on to the accused on 23.11.2016. The accused inspite of service of notice has failed to comply with the notice. Hence, filed this complaint.
9. The complainant in support of its case got examined its Chief Executive and Authorized Signatory as P.W.1 and one more witness as P.W.2 and got marked documents at Ex.P.1 to 8. The Ex.P.1 is the cheque, Ex.P.2 is the Bank Return Memo, Ex.P.3 is the O/c of the legal notice, Ex.P.4 & 5 are the postal receipts, Ex.P.6 is the postal track, Ex.P.7 is the Authorization letter, Ex.P.8 is the Discharge bill. In view of the decisions reported in; (2014) 5 SCC 590. (Indian Bank Association and others .Vs. Union of India and others) the court even can consider the photostat copies of the document produced by the complainant till that has been disputed but in this case the complainant has produced and marked all the relevant documents. In this case the complainant produced original documents. The complainant presented the cheques in time for collection and issued legal notice also in time and the complaint is well within time. These materials on record sufficient to draw presumption under Sec.139 of 6 C.C.No.51963/2018 N.I.Act in favour of the complainant. There is no material on record to disbelieve the complaint case. In view of the principle laid down by the Supreme Court in a decision reported in; (2014) 5 SCC 590 the court can accept the photostat copy of the document unless that has been disputed. All the aforesaid documents sufficiently prove the complaint case.
10. It is relevant to note that in view of the principle laid down by the aforesaid decision, when the plea has been recorded the accused must file application under Sec.145(2) of N.I.Act, praying the court to permit the accused to cross-examine the complainant. Inspite of affording opportunities the accused not chosen to cross-examine the complainant, hence, there is unchallenged testimony of the complainant as well as documents. In spite of several opportunities the accused not chosen to appear before the court to lead any defense evidence. The accused though appeared not diligent in defending the case. Hence, there is no material on record whatsoever to disbelieve the complaint case. Subsequently the accused remained absent hence, the counsel for the complainant also submitted to pronounce the judgment on the basis of principle laid down by the Hon'ble Supreme Court in the aforesaid case.
11. In this case, the complainant has claimed compensation. As per Section 357 of Criminal Procedure Code and as per the ruling reported in; 2001 Cri.L.J. 950 (SC), (Pankajbai Nagibai Patel 7 C.C.No.51963/2018 V/s State of Gujarath), the court can award compensation and there were no limits for the same. As such, the court has to consider how much compensation could be awarded in this case. As per Section 80 of Negotiable Instruments Act, the interest at 18% P.A. can be granted when there is no agreed rate of interest. As per the proved facts of the case, the accused has issued cheque towards the legally enforceable debt, the accused has issued a cheque is dated 16.08.2016 and thus, the accused has to pay interest on the cheque amount from the date of cheques and so, the accused has to pay interest for about 2 years, 10 months from the cheque at Ex.P.1 till this date. If the interest is calculated at 18% P.A. to the cheques amount for the above period, certainly, the complainant is entitled for the suitable compensation to the cheque amount as per Section 80 of Negotiable Instruments Act. The cheque amount in this case is Rs.2,11,049/- and if the interest is calculated for 34 months, the accused shall pay the interest to the complainant at 18% P.A. that amounts to Rs.1,07,635/-. The case is pending nearly about 34 months as such if the cost of Rs.500/- is added to the compensation, it will comes to Rs.3,19,184/- (Cheque amount is Rs.2,11,049/-, interest is Rs.1,07,635/- and cost Rs.500/-). Hence, this court is of the humble opinion that in all the complainant is entitled for compensation amount of Rs.3,19,184/-. Further as per the ruling reported in 2000 Cri.L.J 1793(b) SC - (State of Karnataka V/s Krishnappa) wherein it is held that while imposing sentence, the courts are expected to properly operate sentence system, it should 8 C.C.No.51963/2018 be impose such sentence for code offence which serve as detention of commission of like offences by others - Socio economic status, prestige, race, caste or creed of accused or victim are irrelevant considerations in sentencing policy. Hence, in this case also, if the accused is punished with simple imprisonment for one year and pay compensation to the complainant. Anyhow the object of Sec.138 of N.I.Act is to have accountability in the business transaction and the intention of the complainant is only to get his money back. The complainant certainly not interested in sentencing the accused for any imprisonment. Further, the offence is punishable with imprisonment or fine. Anyhow the object of Sec.138 of N.I.Act is to have accountability in the business transaction and the intention of the complainant is only to get his money back. The complainant certainly not interested in sentencing the accused for any imprisonment. Further, the offence is punishable with imprisonment or fine. Hence, in this case after awarding the compensation certainly imposing of fine to the accused is sufficient sentence.
12. As per the ruling reported in 2002 Cri.L.L. 1003, SC (Suginthi Suresh Kumar V/s Jagadishan). Where in it is held at page no.1005, at para 5 that:
"In the said decision this court reminded all concerned that it is well to remember the emphasis laid on the need for making liberal use of Section 357(3) of the Code. This was observed by reference to a decisions of this Court in 9 C.C.No.51963/2018 1988 (4) SCC 551 Hari Singh v. Sukhbir Singh. In the said decision this court held as follows:
"The quantum of compensation may be determined by taking into account the nature of crime, the justness of the claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also very depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by installments, may also be given. The court may enforce the order by imposing sentence in default."
13. In view of the aforesaid precedent of Hon'ble Apex Court, if the accused is ordered to further imprisonment of a year in default to pay the compensation will make the ends of justice. Accordingly I answer the above point in "Affirmative". In the result, following;
ORDER Acting under Section 255(2) of Cr.P.C., the accused is hereby convicted for the offence punishable under Sec.138 of N.I.Act and sentenced him to pay a fine of Rs.500/-. In default to pay the fine amount the accused shall undergo simple imprisonment for 3 months.
Acting under Section 357 of Cr.P.C., the compensation is awarded and the accused shall pay compensation of Rs.3,19,184/- to the complainant. In default to pay compensation, the accused shall undergo simple imprisonment of a period of 1 year.
10 C.C.No.51963/2018Office to furnish free copy of this judgment to the accused forthwith.
(Dictated to the Stenographer, transcript thereof is corrected and then pronounced by me in the open court on this the 2nd day of July, 2019) (PADMA PRASAD), LVII ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Sri.L.V.Nagarajan P.W.2 : Sri.Ravi Kiran K. s
2. Documents marked on behalf of complainant:
Ex.P.1 : Original cheque
Ex.P.1(a) : Signature of the accused
Ex.P.2 : Bank Return Memo
Ex.P.3 : O/c of the legal notice
Ex.P.4 & : Postal Receipt
Ex.P.5
Ex.P.6 : Track copy
Ex.P.7 : Authorization letter
Ex.P.8 : Discharge bill
3. Witnesses examined on behalf of Accused:
- Nil -
4. Documents marked on behalf of Accused:
- Nil -
(PADMA PRASAD)
LVII ACMM, BENGALURU.