Bangalore District Court
During 2006 Itself. According To ... vs Issued The Cheque In Question During ... on 4 February, 2015
IN THE COURT OF THE XLII ADDL.CHIEF
METROPOLITON MAGISTRATE, NRUPATHUNGA ROAD,
BANGALORE CITY
Dated this the 4th day of February 2015
PRESENT:
Smt. M. Latha Kumari., M.A., L..L.M
XLII A.C.C.M., Bangalore City.
C.C.NO.32121/2011
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
a. Sl.No. of the case : C.C.No.32121/2011
b. The date of commission
Of the offence : 17.10.2011 ( date of presentation
of the complaint)
c. Name of the Complainant : M/s Swarna Jewellers
Rep. by its Proprietor
B.V. Ravi Kumar
S/o Late B.G. Venkataswamy
Aged about 42 years
R/at No.42, 3rd Floor
Sai Deep Apartments
No.41, Govindappa Road
Basavanagudi, Bangalore-04.
d. Name of the Accused : T. Rajanna
Prop: M/s Sai Paultry
Breeding Farm Ihagalapura
Village, Rajanukunte Post
Bangalore-64.
And also at:
T. Rajanna
S/o Late Thimmarayppa
R/at House situated at
Madappanahalli Road
Rajanukunte
2 C.C.No.32121/2011
Hesaraghatta Hobli
Bangalore North Taluk.
e. The offence complained
of or proved : Complainant presented
private complaint against
accused for the offence
punishable under Section 138
of Negotiable Instruments Act.
f. Plea of the accused and
his examination : It is alleged by the complainant
that accused had issued a cheque
bearing No.528758, dated:
29.07.2011 for Rs.11,98,246/-
drawn on Vijaya Bank, Yelahanka
Branch, Bangalore, to discharge
his liability, when the said cheque
was presented to the bank for
encashment, it was dishonoured
with an endorsement 'OPENING
BALANCE INSUFFICIENT'
legal notice dated: 03.09.2011 was
sent to accused. Inspite of it
accused has not paid the cheque
amount and thereby he has
committed an offence punishable
under Section 138 of the
Negotiable Instruments Act. On
his examination, accused pleads
not guilty.
g. Final Order : Accused is convicted
h. Date of such order : 04.02.2015
REASONS FOR DECISION
While considering an offence under Section 138 of Negotiable
Instrument Act-1988, the only issue i.e., required to be
3 C.C.No.32121/2011
considered by the Court is whether ingredients of offence
enumerated in Section 138 of Negotiable Instrument Act have
been complied by complainant and if such ingredients have
been met, whether accused was able to rebut statutory
presumption contemplated under Section 139 of Negotiable
Instrument Act., Accused is not disputing that the cheque in
question belongs to him and also signature available on said
cheque Ex.P-1 is his signature. The defence by the accused is
that complainant collected some of his blank signed cheques
along with blank papers with a pretend of securing loan for
him in bank. Whereas admittedly accused had already availed
3.25 crores loan by concerned Vijaya Bank, somewhere during
the year 2007. When accused already availed such a huge
loan, there was no reason for him to issue signed blank cheque
to the complainant with a request to get loan sanctioned for
him from any bank. Accused not produced any documents to
show that he had issued the cheque in question to the
complainant during 2006 itself. According to complainant,
accused issued the cheque in question during March 2011. The
date available on the cheque is 29.07.2011. When accused
availed such a huge loan of Rs.3.25 crores from Vijaya Bank, it
is probable that, there was no need for him to approach the
complainant with a request to secure loan for him. Accused
further asserted that, after securing the loan of Rs.3.25 crores
he approached complainant with a request to return his cheque
and other documents and in spite of the same complainant not
at all returned his documents including his cheques and
4 C.C.No.32121/2011
manage to misuse one such cheque in this case. Prior to filing
of this complaint, complainant got issued legal notice to the
accused, intimating him the dishonour of cheque Ex.P-1, and
calling upon him to pay the cheque amount of Rs.11,98,246/-
the said notice is as per Ex.P-3. The complainant also
produced two postal acknowledgments as per Ex.P-4 and P-5
to show that, Ex.P-3 has been served on accused. Accused
admitted that the, address available in these two documents is
pertaining to him. Though accused contended that, Ex.P-3 has
not been served on him, he has not placed any material to
show that, address available on Ex.P-3 and P-4 are not his
address. Hence, it is crystal clear that, accused though very
much aware of the fact that, his cheque presented by the
complainant has been dishonoured and he is claiming
Rs.11,98.246/- under such cheque, failed to reply to the said
demand notice. According to him he has given stop payment
instructions to his bank authorities, since complainant failed to
return his cheque. Whereas Ex.P-1, came to be dishonoured
for want of funds and not as "account closed". The defence
taken by the accused appeared vague and baseless and thereby
accused failed to rebut the presumption available to
complainant. Accused by issuing the cheque Ex.P-1 to the
complainant herein, now cannot escape from the clutches of
law. All these circumstances only establishes that, accused not
at all approached the court with clean hands. By creating story
of "procuring loan through complainant", accused cannot get
rid-off his liability. Accordingly accused is convicted for the
5 C.C.No.32121/2011
offence punishable under Section 138 of Negotiable
Instruments Act and I proceed to pass the following order.
ORDER
Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable U/s.138 of Negotiable Instruments Act.
Further, the accused is sentenced to pay fine of Rs.12,20,000/-. Accused shall deposit fine of Rs.12,20,000/- within two months from today, in default to pay the fine amount, he shall under go simple imprisonment for a period of two months.
Out of the fine amount of Rs.12,20,000/-, Rs.12,00,000/- shall be paid to complainant by way of compensation.
The bail bonds of the accused stands cancelled.
Free copy of the judgment shall be supplied to the accused forthwith.
(Dictated to Stenographer, transcribed and computerized by his, corrected and then pronounced by me in the open court on this the 4th day of February 2015) (M. LATHA KUMARI) XLII Addl. Chief Metropolitan Magistrate, Bangalore.
6 C.C.No.32121/2011ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT:-
PW-1 : Ravikumar .B.A
LIST OF DOCUMENTS MARKED ON BEHALF OF THE
COMPLAINANT:-
Ex.P1 : Cheque
Ex.P2 : Bank Endorsement
Ex.P3 : Legal Notice
Ex.P4 & 5 : Two Postal Receipts
LIST OF WITNESSES EXAMINED ON BEHALF OF THE
DEFENCE:-
DW-1 : T. Rajanna
LIST OF DOCUMENTS MARKED ON BEHALF OF THE
DEFENCE:-
NIL
(M. LATHA KUMARI)
XLII Addl. Chief Metropolitan Magistrate, Bangalore.
7 C.C.No.32121/201104.02.2015.
ORDER Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable U/s.138 of Negotiable Instruments Act.
Further, the accused is sentenced to pay fine of Rs.12,20,000/-. Accused shall deposit fine of Rs.12,20,000/- within two months from today, in default to pay the fine amount, he shall under go simple imprisonment for a period of two months.
Out of the fine amount of Rs.12,20,000/-, Rs.12,00,000/- shall be paid to complainant by way of compensation.
The bail bonds of the accused stands cancelled.
Free copy of the judgment shall be 8 C.C.No.32121/2011 supplied to the accused forthwith.
XLII A.C.M.M., Bangalore.
9 C.C.No.32121/2011 10 C.C.No.32121/2011