Bangalore District Court
Smt.T.N.Kamalamma vs Sri. Mahesh Reddy on 22 November, 2022
KABC030062562018
IN THE COURT OF THE XIX ADDL. CHIEF
METROPOLITAN MAGISTRATE AT BENGALURU CITY.
Dated this the 22nd day of November 2022.
PRESENT:SRI.FAROOQ ZARE, B.A.(Law)LL.B.L.L.M.
XIX ADDL.C.M.M., BENGALURU.
Case No. :- C.C.No.2495 of 2018
Complainant Smt.T.N.Kamalamma
W/o Munireddy,
Aged about 45 years,
R/at No.45/1A,
Near Biocon Factory,
Hebbagodi, Balaji Nagar,
Electronic City Post,
Bengaluru-560100.
(By Sri.R.C.P. Advocate.)
-V/s-
2 C.C.No.2495/2018
Accused :- Sri. Mahesh Reddy
S/o Late H.Muniyappa,
Aged about 37 years,
No.53, 'Shriharsha',
5th Cross, 21st Main Road,
Rashtrakavi Kuvempu Nagar,
M.C.H.S Colony,
B.T.M 2nd Stage,
Bengaluru-560034.
(By Sri.M.K.V. Advocate.)
Offence complained of :- Under Section 138 of N.I.Act.
Plea of accused :- Pleaded not guilty.
Opinion of the Judge :- Accused found guilty.
Date of order :- 22nd November, 2022.
JU DG MEN T
The complainant has filed this complaint under
Section 200 of Cr.P.C against the accused for the
offence punishable under Section 138 of N.I.Act.
3 C.C.No.2495/2018
2. The brief facts of the complaint are that;
The complainant being owner of site No.14 and
15 situated at Hebbagodi Village has filed suit for
perpetual injunction in O.S.No.501 of 2008 against
the accused herein as he caused interference with
her possession, on the file of Anekal Court where an
order of temporary injunction came to be issued. The
mother of the accused viz., Meenakshamma filed her
statement claiming that she is the owner of site
No.16, 17 and 18 as she purchased from her vendor.
The site Nos.16, 17 and 18 were acquired by
National Highway Authorities and compensation was
also received by her vendor. However, the accused
by using political power managed to enter his name
in the records during the pendency of the case at
K.I.A.D.B without having right over site No.14 to 18.
4 C.C.No.2495/2018
3. The K.I.A.D.B has acquired complainant's
sites No.14 and 15 for BMRCL purpose. KIADB has
issued award notice dated 04.10.2017 for
Rs.98,55,794/- during the pendency of Suit. At that
time the accused as well as the complainant's
brother-in-law by name Manjunath Reddy and one
Police Officer of Bengaluru namely Mohan Kumar
managed to convince the complainant and subject to
result of suit in O.S.No.501 of 2008 and O.S.No.722
of 2008 agreed to received compensation. The
complainant as well as accused have entered into
nominal MOU for keep up commitment. The accused
has issued post dated cheque dated 03.11.2017, for
Rs.43,00,000/- drawn on Indian Bank, BTM Layout
Branch, Bengaluru in favour of the complainant at
5 C.C.No.2495/2018
KIADB office in presence of both witnesses and
officer of the KIADB.
4. When the complainant presented the
cheque for encashment through her banker South
Indian Bank, Electronic City Branch, Bengaluru,
which was returned unpaid with an endorsement
"Payment Stopped by Drawer" on 29.11.2017.
The complainant got issued legal notice on
20.12.2017 to the accused through RPAD calling
upon the him to repay the amount covered under
the cheque amount. The said notice has been duly
served upon the accused on 21.12.2017 and he
caused reply on 30.12.2017 in an evasive manner.
6 C.C.No.2495/2018
5. On presentation of the complaint, the
cognizance was taken of the offence punishable
under Section 138 of N.I.Act and registered it as
P.C.R. No.905 of 2018. The sworn statement of the
complainant was recorded. Since there were
sufficient materials to proceed against the accused,
it was registered as Criminal case in register No.III
and the process was issued to the accused.
6. On receipt of the summons, the accused
appeared before the court through his counsel and
secured bail. He was furnished with the prosecution
papers. The substance of the accusation was read
over and explained to him. He pleaded not guilty and
claimed to be tried.
7 C.C.No.2495/2018
7. The complainant has herself got examined
as PW1 and got marked documents at Exs.P1 to
Ex.P12. In support of her case, one witness has been
examined as PW2.
8. The statement of the accused under Section
313 of Cr.P.C was recorded. He denied the
incriminating evidence appearing against him. In his
defence evidence, he himself has got examined as
DW3 and got marked documents at Ex.D1 to Ex.D3.
In support of his case he got examined two witnesses
have been examined as DW1 and DW2.
9. The learned counsel for the complainant
has filed written arguments and has relied upon the
following decisions;
1.Criminal Appeal Nos 849-850 8 C.C.No.2495/2018 Triyambak S.Hegde v/s Sripad.
2. AIR 2014 Supreme Court 2528 Indian Bank Association and Ors. v/s Union of India and Ors.
3. AIR 2018 Supreme Court 3173 Kishan Rao v/s Shankargouda.
4. AIR 2018 Supreme Court 3601 T.P.Murugan v/s Bojan.
5. 2001 CRI.L.J 4647 Hiten P. Dalal v/s Bratindranath Banerjee
6. Criminal Revision Petition No.536/2014 Sri.C.N.Dinesha v/s Smt.C.G. Mallika.
7. ILR 2019 KAR 493 Sri.Yogesh Poojary v/s Sri.K.Shankar Bhat.
8. AIR 2019 Supreme Court 2446 Bir Singh v/s Mukesh Kumar.
9. AIR 2019 Supreme Court 4003 M/s Shree Daneshwari Traders v/s Sanjay Jain and Anr.
9 C.C.No.2495/2018
10. Criminal Appeal No. 362 of 2022 Tedhi Singh v/s Narayan Dass Mahant.
11. Criminal Appeal Nos 1269-1270 of 2021 Sripati Singh v/s The State of Jharkahand & Anr.
12. 2014 4 Crimes (HC) 440 Sripad v/s Ramadas M.Shet .
The learned counsel for the accused has relied upon the following decisions;
1. AIR 2009 Supreme Court 1518 M/s Kumar Export v/s Sharma Carpet.
2. I (2008) BC 3 G.Veeresham v/s S.Shiva Shankar and Another.
3. 2012(2) Bankers Journal 384 M.B.Rajashekar v/s Savithramma.
4. 2011 CRI.L.J 531 Josph Vitagadan v/s Phenomenal Health 10 C.C.No.2495/2018 Care Services Ltd. & Anr.
5. 2013(1) Bankers Journal 111 Ashish Parikh v/s State of Maharashtra and Another.
6. III (2014) BC 389 (Bom.) Vijaya Kundanlal Sharma v/s Sathyawan Bhikaji Jadhav and Anr.
7. 2014 (3) DCR 647 Basanta v/s Amrit Lal Jain.
8. (2019) 5 Supreme Court 418 Basalingappa v/s Mudibasappa.
9. 2020(1) KCCR 505 Yeshwanth Kumar v/s Shanth Kumar N.
10. 2020 (3) KCCR 2373 Vishal v/s Prakash Kadappa Hegannawar.
11. 2020 (4) KCCR 2540 K.S.Nagarajappa v/s Dibbada Kotresh. 12 2020 (5) KCCR 570 Gopal Reddy v/s Suresh Mahendrakar and Others.
11 C.C.No.2495/2018
13. 2014 CRI.L.J.2304 John K.Abraham v/s Simon C.Abraham and another.
14. 2016(2) Bankers Journal 772 Venkatesh Sadanand Pai v/s Kanchan A Kakodkar & Another.
15. 2021 (4) KCCR 2988 Mr.Krishna Gopal Khetan v/s M/s Parl Valley Silks Ltd., Bangalore and Others.
10. The points that arise for my consideration are as under;
1. Whether the complainant proves that the accused has issued the cheque at Ex.P1 for Rs.43,00,000/- in her favour towards discharge of his liability.?
2. Whether the complainant further proves that the said cheque was dishonoured as "Payment Stopped By Drawer" when it was presented for encashment.?
12 C.C.No.2495/2018
3. Whether the complainant further proves that she has complied with the mandatory provisions of Section 138 of N.I.Act.?
4. What order ?
11. My findings to the above points for consideration are as under:
Point No.1 :- In the Affirmative. Point No.2 :- In the Affirmative. Point No.3 :- In the Affirmative. Point No.4 :- As per final Order for the following;
:: R E A S O N S ::
12. Point No.1:- As regards legally enforceable debt or liability the Hon'ble Supreme Court in the case of Rangapa v/s Sri.Mohan reported in AIR 2010 Supreme Court 1898 which has been relied upon by the learned counsel for the 13 C.C.No.2495/2018 complainant has held that "The presumption mandated by Sec.139 of the Act includes a presumption that there exists a legally enforceable debt or liability. This is ofcourse in the nature of a rebuttable presumption and its open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, herein, there can be no doubt that there is an initial presumption which favours the complainant. When an accused has to rebut the presumption under Section 139, the standard of proofs for doing so is that of preponderance probabilities. Therefore, when the accused is able to raise a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the presumption can fail. The accused can rely on 14 C.C.No.2495/2018 the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own".
13. If the facts and circumstances of the case are considered in the light of above said principle of law it is clear that the accused has not disputed during the trial that the cheque in question is drawn on his bank account and it bears his signature. Therefore, the statutory presumptions arise under Sections 118(a) and 139 of N.I. Act in favour of the complainant that the cheque in question is issued for consideration in discharge of debt or liability. The burden of rebutting the said presumptions by probable defence is on the accused. 15 C.C.No.2495/2018
14. PW1 in her examination chief has reiterated the averments of the complaint and has relied upon documents at Ex.P1 to Ex.P12.
15. The accused by way of reply notice, cross examining of PW1 and leading defence evidence in support of his witnesses has raised certain defences during the trial to rebut the statutory presumptions operating in favour of the complainant under Sections 118(a) and 139 of N.I.Act.
16. The sum and substance of the defence raised by the accused is that, he agreed to pay a sum of Rs.1,00,000/- in cash to the complainant in the event the complainant withdraw the suit filed by her and he issued signed blank cheque for security and complainant agreed to return the cheque after a 16 C.C.No.2495/2018 sum of Rs.1,00,000/- is paid to her. Another fold of defence of the accused is that complainant obtained a signature on two blank papers.
17. It is the case of the complainant that when her suit for perpetual injunction in O.S.No. 501 of 2008 filed against the mother of the accused in respect of her sites No.14 and 15 situated at Hebbagodi Village, is pending on the file of Principal Civil Judge and JMFC Anekal, KIADB has acquired her sites for BMRCL purpose and 4(1) notice was issued for which she filed application claiming compensation, the accused managed to insert his name in the documents without having any right over site no.14,15, 16 ,17 and 18. It is also stated by the complainant that KIADB and BMRCL have been 17 C.C.No.2495/2018 made parties in her suit. KIADB has issued award notice dated 04.10.2017 for Rs.98,55,794/- during the pendency of her suit. At the intervention of accused, his brother-in-law namely Manjunath Reddy and Mohan Kumar, she agreed subject to result of O.S.No.501 of 2008 and O.S.No.722 of 2008, to receive the compensation amount and a nominal MOU for security purpose was entered into between herself as well as accused on 25.10.2017. It is also stated that the accused has issued postdated cheque bearing No.197743 dated 03.11.2017 for a sum of Rs.43,00,000/- drawn on Indian Bank, BTM Layout, Bengaluru, in her favour towards part payment of consideration.
18 C.C.No.2495/2018
18. It is not in dispute between the parties that the complainant has filed O.S.No.501 of 2008 and same is pending for adjudication. It is also not in dispute that after receipt of notice of demand, the accused has sent reply notice in terms of Ex.P6. It is also not in dispute between the parties that the disputed properties have been acquired by KIADB for BMRCL purpose.
19. It is to be noted here that the accused/DW3 in his examination in chief has contended that KIADB has not acquired the sites belong to the complainant. He has also contended that he agreed to give a sum of Rs.1,00,000/- to the complainant as it was agreed by the complainant to withdraw her suit and he issued blank cheque and it 19 C.C.No.2495/2018 was also agreed by the complaint to return cheque after paying a sum of Rs.1,00,000/- to her. It is to be noted here that whatever the defences taken in the evidence of DW3 are not at all taken in the reply notice sent by the accused in terms of Ex.P6. In the reply notice at Ex.P6, simply the alleged liability of the accused has been denied even the accused in the reply notice has also denied the issuance of cheque in question in faovur of the complainant. However, during the course of trial the accused has not denied the issuance of cheque in question rather he has admitted the issuance of cheque.
20. PW1 is subjected to cross examination. In the cross examination PW1 has admitted that she filed an affidavit before KIADB. This affidavit has 20 C.C.No.2495/2018 been marked as Ex.D1. She has also admitted that, she has stated in Ex.D1 that, she has agreed to withdraw her suit. It is suggested to PW1 that there was no hindrance to her to withdraw the suit filed by her while receiving cheque for that PW1 states that the suit had to be withdrawn in the event the cheque was honoured. The recitals of Ex.D1 indicate that the complainant had filed objections for release of compensation amount and she has also stated in the Ex.D1 that she has no objections to disburse the compensation amount in favour of the accused.
21. The complainant in support of her case has produced Ex.P7 MOU dated 25.10.2017. It is recited at Ex.P7 that as the complainant has filed objections, the compensation amount was not 21 C.C.No.2495/2018 disbursed in favour of the accused and both complainant as well as accused have solved the issue with regard to receiving of compensation amount. It is clearly recited in Ex.P7 that the accused has issued cheuqe in question at Ex.P1 for Rs.43,00,000/- in respect of claim of the complainant on the sites acquired by KIADB for the purpose of BMRCL.
22. PW1 in her cross examination has stated that she has not produced document to show that site No.14 and 15 have been acquired by KIADB and she states that she will produce the document in this regard. The complainant has produced the deposition of PW4 in O.S.No.984 of 2006. However, in his evidence PW4 has nowhere stated that site No. 14 and 15 have been acquired by KIADB. The 22 C.C.No.2495/2018 complainant has also produced certified copy of report submitted by Secretary Hebbagodi Gramapanchayath at Ex.P8. The Secretary of Hebbagodi Gramapanchayath Village has submitted his report to Executive Officer, Taluk Panchayath, Anekal wherein he has stated that the complainant has purchased site No.14 and 15 and the mother of the accused has raised construction to the extent of 45 feet X 30 feet unauthorizedly. PW1 in the cross examination has denied the suggestion that Ex.P8 is a concocted document. It is the contention of the accused that site No.14 and 15 have not been acquired by KIADB. However, in support of this contention the accused has not produced any document.
23 C.C.No.2495/2018
23. PW1 in the cross examination has admitted the notice issued by KIADB to the accused in terms of Ex.D2. In terms of Ex.D2 the Special Land Acquisition Officer KIADB has caused notice to the accused intimating about proposed acquisition of lands in survey nos.45/1B and 45/2 of Hebbagodi village. It is to be noted here that PW1 in the cross examination has stated that she has filed objections to the said notice. It is clearly stated in Ex.P8 that site No.14 and 15 have been purchased by the complainant. The accused to counter this document has not produced any other document. As per Ex.D2, KIADB intended to acquire lands in survey Nos.45/1B and 45/2 of Hebbagodi Village. It is relevant to note here that from the perusal of Ex.P8 24 C.C.No.2495/2018 it could be seen that site No.14 and 15 have been purchased by the complainant.
24. The complainant in support of her case has examined PW2 who has deposed in his evidence that Manjunath Reddy is one of the witness to MOU is known to him and he is brother in law of Manjunath Reddy. He has further stated that both the complainant as well as accused have filed applications for claiming compensation before KIADB and for sharing of compensation amount of Rs.98,55,794/-, the accused has executed MOU agreeing to pay a sum of Rs.43,00,000/- in his presence. PW2 has denied suggestion that the accused has issued Ex.P1 and Ex.P7 in favour of complainant in the matter of compromising of suits 25 C.C.No.2495/2018 pending on the file of Anekal Court and after compromise the accused undertook to pay amount in respect of compromise and same is known to him. However, this suggestion has been denied by PW2. It is relevant to note here that according to the accused he agreed to pay a sum of Rs.1,00,000/- to the complainant in the event of she withdraws suit against him. However, in the suggestion made to PW2, how much amount the accused agreed to pay to the complainant has not been disclosed. Besides, the contention taken by the accused that his signature on two blank papers were obtained by the complainant. It is the evidence of PW2 that in his presence MOU in terms of Ex.P7 was entered into. However, it is also not suggested to PW2 that the 26 C.C.No.2495/2018 signature of the accused were obtained on the blank papers.
25. DW3 the accused in his examination in chief has contended that the complainant filed O.S.No.501 of 2008 against him on the file of Anekal court. The complainant has produced the certified copies of Order sheet as well as Plaint in O.S.No. 501 of 2008. From these two records it is clear that the accused herein is not at all defendant in the said suit. It is the contention of the complainant that when the acquisition process was started, BMRCL as well as KIADB have been in pleaded in her suit. It is clear from cause title of the certified copy of plaint in O.S.No.501 of 2008 at Ex.P11 that these two 27 C.C.No.2495/2018 authorities have been arrayed as defendant No.3 and
4.
26. The defence raised by the accused is that he agreed to give a sum of Rs.1,00,000/- to the complainant in case the complainant withdraws her suit and towards payment of Rs.1,00,000/-, for security purpose he issued blank cheque to the complainant. However, having said so DW3/accused in his cross examination has stated that he has not stated in his examination in chief that he issued cheque in question towards payment of Rs.1,00,000/- to the complainant. It is also relevant to note here that he accused has contended that the complainant has obtained his signatures on two blank papers. However, the accused/DW3 in his cross examination has stated that he would not sign 28 C.C.No.2495/2018 on blank papers. If the accused is not a man of signing on blank papers, why he signed on blank papers in favour of the complainant. Absolutely, no explanation is forth coming from the accused in this regard.
27. According to the complainant a settlement was arrived at between herself accused in the matter of receiving compensation amount from KIADB. On the other hand according to the accused it was agreed between himself as well as complainant that, the complainant has agreed to withdraw her suit. During the trial accused has seriously disputed Ex.P7 MOU. But in the cross examination he has clearly admitted that a settlement was arrived at between himself as well as complainant in respect of 29 C.C.No.2495/2018 land acquisition process. This admission given by the accused certainly helps to the complainant's case that there was settlement arrived at between herself as well as accused in receiving compensation amount from KIADB.
28. The accused has issued reply notice in terms of Ex.P6 wherein the accused has denied the issuance of cheque as well as his liability to pay the amount covered under the cheque. During the trial the accused has taken a contention that he issued a signed blank cheque to the complainant. However, in the reply notice at Ex.P6 he does not say that he issued blank signed cheque to the complainant. He has stated in reply notice that the cheque in question is signed blank cheque. DW3/accused in 30 C.C.No.2495/2018 his cross examination has stated that he is unable to recall about what is stated in the reply notice. It is relevant to note here that in the reply notice at Ex.P6 the accused has nowhere stated that he agreed to repay Rs.1,00,000/- to the complainant.
29. The complainant in her cross examination has stated that on 25.10.2017 compensation amount of Rs.98,55,794/- was given to the accused. It is also relevant to note here that the said amount has also been mentioned in MOU at Ex.P7. It is not the case of the accused that he has not at all received the amount of compensation from KIADB in respect of disputed sites. He is asked about the compensation amount he received from KIADB in the cross examination. He has stated that, he is 31 C.C.No.2495/2018 unable to recall the amount of compensation he received from KIADB. If at all, if he received the amount of compensation in respect of his own property, he could have produced the statement of account pertaining to his bank account. However, he has not produced the statement of account. During the trial the accused has avoided in disclosing the extent of amount that he received from KIADB.
30. DW1 in his examination in chief has stated that a panchayath was conveyed in his presence between complainant as well as accused in respect of two suits between both the parties and at the said panchayath it was agreed that the accused has to pay a sum of Rs.1,00,000/- and in turn the complainant has to withdraw her suit. In this regard 32 C.C.No.2495/2018 the accused has issued a signed blank cheque and his/DW1 signature was obtained on a paper. He admits his signature at Ex.P7(c) found on at Ex.P7. Having said so, this witness DW1 in his cross examination has pleaded ignorance to state that for which purpose the accused issued cheque in question. Besides, he also in his cross examination has clearly admitted that he doesn't know about the transaction took place between complainant as well as accused. Apart from it, DW1 in his cross examination has gone to the extent saying that he has not stated that the accused has issued a signed blank cheque. He has also stated that he doesn't know who signed on the disputed cheque. The way in which this DW1 has given his evidence indicates 33 C.C.No.2495/2018 that, his evidence does not come to aid of defence raised by the accused.
31. As already stated it is the defence of the accused that, he has agreed to pay a sum of Rs.1,00,000/- to the complainant. However, DW2 in his examination in chief has stated that settlement was arrived at for Rupees 1 to 2 lacs. It appears that the plea of the accused that, as agreed to pay a sum of Rs.1,00,000/- to the complainant is not consistent in view of the above statement given by is own witness DW2. According to the accused, he gave a signed blank cheque to the complainant while DW2 in his cross examination has stated that the accused handed over signed blank cheque to him and in turn he/DW2 had given said cheque to the 34 C.C.No.2495/2018 complainant. But this is not the case of the accused regarding handing over of the cheque in question to the complainant.
32. It is not in dispute between the parties that the mother of the accused has filed suit in O.S.No.722 of 2008 against the accused herein. From the material placed on record by the both sides it could be seen that the complainant as well as mother of the accused have instituted suits against each other in respect of properties in dispute. However, the certified copy of memo in terms of Ex.P12 produced by the complainant discloses that the mother of the accused has filed memo for not pressing her suit. This memo at Ex.P12 has been confronted to DW3 in the cross 35 C.C.No.2495/2018 examination and he has also admitted it. It is elicited from DW2 in the cross examination that he was a power of attorney holder of her mother in O.S.No.722 of 2008. Even he has stated in his cross examination that his mother without intimating him has withdrawn the said suit.
33. DW3 in the cross examination has stated that as the complainant has not withdrawn her suit, he has issued stop payment instructions to her banker. However, it is to be noted here that the accused in support of his evidence has not placed convincing material before the court that there was settlement arrived at between himself as well as complainant as the complainant agreed to withdraw her suit and in turn he had to pay a sum of 36 C.C.No.2495/2018 Rs.1,00,000/- to her. It is to be noted here that it is not the case of the accused that a settlement arrived at was reduced into writing. If really, the settlement was arrived at as contended by the accused, nothing has prevented him to get an agreement in writing from the complainant in respect of alleged settlement. It is relevant to note here that after sending reply notice, the complainant has initiated these proceedings against the accused. If really the complainant has not acted in terms of settlement arrived at as contended by accused, he could have filed police complaint or private complaint against the complainant. Even it is also elicited from the mouth of DW2 in the cross examination that after receipt of notice from the court, either himself or 37 C.C.No.2495/2018 accused has not taken any steps against the complainant.
34. The learned counsel for the complainant has filed written arguments in support of case put forth by the complainant. In the decision relied upon by the learned counsel for the complainant in the case of Bir Singh v/s Mukesh Kumar reported in AIR 2019 SC 2446 wherein the Hon'ble Supreme Court in para No.40 of the judgment has stated thus;
'even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence 38 C.C.No.2495/2018 to show that the cheque was not issued in discharge of a debt'.
35. From the above said decision it is clear that even a blank cheque issued by the drawer voluntarily towards some payment, it attracts presumption under Section 139 of N.I.Act in case the accused fails to substantiate that the cheque was not issued towards discharge of debt. However, in the case on hand the accused has not placed cogent evidence before the court to substantiate his plea that blank signed cheque was issued towards payment of Rs.1,00,000/- to the complainant. I have gone through the other decisions relied upon by the learned counsel for the complainant and same are not applicable to this case as the facts are altogether different.
39 C.C.No.2495/2018
36. On the other hand the learned counsel for the accused has argued in support of pleas raised by the accused during the trial and he has also relied upon decisions in support of case set up by the accused. I have read these judgments which are of no help to the accused as the facts of those cases are quite distinguishable from the facts of the case on hand.
37. On going through the evidence both oral documentary as well as material placed on record by both the sides this court is of the opinion that the accused in support of his pleas raised during the trial has not rebutted the statutory presumptions available in in favour of the complainant under Section 118(a) and 139 of N.I.Act. In other words the 40 C.C.No.2495/2018 case of the complainant stands unrebutted. On the other hand the complainant has established that in discharge of liability, the accused has issued cheque at Ex.P1 in her favour. Accordingly point No.1 is answered in the Affirmative.
38.Point No.2:- According to the complainant the cheques in question at Ex.P1 was returned unpaid with an endorsement as "Payment Stopped by Drawer". The bank memo produced by the complainant at Ex.P2 reveals that cheque was returned unpaid for the reasons "Payment Stopped by Drawer". The bank memo at Ex.P2 proves dishonour of cheque for the reasons "Payment Stopped By Drawer" by virtue of presumption raised under Section 146 of N.I. Act and during the trial 41 C.C.No.2495/2018 Ex.P2 went uncontroverted. Hence, I answer point No.2 in the Affirmative.
39. Point No.3:- The cheque in question at Ex.P1 was returned unpaid with bank endorsement on 29.11.2017 as per bank memo at Ex.P2. It is clear from Ex.P3 the office copy of legal notice that, the complainant caused demand notice on 20.12.2017 informing the accused about dishonour of the cheque and making demand for repayment of amount covered under the cheque in question. On perusal of Ex.P1 to Ex.P3 it is evident that the complainant has presented the cheque within its validity and it was returned unpaid on 29.11.2017 as well as she caused legal notice within one month 42 C.C.No.2495/2018 from the date of intimation of dishonour of the cheque.
40. The records disclose that after causing demand notice, the accused has not repaid amount covered under cheque at Ex.P1 after expiry of fifteen days statutory period from the date of service of notice, the complaint is filed well within the period of limitation. As accused has failed in paying amount covered under cheque at Ex.P1, all the essential ingredients of section 138 of N.I.Act have been complied with and thereby accused has committed the said offence. Accordingly point No.3 is answered in the Affirmative.
43 C.C.No.2495/2018
41. Point No.4:- In view of my findings on the above points, I proceed to pass the following;
ORD ER Accused is convicted under Section 255(2) of Cr.P.C., for the offence punishable under Section 138 of N.I.Act.
He is sentenced to pay a fine of Rs.45,10,000/-. In default of payment of fine, the accused shall undergo simple imprisonment for a period of 1 (one) year. Out of the total fine amount, an amount of Rs.45,00,000/- shall be paid to the complainant as compensation under Section 357(1)(b) of Cr.P.C and remaining fine of Rs.10,000/- shall be remitted to the state.
44 C.C.No.2495/2018
The bail bond of the accused stands canceled while the cash surety of Rs.20,000/- that was deposited by accused on 09.07.2018 is ordered to be forfeited to the state.
Office to furnish a free copy of this Judgment to the accused forthwith. (Directly dictated to the Stenographer on computer, typed by him, corrected by me and then pronounced in the Open Court on 22nd November, 2022.) (FAROOQ ZARE) XIX ADDL.C.M.M., Bengaluru.
:: ANNEXURE ::
Witnesses examined on behalf of the Complainant:
PW1 :- T.N.Kamalamma.
PW2 :- Mohan Kumar.
Documents marked on behalf of the Complainant:
Ex.P1 :- Cheque.
45 C.C.No.2495/2018
Ex.P1(a) :- Signature of the accused.
Ex.P2 :- Bank Endorsement.
Ex.P3 :- Office copy of the legal notice.
Ex.P4 :- Postal receipt.
Ex.P5 :- Postal Acknowledgment.
Ex.P6 :- Reply Notice.
Ex.P7 :- MOU
Ex.P7(a),(b) & (c) :- Signatures. Ex.P8 :- Certified copy of report. Ex.P9 :- Certified copy of deposition of PW4 in O.S.No.984 of 2006.
Ex.P10 :- Certified copy of Order Sheet in O.S.No.501 of 2008.
Ex.P11 :- Certified copy of Plaint in O.S.No. 501 of 2008.
Ex.P12 Certified copy of Memo in
O.S.No.722 of 2008.
Witnesses examined on behalf of the Accused:-
DW1 :- Srinivas Reddy. DW2 :- Manjunath Reddy. DW3 :- Mahesh Reddy.
Documents marked on behalf of the Accused:-
Ex.D1 :- Certified copy of affidavit.46 C.C.No.2495/2018
Ex.D1(a) & (b) :- Signatures.
Ex.D2 :- Notice.
Ex.D3 :- Certified copy of I.A in O.S.No.626 of
2008.
Ex.D4 :- Certified copy of Order sheet in
O.S.No.626(A) of 2008.
(FAROOQ ZARE)
XIX ADDL.C.M.M., Bengaluru.