Bangalore District Court
Cooperative Ltd vs S/O.Puttaswamy Gowda on 12 October, 2021
IN THE COURT OF THE XL ADDL. CHIEF
METROPOLITAN MAGISTRATE, AT: BENGALURU
Present : Sri.PADMAKAR VANAKUDRE,
B.A.,LL.B.,
XL Addl., Chief Metropolitan
Magistrate, Bengaluru.
JUDGMENT U/S 355 OF Cr.P.C.1973
1. Serial number : C.C. No.12603/2019
2. Name of the Soundarya Souharda Credit
complainant Cooperative Ltd., Soundarya
Arcade, Opp.Ammaji Kalyana
Mantapa, Hesarghatta Main
road, Havanoor Extension,
Nagasandra Post, Bengaluru-
560073.
Represented by its CEO-
Sri Bharath.R
(By Sri. M.Seetharam Shetty
and Sri.G.Naveen Kumar
Advocates)
3. Name of the : Sri.Abhith Kumar.M.P.
accused S/o.Puttaswamy Gowda,
Major,
R/at. Makodu House,
Jakkanahalli Post,
Chikmagalur Taluk and
District, Chikmagalur-577130.
(By Sri. N.R.Ravikumar,
Advocate)
4. The offence : Section 138 of the N. I. Act
complained of or
proved
5. Plea of the accused : Plead not guilty
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6. Final order : Accused found guilty
7. Date of order : 12-10-2021
:J U D G M E N T:
The complainant has lodged this complaint against the accused alleging the commission of offence punishable under the Sec.138 of Negotiable Instruments Act.
2. The case of the the complainant in brief is as under:
The complainant is a Souharda Credit Cooperate Limited constituted under the Karnataka Souharda Sarkari Act 1997. The accused had availed loan of Rs. 2,50,000/- from the complainant society on 22.12.2015. One Ravi.T.B was the guarantor for said loan. The accused has executed necessary documents agreeing to repay the loan amount with interest at 16% p.a and additional penal interest at 2% p.a. The 3 C.C.No.12603/2019 accused has not repaid the loan amount and as on March 2019, he was liable to pay an amount of Rs.3,00,000/- to the complainant. In discharge of said loan the accused has issued a cheque bearing No.000002 dated 07.01.2019 for a sum of Rs.3,00,000/- drawn on The HDFC Bank Limited, SBM Layout branch, Bengaluru, in favour of the complainant.
3. The complainant has presented said cheque to the Bank for encashment and it was returned by the Bank unpaid on 21.03.2019 with an endorsement "funds insufficient". The complainant has issued a notice in writing to the accused on 15-04-2019 making a demand for the said amount of money. The said notice has been served on the accused on 22-04-2019. Despite demand notice the accused has failed to make the payment of cheque amount. Hence, the accused 4 C.C.No.12603/2019 has committed an offence punishable Sec.138 of Negotiable Instruments Act.
4. After preliminary inquiry, this Court has taken the cognizance of the offence punishable under section 138 of Negotiable Instruments Act against the accused. The accused has appeared through his learned counsel and got released on bail. Plea of the accused has been recorded. The accused has not pleaded guilty but claimed that he has defence to make.
5. The complainant society has got examined its CEO as PW-1 and got exhibited 07 documents at Exs.P.1 to P-7.
6. The statement of accused as contemplated under section 313 of Cr.P.C., is recorded. The accused has denied all the incriminating evidence appearing against him in the evidence. The accused has 5 C.C.No.12603/2019 examined as DW.1. He has not produced any documentary evidence of his behalf.
7. Heard arguments. During the course of arguments both the parties have filed memo praying to pass judgment on terms of memo. Perused materials placed on record.
8. Points that would arise for the consideration of this court are as under:
1. Whether the complainant proves beyond all reasonable doubts that, the accused in discharge of legally recoverable debt has issued a cheque bearing No.000002, dated 07.01.2019 for Rs.3,00,000/- and the same was dishonoured. Despite demand notice the accused has failed to make the payment cheque amount and thereby committed an offence punishable U/Sec.138 of Negotiable Instruments Act ?
2) What Order?
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9. My findings on the above said points as as under:
Point No.1: In the affirmative.
PointNo.2:As per final order, for the following:-
REASONS
10. Point No.1: This is a case of the complainant that, the accused has availed a personal loan from complainant Bank and in discharge of said liability the accused has issued a cheque bearing No.000002, dated 07-01-2019 for Rs.3,00,000/-. Said cheque came to be dishonored for a reason Insufficient Funds. The demand notice has been served on the accused. Despite demand notice the accused has not paid the cheque amount and thereby committed an offence.
11. To constitute an offence punishable under section 138 of The Negotiable Instruments Act, there must be following ingredients:
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1. drawing of the cheque in discharge of debt or liability;
2. presentation of the cheque to the bank;
3. returning the cheque unpaid by the drawee Bank;
4. giving notice in writing to the drawer of the cheque demanding payment of the cheque amount;
5. failure of the drawer to make payment within 15 days of receipt of the notice.
12. In order to prove the case, the complainant society has got examined its CEO as P.W.1. He has deposed reiterating the averments of complaint. He has deposed that the accused has availed the loan from the complainant society on 22.12.2015. The accused has executed necessary documents in favor of the complainant agreeing to repay the loan amount. In discharge of his liability the accused has issued the cheque in favour of the complainant. He has got exhibited 7 documents i.e., the cheque, Bank memo, 8 C.C.No.12603/2019 copy of Demand notice, Postal receipt, Postal acknowledgment, Statement of accounts and Certified copy of Resolution at Ex.P-1 to Ex.P-7.
13. A perusal of Ex.P-1 shows the cheque was issued on 07.01.2019. A perusal of Ex.P-2 shows that it was presented to bank and returned unpaid on 21.03.2019.
A perusal of Ex.P-3 shows that the complainant has made a demand for the payment of the cheque amount by giving notice on 15-04-2019, which is within thirty days from the receipt of Ex.P-2. A perusal of Ex.P-5 shows that the Demand Notice has been served on 22.04.2019. The complainant has lodged the complaint on 03-06-2019. Therefore, a perusal of the dates of events on Ex.P-1 to P-5 it is clear that the complaint is well within the time of limitation as per the provisions of section 138 of Negotiable Instruments Act. 9
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14. An essential ingredient of section 138 of Negotiable Instruments Act is that the cheque in question must have been issued towards a legally enforceable debt or liability. In this case the accused has not denied the cheque and signature on it. When the execution of cheque is admitted by the accused, by such admission, the presumption under section 118 (a) would arise that it is supported by a consideration. Even under section 139, a rebuttal presumption shall be raised that the cheque in question was issued towards discharge of a legally enforceable debt. These presumptions are rebuttable and the accused can prove non-existence of a consideration by raising a probable defence. Therefore, the onus is on the accused to rebut the presumption available under section 118 and 139 of Negotiable Instruments Act and to show that the cheque in question was not issued towards any legally enforceable debt or liability. 10
C.C.No.12603/2019
15. The accused has not denied the loan and issuance of cheque. To rebut the presumption, he has not chosen to cross-examine P.W-1. Therefore the evidence of P.W.1 remained undisputed.
16. The accused has been examined as D.W.1. He has deposed that he has availed a loan of Rs.2,50,000/- from the complainant and in discharge of said liability, issued a cheque bearing No.000002, dated 07-01- 2019. He has deposed that he is not liable to pay Rs.3,00,000/- to the complainant. He has deposed that he is ready to repay an amount of Rs.2,75,000/- to the complainant. The complainant has not chosen to cross-examine the accused.
17. The complainant by producing documents and through oral evidence has proved the existence of legally recoverable debt and the fact that the accused has issued a cheque at Ex.P-1 in discharge of said 11 C.C.No.12603/2019 debt. On the other hand the accused has failed to rebut the presumption available in favour of the complainant U/s.118 and 139 of N.I.Act.
18. A perusal of documents on record shows that the complaint is presented within the time prescribed U/s.138 and 142 of Negotiable Instruments Act. The cheque at Ex.P-1 is returned by the bank unpaid because of the amount of money standing to the credit of the account of accused is insufficient to honour the cheque. Despite the service of demand notice the accused has failed to make the payment of cheque amount and thereby committed an offence under section 138 of Negotiable Instruments Act.
19. At the time of arguments the complainant and accused have filed a memo praying to pass judgment in terms of the memo. It is stated that the accused has agreed to repay the amount of Rs.2,75,000/- only to 12 C.C.No.12603/2019 the complainant. The accused has agreed to repay an amount of Rs.75,000/- on 04-10-2021 and remaining amount of Rs.2,00,000/- on or before 31-12-2021.
20. Considering the memo filed by the parties and submissions of learned counsels for complainant and the accused, I deem it proper to grant time to the accused for payment of the amount to the complainant.
21. Therefore, looking to the facts and circumstances of the case I am of the considered view that the complainant has established that the accused has committed an offence punishable under section 138 of Negotiable Instrument Act. Hence, I proceed to answer point No.1 in the affirmative.
22. Point No.2: In view of findings on point No. 1 I proceed to pass the following:-
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C.C.No.12603/2019 :O R D E R:
The accused is found guilty. Acting under section 255(2) of Cr.P.C, I hereby convict the accused for the offence punishable under section 138 of The Negotiable Instruments Act.
The accused is sentenced to pay fine of Rs.2,75,000/- (Rupees Two Lakhs Seventy Five thousand only) as per the joint memo. In default of payment of fine he shall undergo simple imprisonment for a period of three months.
On deposit, the same shall be paid to the complainant as a compensation.
The bail bond and surety bond of the accused stands canceled after appeal period is over.
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The office to supply the copy of
judgment to the accused forth with, free of cost.
(Dictated to the stenographer directly on the Lap-Top Computer, script revised, corrected and then signed and pronounced by me in the open court on this the 12th day of October 2021) (PADMAKAR VANAKUDRE) XL Addl., Chief Metropolitan Magistrate, Bengaluru.
:A N N E X U R E:
List of witnesses examined on behalf of Complainant: P.W1. Bharath.R List of documents marked on behalf of Complainant: Ex.P1. Original cheque issued by accused Ex.P1(a). Signature of accused on cheque Ex.P2. Bank Memo Ex.P3. Copy of Demand Notice Ex.P4. Postal receipt Ex.P5. Postal acknowledgement Ex.P6. Bank Account statement of accused 15 C.C.No.12603/2019 Ex.P7. Board Resolution List of witnesses examined on behalf of defence:
D.W.1 Abhith Kumar List of documents marked on behalf of defence:
Nil.
XL Addl., Chief Metropolitan Magistrate, Bengaluru.