Bangalore District Court
M/S. Margadarsi Chits (Karnataka) Pvt. ... vs Dr. V. Narayana Swamy on 23 January, 2016
IN THE COURT OF THE XXVII ADDL. CHIEF
METROPOLITON MAGISTRATE, NRUPATHUNGA
ROAD, BENGALURU CITY.
Dated this the 23rd day of January-2016
:: PRESENT ::
SRI. MALLANAGOUDA, B.Com., LL.B.,
XXVII Addl. C.M.M., Bengaluru City.
C.C. NO. 15113/2015
&
C.C. NO. 15114/2015
COMPLAINANT:
M/s. Margadarsi Chits (Karnataka) Pvt. Ltd.,
No.21 and 22, 1st Floor,
Krishna Towers, 3rd Main Road,
Gandhinagar, Bangalore-560 009,
Represented by its Foreman &
Branch Manager
Sri. K.N. Ramesha.
(Rept. by Sri. B. Veeranna. Adv.)
V/S
ACCUSED:
Dr. V. Narayana Swamy,
S/o Sri. Venkatappa,
Managing Director,
Common Judgment 2 C.C.15113 &
15114/2015
M/s. Vagus Super Specialty Hospital Pvt. Ltd.,
No.6, 7 & 8, 4th Main,
18th Main, Malleshwaram,
Bangalore - 560 003.
(Rept. by Sri. K.S. Sreekantha. Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is convicted
DATE OF ORDER : 23-01-2016
(MALLANAGOUDA)
XXVII Addl.CMM.,
Bengaluru.
***
:: COMMON JUDGMENT ::
Since the complainant and accused in both the cases
are one and the same, it is decided to write common
judgement in respect of both the cases.
2. In both the cases complainant has filed the complaint
against the accused under Section.200 Criminal Procedure
Common Judgment 3 C.C.15113 &
15114/2015
Code for the offence punishable under Section.138 of
Negotiable Instruments Act.
3. The brief facts of the complainant's case are as under:
The complainant is a Company, registered under
Companies Act, having its registered office at Manipal
Center, Dickenson Road, branches at Gandhi Nagar and
Basaveshwara Nagar, Bangalore, complainant is in the
business of promoting and conducting chits under Chit
Funds Act represented by its Foremans and Branch
Managers, accused is the Managing Director of M/s. Vagus
Super Specialty Hospital Pvt. Ltd. One Rame Gowda. K.A.
is the close relative of the accused and he is also one of the
Director of the said Hospital, the said Rame Gowda. K.A.
has subscribed to a number of chits with the complainant
company and he has became defaulter in all his chits,
accordingly complainant company has filed number of cases
against the said Rame Gowda and his sureties including his
brother K.A. Suresh and his father K.R. Anjaneya Gowda
Common Judgment 4 C.C.15113 &
15114/2015
and his family members and his relatives. At the time of
taking prize money the said K.A. Rame Gowda has given
property papers of M/s. Vagus Super Specialty Hospital
Building as security and he assured that in case of default in
paying chits amount complainant is at liberty to attach the
said building and sell the same, when K.A. Rame Gowda
became defaulter complainant company has filed money
recovery suit before the Deputy Registrar of Chits - North
and Central Zone, in all those cases complainant has filed
Interim applications seeking attachment before judgment of
the hospital building, even after service of notice the said
Rame Gowda has failed to pay the amount, hence order of
attachments before judgment were confirmed and made
absolute, accordingly complainant company has informed
the jurisdictional Sub-Registrar regarding attachment of the
hospital building, after that after getting the awards in the
said cases complainant has filed Execution Petition before
the City Civil Court, Bangalore, in which they sought for sale
of the property of Rame Gowda i.e., Hospital building, the
Common Judgment 5 C.C.15113 &
15114/2015
City Civil Court of Bangalore has issued sale warrants for
sale of the Hospital building, when complainant and court
officials had gone to hospital building to affix the sale notice,
accused being the Manager and close relative of Rame
Gowda has requested the complainant not to affix the court
order and he assured that he would come to complainant
office and verify the complete outstanding chits dues of
Rame Gowda and settle all his cases, accordingly the said sale
notice was not affixed on the hospital and sale warrants are
not executed, after that on 06-03-2015 accused visited
complainant's office and verified the details of chits
pertaining to Rame Gowda. K.A. and all other chits of his
relatives names of Basaveshwara Nagar and Gandhi Nagara
Branch of complainant company, after verifying the details
he under took to pay Rs.40,00,000/- and Rs.25,00,000/- to
clear the dues of K.A. Rame Gowda infavour of Gandhi
Nagar and Basaveshwara Nagar Branches of complainant
company respectively and he has agreed to pay another
Rs.1,51,500/- towards chit in the name of Chandrakala in
Common Judgment 6 C.C.15113 &
15114/2015
Basaveshwara Nagar Branch, in all he has agreed to pay
Rs.66,51,500/-, accordingly he has issued letter of under
taking to complainant company dated: 06-03-2015 and he
issued two cheques bearing No.085821 and 085822 for
Rs.40,00,000/- and Rs.26,51,500/- both dated: 25-03-2015
drawn on IDBI Bank, Ashwath Nagar Branch, Bangalore for
payment of dues infavour of Gandhi Nagar and
Basaveshwara Nagar Branches of complainant company
respectively, subsequently as per the request and instructions
of the accused complainant company has presented those
cheques to bank for encashment but both the cheques are
dishonoured and returned with an endorsements as
'Payment stopped by the drawer', after dishonour of the
cheques complainant got issued notice dated: 23-04-2015
calling upon the accused to pay the cheques amount but the
said notices are returned with an endorsements as 'Refused',
even after issuance of said notice also accused has not paid
the cheques amount to complainant. Therefore, accused has
Common Judgment 7 C.C.15113 &
15114/2015
committed the offence punishable under Section.138 of
Negotiable Instruments Act.
4. After his appearance before this court, accused has
pleaded not guilty for the offence under Section.138
Negotiable Instruments Act. Hence, the trial has been
conducted against him for the said offence.
5. On the basis of the above facts, following points have
arisen for my consideration:
POINTS
C.C.15113/2015
1. Whether complainant proves beyond
reasonable doubt that to pay the amount due by
K.A. Rame Gowda infavour of complainant
company accused has issued cheque bearing
No.085821, dated: 25-03-2015 for Rs.40,00,000/-
drawn on IDBI Bank, Ashwath Nagar Branch,
Bangalore, but when complainant has presented
the said cheque to bank for encashment the same
is dishonoured and returned with an
Common Judgment 8 C.C.15113 &
15114/2015
endorsement as 'Payment stopped by the
drawer', after that complainant got issued notice
dated: 23-04-2015 to accused, but the said notice
is returned with an endorsement as 'Refused',
even after issuance of notice also accused has not
paid the cheque amount to complainant. Thereby
the accused is liable for conviction for the
offence punishable under Section.138 of
Negotiable Instruments Act?
2. What order?
POINTS
C.C.15114/2015
1. Whether complainant proves beyond
reasonable doubt that to pay the amount due by
K.A. Rame Gowda and amount due by him in
respect of chit obtained in the name of one
Chandrakala, accused has issued cheque bearing
No.085822, dated: 25-03-2015 for Rs.26,51,500/-
drawn on IDBI Bank, Ashwath Nagar Branch,
Bangalore, but when complainant has presented
the said cheque to bank for encashment the same
is dishonoured and returned with an
endorsement as 'Payment stopped by the
Common Judgment 9 C.C.15113 &
15114/2015
drawer', after that complainant got issued notice
dated: 23-04-2015 to accused, but the said notice
is returned with an endorsement as 'Refused',
even after issuance of notice also accused has not
paid the cheque amount to complainant. Thereby
the accused is liable for conviction for the
offence punishable under Section.138 of
Negotiable Instruments Act?
2. What order?
6. In support of its case, in C.C.15113/2015 complainant
examined one witness as P.W.1 and got marked documents
at Ex.P1 to 14 on its behalf. On the other hand, accused
examined himself and one witness as D.W.1 and 2 and got
marked documents at Ex.D1 and 36 on his behalf. In
C.C.15114/2015 complainant examined himself as P.W.1 and
got marked documents at Ex.P1 to 11 on its behalf. On the
other hand, accused examined himself and one witness as
D.W.1 and 2.
7. Heard arguments.
Common Judgment 10 C.C.15113 &
15114/2015
8. My findings on the above points are as under:
Point No.1: In the Affirmative
Point No.2: As per final order, for the following:
REASONS
9. POINT NO.1: It is the case of the complainant
company that accused is Managing Director of M/s. Vagus
Super Specialty Hospital Pvt. Ltd., one K.A. Rame Gowda is
relative of the accused and he is also one of the Director of
the said Hospital. The said Rame Gowda became the
subscriber of chits run by the complainant company, but
subsequently the said Rame Gowda became defaulter in
paying installments of the said chits, accordingly complainant
company has filed cases against Rame Gowda and his
relatives, in which award has been passed by the concerned
Deputy Registrar of chits, after that complainant company
has filed execution petition before City Civil Court,
Bangalore, in which the court ordered for sale of the hospital
building which was mortgaged by Rame Gowda and court
Common Judgment 11 C.C.15113 &
15114/2015
officials went to the Hospital Building to affix the sale
notice, at that time being Managing Director of the Hospital
and close relative of said Rame Gowda accused came
forward to verify the accounts and settle the dues of said
Rame Gowda, accordingly on 06-03-2015 he visited Gandhi
Nagar Branch and Basaveshwara Nagar Branch of
complainant company and agreed to pay Rs.40,00,000/- and
Rs.25,00,000/- in respect of amounts due by Rame Gowda
towards chits of Gandhi Nagara Branch and Basaveshwara
Nagar Branch respectively, accused has agreed to pay
another Rs.1,51,500/- to Basaveshwara Nagara Branch for
the chit subscribed by accused himself in the name of one
Chandrakala, accordingly accused has issued cheques bearing
No.085821, dated: 25-03-2015 for Rs.40,00,000/- and
No.085822, dated: 25-03-2015 for Rs.26,51,500/- drawn on
IDBI Bank, Ashwath Nagar Branch, Bangalore respectively,
but when complainant has presented those cheques to bank
for encashment the same are dishonoured and returned with
an endorsement as 'Payment stopped by the drawer', after
Common Judgment 12 C.C.15113 &
15114/2015
that complainant got issued notices to accused, but the said
notices are returned with an endorsement as 'Refused', even
after issuance of notices also accused has not paid the
cheques amount to complainant. Therefore, accused has
committed the offence punishable under Section.138 of
Negotiable Instruments Act.
10. During evidence P.W.1 in C.C.15113/2015 and P.W.1
in 15114/2015 namely K.N. Ramesh and Govinda Rao. G.
have filed their affidavits as chief-examination, in which they
once again restated the facts alleged in the complaints as
discussed above. In cross-examination they stated in detail
about transaction of Rame Gowda and they denied
suggestions regarding obtaining cheques in question through
one Ramamurthy who is working as Manager of the Hospital
and the said cheques and blank letterheads were given to said
Ramamurthy for making use of the same for payment of
salary of the hospital staff and some other purpose.
Common Judgment 13 C.C.15113 &
15114/2015
11. The complainant has produced documents like
cheques, bank endorsement, notice copy etc.
12. On the other hand accused deposed that he is one of
the Director of Vagus Super Specialty Hospital Pvt. Ltd., but
Dr. Rame Gowda is having more shares in the hospital, he is
running the same, they obtained loan of Rs.14,00,00,000/-
from S.B.I. for running Hospital, the said Rame Gowda is
looking after the finance matters of Hospital, when bank
declared the Hospital as NPA he made efforts to save the
Hospital by paying Rs.3,00,00,000/- to Bank, at that time as
the bank blocked the S.B.I. account of the Hospital, they
opened another account in IDBI Bank, he used to hand over
the blank cheques to accounts Manager Ramamurthy for
making use of the same for paying salaries of the Hospital
staffs and supplier's bills and blank letterheads to said
Ramamurthy for preparing blood reports and insurance
processing, he has not at all visited any branch of the
complainant company on 06-03-2015, on that day he was
Common Judgment 14 C.C.15113 &
15114/2015
completely busy in surgeries, he has not at all under taken to
pay the amount due by the Dr. Rame Gowda infavour of
complainant company, officials of complainant company
have colluded with Rame Gowda and Ramamurthy created
the documents by obtaining his signed cheques and
letterheads from Ramamurthy. In cross-examination he
admitted about his close relationship with Rame Gowda and
Ramamurthy but he denied suggestions regarding issuance of
cheques in question for payment of amount due by the
Rame Gowda.
13. During arguments learned counsel for complainant has
argued that as the accused admitted about the fact that
cheques in question are belongs to him and signatures in the
cheques are also belongs to him, as per Section.139 of
Negotiable Instruments Act it is necessary to presume that
accused has issued cheques in question for payment of
legally dischargeable debt accused has not at all produced any
proper evidence to rebut the said presumption, admittedly
Common Judgment 15 C.C.15113 &
15114/2015
cheques are dishonoured with endorsements as 'Payment
stopped by drawer', after that complainant has complied all
other conditions of Section.138 of Negotiable Instruments
Act, after that also accused has not paid the cheques amount
to complainant, therefore accused is liable for conviction for
the offence punishable under Section.138 of Negotiable
Instruments Act.
14. On the other hand counsel for accused has submitted
his oral arguments and he filed written arguments also. In his
arguments learned counsel for accused has contended that as
the complainant has failed to produce evidence to show
about existence of legally dischargeable debt and as the
Hospital is not made as party complaint is not maintainable,
hence, accused is entitled for acquittal. In support of his said
arguments he has relied upon the following judgements:
Judgment of Hon'ble High Court of Bombay
Criminal Appeal No.715/2003
Girish Kantappa Shetty
V/s.
State of Maharashtra
Common Judgment 16 C.C.15113 &
15114/2015
Negotiable Instruments Act, 1881 - S.118,
138 and 139 - Evidence Act, 1872 - S.114 &
111A Order of Ld Magistrate is under challenge
- Appeal against acquitted - Appellant is orig.
Complaint - Cash regarding dishonour of
cheque - Accused issued cheque to the
complainant - cheque dishonoured and return
with the memo of 'Payment stopped' - Notice
issued by the complainant - Failure of accused -
Reply complainant u/S.138 of the Act filed by
the complainant - Facts and Conditions
necessary for drawing presumption u/S.138 of
the Act - Accused admitted about presentation
of cheque - Accused denied about issued of
cheque to the complainant and alleged that his
cheques were stolen from HD office and
misused by the complainant - No rejoinder from
complainant - In reply of notice also accused
stated that his cheques were stolen which is
misused by the complainant - No particular
about the loan, given by the complainant -
Rebuttal - Appeal dismissed.
***
Judgment of Hon'ble High Court of Bombay
2001 Cri. L.J.4457
Bhikhabhai Ranchhodbhai Makwana
V/s.
State of Gujarat and another.
Negotiable Instruments Act (26 of 1881) -
S.138 - Criminal P.C.(2 of 1974), S.397 -
Dishonour of cheque - Appeal against acquittal
- Petitioner filing case under S.138 of Negotiable
Instruments Act - Accused acquitted by
Common Judgment 17 C.C.15113 &
15114/2015
Appellate Court - Appellate Court holding no
privity of contract established between petitioner
and accused respondent - So also no liability
past, present or future proved - Acquittal
proper.
***
Judgement of Hon'ble High Court of Bombay
LAWS (BOM) - 2007-11-17
Ramakant Ramchandra Dalvi
V/s.
Rashmi Raju Mhatre
Ss.138 of Negotiable Instruments Act
(1881) - In the instant case the matter is
regarding to challenge the order of acquittal -
On the ground that if some of Rs.6 lakhs was
advanced as a hand loan to accused and accused
issued a cheque for Rs.5 lakhs as security -
Cheque was dishonoured when presented -
There was no evidence - To satisfy the court -
Held, in acquitting accused - Is possible - Thus
no interference is required.
***
Judgement of Hon'ble High Court of Bombay
LAWS (BOM) - 2008-4-43
Sayeeda Iqbal Vakil
V/s.
Javed Abdul Latif Shaikh
Section.138 of Negotiable Instruments Act
(1881) - Section.378 of Criminal Procedure
Code (1973) - In the instant case the matter is
regarding appeal against acquittal and dishonour
of cheque in which it was decided by the court
Common Judgment 18 C.C.15113 &
15114/2015
that as view taken by Magistrate that there was
absence of documentary evidence to establish
and affirm the factum of advance of loan is a
reasonable and possible view and therefore no
interference should be made and application for
leave to appeal should be rejected.
***
Judgement of Hon'ble High Court of Bombay
LAWS (BOM) - 2007-8-20
Rajesh Vasantlal Shah
V/s.
Jay Prakash P.Sheth
S.138 of Negotiable Instruments Act
(1881), S.378(4) - Criminal Procedure Code -
(1973) - In the instant case the matter is
regarding the appeal against the order of the
acquittal - The plea of the accused is that
complainant unable to show that his wife had
handed over shares to accused for selling - The
plea of the accused is that cheque was stolen
from office - And not issued by him - Police
complaint was filed - Held the order of the
Dismissal of the complaint is proper - Thus no
interference is required.
***
ILR-2005 KAR-2911
Saftarsab
V/s.
B. Allaiah @ Allappa
(C) Negotiable Instruments Act-1881 -
Section.20 - Incohate Stamped Instruments -
Common Judgment 19 C.C.15113 &
15114/2015
Held - The provision makes it clear that a holder
in due course is entitled to recover the sum
which was originally intended to be paid to a
bonafide holder - It is only a bonafide holder for
value who is protected - If the holder had taken
the note for some other purpose other than for
consideration, the maker of the note is entitled to
deny such transaction.
***
Judgement of Hon'ble High Court of Bombay
LAWS (BOM) - 2009-11-9
Shivshankar B. Chaudhary
V/s.
State of Maharashtra
Negotiable Instruments Act (1881), S.138 -
Dishonour of cheque - Acquittal of accused -
Challenge to - Applicant original complainant -
Applicant admitting the difference in ink in the
body of the cheque and signature - In view of
this aspect, held, the case of the accused that
blank cheque was taken from him under threats
(Dadgiri), for which no consideration was
mentioned by him, stands to reason.
***
Judgement of Hon'ble High Court of Bombay
LAWS (BOM) - 2008-10-158
Patricio D'Souza
V/s.
Oscar D'Souza
S.138 S.139 of Negotiable Instruments Act,
1881 - In the instant case where the cheque got
Common Judgment 20 C.C.15113 &
15114/2015
dishonour - Conviction by Magistrate - Sessions
Court setting aside order of Magistrate - On
ground that - The evidence submitted by the
complainant is not in support of his complaint -
Thus complainant totally failed to support his
complaint - So no interference with Sessions
court order.
***
1995 Cri.L.J.560
Shri Taher N. Khambati
V/s.
M/s. Vinayak Enterprises, Secunderabad & Others
Negotiable Instruments Act (26 of 1881),
S.138 - Dishonour of cheque - Complainant -
Creditor advancing certain sum and obtaining a
signed blank cheque from debtors with a view to
make use of it, as a threat for realization of
amount - Cheque cannot be said to be issued
voluntarily for discharge of debt or legal liability
- Provisions of S.138, not attracted. Negotiable
Instruments - Dishonour of cheque -
Complainant - Creditor advancing certain sum
to debtor and obtain a signed blank cheque with
a view to make use of it, for realization of
amount - Cheque not issued voluntarily for
discharge of debt - Provisions of S.138 not
attracted.
***
Judgement of Hon'ble High Court of Bombay
LAWS (BOM) - 2008-4-56
Nandkishore Mehra
Common Judgment 21 C.C.15113 &
15114/2015
V/s.
Sudhir Transport Ltd.
***
Judgement of Hon'ble High Court of Madras
LAWS (MAD) - 2002-8-14
Manoharlal
V/s.
R. Sundararajan
Negotiable Instruments Act, 1881 :: S.138
Dishonour of cheque for insufficient, etc., of
funds in the account.
***
Judgement of Hon'ble High Court of Bombay
LAWS (BOM) - 2008-8-57
Mohammad Rafeeque Abbo Backer
V/s.
M. Abdulla Mohiddin Kunhi Haji
Negotiable Instruments Act, 1881 - S.118 -
Presumptions as to Negotiable Instruments of
Consideration, S.139 - Presumption in favour of
holder.
***
2014 (2) DCR 462
Harvinder Singh
V/s.
State & Anr
Negotiable Instruments Act, 1881 -
Section 138 read with Section.141 - Vicarious
Common Judgment 22 C.C.15113 &
15114/2015
liability - Determination of - Held - To
determine vicarious liability complainant should
spell out as to how and in what manner the
accused was incharge of or was responsible to
the company for conduct of its business - mere
bald cursory statement in complaint is not
sufficient.
***
2014 (2) DCR 529
Gaurav Srivasthava
V/s.
State of U.P. & Anr
Negotiable Instruments Act, 1881 -
Section 138 - Criminal Procedure Code, 1973 -
Section 482 - Dishonour of cheque -
Maintainability of complaint - Held - Since,
admitted, impugned complaint is not against the
company, the proceedings under Section.138,
N.I. Act cannot be sustained as against the
applicant who is admittedly not drawer of
cheque.
***
2015 (1) DCR 485
Sanjiv Singhal
V/s.
ECE Industries Ltd.
Negotiable Instruments Act, 1881 -
Section 138 read with Section.141 - Criminal
Procedure Code, 1973 - Section.482 - Vicarious
liability - Determination - Held -
Petitioner/Directors is neither responsible nor
Common Judgment 23 C.C.15113 &
15114/2015
incharge of day to day affairs of business of
company, so is not liable for offence under
Section.138/141 of N.I. Act - Proceedings
against him is liable to be quashed - Petition is
allowed.
***
2013 (1) DCR 274
Lav Jhingan
V/s.
State of West Bengal & Anr
Negotiable Instruments Act, 1881 -
Section 138 read with Section.141 - Vicarious
liability - Ingredients for - Held - To determine
a person vicariously liable for offence under
Section.138 N.I. Act is necessary to provide
concerning person should be in charge of and
responsible for conduct of business of company
at the relevant time.
***
2014 (3) DCR 374
Smt. Chabi Bhoralee @ Chabbi Bhoralee
V/s.
The State of Assam & Anr
Negotiable Instruments Act, 1881 -
Section 138/141 - Criminal Procedure Code,
1973 - Section.482 - Offence by company -
Liability of Director - Held - Merely because
one is a Director of company is not sufficient to
make him liable under Section.141 of N.I. Act.
***
Common Judgment 24 C.C.15113 &
15114/2015
Judgement of Hon'ble Delhi District Court
Cri. Appeal No.16/10
Shri Anil Jain
V/s.
Shri Deepak Goyal
***
Judgement of Hon'ble High Court of Madras
LAWS (MAD) - 2007-8-410
P. Snehalatha
V/s.
Victory Leathers
***
15. On perusal of the evidence of both the parties and
arguments of their counsels it appears that as rightly argued
by the counsel for complainant as per Section.139 of
Negotiable Instruments Act when accused admits that
cheques in question are belongs to him and signature in the
cheques are also belongs to him, it is necessary to presume
that accused has issued cheques for payment of legally
dischargeable debt and burden lies on the accused to rebut
the presumption. Further more in its recent judgment of
Hon'ble Supreme Court of India reported in 2015(4) KCCR
Common Judgment 25 C.C.15113 &
15114/2015
2881 (SC), the Hon'ble Supreme Court has held that, when
admittedly cheques are belongs to accused, as per
Section.139 of Negotiable Instrument Act, it is proper to
raise presumption infavour of complainant about existence
of legally dischargeable debt and burden lies on the accused
to rebut the presumption. Here in this case though accused
denied the fact that he has agreed to pay the dues of Rame
Gowda and issued cheques and letterheads marked at Ex.P3
and P8 respectively, accused is not a common man to say
that he used to put signature on blank cheques and
letterheads, in fact he is a practicing Doctor and running
three hospitals as stated by him only. Further more though
accused contended that Rame Gowda and Ramamurthy have
colluded with complainant officials and created cheques and
letterheads, accused himself examined Ramamurthy as
D.W.2 who also deposed that now also he is working in the
same Hospital and till now accused has not at all taken any
action against the said witness for misusing of cheques and
blank letterheads allegedly given to him for some other
Common Judgment 26 C.C.15113 &
15114/2015
purpose which also creates doubt about truthness of the
defense of the accused. Even if complainant has not
produced documents pertaining to chit transaction of Rame
Gowda and his relatives. In cross-examination of P.W.1
counsel for accused himself suggested that after 24-03-2015
also Rame Gowda has paid some portion of money in
respect of the chits in question which goes to show that
accused has got knowledge about chit transaction of Rame
Gowda. Further more even if cheques are dishonoured with
endorsements as 'Payment stopped by drawer', accused has
not at all disclosed any thing about as to when he came to
know about the misuse of the cheques and he has not
produced copy of the intimation issued to Bank to stop
payment of the cheques amount. Further more by looking to
documents it appears that though in complaint it is stated
that notice is returned with endorsement as 'Refused', Ex.P7
acknowledgement shows that notice is received by some
persons on behalf of the accused and accused has replied
through his counsel in which it is stated that accused is not
Common Judgment 27 C.C.15113 &
15114/2015
the signatory of the cheque which is contrary to defense of
the accused. Further more in said reply notice accused has
not at all disclosed anything about misuse of the cheques
handed over by him to Ramamurthy. Therefore it appears
that defence of the accused that he has handed over the
blank cheques and letterheads to Manager of the Hospital
namely Ramamurthy and colluding with the Rame Gowda
and Ramamurthy complainant officials have misused the
blank cheques and letterheads appears tobe false. Therefore
accused has failed to rebut the presumption regarding
issuance of cheque for payment of legally dischargeable debt.
16. Regarding contention of the accused about
maintainability of the complaint for not making the Hospital
as party to the proceedings, as rightly argued by the counsel
for complainant, as the debt in question is personal
transaction of Rame Gowda, accused has issued cheques not
only as Managing Director of the Hospital but also as close
relative of Rame Gowda, the contention of the accused that
Common Judgment 28 C.C.15113 &
15114/2015
complaint is not maintainable for not making the Hospital as
party to the proceedings is incorrect, therefore it appears that
as there is evidence to show that accused has issued cheques
in question for payment of legally dischargeable debt, on
presentation said cheques are dishonoured and returned with
an endorsements as 'Payment stopped by drawer', after that
complainant has complied conditions of Section.138 of
Negotiable Instruments Act, after that also accused has failed
to pay the amounts involved in the cheques, therefore
accused is liable for conviction of the offence punishable
under Section.138 of Negotiable Instruments Act. However,
when the matter was posted for arguments, counsel for
complainant has filed a memo stating that in
C.C.15113/2015 accused and other persons have paid
Rs.19,53,810/- and Rs.18,01,500/- in C.C.15114/2015
during pendency of the matters, it is decided to impose fine
by considering the payments made by the concerned persons
during pendency of the matters. Further more as the
transaction in question is commercial in nature, it is decided
Common Judgment 29 C.C.15113 &
15114/2015
to impose fine only to the extent of double the balance
amount of the cheques but not to send the accused to
prison. Hence, I answered Point No.1 in Affirmative.
17. POINT NO.2: In view of my findings on Point
No.1, I proceed to pass the following:
ORDER
Acting under Section.265 of Cr.P.C., accused in both the cases i.e., C.C.15113/2015 and C.C.15114/2015 is convicted for the offence punishable under Section.138 of Negotiable Instruments Act.
Accused in C.C.15113/2015 shall pay fine of Rs.40,92,380/-. Out of the fine amount Rs.40,00,000/- is ordered to be paid to the complainant as compensation and remaining amount of Rs.92,380/- is ordered to be remitted to the State Accused in C.C.15114/2015 shall pay fine of Rs.17,00,000/-. Out of the fine amount Rs.16,50,000/- is ordered to be paid to the Common Judgment 30 C.C.15113 & 15114/2015 complainant as compensation and remaining amount of Rs.50,000/- is ordered to be remitted to the State Office is directed to keep the judgment copy in both the cases.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 23rd day of January-2016.) (MALLANA GOUDA) XXVII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE (IN C.C. 15113/2015) List of Witnesses examined on behalf of Complainant:
PW.1 : K.N. Ramesh List of Exhibits marked on behalf of Complainant:
Ex.P1 : Authorization Letter Ex.P2 : Board Resolution copy Ex.P3 : Cheque Ex.P4 : Bank endorsement Ex.P5 : Notice copy Ex.P6 : Postal receipt Ex.P7 : Postal acknowledgment Ex.P8 : Under taking Letter dated: 06-03-2015 Ex.P9 & 10 : Notice copies issued by nominee of D.R. Ex.P11& 12 : Order copies issued by nominee of D.R. Ex.P13 & 14 : Subscribers account extracts List of Witnesses examined on behalf of the defence:
Common Judgment 31 C.C.15113 & 15114/2015 D.W.1 : Dr. Narayanaswamy :
D.W.2 Ramamurthy List of Exhibits marked on behalf of defence:
Ex.D1 : Copy of Agreement of Management
Ex.D2 : Copy of Application before D.R. of Chits
Ex.D3 : Copy of Authorization Letter
Ex.D4 : Copy of Resolution
Ex.D5 : Copy of Order
Ex.D6 : Copy of Chit commencement certificate
Ex.D7 : Copy of Chit Agreement
Ex.D8 : Copy of Acknowledgement
Ex.D9 : Statement copy
Ex.D10 : Promissory Note copy
Ex.D11 : Copy of Agreement of guaranty
Ex.D12 : Copy of Surety proposal form
Ex.D13 : Copy of Legal notice
Ex.D14 to 16 : Copy of Acknowledgements
Ex.D17 : Copy of Payment voucher
Ex.D18 : Copy of Order sheet in case before D.R.
of Chits
Ex.D19 : Copy of Copy of Application before D.R.
of Chits
Ex.D20 : Copy of Authorization Letter
Ex.D21 : Resolution copy
Ex.D22 : Order copy
Ex.D23 : Copy of Chit commencement certificate
Ex.D24 : Copy of Chit Agreement
Ex.D25 : Copy of Acknowledgement
Ex.D26 : Copy of Statement copy
Ex.D27 : Promissory Note copy
Ex.D28 : Copy of Agreement of guaranty
Ex.D29 : Copy of Surety proposal form
Ex.D30 : Copy of Legal notice
Ex.D31to33 : Copy of Undelivered Postal covers
Ex.D34 & 35 : Copy of Notice of conditional
attachment issued by nominee of the D.R. of Chits Common Judgment 32 C.C.15113 & 15114/2015 Ex.D36 : Copy of O.T. Register (MALLANA GOUDA) XXVII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE (IN C.C. 15114/2015) List of Witnesses examined on behalf of Complainant:
PW.1 : K.N. Ramesh List of Exhibits marked on behalf of Complainant:
Ex.P1 : Authorization Letter Ex.P2 : Board Resolution copy Ex.P3 : Cheque Ex.P4 : Bank endorsement Ex.P5 : Notice copy Ex.P6 : Postal receipt Ex.P7 : Postal acknowledgment Ex.P8 : Under taking Letter dated: 06-03-2015 Ex.P9 & 10 : Notice copies issued by nominee of D.R. Ex.P11 : Reply notice
List of Witnesses examined on behalf of the defence:
D.W.1 : Dr. Narayanaswamy D.W.2 : Ramamurthy
List of Exhibits marked on behalf of defence:
- Nil -
(MALLANA GOUDA) XXVII Addl. Chief Metropolitan Magistrate, Bengaluru.