Bangalore District Court
Sri.A.R.Mallana Gowd vs Smt.Geethamani on 6 June, 2018
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 6TH DAY OF JUNE, 2018.
C.C.No.50483/2013
COMPLAINANT : Sri.A.R.Mallana Gowd,
S/o. Sri.A.R.Murugendra Gowd,
Age: 74 years, working as SEVADAL,
S.S.S.I.H.M.S., E.P.I.P., Area,
White Field, Bangaluru - 560066.
.Vs.
ACCUSED : Smt.Geethamani,
W/o.Sri.Nagaraj,
Age: 35 years,
Working as Staff Nurse, Cardiac Ward,
S.S.S.I.H.M.S., E.P.I.P, Area,
White Field, Bangaluru - 560066.
Also at;
Smt.Geethamani, W/o.Sri.Nagaraj,
Age: 35 years,
R/o. No.89, Near Ayyappa Temple,
Sulikunte Colony, Dommasandra Post,
Bangalore - 562125.
****
JUDGMENT
The complainant filed this complaint against the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
2 C.C.No.50483-20132. The complaint case in nutshell is that the complainant is a volunteer in the Satya Sai Hospital for more than 12 years wherein the accused was also working as a staff nurse since 8-9 years. The accused has developed good acquaintance with the complainant and used to borrow money from the complainant since April 2006. Once the accused borrowed Rs.70,000/- and that has been repaid by her promptly in monthly installments. The complainant claims that in the month of August 2011 the accused requested the complainant to advance Rs.2,00,000/-. The complainant considering the good behavior of the accused and also repayment of earlier amount advanced a sum of Rs.1,00,000/- between September to November 2011. In the month of December 2011 the accused borrowed Rs.10,000/- from the complainant similarly the accused also borrowed Rs.5,000/- in the month of March 2012 and Rs.25,000/- in the month of May 2012. Again in the month of June 2012 the accused borrowed Rs.31,000/- in order to shift her house. Thereafter in the month of August 2012 the accused borrowed Rs.20,000/- from the complainant at the time of marriage of her daughter. The complainant claims accused used to borrow amounts like Rs.200/-, Rs.500/-, Rs.1,000/- etc., in all she has borrowed Rs.96,000/- from the complainant till 2012 excluding Rs.1,00,000/- borrowed by her in between September 2011 to November 2011. The complainant claims that in the month of March 2012 the accused has borrowed a sum of Rs.90,000/- from the complainant in order to clear the car loan of her husband. The accused used to repay the 3 C.C.No.50483-2013 amount in installments and in the month of September 2012 the complainant and accused entered into a final settlement of their loan transaction. Accordingly the accused was liable to pay Rs.1,58,150/- both principle and interest. At that time the accused paid Rs.85,000/- in cash and the balance was Rs.73,150/-. In order to pay the said amount of Rs.73,150/- the accused has issued a cheque bearing No.203347 dtd:19.10.2012 drawn on Bank of India, Whitefield Branch. Accordingly the complainant presented the said cheque for encashment on 30.10.2012 and that has been returned without encashment, as such when the complainant informed the said fact to the accused, the accused requested the complainant to grant some more time hence, again the complainant presented the said cheque for encashment in the month of December 2012 and even at that time the cheque has been returned without encashment with bank memo dtd:26.12.2012 stating "Funds Insufficient". Thereafter the complainant caused a demand notice on 23.01.2013. The notice sent to the hospital address of the accused served on 24.01.2010 and another notice returned with postal endorsement stating "party not in station, return to the sender". The accused inspite of the service of notice 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 4 C.C.No.50483-2013 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. To prove the case, the complainant got examined himself as P.W.1 and got marked documents at Ex.P.1 to P.8.
6. On closure of complainant side evidence, the accused statement has been recorded under Sec.313(1)(b) of Cr.P.C., by placing the incriminating evidence appeared against the accused that are denied by the accused.
7. The accused in support of her defense examined herself as D.W.1 and also one more witness as D.W.2. The case made out by the accused in her defense is that she and complainant were working at Satya Sai Hospital, one Muniyamma introduced the complainant to her stating that the complainant is advancing the loan on interest basis. The accused claims that whenever loan is to be taken from the complainant, the person who has borrowed the loan has to hand over the signed blank cheque and ATM to the complainant. The complainant used to withdraw money from the bank account and adjust the interest and principle amount to his loan and the remaining amount was given to the person who borrowed loan from the complainant. The accused admitted that for the first time she 5 C.C.No.50483-2013 has borrowed loan of Rs.15,000/- in the year 2006 similarly in the year 2012 in order to meet the engagement expenses of her daughter she borrowed a sum of Rs.90,000/- from the complainant and that has been repaid by her in 8 installments of Rs.15,000/- each. The accused also claims that remaining amount of Rs.70,000/- has been given by her in cash in the year 2013 along with her aunt in the hospital. The accused also claimed on the same day the complainant told her that loan amount has been cleared and promised to return the cheque and other documents. Subsequently the complainant claimed that loan amount has been cleared. The accused also claims that thereafter the accused approached the complainant along with her colleague Navneeta and asked him to return the blank cheque as well as ATM card but the complainant has not returned the same to the accused but quarreled with her. The accused also claims that thereafter she has blocked her ATM card and obtained the new ATM card and she h as forgotten her cheque with the complainant and subsequently she received notice from the court and claimed that she is not owing any money to the complainant and prayed for dismissal of complaint. The accused also produced her bank statement at Ex.D.1 claiming that the complainant has withdrawn money from her bank account through her ATM card.
8. 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?"6 C.C.No.50483-2013
9. 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
10. The specific case of the complainant is that the complainant is a volunteer in the Satya Sai Hospital for more than 12 years wherein the accused was also working as a staff nurse since 8-9 years. The accused has developed good acquaintance with the complainant and used to borrow money from the complainant since April 2006. Once the accused borrowed Rs.70,000/- and that has been repaid by her promptly in monthly installments. The complainant claims that in the month of August 2011 the accused requested the complainant to advance Rs.2,00,000/-. The complainant considering the good behavior of the accused and also repayment of earlier amount advanced a sum of Rs.1,00,000/- between September to November 2011. In the month of December 2011 the accused borrowed Rs.10,000/- from the complainant similarly the accused also borrowed Rs.5,000/- in the month of March 2012 and Rs.25,000/- in the month of May 2012. Again in the month of June 2012 the accused borrowed Rs.31,000/- in order to shift her house. Thereafter in the month of August 2012 the accused borrowed Rs.20,000/- from the complainant at the time of marriage of her daughter. The complainant claims accused used to borrow amounts like Rs.200/-, Rs.500/-, Rs.1,000/- etc., in all she has borrowed Rs.96,000/- from the complainant till 2012 excluding Rs.1,00,000/-
7 C.C.No.50483-2013borrowed by her in between September 2011 to November 2011. The complainant claims that in the month of March 2012 the accused has borrowed a sum of Rs.90,000/- from the complainant in order to clear the car loan of her husband. The accused used to repay the amount in installments and in the month of September 2012 the complainant and accused entered into a final settlement of their loan transaction. Accordingly the accused was liable to pay Rs.1,58,150/- both principle and interest. At that time the accused paid Rs.85,000/- in cash and the balance was Rs.73,150/-. In order to pay the said amount of Rs.73,150/- the accused has issued a cheque bearing No.203347 dtd:19.10.2012 drawn on Bank of India, Whitefield Branch. Accordingly the complainant presented the said cheque for encashment on 30.10.2012 and that has been returned without encashment, as such when the complainant informed the said fact to the accused, the accused requested the complainant to grant some more time hence, again the complainant presented the said cheque for encashment in the month of December 2012 and even at that time the cheque has been returned without encashment with bank memo dtd:26.12.2012 stating "Funds Insufficient". Thereafter the complainant caused a demand notice on 23.01.2013. The notice sent to the hospital address of the accused served on 24.01.2010 and another notice returned with postal endorsement stating "party not in station, return to the sender". The accused inspite of the service of notice failed to comply with the notice. Hence, filed this complaint.
8 C.C.No.50483-201311. The accused in support of her defense examined herself as D.W.1 and also one more witness as D.W.2. The case made out by the accused in her defense is that she and complainant were working at Satya Sai Hospital, one Muniyamma introduced the complainant to her stating that the complainant is advancing the loan on interest basis. The accused claims that whenever loan is to be taken from the complainant, the person who has borrowed the loan has to hand over the signed blank cheque and ATM to the complainant. The complainant used to withdraw money from the bank account and adjust the interest and principle amount to his loan and the remaining amount was given to the person who borrowed loan from the complainant. The accused admitted that for the first time she has borrowed loan of Rs.15,000/- in the year 2006 similarly in the year 2012 in order to meet the engagement expenses of her daughter she borrowed a sum of Rs.90,000/- from the complainant and that has been repaid by her in 8 installments of Rs.15,000/- each. The accused also claims that remaining amount of Rs.70,000/- has been given by her in cash in the year 2013 along with her aunt in the hospital. The accused also claimed on the same day the complainant told her that loan amount has been cleared and promised to return the cheque and other documents. Subsequently the complainant claimed that loan amount has been cleared. The accused also claims that thereafter the accused approached the complainant along with her colleague Navneeta and asked him to return the blank cheque as well as ATM card but the complainant has 9 C.C.No.50483-2013 not returned the same to the accused but quarreled with her. The accused also claims that thereafter she has blocked her ATM card and obtained the new ATM card and she h as forgotten her cheque with the complainant and subsequently she received notice from the court and claimed that she is not owing any money to the complainant and prayed for dismissal of complaint. The accused also produced her bank statement at Ex.D.1 claiming that the complainant has withdrawn money from her bank account through her ATM card.
12. The complainant in support of his case got examined himself as P.W.1 by filing evidence affidavit wherein she stated in consonance with the complaint case. The complainant also produced documents at Ex.P.1 to 8. 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 are the 2 postal receipts, Ex.P.5 and Ex.P.5(a) are the un served postal cover and notice, Ex.P.6 is the letter written to the postal authority, Ex.P.7 is the 2 website extracts, Ex.P.8 is the letter issued by the postal authority. The admission given by the accused in her defense evidence as well as during the cross-examination of complainant sufficiently discloses that there is a loan transaction between the complainant and accused. the accused also admitted the issuance of cheque in favour of the complainant and even the signature of the accused in the cheque is not in dispute. The cheque has been dishonoured for want of sufficient funds in the bank account of the accused. The complainant presented the cheque for encashment within its validity, the legal notice has been issued in time and even the complaint has 10 C.C.No.50483-2013 been filed in time. The material on record also discloses that the notice has been sent to the correct address and the notice has been duly served on the accused and inspite of that the accused failed to pay the cheque amount to the complainant within prescribed period. All these facts prima-facie discloses that the accused has issued the cheque towards the discharge of legally enforceable debt. Hence, the presumption under Sec.139 of N.I.Act has to be drawn in favor of the complainant.
13. When the complainant made out a case to draw the presumption under Sec.139 of N.I.Act, the burden shifts on the accused to prove the contrary to the complaint case or to give rebuttal evidence so that the court can disbelieve the complaint case. As already stated earlier, the accused also admitted the loan transaction between her and the complainant. The definite defense of the accused is that whenever the amount borrowed by her has been repaid by her to the complainant. The accused also claims that her ATM card was with the complainant and the complainant himself used to withdraw money from the bank account of the accused through the ATM card. Therefore, the burden shifts on the accused to prove the said facts.
14. As already stated above, the loan transaction as claimed by the complainant is admitted by the accused. The complainant in the complaint itself claims that for the first time the accused borrowed the loan from him in the year 2006. Even the accused admitted the 11 C.C.No.50483-2013 same. The cross-examination of D.W.1 also substantiate the claim of complainant that on various dates claimed by complainant, the accused admitted that on such dates she has borrowed the loan from the complainant. Of course she disputed the amount claimed by the complainant. Therefore, whatever the date claimed by the complainant that he has advanced the money to the accused has been admitted by the accused herself. The accused also admitted the issuance of cheque in favour of the complainant. It is the case of the complainant that in the month of September 2012 the entire loan amounts were decided to be settled between the parties by calculating the interest up to September 2012 and the amount was settled for Rs.1,58,150/-. At the time of settling the amount, the accused has paid a sum of Rs.85,000/- out of the total amount and balance was Rs.75,150/- for which the accused has issued the cheque. The settlement of dispute in the month of September 2012 has been admitted by the accused during her cross-examination at page No.6 wherein the accused specifically admitted that she has paid Rs.85,000/- in cash to the complainant. The said fact has not claimed by the accused during her evidence. If at all the matter has been settled in the month of September 2012 and she has paid Rs.85,000/- in the month of September 2012 certainly she would have stated the said fact if she is fair enough to the court. The entire chief examination of the accused nowhere discloses the said fact. Therefore, the said fact sufficiently probablise the case of the complainant that the matter has been settled for Rs.1,58,150/- in the 12 C.C.No.50483-2013 month of September 2012 and in the said month the accused has paid Rs.85,000/- and towards the balance amount of Rs.73,150/- this accused has issued the Ex.P.1 cheque.
15. As already stated earlier, the transaction is admitted and undisputed fact in this case. The defense of the accused that the complainant was insisting to hand over the ATM of the borrower and the complainant himself used to withdraw the money from the bank account of the borrower by using their ATM card and he will adjust the money to the interest and principle amount and whatever the remaining amount he used to pay to the borrower. Similarly the accused claimed that her ATM card is with the complainant and the complainant himself used to withdraw the money from the bank and remaining amount used to pay by him to the accused. Hence, the said fact is to be proved by the accused herself.
16. In order to prove the said fact that her ATM Card with the complainant and the complainant himself has withdrawn the amount from her bank account by using her ATM card the accused produced her bank statement at Ex.D.1. In the said Ex.D.1, she has highlighted certain amount with yellow marker pen stating that the amount highlighted under the yellow marker pen is the amount withdrawn by the complainant by using the ATM of accused. It is the definite case of the accused that the ATM card was with the complainant himself and that was not with her. If it were so, whenever the amount has been withdrawn by using the ATM card 13 C.C.No.50483-2013 should be by the complainant himself. The Ex.D.1 discloses that there is ATM withdrawal claimed by the accused and also there were several other ATM withdrawals found in Ex.D.1 other than the withdrawals mentioned in yellow color. Admittedly the accused had only one ATM card and that was in the possession of complainant but the accused has not claimed that the remaining withdrawal of ATM is also made by the complainant himself.
17. The accused claimed that the complainant has withdrawn money from the bank account of the accused by using her ATM card on 02.01.2010, 01.02.2010, 01.03.2010, 06.04.2010, 04.05.2010, 02.07.2010, 03.08.2010, 04.10.2010, 02.11.2010, 03.01.2011, 02.07.2011, 02.08.2011, 02.09.2011, 04.10.2011, 02.11.2011, 01.12.2011, 03.01.2012, 03.02.2012, 01.08.2012, 03.09.2012, 02.11.2012, 04.11.2012, 02.01.2013, 04.02.2013, 02.03.2013, 03.04.2013, 02.05.2013, 03.06.2013, 10.08.2013, 03.12.2013. Therefore, according to accused whatever the amount withdrawn on the aforesaid date through ATM is by the complainant and whatever the amount withdrawn thereafter from her bank account by using the ATM is not by the complainant. The said statement at Ex.D.1 also discloses the withdrawal of Rs.1,700/- on 02.03.2010, Rs.15,000/- as on 02.06.2010, Rs.700/- on 03.06.2010, Rs.15,000/- on 26.06.2010, Rs.200/- on 07.07.2011, Rs.15,000/- on 05.10.2011, Rs.2,000/- on 08.11.2011, Rs.7,000/- on 02.12.2011, Rs.10,700/- and Rs.2,000/- on 02.08.2012 and Rs.5,000/- on 01.09.2012 and Rs.1,900/- on 07.09.2012 and Rs.1,500/- on 10.12.2012 and Rs.10,000/- on 14 C.C.No.50483-2013 03.11.2012 and Rs.11,000/- on 05.12.2012 and apart from these withdrawals there are so many such entries discloses that there are several withdrawals by using the ATM card. The said withdrawal of amount is not withdrawn by the complainant even according to the claim of the accused. If at all the ATM card is with the complainant then even the aforesaid amounts has to be withdrawn by the complainant himself. According to the argument advanced by the accused, the complainant in total withdrawn money from the bank account of accused on 37 times. Apart said ATM withdrawals there were other 37 ATM withdrawals found in the Ex.D.1 bank statement. Therefore there were altogether 74 ATM withdrawals found in Ex.D.1. Who has withdrawn the money by using ATM that has not marked or identified by the accused in the Ex.D.1 statement is without any explanation. The said fact totally falsifies the claim of the accused that her ATM was with the complainant and complainant has withdrawn money from her bank account by using her ATM card. When the accused failed to prove the fact that ATM withdrawals from the complainant certainly her claim that she has paid the money to complainant as per Ex.D.1 cannot be accepted.
18. If the evidence of accused in her evidence is accepted she has borrowed only Rs.15,000/- in the year 2006 and thereafter she has borrowed a sum of Rs.90,000/- in the year 2012. If that is accepted, the accused claimed that she has only borrowed Rs.1,15,000/- from the complainant. Now, the claim of the accused has to be considered that her bank ATM was with the complainant and he has withdrawn 15 C.C.No.50483-2013 the amount from her ATM towards the loan. The accused produced her bank statement Ex.D.1 and the counsel for the accused while advancing the argument claimed that the amount withdrawn by the complainant from the bank account of the accused to the ATM of accused has been shown in the yellow color marking. If the withdrawal found in the Ex.D.1 identified with yellow color is accepted, the total amount withdrawn is Rs.4,03,900/-. If really the accused has borrowed only Rs.1,15,000/- from the complainant certainly she would not have allowed the complainant to withdraw Rs.4,03,900/- from her bank account. It is also relevant to note that the accused in her evidence also claimed that in the year 2013 she has paid Rs.70,000/- to the complainant in cash. Apart from that during the cross-examination the accused also admitted that she has paid Rs.85,000/- as claimed by the complainant in the month of September 2012. If all these amounts have been added together it will come to Rs.5,58,900/-. These facts also falsifies the claim of the accused but certainly these claim probablise the case of the complainant that whatever the amount claimed by the complainant has been borrowed by the accused. The clear cut admission of accused during her cross-examination also substantiate the fact that on all the occasions claimed by the complainant, the accused has borrowed loan from the complainant.
19. It is the definite case of the accused that ATM card has been taken by the complainant and he has misused the same. The accused also claims that the complainant even after the repayment of 16 C.C.No.50483-2013 money has not returned the signed blank cheque as well as ATM Card. Subsequently there was a quarrel between the accused and the complainant and the complainant refused to return the cheque and the ATM card. Hence, the accused claimed that she has blocked the earlier ATM Card and obtained fresh ATM Card and she also has forgotten the blank cheque. The accused came to know about the case only when she receive summons from the court. In spite of knowing the filing of case, the accused has not initiated any legal proceedings against the accused till this date. As claimed by the accused, there was a quarrel between her and the complainant regarding the return of ATM Card and cheque and also claimed that she has obtained new ATM Card. If it were so, certainly the accused ought to have issued stop payment instructions to her banker. There is also no material on record to show that the accused has obtained any new ATM Card nor issued any stop payment instructions to her banker in respect of Ex.P.1 cheque.
20. The accused examined one witness as D.W.2 in support of her defense. D.W.2 is the co-worker of the accused. The admission of the D.W.2 discloses that her evidence affidavit has been got prepared by the accused and she has not given any instructions to prepare her evidence affidavit. When such is the case certainly her evidence affidavit cannot be accepted. Apart from that the documentary evidence i.e., the bank statement of the accused at Ex.D.1 also falsifies the claim of the accused that the ATM Card is with the 17 C.C.No.50483-2013 complainant. Under such circumstances much importance cannot be attached to the evidence of D.W.2.
21. The accused also claimed that the complainant is a money lender but to substantiate the said fact the accused has not placed any material before the court. The accused also not made out a case to show that to whom the complainant has advanced money. Merely because the complainant claimed the interest to the out standing amount from the accused it cannot be said that the complainant is doing a money lending business.
22. The counsel for the accused claimed that the complainant has given a different date regarding the issuance of cheque. It is true that there is a minor contradictions in the complaint evidence and there is a difference in the date of issuance of the cheque in the complaint and evidence of the complainant. At this juncture it is relevant to note that the transaction claimed by the complainant is of the month of September 2012. The complainant has been cross- examined by the accused on 20.11.2017 i.e., almost after the lapse of 5 years. The complainant is 78 years old man hence, there is every possibilities of minor discrepancies due to the lapse of time. The offence under Sec.138 of N.I.Act is totally based on the documentary evidence such as cheque, bank memo, demand notice, service of notice and filing of the complaint. All those are in time and complied by the complainant. Further in view of the aforesaid discussion the few discrepancies in the complaint case are not at all 18 C.C.No.50483-2013 fetal particularly when the accused admitted the transaction as well as issuance of cheque. The accused also failed to make out the probable defense in the case. Hence, the case of the complainant has to be accepted.
23. 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 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 dated 19.10.2012 as per Ex.P.1 and thus, the accused has to pay interest on the cheque amount from the date of cheque and so, the accused has to pay interest for about 5 years 7 months till this date. If the interest is calculated at 18% P.A. to the cheque 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.73,150/- and if the interest is calculated for 67 months, the accused shall pay the interest to the complainant at 18% P.A. that amounts to Rs.73,516/-. The case is pending nearly about 5 years 7 months as such if the cost of Rs.2,000/- is added to the compensation, it will comes to 19 C.C.No.50483-2013 Rs.1,48,666/- (Cheque amount is Rs.73,150/-, interest is Rs.73,516/- and cost Rs.2,000/-). Hence, this court is of the humble opinion that in all the complainant is entitled for compensation amount of Rs.1,48,666/-. 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 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.
20 C.C.No.50483-201324. 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 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."
25. 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;
21 C.C.No.50483-2013ORDER 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.5,000/-. 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.1,48,666/- to the complainant. In default to pay compensation, the accused shall undergo simple imprisonment of a period of 1 year.
Office 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 6th day of June, 2018) (PADMA PRASAD), LVII ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Sri.A.R.Mallana Gowd
22 C.C.No.50483-2013
2. Documents marked on behalf of complainant:
Ex.P.1 : Cheque
Ex.P.1(a) : Signature of the accused
Ex.P.2 Bank Return Memos
Ex.P.3 : O/c of the legal notice
Ex.P.4 : 2 Postal Receipts
Ex.P.5 : Unserved postal cover
Ex.P.5(a) : Unserved notice
Ex.P.6 : Letter written to postal authority
Ex.P.7 : 2 Website extracts
Ex.P.8 : Letter issued by postal authority
3. Witnesses examined on behalf of Accused:
D.W.1 : Smt.Geethamani
D.W.2 : Smt.Naveetha.B
4. Documents marked on behalf of Accused:
Ex.D.1 : Bank Statement
(PADMA PRASAD)
LVII ACMM, BENGALURU.