Bangalore District Court
Smt.Asha Bai R vs Sri.Selvanarayan on 6 March, 2023
1 C.C. No.28119/2019 Judgt.
KABC030870642019
Presented on : 26-11-2019
Registered on : 26-11-2019
Decided on : 06-03-2023
Duration : 3 years, 3 months,
10 days
IN THE COURT OF THE XII ACMM, BENGALURU
Dated: This the 6th day of March, 2023
Present:
Smt. Reshma H.K., B.A.,LL.B.,
C/c XII ACMM, Bengaluru
C.C.No.28119/2019
Complainant : Smt.Asha Bai R,
W/o H.B.Manjunatha,
Aged about 36 years,
R/at: No.NA-346, BEL Colony,
near BEL Factory, Jalahalli,
Bengaluru South,
Bengaluru - 560013.
(By Smt.B.R., Adv)
V/s
Accused : Sri.Selvanarayan,
S/o Kothandan,
Aged about 40years,
R/at:No.02,
Nanjappa Garden,
Viveknagar,
2 C.C. No.28119/2019 Judgt.
Bengaluru North,
Bengaluru - 560047.
And also at: Staff No.212637,
Material Inspector/MCF,
Bharath Electronics-560013.
Phone No.080-22195644.
(By Sri.K.P., Adv.)
JUDGMENT
This is the complaint filed by the complainant under section 200 of Cr.P.C. against the accused for the offence punishable under section 138 of Negotiable Instruments Act and to take cognizance of the offence to punish the accused in accordance with law.
2. The factual matrix of the complaint is that the accused and complainant are working at BEL Factory and known to each other. Further the accused approached the complainant for a hand loan of Rs.1,50,000/- in the month of February 2019 to meet his urgent and legal necessities. The complainant handed over an amount of Rs.1,50,000/- to the accused by way of cash on 10/2/2019, but the accused failed to repay the same. After several requests and demands made by the complainant, accused issued a Cheque bearing No.727944 dated:18/7/2019 for an amount of Rs.1,50,000/- drawn on State Bank of India, BEL 3 C.C. No.28119/2019 Judgt. Campus Branch, Bengaluru in favour of complainant.
3. Further, the complainant has presented the said cheque through her banker i.e., State Bank of India, BEL Campus Branch, Bengaluru but to the shock and surprise of the complainant the said cheque returned unpaid as 'Funds Insufficient' as per bank memo dated:8/8/2019. Thereafter, the complainant issued Legal notice dated:20/9/2019 to the accused through R.P.A.D calling upon her to pay the amount covered under the cheque within the stipulated period and the same was served to the accused. Hence, the complainant filed the present complaint against the accused for the offence punishable under section 138 of Negotiable Instrument Act.
4. This court after perusing records, cognizance of the offence was taken and there on sworn statement of the complainant was also recorded. The criminal case has been registered against the accused for the offence punishable under section 138 of N.I. Act.
5. Upon service of summons, accused appeared through his counsel and enlarged on bail. Thereafter, the court has recorded the plea of the accused and he did not pleaded guilty of the offence and claims to be tried. Hence, the case was posted for 4 C.C. No.28119/2019 Judgt. trial.
6. The complainant in order to prove his case, she herself examined as PW.1 and got marked 9 documents i.e., Ex.P-1 to Ex.P-9. Original Cheque marked as Ex.P.1, Signature of accused marked as Ex.P.1(a), Bank Challan marked as Ex.P.2, Return Memo marked as Ex.P.3 Legal Notice marked as Ex.P.4, Postal Receipts marked as Ex.P.5 & 6, Postal Acknowledgments marked as Ex.P.7 & 8, Reply notice marked as Ex.P.9.
7. After completion of the evidence of complainant, the substance of the evidence has been read over and explained to the accused under section 313 of Cr.P.C. the accused is denied the incriminating evidence available against him and stated that he has returned the amount received from the complainant. Though during the said statement choose to lead evidence on his behalf, but during the course of trial accused failed to place his defence before the court.
8. Heard arguments and perused the materials placed before me. The following points would arise for consideration.
1. Whether the complainant proves that the accused issued Cheque bearing No.727944 5 C.C. No.28119/2019 Judgt. dated:18/7/2019 for an amount of Rs.1,50,000/- drawn on State Bank of India, BEL Campus Branch, Bengaluru in favour of complainant and it was presented within the validity period and same are returned unpaid on account of "Funds Insufficient"
and thereby caused the dishonor of cheque and inspite of legal notice, the accused fail to make payment and thereby committed an offence punishable under section 138 of Negotiable Instrument Act?
2. What Order?
9. My findings on the above points are as under:-
Point No.1: In the "Affirmative" Point No.2: As per the final orders for the following:
BRIEF STATEMENT OF REASONS FOR THE DECISION
10. Point No.1: The definite case of the complainant is that with respect to returning of hand loan and due amount, accused issued Cheque bearing No.727944 dated:18/7/2019 for an amount of Rs.1,50,000/- drawn on State Bank of India, BEL Campus Branch, Bengaluru in favour of complainant. Further, the complainant has presented the above said cheque for collection. But the cheque was dishonored for 'Funds Insufficient'. It is further the case of the complainant is that 6 C.C. No.28119/2019 Judgt. inspite of oral requests, the accused has not repaid the amount and hence, he has issued legal notice and the same was served to the accused. Inspite of service of notice, accused failed to repay the amount covered under the cheque. Hence, the accused has committed the offence punishable under section 138 of Negotiable Instrument Act.
11. Further, in order to prove the guilt of the accused for offence under section 138 of Negotiable Instruments Act, 1881, the complainant is required to prove the following ingredients beyond reasonable doubt:
(i) Accused had issued a cheque in favor of complainant.
(ii) The said cheque has been issued in discharge of a debt or liability and is for consideration.
(iii) The said cheque has been dishonored on presentation.
(iv) Accused has failed to make payment of cheque amount within statutory period of service of legal notice served to him by complainant.
12. To prove the case of the complainant, the complainant himself examined as PW.1 in the form of affidavit and reiterated almost all the contents of complaint averments once again and got marked the documents as Ex.P.1 to P.9. Further, it could be 7 C.C. No.28119/2019 Judgt. seen from the contents of Ex.P.1 to P.9 that the cheque issued as per Ex.P.1 by the accused in favour of complainant and the same was dishonoured on 8/8/2019 for "Funds Insufficient" as per Ex.P.1. It could be further seen that the complainant issued legal notice as per Ex.P.4 to the accused and the same was served to the accused as per Ex.P.7 & 8.
13. It is worth to note that though the accused deposed before the court during the statement U/s 313 of Cr.P.C., that he has repaid the entire amount to the complainant, but failed to cross examine the P.W.1 to prove her defence. Further, there is no defence evidence on the side of accused. Therefore, evidence of P.W.1 remained unchallenged. Further, as per the evidence on record, it is proved by the complainant that the accused has issued Ex.P.1/ cheque in his favour and the said cheque was dishonoured due to "Funds Insufficient" as per Ex.P.2. Thereafter, the complainant has issued legal notice to the accused at Ex.P.4 and the said notice was served to the accused as per Ex.P.7 & 8.
14. Therefore, when there is evidence of complainant regarding the issuance of cheque and it was dishonour on presentation and when there is no evidence on the side of the accused to rebut the presumption available under section 118 and 139 of Negotiable 8 C.C. No.28119/2019 Judgt. Instrument Act, I am of the view that complainant has successfully established that cheque has been issued by the accused towards the discharge of legal liability and was dishonoured on its presentation for "Funds Insufficient".
15. Further, in a decision reported in AIR 2010 SC 1898 in a case of Rangappa V/s Mohan the Hon'ble Apex Court held that;
"Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant. Therefore in view of above said deposition, a presumption under section 139 of Negotiable Instruments Act can be drawn in favour of complainant that the said cheque was issued for a valid consideration. Now it is for the accused to rebut the said presumption. It is a settled law that though the onus on the accused to rebut the presumption is that of preponderance of probabilities but still the accused is required to adduce cogent evidence to rebut the presumption. Mere assertions and explanations of fact in the Court will not amount to rebuttal of presumption. In order 9 C.C. No.28119/2019 Judgt. to rebut the presumption under section 139 of N.I. Act, the accused by cogent evidence, has to prove the circumstance under which cheque was issued".
The ratio laid down in the above decision considered along with the evidence placed before the court, it clearly establishes that, for the repayment of the hand loan amount, accused issued Cheque i.e., Ex.P.1 to the complainant for an amount of Rs.1,50,000/- and the said cheque is presented on the said day and it was returned without honouring the same on account of "Funds Insufficient" maintained in the account of the accused. Further on perusing the EX-P.4, Postal Receipt and EX-P.3, the legal notice all these discloses that, inspite of the intimation of the dishonour of cheque accused did not comply the demand made in the legal notice. All these facts clearly establishes that, accused committed an offence under section 138 of N.I. Act and accordingly, I answered this point in the Affirmative.
16. Point NO.2:- Having held the complainant has proved point No.1, the next aspect that arises for my consideration is regarding sentence to be imposed on the accused for having committed an offence punishable under section 138 of Negotiable Instrument Act. It could be seen from the materials 10 C.C. No.28119/2019 Judgt. that the accused had issued cheque on 18/7/2019 and made the complainant to suffer for want of funds in his hands so far about nearly 3 years 7 months. So I am of the opinion that it is required to direct the accused to pay the compensation to the complainant and in that event only it will meet the ends of justice. Hence, for the foregoing reasons and finding to point No.1, I proceed to pass the following:
ORDER By invoking the power conferred under section 255(2) of Cr.P.C., the accused is convicted and sentenced to pay a fine of Rs.1,83,000/- for the offence punishable U/S.138 of N.I. Act and in default to pay the fine amount the accused shall undergo simple Imprisonment for one year.
Further, Acting under section 357(1)(b) of Cr.P.C. the fine amount of Rs.1,80,000/- on recovery shall be paid to the complainant as compensation.
Further, accused is directed to deposit the fine amount of Rs.3,000/- to the State out of fine amount.
Bail bond and surety bond of the
accused shall stand cancelled.
Supply a free copy of this judgment to
the accused.
11 C.C. No.28119/2019 Judgt.
Issue conviction warrant against
accused.
(Dictated to the Stenographer directly on computer, typed by her, corrected by me, signed then pronounced in the open court on this the 06 th day of March, 2023.) (SMT.RESHMA H.K.) C/c XII ACMM, BENGALURU.
ANNEXURE
1. List of witnesses examined on behalf of the complainant:
PW-1 : Asha Bai R.
2. List of witnesses examined on behalf of the accused:
- NIL -
3. List of documents marked on behalf the complainant:
Ex.P.1 : Original Cheque
Ex.P.1(a) : Signature of accused
Ex.P.2 : Bank Challan
Ex.P.3 : Return Memo
Ex.P.4 : Legal Notice
Ex.P.5&6 : Postal receipts
Ex.P.7 & 8 : Postal Acknowledgments
Ex.P.9 : Reply notice
12 C.C. No.28119/2019 Judgt.
4. List of documents marked on behalf of the accused:
- NIL -Digitally signed
RESHMA by RESHMA H K Date:
HK 2023.03.09
17:22:13 +0530
(SMT.RESHMA H.K.)
C/c XII ACMM, BENGALURU