Bangalore District Court
Mr. Fatheraj Lunkar vs Mr. Mukesh D. Ravath on 1 March, 2016
THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY.
Dated this the 1st day of March, 2016
PRESENT: SMT. ISHRATH JAHAN ARA, B.A.L., L.L.B.,
XIX ADDL.C.M.M.BANGALORE.
Case No: C.C No.18835/2012
Complainant: Mr. Fatheraj Lunkar
Prop. Match Asia Hygiene Products,
Office at No.28/1,
New No.46, 3rd Cross,
4th Block, Kumarapark West,
Bangalore -560 020.
Accused: Mr. Mukesh D. Ravath
Prop. Beena Office Solutions,
No.45, Xavier Layout,
2nd Cross, Austin Town,
Bangalore -560 047.
Presently at Beena Hygiene Solutions,
11/14, Subbaiah Reddy Block,
Near Lakshmi Market,
Halasuru,
Bangalore.
Offence complained of: U/s.138 of N.I. Act
Plea of accused: Pleaded not guilty
Opinion of the Judge Accused found guilty
Date of order: 1st March 2016
JUDGMENT
The complainant has filed this complaint u/s. 200 of Cr.P.C. against the accused for the offences punishable u/s. 138 of NI Act. 2 C.C. 18835/2012
2. The brief fact of the complainant is that;
The Complainant is into a business of Wholesale House keeping items, Hygiene Care Products, Import Export Licences and supplying housekeeping materials to industries and other establishments. The accused is also doing the same business and he was regularly purchasing the required materials from the Complainant and as such both the Complainant and accused are having business transactions. The accused purchased house keeping items under various Invoices No.9, 10, 11 and 12 dtd. 1.1.2010 and dtd.3.1.2010 and after the Complainant delivered the items to this accused and he after acknowledging the goods in order to make payment of the bills' amount, had issued four cheques bearing No.473736 dtd. 15.10.2010 for Rs.2,70,197/-, cheque bearing No.473735 dtd. 15.10.2010 for Rs.62,451/-, cheque bearing No.473737 dtd. 15.11.2010 for Rs.1,77,127/- and a cheque bearing No.473738 dtd. 15.11.2010 for Rs.1,81,971/- all were drawn at State Bank of Hyderabad, Austin Town branch, Bangalore with a request to present the said cheques for encashment and it will be honoured on presentation.
3. It is further submitted that, the Complainant presented the said cheques before his banker State Bank of India, Chamrajpet branch, Bangalore for encashment and the cheque bearing No.473735 and 3 C.C. 18835/2012 No.473736 were dishonoured on 12.4.2011 with an endorsement "Funds insufficient" and the cheque bearing No.473737 and 473738 were dishonoured on 27.4.2011 with an endorsement "stop payment and the same was informed to this Accused.
4. The Complainant further stated that the accused has failed to make payment of the Cheques' amount, therefore the Complainant got issued the Legal Notice on 12.5.2011 through RPAD, calling upon the Accused to pay the Cheques' amount within 15 days from the date of receipt of Legal Notice. The notice issued under RPAD was returned unserved with a postal shara "Addressee left". Even Inspite of knowledge of Legal Notice the Accused has failed to make payment of the Cheques' amount. The Accused only with an intention to cheat the Complainant, had issued bogus Cheques and thereby, accused has committed an offence punishable under section 138 of N.I. Act.
5. After recording of sworn statement of the complainant the Private Complaint lodged by the complainant was registered as a Criminal Case, summons was issued as against the accused. The accused appeared through his counsel and he was enlarged on bail. Plea of accusation was read over to the accused. The accused pleaded not guilty and claimed to be tried.
4 C.C. 18835/2012
6. The Complainant got examined as PW1 and he got produced 12 documents marked as Ex.P.1 to Ex.P.12 and closed his side of evidence.
7. After closure of complainant side evidence, accused statement u/s.313 Cr.P.C. was dispensed as the accused was remained absconded and moreover, it is a summary trial converted to Summons Case. The accused has not led any evidence from his side.
7. I have heard the arguments and perused the documents.
8. The only point arise for my consideration is:
1. Whether the Complainant has proved the guilt of the accused u/s 138 of NI Act beyond all reasonable doubts?
2. What order?
10. My findings to the above point are as under:
Point No. 1 In the Affirmative
Point No. 2 As per final order
for the following
REASONS:
11. Point No.1: The entire burden is on the complainant to prove his case and also to prove the above point. In order to prove the same, Complainant stepped into the witness-box and got examined as PW1 and filed his affidavit in lieu of the oral evidence by reiterating the complaint averments.5 C.C. 18835/2012
12. He deposed that his firm is doing business of Wholesale House Keeping Items, Hygiene Care Products, Import Export Licences and supplying housekeeping materials to industries and other establishments. He deposed that the accused is also doing the same business and he was regularly purchasing the required materials from his company and as such both he along with this accused are having business transactions. He deposed that the accused purchased house keeping items under various Invoices No.9, 10, 11 and 12 dtd. 1.1.2010 and 3.1.2010 and after he delivered the items to this accused and he after acknowledging the goods in order to make payment of the bill amount, had issued four cheques bearing No.433736 dtd. 15.10.2010 for Rs.2,70,197/-, cheque bearing No.473735 dtd. 15.10.2010 for Rs.62,451/-, cheque bearing No.473737 dtd.15.11.2010 for Rs.1,77,127/- and a cheque bearing No.473738 dtd. 15.11.2010 for Rs.1,81,971/- all were drawn at State Bank of Hyderabad, Austin Town branch, Bangalore with a request to present the said cheques for encashment and it will be honoured on presentation.
13. He further deposed, he presented the said cheques before his banker for encashment and the cheque bearing No.473735 and 473736 were dishonoured on 12.4.2011 with an endorsement "Funds insufficient" and cheque bearing No.473737 and No.473738 were dishonoured on 27.4.2011 with an endorsement "Stop payment and the 6 C.C. 18835/2012 same was informed to this Accused. He deposed that as the accused has failed to make payment of the Cheques' amount, he got issued the Legal Notice on 12.5.2011 through RPAD, calling upon the Accused to pay the Cheques' amount within 15 days from the date of receipt of Legal Notice and the said notice issued under RPAD was returned unserved with a postal shara "Addressee left". He deposed that even inspite of knowledge of Legal Notice the Accused has failed to make payment of the Cheques' amount. He deposed that the Accused only with an intention to cheat him, had issued bogus Cheques and thereby, accused has committed an offence.
14. PW1 in order to prove his case, got produced four Cheques issued by this Accused marked as Ex.P.1 to Ex.P4. He deposed that the signatures found on Ex.P.1 to Ex.P4 is that of this Accused, he got identified the signature of this Accused marked as Ex.P.1(a) to Ex.P4(a).
He got produced four bank endorsements marked as Ex.P5 to Ex.P8 respectively. He got produced Copy of Legal Notice along with RPAD receipt marked as Ex.P.9 and Ex.P10 respectively. He got produced unserved postal cover marked as Ex.P.11. He got identified the complaint marked as Ex.P.12.
15. Even though the Accused has appeared before this court through his Counsel, but he did not chosen to contest the proceedings 7 C.C. 18835/2012 by cross examining PW1 even in spite of sufficient opportunities. The accused has utterly failed to the cross examining the PW1 by denying his testimony. As such by an order dtd.30.04.2014, the cross examination of PW1 was taken as "nil" and proceeded the matter further. Even on subsequent dates the accused neither came forward to cross examine PW1 nor he has challenged the evidence of PW1. As such the entire case of the complainant along with his oral and documentary evidence remained unchallenged in toto.
16. There is nothing on record to disbelieve testimony of PW1 or to discord the evidence of PW1. On the contrary PW1 has categorically deposed that the accused after purchase of the goods from his shop amounting to Rs.6,91,746/- under four invoices and in order to pay the bills amount, had issued the Ex.P1 to Ex.P4 cheques and the same were bounced for the reason "Insufficient funds and "Stop payment". This fact remained unchallenged from the accused. Likewise, the evidence of PW1 that even inspite of knowledge of legal notice, issued as per Ex.P.9, the accused has failed to make payment of the cheques' amount nor he has sent his reply notice by denying the transaction. Even this fact remained unchallenged from the accused. As have discussed supra, there is no defence from the side of accused.
8 C.C. 18835/2012
17. The Accused has neither denied the issuance of Ex.P.1 to Ex.P4 Cheques in favour of this complainant nor he has denied his signature found on Ex.P.1 to Ex.P4 marked as Ex.P.1(a) to Ex.P4(a). The Accused even did not chosen to deny a fact that his Ex.P.1 to Ex.P4 Cheques bounced for the reason insufficient funds and stop payment. Admittedly, the Accused did not chosen to deny the documents marked as Ex.P.1 to Ex.P.12, the Accused even did not chosen to deny a fact that immediately after his Cheques were bounced, the Complainant got issued Ex.P.9 notice, calling upon him to pay the Cheques' amount and also by intimating dishonor of Cheques and he intentionally avoided to receive the same. On the contrary, PW1 has categorically deposed that immediately after he received the Ex.P5 to Ex.P8 Bank endorsements, he got issued Ex.P9 notice, calling upon the Accused to pay the Cheques' amount and the same was returned unserved. PW1 has deposed that the Accused intentionally avoided to receive the notice and he even after knowledge of Legal Notice, has neither chosen to make payment of the cheques' amount nor he has replied the notice by denying the transaction. He deposed that the Accused knowing fully well that he has no sufficient funds in his bank account, intentionally made stop payment of the cheques. Even these facts were not denied by the Accused. Ex.P.9 document clearly prove that the notice u/s.138 (b) of N.I. Act was returned unserved and even inspite of knowledge of Legal 9 C.C. 18835/2012 Notice, the Accused has failed to make payment of the Cheques' amount. In such situation, an adverse inference can be drawn against the accused that he after admitting the contents of Ex.P9 notice, kept quite without resisting the claim of the complainant.
18. Admittedly the entire burden is on this Accused to rebut the case of the Complainant and also to rebut the presumption available to this Complainant u/s. 139 of N.I. Act. The Accused in order to prove his defence and to rebut the presumption available u/s.139 of N.I. Act, has not chosen produce any piece of documents before this Court. There is no evidence from the side of the Accused to believe his defense. The Accused has utterly failed to rebut the presumption available u/Sec.139 of N.I. Act The accused has not put forth any defence before this court. The Accused has utterly failed to rebut the presumption available to this Complainant u/s.118 and also u/s. 139 of N.I. Act which reads as:
a. Of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; b. As to date - that every negotiable instrument bearing a date was made or drawn on such date;
c. As to time of acceptance - that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;10 C.C. 18835/2012
d. As to time of transfer - that every transfer of a negotiable instrument was made before its maturity; e. As to order of endorsements - that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
f. As to stamps - that a lost promissory note, bill of exchange or cheque was duly stamped;
g. That holder is a holder in due course - that the holder of a negotiable instrument is a holder in due course;
19. Likewise, the accused also failed to rebut the presumption available to this Complainant u/s.139 of NI Act which reads:
It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
20. The Accused even inspite of knowledge of Legal Notice neither chosen to make payment of the cheques' amount nor he has replied the notice by denying the transaction. In such situation, an adverse inference has to be drawn against this Accused that he by admitting the contents of Ex.P9 notice that he had issued Ex.P.1 to Ex.P4 cheques towards payment of the bills' amount, had kept quite without resisting the claim of the Complainant.
21. The Complainant by adducing oral and documentary evidence before this Court has proved guilt of the Accused beyond all reasonable doubts. There is no whatsoever doubt in the mind of the 11 C.C. 18835/2012 court about the case of the complainant. The oral and documentary evidence adduced before this Court by the Complainant is fully corroborating with each other and convinced this court about his case. The Complainant by adducing oral and documentary evidence before this court bring home the guilt of the Accused beyond all reasonable doubts to the satisfaction of the court. There is no whatsoever doubts in the mind of the court about the case of the Complainant. Therefore, by taking into consideration the facts and circumstances and evidence available on record, I answer this point No.1 in affirmative.
22. Point No.2: In view of my findings on the above point and the reasons stated therein, I proceed to pass the following:
ORDER Acting u/s.255 (2) of Cr.P.C. the accused is hereby convicted for the offence punishable u/s. 138 of N.I. Act.
The accused is sentenced to pay a fine of Rs.8,00,000/- (Rupees Eight Lakhs only). In any default to pay fine amount shall under go simple imprisonment for 6 months.
Out of fine amount recovered under section 357 of Cr.P.C. a sum of Rs.7,95,000/- (Rupees Seven Lakhs and Ninety-five thousand only) shall be paid to the complainant which includes the cheques' amount and also cost of the proceedings. Remaining fine amount of Rs.5,000/- shall be forfeited to State.12 C.C. 18835/2012
The bail bond and surety bonds of the accused stands cancelled.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified and then pronounced by me in the Open Court on this the 1st day of March, 2016) (ISHRATH JAHAN ARA) XIX ADDL.CMM Bangalore ANNEXURE:
Witnesses examined on behalf of the Complainant:
PW.1 Mr. Fatheraj Lunkar
Witneses examined on behalf of the Accused:
Nil
Documents marked on behalf of the Complainant:
Ex.P.1 to Ex.P4 Four Cheques
Ex.P.1(a) to Ex.P4(a) Signatures of the Accused
Ex.P.5 to Ex.P8 Bank endorsements
Ex.P.9 Copy of the Legal Notice
Ex.P.10 RPAD receipt
Ex.P.11 Unserved postal cover
Ex.P.12 Complaint
Documents marked on behalf of the Accused:
Nil
XIX ACMM, B'lore
13 C.C. 18835/2012