Bangalore District Court
Sri. Prabhakar.K vs Sri. P.K.Manikandan on 8 September, 2021
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
Dated: This the 8th day of September 2021
Present : Sri Siddaramappa Kalyan Rao, B.A., LL.B.,
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
CC.No.26381 of 2019
COMPLAINANT: Sri. Prabhakar.K.,
S/o. Late C.P.K.K.Nair,
Aged about 63 years,
R/at: No.4, Golden Pearl
Apartment,
1st Main Road, 6th "A" Cross,
Chikkamaranahalli,
Bengaluru - 560 054.
(By. Mr. Shankaraiah.B.,
Advocate)
- Vs -
ACCUSED: Sri. P.K.Manikandan,
S/o. Kuttan Kurukal,
Aged about 40 years,
R/at No:491,
"Shruthi Nilayam",
2nd Floor, 7th Cross,
K.N.Badavane,
Ward No.45, Yeshwanthpur,
Bengaluru - 560 022.
And also business premises at:-
P.K.Manikandan,
"Kannan Stores",
Shop No.77 & 78,
Bazaar Street,
Yeshwanthpur,
2 CC.No:26381/2019
Bengaluru - 560 022.
(By. Sri. M.S.Jithendra.,
Advocate)
Offence Under Section 138 of Negotiable
Instruments Act
Plea of the accused Pleaded not guilty
Final Order Convicted
******
JUDGMENT
This complaint is filed under section 200 of Cr.P.C for the offence punishable under section 138 of Negotiable Instruments Act.
2. The brief facts of the complainant case is that:
The accused is known to complainant and in that connection accused approached the complainant on 18/07/2019 and requested complainant to pay hand loan amount of Rs.5,00,000/- which is required for personal commitments and thereby agreed to repay the same within 1 month.3 CC.No:26381/2019
3. It is further contended that the accused requested to pay the amount by way of cash. As such, considering the urgency and request made by the accused, complainant withdrawn a sum of Rs.5,00,000/- from his account at Vijaya Bank, MSRIT Branch, Bengaluru and paid a sum of Rs.5,00,000/- by way of cash to the accused on 18/07/2019 and accused issued a post dated cheque bearing No:084354 dated 19/08/2019 for Rs.5,00,000/- drawn on SVC Co-Operative Bank Ltd, Gokul Branch, Yeshwanthpur, Bengaluru-22 standing in the name of complainant towards discharge of loan liability.
4. It is further contended that the complainant presented the above said cheque through his Banker Vijaya Bank, MSRIT Branch, Bengaluru on 21/08/2019, the said cheque came to be dishonoured with an endorsement as "Funds insufficient" on 22/08/2019.
5. It is further contended that the complainant got issued legal notice by way of RPAD on 28/08/2019 and 4 CC.No:26381/2019 accused received the above said notice sent to his residential address on 29/08/2019. But the copy sent to his shop address was returned as "Not claimed" on 29/08/2019. The accused neither replied to the notice nor paid the cheque amount. Hence, the present complaint is filed on 04/10/2019.
6. After filing of the complaint, this court has taken the cognizance of offence under section 138 of N.I Act and registered a Private complaint. After recording the sworn statement of the complainant, this court has registered the criminal case against the accused for the offence punishable under Section 138 of Negotiable Instruments Act. Summons issued to the accused. The accused appeared through his counsel and enlarged on bail. There afterwards, plea of accusation was recorded and read over and explained to accused in the language known to him and he pleaded not guilty and claims to be tried.
7. In order to prove the case, the complainant is examined as PW-1 and got marked the documents from 5 CC.No:26381/2019 Ex.P.1 to Ex.P.8.
8. The counsel for complainant has filed an application under Section 143(A) of N.I.Act and the said application filed by the counsel for complainant is allowed by this court on 11/03/2020 and accused was directed to deposit 20% of the cheque amount. In view of non-deposit of 20% of the cheque amount by the accused, this court has taken cross-examination of PW-1 by the accused counsel as nil on 19/02/2021. Since the accused has not challenged the evidence of PW-1, hence the statement of the accused under Section 313 of Cr.P.C is also dispensed and the defence evidence is taken as nil. In this regard I rely upon the decision reported in Hon'ble High Court of Karnataka in Criminal Revision Petition No:437 of 2010 decided between R.V.Kulkarni V/s. Dakshina Murthy dated 28/06/2012, wherein in Para No.7 it has been clearly held that:-
"There is no justification in the appellate court having held that there is failure of justice on account of the statement of the respondent - accused not having been recorded under Section 6 CC.No:26381/2019 313 of the Cr.PC. Having due regard to the fact that this was a summons case and the respondent himself was to blame for non- compliance with the said provision, no fault could be found either with the petitioner or the trial court. In that view of the matter, the petition is allowed. The judgment of the trial court is affirmed".
9. Heard the arguments from complainant counsel. Accused counsel remained absent. Hence this court issued court notice to accused counsel , and it was duly served on accused . Hence, arguments of accused counsel is taken as nil. Perused the entire oral and documentary evidence placed on record.
10. The following points arose for my consideration:
1. Whether the complainant proves that there is existence of legally recoverable debt as stated in the complaint?
2. If so, whether the complainant proves that the Ex.P.1 cheque is issued towards discharge of legally recoverable debt by the accused?
3. Whether the complainant proves that the accused has committed an offence under 7 CC.No:26381/2019 Section 138 of Negotiable Instruments Act?
4. What order?
11. My findings to the above points are as under:
Point No.1 : In the affirmative;
Point No.2 : In the affirmative;
Point No.3 : In the Affirmative
Point No 4 : As per final order,
for the following:
REASONS
POINTS NO.1 AND 2:
12. These points are taken together for common discussion in order to avoid repetition of facts.
13. It is the specific case of the complainant that accused is known to the complainant and hence, in view of the said relationship, accused approached the complainant on 18/07/2019 and requested complainant to pay hand loan of Rs.5,00,000/- which is required for his personal commitments and he has agreed to repay the same within 1 month. The accused had insisted for payment of amount by way of cash in view of his urgency. In view of the 8 CC.No:26381/2019 request made by the accused, complainant had withdrawn a sum of Rs.5,00,000/- from his account at Vijaya Bank, MSRIT Branch, Bengaluru and paid a sum of Rs.5,00,000/- by way of cash to accused on 18/07/2019. On the same day itself accused had issued an Account Payee post dated cheque bearing No:084354 dated 19/08/2019 for Rs.5,00,000/- drawn on SVC Co-Operative Bank Ltd., Gokula Branch, Bengaluru in the name of complainant towards discharge of loan obtained by the accused and when the above said cheque is came to be presented through his Banker Vijaya Bank, MSRIT Branch, Bengaluru on 21/08/2019, the said cheque came to be dishonoured for the reasons "Funds insufficient" vide memo dated 22.08.2019..
14. To substantiate the above said contention, the complainant is examined as PW-1 and has marked the documents from Ex.P.1 to Ex.P.8.
Ex.P.1 cheque is the cheque of SVC Co-Operative Bank Ltd dated 19/08/2019 bearing No:084354 for a sum of Rs.5,00,000/- issued to Prabhakar.K. i.e., the 9 CC.No:26381/2019 complainant and it is issued by P.K.Manikandan i.e, the accused. Ex.P.2 is the memo of Shamrao Vithal Co-Op. Bank dated 22/08/2019 with respect to cheque bearing No:084354 for a sum of Rs.5,00,000/- and the above said cheque is came to be dishonoured for the reasons "Funds insufficient". Ex.P.3 is the office copy of legal notice issued to the accused on 28/08/2019. Ex.P.4 and Ex.P.5 are the postal receipts dated 28/08/2019. Ex.P.6 is the Postal Track Consignment delivered on 29/08/2019. Ex.P.7 is the postal cover wherein the notice issued to the shop address, is mentioned as "not claimed and returned to sender". Ex.P.8 is the statement of accounts of Prabhakar.K. i.e., the complainant of Vijaya Bank now called as Bank of Baroda from 01/01/2019 to 20/10/2019.
15. To substantiate the above said contention, the complainant who is examined as PW-1 has reiterated the complaint averments in his affidavit evidence. Among all the documents produced by the complainant from Ex.P.1 to Ex.P.8, on close scrutiny of Ex.P.8 which is the 10 CC.No:26381/2019 statement of accounts of Prabhakar i.e., the complainant of Vijaya Bank now called as Bank of Baroda from 01/10/2019 to 20/10/2019 on close scrutiny of the above said statement of account, it can be noticed that on 18/07/2019 an amount of Rs.5,00,000/- has been withdrawn by the complainant and the above said amount which has been withdrawn, the same amount has been given by the complainant in favour of accused. Further, on perusal of the contents of Ex.P.3 legal notice dated 28/08/2019, it can be noticed that and it has been mentioned that accused is known to complainant and in view of the above said relationship accused requested complainant on 18/07/2019 to pay hand loan of Rs.5,00,000/- which is required for his personal commitments and he has agreed to repay the same within 1 month. In view of the demand made by the accused to pay the amount in cash, the complainant had paid the amount by way of cash by withdrawing the same from Vijaya Bank, MSRIT Branch, Bengaluru on 18/07/2019 and after receipt of the above said amount, the accused has issued Ex.P.1 cheque bearing No:084354 dated 11 CC.No:26381/2019 19/08/2019. Hence, on close scrutiny of the above said legal notice, in the above said legal notice, it has been mentioned what has been stated in the complaint averments. Further, on close scrutiny of Ex.P.1 cheque, it goes to show that the above said cheque has been issued by P.K.Manikandan i.e, the accused and it is issued to Prabhakar.K. i.e., the complainant bearing No:084354 dated 19/08/2019 and the above said cheque is came to be dishonoured for the reasons "Funds insufficient" as per Ex.P.2 memo dated 22/08/2019 issued by Shamrao Vithal Co-Op Bank. Hence, on perusal of the above said documents, as discussed above from Ex.P.1 to Ex.P.3 and Ex.P.8, it goes to show that complainant has advanced a sum of Rs.5,00,000/- in favour of accused by withdrawing the same from his Banker Vijaya Bank as per Ex.P.8 on 18/07/2019 and for discharge of the above said liability accused has issued Ex.P.1 cheque and the above said liability which has been obtained by the accused is a legally enforceable debt. As per Section 139 of N.I.Act, the presumption is that the cheque is deemed to be presumed that the holder of the cheque received the cheque for 12 CC.No:26381/2019 discharge of debt or liability until and unless the contrary is proved. In the present case the counsel for accused has not cross-examined PW-1 nor led any defence evidence. Hence, it shall be presumed by this court that Ex.P.1 cheque has been issued by accused for discharge of debt.
16. Further, I rely upon the decision reported in Crl. Appeal No:230-31 of 2019, decided between Bir Singh V/s. Mukesh Kumar dated 06/02/2019 wherein at Para No:40 it has been clearly held that :-
"Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt".
The above case law rightly applies to the facts of the present case.
17. Hence, the complainant has proved that Ex.P.1 cheque is issued by the accused in favour of complainant 13 CC.No:26381/2019 for discharge of debt. Hence, in view of my above discussion, I answer Point No.1 and 2 in the "Affirmative".
POINT No.3:-
18. It is the specific contention of the complainant that complainant and accused are known to each other and in this connection accused approached the complainant seeking hand loan of Rs.5,00,000/- for his personal commitments and requested payment by way of cash. The complainant in view of the said relationship paid a sum of Rs.5,00,000/- on 18/07/2019 by way of cash and accused promised to repay the said amount within one month. In discharge of the said debt, the accused issued a cheque bearing No:084354 dated 19/08/2019 for Rs.5,00,000/- drawn on SVC Co-Operative Bank ltd, Gokul Branch, Yeshwanthpur, Bengaluru. When complainant presented the said cheque for realization, it was dishonoured with an endorsement "Funds insufficient"
on 22/08/2019 as per Ex.P.2. The complainant having no other choice issued legal notice to the accused on 14 CC.No:26381/2019 28/08/2019 as per Ex.P.3 and the said notice was sent by way of RPAD as per Ex.P.4 and Ex.P.5 postal receipts. The notice sent to the shop address of the accused was not claimed and returned as "Not claimed and returned to sender" as per Ex.P.7 postal cover, but the accused received the above said notice sent to his residential address on 29/08/2019. The accused has neither paid the cheque amount nor replied to the above said notice.
Hence, the present complaint is filed.
19. In this regard, it is relevant to peruse Section 138 of the Negotiable Instrument Act, which reads as under:-
"Dishonour of cheque for insufficiency, etc., of funds in the account.--Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, 15 CC.No:26381/2019 without prejudice to any other provision of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:
20. Provided that nothing contained in this section shall apply unless--
a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
21. Explanation.--For the purposes of this section, "debt of other liability" means a legally enforceable debt or other liability.
16 CC.No:26381/2019
22. On going through the said provision of law, it is clear that in order to establish and to prove the fact that the accused has committed an offence under section 138 N.I.Act, the essential requirements i.e., legally recoverable debt, issuance of the cheque, presentation of the said cheque within the stipulated period for encashment, the dishonour of the said cheque and the issuance of the legal notice within the stipulated period calling upon the accused in making the payment of the said cheque amount is within the stipulated period are to be proved by the complainant.
23. On going through the facts and circumstances of the case, it is clear that the accused has issued Ex.P.1 cheque dated 19/08/2019 for Rs.5,00,000/- and the said cheque is dishonoured for the reasons "Funds insufficient"
on 22/08/2019 as per Ex.P.2 memo. The complainant has issued the legal notice through his advocate on 28/08/2019 as per Ex.P.3. The evidence placed on record shows the failure of the accused to pay the above said 17 CC.No:26381/2019 cheque amount within stipulated period as per section 138(b) of the Act. The present complaint has been filed well within the period of limitation. In view of this, the complainant has satisfied the entire requirements of section 138 of N.I.Act.
24. On going through the entire oral and documentary evidence and as observed supra, the complainant has proved the existence of legally recoverable debt and issuance of cheque towards discharge of the said debt and also issuance of the legal notice within stipulated period and the failure of the accused to make payment of the said cheque amount within stipulated period. Under such circumstances, I hold that the complainant has clearly proved the existence of legally recoverable debt and also the issuance of cheque towards the discharge of said debt.
25. When the complainant proved that accused has issued cheque towards his liability, accused is liable to pay the money as provided U/Sec.138 of N.I.Act, the accused can be punishable with imprisonment for a term which 18 CC.No:26381/2019 may be extended upto 2 years or with fine which may be extended to twice the amount of the cheque or with both. The accused is liable to pay the cheque amount of Rs.5,00,000/- in discharge of his liability.
26. Looking to the facts and circumstances of the case, further the accused has issued Ex.P.1 cheque and in view of failure on the part of the accused to pay the said amount, hence complainant is entitled for the cheque amount. I feel that if the cheque amount is ordered as compensation to the complainant, it would meet the justice to both the parties. Hence accused is liable to pay the cheque amount in favour of complainant. Hence in view of my above discussion, I answer Point No.3 in "Affirmative".
POINT No.4:-
27. In the result, I proceed to pass the following:
ORDER Acting under Section 255(2) of Cr.P.C., the accused is hereby convicted 19 CC.No:26381/2019 for the offence punishable under Section 138 of N.I. Act.
Accused is sentenced to pay a fine of Rs.5,00,000/- (Rupees Five Lakhs Only) for the offence punishable under Section 138 of N.I. Act. The same shall be paid by the accused within a period of 30 days from the date of this order.
Out of the said fine amount, a sum of Rs.4,90,000/- (Rupees Four Lakhs Ninety Thousand Only) has been awarded to the complainant as compensation under Section 357 of Cr.P.C.
In default of payment of fine amount, the accused shall undergo simple imprisonment for 6 (six) months.
The rest of Rs.10,000/- (Rupees Ten Thousand Only) is ordered to be adjusted to the State as fine.
The cash surety amount of Rs.4,000/- already deposited by the
accused on 05/02/2020 is forfeited to the State.
Office is directed to supply copy of 20 CC.No:26381/2019 Judgment to the accused free of cost.
(Dictated to the Stenographer on computer, print out taken by her is verified, corrected and then Pronounced by me in the Open Court on this the 8th day of September 2021).
(Siddaramappa Kalyan Rao) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 : Sri. Prabhakar.K. List of documents exhibited on behalf of the complainant:
Ex.P.1 : Cheque. Ex.P.1(a) : Signature of the accused. Ex.P.2 : Bank endorsement. Ex.P.3 : Legal notice. Ex.P.4 and Ex.P.5 : Postal receipts. Ex.P.6 : Postal Track Consignment. Ex.P.7 : Postal cover. Ex.P.8 : Bank account statement.
List of witnesses examined on behalf of the accused :
- None -
List of documents exhibited on behalf of the accused :
- Nil -
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.21 CC.No:26381/2019
08/09/2021 Complainant - SB Accused - NSJ Judgment (Judgment pronounced in the open court vide separate order) ORDER Acting under Section 255(2) of Cr.P.C., the accused is hereby convicted for the offence punishable under Section 138 of N.I. Act.
Accused is sentenced to pay a fine of Rs.5,00,000/- (Rupees Five Lakhs Only) for the offence punishable under Section 138 of N.I. Act. The same shall be paid by the accused within a period of 30 days from the date of this order.
Out of the said fine amount, a sum of Rs.4,90,000/- (Rupees Four Lakhs Ninety Thousand Only) has been awarded to the complainant as compensation under Section 357 of Cr.P.C.
In default of payment of fine amount, the accused shall undergo simple imprisonment for 6 (six) months.
22 CC.No:26381/2019The rest of Rs.10,000/- (Rupees Ten Thousand Only) is ordered to be adjusted to the State as fine.
The cash surety amount of Rs.4,000/- already deposited by the
accused on 05/02/2020 is forfeited to the State.
Office is directed to supply copy of Judgment to the accused free of cost.
XII A.C.M.M., Bengaluru.